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zeal, prepared a written statement of the record is raised by the motion of the plaintiff facts, as also his opinion of the law. After to strike out the defense of 'void levy. Can the examining his findings and conclusions with taxpayers by Lamar township because the levy

defendant city hold money collected from the great care, we have reached the opinion that upon which the collection was made is void? his views are sound. We therefore adopt his The court is of the opinion that the defendant

The statement of the facts and his opinion as to city cannot avail itself of this defense.

taxes were actually extended on the tax books the law as our opinion herein, adding thereto and regularly collected by the collector of the some supplemental views of our own upon a township, and thereby becomes public funds for question of first impression in our courts. the purpose for which collected, and it does not

lie in the mouth of any one but a taxpayer to This opinion of the trial judge is as follows: dispute the validity of the levy. If the defend

"This is an action by Lamar township, one of ant city can defend the suit on that ground, the the municipal townships of Barton county, collector could have pocketed all the taxes so against the city of Lamar, a city of the fourth collected and defeated a suit for the same or a class; the corporate limits thereof being wholly | prosecution for embezzling the funds. The conwithin Lamar township. The petition contains tention carried to its legitimate results would three counts, and seeks to recover certain road enable the custodians of the funds of these muand bridge funds levied and collected in Lamar nicipalities to embezzle them with impunity; for township for the years 1909, 1910, and 1911, the records, made by persons not learned in the and, by the township collector and the county, law and with little idea of forms by these mutreasurer as ex officio collector, paid to the nicipalities, rarely measure up to the full retreasurer of the city of Lamar. The answer quirements of the law. This defense should admits the corporate existence of plaintiff and have been stricken out on plaintiff's motion. defendant, contains a general denial as to other [3] "II. Do these taxes levied and collected allegations, and specifically denies that any by Lamar township from the citizens living such taxes were ever legally levied, and alleges within the corporate limits of the city belong that the pretended levies are void, and the fur- ! to the plaintiff township or defendant city? ther defense that, if any such taxes were col- That it would seem fair for the city of Lamar lected and paid to defendant, the same were paid to have them all must admit. It is so recogunder a mistake of law, and for that reason nized by our Legislature, as shown by their replaintiff is not entitled to recover. There is peated efforts to pass and passing such law. To not much controversy about the facts.

whom public funds belong and the disposition “The plaintiff, Lamar township, undertook to that can lawfully be made of them depends upon levy a road and bridge tax of 10 cents on the the law, and not upon sentiment or any one's $100 for the year 1909, 20 cents on the $100 for idea of fairness. So it becomes the court's duty each of the other years, 1910 and 1911. The to be governed by the law, and not by personal record of the township board with reference to preference of the individual who discharges the these levies is brief, and it appeared in evidence judicial function. that the amounts of the levies for some of the "In the year 1908 the people adopted an years were not written in until long after the amendment to the Constitution designated as proceedings of the board were had, and some section 22, art. 10. Under section 11 of article amendments or corrections in the record were 10, the limit of the county tax is 50 cents on made after this suit was brought. It was shown the $100, and this includes road tax and townthat the clerk of the board sent to the county ship tax; the total limit being 50 cents on the clerk a certificate of each levy, and the taxes $100. The county levies are generally as much were extended on the tax books and collected by as 40 cents on the $100. The record does not the township collector and ex officio collector; disclose the levies in 1909, 1910, and 1911, but that all of such taxes collected witbin the cor the constitutional amendment became necessary porate limits of the city of Lamar were paid to in order to have a sufficient road and bridge the treasurer of the city of Lamar, and used fund to keep up the work on the public roads. by the city. At that time the city did not keep This section gives the right to the township a separate street fund, or at least for the first board to levy, a tax of 25 cents on the $100 for two years, but sums equal to, and in excess of, 'road and bridge purposes' and it provides that the amounts so paid in to the city treasurer were such tax, when levied and collected, 'shall not expended on the streets of the city of Lamar. be used for any other purpose whatever.' The Settlements were made with the township board only authority the township board had for levyby the collector and ex officio collector, and the ing the 20 cents on the $100 was this section township board knew, or should have known 22 adopted as an amendment to the Constituof the payments of the city of the portion of tion. Before the adoption of this section Lamar the road and bridge tax collected within the cor township could not have levied more than 15 porate limits of the city. The fact is that all cents on the $100. Green City v. Martin, 237 thought, under the law, it was the duty of the Mo. 474, 141 S. W. 879. collector to pay all road and bridge taxes levied "It is clear, under this section of the Conby Lamar township and collected from citizens stitution (section 22), that of the road and living within the corporate limits of the city of bridge tax therein authorized to be levied and Lamar to the city treasurer, until after the collected by Lamar township no division could decision of the Supreme Court in the case of be made with the city of Lamar. It is required Green City v. Martin, 237 Mo. 474, 141 S. W. to be used for the roads and bridges within the 879, The taxes so collected and paid to the township, and not upon the streets of the city. city treasurer for the use of the city are as In the face of this constitutional prohibition, no follows: 1909, $714.30; 1910, $1,455.30; 1911, law could be passed by the Legislature taking $1,389.81. So if the plaintiff is entitled to re away from the township one cent of the public cover in this action the judgment should be for funds authorized to be levied under it. This these syms and interest from date of demand, is not only clear from the express words of the August 5, 1912.

Constitution, but it has been so decided by our “There was a motion filed by the plaintiff's Supreme Court in the Green City Case. counsel to strike out the defense of void levy, [4] “It is contended by def dant's counsel etc., but, not having been taken up before the that the road and bridge tax levied, collected, case was called for trial, it was agreed by coun- and sought to be recovered by the plaintiff's suit sel that the trial might proceed and the ques- is not the road and bridge tax contemplated or tions involved in the motion determined in pass provided for by this constitutional amendment; ing on the case, as the testimony was short, and that it is the road tax provided for by Rev. St. it was more convenient to argue the motion 1909, $ 11,767, passed by the Legislature in with the case on its merits.

1909, and it is therein expressly provided that

porate limits of the cities and towns shall be the authorities cited in briefs of counsel, and turned over to the treasurer of such cities and has reached the conclusion that in Missouri, and towns. There are two reasons why the court in the best-reasoned cases elsewhere, they hold cannot adopt this construction. In the first that municipalities constitute an exception to place this section of the statute was not in the general rule. The case of Morrow v. Surforce when the levy was made in April, 1909,ber, 97 Mo. 161, 11 S. W. 48, clearly recognizes and the levy for all the years are substantially the exception to the general rule and is much the same. For the levy of 1909 the court is in point. The case of Schell City v. Rumsey, forced to accept the constitutional amendment 39 Mo. App. 264, cited by defendant's counsel, in 1908, for authority to warrant the township supports the contention that payment under board in making the levy, but a more cogent rea- mistake of law cannot be recovered back. The son is found in the fact that under the construc- facts in this case, without the application of tion placed on section 46 of article 4 of the this rule, clearly warrants the decision on the Constitution no such division can be made, and recognized rule that a municipality cannot aca statute that authorizes it is void. State ex cept the benefits of a void contract and retain rel. v. County Court, 142 Mo. 575, 44 S. W. them and recover back the consideration paid. 734. The statute under consideration in that This principle was recognized in the case of case was_section 7903a, passed in 1897. See Aurora Water Co. v. Aurora, 129 Mo. loc. cit. Acts 1897, p. 218. This act authorizes coun- 544, 31 S. W. 946, in a very able opinion by ties to pay to cities and towns taxes collected Judge Sherwood. In other words, municipaliwithin the corporate limits of such cities ties will not be permitted to ignore every prinand towns to such cities and towns for im- ciple of common honesty, even though their provements of the streets. The Supreme officers do exceed their authority under the law Court, speaking through Judge Burgess, calls in dealing with the public. In the Schell City attention to the fact that counties and Case the officers of the city bought machinery cities were independent of each other in from the defendant and paid part of the purthe governmental functions; that the duties chase price. The contract of purchase was held and obligations of cities and counties in build- void, being unauthorized by law. Thereupon ing and maintaining roads and streets are very the city, while retaining the fruits of the condifferent. That decision is not based on the tract, brought suit to recover back the money fact that it was sought to divert a part of the paid on the contract, and the Court of Appeals public revenue of the county, and not a part of denied the right to recover back the money paid the road tax of the county. Had that been the on the contract, and based their opinion on the basis of the decision, the court would not have general rule that money paid under a mistake expressly held the statutes unconstitutional, but of law cannot be recovered back. But reading would have held that the city of Kirkwood that case in connection with Sparks v. Jasper sought to obtain funds which could not be set County, 213 Mo. 237, 112 S. W. 265, it will be apart and used for that purpose by the court. seen that the case is only treated as authority It is suggested by the counsel for defendant for the proposition that municipal corporations with much force that the Supreme Court in the cannot retain property bought on a void conGreen City Case had recognized the validity of tract and recover back the consideration paid section 11,767 of the statute of 1909, and that for it. The language of the court in Ada case could have been disposed of without going County v. Gess, 4 Idaho, 611, 43 Pac. 71, apinto the intricate distinction as to the kind of peals to this court as a correct statement of the road tax provided for by the constitutional law. That court, among other things, says: amendment and by section 11,767. The fact Some authorities go so far as to hold that paythat the point is nowhere raised by the brief of ment of public moneys under 'mistake of law the counsel or referred to by the court, and the cannot be recovered back. The doctrine is so further fact that the distinguished jurist, in repugnant to every principle of justice and writing the opinion, declines to say 'yea' or common honesty that the latter cases do not, 'nay' on other questions raised by brief of coun- by their reasoning, commend themselves to this sel, is a cogent reason why that case should not court. We cannot consent to carry the doctrine be nonconstrued as any authority in support beyond settlements between private individuals.' of the validity of section 11,767; the same is “A settlement made by an individual and a true of the case of State ex rel.. v. Everett, 245, corporation binds the individual, and these Mo. 706, 150 S. W. 1054. The court regards cases have caused some misunderstanding as to it as a duty to follow. what the Supreme Court the law. The court holds that the public money does say in its decisions rather than what it of municipal corporations paid out by its ofmay say by plausible inference.. Article 4, § 46, ficers under a mistake of law can be recovered of the Constitution, construed in the Kirkwood back at the suit of such corporation. Case, 142 Mo, 575, 44 S. W. 734, supra, is rea "It is contended by defendant's counsel that, if sonably clear, and the construction placed upon the construction our court puts upon the constisection 46 in that case is logical, and this court tutional provisions and statute passed, using the is of the opinion that the Legislature has no same language, be correct, then both are void, bepower to pass a statute authorizing the township ing in violation of the federal Constitution, reto pay the part of the road taxes collected in quiring equal taxation. That is to say, the taxthe cities and towns into the treasury of such cit- ing of the citizens of Lamar, a separate municiies and towns. The court is satisfied, under the pality, for the benefit of Lamar township would law, the road taxes collected by the township be to require the citizens of Lamar to bear this collector and paid into the city treasury belong burden without securing any benefit. The court to the township.

thinks that counsel overlooks the fact that ev[5] “III. The taxes collected and paid into ery citizen of Lamar is a citizen of Lamar the city treasury by the township collector and township, and has the right to participate in the ex officio collector were so paid because these administration of the affairs of the township. officers understood and believed it was their The improvement of the public highways are as duty, under the law, as was generally under- | important to the citizens of Lamar as the citistood by the officers of both plaintiff and de zens living outside of Lamar in the township, fendant, so that, if the court is right as to its but it is not true that the citizens of Lamar construction of the law, these payments were township are citizens of Lamar, or have anything made under a mistake of law. The payments to do with, or control over, the administration having been so made, can the plaintiff recover of the affairs of the city. The property owners the money by action at law? The authorities who choose to live in a city or town must are not uniform on this question, and, in the bear the burden of taxation for the support of judgment of the court, it is the most doubtful the city government as well as state, county, question involved in the case. As between in- township, and government. This may not seem dividuals, payments under a mistake of law fair, but it is the law. cannot be recovered. The court has examined "It follows from what has been said that the

judgment must be for the plaintiff, on the first y excuse be found in the decided cases.

The count for $714.31, together with interest there- rule in such case is thus stated in 30 Cyc. on from August 5, 1912, to this date, at the rate of 6 per cent. per annum, amounting to

1315: $16.79, an aggregate of $761.10, on the second “Although there are cases holding the contrary, count for $1,455.30, together' with interest the better rule seems to be that payments by a thereon from August 5, 1912, to this date, at public officer by mistake of law, especially when the rate of 6 per cent. per annum, amounting made to another officer may be recovered back." to $95.32, an aggregate of $1,550.62, on the Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71; third count for $1,389.81, together with inter- Heath_v. Ålbrook, 123 Iowa, 559, 98 N. W. est thereon from August 5, 1912, to this date, at 619; Ellis v. State Auditors, 107 Mich. 528, 65 the rate of 6 per cent. per annum, amounting to N. W. 577; Allegheny Co. v. Grier, 179 Pa. $91.03, an aggregate of $1,480.84, aggregating 639, 36 Atl. 353; State v. Young, 134 Iowa, in all the sum of $3,792.56, and it is so or- 505, 110 N. W. 292, 13 Ann. Cas. 345; McEldered."

rath v. United States, 12 Ct. Cl. 201. As stated by the learned judge nisi, there In the case of Ada County v. Gess, supra, is no particular difficulty in reaching the in a very able discussion of this identical conclusion that the city of Lamar, as against question, the court said: the township of Lamar, is not, and was not,

As the county is a municipal corporation, it entitled to any of the road and bridge fund may sue and be sued, and we know of no limicollected in Lamar township, pursuant to the tation as to time, except that provided in the

We are levy made therein for the years mentioned. general limitation laws of the state. The case of Green City v. Martin, supra, set-take of law is a voluntary payment, and cannot

told, however, that money paid through a mistles this point beyond cavil.

be recovered back; and we are cited to the case The serious question, and the one as to of Badeau v. United States, 130 U. S. 439, 9 which appellant most earnestly and strenu- Sup. Ct. 579 (32 L. Ed. 997), as sustaining that

doctrine, but it does not do so. Chief Justice ously contends, is whether the rule that mon- Fuller, in that case, did not place his decision ey paid without protest or duress, under a on the ground that money paid by one officer of mistake of law, cannot be recovered applies the government to another officer is a voluntary as between officers of municipal corporations payment that cannot be recovered back, but up

on the ground that the claimant, although redealing with the money and the property of tired, was still an officer of the army de facto, the public. That individuals may not recov- if not de jure, and for that reason he was entier money so paid, absent fraud, protest, or tled to the money received, and it could not be

recovered back, and ex æquo et bono should not duress, is too well settled for argument. be returned. Some of the authorities cited, howNeedles v. Burk, 81 Mo. 569, 51 Am. Rep. ever, seem to sustain the contention of the ap251; Savings Institution v. Enslin, 46 Mo. 200; pellant, and some authorities go so far as to Campbell y. Clark, 44 Mo. App. 249. Like-lic by its authorized agent to an officer on ac

hold that payments of the money of the pubwise in other jurisdictions this rule, so far count of a mistake of law cannot be recovered as it applies to individuals, sui juris dealing back. The doctrine is so repugnant to every with their own property, is well-nigh with principle of justice and common honesty that out exception. 30 Cyc. 1313, and cases cited. I the latter cases do not, by their reasoning, com

mend themselves to this court. We cannot conThe reason for the rule as between individu- sent to carry the doctrine beyond settlements als, while sometimes provocative of great between private individuals.' Ada County v. miscarriages of justice, and while largely Gess, 42 Idaho, 611, 43 Pac. loc. cit. 72. predicated upon expediency, is yet bottomed In the case of Allegheny Co. v. Grier, suupon some considerations which are logical pra, the court said: and well settled. Among these (but, when "So, on the grounds of public policy, the court wrong is being done, clearly not chief among was right in holding that the maxim Volenti • these) is the maxim "Ignorantia legis nemi- non fit injuria' has no application to the illegal

payment of public funds to a public officer; more nem excusat.” Likewise the rule touches especially where, as here, it is the peculiar funcnearly upon the doctrines of accord and sat-tion of that officer to guard the public treasisfaction and of estoppel, as also upon the ury. Public revenues are but trust funds, and

officers but trustees for their administration for rule forbidding the unsettling of things set- the people. It is no answer to a suit brought tled and thereby disturbing repose by clam- by a trustee to recover private trust funds that orous litigation. Other maxims-e. g., “V0- he had been a party to the devastavit. There

Ablenti non fit injuria,”— have likewise been could be no retention by color of right.

bott v. Reeves, 49 Pa. 494 (88 Am. Dec. 510]. invoked; but confessedly even among indi. With much the stronger reason is this docviduals, unless the peculiar facts of the case trine applicable where the interests of the whole also warrant the application of the rule people are involved, and the authorities are acex æquo et bono, there is little logic and Orleans v. Finnerty, 27 La. Ann. 681 (21 Am.

cordingly numerous to this effect. City of New less of honesty in putting it upon such an Rep. 569]; Allen v. Com., 83 Va. 94, 1 S. E. excuse. The best that may be said of the 607; Com. v. Field, 84 Va. 26, 3 S. E. 882; rule, even as applied to individuals, is that Day Co. v. State, 68 Tex. 526, 4 S. W. 865; it is a handy rule to apply in those rare cas- Rep. 748); Taylor v. Board of Health, 31 Pa.

Steamship Co. y. Young, 89 Pa. 191 [33 Am. es where the application of it prevents gross 73 172 Am. Dec. 724]; Smith v. Com., 41 Pa. injustice. See, arguendo, Schell City v. 335, and cases cited." Allegheny Co. v. Grier, Rumsey Mfg. Co., 39 Mo. App. 264.

179 Pa. 639, 36 Atl. 353. Certainly in a case like this of dealings [6] Officers are creatures of the law, between public officers with the public's mon- whose duties are usually fully provided for ey no excuse for invoking this rule can be by statute. In a way they are agents, but

that they are neither bampered by custom The other cases of Scott Co. v. Leftwich, nor law, and in the sense that they are ab- 145 Mo. 34, 46 S. W. 963, State ex rel. v. solutely free to follow their own volition. Shipman, 125 Mo. 436, 28 S. W. 842, State ex Persons dealing with them do so always with rel. v. Ewing, 116 Mo. 129, 22 S. W. 486, and full knowledge of the limitations of their State ex rel. v. Hawkins, 169 Mo. 615, 70 S. agency and of the laws which, prescribing W. 119, were all cases of settlements made their duties, hedge them about. They are by the county with county officers; i. e., cirtrustees as to the public money which comes cuit clerks and county collectors. Formal to their hands. The rules which govern this settlements intervened, which settlements trust is the law pursuant to which the mon were set down upon the solemn records of a ey is paid to them and the law by which court of record. The shadowy reason behind they in turn pay it out. Manifestly none of the holdings in these cases smacked of the the reasons which operate to render recovo doctrine of res adjudicata, and accord and ery of money voluntarily paid under a mis- satisfaction. In fact, this is the chief take of law by a private person applies to an ground upon which the ruling is made in the officer. The law which fixes his duties is his latest case cited, to wit, State ex rel. v. power of attorney; if he neglect to follow Hawkins, 169 Mo., at page 618, 70 S. W., at it, his cestui que trust ought not to suffer. page 120, wherein it is said: In fact, public policy requires that all offi “It also appears that the defendant Hawkins cers be required to perform their duties and the county court, at the March term, 1898,

had a full settlement of his accounts of the revewithin the strict limits of their legal author- nue collected by him in 1897, and, with full ity.

knowledge of his claim for $216 commissions Neither, so far as counsel have invited our on back taxes collected by him that year, the attention or we have been able to find, is this charge of fraud or collusion in the case.

court allowed him that credit. There is no

Whethview in conflict with anything which has er the court erred in allowing that commission been ruled by us in this state. The case of on back taxes for that year, the settlement is Schell City v. Rumsey Mfg. Co., 39 Mo. App. binding and conclusive in the absence of fraud,

collusion, or mistake. State ex rel. v. Ewing, 264, applies a different rule. But there were 116 Mo. 129 [22 S. W. 486); State ex rel. v. among facts there held in judgment a Shipman. 125 Mo. 436 [28 S. W. 842). The peculiar condition of estoppel existing, which item of $216 is no longer in the case. State fairly distinguishes that case from this. Be w. 120.

ex rel. v. Hawkins, 169 Mo. loc. cit. 618, 70 S. sides, that was not a case where one officer

Moreover, these cases may all be distinof a municipality was dealing with another

guished from the case at bar. Here there officer of another municipality; there a mu

was no settlement whatever. The township nicipality was dealing with a private busi- collector and the county treasurer, erroneness corporation. Concededly, however, the

ously believing that under the law it was broad rule laid down largely by dictum in their duty to pay this money over to the that case is not in harmony with the views treasurer of the city of Lamar, proceeded to we are now here holding. In Campbell v.

If this township collector had been Clark, 44 Mo. App. 249, the rule here urged of the belief that under the statute it was was approved.

his duty to pay this identical money over to The case of Morrow v. Surber, 97 Mo. 155, the clerk of this court, and had at once done 11 S. W. 48, is in accord with what we here

so, would it not be fairly plain 'that some hold, though the court there went beyond the sort of action would be maintainable to reprecise point up for ruling in order to say cover the money from our clerk? Such a that, upon the facts there, a private individ- rule as is contended for by the appellant ual even would have been entitled to recover: might and could become a mighty instruUpon the two points touching the rule as itment of evil, and might (since there is no affects a public officer, and as it affects a

gauge by which to measure the kind and naprivate person, the court said in that case: ture of the mistake of law which will serve

“Such a mistake as it here described furnishes to excuse) be used to defend against all ground for recovery of the money in this action. The plaintiff is the custodian of the coun

manner of thefts and larceny and the illegal ty funds, and sues here in his official capacity. frittering away of the public money. While He is agent of the county for the purposes de- the question presented is a new one and a fined by law, and the public is bound to take nice one so far as the precise facts here held notice of the limitations of his agency. He cannot give away county funds or disburse them in judgment are concerned, we yet think the contrary to law. Any such disbursement is en- learned trial court correctly resolved it. tirely invalid. If this case were between pri

It results that the judgment should be afvate citizens, the undisputed facts would sup

firmed. port the judgment given by the circuit court under the settled law of this state. Columbus Ins. Let this be done. Co. V. Walsh, 18 Mo. 229; Koontz v. Bank, 51 Mo, 275.

WALKER, P. J., and BROWN, J., concur.

do so.

furnish the lineman with suitable tools, and to RUTLEDGE v. SWINNEY et al. (No. 17774.) instruct him to inspect it before installing the

larger transformer. (Supreme Court of Missouri, Division No. 2.

[Ed. Note.-For other cases, see Master and July 14, 1914.)

Servant, Cent. Dig. 88 235-242; Dec. Dig. 8 1. PLEADING (8 406*)—PETITION-SUFFICIEN

124.*] CY AFTER VERDICT.

5. MASTER AND SERVANT (88 286, 289*)-ACIn an electric light lineman's action for TIONS FOR INJURIES-QUESTIONS FOR JURY. injuries caused by a cross-arm crumbling and In an electric light lineman's action for inpermitting him to fall, the petition alleged that juries caused by a cross-arm crumbling and perit was the duty of defendant to exercise ordi- mitting him to fall, evidence as to whether it nary care in inspecting the poles, cross-arms, was the duty of the lineman or of the employer pins, and wires and other places where work- to inspect the cross-arms held a question for the men would have occasion to work, so as to as- jury. certain whether such places were ordinarily safe [Ed. Note.-For other cases, see Master and for such workmen; that defendant wholly failed Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010 to discharge such duty with regard to the par- 1015, 1017-1033, 1036–1042, 1044, 1046-1050, ticular pole involved ; that the cross-arms upon 1089, 1090, 1092-1132; Dec. Dig. 88 286, 289.*) such pole and the pins sunk therein were defec. 6. MASTER AND SERVANT (8291*)—ACTIONS tive, unsafe, and dangerous; and that defendant

FOB INJURIES-INSTRUCTIONS. knew, or in the exercise of ordinary care should have 'known, of such condition, and should have juries caused by a cross-arm crumbling and per:

In an electric light lineman's action for inremedied it so as to make the place safe. It was mitting him to fall, instructions on behalf of was designed or intended to support the weight plaintiff, attacked by defendant, held to fairly of linemen. Held that, while it did not cate- outline plaintiff's theory of the case. gorically allege that the cross-arm was intend

[Ed. Note.-For other cases, see Master and ed to support plaintiff's weight, it alleged with Servant, Cent. Dig. $8 1133, 1134, 1136–1146; sufficient clearness that the rotten condition of Dec. Dig. § 291.*] the cross-arm was the cause of the injury, and 7. MASTER AND SERVANT (8291*)—ACTIONS the allegation that it was defendant's duty to in- FOR INJURIES INSTRUCTIONS CONFORMspect the cross-arm and make it safe was equiv- ITY TO EVIDENCE. alent to an allegation that it was necessary and In an electric light lineman's action for inintended that linemen should go thereon in the juries caused by a cross-arm crumbling and perperformance of their work, and hence, in the ab- mitting him to fall, an instruction hypothesizing sence of any demurrer or motion to make the pe- the lineman's lack of opportunity, time, or tition more definite, the petition was sufficient means to discover the condition of the cross-arm after verdict, where plaintiff's evidence tended was justified by evidence that he was required to show that, in climbing over a transformer, to perform a rush job and was not furnished he could not secure a hold upon the pole but tools with which he could have detected the was compelled to take hold of the cross-arm. decayed and unsafe condition of the cross-arm.

(Ed. Note.-For other cases, see Pleading, [Ed. Note.-For other cases, see Master and Cent. Dig. $$_1355–1359, 1361-1365, 1367–1374, Servant, Cent. Dig. 88 1133, 1134, 1136–1146; 1386; Dec. Dig. § 406.*]

Dec. Dig. § 291.*] 2. PLEADING ($ 35*)-PETITION-SURPLUSAGE. 8. APPEAL AND ERROR (8 1003*)-REVIEW

It appearing that defendant did not catch QUESTIONS OF FACT. hold of the pins in the cross-arm until the cross- The weight to be given the evidence for arm itself crumbled and gave way, the allega- plaintiff was foreclosed by the jury's verdict for tions that the pins were defective should be plaintiff. treated as surplusage; it being the decayed con- [Ed. Note. For other cases, see Appeal and dition of the cross-arm and not the pins which Error, Cent. Dig. 88 3938-3943; Dec. Dig. $ caused the fall.

1003.*] [Ed. Note. For other cases, see Pleading, 9. TRIAL (8260*)-INSTRUCTIONS—CURE Cent. Dig. 88 76-80; Dec. Dig. $ 35.*]

OTHER INSTRUCTIONS. 3. MASTER AND SERVANT (238*)—LIABILITY

In an electric light lineman's action for FOR INJURIES-CONTRIBUTORY NEGLIGENCE. injuries caused by a cross-arm crumbling and

An electric light lineman engaged in re- permitting him to fall, the court refused to placing a transformer with a new one after charge that plaintiff could not recover if, under hanging the new transformer upon a cross-arm the system of work adopted by defendant for was compelled to go above the transformer in its linemen, it was plaintiff's duty, before he order to connect, paint, and solder several wires. climbed a pole or rested his weight upon a In doing this he was compelled to unfasten his cross-arm, to make a careful inspection to asbelt from the pole and climb over the transform- certain whether such pole or cross-arm was suffier, and, being unable to secure a hold upon the cient to sustain his weight. It, however, chargpole, he took hold of the cross-arm to which the ed that, even though linemen frequently placed transformer was hanging and which crumbled, their weight on cross-arms, it was plaintiff's permitting him to fall. There was nothing in duty, before doing so, to exercise ordinary care the appearance of the cross-arm to indicate decay to ascertain whether it was adequate to bear his or hidden defects, and it was strong enough to weight, and that, if plaintiff, by exercising such hold up the old transformer as well as the new care, would have discovered that the cross-arm one, which was heavier. Held, that the lineman

was too weak to sustain his weight, he could not was not negligent in placing his weight upon recover, that if it was plaintiff's duty to make the cross-arm without first fastening his belt to his own inspection to ascertain defects renthe pole.

dering cross-arms unsafe, whether obvious or [Ed. Note.- For other cases, see Master and hidden, then ordinary care, as applied to such Servant, Cent. Dig. $8 681, 743–748; Dec. Dig. tion, considering all the facts and circumstances,

duty of inspection, meant such care and cau§ 238.*]

including the elements of means and time for 4. MASTER AND SERVANT (8 124*)—LIABILITY making a comprehensive inspection as an ordiFOR INJURIES-INSPECTION.

parily prudent person, upon whom the duty of A reasonable degree of prudence on the part inspection devolved, would use under the same of the foreman in charge of such work would or similar circumstances, but that, if the duty have caused him to inspect the cross-arm or to of inspection for hidden' or latent defects was *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexey

BY

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