Defendants introduced substantial evidence contradictory to that of plaintiff, and tending to show the following facts: The soil in that locality was of a nature readily to crack and to scale from embankments, and plaintiff was familiar with such characteristics. The workmen on the top were working there at the time of the accident, and had been using pick and crowbar in scaling earth from the bank, thereby changing conditions. No seams existed in the ground at the top, nor was there any visible indication there of special defects. The rule requiring the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work, though an elemental principle applicable to the relation of master and servant, is subject to exceptions and qualifications, and should not be given the jury as an unqualified rule in a case where inherent danger lurks in the place which, itself the subject of operation, is undergoing change from the work performed upon it. We quote, as applicable, this statement from the opinion in Bradley v. Ry. Co., 138 Mo. 307, 39 S. W. 763, discussing the same subject: "This court has often condemned the instruction of juries by abstract propositions of law. The principles of negligence have so many exceptions and qualifications that courts themselves are often at a loss in their efforts to apply the facts of a case to a principle of law. In case an exception or qualification to a general principle should, under the evidence, be applied, as in this case, the jury should be instructed as to what facts, if found, will create a liability." The instruction under consideration enlarged the master's liability beyond its legitimate scope, excluded entirely the application of the doctrine of assumed risk, and eliminated from the consideration of the jury facts relied upon by defendants, which, if believed, constituted a good defense. The duty was imposed upon the master, by the direction given, to provide a reasonably safe place, regardless of natural dangers. The jury could have believed the earth fell because of its natural tendency to scale, and, notwithstanding they also may have believed that plaintiff, as well as defendants, knew of this peculiarity, were required to find for plaintiff. A risk of that character was one incidental to the employment, falling within the class denominated as assumed risks. Further, it could have been found that no seams existed, but that the fall of earth was occasioned through dangers springing from changing conditions brought about by work carefully performed; and yet the master, knowing of these resultant elements of danger, was held liable. This is not the law. All of the inherent dangers

progress of the work were assumed by the plaintiff, as a part of his contract of employment. The duty of defendants was not to increase the natural hazards by any negligent act of theirs, and to inform plaintiff of special defects within their knowledge, actual or constructive, which increased the risk. Plaintiff's instructions should have told the jury what facts, if found, would impose liability on defendants, and should not have extended the scope of liability beyond that arising from injuries sustained from a fall of earth caused by the cracked condition of the ground at the top of the embankment. The only act of negligence pleaded in the petition, and the only one inferable from plaintiff's evidence, was the ordering of plaintiff to work in a place made more than ordinarily dangerous, by the presence of seams in the earth, without warning him of the facts within defendants' knowledge which increased the danger. The right to recover should have been restricted to the specific act of negligence pleaded.

What we have said also applies to plaintiff's fourth instruction, which contains the infirmity noted in those considered.

The judgment is reversed, and the cause remanded. All concur.

MORELOCK v. CHICAGO, B. & Q. RY. CO.
Missouri.
(Kansas City Court of Appeals.
May 8, 1905.)

RAILROADS NEGLIGENCE INJURIES TO EMPLOYÉ HAND CARS SUFFICIENCY OF EVIDENCE NEW TRIAL VERDICT AGAINST WEIGHT OF EVIDENCE-SETTING ASIDE-APPEAL AND ERROR-SUFFICIENCY OF EVIDENCE -PREPONDERANCE.

1. In an action against a railroad for injuries to an employé by being thrown from a hand car, evidence held insufficient to support a verdict for plaintiff.

2. Although the trial court assigns a wrong ground for granting a new trial, the Court of Appeals will uphold such action when it can find support on any other ground recited in the motion.

3. There must be some substantial evidence to support a verdict.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by John F. Morelock against the Chicago, Burlington & Quincy Railway Company. From an order setting aside a verdict for plaintiff, he appeals. Affirmed.

Pross T. Cross and W. S. Herndon, for appellant. F. B. Ellis, E. C. Hall, O. M. Spencer, N. O. Borders, and William Henry, for respondent.

BROADDUS, P. J. This is an action against the defendant for injuries alleged to have been received by plaintiff while in defendant's employ, and as the result of its negligence. There was a finding for the

plaintiff, which the court set aside on the ground that it had committed error in not giving a peremptory instruction to find for defendant. The plaintiff appealed from this action of the court.

On the 27th day of July, 1903, the plaintiff was in the employ of defendant as a section hand under its foreman, Marion Lamb, at Lathrop, Mo. Plaintiff and others were engaged in loading scrap iron on a hand car, and moving it to another point on defendant's track. The foreman was present, and directed the loading of the car, and, after it was loaded, ordered plaintiff and four others to get on the car and take it to the place where it was to be unloaded. One of the men, by the name of Demaree, was directed by the foreman to take charge of the car. The track at the point where the workmen were engaged was north and south. Plaintiff got on the southeast corner of the car, and was facing north-the direction the car was to go to be unloaded. Demaree was at the brake pocket, where the foreman generally rode, and where it was his duty to use the brake. After proceeding some distance, Demaree ordered the car backed, in order to avoid a freight train that was switching on that track. While running back at a rate of speed of from five to ten miles an hour, Demaree, without warning, applied the brake with his foot, which action checked the speed of the car, whereupon plaintiff, as he claimed, lost his hold of the handle bar and fell back, with his leg on the track. The front and hind wheels of the car both ran over his leg, and then stopped at a distance of from 6 to 12 feet. The plaintiff was the only witness who testified in his behalf as to how he happened to fall from the car. On his examination in chief he stated as follows: started to the yards, and when we got pretty close to the switch there was a freight train on the house track, back of the depot, where we unloaded the stuff. The train was in there, and started back towards us. Demaree ordered the car run back the other way. We ran back for a little ways, and then the train stopped and pulled up on the main track. Then he told us to pump the car and get into the switch. We got up towards the switch pretty well, and the train come back, and he told us to pump the car back again, and to pump like h-1. * We started the other way, and was going at a pretty high rate of speed, and run back, I suppose, halfway betwixt the Santa Fé and Burlington Depots; and Demaree slapped his foot on the brake without warning, and gave the car a sudden check, and jerked me off the car in front, and the car run over me. The front wheel of the car run across my leg, and the hind wheel went right across my knee, and I fell in front of it." He further stated that warning was always given when the car was to be stopped. On cross-examination he stated that: "When the brake jerked me loose, I started backwards, and I went to jump and

* *

"We

get off the track, and the car was coming towards me, and, of course, I was like every one else I was trying to get out of the way. Yes, sir; I went to jump after it jerked me loose. I seen it was going to make me fall, but it caught me. I tried to jump southwest, but I did not jump at all. The handle bar knocked me off, * * and knocked me down after this sudden jerk, after the car jerked my hands loose; and the car was coming on, and it knocked me off in front of it. * The car didn't run but a few feet after I fell off. The car ran six or eight feet after it ran over me."

The contention of the plaintiff and appellant is that there was some evidence to support the verdict, and that the action of the court in setting it aside on the ground that he did not make out a case was error. Plaintiff's testimony on examination in chief was, as stated, that Reynolds suddenly and without warning applied the brake, which had the effect of loosening his hold upon the handle bar and throwing him backward onto the track. On cross-examination, after equivocating to some extent, he became positive that he was jerked loose from the handle bar, and that after being so jerked loose he saw he was about to fall, and attempted to jump, but was prevented from doing so by being struck by the handles and knocked off onto the track. It appears to us that it was a physical impossibility for him to have been thrown from the car in the manner thus stated. As the handle bar was in front of him, and he was falling backward and away from it, we cannot see how he could have been thus struck. It looks incredible. It may have been possible, but, as the judge who tried the case was somewhat better qualified than we are to judge of the situation, we feel constrained to defer to his judgment.

The action of the court can be upheld on another ground stated in the motion for a new trial, viz., "Because the verdict is against the evidence, and against the weight of the evidence." The men who were with plaintiff on the hand car, except Demaree, who was dead, testified on the trial. One of them, named Livingston, stated that he did not notice any "unusual effect of putting on the brake." Another witness of the same name stated that he did not notice the effect of the brake being applied at the time, and, "I did not notice anything unusual just before he fell off." Charles Maddox, another witness, stated: "Forest Demaree applied the brake. I do not think he did it in the usual way. I did not notice any unusual effect from its being applied. I do not know of any reason why Morelock should have fallen off." He further stated that plaintiff told him that "he stepped on some iron and it threw him off. He told me this shortly after it was done, in the presence of all the witnesses." Plaintiff, when recalled, failed to deny the statement of this last witness. Conceding that there was some evidence to sup-

port the verdict, the great preponderance thereof was in favor of the defendant.

Although the court assigned a wrong ground for granting a new trial, this court will uphold the action of the trial court if it can find support on any other ground recited in the motion. Hoepper y. Hotel Co., 142 Mo. 378, 44 S. W. 257; Standard Milling Co. v. Transit Co., 122 Mo. 258, 26 S. W. 704; Millar v. Car Co., 130 Mo. 517, 31 S. W. 574; Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440. In view of the fact that notwithstanding there may have been, strictly speaking, some evidence tending to support the finding, yet it was of a character so unsubstantial that we do not think it ought to stand. We therefore hold that the court was not in error in setting aside the verdict on the ground assigned.

The plaintiff's position is that, if there was any evidence to support the verdict, the court was in error for granting a new trial for the reason given. And in support of his position he cites Gannon v. Light Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505, and other cases to the same effect. But the rule in these cases has been modified by the Supreme Court in May v. Crawford, 150 Mo. 504, 51 S. W. 693. However that may be, there should be some substantial evidence to support a verdict. No court has ever held otherwise, to our knowledge.

The cause is affirmed. All concur.

STATE ex rel. L. BAUMAN JEWELRY CO. v. TAYLOR et al.

(Kansas City Court of Appeals. Missouri. May 8, 1905.)

COMOF

ADMINISTRATORS-MALADMINISTRATION MISSIONS INSOLVENT ESTATE - RIGHTS CREDITORS -ACTION ON BOND-MEASURE OF DAMAGES.

1. Where an administrator was guilty of maladministration of the estate, and had paid claims which had not been proved, etc., he thereby forfeited all claim to commissions.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2132.]

2. Where an administrator was guilty of maladministration, had failed to require security on sales of assets, and had paid claims which had not been proved, and the estate was insolvent, a creditor in an action on the administrator's bond was only entitled to recover the difference between what he had received and what he should have received if there had been no breach of the bond.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by the state, on the relation of the L. Bauman Jewelry Company, against C. L. Taylor and others. From a judgment for plaintiff, defendants appeal. Reversed.

Barnett & Barnett, for appellants. Bente & Wilson and Sangree & Bohling, for respondent.

BROADDUS, P. J. This is a suit instituted by plaintiff against Charles L. Taylor, administrator of the estate of Charles G. Taylor, deceased, and his co-defendants as sureties on his official bond as such administrator. Many breaches of the bond are assigned, but as the case was here once before (100 Mo. App. 481, 74 S. W. 1032), and some of these alleged breaches were held by us not to be such, they were eliminated from the case on the second trial. The issues on the second trial arose on the alleged breaches that the administrator had sold a stock of jewelry appraised at $3,311.99 to one Mary Anderson, one of the heirs of the estate, at the appraised value, taking her note therefor, without security, as ordered by the court, and that she proved to be insolvent; that he paid a note to a Mrs. Anderson for $200, paid to himself a demand of $247.44, and to one Benjamin $100 on account, none of which were exhibited and probated for allowance. All of the foregoing were held by this court to be breaches of the bond. The plaintiff's claim for $1,270.58, with the claims of others, was duly allowed by the court, and placed in the fifth class of demands against the estate. It was shown that some part of these fifthclass demands had been paid, and that plaintiff had received on its claim about 40 per cent. The evidence on the second trial was, in every important particular, about what it was on the former one, as to issues tried. On the former appeal it was contended that, after the administrator obtained the proper credits to which he was entitled, it would appear that plaintiff had been paid its full pro rata share of the estate, it being insolvent. But we held that we could not anticipate such a result. We, however, said that, "if it shall turn out on a retrial of the case that plaintiff has already received his pro rata share of the estate, he will not be entitled to recover on account of said breaches, for the reason that he is not damaged thereby." 100 Mo. App. 481, 74 S. W. 1032. On the second trial defendant administrator proved that his commission on money that came into his hands as administrator was $434.40. Although the court did not take said sum into consideration when the instruction was given to find for plaintiff, it is necessary to say that said defendant administrator would not be entitled to receive credit for said commission, as he had been guilty of maladministration of the estate. He thereby forfeited all claim to it.

The administrator should be charged with the loss the estate sustained by reason of his failure to require Mary Anderson to give security for the purchase price of the stock of jewelry he sold to her under the order of the probate court, and with the $200 paid to Mrs. Anderson, the $247.44 paid to himself, and the $100 paid to Benjamin. And of this sum, and the sum already in his hands, the plaintiff would be entitled to his pro rata share, the estate being insolvent.

The court directed the jury to find a verdict for plaintiff for the entire balance of his demand, in the sum of $1,400.97. We are at a loss to understand upon what theory this instruction was given, as the plaintiff would be entitled to recover only so much as he would have received if the administration had been properly conducted, as the measure of his damages is the difference between what he received, and what he should have received if there had been no breach of the bond. We cannot see that his rights should be enlarged by the wrongful act of the administrator. The respondent has been unable to cite any authority or give any good reason for supporting the judgment.

There is nothing left to be done in the case, except to ascertain, as indicated, plaintiff's pro rata rate of the funds on hand and those with which the administrator is chargeable by reason of his maladministration; but as that is a matter involving a tedious examination of the various settlements, allowances of demands, payments on demands, and other matters connected with the administration, the trial court can pass upon them with the assistance of counsel much more readily and perhaps with more accuracy than this court.

The cause is reversed and remanded, so that the court may render final judgment as indicated in this opinion. All concur.

STATE ex rel. WOODSIDE v. WOODSIDE. (St. Louis Court of Appeals. Missouri. May 2, 1905.)

INTEPRETATION OF STATUTES-EQUITABLE DOCTRINE-CIRCUIT COURT STENOGRAPHERS-ALLOWANCE FOR EXPENSES-RAILROAD FAREPAYMENT IN WORK.

1. The doctrine of equitable interpretation of statutes has been abandoned.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 260.]

2. Under Sess. Acts 1903, pp. 270, 271, providing that every official stenographer of a circuit court, in counties having 45,000 inhabitants or less, shall be allowed all sums of money actually expended by him in necessary hotel and traveling expenses while engaged in attending any term of court at any place in the circuit in which he is appointed, or while engaged in going to and from any such place for the purposes of attending such terms of court, and that such necessary expenses shall include nothing except actual traveling fare, etc., an official stenographer is not entitled to allowance for railroad fare paid by him in work for the attorney of the road.

Mandamus by the state, on the relation of one Woodside, against L. B. Woodside. Writ denied.

Opinion.

GOODE, J. This is an original proceeding in which a writ of mandamus is prayed against the defendant as judge of the Nineteenth Judicial Circuit. An alternative writ was waived. The plaintiff is the official stenographer of that circuit. He resides at Salem,

in Dent county, and in the course of official duty attended the August term, 1903, and the February and August terms, 1904, of the circuit court of Laclede county. His route was over the St. Louis & San Francisco Railroad from Salem to Lebanon, a distance of 135 miles. The regular railroad fare for the journey is $4.40, and his expenditure for the three terms would have been $26.40. Laclede county has less than 45,000 inhabitants. It is averred that the regular fare ($26.40) which the plaintiff would have had to pay, but for the facts hereinafter stated, in attending said terms of the Laclede county circuit court, did not exceed the sum of $2 a day for the time he was in attendance on said court. Relator actually paid no money for railroad fare, because he had made an arrangement with the attorney of the St. Louis & San Francisco Railroad Company, who attends to the legal business of said company within the Nineteenth Judicial Circuit, by which it was agreed that if the relator would do all the stenographic work said attorney might require to be done for and in behalf of said railroad company during each term of court within said circuit, and prepare for the use of said attorney a copy of the transcript of the evidence in all appeals taken by said company, said attorney would furnish the relator transportation over the railroad in said circuit. Pursuant to that agreement it is alleged the relator furnished transcripts of the evidence in all appeals taken in behalf of said company, and the attorney, to compensate him, furnished transportation over the railroad; therefore it was unnecessary for relator actually to pay money for railroad fare in going from his home to the Laclede county circuit court. For this reason the respondent refused to certify and approve relator's account for railroad fare in attending the circuit court. It is not denied that relator's railroad fare in attending the terms stated was $26.40, as he alleges, or that said sum, together with relator's hotel and other traveling expenses, would not have exceeded the sum of $2 a day while the relator was in attendance on the Laclede circuit court. The refusal to certify and approve his account for railroad fare was based exclusively on the fact that he paid out no money for such fare.

The statute reads: "Every official stenographer of a circuit court, or of a criminal court, in this state in counties having 45,000 inhabitants or less, shall be allowed and paid all sums of money actually expended by him in necessary hotel and traveling expenses while engaged in attending any regular, special or adjourned term of court at any place in the circuit in which he is appointed such official stenographer, or other than the place of his residence therein, or while engaged in going to and from any such place for the purposes of attending such terms of court: provided, however, that said necessary hotel and traveling expenses shall be limited to the sum of two dollars per day, and such sums

of money for said expenses shall be paid out of the county treasury of the county in which said term of court shall be held in the same manner that the per diem of official stenographers in counties having 45,000 inhabitants or less are now paid by law; but such necessary expenses shall include nothing except actual traveling fare and not more than two dollars each day for board and lodging; and no money shall be paid from the treasury of any county under the provisions of this section until the judge of the circuit or criminal court of said county shall approve an itemized account showing all such actual expenses incurred by said official stenographer." Sess. Acts 1903, pp. 270, 271.

It will be perceived that the effect of the action of the judge of the circuit court is to deny the relator any allowance for railroad fare because he paid his fare in work instead of money, and at first we were convinced the learned judge was in error. But after weighing the matter, and taking account of the words, "sums of money actually expended by him [i. e., the stenographer] in necessary hotel and traveling expenses," and the other words, that "such necessary expenses shall include nothing except actual traveling fare," our opinion has changed. There is much equity and reason in the interpretation of the law insisted on by the relator. But the doctrine of equitable interpretation has been abandoned. 2 Sutherland, Stat. Const. (2d Ed.) § 587. Though no harm might come from allowing stenographers to pay their traveling expenses in work instead of money, and obtain from counties the reasonable value of their work, we feel that the law has not authorized such a course. Labor actually done is not "sums of money actually expended," and counties can be required to reimburse stenographers only for sums of money actually expended for traveling expenses. Such is the language of the Legislature, and we must respect it. Aultman v. Daggs, 50 Mo. App. 280. The strict wording of the statute was doubtless intended to safeguard counties against stuffed expense accounts; and, while this danger would be escaped under the strong evidence presented by the present relator in support of the value of the work he did for his railroad fare, it might not always be escaped. But the language used is so precise and definite that to rule as the relator asks us to would alter the statute. It is therefore ordered that the peremptory writ of mandamus be denied. All concur.

SMITH V. CHICAGO, R. I. & P. RY. CO. (Kansas City Court of Appeals. Missouri. May 8, 1905.)

CARRIERS-EXEMPTION FROM LIABILITY-VA-
LIDITY-SCOPE AND EFFECT-NOTICE
OF CLAIM FOR DAMAGES.

1. A contract by a shipper, in consideration of a reduced rate, exempting a carrier from

liability by failure to deliver stock in time for the market of a certain day, is reasonable and enforceable.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 933-937.]

2. A contract by a shipper of livestock exempting a carrier from liability for failure to deliver stock promptly does not cover a negligent delay.

3. Where a shipment of hogs arrived at the city of destination at 8 o'clock a. m. on a very warm day, failure of the railroad company to deliver them at the pens until 3 o'clock p. m. was gross negligence, for which the company was liable, notwithstanding a provision in the contract of shipment that, in consideration of a reduced rate, there should be no liability for delay in shipment.

4. Where a contract for shipment of livestock provided that any claim for damages should be presented to the carrier within one day after delivery of the stock at destination, and before the injured stock was mingled with other stock, the giving of such notice was a prerequisite to a right to recover for injuries to the stock.

5. A provision in a contract for the shipment of hogs that, as a condition precedent to the recovery of damages for any loss or injury, the shipper must give written notice of a claim within a certain time, required notice of a claim arising from the death or shrinkage of the hogs through delay in delivery, and for damages from a fall in the market during such delay.

Appeal from Circuit Court, Mercer County; Paris C. Stepp, Judge.

Action by John D. Smith against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

M. A. Low, Orton & Orton, and Harber & Knight, for appellant. Robinson & Woods, for respondent. •

BROADDUS, P. J. Plaintiff shipped over defendant's road on the 4th of August, 1903, a car load of hogs from Millgrove, Mo., to Kansas City, Mo. They were loaded at 8 o'clock p. m., and arrived at their destination at about 8 o'clock a. m. of the next day, but were not moved to the stockyards until 1 o'clock p. m. of the same day. The hogs were shipped under a special contract, in which it was agreed that the rate of shipment was less than the usual rate. It was set out in this contract that: "The live stock covered by this contract is not to be transferred within any specified time nor delivered at destination at any particular hour. nor in season for any particular market." And further: "That first party [the defendant] shall be exempt from liability for loss or damage arising from derailments, collisions, fire, escapement from cars, heat, suffocation, overloading, crowding, maiming, or other accidents or causes not arising from the negligence of the first party." And it was provided in case of loss that: "As a condition precedent to any damages, or any loss or injury to live stock covered by this contract, the second party [plaintiff] will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party at the destination and before such stock is mingled