court could rightfully say that the officers the officer affecting the carrier was the seizwere without authority to act outside of the ure.

he had apparent authority to take it, even if the Evans v. Victor Case, when correctly interpreted, means that he had no real authority to act outside the territory. But that case was not decided until April, 1913, and under the ruling in McAlister v. Chicago, etc., R. Co., 74 Mo. 351, the carrier was not bound to construe the statute nor foresee the ruling in the Victor Case.

Indian country. That was true when ap-! [7] Under the statute and his commission, plied to the facts of that case, and, besides, was conceded to be so by the defendants. 204 Fed. 364, 122 C. C. A. 531. So that we have been cited to no case holding that, where the liquor is stored near the line of forbidden territory, consigned to persons who live and operate therein, as the officer testified they did, and by reason of his experience with them before and his knowledge of their operations, he had reason to suspect that the liquor was about to be introduced into the forbidden district, he has no authority to seize, but is powerless to move until after the intending lawbreaker, under cover of the night or some other favorable opportunity, has succeeded in getting it into the district and scattering it among his thirsty patrons. If the statute means that the officer cannot seize until after it is in forbidden territory, then what is the use or meaning of the words "is about to introduce" in the statute? If he can only act within the forbidden territory, then he can never seize any liquor that is "about to be introduced," since then it has already been introduced. The officer in this case was not appointed with authority limited to a particular district, like a constable to a township or a sheriff to a county. He was appointed under the laws of the United States, the government of which extends over all the states as to matters within its jurisdiction. We do not mean to say that an officer could go anywhere in the United States and search for and seize liquor upon the pretext that it was about to be introduced into Indian country, but certainly, where a large consignment of it is sent to a point on the edge of a forbidden district, consigned to parties living and operating therein, then either the officer has a right to seize it if he suspects it is "about to be introduced," or else these words in the statute mean nothing whatever.

[8] Neither was the agent required to resist the officer and attempt to himself decide the question of law presented. When the officer of the law appeared and showed his authority, his power to take the liquor was more formidable than if the "public enemy" had appropriated it, since he represented the majesty of government, to respect and obey which is the duty of all good citizens. The subject of the shipments was intoxicating liquor, an article subject to the police power of government, and, if about to be introduced into forbidden territory, was contraband. The power of the United States officer, and his determination to take the liquor under authority vested in him by government, was, under such circumstances, the highest form of vis major, and, unless it was the agent's duty to resist the officer, the defendant should not be held liable. In many analogous cases it is held that, even where the officer has apparent authority, he should not be resisted, and this seems to be consonant with law and order and with established forms of government. Savannah, etc., R. Co. v. Wilcox, 48 Ga. 432; Western, etc., R. Co. v. Thomas, 60 Ga. 314, 27 Am. Rep. 411; Western, etc., R. Co. v. Thornton, 60 Ga. 312. In the case of a carrier of passengers it is held that, if the officer is acting within his apparent authority, it is not the duty of the carrier to resist the officer, even though the arrest prove afterwards to be wrongful. Thompkins v. Missouri, etc., R. Co., 211 Fed. The officer says he did suspect it, and the 391; Brunswick R. Co. v. Ponder, 117 Ga. evidence was ample that that was just what 63, 43 S. E. 430, 60 L. R. A. 713, 97 Am. St. was intended to be done with it. Not only Rep. 152; Bowden v. Atlantic, etc., R. Co., did he suspect it, but he carefully checked 144 N. C. 28, 56 S. E. 558, 12 Ann. Cas. over the large number of liquor shipments 783. In these last cases the liability of the found, and seized only those he thought were going into the Indian country. It is true the statute authorizes the officer to destroy liquor only when it is found in the Indian country, but that does not affect the right given in the first part of the section to seize and take before the proper tribunal, to be proceeded against by libel, any liquor he rightfully suspects is about to be introduced. And, as we have stated, the carrier ought not to be held liable for the officer's misconception of his duty after the goods have been seized and taken away from the possession of the carrier. The carrier had nothing to do with the destruction of the goods; that

carrier was not that of an insurer, it is true, but the degree of care required was of the highest, and the duty of the carrier not to violate the law by resisting an officer would seem to be the same in both cases. At any rate, his failure to resist cannot be deemed a consent to the taking. However, if we are right in holding that the officer could investigate and seize the liquor, then the failure to resist the officer could have no place in the case. We do not think the officer can be denied that power, under the circumstances disclosed here, without striking out of the statute words which certainly have some meaning and were placed there for a purpose.

Atchison, Topeka & Santa Fé Ry., 182 Mo. | ners doing business under the firm name and App. 1, 167 S. W. 631, the Springfield Court style of the Harvest King Distilling Comof Appeals held that the officer had no au- pany, against the American Express Comthority to act outside of Indian country, fol- pany. Judgment for plaintiffs, and defendlowing the case of Evans v. Victor, supra, ant appeals. Affirmed. without discussing the feature of the statute we have mentioned covering the officer's right to seize liquor when about to be intro

DANCIGER et al. v. AMERICAN EXPRESS 367 packages of intoxicating liquors of the

Appeal from Circuit Court, Jackson Coun- packages was prompted by the enactment of ty; W. O. Thomas, Judge. a law in Mississippi which required "every Action by Dan Danciger and others, part-person or corporation that shall maintain or

The present suit was submitted to the court September 25, 1911, "upon the evidence of another suit pending as a bar and upon the merits of this cause and an agreed statement of facts," and was kept under advisement until October 3, 1914, when the court rendered judgment for plaintiffs for the full amount of their demand for actual damages, with interest, and defendant appealed.

operate any office or place of business in in their petition in the cause at bar they have this state at which intoxicating liquors le- united in one count 367 causes of action, and that defendant and its counsel have waived all gally deliverable, are delivered, upon the pay-objections to the manner and form of plaintiffs ment of purchase money therefor, shall pay uniting in one count said 367 causes of action." annually, for each said office or offices, or place or places of business, the sum of $5,000.00." The position of defendant was that its refusal to deliver the shipments in the state of Mississippi was compelled by law, and, taking defendant in this position of its own selection, we held that it became its duty to return the different shipments to plaintiff's at their cost for the return carriage, and that defendant had not performed this duty, for the reason that after returning the goods to Kansas City it had tendered them to plaintiffs upon the condition that they "would release defendant from all liability or claim of damages on account of the nondelivery of said packages to consignees." We recognized the rule that a party to a contract must perform or tender performance of the duties it puts upon him without protest, without imposing terms or conditions, and without attempting to force the other party to agree in advance that his proffered performance shall be treated, if accepted, as a full discharge of his liability, and we affirmed the judgment because defendant had not made such unconditional offer to return the goods. Distilling Co. v. Express Co., 172 Mo. App. 391, 158 S. W. 466.

An amended answer filed by defendant in the instant case April 20, 1910, alleged that: Both suits (Nos. 35637 and 35638) "were for the alleged conversion by defendant of personal property belonging to plaintiffs on or about May 10, 1906, as will more fully appear from an inspection of the pleadings and records of said two suits," and "that the conversion on or about May 10, 1906, if any, was but one transaction, had at the same time and place between the same parties, and that the matter now in controversy was actually determined in the former suit, or might have been litigated under the issues then joined, and the said plaintiffs, having made their election as to the manner and object of their suing, are now barred from suing again for the same transaction; and this defendant says said former suit operates as res adjudicata as to matters and things herein set forth, and this the said defendant is ready to make appear."

The reply filed by plaintiffs met this charge of splitting a single cause of action into two suits with the averment that:

The facts of the case which bear upon the question presented by defendant for our determination may be condensed into the following statement: At various dates between March 1, and May 10, 1906, plaintiffs, liquor

merchants at Kansas City, delivered to deing liquors on C. O. D. consignments to vafendant 817 different packages of intoxicatrious customers in the state of Mississippi. Each package was the subject of an independent purchase and of a separate shipping con

nation in Mississippi, but did not deliver it,

tract. Defendant carried each to its desti

which imposed such onerous burdens upon express companies engaging in the C. O. D. liquor traffic as to render the further transaction of such business impracticable, if not impossible. Defendant returned all these packages to Kansas City, and conditionally tendered them to plaintiffs, who refused the tender, and, treating it as a constructive conversion of the packages, plaintiffs brought two suits at the same time, in one of which they made the conversion of 450 of the packages the subject of the action, and in the other the conversion of the remaining 367 packages. The judgment recovered by plaintiffs in the first suit is pleaded by defendant as a bar to a recovery in the second, on the theory that the conversion of the entire 817 packages was a single wrong, from which only a single cause of action arose, and that the instant suit must fail under the rule which forbids splitting a cause of action.

on account of the enactment of the statute

[1] The rule in such cases is that, where the two actions present the same parties (or their privies), the same subject-matter, and the same claim or demand, a judgment in the first action, if rendered on the merits, constitutes an absolute bar to the second action. One reason commonly given for the rule lies in the common-law maxim that no one should be twice vexed for the same cause; but, as we observed in Paving Co. v. Field, 132 Mo. App. loc. cit. 638, 97 S. W. 179, another reason equally strong is that a judgment on the merits destroys by absorption

The suit which had proceeded to judgment "was brought to recover damages for conversion of 450 separate packages of liquor, each delivered to defendant for shipment under a separate and distinct contract, and the express charges paid separately by plaintiffs for each of said shipments; that the petition in said case No. 35637 really united in one count 450 causes of action, and should properly have been pleaded in 450 different counts; that the claims were thus charged in one count, by virtue of an understanding and agreement with defendant and its attorneys to avoid a constant repeti- the cause of action, and the passing of the tion of the same cause of action in 450 counts cause necessarily involves the destruction of and to prevent a useless and needless incum- all of its component parts. When the body bering of the record of this court; that defend- dies, the limbs die also. Railroad v. Traube, ant waived all objections to plaintiffs' petition or account of same charging and uniting in one 59 Mo. 355; Skeen v. Thresher Co., 42 Mo.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 675-677; Dec. Dig. 231.] 2. MASTER AND SERVANT 190-INJURY TO SERVANT FOREMAN AUTHORITY - AsSURANCES OF SAFETY.

Where a foreman has authority to decide whether a ditch needs bracing, has charge of the work, and has been given directions how and when the work shall be done, and has charge of the servants, he is authorized to give to the servants assurances of the safety of the ditch servant for personal injuries by a cave in. which will bind his employer in a suit by a

S. W. 946; Moran v. Plankinton, 64 Mo. 337; |surances of the foreman and continuing work Donnell v. Wright, 147 Mo. 639, 49 S. W. 874; there. Paving Co. v. Field, supra. And it is immaterial whether the action be ex contractu or ex delicto. If there is identity of parties (or privies), subject-matter, and claim, or demand, in the two actions, a judgment recovered on the merits in one will be a bar to the maintenance of the other. But in instances where the identity of the two actions fails in any one or more of the particulars just stated, a recovery of judgment in one will not avail to bar the prosecution of the other. [2] Where the demand arises out of separate and distinct causes of action, the rule against splitting causes obviously could not be applied. Railroad v. Traube, supra. And where the respective demands grow out of independent acts, contracts or transactions, they cannot be treated as parts of a single cause. Ruddle v. Horine, 34 Mo. App. 616; Union, etc., Loan Co. v. Farbstein, 148 Mo. App. 216, 127 S. W. 656; Corby, Adm'r, V. Taylor, 35 Mo. 447; Garland v. Smith, 164 Mo. 1, 64 S. W. 188.

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

Certiorari to Court of Civil Appeals.

Action by Will Powell against the City of Chattanooga. Judgment for plaintiff was af firmed by the Court of Civil Appeals, and defendant brings certiorari. Affirmed.

plaintiff. Tatum, Thach & Lynch, of ChatCarden & Snyder, of Chattanooga, for tanooga, for defendant.

[3, 4] The relationship between the parties in the instant case was purely contractual. of a number of colored men engaged in NEIL, C. J. Defendant in error was one Defendant, as the bailee of plaintiffs, became charged in each of the 817 separate and dis-digging a ditch for sewerage purposes in the city of Chattanooga, under the direction tinct transactions with the duty of returning of plaintiff in error's foreman. The ditch the package to plaintiffs, the bailors. The failure to discharge this duty was a breach was a long one, extending the length of a of the contract which gave plaintiffs the right city block. The part of it where defendant of the contract which gave plaintiffs the right in error was at work had been excavated to to sue as for a conversion of the package and its contents. The breach, in such instance, the depth of 10 feet and 8 inches. Defendant in error became apprehensive on account of created a separate and distinct cause of action, and the fact that they all occurred dur- the depth, and called the foreman's attention ing a given period of time, or even on the to the fact, and expressed some concern for same day, did not and could not have the ef- his safety. The foreman assured him that fect of welding them into a single cause of ac- the wall was safe, and commanded him to tion. By a single act defendant may have proceed with the work. Defendant in error breached 817 separate and distinct contracts, continued for a time, and again became but that would not impart to them identity apprehensive, having observed the fall of of subject-matter, nor merge the respective some pebbles from the top of the wall, and claims or demands into a single demand. a second time called upon the foreman of the plaintiff in error, and asked that the wall should be braced. The foreman replied that the wall was perfectly safe, and commanded the defendant in error to continue his work. The latter, relying on the superior knowledge of the foreman, did as he was bidden. Soon thereafter the wall caved in upon him and injured him seriously. The foreman was a man of large experience in the construction of ditches, and the defendant in error had but little experience in this Work, his general occupation lying in another line of labor. The earth composing the wall of the ditch was not of such a character as

Because of a lack of identity of subjectmatter and demand in the two actions, the judgment on the merits recovered in the first was no bar to the prosecution of the second. The judgment is affirmed. All concur.

CITY OF CHATTANOOGA v. POWELL. (Supreme Court of Tennessee. Oct. 23, 1915.) 1. MASTER AND SERVANT 231-INJURY TO SERVANT DANGER-ASSURANCES OF FORE

MAN-CONTRIBUTORY NEGLIGENCE.

A foreman, a man of large experience in the construction of ditches, had his attention called to the danger of working in a certain ditch about 10 feet deep by a person laboring therein who had little such experience, and the foreman pronounced the ditch safe and the earth of the walls was not of such character as to give warning of imminent danger. Held, that the laborer was not negligent in accepting the as

to warn any one of imminent danger, since it appeared to be firm. The apprehension felt by the defendant in error was based wholly on the depth of the ditch. It was the custom of the business in which the foreman was engaged to "shore up" deep walls when he deemed them dangerous. It was on this

account that the defendant in error asked | that of the servant, and that the latter can that the wall extending above him be protected in the manner indicated.

The defendant in error sued the city, and recovered a judgment for $350. The case was appealed to the Court of Civil Appeals, and there the judgment was affirmed. The case was then brought to this court by the writ of certiorari.

rely upon the information given. To permit the master, under such circumstances, to throw the responsibility the servant would be equivalent to conferring on him the right to practice a fraud. It would be tantamount to permitting him to say to the servant:

"You should not have trusted me. I invited your confidence, but you should have known it was misplaced.'

No court should sanction such treachery. [2] It is insisted, however, that the foreman had no authority to give the assurance. It was his duty to decide when the wall needed bracing; hence to judge of the danger. He was in the position of the master; he had charge of the work, and was giving directions as to how it should be done, and when it should be done. It was within his line of duty to control the servants, and it necessarily followed that he had the right to make such assurances in good faith, in order to secure a continuance of the work, and these would be binding on the master in the absence of knowledge on the part of the servant of an express withholding of the power.

[1] The only question we deem necessary to consider in this opinion is whether the trial judge committed error in refusing to peremptorily instruct the jury to render a verdict in favor of the city. We are of the opinion there was no error in refusing this instruction. Defendant in error, under the facts stated, was justified in relying upon the assurance of safety given to him by the foreman, and in obeying the latter's orders to continue his work. Under these facts the city drew to itself the risk, it not appearing that the danger was so glaring that a man of ordinary prudence would not have continued to work. This principle is well settled. Mergenthaler-Horton Basket Mach. Co. v. Lyon, 28 Ky. Law Rep. 471, 89 S. W. 522; Central Coal & Iron Co. v. Thompson, 31 Ky. Law Rep. 276, 102 S. W. 272; Burkard v. A. Leschen & Sons Rope Co., 217 Mo. 466, 117 S. W. 35; McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542; Swearingen v. Consolidated Troup Min. Co., 212 Mo. 524, 111 S. W. 545; Allen v. Gilman (C. C.) 127 Fed. 609; Consolidated Coal Co. v. Shepherd, 220 Ill. 123, 77 N. E. 133; Bac-ing to the servant of the imminence of his celli v. New England Brick Co., 138 App. Div. 656, 122 N. Y. Supp. 856.

The exception just noted as to glaring dangers is a sufficient protection to the master. The latter should not be permitted in other cases to say that the servant assumed the risk in the face of an assurance of safety and a command to proceed. The assurance, in such a case, is equivalent to a statement to the servant that the master has a knowledge of the matter superior to

We are referred to the case of Brown v. Electric Co., 101 Tenn. 252, 47 S. W. 415, 70 Am. St. Rep. 666.

That case is not in point. The nature of the earth, as described in the opinion of the court, was such as to furnish a direct warn

danger. It was made earth—
"principally filled in with cinders, which was
loose stuff, and the person who was digging
could tell this better than any one else."

It appears that the servant knew the danger he was incurring. yet made no complaint, nor did he receive any assurance of safety, if indeed such assurance would have amounted to anything under the facts of that case. Let the judgment of the Court of Civil Appeals be affirmed.