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3. MASTER AND SERVANT (§§ 286, 289*)-IN- | 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.

In an action for injuries to a servant while operating a planer, with the repair or condition of which plaintiff had nothing to do, by the sudden falling of the rear table, causing the plank plaintiff was planing to be thrown out and plaintiff's hand thrown against the knives, evidence held to require submission of the questions of defendant's negligence, and plaintiff's contributory negligence to the jury.

[Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*] Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

ly and without warning, because of its negligent construction and maintenance, dropped down, and thereby caused the plaintiff, who was holding said board, to lose control of the same, and threw his right hand against the knives of said planer and jointer, severing the four fingers of his right hand and injuring the thumb of his right hand."

The answer consisted: First, of a general denial; second, a plea of contributory negligence; third, a plea of assumption of risk; and, fourth, that the injury resulted from the act of a fellow servant. This was all denied generally by replication.

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

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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 Kansas City, for appellee.

BROWN, C. This is a suit to recover damages for personal injuries suffered by plaintiff while operating a planing machine in defendant's carpenter shop. It was tried in October, 1905. The petition charges the negligence complained of as follows:

"That said machine consisted of two tables, a front table and a back table, with a planer between, and for the performance of the work which plaintiff was then doing it was necessary that the tops of said tables should remain level and secure, but plaintiff says that on and prior to said September 1905, the defendant so negligently constructed and maintained said machine and the appliances supporting said

The plaintiff, within four days, filed his motion to set aside the nonsuit on the ground, among others that the court erred in giving the peremptory instruction, and that under the pleadings and evidence he was entitled to have his cause submitted to the jury.

While this motion was pending, and on January 1, 1910, the term of Judge McCune expired, and Judge W. O. Thomas succeeded him as judge of said court, and afterward, on May 28, 1910, and during the April term, sustained said motion and set aside the nonsuit, from which order this appeal is taken.

Before filing its answer, and at the April term, 1908, the defendant filed its motion for

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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: "(1) To show in what way and manner said defendant was negligent in the construction of the planing mill and tables referred to in said petition.

"(2) To show in what way and manner said defendant was negligent in maintaining said planing mill and tables referred to in said pe

tition.

(3) To show what plaintiff was doing when said back table dropped down as referred to in said petition.

"(4) To show how and in what manner plaintiff's right hand was drawn or thrown against the knives of said planer as the result of the dropping down of said table referred to in said petition.

"(5) To show how and in what manner said back table of said planing machinery referred to in said petition dropped down as the result of any negligence on the part of said defend

ant.

"(6) To state in what capacity plaintiff was being employed by said defendant at the time said plaintiff alleges he received the injuries

referred to in said petition.

"Defendant further states that it cannot safely answer said petition or go to trial in said cause unless said petition is made more definite and certain in the particulars stated.”

This was overruled by the court, and a bill of exceptions filed to such ruling at the same term, after which the answer was filed by

leave of court.

which the material was fed to it by hand. The table upon which the material was fed to the knives was of cast iron, and in two parts, which moved independently of each other, one in front and the other behind the knives. Each of these at the end next the knives was chamfered from almost an edge at the top surface, upon a concave line downward and backward, so that when it was raised and lowered it could also be moved to and from the knives, so that the upper edge would fit close to them and follow, as near as might be, the line of the circumference of their rotation throughout the thickness of the plates. When used, the front table was lowered as far below the top of the knives as the thickness of the cut desired and the back table was left on an exact level with the top of the knives, so that when the stick to be planed was shoved onto the knives from

the front and the cut taken out of it, the planed surface rested on and was supported by the back table. In this way the work was shoved over the knives and was taken off from the back table. Sometimes the

wearing or removal of packing from the jour

nal boxes would lower them so that the back

table would have to be lowered to their level; and sometimes, but not often, the character of the work was such that it was necessary to lower it below the level of the top of the knives. An example of this is seen in the accompanying cut, which shows how they could be used to cut an opening for their own revo

wheel

The rod rotated by

screw

The accident occurred October 17, 1905, in defendant's carpenter shop in Argentine, Kan., where plaintiff was employed as a carpenter about the plant. Various woodworking machines were provided for the use of the carpenters in the shop, which was a building about 30 by 40 feet in size, with a room partitioned off for an office and head-lution in the guage which sits over them. quarters of F. J. Reichert, the foreman for the defendant in the woodworking department. He selected the machine when it was purchased and was responsible for its operation in the plant. He states in his testimony for defendant that he had charge of all the machinery there, instructed the men in its operation, and when anything was wrong put it in first-class shape. It had been installed by him in the shop when new, the previous summer. It was an excellant machine for the work for which it was designed, and was run by electric power. It was constructed of iron and steel, on a cast iron base upon which the knife shaft and other movable parts, including the machinery for raising and lowering the tables were hung. Its exterior is substantially shown in the illustration. Its construction was as follows: The cutting part consisted of a heavy iron knife block 16 inches long and generally square in external shape, hung on a shaft between its journals, which rotated in boxes at each side of the machine. To this was bolted at opposite sides, with eight bolts each, two heavy knives of the same length, with their cutting edges at opposite corners. It extended transversely across the middle of the machine, and was placed below the tables over which the material to be worked

For these and other purposes each of these
tables may be lowered or raised by turning
one of the hand wheels shown in the cut in
front of the machine.
each of these circular handles passes through
the thick wall and into the cavity of the
base of the machine, where a screw thread
is cut on it, and it forms a worm gear with
the teeth of a
on another
which passes longitudinally under each side
of the table. This, like the ordinary jack-
screw, exerts an immense force on the
jointed lever which may be seen under the
table in the cut, forcing the table toward
the knives. Under each corner of each table
is a block which may be seen plainly in the
cut, one triangular half of which is fastened
to the table, and the other to the base, the
diagonal edges sliding upon each other.
the table is forced toward the knives it
climbs the triangular block attached to the
base so that it preserves its relation to the
circumference of rotation of the knives,
which are speeded to 4,500 revolutions per
minute. In the picture the wheel at the
right raises and lowers the front table from
which the material is fed to the knives, and
which is always lowered to the depth of the
desired cut, while the one on the left works
the table at the back, which is practically al-

As

then the back table was down when that happened, wasn't it?" He answered: "Yes, sir; it could not be otherwise."

ways maintained at the same height. Each cut as the knives have cut on that board, one of these appliances to raise and lower the tables had, when the machine was new, a set screw to hold it in place, which could be applied so tightly that the hand wheel could not be moved. The one in front got lost, while the one behind the knives was used for a short time, but had lapsed into disuse some time before the accident.

There was evidence on the part of plaintiff tending to prove that on two occasions before this accident the back table was found to be too low; that on one occasion at least it had become lowered when used.

He

At

Plaintiff, although he had worked at the plant before, had left it before this machine was installed, and came back about the 25th of September previous to the accident. used it a few times before he got hurt. that time he had a piece of plank to be planed. It was about 30 inches long 8 inches wide and 21⁄2 inches thick, and he desired to dress it down to 2 inches in thickness. He ran it through the planer twice, once on each side, and found that he still had about an eighth of an inch to dress off, and started to run it through again, when suddenly, as he says, he felt the back table go down, the knives caught the stick and threw it across the shop against the door with so much force that it startled Reichert in his office so that he came out to see what was the matter, and plaintiff's hand went in the knives so that four fingers were cut off. It is admitted that the machine was very dangerous when the back table was down. The plaintiff's counsel say in their statement:

"But if the back table were down, say, onefourth of an inch, then, unless the timber were carefully held by the operator, this would result not only in the knives tearing the wood, making a rough and uneven cut, but also in great danger to the operator of having the knives jerk the lumber out of his hands and throw it with great force toward him, and of his hands going against the knives."

When the accident to plaintiff happened, Mr. Reichert directed that the machine should remain as it was and the piece of the plank that had been thrown from it was saved and brought into court. When the machine was examined it was found that the back table was a quarter of an inch below the top of the knives. The piece of wood that was being planed at the time of the accident was shown to Mr. Klassen, an expert witness of long experience, who testified for defendant that it was impossible that the table should have been in that position when the first cut, which was a smooth one, was made; and, when asked the following question: "If you saw a man actually do it, if you knew that this board had gone across here and made that smooth, clear cut, and the back table was already down"-he interrupted, and said, "It is impossible." Then the following question was asked him: "And if he turned that board over and shoved it across, and the next time it went across it

Other features of the testimony will be noticed as found necessary in the opinion.

[1] 1. The defendant seeks to have the order taking off the nonsuit and granting a new trial set aside and the judgment reinstated because the negligence charged in the petition is not pleaded with sufficient particularity. This is one of the cases that illustrate the justice and usefulness of the rule that a general charge of negligence is good as a basis for proof, unless objected to at a proper time, before trial. Conrad v. De Montcourt, 138 Mo. 311, 325, 39 S. W. 805; Schneider v. Railroad, 75 Mo. 295; Le May v. Railway, 105 Mo. 361, 16 S. W. 1049; Morgan v. Mulhall, 214 Mo. 451, 114 S. W. 4. The plaintiff, among other things about which he was employed, was charged with the duty of planing the surfaces of pieces of wood by running them over the top of the knives and tables of this machine, while others were employed to not only keep it in repair, but to instruct him in its operation. Ordinarily the operator knows no more of caring for the mechanism of the machine he uses than one knows of the care of the mechanism of his watch or the automobile he hires at the public garage. He uses the key of the watch to wind it so that it will do its work, and handles the levers of the automobile to regulate its movements. In either case he depends upon the fact that the maker and repairer has taken care that these external appliances will produce the effect for which they are designed.

The evidence presented by the defendant as well as by the plaintiff in this case shows a like relation between the parties to this suit and the machine. The plaintiff claims to have known that it would not have acted as it did unless there was some defect in its parts that reasonably careful construction and maintenance would have obviated. The defendant not only retained the machine, but kept the stick that was being dressed in it at the time of the accident. Under these circumstances the law ought not to make the right of the plaintiff to bring an action depend upon his ability to state in his petition, details which he could only obtain from the defendant.

[2] The defendant does not strenuously contend that this petition would not be good if not objected to before the trial, but it does contend with earnestness that, having so objected by a motion to make it more definite and certain, before the filing of the answer or the introduction of any evidence, and duly saved its exception to the overruling of that motion, the point has been properly preserved, and may now be retried for the purpose of precluding the plaintiff from his statutory right to amend had the motion been sustain

ed, and depriving him of a trial. That the ruling of the court was properly objected to, and the objection preserved for use in case an appeal should be taken by defendant from a final judgment against it on the same petition, does not seem to be questioned, even by plaintiff, but the defendant forgets that the order overruling the motion is the judgment of the court, and, although it might be reconsidered and set aside and the motion sustained at any time before trial, the effect of such action would be the same as if the motion had been sustained at its first hearing. It would simply involve the entry of a rule on the plaintiff to make his petition more definite and certain in such respects as the court might indicate. The order overruling the motion is the law of the case until set aside.

[3] 2. The order of the court appealed from is founded in the theory that the evidence justified the submission of the case to the jury. If this be true, it must, of course, be affirmed. The facts about which all the evidence on both sides agrees and remains unquestioned, are as follows: (1) It was the duty of the plaintiff, as an employé of defendant, to, from time to time as his service required it, use the machine in question to shape pieces of wood to be used in his work. (2) He was not required to, nor did he, assist in keeping the machine in repair, or in fit condition for use. That was done by the foreman, assisted by such employé or employés as he might call upon for that purpose. (3) The plaintiff went to the machine with a piece of wood to dress on both sides and to a given thickness. He ran it through the machine, dressing one side. During this operation the back table was up in its proper position level with the top of the knives. Mr. Klassen, an expert witness for defendant, when asked if it was down, answered, "It is impossible." Plaintiff then ran it over the knives to dress the other side, and the accident happened. The same witness was asked if the back table was then down, and he answered, "It could not have been otherwise." (4) When examined after the accident the back table was found to be a quarter of an inch lower than the top of the knivesa position of great danger to the operator.

The defendant attempts to explain this sudden subsidence of the back table by saying that it was impossible that the table should have lowered itself by its own weight under the conditions existing, and that the plaintiff, in preparing to make the last cut, lowered the back table by mistake instead of the front one, as he should. The plaintiff answers: Your theory may be all right, but all theories must yield to the fact, which you admit, and only attempt to account for upon a hypothesis which finds no support in reason or probability. The determination of this question is within the province of the jury.

The fact that set screws were provided to

lock the screw jack by the manipulation of which the height of these tables was adjusted, were notice that they were necessary for that purpose, and the fact that the accident happened by reason of the discontinuation of their use would at least call for explanation on the part of the defendant. It recognizes this necessity, and attempts to explain by saying that this lock was a "fool's contriv ance"; that it was designed to prevent a fool from making the mistake, which they now attribute to the plaintiff, of meddling with the back table while he thinks he is adjusting the front one. Reminded of the fact that the same contrivance was provided for the front table, they gave it up. Their explanation implies that whatever may have been the feeling of the humane manufacturers, as for them they only protect the wise, letting the fools, of whom plaintiff was one, take care of themselves. The adjusting device, although a common mechanical one by which power applied by the hand of the operator to the wheel outside the machine is changed inside it to the traverse movement of a screw, pressing upon a lever by which the heavy cast iron table can be moved upward, or be lowered by reversing the movement, it does its work under peculiar circumstances, sitting, as it does, in a frame being shaken while the machine is in operation by the tremendous force exerted by a heavy iron knife head revolving at the rate of 75 revolutions per second and striking the wood twice during each revolution. The record does not inform us of the pitch of the thread on the traverse screw, but we do know from common experience and knowledge that, while the application of the weight of this table while at perfect rest might not reverse the movement of the screw, the rapid and continuous shaking of the weight actually applied would create a different condition, and generate a force with which the operators as well as the manufacturer would have especially to deal. The defendant does not deny that it was its duty to maintain it in a safe condition for those using it, as well as to instruct them how to use it safely. The abandonment of the use of the set screw which locked the back table in position was as clearly a defect in its maintenance as the removal of the screw designed to lock the front table. Whether this abandonment was negligence, and, if it was, whether the accident resulted from it, were clearly questions for the jury.

So far as the charge of contributory negligence of the plaintiff is concerned, it is founded upon the assertion that he did not examine the position of the back table before he began to use it. The fact that defendant proved by its witness Klassen that the elevation of the back table was all right when he began to plane the same stick and that this evidence is undisputed disposes of that question.

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WILCOX et al. v. PHILLIPS et al.
(No. 16377.)

(Supreme Court of Missouri, Division No. 1.
June 30, 1914., Rehearing Denied
July 14, 1914.)

1. APPEAL AND ERROR (§ 1097*)-DECISION ON PRIOR APPEAL-REVERSAL-REMAND.

Where, after reversal on a prior appeal in an ejectment suit, the pleadings were amended without defendants' objection so as to incorporate a cause of action to quiet title, defendants could not successfully claim on a subsequent appeal that the judgment rendered on the prior appeal was res judicata and that the court had no jurisdiction to permit an amendment of the pleadings.

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

2. APPEAL AND ERROR (§ 1097*)-DECISION ON PRIOR APPEAL REVIEW ON SUBSEQUENT APPEAL.

Where, by inadvertence of counsel or the appellate court, a former appeal broke on a proposition which, when illuminated by new discussion and mature consideration on a subsequent appeal, the court deemed to need modification, it was its duty to make such modification without reference to the conclusiveness of the prior decision,

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

3. APPEAL AND ERROR (§ 1201*)-DISPOSITION OF CAUSE-REVERSAL-DIRECTIONS-AMENDMENT OF PLEADINGS.

Where a judgment was reversed with directions to the trial court to proceed in accordance with the opinion, such directions did not limit the court to mere entry of judgment in accordance with the opinion, nor did they preclude the court from allowing an amendment of the pleadings so as to change the issues. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4673, 4677-4683; Dec. Dig. 1201.*]

4. CONSTITUTIONAL LAW (§ 251*)-"DUE PROCESS OF LAW"-"LAW OF THE LAND."

"Due process of law" means law in the regular course of administration through the courts, and is equivalent to the term "law of the land," which means the general law, a law hearing before it condemns, and which proceeds on inquiry and renders judgment only after trial. Due process of law depends on service, to wit, notice, and without notice due process is not given.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. § 251.*

For other definitions, see Words and Phrases, vol. 3. pp. 2227-2256; vol. 8, p. 7644; vol. 8, pp. 7701, 7702.]

5. PUBLIC LANDS (§ 112*)-PATENTS-REGIS

TRATION.

States for land in an office and in books kept for that purpose at the seat of government, the recorder being required to record every patent before it is issued and to countersign the instrument to be delivered to the grantee, a further record of such a patent in the recorder's office in the county where the land is situated is not necessary, either to pass title or impart notice of the title so conveyed, as a matter of law, though the patent may be so recorded under the permissive provisions of Rev. St. 1909, § 10,390.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 311, 312; Dec. Dig. § 112.*]

6. TAXATION (§ 730*)-TAX SALES-PROCEEDINGS-TITLE OF PURCHASER.

Since an owner of land can be deprived thereof for nonpayment of taxes only by suit brought against him in the ordinary manner, the rights of a purchaser at a tax sale are only those which would be acquired by a purchaser of land sold under execution.

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[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1463; Dec. Dig. § 730.*] 8. TAXATION (§ 730*) TAX SALES OUTSTANDING TITLE-NOTICE. Where a purchaser at a tax sale has knowledge of facts and circumstances prompting an inquiry on the part of a reasonably prudent person, and such inquiry from the proper source would have disclosed an outstanding title, then the purchaser takes nothing by the tax deed, under the rule that legal notice follows facts sufficient to put a person on such inquiry.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1463; Dec. Dig. § 730.*]

9. TAXATION (8 734*)-TAX SALES-NOTICEOUTSTANDING TITLE.

Where officers charged with the collection of taxes had notice that W. or her heirs were the owners of land assessed on which taxes were delinquent, they having paid taxes on the land for many years immediately prior to the delinquency, but W. was dead at the time suit was brought against her and prior owners, in which it was alleged, found, and adjudged that she was the owner of the land, no attempt having been made to make her heirs parties to the Proceeding or serve them with process, a sale under such judgment was void.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1408, 1470-1473; Dec. Dig. § 734.*]

10. TAXATION (§ 799*)-CLOUD ON TITLE-INVALID TAX DEED-REMEDY AT LAW.

It was not a valid objection to a bill to set aside a tax deed as a cloud on complainants' title that the deed and the judgment under which the property was sold were void on their face, and that complainants therefore had an adequate remedy at law.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1584, 1585; Dec. Dig. § 799.*]

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Ejectment and bill to quiet title by William A. Wilcox and others against J. E. Phillips 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 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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