Volume 108 — Missouri Appeal Reports

Louis City Circuit Court. — So». H. D. Wood, Judge. Error was committed by the court when it refused, upon motion of defendant’s counsel, to strike out the statement made 'by witness Bickley that the noises beard by Mm “sounded like a collision of the roof of of the car to me — that was my impression of it.” The general rule is that witnesses must state facts, and not their individual opinions or inferences.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. STATEMENT. E. J. Meyer, one of the jurors who tried this case, testified on his voir dire as follows: ££Q. Have you any prejudice in a case of this kind? A. I ought to have; they came pretty near killing a couple of the members of my family. That would not prejudice me so far as that goes in this case. ‘ £Q. You think you could try the case fairly and impartially as far as the Transit Company?

Louis City Circuit Court. — lion. D. D. Fisher, Judge. (1) The motion in arrest of judgment should have been sustained. The petition does not state facts ■sufficient to constitute a cause of action. It does not allege that the car did not stop a reasonable time to allow plaintiff to alight. Nor does it allege that the conductor knew or should have known that the plaintiff was in the act of alighting.

<p>1. Practice: Remarks of Counsel: Exceptions. The appellate court will not reverse a judgment oE the trial court on account of remarks of counsel in the argument of the case, unless such remarks are objected to at the time and exceptions preserved therefor, in the bill of exceptions.</p> <p>2. -: -: -. Though objectionable remarks by counsel were not excepted to at the time, the trial court may sustain a motion for new trial on account of same and such ruling will not be disturbed on appeal.</p>

— Sim. J. T. Neville, Judge. (1) Mandamus does not lie in this case. Burn-ham v. Eogers, 167 Mo. 17, 66 S. W. 970; Baubie v. Ossman, 142 Mo. 499, 44 S. W. 338; School Dist. No.- 4 v. Smith, 90 Mo. App. 215. (2) The petition does not state facts sufficient to constitute a cause of action.

<p>Certiorari to St. Francois County Court.</p>

St. Louis City Circuit Court. — Hon. B. M. Foster, Judge. From a judgment for damages for personal injuries, defendant appealed. (1) The court committed error in admitting evidence of precautions taken by the defendant, after plaintiff’s injury, to brace and render more safe the ditch in which plaintiff was injured.

Louis City Circuit Court.— Hon. W. B. Douglas, Judge. (1) An oral understanding between a landlord’s agent and his tenant by which the tenant is to continue after the expiration of their written lease to store his goods on the city premises and to retain the keys thereto for a certain or uncertain period of time, though without a stipulated rent reserved, operates as a parol lease of such premises for a month at least and is not a license merely.

Original Proceeding for the Writ of Mandamus. STATEMENT. This is a proceeding to compel by mandamus the election commissioners of the city of St. Louis to print the relator’s name on the official ballots to be voted at the general election on November 8, 1904, as the regular nominee and candidate of the Democratic party for the office of State senator for the Thirty-First senatorial district.

Louis City Circuit Court. — Sim. Warwick Hough, Judge. A contract of insurance is complete and binding on both parties where the applicant has paid the amount of premium to the agent of the company, and the company has accepted the application and issued a policy and sent it to its agent to be delivered. Ins. Co. v. Thomson, 22 S. W. 87, 14 Ky. Law 800; Cooper v. Ins. Co., 7 Nev. 116; Dailey v. Accident Assn., 26 L. R. A. 171; Hallock v. Ins. 'Co., 26 N. Y. 268; Yonge v. Ins.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. The court erred in refusing to give defendant’s instruction in the nature of a demurrer, offered at the close of the plaintiff’s evidence. The record does not show that plaintiff returned, or offered to return, before bringing this suit, the money paid her by defendant as a consideration of the release signed by her, releasing the cause of action sued on.

<p>1. STREET RAILWAYS: Contributory Negligence: Driving on-Track. Plaintiff’s evidence' stowed that he was after night driving in his wagon on defendant’s car track along an un-lighted street, when there was sufficient space on the street at the side for him to drive; that he looked back a minute be-fore he was struck and saw no car. Eeld, in an action for injuries received by collision with car approaching from the rear, that he was not guilty of contributory negligence as a matter of • law.</p> <p>2. -: -: Incomplete Instruction. An instruction in such case, which properly defined the plaintiff’s and defendant’s duties in the circumstances, is insufficient where it does not tell the jury the legal consequences of the neglect of such duties, by either party.</p> <p>3. -: -Negligence of Motorman. Where the evidence was uncertain as to the distance the headlight would show the ' wagon on the track, and the motarman testified that he kept a sharp lookout but did not see the wagon until the car was within fifteen feet of it, a distance within which tne car could not have been stopped, the evidence was sufficient to warrant the jury in finding the motorman by keeping a sharp lookout would have seen the wagon in time to hav$ stopped the car.</p> <p>.4. -: -: Contributory Negligence. If the plaintiff in such ease saw or heard the car in time to have d-iven off the track and himself avoided the collision, he was guilty of negligence that directly contributed to his injury and could not recover, although the motorman saw or could have seen him in time to have stopped the car and averted the injury.</p> <p>5. PERSONAL INJURIES: Measure of Damages: Absence of Evidence. In the action for damages on account of personal injuries, an instruction which authorized a recovery for medical attendance as an element of damage, in the absence of any evidence that the plaintiff had paid or was obligated to pay for any such service, was erroneous.</p>

<p>DIVORCE: Both Parties in Fault. In an action for divorce to which the defendant filed a cross-bill, where the charges in both complaints and the evidence, showed grossly improper conduct, inconsistent with conjugal duty and fidelity, on the part of both plaintiff and defendant, neither is entitled to a divorce and both the petition and cross-hill were properly dismissed.</p>

Louis City Circuit Court. — No». H. D. Wood, Judge. The law is well settled that one who has failed to exercise ordinary care to insure Ms own safety cannot recover as against one who owed him a duty of ordinary care to protect him from the effects of Ms negligence. Carroll v. Railroad, 107 Mo. 653, 17 S. W. 889: O ’Donnell v. Patton, 117 Mo. 13, 22 S. W. 903; Harff v. Green, 168 Mo. 308, 67 S. W. 576.

Louis City- Circuit Court. — Hon. H. D. Wood, Judge. This statute allowing fees must be strictly construed ; the services for which the fee is claimed must have been actually performed; and the burden of proving himself entitled to the fee claimed is on the clerk or officer claiming it. “The rule is that all statutes in reference to costs must be construed strictly, and that an officer cannot legally claim remuneration unless the State has expressly conferred the right.”…

Louis City Circuit Court.- — Hon. M. N. Sale, Judge. (1) The testimony of the witness Madden as to the total subscriptions was not competent, in the absence of the books themselves. Greenleaf on Evidence (16 Ed.), sec. 563h; 2 Jones on Evidence, sec. 592; Ritchie v. Kinney, 46 Mo. 298; State v. Findley, 101 Mo. 217, 14 S. W. 185; Rosenfeld v. Siegfried, 91 Mo. App. 169; Benefit Society v. Lackland, 97 Mo. 137, 10 S. W. 895; Wolff v. Matthews, 39 Mo.

Louis City Circuit Court. — Ho». D. D. Fisher, Judge. (1) Notice of intention to terminate a monthly tenancy must be served personally. Van Studdiford v. Kohn, 46 Mo. App. 436; De Gtiverville v. Stolle, 9 Mo. App. 185; Taylor on L. & T. (7 Ed.), sec. 484. (2) The second notice of termination of tenancy was an admission that a tenancy still subsisted and amounted to a waiver or abandonment of the first notice. Nagel v. League, 70 Mo.

Louis City Circuit Court. — Ho». D. D. Fisher, Judge. (1) Blasting can not be enjoined merely because it disturbs people or causes vibration. Marven v. Brewster Iron N. Co., 55 N. T. 538. (2) There was no substantial cause of complaint justifying the granting of an injunction. 16 Am. and Eng. Ency.- of Law, 363, par. 8. (3) There is no negligence charged in the petition in this cause, and without it plaintiff has made •ho case. Booth v. Railroad, 140 N. Y. 267.

Louis City Circuit Court. — Row. J. A. ’ Blevins, Judge. (1) Defendant’s first motion to make part of the amended petition more definite and certain should have been overruled. Mueller v. Busch, etc., Co., 15 Abb. N. Cas. 88; 6 Ency.

<p>1. APPEAL: Lien For Keeping Animals. Under section 4258 of the Revised Statutes of 1899, an appeal will lie from a judgment enforcing a lien for pasturing cattle allowed by sections 4228 and 4229.</p> <p>2. -: -. Section 4059 of the Revised Statutes of 1899, allows an appeal in such cases, there being no statutory provision denying the right of appeal in an action for a lien for keeping animals.</p>

— Hon. E. M. Hughes, Judge. (1) The court erred in refusing the peremptory instructions asked by defendant, (a) The danger of alighting from a moving car was a matter coucerning. which the plaintiff’s knowledge was equal to that of the foreman, and if it was negligent to order him to alight, it was contributory negligence on his part to alight.

St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any evidence. The petition nowhere alleges any authority upon the part of the conductor conferred by defendant, or that it is within the scope of his authority to cause the plaintiff’s arrest. Grayson v. St. Louis Transit Co., 100 Mo. App. 72, 71 S. W. 730.

<p>1. LOCAL OPTION: Order for Election: Recitals. Under section 3027, Revised Statutes of 1899, a county court can make an order for an election to determine whether intoxicating liquors may be sold in the county, only upon a petition .of one-tenth, of the qualified voters of the county, and the order must recite such a petition so as to show jurisdiction in the county court to make it and render the election in pursuance of it valid.</p> <p>2. -: -: Nunc Pro Tunc Entry. The county court could by ntmo pro tune entry after the election, but at the same term, make the record show that the order contained the proper recitals where the order as actually made at the time contained them, though the clerk erroneously omitted them in entering the order upon the record.</p>

Louis City Circuit Court. — Bow. D. D. Fisher, Judge. (1) The injury which resulted in the loss of respondent’s left hand was clearly the result of a voluntary exposure to avoidable danger. Bean v. Employer’s Liability Corp., 50 Mo. App. 459; Overbeck v. Ins. Co., 93 Mo. App. 453; Glass v. Accident Assn., 112 Fed. 495; Ins.

<p>1. NEGLIGNECE: Railroad Crossing: Duty of Gateman. It is the duty of a gateman at a railroad crossing to exercise ordinary care in the operation of the gates to avoid letting them down upon passers in the street; and such ordinary care requires him to keep the gates under control at all times and keep his eyes on the street while lowering them. * ■</p> <p>2. -: -: Contributory Negligence. A pedestrian, approaching a railroad crossing guarded by gates, which at the time were up, did not look further to see whether they were being lowered, because no train was in sight and she heard no bell, which it was the custom of the gateman to sound when he lowered the gates. Held, in an action for injuries received by the lowering of the gates upon her while the evidence tended to show some negligence on her part, it was a question for the jury to say whether she was guilty of negligence which contributed directly to her injury.</p> <p>■3. -: : Abstraction: Presumption. An instruction to the effect that plaintiff was presumed to know what she would have seen by the exercisé of ordinary observation is a mere abstraction and was properly refused.</p> <p>■4. -: : Contributory Negligence. Plaintiff was not bound to continually watch' the gate to see whether it was about to descend, if it was up when she started across the street, and there was no warning that it was about to be lowered. Nor was she guilty of contributory negligence from the mere fact of walking under it while it was descending.</p> <p>5. -: : Lowering Gate: Duty of Gateman. The gate-man was bound to assume that persons might be on the street and it was his duty to watch for them and keep his gate under control. He could not presume that pedestrians would not walk under it while it was being lowered.</p>

<p>PRACTICE: New'Trial: Weight of Evidence: Discretion of Trial Judge. A trial court lias large discretion in granting a new trial on the ground that the verdict was against the weight of evidence. Where the evidence was conflicting, such a ruling will not he disturbed on account of intemperate remarks made by the judge as indicating prejudice in the ruling.</p>

Louis City Circuit Court. — Now. D. D. Fisher, Judge. (1)The actual and continued change of possession contemplated hy the statute, must be open, notorious and unequivocal — such as to apprise the community, or those accustomed to deal with the vendor, that the goods sold have changed hands, and that the title has passed from the vendor to the vendee.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Since onr statute (Revised Statutes 1899, sec. 2926) makes it the duty of the court in decreeing a divorce “to make such order touching alimony and maintenance of the wife and the care, custody and maintenance of the children as shall he reasonable, ’ ’ it must certainly be presumed that the court obeyed the mandate of the statute, and that the allowance of the gross sum of two thousand dollars to the wife, together…

Louis City Circuit Court . — Ron. D. D. Fisher, Judge. (1) The final judgment, entered March 9,1903, in the principal case awards the whole fund to Porter. For this reason the court erred in afterwards adjudging part of it to the Aetna Iron Works. Railway v. Railway, 152 111. 519; Hodgerson v. Railroad, 160 111. 430.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Where, in an action for personal injuries, the verdict for plaintiff is so grossly inadequate as to indicate that it must have been the result of passion, prejudice, partiality, fraud or misconduct, the judgment will be reversed and a new trial awarded, the rule in this respect being the same as when the damages are grossly excessive.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The court erred in instructing the jury at the instance of plaintiff, that they might assess punitive damages or smart money against defendants in the absence of a separate statement or claim in the petition therefor. R. S. 1899, sec. 594; Berryman v. Cox, 73 Mo. App. 67; Gilfillan v. McCrillis, 84 Mo. App. 576; 'Clothing Co. v. Dry Goods Co., 156 Mo. 393, 56 S. W. 1112.

Louis City Circuit Court. — Hem. O’Neill Ryan, Judge. Action for damages against the Granite City and St. Louis Railway Company and the Chicago & Alton Railway Company, and from verdict in favor of the Street Railway Company and against the Railroad Company, both plaintiff and Railroad Company appealed. (1) The court erred in overruling appellant’s demurrer to the evidence offered at the close of plaintiff’s case.

Louis City Circuit Court. — Row. Daniel D. Fisher, Judge. (1) The affidavit for appeal from the justice to the circuit court is defective and insufficient. And for this reason the circuit court acquired no jurisdiction of this cause. R. S. 1899, sec. 3371; Hastings v. Hennessey, 52 Mo. App. 172.

Louis City Circuit Court. — How. Horatio D. Wood, Judge. (1) The ordinance provides for the doing of five kinds of work, as one work, viz.: 1, the removal of the old roadway pavement; 2, the preparing of the roadway for. the superstructure; 3, the removal of broken or defective curbstones; 4, the resetting of the curbstone, and 5, the paving of the roadway with vitrified brick.

<p>Appeal from St. Louis City .Circuit Court. — No». B. M. Foster, Judge.</p>

Appeal'from St. Louis City Circuit Court. — Ho». Warwick Hough, Judge. A recovery can only “be permitted upon proof of tbe grounds specified in tbe petition and not on any other acts of negligence. Grocer Co. v. Railway, 89 Mo. App. 534; Fuchs v. City, 167 Mo. 620, 67 S. W. 610; McCormick v. Railroad, 154 Mo. 191, 55 S. W. 252; Groll v. Tower, 12 Mo. App. 585, 85 Mo. 249; Wright v. Fonda, 44 Mo.

Lonis City Circuit Court . — Eon. W. B. Douglas, Judge. (1) Unless the evidence shows a willful striking, and excludes the idea that it was done in the exercise of an honest judgment for the purpose of enabling the defendant to shoe the animal, it will not support a finding for plaintiff. State v. Roche, 37 Mo. App. 480.

Louis City Circuit Court. — Eon. R. M. Foster, Judge. (1) The court erred in giving the declarations of law asked by plaintiff, because.they all proceed upon the erroneous theory that if defendant at the time it received payment of its debt had reasonable cause to believe that the debtor was insolvent, then both the fact of insolvency at the time and knowledge of intention on the part of the debtor to give a preference to the defendant are to be conclusively presumed.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. The court erred in refusing each of defendant’s declarations of law offered at the close of all the evidence ih both cases. The word “employed,” used in section 2189, is a form of the transitive verb “employ,” which means, “to make use of the time, attention or labor of; to give occupation to; use as an agent. ’ ’ The word “employs,” used in section 2190, is the singular number of that verb.

Louis City Circuit Court. — Wow. B. ill. Foster, Judge. (1) The evidence shows that plaintiff’s driver was gnilty of such negligence as precluded a recovery. Kelsay v. Railway, 129 Mo. 362, 30 S. W. 339; Holwerson v. Railway, 157 Mo. 216, 57 S.“W. 770; Sharp v. Railway, 161 Mo. 214, 61 S. W. 829; Zumault v. Railroad, 175 Mo. 288, 74 S. W. 1015; Moore v. Railway, 176 Mo. 528, 75 S. W. 672; McGauley v. Transit Co., 79 S. W. 461; Railroad v. Moseley, 57 Fed. 921.

Louis City Circuit Court. — Now. R. M. Foster, Judge. (1) The trial court erred in overruling’ defendant’s motion, made at the beginning of the trial, to compel the plaintiff to elect upon which cause of action he intended to try the case — whether as an action to recover for an injury negligently inflicted, or as an action for an injury willfully and intentionally committed.

Louis City Circuit Court. — Won. M. N. Sale, Judge. From an order granting a new trial defendant appealed. (1) They were not addressed to the jury but were made to counsel in an argument about an objection of counsel to the admission of evidence, and were not prejudicial. Roseberry v. Nixon, 58 Hun 121;.

Louis City Circuit Court . — Hon. Warwick Hough, Judge. (1) The demurrer to the evidence should have been sustained. The actionable negligence charged is: (a) Dangerous and unlawful speed; (b) failure to sound the gong or bell; (c) failure of the motorman. to avoid the injury after he saw, or, by the exercise of reasonable care, could have seen plaintiff.

Louis City Circuit Court. — Now. Moses N. Sale, Judge. The court erred in giving plaintiff’s instruction 3 defining the measure- of damages as follows: “If the jury find for the plaintiff, they shonld assess his damages at such sum as they .believe from the evidence will be a fair compensation to the plaintiff, (a) For the pain of body and mind that plaintiff has suffered, or will suffer, by reason of his injuries, and directly caused thereby, (b) For any loss of earnings,…

Louis City Circuit Court. — How. D. D. Fisher, Judge. The court erred in overruling defendant’s motion to require plaintiff to make his petition more definite and certain, and in not requiring the petition to be made definite and certain.

<p>Appeal from St. Louis City Circuit Court. — Roto. Warwick Hough, Judge.</p> <p>The amount of recovery of . exemplary damages is peculiarly within the discretion of the jury. Goetz v. Ambs, 27 Mo. 28; Canfield v. Railway, 59 Mo. App. 354; McNamara v. Transit Co., — Mo. —, 81 S. W. 880.</p>

<p>1. PRACTICE: Punitive Damages: Instruction. In an action for damages for personal injuries, an erroneous instruction in relation to punitive damages will not cause a reversal where the jury rendered a verdict for compensatory damages only.</p> <p>2. PERSONAL INJURIES: Measure of Damages: Medical Attendance. In an action for personal injuries, an obligation incurred for medicine and medicinal treatment, whether already discharged or not, may be taken into consideration by the jury in assessing damages.</p> <p>3. -: -: -: Variance. Where the petition alleges the expenditure of money for medicine and medical treatment, evidence that a bill had been incurred for the same, but not paid, is not admissible.</p> <p>4. -: -: -: -: Timely Exception. But a. judgment will not be reversed on account of such evidence, where no objection was made to its reception at the time, because if such objection had been made the petition could have been amended.</p> <p>5. Practice: Remarks of Counsel: Timely Exception. The course to be taken by a trial court when statements of an attorney in his argument to the jury are excepted to is largely one of discretion. In order to make available an error on account of such language, the attention of the trial court must be directed to it so distinctly that it inay rule on it and an exception to the ruling must be saved.</p> <p>6. -:-: -: -: Opportunity to Except. Where the objectionable remarks were made in so low a tone that they were not heard by the judge nor appellant’s attorney, although he knew something was being said and complained that he was unable to hear what was said, but did no more, the appellate court will not. review the alleged error complained of on account of such objectionable remarks.</p>

Louis Circuit Court. — No A J. B. Kinealy, Judge. Actual damages must be found as a predicate for the recovery of exemplary damages. “When no actual damage has been sustained,” as found by the jury, “no exemplary damages can be allowed,” etc. Hoagland v. Amusement Co., 170 Mo. 335, 70 S. W. 878. Normal damages will sustain punitory. Mills v. Taylor, 85 Mo. App. Ill; Ferguson v. Chronicle Pub. Co., 72 Mo. App. 462; Favorite v. Cottrell, 62 Mo. App. 119.

Louis City Circuit Court . — Hon. D. D. Fisher, Judge. (1) Notwithstanding one holds himself out as a partner, when in fact he is not such, he is not liable to a creditor unless the creditor was induced to act upon the representation, or extended credit on the strength of his being a partner. Hannah v. Baylor, 27 Mo. App. 302; Bissel v. Wade, 129 Mo. 439, 31 S. W. 928.

<p>Appeal from St. Louis City Circuit Court. — -Now. Daniel Q. Taylor, Judge.</p>

Louis City Circuit Court. — Hon. J. R. Kinealy, Judge. (1) Whether there was a contract in legal effect such as that alleged in the petition was a question of intention, whether the minds of the parties met upon or with such an understanding between them, to be determined by the jury under all the facts and circumstances of the case. The case should, therefore, have been submitted to the jury. Mosby v. Commission Co., 91 Mo. App. 500; Thurston v. Thornton, 5 Mass.

Louis City Circuit Court. — Ho». H. D. Wood, Judge. • There was absolutely no evidence of the value of the property levied upon in this case. The sorrel horse and saddle were purchased over three years before the date of the levy and date of filing bond; plaintiff testified that she had paid $42.00 for this horse.

Louis City Circuit Court. — Hon. J. R. Kinealy, Judge. The petition, in the case at bar, only states by implication that the deceased was on the premises by invitation of the defendant (appellant). To authorize a recovery it was necessary for the petition to affirmatively allege that the deceased was on the premises by the invitation of the defendant. To authorize a recovery for lack of ordinary care the petition should affirmatively allege an invitation by defendant.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. It .is the' settled law of this State that neither testimony nor affidavits of jurors will be received to impeach their own verdict. State v. Burks, 132 Mo. 363, • 34 S. W. 48; Sharp v. Railway, 114 Mo. 106, 20 S. W. 93; State v. Wood, 124 Mo. 412, 27 S. W. 1114; State v. Robinson, 117 Mo. 649, 23 S. W. 1066; State v. Schaeffer, 116 Mo. 96,22S.W.447; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; Winn v. Eeed, 61 Mo.

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) The court erred in overruling appellant’s demurrer to plaintiff’s evidence, and in refusing its peremptory instruction asked at the close of a-11 the evidence. Young v. Railway, 93 Mo. App. 267; Bascom v. Railroad, 102 Mo. App. 430, 76 S. W. 697; Lynch v. St. Louis Transit Co., 102 Mo. App. 630, 77 S. W. 100; Haley v. St. Louis Transit Co., 179 Mo. 30, 77 S. W. 731; Wells v. Steinway, 18 App. Div.

Louis City Circuit Court . — Hon. Warwick Hough, Judge. (1) The right to quash an execution is a right inherent in the court, regardless of the grade of the court. This is the doctrine announced by Freeman,which has received the approval of the Kansas City Court of Appeals in the above cited case of Parker v. Oxendine, 85 Mo. App. 212. It is also the doctrine announced in two California decisions. Luco v. Brown, 73 Cal. 3; Sanchez v. Carriaga, 31 Cal. 170.

Louis City Circuit Court. — Ho®. O’Neill Ryan, Judge. (1) (a) Failure to comply with specifications for work, affects the extent, and not tfie right of recovery, in suits to enforce special taxbills. Charter, City of St. Louis, art. 6, sec. 25 ; R. 'S. 1899, pp. 2513-2514; Creamer v. Bates, 49 Mo. 523; Neenan v. Smith, 60 Mo. 292; Heman v. Gilliam, 171 Mo. 371, 71 S. W. 173; Construction Co. v. Loevy, 78 S. W. 613; Steffen v. Fox, 56 Mo. App. 9.

Louis City Circuit Court. — Eon. Walter B. Doiiglas, Judge. (1) Tire refusal of defendant’s instruction in the nature of a demurrer offered at the close of plaintiff’s evidence was error. He who relies upon the absence of the relation of fellow-servants, carries the burden of establishing its non-existence. Shaw v. Construction Co., 77 S. W. 96; Blessing v. Railway, 77 Mo. 410; Sheehan v. Prosser, 55 Mo. App. 569.

Louis City Circuit Court. — Now. John A. Blevins, Judge. (1) The petition in this case alleges that the act of defendant, of which complaint is made, was both willfully and negligently done.

Louis Court of Criminal Correction— Hon. H, N. Moore, Judge. STATEMENT. Defendant was tried in the St. Lonis court of criminal correction, before the judge of that court, a jury having been waived, on an information charging assault and battery. He was found guilty and filed a motion to set aside the verdict of the court, on the ground that it was against the evidence and the weight of the evidence. His motion being denied, defendant appealed.

Louis City Circuit Court. — Row. Jas. B. Kinealy, Judge. The evidence for plaintiff establishes one of two propositions: Either, first, that the.plaintiff did not look or listen for the approaching car from the west; or, if he did look, that the west-bonnd car obstructed-his vision, and that he started across the track, without waiting a sufficient length of time to ascertain whether a car was coming on the other track or not.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Tbe peremptory instructions in tbe nature of demurrers offered at tbe close of plaintiff’s case, and at the close of all the evidence should have been given. For no negligence was proved against defendant. That negligence must be proved and cannot be presumed is axiomatic. Breen v. Cooperage, 50 Mo. App. 202; Perse v. Railroad, 51 Mo. App. 171; Rutledge v. Railroad, 123 Mo. 121, 24 S. W. 1053, 27 S. W. 327.

Louis City Circuit Court . — Hon. Daniel D. Fisher, Judge. (1) The court erred in overruling the motion of the defendant to make the amended petition more definite and certain. Lappington v. Jeffries, 15 Mo. 574; Atteberry v. Powell, 29 Mo. 429.

<p>1. CARRIERS OF PASSENGERS: Ejecting Passenger: Right of Passenger. ^A passenger on a street car who had tendered his fare in lawful money which the conductor in good faith refused, believing the money to be counterfeit, had a right to object and reasonably resist expulsion from the carp if ejected, he had a right of action against the company for expulsion, though no unnecessary force was used in expelling him.</p> <p>2. -: -: --: Limit of Right, But the passenger’s right to remain upon the car, under the circumstances, did not . give him the right to-fight the conductor or resist ejection in a manner that would lead to a disturbance of the peace of the other passengers.</p>

Louis City Circuit Court. — How. • Daniel D. Fisher, Judge. (1) No negligence was proved against defendant; the allegation of petition being that defendant negligently allowed its car to be drawn across the intersection of Olive street and Compton avenue; and there being no evidence that the motorman, after he should have become aware that plaintiff was about to place himself in a position of peril, could have stopped his ear any quicker than he did, or could have avoided…

Louis City Circuit Court. — How. John A. Blevins, Judge. Judgment in trial court for defendant and appeal from order granting a new trial on motion of plaintiff.

Lonis City Circuit Court. — .Hem. Robert M. Foster, Judge. The court erred in refusing defendant’s instruction in the nature of a demurrer, asked at the close of the plaintiff’s evidence, (a) Where in an action based upon -the negligence of the defendant there is no evidence tending to establish negligence, it is the - duty of the court to direct a verdict for the defendant. Púeschell v. Iron Works, 79 Mo. App. 459.

Louis City Circuit Court. — Sow. Warwick Hough, Judge. The court erred in giving the second instruction on behalf of the plaintiff. There was nothing shown in evidence to charge the defendant with any notice of the position of the mule and coal wagon, and there was nothing apparent that the plaintiff would be thrown beneath the mule and wagon. Therefore, the defendant is not to be charged with the effects of the injury from the mule.

Louis City Circuit Court.— lion. O’Neill Ryan, Judge. (1) Under the evidence in this case, the peremptory instruction should have been given, and a verdict for the defendant directed. Barrie v. Transit Company, 102 Mo. App. 469, 76 S. W. 706.

<p>1.HUSBAND AND WIFE: Divorce: Private Communcations. The general rule obtains in this'State that private communications between husband and wife can not be testified to by either party.</p> <p>2. --: -: -: Exception to Rule. But where, from ' the peculiar nature,of the inquiry, the information sought is peculiarly within the knowledge of the wife, the necessity for her testimony may outweigh public policy, so that the rule disqualifying her as to such statements may be relaxed.</p> <p>3. -: -: -: Petition. A petition for divorce by the wife, on the ground of indignities, which alleges the use of vile and abusive language and words reflecting upon the character of plaintiff, sufficiently states a cause of action without the further allegation that such language was employed in the presence of a third party.</p>

Louis. City Circuit Court. — How. O’Neill By an, Judge. This case comes within the provisions of chapter 3, section 17, of the 30th U. S. Statutes at Large, page 544, better known as the United States Bankruptcy Law of July 1, 1898, and amendments thereto of February 25, 1903. Under the provisions of this section, it was the duty of the lower court to stay further proceedings until a determination of the discharge' was. had in the .

Louis City Circuit Court. — lío». John A. Blevins, Judge. The court erred in refusing plaintiff the right to amend by bringing in E. F. Nolte as a party defendant. R. S. 1899, sec. 4211; R. S. 1899, sec. 4218; Steinman v. Stumple, 29 Mo. App. 482; State Co. v. Insurance Co., 62 Mo. App. 569; Holland v. Cunliff, 96 Mo. App. 67, 67 S. W. 737; Horstkotte v. Menier, 50 Mo. 158.

Louis City Circuit Court . — Hon. H. D. Wood, Judge. (1) A foreign executor or administrator has no power- beyond the limits of the State where his letters were granted, and no right to maintain beyond such .limits, an action to recover assets, unless permitted by the law of the State in which such action is brought. Morton v. Hatch, 54 Mo. 411; Naylor’s Admr., v. Moffatt, 29 Mo. 128; McPike v. McPike, 111 Mo.-225, 20 S. W. 12; Cabanne v. Skinker, 56 Mo. 357.

Louis City Circuit Court. — Hon. R. M. Foster, Judge. (1) The thing sued for and the cause of action in the former suit between the parties are entirely different from that in the case at bar.

<p>Appeal from St. Louis City Circuit Court. — Hon. M. N. Sale, Judge.</p>

Louis City Circuit Court. — Ho». Horatio D. Wood, Judge. (1) Donovan was at all times the agent of the owner of the note, and to permit said owner to deny Donovan’s authority to collect said note would Be to perpetrate a fraud on the plaintiffs. Gibson v. Zeibig, 24 Mo. App. 65; Ferneau v. Whitford, 39 Mo. App. 312; Sharp v. Knox, 48 Mo. App. 169; Bonner v. Lisenby, 86 Mo. App. 666; Bank v. Life Ins. Co., 145 Mo. 127, 46 S’. W. 615.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram'N. Moore, Judge.</p> <p>(1) The indictment is multifarious, and bad for that reason. 1 Bishop’s New Crim. Proc. (4 Ed.), sec. 432; State v. Jamison, 90 N. W. 622; People v. Flaherty, 57 N. E. 73; People v. Williams, 65 Pac. 323; State v. Healy, 50 Mo. App. 243; State v. Harrison, 62 Ibid. 112; State v. Fox, 148 Mo. 517, 50 S. W. 98.- (2) The indictment does not show knowledge by defendant of any of the matters concerning which it is alleged he was guilty of neglect. State v. Leigh, 3 Dev. & Bat. 127; State v. Darling, 36 Atl. 632.</p>

Louis City Circuit Court. — -No». W. B. Douglas, Judge. Under a petition alleging permanent disability to-labor and to earn money, a married woman residing at home with her husband and children, and having no-other business or occupation than that of a housewife, is not entitled to an instruction giving her the unqualified right to all damages resulting from “physical inconvenience.” This error in plaintiff’s second instruction is emphasized by the refusal of defendant’s…

Louis City Circuit Court. — Eon. R. M. Foster, Judge. (1) Upon the refusal of defendant to perform his part of the contract, plaintiff was entitled to rescind and recover back the consideration with which she had parted. Missouri-Edison Elec. Co. v. Carmody, 72 Mo. App. 534; 21 Am. and Eng. Eney. Law (1 Ed.), p. 44; Bishop on Contracts, secs. 825 and 827.

Louis City Circuit Court. — Noto. Moses N. Sale, Judge. The bond sued on in this case was not a penal bond, within the meaning of sections 404-407 inclusive, Revised Statutes 1899. Nor was it a bond with a collateral condition for the faithful performance of a covenant, other than the payment of money as described in section 468 et seq. Revised Statutes 1899.

Louis City Circuit Court. — Ho». John A. Blevins, Judge. (1) Persons entering upon railroad crossings must exercise ordinary care for their safety, and when injured through the concurring negligence of themselves and railroad company there can he no recovery. Jones v. Barnard, 63 Mo. App. 501; Butts v. Railroad, 98 Mo. 272, 11 S. W. 754; Panning v. Transit Co., 103 Mo. App. 151, 78 S. W. 72.

<p>1. PERSONAL INJURIES: Contributory Negligence: Jury Question. In an action for personal injuries, where the evidence as to contributory negligence is such that reasonable men might reach different conclusions as to whether plaintiff was guilty of contributory negligence, the question is one of fact to be submitted to the jury.</p> <p>2. STREET RAILWAYS: Driving Across Track: Right to Assume the Carmen Will do Their Duty. One driving upon a street, in approaching a street railway track for the purpose of crossing at the intersection of streets, has a right to assume that a motorman in charge of any car that may be approaching will have his car under such control that he can reduce his speed and avoid a collision; and he has a right to assume that the motorman will give warning of his approach to a street crossing, by the usual signal.</p> <p>3. PRACTICE: Instruction: General Terms. In an action for personal injuries caused by the alleged negligence of defendant, an instruction which submits the question of negligence in general terms clearly expressing the rules of law involved, is not objectionable if it would not mislead a jury of average intelligence.</p> <p>4. -: Pleading: Last Chance: General Allegation. And where such injuries were caused by a collision with a street car, in the operation of which it was the duty of the motorman to keep a vigilant watch to prevent a collision, the use of the plural in applying such duty to the “agents and servants” of the defendant company, is not objectionable as imposing upon the conductor also the duty of maintaining a vigilant watch.</p> <p>5. -: -: -: -. In such an action where there was any evidence tending to show that the motorman could have stopped the car in time to avoid the injury, it was proper to submit the question of defendant’s negligence upon the last chance or humanitarian theory under a general allegation of negligence in the petition, without having put the same in issue by a specific allegation.</p> <p>6. -: Vigilant Watch Ordinance: Common Law Negligence. In an action for personal injuries received by a collision with a street car, where the action is founded upon common law •negligence, proof of a violation of the vigilant watch ordinance is admissible, though the same is not pleaded as bearing upon the question of general negligence.</p> <p>7. EVIDENCE: Expert Testimony: Speed of Car. In an action for personal injuries received from a collision with a street car, expert testimony is admissible to show in what time and space an ordinary ear similar to the one in question could be stopped, where the hypothetical question embodies substantially all the facts relating to the subject of inquiry.</p>

Louis City Circuit Court. — No». Walter B. Douglas, Judge. The court erred in overruling the demurrer to the evidence, because all the evidence showed that the plaintiffs ’ oats were lost by the act of God without negligence on the part of the defendant. When such a state of facts is shown, it is the duty of the court to instruct the jury to return a verdict for the defendant. Brewing Assn. v. Talbot, 141 Mo. 674, 42 S. W. 679; Transport Co. v. Ins.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence. The note, and the evidence on behalf of plaintiff, showed that a building and loan association had loaned $300 of its funds to the defendant. Lovelace v. Pratt, 163 Mo. 76, 63 S. W. 383; Sappington v. Loan Co., 76 Mo. App. 242; Powell v. Doyle, 93 Mo. App. 300.

Louis City Circuit Court. — Ho». R. M. Foster, Judge. (1) The reversal of the judgment did not authorize the circuit court to retry'the third and fourth counts of the petition, and final judgment should have been entered in favor of the appellant on the third and fourth counts of the petition as well as on the first and second counts.

Louis City Circuit Court. — Hon. Jas. H. Kinealy, Judge. (1) Division No. 10 had no jurisdiction to try this cause. There had been no final decision in No. 5, and therefore no part of the assignment case proper could he transferred to another division. ITaehl v. Wabash, 119 Mo. 325, 24 S. W. 737; Goddard v. Delaney, 80 S. W. 891. (2) All the parties in interest must he made plaintiff or defendants. White v. Dyer, 81 Mo.

Lords City Circuit Court. — Ho». Horatio D. Wood, Judge. It will be seen that the only point relied upon by appellant, on this record, is that the suit was prematurely brought as to this defendant. The notice of plaintiff’s intention to file a lien if its claim were not paid within ten days was served on the fourteenth day of July, 1903.

Louis City Circuit Court. — Now. Horatio D. Wood, Judge. (1) The court erred in ruling of its own motion without the point being raised that the only question to be tried was the amount of damages. 1 Ohitty on Pleading, pp. 582-598 (14 Amer. Ed.), vol. 3,1151-1153; Boyden v. Moore, 5 Máss. 370. Opportunity for amendment should have been given. Clarke v. Lyon Co., 7 Nev. 75.

<p>PLEADING: Third Petition Bad. The terms of section 623, Revised Statutes of 1899, providing that when a third pleading shall be adjudged insufficient, the party filing such pleading shall pay treble costs and shall not be allowed to plead further, applies only when such pleadings have been held insufficient on demurrer or motion to strike out. Where one of three successive, defective petitions was held insufficient on motion to make more definite, it was error to apply the penalties of that section to plaintiff.</p>

Louis City Circuit Court. — Ho». O’Neill Ryan, Judge. (1) The court committed no error in giving instruction number one of its own motion, as it clearly stated the law on the case. Thompson v. Railroad, 93 Mo. App. 548, 67 S. W. 693; Barry v. Railroad, 98 Mo. 70, 11 S. W. 308; Zellars v. Water & Light Co., 92 Mo. App. 107; Rolling Mill Co. v. Corrigan, 3 L. R. A. 385, 46 Ohio Sup. Ct. 283; Hinckley v. Horazdowski, 8 L. R. A. 490; Buckley v. Mfg.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) When there are several sets of sureties it is necessary to ascertain when the defalcation occurred, for each set of sureties is liable only for the malfeasance which their principal commits during the period they were standing for him. State v. Atherton, 40 Mo. 220; State v. McCormack, 50 Mo. 568; Tittmann v. Creen, 108 Mo. 33, 18 S. W. 885; State v. Holman, 93 Mo.

Louis City Circuit Court. — Row. Moses N. Sale, Judge. STATEMENT. On April 17, 1902, all the parties to this suit executed a written instrument.

Louis City Circuit Court. — Hon. W. B. Douglas, Judge. (1) Reasonable allowance being made for tbe coloring in favor of plaintiff contained in tbe testimony of bimself and one or two of bis witnesses, patent upon tbe face of tbe record, and eliminating from consideration sucb portions of tbe evidence as contradict tbe physical facts, an unprejudiced reader of tbe record in this case cannot do otherwise, we think, than arrive at tbe conclusion that the verdict in favor of…

Louis City Circuit Court. — Ho». James R. Kinealy, Judge. (1) In the absence of a statute authorizing a recovery for expenses incurred in the employment of counsel to defend the abandoned condemnation proceedings, plaintiffs would be remediless. No costs are allowed at common law. They are creatures of the statute and must be paid in the amounts and in the manner specified in the statute.

Louis City Circuit Court.— Eon. Daniel D. Fisher, Judge. (1) An electric street railway company operating dangerous machinery at a rapid speed in a populous city, is hound to know that pedestrians have an equal right to the use of streets; therefore it is the duty of the motorman to he on the lookout, and to take all reasonable measures to avoid injuring such persons passing along the tracks, and failure to do so is negligence. Presmeyer v. Transit Co., 102 Mo.

Louis City Circuit Court. — Hem. Moses N. Sale, Judge. The circuit court erred in giving plaintiff’s instruction marked “ 5-P, ” on the measure of damages.

<p>1. PERSONAL INJURIES: Future Pain. In an action for damages on account of personal injuries, tlie jury, in taking into account the future consequences of the injury in determining the amount of damages to be awarded, are limited to such future consequences as are reasonably certain to accrue to the plaintiff.</p> <p>2. -: -: Instruction. An instruction in relation to this character of damages should be certain and definite, but an appellate court will not reverse a judgment for the mere rear son that such an instruction is open to criticism, if the language used fairly declares the rule and is not so worded as to lead the jury astray.</p> <p>3. -: -: -: “Probably.” An instruction authorizing the jury in assessing damages in such a case, to take into consideration such pain, etc., as they. believed the plaintiff would “probably” in the future suffer in direct consequence of the injuries, came within the rule and was not erroneous.</p> <p>4. -: -: Verdict. Where the evidence in such a case showed that the plaintiff had lost earnings from the time of the injury to the time of trial’ that she could not earn more than half of what she had been earning prior to the injury, that she had suffered and was suffering pain, that such pain would continue in the future, and where the verdict was for $1,500, an appellate court will not presume from the smallness of the verdict that the jury did not take into consideration the future consequences of the injury.</p>

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) Defendant’s demurrer to the evidence should have been sustained for the reasons: (a) The negligence, as shown by the proof, was that of the motorman, a fellow-servant, and, that being true, the plaintiff cannot recover. Godfrey v„ Transit Co., 81 S. W. 1230; Sams v. Railroad, 174 Mo. 53, 73 S. W. 686; Same case, 61 L. R. A. 475; Stock v. Transit Co., 79 S. W. 1176.

St. Louis City Circuit Court.- — Ho#. Jas. B. Kvnealy, Judge.' The court erred in overruling the demurrer to • plaintiff’s evidence-, and in refusing the peremptory instruction, asked at the close of all the evidence, to the second count of the petition. Jones v. Packet Co., 43 Mo. App. 398; Cameron v. Express Co., 48 Mo. App. 99; Hartman v. Mueklenbach, 64 Mo. App. 565; Todd v. Harlin, 72 Mo>. App. 565; Krueger v. Bailroad, 84 Mo.

Louis City Circuit Court. — Eon. W. B. Douglas, Judge. The court erred in giving the plaintiff’s first instruction. It directs a verdict for plaintiff on either of these grounds: (1) If the conductor “cursed and abused plaintiff and called him vile names;” (2), “or assaulted and struck plaintiff;” (3), “or violently ejected plaintiff from said ear, then your verdict must be for the plaintiff.” This authorizes a verdict for plaintiff for the sole' use of abusive language.

Louis City Circuit Court. — No». War- ■ tuick Rough, Judge. The wife and daughter, residing with plaintiff and part of his household and family, may have nursed plaintiff, but “such nursing involves no legal liability on his part, and therefore affords no basis for a claim against defendant as for expenses paid.” Yoorhies on Damages, p. 29, sec. 18. Goodhart v. Bailroad, 177 Pa. St. 191, 35 Atl. 192; Buelterman v. Meyer, 132 Mo-. 474, 34 S. W. 67; Batcliff v. Lumpee, 82 Mo.

Louis City Circuit Court. — Hon. Jos. H. Kinealy, Judge. The appeal is from an order setting aside a verdict in favor of defendant and granting -a new trial on motion of plaintiff. (1) The court erred in sustaining plaintiff’s motion for a new trial for supposed error in giving defendant’s instructions numbered 8, 9 and 10. The instructions are not erroneous, nor were they erroneously given.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) Defendant’s objection to the introduction of any evidence under the first count of the petition should have been sustained on the ground that the cause of action therein sued on was barred by the statute of limitations. Book v. Railway, 75 Mo. App. 604; Breen v. Transit Co., 102 Mo. App. 489, 77 S. W. 78; R. S. 1899, sec. 4275.