Volume 153 — Missouri Appeal Reports

<p>Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.</p> <p>(1) There was no evidence to sustain the verdict. Stepp v. Railroad, 85 Mo. 229; Brown v. Railroad, 20 Mo. App. 222; Christy v. Hughes, 24 Mo. App. 275; Saxton v. Railroad, 98 Mo. App. 494. (2) The instructions given by the court as to the measure of damages are erroneous. Coleman v. Land Co., 105 Mo. App. 254; McGowan v. Ore & Steel Co., 109 Mo. 518.</p> <p>(1) There was plenty of evidence to sustain the verdict. Buesching v. St. Louis Gas Light .Co., 73 Mo. 219; McKenzie v. Railroad, 216 Mo. 22; Youngue v. Railroad, 133 Mo. App. 141. (2) The appellant cannot object to the instruction as to the measure of damages on the ground that it is too general, where it did not ask for a more specific instruction. Simpson y. Ball, 129 S. W. 1017; Taylor v. Iron Co., 133 Mo. 349; Barth y. Railroad, 142 Mo. 535; Browning y. Railroad, 124 Mo. 55; Browning y. Railroad, 124 Mo. 72; Boettgher y. Iron Works, 124 M'o. 87; Geismann y. Missouri-Edison Co., 173 Mo. 654; Sharp y. Biscuit Co., 179 Mo. 553; Fisher y. St. Louis Transit Co., 198 Mo. 562. (3) The verdict of the jury is not excessive. Sharp v. Biscuit Co., 179 Mo. 553. (4) The prejudicial error claimed did not result to the defendant’s injury by plaintiff making parties of a large number of persons in interest in this litigation and their resulting dismissal at the close of plaintiff’s evidence. Moudy v. Dressed Beef & Provision Co., 130 S. W. 476.</p> <p>Statement. — This was an action against the Hill-O’Meara Construction Company, the general contractor erecting a building on Locust street iu the city of St. Louis, for negligence in not guarding an excavation in the sidewalk in front of said building, and in not displaying and maintaining red lights as required by ordinance, it being alleged that plaintiff’s husband was killed by falling into said excavation on or about March 1, 1907. The building in question occupied the entire west half of the block fronting on Locust, Tenth and Olive ■ streets. On the night in question the outside walls of the building had been finished up to the' tenth story, except that the first or ground-floor story was not inclosed with brick but was entirely open from Olive to Locust street between the steel columns supporting the building. The floor of the first story inside the building had been completed. But it was planned that the basement was to extend outside the building line to the curb line of Locust street, and for this purpose the entire sidewalk on Locust street, from the alley on the east to Tenth street on the west, some one hundred and fifty feet, and the earth thereunder, had been removed and excavated by defendant to a depth ■ of some fourteen feet, and a retaining wall one hundred and fifty feet long had been built at the outer curb edge of the excavation but not above it. Steel girders or beams had been laid across the top of the excavation from the building to the retaining wall for the purpose of supporting a concrete sidewalk, but the concrete had not been placed between them, and the entire excavation lay open, except for a few boards thrown across the beams near the building. There were no boards near the curb. A line of cinder piles extended from the alley up to near Tenth street and close to the outer edge of the excavation, the said cinder piles being from .one to two feet high and the cinders being for use in concreting.</p> <p>At about half past two o’clock in the morning of March 2, 1907, after the building had been deserted and was in darkness, two police officers and the night watchman of the building, being attracted thereto by a noise, found plaintiff’s husband at the bottom of the excavation, close by the retaining wall and about twenty feet west of the alley, lying across a large wooden roller. His back was broken.</p> <p>Plaintiff’s evidence tended to show that there was • no barrier, fence, guard or warning light around or near the excavation or cinder piles for the entire distance between the alley and Tenth street. All along the curb line, for one hundred and fifty feet, the excavation was unguarded.</p> <p>The testimony of the police officers was to the effect that when the man was found he moaned and said he was shot, and asked who had put him there; that there was no smell of liquor about the man and nothing to indicate whether he was drunk or sober; but that at the dispensary, and the* next morning at the hospital, and while, according to the police officers, he was rational, he said that he had had a glass or two of wine out on Gravois Road during the day; could not stand much and had drunk more than he ought to; had come down town on a Cherokee car and had gotten off at Ninth and Pine streets to go to a toilet. As a matter of fact the man was not shot, and no one saw him fall into the excavation. The police searched his clothes at the dispensary and found five memorandum books, $16.47 in a purse, a nickel-plated watch and a pair of eye glasses. The man died at the city hospital from his injuries.</p> <p>The only evidence concerning the relationship of plaintiff and deceased, his employment, family and domestic life was the testimony of plaintiff herself, as follows:</p> <p>“I live in the city of St. Louis. F. H. G. Voelker was my husband. We were married in 1881. I lived with him up to the time of his death. He met with the accident March 1st, and died March 3d, 1907. He was agent for the Prudential Insurance Company.</p> <p>“When my husband F. H. G. Voelker, died, he left surviving him a minor child, ten years old, still living.”</p> <p>It was later admitted in the case that plaintiff had two minor children when, her husband died; a boy and a girl.</p> <p>The instructions given and refused are set forth or appropriately mentioned in the opinion proper.</p> <p>There was a verdict and judgment for plaintiff for $3500, from which defendant has prosecuted this appeal.</p>

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) The court erred in giving plaintiff’s instructions Nos. 1 and 2 for the reason there was no showing to warrant a finding that the operation of the car at twelve miles per hour was an act of negligence, the ordinance introduced in evidence permitting cars to be operated .at a speed not in excess of fifteen miles per hour.

<p>PHYSICIANS AND SURGEONS: Practicing Without License: Crimes and Punishments: Information: Failure to Negative Exception In Statute. An information, under section 8315, Revised Statutes 1909, charging defendant with representing himself to be a duly authorized practicing physician and 'surgeon When he had no license from the state board of health and was not a registered physician, which fails to negative the proviso in said section, to the effect that physicians, who were registered on or prior to March 12, 1901. shall be regarded as licentiates and registered physicians, is insufficient; the proviso being part and parcel of the enacting clause! of the statute, . and it being necessary, therefore, to negative it in the information.</p>

Louis City Circuit Court. — Eon. James E. Withrow, Judge.. (1) The effect of the reversal and remand of the cause as to the St. Louis Transit Company left the judgment standing as to the non-appealing party, the respondent in this appeal. The liability on the judgment was joint and several, because the statute, section 889, Revised Statutes 1899, so provides. McElroy v. Ford, 81 Mo. App. 507 (overruling Sheehan & Holn Co. v. Sims, 28 Mo.

— Eon. Charles D. Stewart, Judge. (1) The demurrer to the evidence at the close of all the evidence should have been sustained. . Negligence cannot be presumed from the fact of an accident and resulting injury. Yarnall v. Railroad, 113 Mo, 570; Schafer v. Railroad, 128'Mo.^61; Railroad v. Mac-Kinney, 135 Pa. St. 162.

Louis City Circuit Court. — Eon. Eugene MoQuillin, Judge. (1) The court erred in refusing to give, at the close of the plaintiff’s case and at the conclusion of the entire case, an instruction in the nature of a demurrer to the evidence, requested by the defendant. Because plaintiff failed to plead or prove that, before the institution of this suit, she had tendered back to the defendant the consideration for the release pleaded by the defendant.

Louis City Circuit Court. — Eon. Hugo Muench, Judge, (1) The policy sued on expressly provides that, in the event óf death by poison, the company shall pay but one-tenth of the amount otherwise payable.

<p>1. APPELLATE PRACTICE: Review: Sufficiency of Exceptions. In a trial to the court, the 'failure of defendant to except to special findings of fact made by the trial court will not. prevent the appellate court from reviewing the action of the trial court in overruling a demurrer to the evidence, which action was excepted to.</p> <p>2. LIFE INSURANCE: Forfeiture for Non-Payment of Premiums: Statutes: Construction of Technical Terms. In construing section 7897, Revised Statutes 1899, which provides that policies of insurance on life shall not be forfeited by reason of nonpayment of premiums where three-fourths of the net value of the policy is sufficient- to secure temporary insurance, etc., “net value” is a technical term, and is to be taken in its technical sense.</p> <p>3. STATUTES: Construction of Technical Terms: Question for Court. In construing a statute, the meaning of technical terms is a question for the court, and it may determine their meaning by consulting books of reference, or by referring to persons who have knowledge on the subject. -</p> <p>4. -: -: Settled Meaning. In construing a statute containing technical terms, it is important to ascertain whether the words had a settled technical meaning before the statute was enacted, as, in that case, it will be assumed the -Legislature used them in that sense.</p> <p>5. -: Construction of Remedia! Statute: Evils to Be Corrected. In construing a remedial statute, the mischievous practice or evil intended to be terminated or cured by its enactment may be considered.</p> <p>6. LIFE INSURANCE: Net Value. “Net value” or “reserve,” in life insurance, existed long- before either by contract or statute any part of it was devoted to extended insurance.</p> <p>7. -: Premiums: Cost of insurance Defined. The cost of insurance for a single year of insured’s life is the sum which the company must actually receive from the insured and augment with interest in order to meet the probábility of insured’s dying during that year, according to the mortality table, and such cost is greater with increasing age, because the probability of death grows greater. "</p> <p>8. -: “Net Value:" Defined. The “net value” of a life insurance policy is the accumulation of the balance of past net premiums not absorbed i'n carrying the risk.</p> <p>9. -: -: Statute. The “net value” of a policy of life insurance, under -section 7897, Revised Statutes 1899, represents nothing but premiums actually collected from the policyholder in excess of the tabular costs up to the time of default, with interest added at the rate of four per cent per annum compounded.</p> <p>' 10. -: Gross and Net Premiums Defined. The “net premium” of a life insurance policy is the amount required to be paid by insured to meet the tabular cost and is figured to be the exact amount required to carry the insurance from period to period. “Gross premium” is the amount actually charged by the insurer under the contract, and usually exceeds the net premium by the addition of a certain “loading” for the profit and expenses of the company.</p> <p>11. -: Net Value: Gross Premiums to Be Applied. All money received by an insurance company as gross premiums on a life insurance policy must be applied toward the payment of the net level premium — that is, the tabular cost of insurance and the creation of the reserve which the form or class of the policy makes proper — before any part may be appropriated by the company for profit or expense.</p> <p>12. -: -: Method of Computing: Statute. In computing the net value of a life insurance policy, under section 7897, Revised Statutes 1899, the policy must not, contrary to its terms, be treated as an "ordinary whole life policy” in which the premiunis are level and fixed and payable at set intervals throughout the continuance of the risk.</p> <p>13. ' -: -: -: -: Evidence: Based on False Premises. In an action on a life insurance policy, under section 7898, Revised Statutes 1899, providing for non-forfeiture because -of lapse, etc., the evidence of an actuary as to the net value of a policy,' based upon computations founded on an erroneous construction of the statute’s requirements as to the elements of the computation, was wholly worthless.</p> <p>14. -: -: Method of Computing. The net value of a life insurance policy is not greater in proportion to the smallness of the premium because the insured receives a greater benefit for his money, and the same reasoning applies to the departmental practice and the statutes intended to secure the solvency of insurance companies, such as section 6925, Revised Statutes 1909, which charges them as a liability with a reserve sufficient to meet all policy obligations and declares that if a policy does not provide for the payment of a sufficient net level premium to create a proper reserve, according to the form of the policy,' the company 'shall supply the sufficiency out of its available assets.</p> <p>15. -: Action on Policy: Forfeiture for Non-Payment of Premiums: Net Value Held Insufficient to Carry Policy. In an action on a life insurance policy, prosecuted on the theory that, notwithstanding insured had defaulted in the payment ■ of premiums, three-fourths of the net value of the policy at the time of the lapse was sufficient, when used as a single net premium, as contemplated by section 7897, Revised Statutes 1899, to provide temporary insurance to the time of insured’s death; held, the evidence did not establish that the policy had such' value.</p>

Louis City Circuit Court. — Eon. Yirgil Rule, Judge. (1) It was the duty of the court to direct a verdict for the plaintiff in this case, as requested. Corby v. Butler, 55 Mo. 399; Kuykendall v. Fisher, 8 L. R. A. (N. S.) 96; Bank v. Donald, 56 Minn. 491; LaRue v. Lee, 14 L. R. A. (N. S.) 968; Davis v. Albritton, 8 L. R. A. (N. S.) 820; Cahill v. Railroad, 205 Mo. 407; Raney v. Raney, 128 Mo. App. 167; Morgan v. Morgan, 134 Mo. App. 160; Ulrey v. Ulrey, 80 Mo.

Louis City Circuit Court. — Eon. Mait Gr. Reynolds} Judge. (1) The court’s action in sustaining plaintiff’s motion for a new trial was erroneous, because defendant’s instructions four and five are not in conflict with plaintiff’s instruction No. 1 when all are read together. Squires v. Kansas City, 100 Mo. App. 628; Norton v. Cramer, 180 Mo. 544; Chambers y. Chester, 172 Mo. 490; Batten v. Modern Woodmen, 131 Mo. App. 381; Forge Co. y. Engine Co., 135 Mo. App. 87.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. The court erred in ruling that the contract alleged by appellant to have been entered into was within the purview of the Statute of Frauds, and not being in writing could not be enforced. Jordan y. Railroad, 92 Mo. App. 84; R. S. 1899, sec. 4160; R. S. 1899, sec. 3418; Wynn v. Followill, 98 Mo. App-. 465; Suggett’s Admx. v. Cason’s Admr., 26 Mo. 225; Foster v.. O’Blenis, 18 Mo. 91; Harrington v. Railroad, 60 Mo.

— Son. Moses N. Bale, Judge. (1) The plaintiff’s bill of interpleader should be sustained upon purely equitable grounds, in order to relieve the plaintiff of the necessity of contesting two separate and distinct law suits, the issue in both of which Avould be the same.

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.</p> <p>(1) Interpleader cannot be maintained, because respondent bas incurred an independent liability to appellant. Insurance Co. y. Kidder, 162 Ind. 389; Ludlow y. Strong, 53 N. J. Eq. 326; Wakeman y. Kingsland, 46 N. J. Eq. 113; Frencli v. Robrcbard, 50 Vermont 43, 7; Standley y. Roberts, 59 Fed. 841; Grawshay y. Thornton, 2 My. and Or. 1; Sprague v. Soule, 35 Mich. 35; Cromwell v. Trust Co., 57 Hun. 151; Pfister y. Wade, 56 Cal. 46. (2) Respondent is not disinterested. Hartsook v. Chrissman, 114 Mo. App. 558; Conley y. Insurance Co., 67 Ala. 477; Insurance Co. v. Pingrey, 141 Mass. 411; Kyle v. Railroad, 112 Ala. 610; Ryan v. Lamson, 44 111. App. 204; Pfister v. Wade, 56 Cal. 46. (3) The titles of appellant and Mrs. yon Bor eke are adverse. Commissioners y. Safe Co., 133 U. S.. 486; Oolortypo Co. v. Continental Co., 188 U. S. 107; Man-devil le v. Welch, 5 Wheat. 286; Morrill v. Insurance Co., 183 111. 260. (4) The same debt is not claimed by appellant and Mrs. von Borcke. Glyn y. Duesbury, 11 Sim. 148; Johnson y. Atkinson, 3 Anstr. 798; Standley v. Roberts, 59 Fed. 84; Conley v. Insurance Co., 67 Ala. 477; Piister y. Wade, 56 Cal. 46. (5) Respondent raises a question as to the amount due. Smith v. Grand Lodge, 125 Mo. App. 207. Í6) Appellant has a clear right to collect the proceeds from respondent. Woodmen y. Wood, 100 Mo. App. 658; Sullivan v. Knights of Father Mathew, 73 Mo. App. 45; Funk y. Avery, 84 Mo. App. 494.</p> <p>The judgment of the court permitting the bill of interpleader and ordering the money to be paid into court was right and equitable and should be affirmed. Roselle y. Bank, 119 Mo. 84; School Dist. v. Weston, 31 Mich. 85; Morrill y. Ins. Co., 183 111. 260; N. Y. Mut. Life Ins. Co. v. Richards, 99 Mo. App. 88; Woodmen of the World v. Wood, 100 Mo.App. 655; Supreme Council L. of H. v. Palmer, 107 Mo. App. 157.</p>

Louis City Circuit Court — Eon. William M. Kinsey, Judge. (1) The .defense of suspension for the non-payment of dues has been' waived by defendant denying liability and defending on other grounds. This defense comes too late on second trial in the circuit court. Carp v. Queen Ins. Co., 116 M'o. App. 543; Mining Co. v. Fidelity & Casualty Co., 126 Mo. App. 104; Dolan v. Town Mutual Fire Ins. Co., 88 Mo. App. 666.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The points relied upon for reversal are: First: That the verdict is against the law and the evidence and the weight of the evidence and' should have been for plaintiff. Second: That the court erred in giving and refusing instructions, and the instructions given are conflicting and misleading, and in plain disregard of the opinion of the court on the second appeal (125 Mo. App. 47) and on the first appeal (108 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The failure on the part of the defendants to sign the subscription paper for the increase of the capital stock of the Central Amusement Co. will not preelude their being considered subscribers. Shickle v. Watts, 94 Mo. 419; Hotel Co. v. Wright, 73 Mo. App. 240; Pittsburgh y. Spooner, 74 Wis. 307; Bank v. Talbott, 131 Col. 45; Bank v. Adams, 72 S. W. (Ky.) 1125; Bates y. Tel. Co., 134 111. 536.

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) When a motion for a new trial is overruled, the losing party must both object and except if he desires the action on the motion reviewed, and unless he both objects and excepts the action of the trial court will not be reviewed. Williams v. City of St. Joseph, 118 S. W. 1180. (2) Unless an instruction is objected to when offered, the action of the trial court in giving it will not be reviewed.

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

<p>BILLS AND NOTES: Failure of Consideration: Sufficiency of Evidence. Evidence, in an action upon a non-negotiable note, defended on the ground of want of consideration, held, sufficient to sustain a judgment for the plaintiff.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. Eugo Huench, Judge.</p> <p>The court erred in refusing to give instruction No. 1 asked on behalf of defendant. Marble Co. y. Achuff, 83 Mo. App. 42; Weber Mfg. Co. v. Supply Co., 149 Mo. 538; Bank y. Powers, 134 Mo. 432; Barton y. Singleton, 128 Mo. 164; Shelly v. Booth, 73 Mo. 74; Jones on Chattel Mortgages, sec. 416.</p> <p>The court did not err in refusing to give instruction No. T asked for by appellant, for the reason that the testimony of respondent on the question of fact involved herein, to-wit: whether or not he made an oral agreement permitting the mortgagor to sell a part of the mortgaged property, was conflicting and not beyond dispute. This question, then, was for the jury. Fleisher Bros. v. Hinde, 122 Mo. App. 218; McDonald v. Hoover, 142 Mo. 484..</p>

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (T) The bill of exceptions was properly authenticated. Berry Bros. v. Leslie, 181 Mo. App. 236; Ranney v. Packing Co., 132 Mo. App. 324; R. S. 1909, sec. 2032.

St. Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) The signing of the two acceptances to Oscar Pryibil, and the acceptance of a receipt signed by the president of the Royal Cigar Company, stating “This account has been settled by two .acceptances to Oscar Pryibil,” shows that it was the agreement that these acceptances should operate to extinguish the debt, and the debt, as evidenced by the account of the Cigar Company against Altemeyer, was paid by these two…

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) A verdict not supported by substantial testimony justifying it will not be allowed to stand by an appellate court. There was no substantial evidence in this case that plaintiff was the owner of the piano in question. Price v. Lederer, 33 Mo. App. 426; Rottman v. Pohlmann, 28 Mo. App. 399; Avery v. Fitzgerald, 94 Mo. 207; Archambault v. Blanchard, 198 Mo. 384. (2) Instructions must be predicated on the evidence.

Louis City Circuit Court. — Hon. Matt Q. Reynolds, Judge. If, as a matter of law, said original policy wherein plaintiff, Anna Eves, wife of the insured, was named as beneficiary, and dated August 26, 1897, is governed by the general insurance laws, because said Sovereign Camp, Woodmen of the World, at the time of the issuance of said policy was doing business in this state and had not qualified nor taken out a permit to do business in this state as a fraternal benefit…

Louis City Circuit Court. — Hon. Moses N. Bale, Judge. (1) A partnership is liable for the negligence of any one of the partners in carrying on the partnership business. The authorities are all agreed on this proposition. Dudley v. Love, 60 Mo. App. 420; Wilson O’bear G-ro. Co. v. Cole, 26 Mo. App. 5; Parsons on.

Original Proceeding by Mandamus. (1) On a motion for peremptory writ in a case like this, the facts alleged' in the petition for the writ and the facts alleged in the return and not denied are considered admitted. State ex rel. y. Brown, 205 Mo. 620.

Louis City Circuit Court. — Hon. Eugene McQuilHn, Judge. (1) The trial court erred in refusing to give to the jury the instructions requested by defendant in the nature of demurrers to the evidence. Lingenfelder v. Brewery Co., 108 Mo. 578; Storck v. Mesker, 55 Mo. App. 26; Tucker v. Barth, 85 Mo. 114; Orr v. Sandford, 74 Mo. App. 187; Peck v. Harris, 57 Mo. App. 467; Railroad v. Morley, 45 Mo. App. 304; Swaggard v. Hancock, 25 Mo. App. 596; Ashby v. Dillon, 19 Mo. 619.

— Hon. Henry G. Riley, Judge. (1) Respondent having, by solemn admission in his petition, admitted that appellant was entitled to credit for the item of $1477.69, is bound by said admission, and is estopped from denying its correctness. Harrison v. McReynolds, 183 Mo. 533; Cousins v. Bowling, 100 Mo. App. 452; Cross v. Railroad, 71 Mo. App. 585.

<p>1. TRUSTS: Spendthrift Trusts: May Be Created. A spendthrift trust, limiting the right to alienate, and placing the proceeds of the estate beyond seizure by creditors' of the cestui que trust during his life, may he created in this state.</p> <p>2. -: -: Heaton v. Dickson, Post, Followed. Following Heaton v. Dickson, Post, it is held the will under consideration did not create a spendthrift trust.</p>

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (¿) (a) One who writes Ms name upon the back, of a promissory note of ivhich be is neither payee, nor indorsee, and does so prior to its delivery, is prima facie a co-niaker, and assumes liability as such in the absence of evidence that it was the understanding at the time that he should be held in some other capacity. Boyer y. Boogher, 11 Mo. App. 131; Schmidt Malting Co. v. Miller, 38 Mo.

Louis City Circuit Court. — Eon. M. N. Bale. Judge. (1) The verdict of tbe jury was not excessive, but all things considered is reasonable and just. Verdicts as follows have been sustained in this state. Bolton v. Mo. Pac., 172 Mo. 92; Goldsmith v. Holland Bldg. Co., 182 Mo. 597; Taylor v. R. R., 16 S. W. 206; Griffin v. R. R., 98 M,o. 108; Ridenour v. R. R., 102 Mo. 270; Lat-son v. St. Louis Transit Co., 192 Mo. 449.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.</p> <p>(1) The court erred in not discharging appellants at the conclusion of the state’s case. The evidence is circumstantial and inconclusive both as to the corpus delicti — the loss of the property by means of a larceny and the agency of appellants therein. State v. Johnson, 209 Mo. 357; State v. Francis, 199 Mo. 671; 1 Bishop’s Criminal Procedure (2 Ed.), secs. 1050-71; Eice on Evidence, secs. 292-293, 342-356. (2) It is manifest that if the prosecuting witness lost the property in the manner the state contends then it was taken by one, but which one? And in the absence of evidence of any conspiracy, how can both or either be held? 1 Bishop on Criminal Proc. (2 Ed.), sec. 106. (3) We respectfully urge that this case comes within the doctrine announced in case of State v. James, 133 Mo. App. 300.</p>

—Hon. Robert G. Ranney, Judge. (1) To pnt the criminal law in force, maliciously and without any reasonable or probable cause, is wrongful, and if… Held: that where the statement does not set forth the facts constituting the cause of action, nor does not advise the opposite party what he was sued for, the suit should he dismissed. Sid-way v. Land & Live Stock Co., 163 Mo. 373; Brashears v. Strock, 46 Mo. 321; Davis v. Railroad, 65 Mo. 441; Swartz v. Nicholson, 65 Mo. 508.

— Hon. B. S. Byors, Judge. (1) There was no substantial evidence in the case sufficient to authorize the jury to find a verdict for the plaintiff; therefore the court erred in giving to the jury each of the instructions given at the instance of the plaintiff. Holden v. Railroad, 177 Mo. 469; R. S. 1899, sec. 6013; State v. Ooleman, 185 Mo. 151; State v. Mc-Nally, 87 Mo. 644.

— Hon. O. H. &kinker} Judge. (1) The final settlement is conclusive of all matters embraced therein. May v. May, 189 Mo. 485; State ex rel. v. Carroll, 101 Mo. App. 110; Coulter v. Lyda, 102 Mo. App. 401; Park v. Jamison, 82 Mo. 552. (2) In any event the allowances were at least prima facie correct, and as they were not in the suit at bar attacked or shown to be unreasonable, should have been allowed. Ansley v. Richardson, 95 Mo. App. 332; State ex rel. v. Strickland, 80 Mo.

— Hon. L. B. Wood-side, Judge. (!) Agreement to hold money in readiness to loan defendant held to obligate defendant to pay interest during specified period whether he took advantage of the loan or not. Eblen v. Selden (Md.), 59 Atl. Rep. 120. A mortgage to cover future advances is valid. - Foster v. Reynolds, 38 Mo. 556. (2) Plaintiff’s obligation was to furnish a perfect title of record satisfactory to the counsel of the investment company. Marmaduke v. Martin, 90 Mo.

— Eon. David E. Blair, Judge. (1) A contract for the sale of specific, ascertained goods, then ready for delivery, for a price agreed on vests the property thereto immediately in the buyer, unless it is shown by the language and surrounding circumstances that such was not the intention of the parties, so title to the cow in question passed to appellant at the time he paid the $2.50 on the purchase price thereof and his right of possession accrued when he demanded possession…

<p>APPELLATE PRACTICE: Failure to File Brief. When appellant files in the appellate court nothing but a printed abstract — no statement or assignment of errors, as required by the statute and rules of the court, the appeal will be dismissed.</p>

— Hon. Henry L. Bright, Judge. (1) Irrespective of the provisions of the lease the sludge table, dummy elevator and appurtenances became a part of the leasehold when placed thereon by the lessees and respondent acquired no interest therein by reason of its chattel mortgage. Bonnewald v. Real Estate Co., 44 Mo. App. 350; Ottumwa Iron Works v. Muir, 126 Mo. App. 587; Hopewell Mills Co. v. Bank, 23 N. E. .(Mass.) 327; Chatterton v. Saul, 16 111. 150, 19 Cyc. 1074.

— Hon. Alfred Page, Judge. (1) Proof of negligence necessarily disproves wilfulness, and vice versa, and for this reason they could not be joined in tbe same count. Waechter y. Railroad, 113 Mo. App. 277; Boyd y. Transit Co., 108 Mo. App. 305; Ranting v. Railroad, 157 Mo. 508; Bindbeutal v. Railroad, 43 Mo. App. 463; O’Brien y. Looms, 43 Mo. App. 29. (2) Demurrer available remedy. Boyd v. Transit Co., 108 Mo. App. 305. (3) Motion in arrest available.

— Eon. R. G. Ranney, Judge. (1) The telephone company knew every fact connected with the accounts when it paid them, and of their own will made a voluntary payment with full knowledge, no fraud, no duress, and it cannot recover. American Brewing Co. v. St. Louis, 187 Mo. 367; Teasdale v. Stoller, 133 Mo. 645; Stoll ex rel. v. Stenetticet, 92 Mo. App. 220; Campbell v. Clark, 44 Mo.- App. 249; Meir v. Meir, 88 Mo. 566; 30 Cyc. 1298.

- — Eon. D. E. Blair, Judge. (1) The proof must be equivalent to the charge alleged in the petition. Though the charge is substantially the same, yet if in different phraseology it will not support the action. Yager v. Bruce, 116 Mo. App. 473;. Burch v. Benton, 26 Mo. 153; TJnterberger v. S char if, 51 Mo. App. 102; Berry v. Dry den, 7 Mo. 324; Burch v. Benton, 21 Mo. 161; Chrystal v. Craig, 80 Mo. 375.

— Hon. David E. Blair, Judge. (1) Certiorari is the only remedy available for reviewing the action of the County Court in revoking the dramshop license of relators; State ex rel. v. Lichta, 130 Mo. App. 284; State ex rel. v. Smith, 176 Mo. 90; State v. Kirk, 112 Mo. App. 447.

—Eon. Robert Q-. Ranney, Judge. (1) The'court erred in admitting incompetent testimony concerning the sidewalk. Smart v. Kansas City, 91 Mo. 594; Stout v. Columbia, 118 Mo. App. 444; Calcaterra v. Iovaldi, 123 Mo. App. 347; Goble v. Kansas City, 148 Mo. 470. (2) To submit an instruction not supported by evidence is error and if damages are asked for loss of earning or profits, evidence as to its value must be submitted.

— Hon. James T. Neville, Judge. (1) When the judgment is manifestly for the right party it will not be reversed. R. S. 1899, sec. 865; R. S.' 1909, sec. 2082; Orth v. Dorschlein, 32 Mo. 366; Hunter v. Miller, 36 Mo. 143; Miller v. Newman, 41 Mo. 509; Nelson v.’Foster, 66 Mo. 381; Fairbanks v. Long, 91 Mo. 628; Fitzgerald v. Barker, 96 .Mo. 661; Bushey v. Glen, 107 Mo. 331; Henry v. Railway Co., 113 Mo. 525; Burns v. Liberty, 131 Mo. 372.

lAppcal from Barton Circuit Court. — Hon. B. tí-, Thurman, Judge. (1) As disclosed by Laurence’s application to be made a party defendant, plaintiff, upon bringing his suit, had filed in the office of the recorder of deeds, long prior to the deed from Elvin to Laurence, a notice of tbe pendency of his suit; this was in accordance with the statute, and Laurence took with notice of that contract with plaintiff.

'Appeal from Dent Circuit Court. — No». L. B. Woodsicle. Judge. (1) Plaintiff is entitled to recover for the value of the manufactured product, regardless of the intent, mistake or good faith of defendant in converting the timber. Mohr v. Langan, 162 Mo. 474; Hendricks v. Evans, 46 Mo. App. 316; Bolles v. Woodenware Co., 106 U. S. 432; 28 Am. and Eng. Ency. Law (2 Ed.), 722; Waverly Timber Co. v. Co-Operating Co., 112 Mo. 383; Blockmer v. Railroad, 101 Mo. App. 557.

— Hon. W. O. Thomas, Judge. (1) The circuit court of Vernon county did not have any jurisdiction and its judgment was void in the case of the action of the First National Bank.of Nevada against these defend'ants, for the ‘reason that neither of tlie defendants lived in Vernon county and had no property in that county.

<p>•Appeal from Buchanan Circuit Court. — Eon. O. A. Mosfflttft, Judge.</p>

<p>1. ROADS AND HIGHWAYS: Nuisance: Injunction. Where a road is sufficiently located, and the evidence is overwhelming that' it was dedicated to public use by the owners of the land, and accepted by the public as such, and has been in continuous use as such up to the time it was obstructed by the defendants by fences which' closed the road, a judgment abating the nuisance, and enjoining the defendants from further maintaining the fences, is proper.</p> <p>2. j-: Statutes. Section 9694, R. S. 1899, refers to roads that have been opened by order of the county court, in which there were irregularities in the proceedings, and where there had been non-user for ten consecutive years, and has no bearing where it is sufficiently shown that labor was expended on the road in question.</p> <p>3. -: -: Section 9472, R. S. 1899, refers in part to roads established solely by dedication or public user, and has no bearing where it is sufficiently shown that labor had been expended on the road in question, coupled with the further fact that this section was first enacted in 1887, at which time the road in question had been in use by the public previously for ten consecutive years.</p>

— Eon. Nicholas D. Thurmond, Judge. (1) The written and printed bill of lading purported to be a complete contract between the parties for the' transportation in question, and hence it was error to permit the plaintiff to add additional stipulations for a two weeks stop, by parol evidence of prior negotiations. Koons v. Car Co., 203 Mo. 227; Boggs v. Laundry Co., 171 Mo. 282; Blake v. Jaeger, 81 Mo. App. 239; Helm v. Railroad, 98 Mo.

— Eon. E. L. McCune, Judge. (1) The trial court did not err in refusing to give plaintiff’s instruction No. 1, in modifying instruction No. 4, and in giving defendant’s instruction No. 4. Bond v. Railroad, ll'O Mo. App. 138;. Peck v. Transit Co., 178 Mo., 624; Beben v. Transit Co., 186 Mo., .430; Ingles v. Railroad, 129 S. W. 492; Beave v. Transit Co., 212 Mo., 331.

— Hon. Herman Brumback, Judge. (1) Tlie court should have sustained defendant’s demurrer to the evidence, because: 1. The plaintiff’s explanation of the cause of the accident is inconsistent with the physical facts. Oglesby v. Railroad, 177 Mo. 272; DeMaet v. Fidelity, etc., Co., 121 Mo. App. 92. (2) Plaintiff was guilty of contributory negligence as a matter of law.

— Eon. G. A. Mos-man, Judge. Under the law and evidence plaintiff was not entitled to a verdict, and the demurrer offered by the defendant at the close of plaintiff’s case, and again at the close of defendant’s case, should have been given. Horn-stein y. United Railways, 195 Mo. 440; Deane v. Transit Company, 192 Mo. 584; Brockschmidt y. Railroad, 205 Mo. 446; Moore v. Railroad, 176 Mo. 528; Cole v. Railroad, 121 Mo. 613; Hebler y. Railroad, 132 Mo.

— Hon. James H. Blover} Judge. (1) The court should have sustained defendant’s demurrer to the evidence. The plaintiff assumed the risk as incident to his' employment. He had knowledge of the location of the poles and was guilty of contributory negligence in leaning his head and body outside the car.

Appeal. from Jacksou Circuit Court.- — Hon. Herman lirwribaclc, Judge. (1) There Avas not sufficient proof of negligence to support a verdict; if there was plaintiff was herself negligent. (2) The court erred in giving plaintiff’s-first instruction. Said instruction erroneously imposed the absolute duty upon the city to keep said sidewalk reasonably safe. Dunn v. Nicholson, 117 Mo. App. 374.

— Hon. Herman Brumbach, Judge. (1) By filing tlie suit defendant powder company was charged with notice of the attorneys’ lien on the cause of action. Taylor y. Railroad, 207 Mo. 495. (2) Any act of said defendant which destroyed the attorney’s lien after it attached to the cause of action made said defendant liable to the attorneys in an independent action. Yonge y. Transit Co., 109 Mo. App. 235; Tajdor v. Transit Co., 198 Mo. 715.

— Eon. W. H. Martin, Judge. (T) The demurrer offered hv the defendants at the close of plaintiff’s case should have been sustained. Under the evidence the plaintiff had signally failed to malee a case. While the law protects the rights of an agent to recover his commission, still, on the other hana the agent must do certain things and bring himself within the rule. He, the agent, must be the procuring cause of the sale.

-Appeal from Jackson Circuit Court. — Hon. James H. Stover, Judge. (1) The action should have been brought against the city treasurer, a. For damages; ■ b. By mandamus. State ex rel. v. Green, 124 Mo. App. 80; 2 Abbott Municipal Corporations, 1613, 1614. State ex rel. y. Ashbrook, 154 Mo., 375; 3 Abbott, Municipal Corporations, 2472; Butler v. Moberly, 131 Mo. App. 172.

— Hon. Walter A. Poivell, Judge. „ (1) There was a variance between the material allegations in the plaintiff’s petition, and the proof. H. D. Hengstenberg v. W. F. Hoyt, 109 Mo. App. 622; Lumber Co. v. Knights of Pythias, 157 Mo. 366; Tim-' ber Co. v. Railroad, 180 Mo. 463; Meyers v. Railroad, 120 Mo. App. 228; Chitty v. Railroad, 148 Mo. 64.

— Hon. N. D. Thurmond, Judge. (1) Tbe failure to sound the whistle at the whistling post was wholly immaterial in this case, because the boy in charge of the cows actually saw the train as soon as he could have been warned by the statutory signal, and hence the court should have directed a verdict for defendant. Hutchinson v. Railroad, 195 Mo. 546; Hutchinson v. Railroad, 161 Mo. 246; McManamee v. Railroad, 135 Mo. 440; McGee v. Railroad, 214 Mo. 533.

— Hon. Arch li. Davis, Judge. (1) Appellant is indebted to respondent in accordance with the provisions set out on the face of the original certificates as issued to Hatcher by the Loyal Knights, viz.: ten times the amount he paid into the mortuary fund (See “Certificate of Assumption,” page 14 of the record).

— Hon. John G. Park, Judge. This is a simple action on a promissory note between tbe original payee and payors and is governed by the law merchant; the contract, the note sued on, was plain and unambiguous in its terms. It is a complete contract in all its terms. Plaintiff is not bound to make affirmative proof of a breach of any legal duty. Under the statute the production of the note in evidence when its execution is not denied, makes a prima facie case.

— Eon. E. E. Por-' ter field, Judge. The demurrer should have been sustained for the reasons: The evidence wholly failed to show the horses were not fed, watered and cared for in transit; assuming- they were not fed, watered and cared for in transit, the evidence failed to show that that fact caused the death of the horse. , McGrath v. St. L. Transit Co., 197 Mo. 97, Purcell v. Tennent Shoe Co., 187 Mo. ' 276, Goransson v. Mfg.

— lion-. W. O. Thomas, Judge. (1) The court erred in submitting the cause to the jury. The deceased was guilty of contributory negligence, such as to preclude a recovery herein. Begonia v. Railroad, 224 Mo. 587; Boring v. Railroad, 194 Mo. 548; Stotler v. Railroad, 204 Mo. 628; Green v. Railroad, 192 Mo. 137; R'odan v. Transit Co., 207 Mo. 411; Lauu v. Railroad, 216 Mo. 599; Holland v. Railroad, 210 Mo. 351; Schmidt v. Railroad, 191 Mo. 228; Cole v. Railroad, 121 Mo.

— Eon. W. O. Thomas, Judge. The court committed error in refusing the demurrer to the evidence. The court committed error in refusing the instruction in the nature of a demurrer offered by the defendant at the close of all the evidence. S.chaub v. Railroad, 133 Mo. App. 444; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131; Walker v. Railroad, 193 Mo. 453; Stotler v. Railroad, 204 Mo. 619; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 679.

— No». James N. Slover, Judge. (1) The court should have sustained appellant Rock Island’s, demurrer to the evidence, for the reasons : The respondent must recover, if at all, upon the negligence charged in the petition; and the evidence does not show any negligence whatever on the part of the Rock Island, and especially negligence in the manner charged in the petition. McGrath v. Transit Co., 197 Mo. 97; Foley v. McMahon, 114 Mo. App. 442; Hamilton v. Railroad, 114 Mo.

— Eon. Samuel Davis, Judge. (1) Joint tenancies existed at common law in both real and personal property. Johnston v. Johnston, 173 Mo. 118. (2) Joint tenancies as to real property were abolished except as to husband and wife by the statute, unless expressly and specifically declared to be a joint tenancy by the conveyance or instrument creating it. R. S. 1899, sec. 4800; R. S. 1909, sec. 2878.

<p>Appeal from Jackson Circuit Court. — Hon. Herman Brwriback, Judge.</p>

<p>1. CARRIERS: Loading Stock: Time of Trains. Where a regular stock train was taken off by the carrier and an extra substituted without any time schedule, it was proper diligence in loading hogs for shipment by that train, to begin the loading when the time of arrival of the train was announced to the shipper by the carrier’s agent.</p> <p>2. -: -: -: Part of Shipment. Where a carrier is notified by a shipper that he intends to ship three carload's of hogs to the market, and provides cars therefor, and the carrier’s agent in charge of its train negligently delays moving the cars to the chute at the stock pens, and negligently takes the train out with only one of the cars- of stock, and the others have to remain in the pens .until next day, and by reason of the heat and confinement shrink in weight, the carrier is liable for the damage.</p> <p>3. -: -: -: Evidence. Under an allegation of diligence by the shipper and of negligence against the carrier, it was not error to allow evidence that it was neither proper nor usual to begin to load stock until the time the train would arrive was known; and that stock trains of defendant’s road never left the station with only a part of the shipment.</p>

<p>Appeal from Bates Circuit Court. — Eon. C. A. Denton, Judge.</p>

<p>REAL ESTATE AGENT: Purchase at Partition Sale: Bids: Public Policy. G. and his wife desired to invest in Kansas City property and engaged a real estate agent to look for a satisfactory purchase, the seller to pay the commission. Property was found, but it was ascertained that it was to be sold at partition sale where the seller could not pay commission. It was then agreed that the agent would not look for other purchasers of the property and that he would notify G. and his wife when and where the sale would take place and would attend the sale and assist them; it being agreed that G. and wife would pay the ordinary commission on sales of such property. The agent performed the service agreed and G. and wife purchased the . property at the sale. It was held that the agent could maintain an action for the commission. And that the agreement not to look for other purchasers at the sale was not fraudulent or void as against public policy.</p>

<p>Appeal from Boone Circuit Court, — Hon. N. D. Thurmond, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Eon James E. Slover, Judge.</p>

<p>1. APPELLATE PRACTICE: Instructions: Necessity of Objections. Where the defendant failed to object at the trial to any of the instructions given at the request of the plaintiff, the rule “that before one can legally except to the action of the court in giving or refusing instructions, he must first request the court to give the same or object thereto, as the case may be, before his exceptions will be availing,” applies not only to instructions involving constitutional questions, but is applicable to all given instructions. Hence, assignments of error by defendant relating to such instructions of plaintiff, are not before the appellate court.</p> <p>2. FIRE INSURANCE: Agency: General Distinguished from Special Agent. In the agency contract, defendant fire insurance company curtailed the authority of its agent to that of a mere solicitor of insurance who was only to be intrusted with the receipt of applications for insurance, and premiums therefor. The policy, on its face, however, contemplated that a sale of the property might be made while the insurance was in force. There were no provisions in the policy that the endorsement of the company must be made by any particular officer. In addition to taking the applications for policies, and collecting premiums, the agent countersigned all policies issued through his office and delivered them. Held, that the agency of defendant’s solicitor was general rather than special in view of the provisions of section 7995, R. S. 1899 (section 7047, R. S. 1909) that “foreign companies admitted to do business in this state shall make contracts of insurance only by lawfully constituted and resident agents, who shall countersign all policies so issued.”</p> <p>3. -: Statutes: Construction of Section 7047, R. S. 1909. One of the main purposes of section 7795, R. S. 1899 (section 7047, R. S. 1909) was to put a 'stop to the irritating and unjust practice indulged in by some insurers of adroitly phrasing their agency contracts in a way to bestow general powers upon their agents when such powers relate to the benefits flowing to the company, and to invest such agents with no power to represent the company when the benefits of the insured are involved.</p> <p>4. -: -: -: Under the provisions of section 7995, R. S. 1899, (section 7047, R. S. 1909) countersigning resident agents of foreign fire insurance companies are presumed to possess authority to make contracts of insurance for the principals, and defendant is estopped from disputing such authority.</p> <p>5. -: Increase of Insurance: No Forfeiture. Where additional fire insurance was taken out with the knowledge and consent of the local agent of the defendant, a foreign insurance company, and such additional insurance did not increase the total insurance beyond the limit fixed by the “rider” attached to the policy, the proposition that the increase of the insurance was in direct violation of the contract, and that the forfeiture of the policy was the penalty imposed, must be ruled against defendant.</p> <p>6. -: Alienation Clause: Sale in Course of Business. A sale in bulk of goods worth $400 out of a stock valued at $9000 was a sale made in the course of business from stocks of merchandise to which the alienation clause of a fire insurance policy was not intended to apply, because such a sale would not materially enhance the risk.</p>

<p>1. TAXBILLS: Sufficiency of Petition. A petition which pleads the taxhill in haec verha, in a case where the statute gives prima facie effect to such taxhills will he deemed sufficient if it alleges the making of the taxhill; the contents of such taxhills with the date thereof; the assignment; the filing of the same; and that the defendant owned the lot described and against which the lien' was sought to he enforced.</p> <p>2. -: Pleading: Special Defenses. Where the taxhill in question was signed only by the city clerk, and the petition alleges that it was so executed “by authority of the ordinance of said city,” the defendant can not show this matter in defense, by pleading the general issue, but must specially plead the facts constituting such defense in his answer.</p> <p>3. -: -: General Issue. An objection that the taxhill does not recite performance of some preliminary steps does not go to the sufficiency of the petition, but relates to matters of defense which might be tendered under the general issue.</p> <p>4. -: Signing: Ministerial Act. In the absence of statutory command, the council, by ordinance, may delegate authority to the city clerk to sign special taxhills for the signing of such documents is a purely ministerial act. .</p> <p>5. -: Right of National Bank to Purchase. Where the petition averred that plaintiff, a national bank, purchased the taxhill for a valuable consideration, .such an allegation, where nothing to the contrary appears, implies that the purchase was one that the hank had authority to make.</p> <p>6. -: -: Ultra Vires. Even had it appeared that the purchase of special taxhills by a national bank was an ultra vires act, the purchase would not be held void, hut only voidable, and as to the owners of the land was valid in any event. Its validity could not be assailed except in a direct proceeding prosecuted for that purpose by the government.</p>

<p>1. EVIDENCE: Admission of Vice-Principal: Res Gestae. The admission of defendant’s general passenger agent, in a subsequent conversation with plaintiff; that the company was always having trouble with their agent who committed the assault on plaintiff, was offered in proof. Hrld, that such evidence was incompetent under the rule that declarations of an agent in relation to a matter within the scope of his agency are admissible only when made at the time of the occurrence to which they relate.</p> <p>2. -: -: -: Semble. It seems that the rule ought to be that the statements of the vice-principal of a corporation ought to be admissible whether they be a part of the res gestae or not, as otherwise there would be two different rules governing the admission of evidence as to a given transaction in which the discrimination is in favor of the corporation and against the natural person.</p> <p>3. CARRIERS OF PASSENGERS: Assault: Instructions: Ejection from Office. In an action for damages for injuries caused by an assault on plaintiff by defendant’s telegraph operator in ejecting plaintiff from the office, an instruction that it is not necessary that plaintiff should have received a special invitation to enter into the private office for the purpose of transacting business, and the fact that plaintiff may have entered said office without any special invitation, would of itself give defendant no right to assault or forcibly eject the plaintiff. Held, erroneous.</p> <p>4. -: Invitation to Enter Telegraph Office: Right to Eject, A party who. wishes to send a telegram at the office of the railway company, at a 'station where he is changing cars from one branch of defendant’s railway to its main line, has no right to enter the office, where the defendant’s telegraph operator was engaged in performing the duties of his position, without an invitation to do so, and under certain circumstances the operator would have the right to eject a passenger or any other person from his private office, if they should remain against his will, provided he did not use unnecessary force.</p> <p>5. -: Instructions: Ejection from Telegraph Office: Omission of Defendant’s Evidence. An instruction is prejudicial that leaves out of consideration defendant’s evidence to the effect that plaintiff had been invited by the operator, while he was busy with his instrument, to leave, and that he would wait on plaintiff when he had time.</p> <p>6. AGENCY: Tortfeasor Employed by Two Principals. Where an operator, at the time of the assault in question, was engaged in manipulating his instrument in connection with the operation of the trains of the defendant, and was subject to be discharged at the will of the defendant, and where he was solicited by plaintiff to send a private message, the duties that the operator performed for the private telegraph company being merely incidental. Held, that the operator at the time was engaged in the performance of his duties as the agent of the defendant railroad company, and was not acting in the line of his duty a's the agent of the Western Union Telegraph Company.</p> <p>7. APPELLATE PRACTICE: Review of Evidence: Motion for Nonsuit, The rule that appellate courts have no authority to pass upon the weight or credibility of the evidence, prevents an appellate court from reviewing an action of the trial court in overruling defendant’s motion for a nonsuit, although; under the facts and circumstances of the case, the appellate court thinks that the plaintiff should not have prevailed, provided that the jury accepted plaintiff’s evidence as true, notwithstanding that the great preponderance of the evidence on the part of the defendant was otherwise.</p>

<p>Appeal from Jackson Circuit Court. — Hon. John Q. Parle, Judge.</p>

<p>1. RIGHT OF PRIVACY: Property: Injunction. The right of privacy is a legal right of property, the principle of which has been ever recognized and it is entitled to protection at the hand of the courts. Its invasion may be restrained in equity by injunction.</p> <p>2. -: Action at Law: Damages: Pleading. General damages may be recovered in an action at law for a violation of the right of privacy, without an allegation of special damage. 'And if malice be shown, exemplary damages may be had.</p> <p>3. ---: -: Picture: Advertisement. If one published the picture of another without his consent, it is an invasion of his right of privacy and a violation of his right of property, which may be restrained by injunction, or redressed in damages, both general and special.</p> <p>4. -: Enjoyment of Life: Seclusion. The right of privacy includes the right to enjoy life and pursue happiness, subject only to the rights of others. A person may therefore adopt a life of seclusion with a right to remain undisturbed if he so desires.</p> <p>5. -: Waiver of Right: Public Character: Society. Though ene has the right of privacy in his picture as a right of property, he may waive the right by becoming a public character, or by conduct exciting public interest. And such right does not subvert those rights in others which spring from social and business conditions, whereby they may freely speak of and refer to every other person in the social organization, so long as it is not slander.</p> <p>6. -: Picture: Libel: Advertisement. Where persons in business published a child’s picture connected with the following words as an advertisement, viz: “Papa is going to buy mamma an Elgin watch for a present, and some one (I mustn’t tell who) is going to buy my big sister a diamond ring. So don’t you think you ought to buy me something? The payments are so easy, you’ll never miss the money, if you get it of Harris-Goar Co., 1207 Grand Ave., Kansas City Mo. Gifts for Everybody, Everywhere in their Free Catalogue.” It was held to be a libel on the child for which general and exemplary damages could be recovered.</p> <p>7. -: Infant: Tender Years: Trespass. An infant of tender years, though doli ineapaw, may be liable for compensatory damages for trespass, as malice is not necessary to that action. Put punitive damages cannot be recovered in such a case.</p> <p>8. INFANT: Tender Years: Libel. An infant of tender years, too young to be capable of malice or evil intent, cannot be guilty of libel or slander. And the law will adopt the age fixed by the common law for responsibility for crime and it is held that an infant under seven years of age cannot be guilty of libel or slander, since he is doli ineapaw.</p> <p>9. -: Libel. Notwithstanding an infant is doli ineapaw and incapable of libel or slander, yet he may be libelled or slanderedj since the two conditions,_are not correlative.</p> <p>10. -: Tender Years: Ridicule. An infant five 'years of age may be libelled by publication of his picture in connection with words purporting to have been uttered by him which would render him liable to the contempt and ridicule of his fellows.</p>

<p>1. ATTACHMENT: Judgments: Order of Publication. Where, the order of publication against the defendant does not give his Christian name, the justive acquires no jurisdiction to render a judgment sustaining the attachment.</p> <p>2. APPELLATE PRACTICE: Garnishments: Defense of Void Judgment. Where, after such a judgment against a non-resident defendant, a further judgment is rendered by default against a garnishee which failed to appear after plaintiff’s denial of its answer to plaintiff’s interrogatories, the garnishee is not estopped from setting up the fact on appeal that the judgment rendered against it is void.</p>

<p>1. EXECUTORS AND ADMINISTRATORS: Appellate Practice: Validity of Probate Court’s Judgments. The administratrices objected, in -the probate court to the allowance of an order to pay a demand previously allowed by tbe court, and assigned to the sixth class, the only ground of their objection being “that said demand has already been paid in full.” From a verdict in favor of the estate, the claimant appealed to the circuit court, where the court, without the aid of a jury, rendered judgment in claimant’s favor, and ordered the probate court to direct the administracices to pay claimant out of the assets so much of his claim as it may be entitled to under the law. Held, on appeal from this judgment, that the objections to the validity of the judgment of the probate court, allowing and classifying the demand, are not within the scope of the .present proceeding.</p> <p>2. -: -. Where the administratrices failed to prosecute an appeal from the judgment of the probate court, allowing and classifying a demand, the validity of that judgment can not be questioned in the circuit court on an appeal from the verdict of a jury in the probate court where the only isssue tendered by the administracices was payment.</p> <p>3. -: Judgment: Erroneous Recital. Although the judgment of the circuit court erroneously recited that the demand was assigned by the probate court to the fifth (instead of the sixth) class, where such a judgment does not purport to change the classification, the error should be disregarded a's a mere inadvertence.</p>

A. F. Smith, Special Judge. (1) This suit of plaintiff Bucklew against defendant Pyron to recover on the counts of the amended petition from No. 2 to No. 9, inclusive, based on the $500 notes, is an attempt to recover something for nothing. Those notes are wholly without consideration and are therefore void. There is no better defense in the law than failure of consideration.

<p>Appeal from Jackson Circuit Court — No». W. O. Thomas, Judge.</p>

<p>Appeal from- Jackson Circuit Court. — lion. John Q. Park, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon Walter A. Powell, Judge.</p>

— Son. W. O. • Thomas, Judge. (1) Parties to a contract of insurance are free to insert in it whatever condition they please, providing there he nothing in them contrary to the law or public policy. 2 Bacon on Benefit Societies, sec. 352, p. 880; Kennedy v. Grand Fraternity, 36 Mont. 328.

<p>1. DEEDS OF TRUST: Sale: Purchase by Trustee or Cestue qua Trust. Where a deed conveyed the legal title of land to plaintiff as trustee, and vested the beneficial estate in her and her three children as tenants in common, and where 'subsequently one of the sons purchased his brother’s interest, and plaintiff purchased the interest of the other son, the result of these transaction's left the legal title to the land vested in plaintifl with the entire equitable estate vested in plaintiff and her son as tenants in common, since one cestui que trust may convey his interest to another, and since, while the law always looks with suspicion on a purchase by a trustee of a beneficial interest in the property, such a transaction will he sustained where there is no suggestion of fraud, and no complaint was ever made by the vendor.</p> <p>2. -: Proceeds. Where a trustee who was also tenant in common of the beneficiary estate, with her son, sold the farm, which was the subject of the trust, the entire proceeds being received and retained by the son, who used his mother’s share of the money as her agent with her knowledge and consent for her benefit, the radical changes wrought by these transactions were the exchange of places as trustee; the change of the subject of the trust from the farm to the money of the mother; and the fact that the trust was no longer evidenced and controlled by the original deed under which the farm was conveyed in trust to the mother, but was to be controlled by the terms of the oral agreement between mother and son at the time the son, as trustee, received the fund.</p> <p>3. -: Parole Trust of Personalty: Parole Proof. Although there is no direct evidence of a trust agreement, where the circumstances tending to show the existence of a trust are definite and certain, respecting the subject matter, parties, and purpose, and are clear and convincing to the mind of the court, a parole trust of personal property may be created, and its existence proved by parole testimony.</p> <p>4. Pleadings: Proof: Variance. There is substantial conformity between allegation and proof where the averment that the farm “was sold by said ’son acting for himself and plaintiff,” and that he retained the entire proceeds of sale, is shown by the evidence to be literally true, although plaintiff was the trustee, and theoretically made the sale by a deed in consummation of the transaction conducted by her son as her agent for their common benefit.</p> <p>5. -: -. In an action by the mother to enforce a parole trust of personalty arising from the proceeds of the sale of the land which she had held as trustee, and the beneficial estate of which had been vested in herself and son, as tenants in common, an averment that plaintiff and her son were joint owners and tenants in common of the land, correctly stated their relationship to each other and the extent of their respective interests in the proceeds of the land.</p> <p>6. -: Beneficiary: Estate of Trustee. Where the son received the proceeds from the sale of land through the medium of the active co-operation of the mother, who was trustee of the land, and in a manner to show that plaintiff, the mother, as trustee, was disposing of the proceeds in the way prescribed by the trust, and was paying to the son his beneficial part, and, in addition, making him the custodian and trustee of her own part, plaintiff can maintian an action in her individual capacity as beneficiary of the trust fund against the estate of the trustee.</p> <p>7. DEEDS OF TRUST: Statute of Limitations: Continuing Trust. Where the evidence clearly shows that a continuing parole trust was created, neither laches nor limitations would begin to run against it until the death of one of the parties; or until there was a demand for the fund by the cestui que trust and a repudiation by the trustee.</p>

<p>1. STATUTORY CONSTRUCTION: Attorney’s Lien: Assistant Attorney: Lien: Principal Attorney. If the principal attorney in a case, on his own account and not as agent of his client, employs an assistant attorney, agreeing to pay him a portion of his contingent fee, the assistant attorney is not entitled to a lien for his services on either the client’s or the principal attorney’s part of the sum recovered. But if such assistant is employed hy the principal attorney hy authority of the client, he is entitled to a lien on the client’s portion of the sum’ recovered.</p> <p>2. -: -: Equitable Assignment: Legal Remedy. If an assistant attorney is employed by the principal attorney he has his action at law for his fee against the principal attorney and is not entitled to an equitable assignment of the principal attorney’s fee to secure what the latter agreed to pay him.</p>