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3. MASTER AND SERVANT (88 286, 289*)-IN-1 back table that, while plaintiff was in the perJURIES TO SERVANT-DEFECTIVE MACHINE, formance of his work, pushing a board upon NEGLIGENCE-CONTRIBUTORY NEGLIGENCE, said planer and jointer, said back table suddenQUESTION FOR JURY.

ly and without warning, because of its negligent In an action for injuries to a servant while construction and maintenance, dropped down, operating a planer, with the repair or condition and thereby caused the plaintiff, who was holdof which plaintiff had nothing to do, by the ing said board, to lose control of the same, and sudden falling of the rear table, causing the threw his right hand against the knives of said plank plaintiff was planing to be thrown out planer and jointer, severing the four fingers of and plaintiff's band thrown against the knives, his right hand and injuring the thumb of his evidence held to require submission of the ques. right hand." tions of defendant's negligence, and plaintiff's contributory negligence to the jury.

The answer consisted: First, of a general (Ed. Note. For other cases, see Master and denial; second, a plea of contributory negliServant. Cent. Dig. $$ 1001, 1006, 1008, 1010-1 gence; third, a plea of assumption of risk; 1015, 1017-1033, 1036–1042, 1044, 1046-1050, 1089, 1090, 1092–1132; Dec.' Dig. $286, 289.*j and, fourth, that the injury resulted from

the act of a fellow servant. This was all Appeal from Circuit Court, Jackson Coun- denied generally by replication. ty; H. L. McCune, Judge.

The trial was in October, 1908, in division Action by Thomas W. Collinsworth against No. 4 of the Jackson circuit court, before the United Zinc & Chemical Company. Plain-Hon. H. L. McCune, judge of said court, tiff having been nonsuited, defendant appeal- who, at the close of all the evidence, ined from an order setting aside the nonsuit structed “that under the law and the eviand granting plaintiff a new trial. Affirmed. dence plaintiff has no cause of action against

The following is an illustration of the ma- the defendant, and your verdict must be in chine in question:

favor of defendant,” whereupon the plain


J. C. Rosenberger, Kersey Coates Reed, and | tiff took a nonsuit, with leave to move to Ashley & Gilbert, all of Kansas City, for ap- set the same aside. pellant. Guthrie, Gamble & Street, of Kan The plaintiff, within four days, filed his sas City, for appellee.

motion to set aside the nonsuit on the

ground, among others that the court erred BROWN, C. This is a suit to recover in giving the peremptory instruction, and damages for personal injuries suffered by that under the pleadings and evidence he plaintiff while operating a planing machine was entitled to have his cause submitted to in defendant's carpenter shop. It was tried the jury. in October, 1905. The petition charges the While this motion was pending, and on negligence complained of as follows: January 1, 1910, the term of Judge McCune

"That said machine consisted of two tables, expired, and Judge W. 0. Thomas succeeded a front table and a back table, with a planer him as judge of said court, and afterward, between, and for the performance of the work which plaintiff was then doing it was necessary

on May 28, 1910, and during the April term, that the tops of said tables should remain level sustained said motion and set aside the nonand secure, but plaintiff says that on and prior suit, from which order this appeal is taken. to said September

1905, the defendant so negligently constructed and maintained said

Before filing its answer, and at the April machine and the appliances supporting said | term, 1908, the defendant filed its motion for

an order on plaintiff to make his petition, was run, so that the cutting edges rotated more definite and certain on the following toward the front or end of the machine from grounds:

which the material was fed to it by hand. "(1) To show in what way and manner said The table upon which the material was fed defendant was negligent in the construction of the planing mill and tables referred to in said to the knives was of cast iron, and in two petition.

parts, which moved independently of each "(2) To show in what way and manner said other, one in front and the other behind the defendant was negligent in maintaining said knives. Each of these at the end next the planing mill and tables referred to in said pe knives was chamfered from almost an edge tition.

"(3) To show what plaintiff was doing when at the top surface, upon a concave line down. said back table dropped down as referred to ward and backward, so that when it was in said petition.

"(4) To show how and in what manner plain- raised and lowered it could also be moved to tiff's right band was drawn or thrown against and from the knives, so that the upper edge the knives of said planer as the result of the would fit close to them and follow, as near dropping down of said table referred to in said as might be, the line of the circumference of petition.

“(5) To show how and in what manner said their rotation throughout the thickness of back table of said planing machinery referred the plates. When used, the front table was to in said petition dropped down as the result lowered as far below the top of the knives of any negligence on the part of said defendant.

as the thickness of the cut desired and the “(6) To state in what capacity plaintiff was back table was left. on an exact level with being employed by said defendant at the time the top of the knives, so that when the stick said plaintiff alleges he received the injuries to be planed was shoved onto the knives from referred to in said petition.

Defendant further states that it cannot safe the front and the cut taken out of it, the ly answer said petition or go to trial in said planed surface rested on and was supported cause unless said petition is made more definite and certain in the particulars stated."

by the back table. In this way the work This was overruled by the court, and a bill was shoved over the knives and was taken of exceptions filed to such ruling at the same

off from the back table. Sometimes the term, after which the answer was filed by wearing or removal of packing from the jourleave of court.

nal boxes would lower them so that the back The accident occurred October 17, 1905, in table would have to be lowered to their level; defendant's carpenter shop in Argentine, and sometimes, but not often, the character Kan., where plaintiff was employed as a car- of the work was such that it was necessary penter about the plant. Various woodwork- to lower it below the level of the top of the ing machines were provided for the use of knives. An example of this is seen in the acthe carpenters in the shop, which was

companying cut, which shows how they could building about 30 by 40 feet in size, with a

be used to cut an opening for their own revoroom partitioned off for an office and head-lution in the guage which sits over them. quarters of F. J. Reichert, the foreman for For these and other purposes each of these the defendant in the woodworking depart-tables may be lowered or raised by turning ment. He selected the machine when it one of the hand wheels shown in the cut in was purchased and was responsible for its front of the machine. The rod rotated by operation in the plant. He states in his tes- each of these circular handles passes through timony for defendant that he had charge of the thick wall and into the cavity of the all the machinery there, instructed the men base of the machine, where a screw thread in its operation, and when anything was is cut on it, and it forms a worm gear with wrong put it in first-class shape. It had been the teeth of a wheel on another screw installed by him in the shop when new, the which passes longitudinally under each side previous summer. It was an excellant ma- of the table. This, like the ordinary jackchine for the work for which it was design screw, exerts an immense force the ed, and was run by electric power. It was jointed lever which may be seen under the constructed of iron and steel, on a cast iron table in the cut, forcing the table toward base upon which the knife shaft and other the knives. Under each corner of each table movable parts, including the machinery for is a block which may be seen plainly in the raising and lowering the tables were hung. cut, one triangular half of which is fastened Its exterior is substantially shown in the il to the table, and the other to the base, the lustration. Its construction was as follows: diagonal edges sliding upon each other. As The cutting part consisted of a heavy iron the table is forced toward the knives it knife block 16 inches long and generally climbs the triangular block attached to the square in external shape, hung on a shaft be- base so that it preserves its relation to the tween its journals, which rotated in boxes circumference of rotation of the knives, at each side of the machine. To this was which are speeded to 4,500 revolutions per bolted at opposite sides, with eight bolts minute. In the picture the wheel at the each, two heavy knives of the same length, right raises and lowers the front table from with their cutting edges at opposite corners. which the material is fed to the knives, and It extended transversely across the middle which is always lowered to the depth of the of the machine, and was placed below the desired cut, while the one on the left works tables over which the material to be worked the table at the back, which is practically al



ways maintained at the same height. Each cut as the knives have cut on that board, one of these appliances to raise and lower then the back table was down when that the tables had, when the machine was new, a happened, wasn't it?" He answered: “Yes, set screw to hold it in place, which could be sir; it could not be otherwise." applied so tightly that the hand wheel could Other features of the testimony will be not be moved. The one in front got lost, noticed as found necessary in the opinion. while the one behind the knives was used [1] 1. The defendant seeks to have the for a short time, but had lapsed into disuse order taking off the nonsuit and granting a some time before the accident.

new trial set aside and the judgment reinThere was evidence on the part of plaintiff stated because the negligence charged in the tending to prove that on two occasions be- petition is not pleaded with sufficient parfore this accident the back table was found ticularity. This is one of the cases that ilto be too low; that on one occasion at least lustrate the justice and usefulness of the rule it had become lowered when used.

that a general charge of negligence is good Plaintiff, although he had worked at the as a basis for proof, unless objected to at a plant before, had left it before this machine proper time, before trial. Conrad V. De was installed, and came back about the 25th Montcourt, 138 Mo. 311, 325, 39 S. W. 805 ; of September previous to the accident. He Schneider v. Railroad, 75 Mo. 295; Le May used it a few times before he got hurt. At v. Railway, 105 Mo. 361, 16 S. W. 1049; Morthat time he had a piece of plank to be plan- gan v. Mulhall, 214 Mo. 451, 114 S. W. 4. ed. It was about 30 inches long 8 inches The plaintiff, among other things about wide and 242 inches thick, and he desired to which he was employed, was charged with dress it down to 2 inches in thickness. He the duty of planing the surfaces of pieces of ran it through the planer twice, once on each wood by running them over the top of the side, and found that he still had about an knives and tables of this machine, while otheighth of an inch to dress off, and started to ers were employed to not only keep it in rerun it through again, when suddenly, as he pair, but to instruct himn in its operation. says, he felt the back table go down, the Ordinarily the operator knows no more of knives caught the stick and threw it across caring for the mechanism of the machine he the shop against the door with so much force uses than one knows of the care of the mechthat it startled Reichert in his office so that anism of his watch or the automobile he he came out to see what was the matter, and hires at the public garage. He uses the key plaintiff's hand went in the knives so that of the watch to wind it so that it will do four fingers were cut off. It is admitted that its work, and handles the levers of the authe machine was very dangerous when the tomobile to regulate its inovements. In eiback table was down. The plaintiff's coun- ther case he depends upon the fact that the sel say in their statement:

maker and repairer has taken care that these "But if the back table were down, say, one- external appliances will produce the effect fourth of an inch, then, unless the timber were for which they are designed. carefully held by the operator, this would result not only in the knives tearing the wood, The evidence presented by the defendant. making a rough and uneven cut, but also in as well as by the plaintiff in this case shows great danger to the operator of having the knives jerk the lumber out of his hands and

a like relation between the parties to this throw it with great force toward him, and of suit and the machine. The plaintiff claims his hands going against the knives."

to have known that it would not have acted When the accident to plaintiff happened, as it did unless there was some defect in its Mr. Reichert directed that the machine parts that reasonably careful coustruction should remain as it was and the piece of the and maintenance would have obviated. The plank that had been thrown from it was defendant not only retained the machine, but saved and brought into court. When the ma- kept the stick that was being dressed in it chine was examined it was found that the at the time of the accident. Under these cirback table was a quarter of an inch below cumstances the law ought not to make the the top of the knives. The piece of wood right of the plaintiff to bring an action de that was being planed at the time of the acci- pend upon his ability to state in his petition, dent was shown to Mr. Klassen, an expert details which he could only obtain from the witness of long experience, who testified for defendant. defendant that it was impossible that the [2] The defendant does not strenuously table should have been in that position when contend that this petition would not be good the first cut, which was a smooth one, was if not objected to before the trial, but it does made; and, when asked the following ques- contend with earnestness that, having so obtion: “If you saw a man actually do it, if jected by a motion to make it more definite you knew that this board had gone across and certain, before the filing of the answer here and made that smooth, clear cut, and or the introduction of any evidence, and duly the back table was already down"-he inter- saved its exception to the overruling of that rupted, and said, "It is impossible.” Then motion, the point has been properly preservthe following question was asked him: “And ed, and may now be retried for the purpose if he turned that board over and shoved it of precluding the plaintiff from his statutory ed, and depriving him of a trial. That the lock the screw jack by the manipulation of ruling of the court was properly objected to, which the height of these tables wa's adjustand the objection preserved for use in case ed, were notice that they were necessary for an appeal should be taken by defendant from that purpose, and the fact that the accident a final judgment against it on the same peti- happened by reason of the discontinuation of tion, does not seem to be questioned, even by their use would at least call for explanation plaintiff, but the defendant forgets that the on the part of the defendant. It recognizes order overruling the motion is the judgment this necessity, and attempts to explain by of the court, and, although it might be recon- saying that this lock was a "fooľs contrivsidered and set aside and the motion sustain ance"; that it was designed to prevent a ed at any time before trial, the effect of such fool from making the mistake, which they action would be the same as if the motion now attribute to the plaintiff, of meddling had been sustained at its first hearing. It with the back table while he thinks he is would simply involve the entry of a rule on adjusting the front one. Reminded of the the plaintiff to make his petition more def- fact that the same contrivance was provided inite and certain in such respects as the for the front table, they gave it up. Their court might indicate. The order overruling explanation implies that whatever may have the motion is the law of the case until set been the feeling of the humane manufacturaside.

ers, as for them they only protect the wise, [3] 2. The order of the court appealed from letting the fools, of whom plaintiff was one, is founded in the theory that the evidence take care of themselves. The adjusting dejustified the submission of the case to the vice, although a common mechanical one by jury. If this be true, it must, of course, be which power applied by the hand of the opaffirmed. The facts about which all the evi-erator to the wheel outside the machine is dence on both sides agrees and remains un changed inside it to the traverse movement questioned, are as follows: (1) It was the of a screw, pressing upon a lever by which duty of the plaintiff, as an employé of de- the heavy cast iron table can be moved upfendant, to, from time to time as his service ward, or be lowered by reversing the move. required it, use the machine in question to ment, it does its work under peculiar circumshape pieces of wood to be used in his work. stances, sitting, as it does, in a frame being (2) He was not required to, nor did he, assist shaken while the machine is in operation by in keeping the machine in repair, or in fit the tremendous force exerted by a heavy iron condition for use. That was done by the knife head revolving at the rate of 75 revoluforeman, assisted by such employé or em- tions per second and striking the wood twice ployés as he might call upon for that pur- during each revolution. The record does not pose. (3) The plaintiff went to the machine inform us of the pitch of the thread on the with a piece of wood to dress on both sides traverse screw, but we do know from comand to a given thickness. He ran it through mon experience and knowledge that, while the machine, dressing one side. During this the application of the weight of this table operation the back table was up in its proper while at perfect rest might not reverse the position level with the top of the knives. Mr. movement of the screw, the rapid and conKlassen, an expert witness for defendant, tinuous shaking of the weight actually apwhen asked if it was down, answered, “It is plied would create a different condition, and impossible." Plaintiff then ran it over the generate a force with which the operators as knives to dress the other side, and the ac- well as the manufacturer would have escident happened. The same witness was ask- pecially to deal. The defendant does not ed if the back table was then down, and he deny that it was its duty to maintain it in a answered, "It could not have been other- safe condition for those using it, as well as wise." (4) When examined after the acci- to instruct them how to use it safely. The dent the back table was found to be a quarter abandonment of the use of the set screw of an inch lower than the top of the knives, which locked the back table in position was a position of great danger to the operator. as clearly a defect in its maintenance as the

The defendant attempts to explain this removal of the screw designed to lock the sudden subsidence of the back table by say- front table. Whether this abandonment was ing that it was impossible that the table negligence, and, if it was, whether the acshould have lowered itself by its own weight cident resulted from it, were clearly quesunder the conditions existing, and that the tions for the jury. plaintiff, in preparing to make the last cut, So far as the charge of contributory neglilowered the back table by mistake instead gence of the plaintiff is concerned, it is of the front one, as he should. The plaintiff founded upon the assertion that he did not answers: Your theory may be all right, but examine the position of the back table before all theories must yield to the fact, which you he began to use it. The fact that defendant admit, and only attempt to account for upon proved by its witness Klassen that the elevaa hypothesis which finds no support in reason tion of the back table was all right when he or probability. The determination of this began to plane the same stick and that this question is within the province of the jury. evidence is undisputed disposes of that ques

The fact that set screws were provided to tion.

For the reasons stated, the judgment of the States for land in an office and in books kept Jackson circuit court setting aside the non- for that purpose at the seat of government, the suit is affrmed, and the cause remanded for before it is issued and to countersign the in

recorder being required to record every patent further proceedings.

strument to be delivered to the grantee, a fur.

ther record of such a patent in the recorder's BLAIR, C., concurs in result.

office in the county where the land is situated

is not necessary, either to pass title or impart PER CURIAM. The foregoing opinion by notice of the title so conveyed, as a matter of BROWN, C., is adopted as the opinion of the law, though the patent may be so recorded uncourt. All concur.

der the permissive provisions of Rev. St. 1909, $ 10,390.

[Ed. Note-For other cases, see Public

Lands, Cent. Dig. 88 311, 312; Dec. Dig. $ WILCOX et al. v. PHILLIPS et al.

112.*] (No. 16377.)

6. TAXATION (8 730*)_Tax SALES-PROCEED(Supreme Court of Missouri, Division No. 1.

June 30, 1914., Rehearing Denied

Since an owner of land can be deprived
July 14, 1914.)

thereof for nonpayment of taxes only by suit 1._APPEAL AND ERROR ($ 1097*)—DECISION ON the rights of a purchaser at a tax sale are only

brought against him in the ordinary manner, PRIOR APPEAL-REVERSAL-REMAND. Where, after reversal on a prior appeal in of land sold under execution.

those which would be acquired by a purchaser an ejectment suit, the pleadings were amended without defendants' objection so as to incorpo-cent. Dig. § 1463; Dec. Dig. $ 730.*]

[Ed. Note.-For other cases, see Taxation, rate a cause of action to quiet title, defendants could not successfully claim on a subsequent 7. TAXATION (8730*) Tax SALES OUTappeal that the judgment rendered on the prior STANDING TITLE-RECORD. appeal was res judicata and that the court had Notice of an outstanding title may be imDo jurisdiction to permit an amendment of the parted by facts outside the record as well as pleadings.

by the record itself. (Ed. Note.-For other cases, see Appeal and [Ed. Note. For other cases, see Taxation, Error, Cent.: Dig. 88 4358-4368, 4427; Dec. Cent. Dig. § 1463; Dec. Dig. § 730.*] Dig. § 1097.*]



Where a purchaser at a tax sale has knowlAPPEAL.

edge of facts and circumstances prompting an Where, by inadvertence of counsel or the inquiry on the part of a reasonably prudent appellate court, a former appeal broke on a proposition which, when illuminated by new disa person, and such inquiry from the proper cussion and mature consideration on a subsetle, then the purchaser takes nothing by the

source would have disclosed an outstanding tiquent appeal, the court deemed to need modifi- tas deed, under the rule that legal notice folcation, it was its duty to make such modifica: lows facts sufficient to put a person on such intion without reference to the conclusiveness of the prior decision.

quiry. [Ed. Note. For other cases, see Appeal and Cent. Dig. § 1463; Dec. Dig. § 730.*]

[Ed. Note.-For other cases, see Taxation, Error, Cent. Dig. $$ 4358-4368, 4427; Dec. Dig. $ 1097.*]



Where officers charged with the collection MENT OF PLEADINGS.

of taxes had notice that w. or her heirs were Where a judgment was reversed with di- the owners of land assessed on which taxes rections to the trial court to proceed in accord- were delinquent, they having paid taxes on the ance with the opinion, such directions did not land for many years immediately prior to the limit the court to mere entry of judgment in delinquency, but W. was dead at the time suit accordance with the opinion, nor did they pre

was brought against her and prior owners, in clude the court from allowing an amendment of which it was alleged, found, and adjudged that the pleadings so as to change the issues.

she was the owner of the land, no attempt hav[Ed. Note.-For other cases, see Appeal and ing been made to make her heirs parties to the Error, Cent. Dig. 88 4673, 4677-4683; Dec. proceeding or serve them with process, a sale

under such judgment was void. Dig. $ 1201.*] 4. CONSTITUTIONAL LAW (8251*)—"DUE PRO- Cent. Dig. $s 1408, 1470-1473; Dec.

[Ed. Note.-For other cases, see Taxation,


734.*] “Due process of law" means law in the regular course of administration through the 10. TAXATION ($ 799*)-CLOUD ON TITLE-INcourts, and is equivalent to the term “law of VALID Tax DEED-REMEDY AT LAW. the land," which means the general law, a law It was not a valid objection to a bill to hearing before it condemns, and which proceeds set aside a tax deed as a cloud on complainon inquiry and renders judgment only after ants' title that the deed and the judgment under trial. Due process of law depends on serv- which the property was sold were void on their ice, to wit, notice, and without notice due pro- face, and that complainants therefore had an cess is not given.

adequate remedy at law. [Ed. Note.-For other cases, see Constitu- (Ed. Note.-For other cases, see Taxation, tional Law, Cent. Dig. $$ 726, 727, 732; Dec. Cent. Dig. 88 1584, 1585; Dec. Dig. $ 799.* ] Dig. & 251.*

For other definitions, see Words and Phras- Appeal from Circuit Court, Putnam Counes, vol. 3. pp. 2227–2256; vol. 8, p. 7644; vol. ty; Geo. W. Wanamaker, Judge. 8, pp. 7701, 7702.]

Ejectment and bill to quiet title by William 5. Public Lands (8 112*)-Patents-REGIS-| A. Wilcox and others against J. E. Phillips TRATION.

Under the acts of Congress providing for and others. Judgment for defendants John the record of all patents issued by the United |M. Campbell and Arthur D. Campbell, and

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