for rest and feeding the cattle, as required by | ville to Chicago) to leave Brookfield at 2:45 Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. the following morning, Quincy, Ill., at 10:30, Comp. St. Supp. 1909, pp. 1178, 1179), the carrier is not liable for delay caused by waiting to arrive at Galesburg, Ill., at 4:00 p. m., to for the next regular cattle train, since the ship- leave that point at 8:30 p. m., and to arrive per must have contemplated such delay when in Chicago the next morning (July 5th) at he failed to file his request for direct shipment, 6 o'clock-a total of 33 hours. At Galesburg and the carrier could not be expected to for- the train was divided into two or three and ward the cattle by special train. sometimes four sections; the last section leaving for Chicago at 8:30 p. m. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.*] Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge. Action by James E. Hickey against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed. The evidence of plaintiff relating to the usual time consumed in the transportation of cattle from Stewartsville to Chicago on that train does not differ materially from that of All of the evidence shows that defendant. the time was in excess of 28 hours. The train in question arrived at Brookfield on M. G. Roberts, of St. Joseph, and John C. time, but was four hours late in leaving that Carr, of Cameron, for appellant. Frost, of Plattsburg, for respondent. Frost & JOHNSON, J. This is an action against a common carrier to recover damages resulting from negligent delay in the transportation of four car loads of fat cattle to market. The cattle were received by defendant at Stewartsville on July 3, 1910, for carriage to Chicago, and the petition alleges: That defendant failed to transport them in accordance with the requirements of the shipping contract or within a reasonable time; "but, on the contrary, said four car loads of cattle were negligently and carelessly delayed en route between the points aforesaid, and allowed to stand on the track in the cars for a long space of time, and in excess of the time required to transport said cattle by the use of ordinary care and diligence. That by the use of ordinary care and diligence said defendant should have transported said cattle to their destination by early on the morning of July 5, 1910, in good time for the market on that day; but by reason of defendant's negligence as aforesaid said cattle failed to reach said stockyards in the city of Chicago until 5 o'clock p. m. on said 5th day of July, long after the market for said day had closed." The answer admits the receipt of cattle for shipment from Stewartsville to the stockyards at Chicago, denies the other alle gations of the petition, and alleges, in substance, that the delay of which plaintiff complains was caused by the necessary compliance by defendant "with the federal law governing transportation of live stock by common carriers, commonly known as the "Twenty-Eight Hour Law.'" A trial of the issues resulted in a verdict and judgment for plaintiff for $250, and the cause is here on the appeal of defendant, whose principal contention is that the demurrer to plaintiff's evidence should have been given. place, due, so plaintiff contends, to negligence in waiting for another stock train from Kansas City. Some of this lost time was regained, and the train arrived at Galesburg at It 6:45 p. m.-2 hours and 45 minutes late. required 9 or 10 hours for a stock train to run from Galesburg to Chicago, and, as 22 hours had been consumed in the transportation, defendant switched the cars to the stockyards at Galesburg, and unloaded the cattle for food, water, and rest, in obedience to the command of the Twenty-Eight Hour Law. That law (U. S. Comp. St. Supp. 1909, pp. 1178, 1179, Act of June 29, 1906, c. 3594 [S. 3413], 34 Stat. 607) provides that no railroad company shall confine live stock "in cars the owner. for a period longer than 28 consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water and feeding, for a period of at least five consecutive hours, provided, that upon the written request of * * which written request shall be separate and apart from any printed bill of lading, or other railroad form, the time of confinement may be extended to thirty-six hours." Plaintiff had filed no such request with defendant, and in complying with the statute defendant, counting the time required for loading and unloading, could not have forwarded the cattle before 1 o'clock the following morning. There was a freight train leaving Galesburg for Chicago at that hour; but it was not a stock train, and its schedule time of arrival at Chicago was in the afternoon, too late for the cattle to be put on the market that day. Defendant did not send the cattle on that train, but waited for the next stock train, which left Galesburg at 8:45 a. m. July 5th, and arrived at Chicago at 5:10 p. m. Forty-four hours were consumed in the whole journey, the usual time of which was 11 or 12 hours less. The cattle were shipped on train No. 74, [1] In order to recover the damages he suswhich left Stewartsville at 9 o'clock p. m. on tained in consequence of delay in the transschedule time. The time-tables introduced portation of the shipment, the burden is on in evidence by defendant scheduled that train plaintiff to show not only an unusual delay (which was defendant's best and fastest train but that such delay was caused by negligence for the carriage of live stock from Stewarts- of defendant. Negligence is the gravamen of the action, and the rule is well settled that, stock, and, in failing to file a written request mere proof of delay, of itself, will not support an inference of negligence. Ecton v. Railway, 125 Mo. App. 223, 102 S. W. 575; Milling Co. v. Transit Co., 122 Mo. loc. cit. 275, 26 S. W. 704; McCrary v. Railway, 109 Mo. App. 567, 83 S. W. 82; Wright v. Railroad, 118 Mo. App. 392, 94 S. W. 555; Wernick v. Railroad, 131 Mo. App. loc. cit. 52, 109 S. W. 1027; Clark v. Railroad, 138 Mo. App. 424, 122 S. W. 318. [2] A delay caused solely by defendant's compliance with the provisions of the Twenty-Eight Hour Law could not be actionable, since it should be regarded as the result of the performance of a duty imposed by law. Ecton v. Railway, supra. The decisive question in the case for our solution is whether the evidence of plaintiff tends to show the unusual delay of 12 hours in the transportation was caused solely by the necessity of obeying the Twenty-Eight Hour Law, or was due to negligence. [3] We may concede for argument, without so deciding, that defendant was guilty of negligence in holding the train at Brookfield four hours; but such concession does not carry with it the conclusion that such negligence produced any injurious effect. The train arrived at Galesburg in ample time for the cattle to be forwarded on the same train, which did not leave Galesburg until 8:30 that evening, and arrived at Chicago on Schedule time, and, of course, in time for the market of July 5th. Had plaintiff filed a written request for the cattle to go through without stopping for rest, they would have made the journey on schedule time, and within 36 hours. They would have gone forward on the same train that would have been employed in their transportation had they arrived in Galesburg on time. The unusual delay in arriving at Chicago, therefore, could not have been caused by the stop in Brookfield, and the failure of defendant to forward the cattle from Galesburg on train No. 74 was due entirely to the imperative requirements of the Twenty-Eight Hour Law, which would have prevented the cattle from going forward on that train had they arrived in Galesburg on time. In either event they could not have been forwarded before 10 o'clock, long after the departure of the last section of train No. 74. Plaintiff could have prevented this delay at Galesburg by filing a written request for the cattle to go through without stopping for food, water, and rest, and omission to take such action was the equivalent of a direct request that such stop should be made. He cannot justly complain of defendant for pursuing the only course his own conduct left open to it. [4] Nor may it be said with reason that defendant detained the cattle in Galesburg longer than was necessary to perform the duty imposed by the statute. They were forwarded on the first train that carried live for a through shipment, plaintiff must be held to have contemplated that the regular service would be employed, and that the cattle would not reach Chicago in time for the market of July 5th. Certainly it would be unreasonable to hold that defendant was bound to forward the shipment by special train. Clearly the delay was caused by the action of plaintiff in electing to have the cattle unloaded in Galesburg for food, water, and rest, and not to any negligence of defendant. The learned trial judge erred in overruling the demurrer to the evidence. The judgment is reversed. All concur. MARTY v. HIPPODROME AMUSEMENT CO. et al. (Kansas City Court of Appeals. Missouri. June 30, 1913.) MECHANICS' LIENS (§ 72*)-IMPROVEMENT BY LESSEE-LIABILITY OF LESSOR'S INTEREST. lease of a leaky car barn for a term of three Nothing more being shown than that years, at $5,000 a year, with right of renewal for two years, at an increased rate to be agreed on, provided that the premises were let in their present condition, that the lessee intended to remodel and improve them at his own expense at an estimated cost of $8,000, that the lessee should give the lessor a bond in such sum to pay all bills on account of the improvement, that he should use the premises for purposes of amusement only and at the end of the term should surrender in as good condition as at present, and that the lessee gave a bond in such amount, but without the lessor's knowllessor's interest is not liable for the improveedge made improvements costing $30,000, the ment. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 86; Dec. Dig. § 72.*] Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge. Action by Samuel Clinton Marty against the Hippodrome Amusement Company and another. From a judgment for only part of the relief asked, plaintiff appeals. Affirmed. W. W. Filkin and Haff, Meservey, German & Michaels, all of Kansas City, for appellant. John H. Lucas and Hogsett & Boyle, all of Kansas City, for respondent. JOHNSON, J. This is an action to enforce a mechanic's lien for materials furnished for the repair and alteration of a building on premises leased by the defendant railway company to its codefendant. The materials were furnished under a contract with the lessee, but the object of the suit is to enforce the lien against the freehold as well as the leasehold estate on the ground that the lessee in making the improvements was acting as the agent of the lessor as well as in its own behalf. A jury was waived, and the court rendered personal judgment against the lessee and adjudged that the leasehold estate be subjected to a lien for the amount of plaintiff's demand, but held that no lien | breach of any of the covenants and condihad attached to the freehold. Plaintiff ap- tions to be performed by the lessee. pealed. The amusement company gave a bond in The facts of the case are as follows: The the sum of $8,000 to the railway company Metropolitan Street Railway Company owned pursuant to the terms of the contract but, inthe premises at the southwest corner of stead of spending $8,000 in the improvement Twelfth and Charlotte streets in Kansas and repair of the building, made repairs and City and had built thereon a brick power improvements costing over $30,000. There house 300 feet long and 125 feet wide, which is no evidence that the railway company conlater it converted into a street car barn and sented to these additional improvements or for some years used as a storage place for even knew that they were made until after cars. The floor was covered with tracks, and the lessee had defaulted in the performance there was a pit under a part of the tracks of conditions of the lease and surrendered used by workmen in the repairing of motors the premises. The materials furnished by and bottom parts of cars. The roof had plaintiff were sold to the amusement compabeen allowed to become and remain in any and used in these repairs and improveleaky condition, and the building could not be used for any other purpose without the making of repairs and alterations. ments. There is no evidence tending to show that any consideration for the proposed improvement of the building was to be paid by the lessor, that the improvement substantially enhanced the present value of the freehold estate, was made in part for the benefit of the lessor, or that the lessor did anything to constitute the lessee its agent for the improvement of the building. Certainly no such inference may be drawn from the terms of the lease which show beyond question that the lessor leased the building in its present condition with the understanding and agreement that the lessee would accept it in that condition and at its own expense and on its own responsibility would make repairs and improvements necessary to adapt the building to the use the lessee intended to make of it. On September 5, 1908, the railway company entered into a written lease with Joseph R. Donegan, by the terms of which it leased the premises for a term of three years at a monthly rental of $416.66. Donegan assigned the lease to the Hippodrome Amusement Company with the consent of the lessor, and the assignee entered into possession and proceeded to repair the building and make alterations to change it into a place of amusement. The lessee was given the privilege of an extension of the term "for an additional period of two years at such increased rate as may be agreed on and, if not agreed on, as fixed by arbitrators." Other material agreements in the lease were that the premises were let "in the present condition there of"; that the lessee "intends to remodel and In order to hold the freehold it devolved on improve said premises at his own expense on plaintiff to show that the lessor had constiestimated cost of $8,000, the cost of said im- tuted the lessee its agent to contract on its provement to be borne by the party of the behalf for improvements of substantial and second part (lessee), and the party of the present benefit to the freehold. Such agenfirst part to be indemnified from a loss there- cy would be implied from stipulations in the from"; and that the lessee "before beginning lease which compelled the lessee to make cersuch improvement shall execute and deliver tain specified improvements of apparent valto the party of the first part a good and suf- ue to the freehold and which provided that ficient bond to be approved by the party of such improvements should pass to the lesthe first part, the same to be equal in amount sor at the end of the term. Lumber Co. v. to $8,000, conditioned that the party of the Churchill, 114 Mo. App. 578, 90 S. W. 405; second part will pay all bills for material | Hardware Co. v. Churchill, 126 Mo. App. 462, and labor arising out of said improvement 104 S. W. 476; Lumber Co. v. Morris, 156 S. and protect the party of the first part from mechanic's, materialmen, or labor liens on said premises, and said improvement shall not be begun until this stipulation is complied with and the party of the first part protected against loss by reason thereof." The lessee agreed to "to use said premises for purposes of amusement only" and "at the expiration of term hereby created, whether determined by lapse of time or otherwise, to surrender to first party quiet and peaceable possession of premises hereby let, with all appurtenances and fixtures, in as good condiments substantially increase the value of the tion as same now are; the usual wear and tear and damage or destruction by fire without fault of second party or by any providential means excepted." Further, the lease W. 75. Speaking through Trimble, J., we say in the last case cited: "Wherever the facts show that the improvements are really for the present benefit of the freehold interest, or that they are made under such circumstances as to indicate that the lessor is really having the improvements made, or that he has constituted the lessee his agent to make them, or where, by reason of the terms of the lease, the value and extent of the improvements, and the relative length of the term, it can be seen that the improve freehold interest primarily, and not merely as a future, incidental matter, then the lien against the lessor's interest will be upheld, without regard to the language of the lease fall within that rule but belongs to the class | make selections from this, their negligence in where the lessee, with the consent of the les- doing so will be the acts of fellow servants. sor, makes repairs and improvements at his [Ed. Note.-For other cases, see Master and own expense for the benefit only of his own 185.*] Servant, Cent. Dig. §§ 385-421; Dec. Dig. § estate. In such case he cannot be said to 6. MASTER AND SERVANT (§ 185*)-PERSONAL have acted as the agent of the landlord, nor will the estate of the latter be held bound for labor and materials furnished under contracts with him alone. The judgment is affirmed. All concur. HEDRICK v. KAHMANN et al. Kansas City Court of Appeals. Missouri. May 5, 1913. Rehearing De- 1. MASTER AND SERVANT (§ 276*)-PERSONAL [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*] 2. MASTER AND SERVANT (§ 189*)-PERSONAL INJURIES-RELATION OF PARTIES. Where an assistant superintendent, engaged in repairing a bridge, under directions of the superintendent went out on a tramway to help move an engine and placed himself under the foreman and worked with the other laborers, he thereby, for the time being, became a common laborer, entitled to the care due such laborer. [Ed. Note.-For other cases, see Master_and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.*] 3. MASTER AND SERVANT (§ 88*)-PERSONAL INJURIES-ASSUMPTION OF RISKS-"VOLUN TEER." Where an assistant superintendent was ordered by his employer to leave the work he was doing and go out on a tramway to help move an engine, and, on reaching the place, the general superintendent directed him to help the others there working under a foreman, and he did so, working with common laborers in moving an engine, he was not thereby a volunteer in the sense of being in the nonperformance of duty. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.* For other definitions, see Words and Phrases, vol. 8, pp. 7357, 7358.] 4. MASTER AND SERVANT (§ 189*)-PERSONAL INJURIES-RELATION OF PARTIES. INJURY-DEFECTIVE APPLIANCES-MASTER'S LIABILITY. Where a foreman in charge of moving an engine along a tramway over a river selected a defective chain which was attached to the engine and the chain broke while deceased was pulling on it with other laborers, under the direction of a foreman, resulting in his death, the negligence of the foreman was the act of the master. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*] 7. APPEAL AND ERROR (§ 927*)—REVIEW-EVIDENCE-SUFFICIENCY. Where defendant moved for a peremptory on appeal as true with all reasonable inferences instruction, plaintiff's evidence must be taken that can be drawn therefrom. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*1 Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge. Action by Fern Hedrick against George H. Kahmann and another. Judgment for plaintiff. Defendants' motion for a new trial was sustained, and plaintiff appeals. versed and remanded, with directions. Re Milton J. Oldham and Jesse James, both of Kansas City, for appellant. Boyle & Howell, Jos. S. Brooks, and Wm. T. Woodford, all of Kansas City, for respondents. ELLISON, J. Kahmann, one of the defendants in this case, died, and the cause was revived. For convenience we shall refer to defendants as though the death had not occurred. Plaintiff is the widow of Otis Hedrick, who was in defendants' employ when drowned in a river in Oklahoma. She brought this action for damages and recovered judgment. Defendants' motion for new trial was sustained, and she appealed. Defendants were contractors constructing a railroad bridge across the Canadian river in Haskell county, Okl. The bridge was partly constructed when the water had caused one of the unfinished piers to become unstable by getting much out of perpendicular. Where deceased, who was an assistant su- It had been suggested to tear it down, but perintendent, at the order of the defendants who were his employers, and under the direc-defendants had expended considerable money tion of the general superintendent, went out on on it and did not like to lose that outlay if a tramway and there, with common laborers, it could be avoided. They therefore employworked in moving an engine, under a foreman, he and the foreman did not thereby become fellow servants. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. 189.*] ed deceased, a civil engineer, to go from Kansas City, Mo., down to the work to help with the bridge, especially with a view to saving the pier. There was evidence tending to show that he was put in as assistant super one 5. MASTER AND SERVANT (§ 185*)-PERSONAL intendent of the construction under INJURIES-NEGLIGENCE OF SERVANTS-RE-Roach, the general superintendent. But SPONSIBILITY OF MASTER. when he got to the place it was found that If a master supplies a mass of material, some good for one part or purpose in a struc- things were not in readiness for his work ture and some for another, and the servants in his capacity as engineer on the pier, and, river. while waiting and in order that he might not the chain broke and let deceased into the be idle, he was put at other work as an ordinary or common laborer. The particular [2] Conceding that deceased was a civil labor at which he was engaged on the day of engineer and that when called onto this parthis death was making a roadway from the ly constructed work he was made assistant river at a place about 300 feet above the superintendent, will that release defendants bridge. A tramway or false work about 800 from liability under the other evidence? It feet long had been constructed across the certainly will not, unless we are prepared to river. A track was laid on this tramway, say that an officer of rank, though he perupon which cars, carrying material, were forms the labor, cannot be put into or assume moved back and forth. Permanent work had the capacity of a laboring servant on the progressed as far as the second pier. On order of his superior. Deceased, though the day before Hedrick's death, Superintend-holding such office under defendants' appointent Roach had ordered Turnham, a foreman, to move an engine over the tramway out to a position where it was intended to be used. The next morning, with eight or ten men, Turnham began to execute this order. He took one of his men to the toolhouse and there he selected a chain which they placed "around the drum of the engine." A rope was attached to this, upon which the men pulled in the effort to move the engine on rollers which were placed under it. After working for some time and getting the engine out a considerable distance, one of the defendants, who was present, sent one of the men up to where deceased and another man were fixing the roadway above referred to, with directions that they come down and help. When they came Roach directed them to go out on the tramway and help with the engine. They went out and were told by the foreman what to do. Just before deceased's death the foreman directed him and the other men to take hold and pull on the rope as he would call out, "Heave-o-heave." They did so, when the chain around the drumhead of the engine broke, precipitating deceased into the river, where he drowned. There was evidence tending to show that the chain was old, worn, and badly defective. [1] The reason given by the court for granting a new trial was that it erred in failing to peremptorily direct the jury to return a verdict for the defendants. We therefore only need ascertain whether there was any substantial evidence in plaintiff's behalf, for, if there was, the verdict should not have been disturbed, unless, of course, the law as applied to such evidence deprives plaintiff of a right to recover. There was evidence tending strongly to show (much of it practically undisputed) that the chain and rope had been attached to the engine and it had been pulled out 75 feet before deceased left his road work and came down to the bridge in obedience to the message sent to him by one of defendants. When he got there the superintendent, as already said, directed him to go out on the bridge and help in moving the engine. That he went out and came directly under the orders of Foreman Turnham, who testified that he was in charge of the men, including deceased, the latter being under his orders, and that he gave the order to pull on ment, would not be incapacitated from becoming a common laborer with his coworkers under the direction of a foreman to whom he might be assigned by the order of his superior. In other words, the fact that he was an assistant superintendent did not prevent his descent to the position of a laborer if such was the order of his superior, in which he acquiesced. We have not been cited to a case presenting facts like this; but we have the general announcement of our courts that it is not a question of rank in all cases but rather one of service which determines the capacity in which work is being done at a given time. McGowan v. Railway Co., 61 Mo. 528; Stephens v. Lumber Co., 110 Mo. App. 398, 86 S. W. 481. This was said by this court in the recent case of Madden v. Railway Co., 167 Mo. App. 143, 151 S. W. 489. [3] It is a part of defendants' support of the ruling of the trial court that deceased was a volunteer in his help at the rope, and they cite Duvall v. Packing Co., 119 Mo. App. 150, 95 S. W. 978. But we fail to discover any ground upon which to apply that rule of law. Repeating again, the evidence in plaintiff's behalf shows that one of the defendants ordered him up to this work, and that when he came the general superintendent directed him to go out on the tramway and help the others, there engaged under a foreman's direction, and that he did so. He was a volunteer in the sense that he could have refused to go and did not, but not a volunteer in the sense of performing work not his duty to perform and which he had not been ordered to do by his superior. [4] Defendants next insist that Foreman Turnham was a fellow servant of deceased. That has been answered, indirectly at least, by what we have already written. If deceased in obedience to the order of one of defendants came up to help with the engine and on arrival was directed to go out on the tramway and help move it, there can be no question of fellow servant, for we have abundant evidence that Turnham was foreman and that deceased took his place as a laborer under his orders. [5, 6] It is next said that the defendants furnished suitable material at the toolhouse, and, if the chain selected was one which was defective and worn out, it was the acts |