Sidor som bilder

ing still would not tend to pull the grabiron | was said in the case of Gutridge v. Railway out of its socket at the lower end, and that Co., 105 Mo. at pages 526 and 527, 16 S. W. in fact it would rather tend to hold it in 943 at page 945, where the handbold on a its place; that by standing in the gangway box car gave way, resulting in injury, is of the engine and holding to it, although the strikingly applicable. The court in that case engine was moving, would likewise have no in another part of the opinion used the foltendency to pull the grabiron from the low lowing language: “Defendant contends, also, er socket. The evidence shows that the grab- that the court erred in permitting plaintiff iron came loose and fell out when plaintiff to prove the condition of the handhold and bad released his hold on the grabiron which the car after the accident. This point is not was attached to the tender and swung out well taken. Plaintiff, in order to recover, away from the engine in the act of alight- was required to prove, first, that the banding. This would plainly exert a force on the bold was not safe; and, second, that defendappliance that would cause it to be loose and ant knew, or by the exercise of ordinary care come out at the bottom, and, the screw be- might have known, it was not safe. It seems ing out at the top, the grabiron could turn to use the only method open to plaintiff to and drop to the ground; and the jury had prove the defectiveness of the appliance was all the facts and circumstances before it to prove how it was fastened, and what conand could reasonably infer that this was ex- dition the screws and wood were in immeactly what occurred, as the grabiron was diately after the accident." found on the ground after the injury, and In the present case plaintiff showed the no trace was found of the screw. The evi- condition of the appliance immediately after dence showed that in backing the engine was the injury—that the screw was out-that, not subjected to any unusual bumping or when he started to swing off, the grabiron jarring such as would tend to loosen a tight turned and caused him to fall, to his injury; screw, and the jury could reasonably and that the threads shown in the eye socket logically infer that the screw was not in its looked good, and that there was no handling place when the engine left the roundhouse. of the engine between the roundhouse and the It would be no unreasonable inference from place of injury from which it could be reathe testimony in this record that the screw sonably inferred that a screw which was in was in fact out of its place when the engine perfect condition at the roundhouse could left the roundhouse-a place of inspection, work loose and come out in so short a disfor such a length of time that by the exer- tance. Indeed, appellant itself contends that cise of ordinary care the defendant could the evidence conclusively shows that the have discovered the defect and remedied it. screw was tight in its place when the engine In the Glasscock Case the evidence is that was within 100 feet of the place of the the operator, according to his own story, was injury. guilty of contributory negligence in not re- The picture of the engine and grabiron, porting the fact that the gate was striking which was before the jury, shows that this the pulley, while in this case there no appliance is in no wise intricate, and that proof whatever that plaintiff had any knowl- there was no need of expert testimony to exedge that the appliance was not in proper plain to the jury how it could work loose, working order. We conclude, therefore, that or whether it would work up or down. A the facts of this case do not show that the look at the picture reveals that merely pullappliance became defective within so short a ing straight up or down in climbing on or time prior to the injury that the defendant off a standing engine would not tend to pull could not in the exercise of ordinary care the lower end of the grabiron out of its have discovered and remedied it; but that, socket; and, so long as it remained in the on the other hand, the jury could under all socket at the lower end, it is plainly seen the evidence reasonably find that the appli- that it would not and could not turn. Had ance became defective on account of the the evidence shown that plaintiff or some one screw being out, and that it was out for else had swung off of this moving engine five such a length of time as to impute knowl- or six times within 30 minutes of the time edge of the defect to the defendant.

of the injury to plaintiff, exerting an outward [6] There is an ever-present duty resting force such as plaintiff did when it gave way, on the master to use ordinary care to furnish and that it failed to give way, then the conreasonably safe appliances, and such duty is ditions might bring the defendant within the a continuing one; he must keep the appli- rule it seeks to invoke; but no such strain ances in proper repair so far as it can be is shown to have been put upon it, at least done by the exercise of ordinary care, dili- not that day by the plaintiff. The jury had gence, and inspection, and in the absence of a right to infer that a screw, tight in its knowledge of such defect being brought home place, in threads of iron in good shape holdto the employé he has a right to rely upon ing it to its place, will not work out and the master faithfully performing that duty. become loose in the short distance this engine Parsons v. Railway Co., 94 Mo. 286, 292, 6 s. traveled from the roundhouse to the place W. 464; Parker v. Railway Co., 109 Mo. 362, of the injury; and the jury certainly had 392, 19 S. W. 1119, 18 L. R. A. 802. What I enough evidence before it to justify a finding that this screw was not in place when the We think the rule in reference to what engine left the roundhouse where it had been constitutes contributory negligence on the left to be inspected and prepared for its part of a servant who has an absolutely safe night run. With that fact found, it became way to get off an engine and one that is not a question for their determination whether so safe is and should be the same as that the defendant exercised such reasonable care declared in the sidewalk cases in this state. and inspection as to have discovered the fact It is apparent that, when a person comes to that it was missing or that it was loose. a defective looking place in a sidewalk, the The jury has passed on that issue under the absolutely safe way would be to turn back instructions given, and so much is settled for and go over some other street that is safe, all time.

yet, if he chooses to go over the defective [6] Appellant cites Warner v. Railway Co., place, he will not be held guilty of negligence 178 Mo. loc. cit. 134, 77 S. W. 67, and Gor as a matter of law, unless the danger was ansson V. Riter-Conley Mfg. Co., 186 Mo. so apparent that a person in the exercise of loc. cit. 307, 85 S. W. 338, in support of the reasonable care for his own safety would following contention: “If the injury may not have taken that course. Our Supreme have resulted from one of two causes, for Court in such a case used this language: one of which, and not the other, the defend- "The knowledge of plaintiff is only a cirant is liable, the plaintiff must show with cumstance to go to the jury in determining reasonable certainty that the cause for which the question whether in attempting to use the defendant is liable produced the result, the walk on the night in question she was and, if the evidence leaves it to conjecture, exercising the care of an ordinarily prudent the plaintiff must fail in his action" We person under like circumstances. The court see no application to this case of the rule is warranted in acting only in those cases announced in those cases, because in the ab- where, by giving to the plaintiff the benefit sence of contributory negligence, which will of every reasonable inference that may be be discussed presently, it is uncontroverted drawn from her testimony and the surroundthat the cause of the fall to his injury was ing facts, no other conclusions could fairly occasioned by the giving way of the grab- be reached than that she disregarded all iron.

rules of common prudence and caution in It is contended by appellant that because the act assumed. When known or manifest plaintiff could have remained on the engine danger is assumed or deliberately undertakuntil it traveled 75 or 100 feet where it would have stopped, and he could have en, the court can declare the legal effect

thereof by a mandatory instruction, as was alighted without danger, and since, there

attempted in this case; but, when the thing fore, he had two courses open to him, one undertaken is such that men or women of safer than the other, and he voluntarily chose

ordinary intelligence might reasonably differ the way that was less safe, he was guilty of

as to the hazard of the act, the question is such contributory negligence as would pre

one of fact for the jury to determine. Nor clude him from recovering—that he was guil

can it be said, as further contended by dety of negligence as a matter of law.

fendant, that plaintiff was bound to abandon [7] We understand the rule to be that, where the servant of his own free will chooses the use of the sidewalk in question, and puran unsafe manner of doing his work or using sue another course home, from the simple his master's appliances when other and safer reason that the walk was known to her to ways are at hand, he will not be permitted bave been out of repair, or be charged with to recover for an injury, provided the way

all the consequences that did actually attend he has chosen is so dangerous that an ordi- the attempted use of the same, without renarily prudent person would not have under. gard to the question of reasonable care and taken it as he did. The following rule is caution on her part."

Graney v. City of given in 26 Cyc. 1250: “It is not contribu- St. Louis, 141 Mo. 180, 185, 42 S. W. 941. tory negligence on the part of a servant to The same rule has been followed in Loftis follow a custom habitually followed by his v. Kansas City, 156 Mo. App. 683, 137 S. W. fellow servants, to the knowledge of the mas- 993; Heberling v. City of Warrensburg, 204 ter, unless the danger is so obvious that Mo. 604, 103 S. W. 36; Chilton v. City of an ordinarily prudent person would refuse St. Joseph, 143 Mo. 192, 44 S. W. 766; Perto take the risk arising from such a method rette v. Kansas City, 162 Mo. 238, 62 S. W. of work." The fact that the servant did 448; Coffey v. City of Carthage, 186 Mo. 573, not take the course that was absolutely safe, 85 S. W. 532; Howard v. City of New Madbut instead chose a less safe way, is some rid, 148 Mo. App. 57, 127 S. W. 630. evidence from which it could be inferred that In those cases in this state where the unhe was guilty of contributory negligence; safe way was used by the servant and debut, before the court can say that the infer- clared in law to be contributory negligence, ence becomes conclusive as a matter of law, the way that was used was not only unsafe, it must be shown that the way in which he but apparently dangerously unsafe. did it was one that a reasonably prudent per See George v. St. Louis Mfg. Co., 159 Mo.


Co., 109 Mo. App. 88, 83 S. W. 66; and there son in the exercise of ordinary care under are numerous cases to the same effect. the same or similar circumstances would say

We are cited to the case of Hirsch v. was dangerous to the extent that he would Freund Bros. Bread Co., 150 Mo. App. at be charged with negligence as a matter of page 172, 129 S. W. 1060. A sentence on this law. It is a question about which reasonable page standing alone would seem to hold that minds might differ as to the hazards conthe servant must choose the safest method, nected with the act, and, that being true, and that a failure to do so constitutes neg- should be submitted to the jury under proper ligence, but in the course of the statement instructions. In short, the distinction beand in the opinion the learned judge express-tween the Hurst Case and this case is that the ly shows that the method employed was one dangerous place was obvious and known to where "the particular danger which befell the plaintiff in that case, and the defective him was open and obvious." Plaintiff in condition of the appliance was hidden and that case placed his hand in an obviously unknown to the plaintiff in this case. The dangerous place, which, of course, barred a question here is not concerning the choosing recovery.

between a safe way and an obviously danger[8] Appellant also cites the case of Hurst ous way of getting off the engine. It was V. Railroad, 163 Mo. 309, 63 S. W. 695, 85 for the jury to say whether the way in which Am. St. Rep. 539, where the court held that plaintiff attempted to alight was a reasonthe injured party was guilty of contributory ably safe way. The true rule is laid down negligence as a matter of law in attempting in the case of Richardson v. Railroad, 223 to board a caboose that was running at a Mo. 325, 123 S. W. 22, where the Hurst Case rate of six miles per hour. The court in is cited and commented on. On pages 338 that case found under the facts as a matter and 339 of 223 Mo. on page 26 of 123 S. W., of law that the attempt to board the train the court used this language: "At the time was dangerous. The court did not decide respondent was injured, he and Lowry were that it was negligence as a matter of law for attempting to couple the engine tank and the employé to board a train going at a rate stock car as they separated, and not by of six miles an hour, but did hold that an bringing them together. This was considattempt to board a train going at that rate ered to be a safe plan, whether it worked or at the place where the employé attempted to not. The simple fact that respondent was do so—where the ground was obviously un- hurt and that the coupler on the engine tank safe was in law dangerous and negligent. was out of order does not conclusively show In that case the danger, to wit, the rocks that he was guilty of contributory negligence. and chat left on the roadbed by the master, The result is not the true test, and the mere was visible and apparent to the employé, and fact that a servant is injured because of the it took the speed of the train coupled with way of performing a duty which he selected, this obviously unsafe condition of the track, when if he had selected the other way injury both of which were known to the employé, would have been avoided, would not authorto constitute negligence in law. In the case ize the conclusion that he was careless." To before us it was not the speed of the train declare a different rule than that which we that caused the injury; it was not anything have pointed out in this case would require that was obvious or that was known to the a greater degree of care on the part of the plaintiff that caused the injury. If he had servant than is exacted of the master. The alighted from the engine, traveling at the employer is not required to furnish the safest speed it was, and had stepped upon some place and the most modern appliances; he place that was apparently, obviously unsafe, must exercise ordinary care in their selection then he could be charged with doing that and in keeping them in repair. Likewise, the which a reasonably prudent person under the servant is not required to use the appliances same or similar circumstances would not furnished him with the utmost care, the care have done, but the evidence shows that Main the most prudent man might exercise; he is street where plaintiff attempted to alight held only to that degree of care which an was smooth and even. The hidden danger in ordinarily prudent person would exercise unthe grabiron caused plaintiff's injury. Had der the same or similar circumstances. there been any evidence that he knew the [9] The rule of the defendant company grabiron was unsafe and he had attempted warning employés about getting on or off to alight when the engine was running at the trains in too rapid motion necessarily implies speed mentioned, there would be some ground that the employés may get on or off trains for the contention that he was guilty of neg- that are moving under conditions and cirligence as a matter of law. But we do not cumstances that are apparently safe; so that believe a court can say in this case that a as to whether the plaintiff was guilty of railroad man attempting to get off an engine contributory negligence for violating the rule going at a rate of six miles an hour when of the company resolves itself into a queshe thought the safety appliances were in tion of fact which the jury passed upon proper condition, and the place where he at. when it decided whether plaintiff's act was tempts to alight is safe, did as a matter of such as an ordinarily prudent man would law do that which an ordinarily prudent per- have attempted. We hold that the question


as to whether or not there was contributory 3. INSURANCE (88 716, 718*) FRATERNAL negligence was a proper one to be submitted


A fraternal benefit certificate is always to the jury in this case.

subject to the charter powers and constitution (10) It is true that while plaintiff was rid- and by-laws of the order, when expressly agreed ing from the roundhouse to the station he to; the rights of the parties being otherwise was not at the time in control of the engine. controlled by the contract, however. But it was his duty to go to the roundhouse Cent. Dig. $$ 1854, 1855; Dec. Dig. 88 716,

(Ed. Note.-For other cases, see Insurance, and prepare the engine for the trip, which 718.*] he had done, and it was customary for him 4. INSURANCE (8 770*)–FRATERNAL BENEFIT to ride back from the roundhouse to the INSURANCE-BENEFICIARIES. station, where, within a few minutes, the en

Rev. St. 1889, § 2823, authorizing a fra

ternal benefit insurance company to provide for gine was to be turned over to him and the the relief and aid of its members and their regular engineer. He was clearly within the families, widows, orphans, or other kindred deline of his employment from the time he pendents of deceased members, forbids the desigwent to the roundhouse until he fell and was marriage, nor dependent upon a member, as a

nation of a stranger not related by blood or injured. It was his duty to be at the sta- beneficiary under the certificate. * tion a reasonable length of time before his [Ed. Note.-For other cases, see Insurance, train started, and it was scheduled to leave Cent. Dig. 88 1933, 1937; Dec. Dig. 8 770.*] within about 10 or 15 minutes after the time 5. INSURANCE (8 780*)-MUTUAL BENEFIT INof plaintiff's injury. In swinging off for the SURANCE-APPOINTMENT OF BENEFICIARIES.

Until insured's death, a new beneficiary purpose of going to a nearby lunchroom for may be designated by insured to take under a a cup of coffee, while it cannot be said to be fraternal beneficial certificate, providing the an act necessary to be done for the defendant beneficiary be qualified as such under the charcompany, it is one of the usual incidents of ter provisions of the association. the service. Plaintiff was on the engine in Cent. Dig. § 1946; Dec. Dig. '$ 780.* ]

(Ed. Note.- For other cases, see Insurance, the course of his employment, and the attempt to alight was not unusual, unwarrant. 6. INSURANCE (8 770*)—MUTUAL BENEFIT INed, unlawful, or unnecessary. It was his

Since it is against the policy of the law to duty and his privilege to refresh himself and permit the funds of a fraternal association to keep himself in such condition physically as be diverted to others than the beneficiaries con

templated by statute, an insured may not into perform the duties required of him; to directly, as by will, designate one not qualified this end, a man must eat and drink; and by as a beneficiary under the certificate. doing so as the evidence in this case discloses [Ed. Note.-For other cases, see Insurance, he certainly could not be said to have volun- Cent. Dig. $$ 1933, 1937; Dec. Dig. $ 770.*] tarily left his employment, nor to have been 7. INSURANCE (8 777*)-MUTUAL BENEFIT IN


RECOVERY BENEFICIARIES using the appliances furnished him by the

RECOVERY BY REPRESENTATIVE. master for a purpose for which they were Though a fraternal beneficial certificate was not intended.

ultra vires, in that it was payable to insured's Entertaining the views herein expressed, personal representative, when the charter of the we hold that the case was properly submit association required the beneficiary to be a rela

tive or dependent, the association cannot on ted to the jury under instructions that cor- that ground defeat recovery under the certificate rectly declared the law.

where the contract has been fully executed, but Finding no error, the judgment is affirmed the personal representative may recover it, but

only in trust for the charter beneficiaries. All concur.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1944; Dec. Dig. 777.*]

8. EXEMPTIONS (8 50*)-MUTUAL BENEFIT INGIBBS v. KNIGHTS OF PYTHIAS OF In view of both the obvious intent of the MISSOURI.

statute regulating fraternal benefit associations,

and an express provision thereof, and the direct (St. Louis Court of Appeals. Missouri. April provisions of Rev. St. 1909, $ 7120, the benefit 8, 1913.)

is exempt from attachment and execution or

other claims of decedent's creditors. 1. INSURANCE (8767*)-LIFE INSURANCE [Ed. Note. For other cases, see Exemptions, BENEFICIARY.

Cent. Dig. g 75; Dec. Dig. 8 50.*] In absence of contrary stipulation, the designation of the beneficiary in a life policy, if valid 9. EXECUTORS AND ADMINISTRATORS (8 75*)— in its inception, remains so, though the insur

ACTIONS-RECOVERY. able interest or relationship of the beneficiary

As a rule, an executor or administrator rephas ceased.

resents decedent generally, and in an action as [Ed. Note. For other cases, see Insurance, make the recovery available to all persons hav

such recovers to the use of the estate, so as to Cent. Dig. $8 1929–1931 ; Dec. Dig. $ 767.*]

ing just claims against the estate. 2. INSURANCE (8 725*)-LIFE INSURANCE [Ed. Note.-For other cases, see Executors MODIFICATION OF CONTRACT.

and Administrators, Cent. Dig. § 324; Dec. Dig. An insurance contract may be subsequently $ 75.*] modified as to material terms by the parties, after which the rights of the parties are gov

Appeal from St. Louis Circuit Court; erned by the modified contract.

Chas. Claflin Allen, Judge. (Ed. Note.-For other cases, see Insurance,

Action by Abraham Gibbs, as executor of Cent. Dig. § 1869; Dec. Dig. § 725.*]

James Williams, deceased, against the


Knights of Pythias of Missouri, subordinate was issued. Notwithstanding this fact, the to the Supreme Lodge Knights of Pythias Supreme Lodge Knights of Pythias of North of North and South America, Europe, Asia, and South America, Europe, Asia, and Afand Africa. From a judgment for plaintiff, rica, established subordinate lodges here, defendant appeals. Reversed and remanded, one of which was Mound City Lodge No. 4, with directions to render a certain judgment located in the city of St. Louis. The insured for plaintiff.

affiliated with this lodge and, as before said, W. R. Hill, of St. Louis, for appellant. the certificate of life insurance payable at

on September 30, 1892, received through it F. H. Bacon and Schlichting & Fisher, all of his death in the amount of $300 to his "legal St. Louis, for respondent.

representative or representatives.” He paid

all assessments and dues on the certificate, NORTONI, J. This is a suit on a certific and as a member of the order as they accate of life insurance. Plaintiff recovered, crued and were levied to the Supreme Lodge and defendant prosecutes the appeal.

which had issued it until by an arrangement The principal question for consideration with all of its members that order, acting relates to the right of a personal representa through the Supreme Lodge, organized and tive of the insured, who is one not included incorporated as subordinate thereto the dewithin the class of beneficiaries authorized fendant Grand Lodge Knights of Pythias of by our statute, to recover on the certificate the state of Missouri. And thereupon and when it appears the insured fully performed thereafter the insured paid all assessments all of the conditions on his part, and the con- and dues to the latter. It appears that in tract is fully executed excepting its payment 1893, or about one year after the certificate by defendant. Subsidiary to this are the was issued by the Supreme Lodge, the Grand questions: If the executor is allowed to re Lodge Knights of Pythias of Missouri was cover, may he do so in the interests of a incorporated in this state and under our legatee under the will to whom the insured statute authorizing such societies as suborbequeathed the fund or whom he nominated dinate to the Supreme Lodge, with headin the will as beneficiary thereof when it quarters in the District of Columbia, and appears such legatee or beneficiary is not one succeeded to all of the affairs of the Supreme of the class denominated by our statute as Lodge in Missouri. In September, 1893, the competent to receive such benefits; or shall Supreme Lodge Knights of Pythias of North the recovery be for the benefit of the estate and South America, Europe, Asia and Africa of the insured and the fund turned into its withdrew entirely from further operations corpus as available to all creditors; or may in the state of Missouri, and the Grand he recover alone as in trust for the benefit Lodge Knights of Pythias of Missouri assumof those persons contemplated by the statute ed full and complete jurisdiction over the as beneficiaries and pointed out by the by- various subordinate lodges of the order in laws of the order as the recipients of the Missouri, among which was Mound City fund when no designation of a beneficiary Lodge No. 4 of which the insured was then has been made?

a member, and assumed, too, the obligations The suit proceeds jointly on the same cer- of the Supreme Lodge to its members on tificate of insurance against two incorpo- certificates of insurance, and all of the memrated fraternal societies on the theory that, bers, among them the insured, James Wilthough one alone issued the certificate in the liams, agreed to this arrangement. Therefirst instance, the other thereafter assumed after the insured paid all of his assessments its obligation, and, by collecting all of the and dues on his certificate as a member dues and assessments from the insured mem- of the order to the Grand Lodge of the state ber, became liable to respond thereon in ac- of Missouri, so incorporated and operating cordance with its terms. There is no con- under our statutes, and performed all the troversy touching the facts, for they are all conditions imposed by the contract on his set forth in an agreed statement on which a part until the date of his death, which ocgeneral judgment was given for plaintiff ex- curred November 7, 1909. During all of ecutor, who is himself the sole legatee under those years the insured retained his original the will of the insured. The certificate of certificate of insurance issued to him by the life insurance was issued to the insured, Supreme Lodge in 1892, and at no time surJames Williams, on September 30, 1892, by de rendered it to or requested a new certificate fendant “Supreme Lodge Knights of Pythias in lieu thereof from the Grand Lodge of the of North and South America, Europe, Asia, state of Missouri under whose jurisdiction and Africa," a fraternal beneficiary associa- he had come, and which had undertaken, tion, incorporated and with headquarters in with his consent, to assume the obligation the District of Columbia. It appears that of the Supreme Lodge in that behalf. By this company never qualified as a fraternal his last will the insured, James Williams, beneficiary association under the Missouri appointed the plaintiff, Abraham Gibbs, as Statutes and was therefore not licensed to his sole legatee thereunder, and also nomdo the business of life insurance as such in inated him as the executor of the will. It this state at the time the certificate in suit may be that it was competent for the insured

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