flow of the river. See, also, Barron et al. 1 and shall supply such cars to the person or v. Eldredge et al., 100 Mass. 455, 1 Am. Rep. persons so applying therefor in the order 126; Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516; Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664; 30 A. & E. Encyc. of L. 45.

or other person in charge thereof to supply the number of cars so required at the pointing an injunction, and appeals. Affirmed. indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application,

John A. Hale, H. E. Dean, and R. J. Higgins, for appellant. F. S. Jackson, Atty. Gen., and C. W. Trickett, for the State.

munication with Leggett concerning the 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354; transaction. Dickey induced E. A. Robinson to permit his name to be written in the deeds as grantee, and also to execute a warranty deed to Benjamin Warren, Jr. Robinson had no interest in or knowledge of the transaction, and permitted 'the use of his name merely to accommodate Dickey. All the evidence. upon the subject indicates that Dickey was not acting for Warren, and had not had any communication with him upon the subject. Who furnished the $100 sent to Leggett, or who sent it, does not appear. Warren resided at Peoria, Ill., where he was engaged as a dealer in grain. The evidence does not show that he had any actual personal knowledge of the condition of the title when he accepted and paid for the deed. Nor is it shown by whom the deed was delivered to him nor to whom he paid the purchase price.

There is quite an extensive correspondence and some oral evidence showing that J. C. Donnell, who was county treasurer, transacted a large amount of business for Benjamin Warren, Jr., in buying real estate and paying taxes, but nothing to show that the land in controversy was the subject of any of this correspondence or was considered by either of them. From this the plaintiff in error infers that Donnell, acting for Warren, obtained the quitclaim deed from Leggett and Butler, and caused Dickey to use Robinson as a "straw man" for the purpose of completing a good title to Warren. In that case Donnell must have known the entire transaction, and, being the agent of Warren, his knowledge would be imputed to Warren. This conclusion would require a very robust interpretation of the testimony, but, if the trial court had so found, this court might have hesitated before disturbing the finding, but, since the trial court found the contrary, we are unable to say that there is no evidence to justify his conclusion.

Stanley v. Schawalby, 162 U. S. 255, 16 Sup.
Ct. 754, 40 L. Ed. 960; Babcock v. Wells,
25 R. I. 23, 54 Atl. 596, 105 Am. St. Rep.
848. This case has a note in which are col-
lected a large number of cases upon various
questions relating to quitclaim deeds.
the time Warren received his warranty deed
from Robinson, the record showed a quit-
claim deed from Leggett and Butler to Rob-
inson which was the only conveyance of any
kind disclosed by the record in which they
were grantors. At this time Warren does
not appear to have had notice that there
was any infirmity in his grantor's title. Un-
der such circumstances, it seems that he act-
ed with at least ordinary care and prudence
in taking the warranty deed, and ought to
be protected against an unrecorded convey-
ance. The deed of B. M. Anderson had been
negligently withheld from record for 12
years. A man who ignores the requirements
of the registry laws in this manner is not
entitled to any great consideration if he suf-
fers thereby. By negligently withholding a
deed from record an invitation is given to
those so disposed to mislead and defraud
whoever may thereafter wish to deal with
the land conveyed. Such a practice should
not be encouraged.

Finally, it is urged that Downs placed his deed on record five days before the deed to Rich was recorded; but that fact seems to be immaterial. Downs held under .a conveyance from Anderson, who had nothing to convey, his rights having been extinguished by the recorded conveyance to Warren; and, since Warren held a good title, he could convey it to Rich, which he did. We think the conclusions of the trial court are justified under the facts.

The judgment of the district court is affirmed. All the Justices concurring.

LOCKE et al. v. WILEY.

(Supreme Court of Kansas. Nov. 6, 1909.) 1. WAREHOUSEMEN (§ 24*)-STORAGE IN DIFFERENT BUILDING THAN AGREED-LIABILITY FOR LOSS.

A warehouseman who contracts to store the goods of another in a brick building, but in violation of his agreement stores them in an adjoining wooden building, sheeted with iron, which is less secure, and the goods are burned in a fire which did not destroy the brick building, or its contents, is liable for. the loss of the goods.

It is argued with much force that Warren stands in the same attitude as though he were holding under a quitclaim deed, and should be held to the same diligence in searching the records for outstanding conveyances, liens, incumbrances, and equities of all kinds that is required of one who takes a quitclaim deed. The trouble, however, with this contention is that Warren did not take a quitclaim deed, but received a deed of warranty for which he paid a valuable and adequate consideration. The law relating to quitclaim deeds does not therefore apply to him. His rights are not affected by the fact that his grantor held under In the absence of an express agreement, the a quitclaim deed only. Meikel v. Borders, law implies that a warehouseman for compensa129 Ind. 529, 29 N. E. 29; Winkler v. Miller, tion will exercise reasonable care to protect and 54 Iowa, 476, 6 N. W. 698; Finch v. Trent, preserve property intrusted to him for safe-keep3 Tex. Civ. App. 568, 22 S. W. 132, 24 S. Wing, and imposes a liability for a loss resulting from his failure in that respect. 679; Sherwood v. Moelle (C. C.) 36 Fed. 478,

1 L. R. A. 797; United States v. Land Co.,

[Ed. Note. For other cases, see Warehousemen, Cent. Dig. §§ 49-51; Dec. Dig. § 24.*] 2. WAREHOUSEMEN (§ 24*)-CARE REQUIRED IN GENERAL.

[Ed. Note. For other cases, see Warehousemen, Cent. Dig. § 48; Dec. Dig. § 24.*]

3. WAREHOUSEMEN (§ 24*)-CARE REQUIRED- and which was generally recognized as a fire PLACE OF STORAGE.

He is not an insurer of goods received for storage, nor is he required to provide a building which is secure from danger from within or without that could not be foreseen or provided against. He is required not only to place such goods in a building reasonably adequate and safe against danger from within, but should exercise due care to store them in a place where they will not be exposed to unusual hazards from without.

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

§

4. ACTION (8 45*)-ACTIONS FOR LOSS-PETI-
TION-EXPRESS AND IMPLIED AGREEMENT.
In an action to recover for the loss of goods
intrusted to a warehouseman, it is competent for
the owner to set up his cause of action in two
counts, one upon an express agreement as to
the character of the building in which the goods
are to be stored and the care to be exercised, an-
other based on the implied undertaking of the
warehouseman to exercise reasonable care in
providing an adequate and safe place for the
goods delivered to him for safe-keeping.

trap, and that a fire originated in this barn, which was communicated to the adjoining warehouse and destroyed the goods of appellee, and, further, that the failure of the appellants to provide an adequate building and proper facilities for the safe-keeping of the goods turned over to them was a violation of their duty as warehousemen, which made them liable for $435, the amount of

men, Cent. Dig. §§ 48, 49, 51-54; Dec. Dig. the loss sustained. The appellants' answer 24.*] denied the making of the verbal agreement alleged by the appellee, and then set forth a copy of a printed and written receipt, which it was alleged constituted the agreement between the parties and which contained provisions differing greatly from those of the alleged verbal agreement. The trial resulted in favor of Wiley, who was awarded $435, the value of the goods destroyed. The court denied a motion of appellants asking that the appellee be required to elect upon which ground of his petition he would seek a recovery, and of this ruling complaint is made. There was no occasion to make an election. But one cause of action was pleaded, and only one recovery was sought. That was for the loss of the appellee's goods through a failure of appellants to take proper care of them. The first count pleaded a liability of appellants because of a breach of an express agreement as to the conditions of F. F. Prigg and C. M. Williams, for plain-storage, and the second was upon the implied tiffs in error. A. C. Malloy, for defendant in undertaking of a warehouseman for compen

[Ed. Note. For other cases, see Action, Cent. Dig. 431; Dec. Dig. § 45.*]

(Syllabus by the Court.)

Error from District Court, Reno County; P. J. Galle, Judge.

Action by George W. Wiley against E. R. Locke and others, copartners. Judgment for plaintiff, and defendants bring error. Af

firmed.

error.

sation that he would exercise reasonable care in providing an adequate and safe place for JOHNSTON, C. J. The appellants, who the goods placed in his keeping. Both were doing business under the partnership counts are based on the same transaction, name of the "City Transfer Company," re- and between them there is no such inconceived the household goods of George W. sistency as will prevent the uniting of them Wiley for storage, and shortly afterwards in the same action. A pleader is permitted the goods, as well as the building in which to set up his cause of action in different they were stored, were destroyed by a fire forms in order to meet the exigencies of the which originated in a livery stable adjoining proof. The failure of the appellee to prove the warehouse. In his petition Wiley alleged a breach of the express agreement is no reathat he made a verbal agreement with ap- son why he should not establish the breach pellants to place and keep his goods on the of the implied undertaking. Edwards v. ground floor of a brick building, that appel- Hartshorn, 72 Kan. 19, 82 Pac. 520, 1 L. R. lants failed to put the goods in their brick | A. (N. S.) 1050; Berry v. Craig, 76 Kan. 345, building, but, instead, had stored them in 91 Pac. 913. an adjoining wooden structure covered with Whether the verdict of the jury was foundcorrugated iron, which was consumed by ed on the first or second count of the petifire. It was averred that the brick ware- tion is not disclosed by the record. There house of appellants was not burned, and was a general finding in favor of the appelthat if the goods, which were of the value lee, and it appears that the appellants did of $435, had been stored there, in accord- not ask for special findings or take any steps ance with the verbal agreement, there would to learn the basis of the verdict. There was have been no loss. In a second count of the testimony tending to show an express agreepetition, there was an averment of the de- ment to store the goods in a brick building, livery of the goods to appellants as ware- and also that goods stored in that building housemen, and that without the knowledge were not injured by the fire which destroyed of appellee they placed them in a wooden the adjoining wooden one. Assuming that building sheeted with iron that was within there was such an agreement, it follows that 12 feet from a livery barn, a dilapidated, the placing of the goods in a different buildwooden structure containing great quanti-ing, which subjected them to a risk not conties of hay and other inflammable material, templated by the parties, and wherein they

PER CURIAM. H. Ilgner was charged | surface below. Two men were employed in with having violated an order of injunction propelling each truck. A foreman was placmade by the court of common pleas of Wyan- ed over these men, whose duty it was to dotte county prohibiting him from selling in- receive orders from the superintendent each toxicating liquor at a certain building in day, and to oversee and direct the work. Kansas City, Kan. Upon the trial it was The plaintiff and another laborer were pushshown that he sold at such place liquors ing one of these trucks loaded with bones known and called "Gold Foam" and "Health along this gangway when it became stalled Malt." Whether these liquors were intoxi- at or near the dump, when the plaintiff was cating or not was the chief question in dis- injured. The occurrence is thus described pute upon the trial. The court found and de- by one of his witnesses: "Coppick [the forecided that they were intoxicating. There was man] was rushing us up, telling us to hurry ample evidence to justify this finding, and up. * * * We pushed the cart out of the therefore that question cannot be inquired pressroom around to the east of the building, into by this court. The plea that he did not and finally onto a runway about 16 feet long. know it was intoxicating is unavailing. A Upon this runway we got stalled and were man who sells liquor as a beverage must trying to pull the truck back in order to get know that it is not intoxicating. He takes a start, when Mr. Coppick says: 'What the the chances, and not the state. hell is the matter? Can't you push it back?' And he was using some language that made me mad. I used some back. He said, 'Damn it, pull it up,' and pulled the wheel of the truck and hit Mr. Lunn on the leg and knocked him off the runway. We had gotten the truck to within about 2 or 3 feet from the end of the runway when Lunn was hurt." Abstract of Record, pp. 12, 13. The plaintiff's testimony was substantially the same. The effect of the jerk given to the wheel by the foreman was to turn the shafts of the truck suddenly to one side, striking the plaintiff's legs and knocking him from the platform, whereby he was injured. The jury returned a verdict for the plaintiff upon which judgment was entered. The defendant asks for a reversal, alleging error in ant asks for a reversal, alleging error in overruling a demurrer to the evidence, and in the instructions.

The judgment of the court is affirmed.

MORRIS & CO. v. LUNN. (Supreme Court of Kansas. Nov. 6, 1909.) MASTER AND SERVANT (§ 190*)-INJURIES TO

SERVANT-FELLOW SERVANTS-FOREMAN. Several laborers, over whom a foreman had been appointed to oversee and direct their work, were engaged in moving bones from the defendant's pressroom to a dump, by the use of trucks passing over a gangway six feet wide, elevated five feet above the surface below. Two laborers were pushing one of these loaded trucks along this gangway, when, the truck becoming stalled, the foreman ordered them to hurry up, and exclaimed, "Pull it up," at the same time seizing one of the wheels of the truck, and gave it a jerk which caused the shafts to turn suddenly, striking the plaintiff's legs and knocking him from the gangway, whereby he was injured. Although the foreman was negligent in his conduct causing the injury as found by the jury, still this negligence was that of a fellow servant, and the plaintiff cannot recover. Following Atchison, T. & S. F. R. Co. v. Moore, 29 Kan. 632; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18; Crist v. Light Co., 72 Kan. 135, 83 Pac. 199.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

Smith, J., dissenting.
(Syllabus by the Court.)

Error from Court of Common Pleas, andotte County; L. C. True, Judge.

The court instructed the jury that: "All employés of the same master engaged in the same general business, whose efforts tend to promote the same general purpose and to accomplish the same general end, are fellow servants or co-employés; but one man may be acting in a dual capacity. He may be working with the servants, and at the same time exercising control and direction in lieu of the master, in which case he is considered vice principal, and his acts Wy-representing the master are acts for which the master is responsible; but his acts performing labor with the laborers under his control are acts of a colaborer or fellow servant, for which the master is not responsible. If in this case you find from the evidence that Charles Coppick was the boss and foreman over the plaintiff, representing and acting for the defendant in the capacity of vice principal, and that he seized hold of the truck, at the same time using language to 'hurry up' the work, the act of hurrying up was an act in which he represented the master, and not one in which he was a colaborer with the men under his charge; and if in hurrying up the work he negligently, suddenly jerked the truck, and the plaintiff

Action by Charles Lunn against Morris & Co. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

O. L. Miller, Miller, Buchan & Miller, and Samuel Maher, for plaintiff in error. Bird & Pope, for defendant in error.

BENSON, J. The plaintiff was one of 12 laborers engaged in moving bones from the pressroom in the defendant's packing house to a dump. This work was performed by the use of trucks, 5 feet in length and 3 feet in width, upon a gangway 16 feet long and about 6 feet wide raised 5 feet above the

was thereby thrown down without fault on his part and injured, the defendant is liable for all injuries so caused, and your verdict should be in favor of the plaintiff; but if you find and believe from the evidence that Charles Coppick was simply assisting to promote and accomplish the work in charge which he and the men under his charge were engaged in, and in order to do so he took a hand personally and as a mere laborer the same as the other laborers with the plaintiff, then his act was an act of a colaborer and fellow servant, for which the defendant is not legally responsible, and your verdict should be for the defendant." Abstract pp. 26, 27, 28.

tion of them [the authorities] is that, unless
the duty neglected be one which the master
is bound to perform, he cannot be liable,
no matter what servant may be careless.
He cannot be 'represented' except in respect
to his duty to furnish a safe place, careful
employés, and the like. Having discharged
this duty, his responsibility ends, and dis-
tinctions of rank and grade as between the
injured and injuring servant are of no con-
sequence whatever." "He [the foreman] is
a fellow servant when laboring to accom-
plish the common object or purpose of the
laborers. He is a vice principal when her-i
forming the duties, or aiding in performing
the duties, which by law devolve upon the
master." Crist v. Light Co., 72 Kan. 135,"
140, 83 Pac. 199, 201. The duties of the mas-

common law, a master assumes the duty
towards his servant of exercising reasonable
care and diligence to provide the servant
with a reasonably safe place at which to
work, with reasonably safe machinery, tools,
and implements to work with, with reason
ably safe materials to work upon, and with
suitable and competent fellow servants to
work with him.
*" Atchison, T. &

The principal question in this case is whether the foreman should be considered a vice principal, or as a fellow servant, in giv-ter have been thus defined: "In all cases at ing the orders and doing the act which caused the plaintiff's injury. Counsel for the defendant say: "Whilst Charles Coppick was in truth Lunn's foreman, he was not engaged in providing Lunn with a safe place in which to work, or in performing any other duty which the master was himself bound to perform, and hence that Coppick did not represent Morris & Co. in the sense that Morris & Co. was liable for his act complained of. We cannot complain of the jury's finding that Coppick was guilty of negligence; but we do complain of the holding of Morris & Co. liable for Coppick's act and of the part which the court took in bringing about this result." Brief of P. and E. pp. 5, 6, 11. In some jurisdictions the "superior-servant" rule, so called, has been adopted. This rule may be briefly stated thus: "Where the negligent act of one servant causing injury to another is the direct result of the exercise of the authority conferred upon him by the master over the servant injured, the master is liable." Consolidated Coal Co. v. Wombacher, 134 Ill. 57, 63, 24 N. E. 627, 628; 2 Labatt on Master & Servant, § 521. In other jurisdictions, however, it is held that, in the absence of any statute, the superior servant or foreman, whatever his rank, is not a vice principal unless he represents the master in the order or act complained of in respect to those duties that the master is bound to perform, and this is the rule adopted in this state. "But whenever a negligent act violates any duty which the master himself owes to the servant, as, for example, the duty to make the service and the place in which it is performed reasonably safe, that fact controls, irrespective of the rank or grade of service between employés, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end. Brick Co. v. Shanks, 69 Kan. 306, 310, 76 Pac. 856, 857. The authorities upon this question are reviewed in Bridge Co. v. Miller, 71 Kan. 13, 30, 80 Pac. 18, 25, where it was said: "The

* *

S. F. R. Co. v. Moore, 29 Kan. 632, Syl. 2.
"If, instead of personally performing these
obligations, the master engages another to
do them for him, he is i ̈ ́ fo the it
of that other, which, in such case, is no.
the neglect of a fellow servant, no matter'
what his position as to other matters, but is
the neglect of the master to do those things
which it is the duty of the master to per-..
form as such." Northern Pacific Railroad
v. Peterson, 162 U. S. 346, 353, 16 Sup. Ct.
843, 845 (40 L. Ed. 994). It is also held
that where the business is complex or dan-
gerous, and a proper regard for the safety
of employés requires rules to govern the
service, such rules shall be made. 26 Cyc.
1157. In some situations it also devolves
upon the master to give warning of impend-
ing dangers where the exigencies of the
service fairly require it. Brick Co. v.
Shanks, supra; Brice-Nash v. Salt Co., 79
Kan. 110, 98 Pac. 768, 19 L. R. A. (N. S.)
749. He is also required to give instruc-
tions to minors and inexperienced persons
whose duties expose them to hidden dangers.
Patterson v. Cole, 67 Kan. 441, 73 Pac. 54.
Whenever the foreman acts for the master
in the performance of any of these absolute
duties, he is for convenience styled a "vice
principal," and his negligence in discharging
the duties so imposed upon him by the mas-
ter is that of the master himself; but the
negligence of a foreman with respect to the
ordinary details and incidents of the work
is that of a fellow servant merely. Kimmer
v. Weber, 151 N. Y. 417, 45 N. E. 860, 56
Am. St. Rep. 630; 2 Labatt on Master &
Servant, § 575.

The principles governing this case having