Volume 154 — Missouri Appeal Reports

<p>CRIMES AND PUNISHMENTS: Criminal Practice: Witnesses: Incompetency of Co-defendant. Under section 5241, Revised Statutes 1909, providing that when two or more are jointly prosecuted, the court -may at any time before defendants have gone into their defense direct any defendant to be discharged, that he may be a witness for the state, one co-defendant may not testify for the state against the other, unless he is first discharged by a nolle prosequi or judgment of acquittal; so that one jointly charged with accused and who had not been her- • self discharged.was not competent to testify for the state at the instance of the state’s attorney, under the guise of taking the stand to testify for herself.</p>

<p>1. DIVORCE: Grounds: Indignities. To justify the granting of a divorce on the ground of indignities, the indignities should be sufficient to constitute a species of cruelty, at least to the mind.</p> <p>2. -: -: -. Unmerited contemptous conduct by one spouse towards another, or injury accompanied with insult, are sufficient indignities to warrant a divorce.</p> <p>3. -: -: -: Sufficiency of Evidence. The marriage contract is not to be dissevered upon slight differences which may exist between the parties, and it is the theory of the law that one spouse will not complain of minor idiosyncrasies incident to the peculiar mental attributes or nervous temperament of the other; so that, in an action by a wife for divorce, where the proof showed plaintiff was of a highly nervous disposition and defendant a quiet, morose, uncommunicative man who enjoyed his own society and the quiet of home above the society of others, evidence that defendant was jealous of plaintiff without cause, was sour and uncommunicative at times, objected to plaintiffs having company, was sullen and disagreeable when company was in the house, and both objected to plaintiff's going out and omitted to take her out often was insufficient to warrant a decree of divorce on the ground of intolerable indignities, although plaintiff testified she was suffering from a nervous complaint and opined it was caused by defendant’s conduct.</p> <p>4. -: -: -: Non-Support. Mere non-support is not a statutory ground for divorce, and is not an intolerable indignity on the part of the husband towards his wife, when she has ample means to support herself.</p>

Louis City Circuit Court: — Eon. Matt ■ G. Reynolds, Judge.. (1) (a) Plaintiff was not the procuring cause of the sale made October 29, 1908, and is, therefore, not entitled to a commission thereon. Ramsey y. West, 31 Mo. App. 676; Mead y. Arnold, 131 Mo. App. 222; Russell v. Poor, 119' S. W. 433; Doneldson v. Houck, 213 Mo. 417, 441; Gerhart y. Real Estate Co., 129 S. Tf. 419. (b) The fact-that defendant became acquainted with Geo.

Louis City Circuit Court. — No».' J. Hugo Grimm, Judge. (1) The court erred in refusing defendant’s peremptory instruction, offered at the close of the whole case. Smart v. Kansas City, 91 Mo. App. 586; Warner v. Railroad,' 178 Mo. 125.

Louis City Circuit Court. — Eon. Eugo Muench, Judge. (1) Defendant’s motion for a continuance on the ground that the case was not at issue should have been sustained. The court’s ruling on this motion was an abuse of judicial discretion. Laun vi Ponath, 105 Mo. App. 206. (2) Defendant was entitled to three days in which to demur to plaintiff’s reply. Sec. 607, R. S. 1899. (3) The demurrer to the evidence should have been sustained on two grounds: First.

Louis City Circuit Court . — Eon. W. M. Kinsey, Judge. (1) An original contractor is one wlio lias a contract witli the owner for the erection of the improvement. There is no evidence that defendant J. E. Greffet was a contractor for the erection of the building in question. Mfg. Co. v. Gapen, 22 Mo. App. 397; TIengstenberg v. Hoyt, 109 Mo. App. 622; Lumber Co. v. Knights of Pythias, 157 Mo. 366.

<p>Appeal from St. Louis Circuit Court. — ücw. J. Hugo Grimm, Judge.</p> <p>(1) The court erred in permitting Dr. WMttley, over defendant’s objection, to give Ms opinion that plaintiff was, at the time of tlie trial, suffering bodily pain, due to tbe injury, and that sbe would, in .the future, be reasonably certain to suffer pain, without requiring a statment of the evidence, either in the hypothetical question or by the doctor himself, upon which his opinion was based. Baehr v. Casualty Co., 133 Mo. App. 541; Reed v. Ins. Co., 58 Mo. 421; 2 Jones on Evidence, sec. 377. (2) The court erred in permitting Dr. Whittley, over objection, to state that in his opinion the present condition of plaintiff’s womb would cause her nervous system and eyesight to be impaired. Glasgow v. Railroad, 191 Mo. 347; Baehr v. Casualty Co., 133 Mo. App. 542; Sutter v. Kansas City, 138 Mo. App. 105. (3) The court erred in permitting Dr. Whittley, over objection, to testify that in his opinion plaintiff would, in the future suffer pain because of the injury to her womb, in the absence of any allegation that she would in the future, suffer pain on account of the injuries to her womb. Brown v. RaiLroad, 99' Mo. 310; Moore v. Transit Co., 126 S. W. 1013.- (4) The court erred in permitting plaintiff’s husband to testify that plaintiff had sent him to Dr. Whittley for medicine and that he had gotten medicines from Dr; Whittley and on prescriptions which he gave plaintiff. Gardner v. Railroad, 124 Mo. App. 461. (5) The .court erred in permitting Dr. Hays, over objection, to testify that in his opinion plaintiff will, in the future, suffer pain. Sutter v. Railroad, 138 Mo. 105; Baehr v. Casualty Co., 133 Mo. App. 531. (6) The court erred in refusing defendant’s second, third, fourth and seventh instructions. Jackson v. Railroad, 118 Mo. 199; Murphy v. Railroad, 125 Mo. App. 269. (7) Plaintiff’s fourth instruction erroneously authorizes an award of damages for future mental and physical pain, without evidence that plaintiff would suffer such 'damage. Slaughter v. Railroad, 116 Mo. 269.</p> <p>(1) Any movement of a street car after a signal to stop has been given and prior to an expiration of a reasonable time to the passenger in which to alight, is negligence. Millar v. Transit Co., 215 Mo. 619 ; West Chicago, etc., Co. v. Manning, 170 111. 417. (2) The fact that a city ordinance provides that street cars stopping at street intersections shall stop at the further cross-walk, does not relieve those in charge of a car stopping at the nearer cross-walk from using reasonable care to see that persons attempting to get on or off will not be endangered by starting the car. West Chicago, etc., Co. v. Manning, 170 111. 417. (3) The court did not err in refusing defendant’s second instruction because: (a) The petition alleges: “That when the conductor knew or by the exercise of ordinary care might have known that plaintiff was then and there in the, act of alighting from said car and had not fully alighted therefrom the said defendant negligently . . . caused said car to start forward with a sudden and unusual jerk and thereby negligently caused,” etc. (b) The evidence showed the conductor “knew,” etc., therefore the defendant was liable no matter where the injury occurred, (c) The petition alleged and the evidence showed the conductor stopped at a place “at that time recognized and habitually used by the defendant for discharging passengers from its northbound Jefferson Avenue Cars,” therefore the conductor might by the exercise of ordinary care have known, etc., therefore defendant is liable no matter where the injury occurred, (d) The petition alleged and the evidence showed that the car stopped just after plaintiff’s signal, etc., therefore defendant was liable. Millar v. Transit Co., 215' Mo. 619'. (4) Physical pain and mental anguish usually, and to some extent, necessarily flow from, or attend, bodily injuries. It is not necessary to make specific proof of pain and mental anguish. These elements of damage are sufficiently shown by the evidence which discloses the nature, character and extent of the injuries. Prom such evidence, the jury may infer pain and mental anguish. Railroad v. Warner, 108 111. 538; 18 Am. and Eng. Railroad Cases, 100; Railroad v. Curry, 64 Tex. 85; Brown v. Railroad, 99 Mo. 318. (5) Dr. Hayes and Dr. Whittley did not testify to any conclusion, but to their opinions, based upon the objective symptoms they discovered when they examined plaintiff. All questions asked plaintiff’s expert witnesses with reference to present and future pain were based on the opinion of the Supreme Court in McCaffery v. Railroad, 192 Mo. 160. (6) The giving of erroneous instructions is not reversible error unless the defendant objected and saved its exceptions to the giving of such instructions at the time. Barnes v. Lead Co., 107 Mo. App. 613; State v. Reed, 89 Mo. 171; Randolph v. Al-say, 8 Mo. 657;'Ritzenger v. Hart, 43 Mo. App. 185; State v: Rarnbo, 95 Mo. 466; Harrison v. Bartlett, 51 Mo. 170; Griffith v. Hanks, 91 Mo. 116.</p> <p>Statement. — This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff while attempting to alight from one of defendant’s cars upon which she was a passenger. After formal averments and matters of inducement, plaintiff charges in her amended petition, upon which the case was tried, that on the day named she boarded a northbound Jefferson avenue car of the defendant, for the purpose of being transported as a passenger, paying her fare, and while being transported as a passenger northwardly, along and over Jefferson, avenue in the city of St. Louis, and when the car was at or near the intersection of Olive street and Jefferson avenue, the conductor in charge of the car notified plaintiff that the car was then about to stop at the intersection of those streets for passengers to alight therefrom; that thereupon defendant stopped the car for the purpose of allowing passengers to alight therefrom and plaintiff proceeded to alight as quickly as she reasonably could, but when the defendant, by its conductor, knew or by the exercise of ordinary care might have known that plaintiff was then and there in the act of alighting from the car and had not fully alighted therefrom, defendant negligently and carelessly caused the ear to move forward with a sudden and unusual jerk and thereby negligently caused plaintiff to be precipitated from the rear step of the car upon the ground .or pavement and to be injured, describing the injuries as injuries to the bones, muscles, tendons, nerves, membranes and skin in and about the hip joint and thigh, the left arm cut, etc., plaintiff’s nervous system greatly and permanently shocked and debilitated and plaintiff so badly injured by the shock to her nervous system and injured in and about her womb- that by reason thereof, being then pregnant,. she was caused to suffer a miscarriage. Plaintiff further charg’es that by reason of the injures she has suffered, is still suffering and will continue to suffer during the rest of her. life, great bodily pain and mental anguish, great pain and numbness of her left hip and thigh, from an impairment of the sense of sight, from a partial loss of the sense of touch, from vertigo and dizziness, from melancholia, from an impairment of the sense of hearing and from traumatic neurasthenia. Damages in the sum of five thousand dollars, with costs of the action, were prayed.</p> <p>The answer admits the ownership and operation of the car by defendant, upon which, it is alleged in this petition, that plaintiff was a passenger, and denies each and every other allegation in the petition.</p> <p>At the trial before the court and jury, plaintiff, a young married woman, twenty-three years of age, testified substantially, that on the day named she boarded a north-bound Jefferson avenue car at -Park avenue, in the city of St. Louis, intending- to transfer to an east-bound Olive street car at Jefferson avenue and Olive street, her destination being Ninth and Olive streets. She took her seat about the center of the- car, paid her fare and obtained a transfer check for a passage on the Olive street line. When the car was somewhere in the block between Pine and Olive streets, the conductor announced Olive street as the next stop. Immediately upon this announcement, she rang the signal bell to advise the conductor of her desire to alight at Olive street. A few minutes after she rang the bell, the car was stopped, after which she arose from her seat and proceeded with reasonable haste to the rear platform to alight. As she passed out of the rear door onto the platform, she saw the conductor standing on the platform, facing her, but doing nothing. She stepped down onto the step of the platform to alight and while standing with one foot on the step and the other ready to step on to the pavement, the car was started forward with a jerk, throwing her to the pavement and injuring her in her left side, hip> shoulder and arm. When she got up, her hip was hurting her, her arm was bruised and her finger bleeding. Her hip has continued to pain her since the injury. She suffered an injury to the womb and on the following Monday she suffered a miscarriage. After she got up from her fall, she went into the office of a physician at the corner of the streets named, cleaned the dirt from her clothes and washed the blood from her hand; stayed in the doctor’s office a short time, then went to meet her aunt, according to appointment and together they went to a matinee at a theater near Ninth and Olive streets. After the matinee was over she returned to her home and went to bed. That night she suffered pains in her hip, back and stomach; stayed in bed the two following days, and on Sunday morning, the third day, being afflicted with an internal discharge, she sent for the physician who had first attended her. He made an examination and returned Monday -with another physician and performed an abortion upon her in order to relieve her. Neither this physician nor his associate ever returned to examine her or treat her after performing this opperation, nor did any other physician attend her while she was confined at this time. She took medicine brought to her by her husband from the physician during the remainder of the time she and her husband continued to live in Madison, Illinois, where they resided at the time of her trip to St. Louis. She remained in bed about ten days after the surgical operation and was then able to get up and around. In about three weeks after the accident, she and her husband moved over to the Missouri side of the river to live and since then she has had the same physician who first attended her, as her regular physician. As a result of the injury her sight was affected so that she had to use glasses again. Prior to her injury she had suffered from weak eyes and nearsightedness but had not. used glasses for some time; is now more nervous than formerly; does not sleep well; has headaches and sutlers from dizziness at times. Prior to her injury she had good health; since than she has recovered much of her former strength but is not well. As a result of her injury she has suffered much mental pain. Neither she nor her husband had known the physician who first attended her prior to the accident.</p> <p>We take the foregoing synopsis of plaintiff’s testimony from the statement submitted by counsel for appellant, who add that plaintiff did not testify as to where the car was stopped at Olive street, nor that the place where the car was stopped was one where passengers were accustomed to alight, nor that the car was started on the signal of the conductor,- or by the motorman without a signal, or as to which side of the street she was on when she fell, or where she lay after her fall.</p> <p>The physician referred to testified that his office • had been at the northeast corner of Jefferson avenue and Olive street for two years prior to the date of the accident; saw plaintiff, who was a stranger to him at the time, fall from a north-bound Jefferson avenue car on to the street; at the time of the 'accident was returning to his office, which was upstairs in the building, when his attention was drawn to plaintiff by her falling - from the steps of the rear platform of a moving northbound Jefferson avenue car. She was partially on the steps when hxs attention was drawn to her, and fell straight out from the body of the car, landing “in a heap” on the street, about midway between the south rail of the east-bound track and the south curbstone of Olive street, and about eight or ten feet from the car, perhaps a little nearer the track than the curb, and about thirty feet from where he- was standing. The place where she lay after the fall was indicated by the doctor by a erossmark on a photograph used by defendant at the triál and reproduced in the abstract. The physician testified that he knew nothing about the motion of the car before his attention was attracted by plaintiff falling from the step. He testified that passengers frequently got off of north-bound Jefferson avenue cars when they would stop south of Olive street because of obstructions in Olive street but that the regular place for the discharge of passengers was' on the north side of Olive street. Plaintiff was picked up by some men and taken on to the sidewalk at the southeast corner of the street. The doctor went over to ascertain if she was hurt and to render any assistance she might need that he could give. At his request they went into his office where he dressed her arm and finger, which were bleeding; made no further examination of her injuries then. She stayed in his office thirty or forty minutes and went away. This accident happened on Friday. The following Sunday the doctor was called and went over to Illinois to see the plaintiff, lie examined her and found her suffering; described her injuries and condition. Prescribed for her and on Monday following went back to see her and with the assistance of another physician operated on her, removing the fetus, which proved to be dead. Described her condition and symptoms that rendered the operation necessary. Left instructions that her husband was to report her condition to him every day.but did not go back to see how plaintiff progressed, after the operation, while she lived in Illinois. Next saw plaintiff when she removed to St. Louis. Prescribed for her and examined her from time to time to ascertain her condition. Found a hypertrophied, enlarged uterus and also falling of the womb. That is her present con-’ dition.</p> <p>This physician having testified substantially as above, he was asked to state, whether or not in his judgment, basing his opinion upon the objective symptoms that he discovered at the various times that he examined Mrs. Monroe, “she is now suffering any bodily pain due to the injury that you saw when you first examined her.” This was objected to by counsel for defendant, “becausé we do not know what evidences of injury, or symptoms he may have seen there at all. We only know what he has said. I do not think the doctor can base an opinion upon things that the jury do not know. He may have seen things there that the jury don’t'know anything about, and therefore his opinion is based upon matters which are not in evidence. I think the symptoms, or the injuries should be detailed in the question as the basis of the answer. ’ ’ The objection was overruled and defendant excepted. Witness answered that plaintiff “seems to be suffering. She is suffering more at this time than she was when I first examined her, and it seems that that condition, as far as her nervous condition, as the traumatic neurasthenia, it is worse. She is very nervous.” Counsel for defendant moved to strike out the answer, on the ground that the opinion and the answer are based upon matters and things which are not in evidence. The motion was overruled, defendant excepting. The witness further testified that he had examined the plaintiff about eight or ten days before the trial; that she. certainly was then suffering pain. This witness was further asked, after he had testified that he had ' been officing in the neighborhood for about two years, to state what the custom was with reference to cars pulling up at that crossing; if he knew, to state what he saw them do. On this being objected to, the court held that plaintiff might show, if she could, not only what was the customary and ordinary place for discharging north-bound passengers on Olive street, but whether also as a matter of fact it was customary to discharge them on the south side of the street. This was objected and excepted to by defendant and the question being repeated as to what witness saw the cars do on the south side of the street from time to time during the two years, he answered that, “Lots of times they wouldn’t stop at all. They would go right through and stop on the opposite side. And some.times if there was a car passing they would stop until the car got by;” when a car stopped on the south side of the street, he had seen some passengers get off and some of them would stay there until they got across the street and then get off; had seen passengers let off from the north-bound Jefferson cars on the south side of Olive street a number of times, frequently, prior .to October 9, 1907, and since that time; by frequently, he stated, that he meant, “sometimes every day” if he happened to look but could not say ex-actly; passengers would get off at either end of the car.</p> <p>On redirect examination this physician was asked to state, basing his opinion upon the symptoms that he saw and upon the conditions that he saw of Mrs. Monroe’s womb, when he examined her, whether in his opinion and judgment she was reasonably certain to suffer pain in the future. This was objected to, objection overruled, defendant excepting, and the witness answered that the condition she is in, in his opinion, will remain as long as she lives unless she is’ operated on and unless the ligaments that are supporting the uterus are taken up and shortened; that pain will continue, in his judgment, until that operation is performed; would not state 'that the operation would relieve her entirely from pain but it would better conditions. He was then asked whether in his opinion plaintiff is reasonably certain to suffer some pain as long as she lives from that condition. There was no objection to this and he answered it in the affirmative.</p> <p>The physician who accompanied the one above referred to when the operation was performed on the plaintiff, testified to that operation and its necessity and as to what he observed about the plaintiff, and, as shown in the additional abstract furnished by counsel for plaintiff, its correctness not contested, he was asked whether or not in his judgment, basing his opinion on the objective symptoms he saw when he examined her, she will in the future suffer from nervousness. This was objected to as invading the province of the jury, and the witness answered that in his opinion she would suffer in the future from nervous trouble. Without giving the testimony of this witness in detail, it is sufficient to say that he testified practically as had the other physician concerning plaintiff’s condition.</p> <p>'The husband of plaintiff was asked whether his wife had sent him to the doctor when she was sick on the first occasion. This was objected to on the ground that witness was the husband of nlaintiff. The court asked if counsel for plaintiff was not bringing the case within the exception of the statute; that.the purpose seemed to be to establish an agency, which would, of course, make it competent. The objection was overruled and exception saved and the witness testified that his wife had sent him to the physician at various times to procure medicine for her and to inform the doctor of her condition that he might prescribe for her.</p> <p>A witness on behalf of plaintiff testified to the effect that at the time of the accident he was doorman for a dental parlor at the southeast corner of Jefferson avenue and Olive street; that the duties of his calling required him to stand on the street at-the entrance of the dental office and hand out cards to passers-by, advertising the business of his employer. At the time the car on which plaintiff was a passenger came up to Olive street, the witness testified, he was standing with his back against a large telephone pole on the southeast corner of the street; that he saw the car come to a stop with plaintiff on.the step of the rear platform; that while she was in this position, the conductor standing on the rear platform gave the signal for the car to start. The car was started off with a jerk, at a speed of eighteen miles per hour, throwing' plaintiff to the street. After her fall plaintiff lay in the street about midway between the south curb of Olive1 street and the south rail of the east-bound track of the Olive street line, that is to say, the south rail of the south track.</p> <p>A lady, testifying as .a witness for plaintiff, said she was on the car with plaintiff but not acquainted with her; sat two or three seats behind plaintiff; when the car was about at Olive street and while it was in motion, plaintiff passed down the aisle by her and on to the rear platform, she following close behind her. Plaintiff got down on the step after the car had stopped, to alight and the witness was right behind her also waiting an opportunity to step off on the south side of Olive street. While they were in this position the car was started with a jerk, on a signal by the con- - ductor, throwing plaintiff into the street. The conductor was standing on the rear platform as she and plaintiff came, out to get off. Plaintiff fell between the south curb and the south rail of the east-bound track. Witness stayed on the car until it reached the north side of Olive street when she alighted and took a west-bound Olive car to her destination.</p> <p>Another lady, the aunt of plaintiff, met plaintiff at Ninth and Olive streets on the day of the accident and accompanied her to the theater; did not see the accident; noticed that plaintiff was excited and nervous. They returned home after the matinee and plaintiff went to bed; saw the doctor who came to visit plaintiff on the following Monday. Before the accident plaintiff was as well as any one; since then she has not seemed as strong as before.</p> <p>This is substantially the testimony for the plaintiff in chief, practically, except as above noted, as set out by the counsel for the defendant in their statement of the facts.</p> <p>It appears that during the examination of one of the witnesses and after counsel for defendant had made an objection which the court overruled and to which action counsel for defendant excepted, that that counsel asked the court if exceptions are saved as a matter of course, to which the court, answered, “Yes.” Whereupon this occurred:</p> <p>“Mr. Safford: I do not like to suggest to the court, but I would like to know when exceptions are saved.</p> <p>The Court: The court will adopt its own rules.</p> <p>Mr. Safford: I except to that ruling of the court.</p> <p>The 'Court: Of course that will not prevent you ' saving an exception every time there is an. adverse ruling, if you desire, but it will save the other side the necessity of formally saving exceptions.</p> <p>Mr. Safford: Under the ruling of the Supreme Court I want to save my record.</p> <p>The Court: It has been a rule of this court since I have been on the bench — I don’t know how it was with my predecessor — that when an objection is made and passed on that the person who is adversely affected thereby need not get up and save an exception; it will be understood that he excepts and he may so state in his bill of exceptions.</p> <p>Mr. Safford: I have had objections made to the fact that I did not save them when that rule was in effect, and advantage taken of it by other counsel, and for that reason I want to make my objections, and save my exceptions, but for no other reason. I do not want this court to think that I want to interfere' with its ruling.”</p> <p>The defendant thereupon introduced' evidence of the motorman, conductor and passengers on the car, and bystanders, tending to put an entirely different light on the occurrence. We will not set it out but assume that it contradicts all that offered in behalf of plaintiff as to the facts connected with the happening of the accident, not however going into the matter covered by the two physicians as to plaintiff’s condition and the treatment she underwent by them or as to the character or extent and effect of her injuries; as to this there was no countervailing testimony.</p> <p>As our attention is especially called to the testimony of a witness for defendant, who was one of its employees, we summarize it. lie testified to the measurements of the street and the car tracks and the distance between the car tracks and between the curb and the car tracks. After testifying to these facts, plaintiff, on cross-examination, brought out the fact that the business this witness was engaged in for de fendant was assembling the witnesses for defendant in suits which might then be pending against defendant, in a room in a building across the street from the court house; that he kept them there in readiness to send them into the several court rooms when the cases in which they were witnesses were to be tried, or, if the case did not come to trial, to excuse them. After counsel for plaintiff had spent quite a while in bringing out these facts, on cross-examination, counsel for defendant objected to the line of examination, saying that he could not see what purpose counsel for plaintiff had. The court remarked that it did not see what light counsel for plaintiff was throwing on this case, whereupon counsel for plaintiff stated that, he was coming around to some matters, whereupon- the court suggested that instead of coming around to it he “get at it.” Counsel for plaintiff then continued his line of examination of the witness as before, bringing out testimony to the effect that when he received subpoenaes for witnesses, he inclosed with the subpoenaes a card, requesting the persons to whom they were given to kindly call at the office of the United Railways Company of St. Louis, designating the room referred to; that in the cases on trial, the court subpoenas were wrapped up with a card to the above effect. This line of cross-examination was followed at great length, tending to show the manner in which this witness assembled the witnesses for the defense in the several cases to which it was a party; that this agent in many instances went over .the testimony with the witnesses and if they had testified before, reading that to them; if they had made statements, reading those statements to them; that often the attorneys of the defendant came to this room where the witnesses were assembled to talk over the cases with the witnesses. Nothing else was brought out on cross-examination of this witness.</p> <p>At the conclusion of all the testimony, defendant again interposed a demurrer, which was overruled, and asked a peremptory instruction for a verdict in its favor which was refused, defendant duly saving exceptions. Defendant then asked four instructions, which the court refused to give and to which refusal defendant duly excepted. These instructions are numbered, respectively, 2, 3, 4, and 7 and marked as defendant’s refused instructions.</p> <p>Instruction No. 2 told the jury that if they believed from the evidence that the usual and customary place for passengers to alight from, and get on, a north-bounci Jefferson avenue car at Olive and Jefferson, was the northeast.corner of Olive and Jefferson, and that the plaintiff attempted to get off the car before it had reached that point and before it had stopped at said point for passengers to leave or to enter, then she is not entitled to recover and your verdict should be for the defendant.</p> <p>Instruction No. 3 told the jury that if they found and believed from the evidence that when plaintiff fell or was thrown to the ground she lay at some point south of the usual stopping place of the north-bound car, as defined in another instruction, and at a point south of the point at which the car stopped for passengers to alight, then she is not entitled to recover.</p> <p>The fourth instruction told the jury that the defendant is not required to look for passengers getting off of its cars, except at places fixed by the rules of the company and the ordinances of the city and other places where passengers are in the habit of getting off of cars while they are stopped, and unless the jury believed from the evidence in the case that defendant’s car was stopped at the time plaintiff alighted therefrom, and that passengers were in the habit of getting off of the car while it was so stopped at said place, then plaintiff is not entitled to recover.</p> <p>Instruction No. 7 told the jury that the plaintiff charges in her petition that the defendant stopped its car while she was a passenger thereon, for the purpose of allowing its passengers to alight therefrom, and unless you believe and find from the evidence in this case that the alleged stop of the car mentioned in the evidence was made for the purpose of allowing passengers to alight therefrom, then the plaintiff is not entitled to recover in this case.</p> <p>At the instance of the plaintiff, the court gave four instructions.</p> <p>No objection appears by the abstract to have been made by the defendant to the instructions prior to their being given, so that for reasons hereinafter stated we do not consider it necessary to set- them out. After they were given the abstract shows that the defendant then- and there excepted to the action and ruling of the court in giving said instructions and each of them.</p> <p>At the instance of the defendant the court gave the jury instructions Nos. 5, 6, 7, 8 and 9, and of its own motion instruction No. 10, the last being as to the number of jurors necessary to concur in a verdict. The defendant’s instruction No. 5 told the jury that if they believed from the evidence that the car was in motion at the time plaintiff attempted to alight therefrom, then she is not entitled to recover in the case.</p> <p>The sixth instruction told the jury that ■ although they mig'ht believe from the evidence that defendant’s car was stopped while plaintiff was attempting to alight therefrom and that it was set in motion while she was in the act of alighting, if they further believe that such stop of the car was not made for the purpose of permitting the passengers to alight or that the stop was not made where the defendant was in the habit of stopping its cars, or that passengers were not • in the habit of getting off the car while it was stopped at that place, she is not entitled to recover.</p> <p>The seventh instruction told the jury that the mere fact that the defendant’s car was stopped after plaintiff had signaled to the conductor her desire to alight at Olive street, was not an invitation by defendant for her to alight, unless the place at which the stop of the car was made was a place where passen- ' gers were in the habit of alighting from north-bound cars, and if the jury believe from the evidence that the car stopped at Olive street and at any other place than the north side thereof, then plaintiff is not entitled to recover in this case unless the jury further find from the evidence that the place where the stop was made was a place where passengers were in the habit of alighting from defendant’s cars unless the defendant’s conductor saw plaintiff’s attempt to alight from the car while it was so stopped at such place.</p> <p>The eighth instruction told the jury that the plaintiff in the case must be found to have had knowledge of the ordinance read in evidence (referring to sections of the city ordinance which had been read in evidence by plaintiff’s counsel) which required defendant to bring- its north-bound cars to a stop before crossing Olive street, for the purpose of avoiding "or pr'eventing collisions with other cars of the defendant running east and west on Olive street, and if the jury believe from the evidence that the car on which plaintiff was a passenger was brought to a stop on the south side of Olive street for the purpose of permitting a car to pass east or west on Olive, the law charges plaintiff with knowledge that the car was stopped in compliance with the ordinance and not for the purpose of allowing passengers to alight therefrom; and while plaintiff had the right to leave the car while it was stopped on the south side of Olive street for the aforesaid purpose, if the jury believe that she was injured as a direct result of her attempt to leave the car while it was so stopped, then she is not entitled to recover in the case, unless the jury believed and found from the evidence that the conductor caused the car to be set. in motion while he saw plaintiff was in the act of alighting therefrom.</p> <p>The ninth instruction was as to the credibility of witnesses and is in the usual and proper form.</p> <p>The jury returned a verdict for plaintiff in the sum of two thousand dollars. Defendant afterwards and in due time filed its motion for new trial as well as a motion in arrest, both of which were overruled, defendant duly excepting and perfecting’ an appeal to this court, having in due time filed its bill of exceptions.</p> <p>It appears in the bill of exceptions, as abstracted, that when the bill of exceptions was prepared certain exceptions noted in that bill were marked with an x by counsel for plaintiff and specified by him as not saved by formal statement of exception of the defendant or its counsel done at the time, “but,” proceeds the bill of exceptions, ‘ ‘ the bill is made to show these exceptions were saved, because of a rule of court well known to members of the bar, and announced in this cause, that where a ruling was made by the court, the party against whom it was made need not make formal announcement of his exception upon such ruling, but that the court would understand that each ruling was excepted to and that the exception might be stated in the bill of exceptions as having been made. Under this rule defendant has been permitted to insert in the bill the statement, after such adverse ruling, that it saved an exception thereto at the time, a statement which is true, as the court and counsel understood at the time each ruling was made that it was excepted to and the bill of exceptions would so state.” The bill of exceptions which was filed containing the above quoted matter, was signed both by the judge who tried the cause and by his successor in the court room in which the cause was tried.</p>

<p>Appeal from St. Louis City Circuit Court. — No». George N. Williams, Judge.</p> <p>(1) The contract of a benefit society is with the member. He alone is interested in it. During his lifetime the beneficiary has no vested interest in the benefit, no rights which cannot be lost or divested by the act of the member, and none that can be asserted while the member is living. 1 Bacon on Ben. Societies (3 Ed.), sec. 237, p. 526; Hoffman v. Grand Lodge, 73 Mo. App. 47; Hansen v. Sup. Lodge K. of H., 140 111. 301. (2) The contract is the measure of the beneficiary’s rights and he is bound by its provisions. Roberts v. Grand Lodge, 68 N. Y. S. 949; Sabuf v. Phinney, 134 N. Y. 423; Hellenberg v. Dist. No. 1, 94 N. Y. 580; Sanger v. Rothschild, 123 N. Y. 577; Glardon v. Sup. Lodge K. of P., 50 Mo. App: 45; Niblack on Ben. Societies, secs. 136, 150, pp. 272, 295: (3) A member may waive the requisite formalities for suspension and, acquiescing therein, loses his right to question the legality of his suspension. 2 Bacon on Ben. Societies (3 Ed.), sec. 385, p. 974; Stewart v. Sup. Council, 36 Mo. App. 184; Heifernan v. Snp. Council, 40' Mo. App. 605; Borgraefe v. K. of H., 26 Mo. App. 224; G-lardon v. Snp. Lodge K. of P., 50 Mo. App. 45; Miller v. Grand Lodge, 72 Mo. App. 499; Scheele v. State Lodge, 63 Mo. App. 282; Lavin v. Grand Lodge, 78 S. W. 325; Hansen v. Snp. Lodge, 140 111. 301; Teeter v. H. L. Assn., 159- N. Y. 411; Grand Lodge v. Scott, 97 N. W. 647; Dimmer v. Snp. Lodge, 12 Oh. Cir. Dec. 413; Niblaek on Ben. Societies, sec. 58, p. 1201. (4) An application for reinstatement is a waiver of any defects in the proceedings for suspension. Hanson v. Sup. Lodge, supra. (5) Every provision of the policy not illegal or immoral is presumed to be material to the obligation and will be enforced. Allen v. German Am. I. Co., 123 N. Y. 12; Lamb v. Prud. I. Co., 48 N. Y. S. 125; Janneck v. Prud. I. Co., 162 N. Y. 574; Russell v. Prud. I. Co., 176 N. Y. 189; Conway v. Phoenix M. L. I. Co., 140 N. Y. 79. (6) Waiver is a mixed question of law,, and fact and each case depends on its peculiar facts and circumstances. It is a question of intention to be gathered from the conduct of the party sought to be charged with the waiver. Dry Goods Co. v. Ins. Co., 100 Mo. App. 504; Bank v. Ins. Co., 109 Mo. App. 654. (7) A statement merely that an act was fraudulent is not the statement of a fact and is not admitted by a demurrer. Daman v. Colman, 8 Mo. App. 595; Smith v. Sims, 77 Mo. 269. (8) Contrary, inconsistent or conflicting instructions constitute cause for a reversal of the' judgment. Hickman v. Link, 116 Mo. 123; Spillane v. Railroad, 111 Mo. 555; Bluedorn v. Railroad, 108 Mo. 439; Modisett v. McPike, 74 Mo. 636; Emmons v. Quade, 176 Mo. 22.</p> <p>(1) The benefit certificate issued to Zahm was a contract between him and appellant that could not be altered by any officer of appellant without his express consent. Small v. Court of Honor, 136 Mo. App. 434; Young v. Railway Mail Assn., 126 Mo. App. 325'; McIntyre v. Ins. Co., 142 Mo. App. 256; Lewine v. Knights of Pythias, 122 Mo. App. 547. (2) Appellant, by its course of business with Zahm, under which it received assessments from him during the month for which they were made, from April, 1903 on, waived any forfeiture of his certificate because of their nonpayment in advance. Burke v. Grand Lodge, A. 0. U. W., 136 Mo: App. 450; Suess v. Life Ins. Co., 193 Mo. 564; James v. Life Ins. Co., 148 Mo. 1; Andrus v. Life Ins. Co., 168 Mo. 151; Reed v. Bankers’ Union, 121 Mo. 419; Cline v. Woodmen of the World, 111 Mo. App. 601. • (3) This course of business having waived any' forfeiture of Zahm’s certificate for non-payment of dues in advance, up to and including March, 1906, appellant could not claim a forfeiture as it did, for nonpayment of dues in advance for April, 1906, without having previously, given hini notice that it intended to do so, and there is no pretense that it gave such notice. McMahon v. Maccabees, 151 Mo. 522, 537. (4) The prompt payment by Zahm of dues for April, 1906, having been thus waived by appellant, it could not recall the waiver and forfeit his certificate on that account. Burgess v. Mercantile Ins. Co., 114 Mo. App. 169.</p>

<p>1. NON-SUITS: Voluntary: Merely Agreeing to Sustain Demurrer: Appellate Practice. Where, at the close of plaintiff’s case, defendant asked an instruction in the nature of a demurrer to the evidence, which the court “agreed to give,” whereupon plaintiff took a non-suit with leave to move to set the same aside, the non-suit was voluntary and not open to question on appeal, since the instruction was not actually given; appellate courts acting on what the trial court actually does and not on what it proposes to do.</p> <p>2. APPELLATE PRACTICE: Appeal from Voluntary Non-Suit: Dismissal of Appeal or Affirmance of Judgment. Where an appeal is taken from the refusal of the trial court to set aside a non-suit which was taken voluntarily, the proper order for the appellate court to make is to dismiss the appeal, but the Supreme Court having established the practice of affirming the judgihent in such cases, the Court of Appeals will follow that joractiee.</p>

Louis City Circuit Court. — Ho». Virgil Rule, Judge. (1) Tlie first count of -tlie plaintiff’s petition states a good cause of action on the theory of the defendant’s negligence which resulted in the plaintiff’s loss. Negligence is the failure to observe for the precaution or safety of the interests of other persons, that degree of care, precaution and. vigilance which the circumstances justly demand. Henry v. Railroad, 67 Fed. 426; Thompson, Com.

— -Hoot. James D. Barnett, Judge. (1) Fraternal beneficiary societies are exempt from tbe provisions of the life insurance laws of this state by statute, and therefore tbe warranty of the contract maintains. Chap. 12, art. 2, sec. 1408, R. 8. 1899. (2) The contract here sued on is a contract between the member and the society, and includes the application, the benefit certificate, and- the constitution and the by-laws of the defendant. 3 Am. and Eng. Ency.

Louis City Circuit Court. — Now. J. Hugo Grimm, Judge. (1) Plaintiff’s petition does not state a cause of action. Defendant’s negligence, which nierely contributes to without being the cause of plaintiff’s injuries, is not actionable, and certainly not if it contributes with plaintiff’s own negligence in causing her injuries. ' Schmidt v. Transit Co., 120 S. W. 99; Smith v. Hardesty, 31 Mo. 413; Hof v. Transit Co., 213 Mo. 468; Krehmeyer v. Transit Co., 220 Mo: 668.

Louis City Circuit Court. — No». George II. Williams, Judge. (1) A foreign corporation cannot lawfully do business in tbe State of Missouri without first obtaining from the secretary of state, a license as such, and without complying with the statutory requirements of the State of Missouri relating to foreign corporations desiring to do business here, and any contract made by such corporation while doing business here without a license is void and nonenforceable..

Louis City Circuit Court. — Hon. Eugene McQuiUin, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s case. Plaintiff’s evidence clearly showed that its servants were guilty of negligence as a matter of law. Drake v. Railroad, 51 Mo. App. 568; Dey v. Railroad, 140 Mo. App. 461; Kelsay v. Railroad, 129 Mo. 372; Hook v. Railroad, 162 Mo. 569.

■ Appeal from St. Louis City Circuit Court. — Now. Jesse A. McDonald, Judge.

Louis City Circuit Court. — Now. Eugene McQuillin, Judge. (1) The first instruction given for the plaintiff was erroneous, because John J. 0’Bri.en was not entitled to receive salary as an officer, no salary having been provided. -Clark and Marshall on Corporations, p. 2049; Taussig v. Railroad, 166- Mo. 33; Rose v.’ Carbonating Co., 60 Mo. App. 32; Yoegeler v, Punch, 205 Mo. 573; Pfeiffer v. Brake Co., 44 Mo. App. 59; Besch v. Carriage Mfg. Co., 36 Mo. App. 333.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) As the trial court stated, in the record, its reasons for granting a new trial, it will be presumed that- it ruled against all other causes assigned in the motion for a new trial and'that in so doing it was right. The cause stated was the error of the court in refusing defendant’s instruction as to the burden of proof. Njo other cause need be considered here. Ittner v. Hughes; 133 Mo. 679.

<p>1. EVIDENCE: Exchange of Real Estate: Market Value. Where the plaintiff’s husband, a farmer, went to the locality in which was situated the land for which plaintiff had traded, and made it his business to find out what land was selling for in that locality, he was a competent witness as to the market value of the land traded for.</p> <p>2. -: -: Market Value and Trading Value. In an action to recover damages for fraudulent representations in the exchange of real estate, the offer of defendants to prove that there is a difference between the market cash value of real estate, and its trading value, was properly rejected, because the proposed evidence could not affect the measure of damages.</p> <p>3. CONTRACTS: Exchange of Real Estate: Fraudulent Representations: Measure of Damages. In an action to recover damages for fraudulent representations in the exchange of real estate, the measure of damages is the difference between the actual market value of the land conveyed to plaintiffs, at the time it was conveyed, and what would have been its value at the time, had it been in point of quality, condition, location and value, as represented by defendants.</p> <p>4. -: -: -. The measure of damages, in cases of ex delicto based upon fraud and deceit is not alone the difference in the actual value of the properties conveyed, but the benefits and gains of the bargain are also proper elements of damages.</p>

<p>1. BILLS AND NOTES: Pleadings: Allegation of Ownership. Where plaintiffs petition alleged that M and S (co-partners) assigned by endorsement in writing and delivered a note to plaintiff, and where the note in 'suit was payable to bearer, the allegation in the petition was not a statement of the evidences of the facts but was a statement of the facts themselves. An allegation in terms that the plaintiff is the owner or holder is not necessary.</p> <p>2. -: Transfer by Surviving Partner. Where, one of two partners is dead, there being no debts and no administrator, the surviving partner has full authority to transfer a note originally made payable to a co-partnership. If, however, the administrator of the deceased partner joins in the assignment, his assignment, although unauthorized, will not render the act of the surviving partner nugatory.</p> <p>3. EVIDENCE: Value: Expert Testimony. Where a witness was allowed to give testimony as to the value of a stock of goods, the purchase price of which was credited on the note in suit, without the witness having first qualified as an expert, the error in the admission of his testimony is immaterial, where the issue was not whether or not a proper credit had been given, hut whether the property had been surrendered in payment of the note.</p>

<p>1. REPLEVIN: Possession by Agent: Unauthorized Acts. Where the defendant, assuming to act as the agent of his wife, wrongfully detained the plaintiff’s wagon, claiming the hay thereon under the terms of his wife’s lease with plaintiff, he was personally liable in an action of replevin. His possession was not in good faith, because his acts were characterized by a wanton disregard of plaintiff’s right, and hence were not within the contemplation of his agency.</p> <p>2. -: -: Evidence. Evidence that on the date the writ was issued the wagon was standing, with no change in its location, in the lot where its original detention occurred is sufficient evidence that defendant was in possession of the property on said date.</p>

<p>1. EXECUTION: Motion to Quash: Equity Jurisdiction. Where, on appeal from a judgment sustaining a motion to quash an execution, the proceeding, although thus denominated, is in fact a bill in equity, in such cases if the preponderance of the evidence is overwhelming against the findings of the trial judge, the judgment will be reversed.</p> <p>2. -: -. Where defendant paid a materialman, taking an assignment of his judgment against defendant-contractors, and issued execution thereon, held that the evidence did not show an agreement, as contended by defendants, by which plaintiff was to pay materialman’s demand in full in consideration of being released by defendant-contractors from their claim for a balance due on the contract for the erection of the building.</p>

— Hon. James E. Goodrich, Judge. (1) The fund was paid to the administratrix and as no one appears to have a superior claim she is entitled to keep it. This point is based on the contentions made by- counsel for Mary Wolfe. If there is nothing in the act to indicate who is the intended beneficiary of tfie fund in question the court must consider the nature of the grant, and learn the intent of the grantor from surrounding circumstances.

<p>1. BILLS AND NOTES: Defenses: Fraud. In a suit on a promissory note, that part of defendant’s answer, the purport of which was to contradict and vary the terms of the note, etc., was stricken out. Defendant nowhere averred that he did not know the nature of the instrument he was signing. Held, such action was proper, because the answer did not show such fraud a's exists in cases where the party was induced to sign the writing by a trick wherein he was made to believe that he was signing another and different paper.</p> <p>2. -: -: Want of Consideration. Where defendant pleaded want of consideration, but in his answer also admitted that the consideration for the note in suit was certain share's of stock, whose value he did not deny, but instead set up that the understanding at the time was that his ownership was to be merely nominal, and that the making of the note was for accommodation purposes only, such facts constituted no defense, and a direction in plaintiff’s favor was proper.</p>

<p>Appeal from Howard Circuit Court. — Hon. A. H. Walter ,- Judge.</p> <p>Reversed and remanded (with directions).</p>

<p>Appeal from Boone Circuit Court. — Hon. A. H. Waller, Judge.</p>

— Eon. C. E. Kitchener, Special Judge. (1) The demurrer admitted the facts stated in plaintiff’s petition and should have been overruled. Coram nobis or a writ in the nature of it was the proper remedy and there is no time limited within which it should have been filed. In re Tony, 11 M'o. 661; State v. Clarkson, 88 Mo. App. 553; 23 Cyc., p. 883-885, sec. 3; State v. Wallace, 209' Mo. 364; State ex rel. v. Riley, 219 Mo. 682; Cross v. Gould, 131 Mo. App. 585.

<p>Appeal from Jackson Circuit Court. — How. Walter A. Poioell, Judge.</p>

<p>1. PARTNERSHIP: Burden of Proof. In a suit in equity to wind up the affairs of a partnership composed of plaintiffs, and also to hold defendant as a partner, defendant’s relationship to the-business having never been made public, where plaintiff’s evidence was equally consistent with defendant’s contention that he had signed a certain note merely as surety, Helé, that the-burden of proof was on plaintiffs to establish the fact of a partnership, and that the evidence was not of sufficient strength to warrant setting aside the judgment.</p> <p>2. APPELLATE PRACTICE: Equity. In equity cases, appellate courts do not give the findings of trial courts the same effect that they accord the verdict of juries, but they weigh evidence, and reverse judgments which they believe are not sustained by the weight of the evidence. However, when facts and circumstance's are evenly balanced, they are disinclined to set aside the judgment of the trial judge.</p>

<p>1. CRIMINAL LAW: Obtaining Money Under False Pretenses: Appeal. Where defendant was convicted on the charge of obtaining five dollars from the prosecuting witness by means of false and fraudulent statements and pretenses under section 1927, Revised Statutes 1899, the specific charge so far as the punishment is concerned is petty larceny, and an appeal was properly taken.</p> <p>2. -: -: Information Bad. An information which alleges that the prosecuting witness was “induced to pay” the defendant the sum of five dollars was bad, because it failed to allege specifically one of the essential ingredients of the offense of obtaining money under false pretenses, i. e., that defendant was actually paid.</p>

<p>Appeal from Jackson Circuit Court. — Now. John G. Park, Judge.</p>

— Hon. Arch B. Davis, Judge. (1) This case is based on a penalty statute and must be strictly construed, and nothing must be taken by intendment, bufthe statute shall apply only to such cases as come squarely and clearly within its provisions. Edington v. Telegraph Co., 115 Mo. App. 98; Rixke v. Telegraph Co., 96 Mo. App. 410; Cowan v. Telegraph Co., 129 S. W. 1066. (2) The requirement that any claim against the company includes statutory penalties is the law of this state.

— How. Francis H. Trimble, Judge. (1) The party who carries the burden of proof and fails as to a vital part of the chain of evidence is not entitled to a verdict and if he secures a verdict the appellate courts will set it aside. Lomax v. Railroad, 119 Mo. App. 198; Uhrick v. Osborn, 106 Mo. App. 492; Bond v. Railroad, 122 Mo. App. 207; Bryerly v. Light, etc., Co., 130 Mo. App. 603; Ballentine v. Mercer, 130 Mo.

<p>1. HUMANITARIAN RULE: Personal Injury. A motorman in charge of a street car who sees one driving a vehicle approaching the track, has a right to assume that he will act with prudence and stop to let the car pass. B'ut if there is anything in the person’s conduct to suggest that his attention is drawn in other directions, or that he is so absorbed as to be oblivious to his surroundings, that assumption cannot be indulged.</p> <p>2. -: -: Instructions. In view of the evidence it was error to submit tho hypothesis that plaintiff’s wagon was on the track when seen by a motorman, where the only evidence was that the horses were on the first rail of the track.</p>

<p>Appeal from Jackson Circuit Court. — Ron. John G. Park, Judge.</p>

<p>1. INJUNCTION: Street Obstruction: Ingress and Egress. An abutting property owner has the same right the public has to the use of a street and in addition the special right of ingress and egress, which may be protected by proceeding in equity.</p> <p>2. --: -: Nuisance: Injunction. If an obstruction in a ■ street is both a. public and private nuisance, a property owner who is especially and peculiarly injured, may have injunctive relief.</p> <p>3. MUNICIPAL PERMIT: Storage Tracks: Switches. A municipality cannot legally authorize a nuisance in a street by an obstruction, such as street railway switching and storage tracks, running-from the main line partly around a corner onto another street, and thence into a large car barn, which necessarily materially deprive abutting owners of access to their property.</p>

<p>Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.</p>

— Eon. W. E. Martin, J udge. (1) It is sufficient to make a written publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule, or to blacken his reputation. Nelson v. Musgrave, 10 Mo. 648; Price v. Whitely, 50 Mo. 439; McGinnis v. Geo. Knapp & Co., 109 Mo. 131; Ukman v. Daily Record, 189 Mo. 378; Manget v. O’Neill, 51 Mo. App. 26. (2) A newspaper is responsible for what it publishes the same as an individual.

— Hon. Francis H. Trimble, Judge. (1) Instruction No. 1, given for the plaintiff, is erroneous, because it comments on evidence; is argumentative; assumes facts as proven and is misleading. Landrum v. Railroad, 132 Mo. App. 717; Jobnston v. Railroad, 117 Mo. App.' 308. (2) Instruction No. 3 given, for plaintiff is erroneous, because the petition prays for special damages and special sums for each item. These special items and the amounts must be established by evidence.

— Hoto. A. H. Waller, Judge. (1) The court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff and at the close of all the evidence. Because the plaintiff failed to establish any negligence on the part of the defendant. Ploof that if the pair of wheels had been blocked the injury would not have occurred is not proof of negligence. Muirhead v. Railroad, 19 Mo.

— So». L. J. Eastin, Judge. (1) Where an employer’s liability insurance company, under its policy, undertakes and controls the defense of a personal injury suit brought against the assured by one of its employees, the insurance company thereby waives the right to claim that the injured employee was not covered by the policy, and by its, conduct in defending.such suit is estopped from denying its liability under the policy. Mining Co. v. Fidelity & Casualty Co., 126 Mo.

— Ron. David E. Blair, Judge. (1) To entitle a real estate broker to bis commission be must be tbe efficient cause in finding a purchaser and tbe facts in this case fail to show tbe plaintiffs were such cause. Pollard y. Bank, 67 Mo. App. 187; Gamble v. Gretber, 108 Mo. App. 342; Bockant y. Higgins, 20 Mo. App. 514; Crowley y. Summerville, 70 Mo. App. 376; Campbell y. Van Stone, 73 Mo. App. 74; Warren y. Cram;, 71 Mo. App. 639; Wolfe y. Rosenberry, 67 Mo.

— Eon, John T. Moore, Judge. (1) The order appointing the receiver should be vacated, because a receiver should not be appointed to take defendant’s property out of its hands except in cases of extreme necessity, and never when any other remedy is available, such as injunction or attachment, where a bond is required. Such other remedies were open to the plaintiff in this case. 34 Cyc. 23, 25; 17 Ency.

<p>1. CRIMINAL LAW: Violation of Local Option Law: Information: Instruction. In a prosecution for violating the Local Option Law, the information and instructions are examined and approved. (Companion case to State v. Snider, 151 Mo. App. 699.)</p> <p>2. LOCAL OPTION ELECTION: Publication of Result: Records of County Court. The records of the county court ascertaining and declaring the result of a local option election and ordering publication of the same, and a subsequent entry finding that the same was published are examined and held sufficient compliance with the statute.</p> <p>3. -: -: -: Criminal Law. The records of the county court need not show a return of the publication of the result of a local option election, where it shows the publication was ordered, and the burden of showing a failure of such pub- ■ lication is upon the defendant, in a prosecution for violation of the Local Option Law.</p>

—Hon. R. G. Ranney, Judge. (1) To render a defendant liable for injuries during an extraordinary flood, where he has been negligent, such negligence must have been the active agent in bringing about the loss, and without which it would not have occurred. It is manifest that the water in Cape La Croix creek would have overflowed plaintiff’s land if there had been no railroad bridge nor railroad dump at that point.

<p>1. APPELLATE PRACTICE: Motion for New Trial: Bill of Exceptions. The abstract of a bill of exceptions in referring to the motion for a new trial contained the following: “which said motion is in words and figures as follows, to-wit: (See Ante, pp. 17-18).” The motion for a new trial was set out in full in the abstract of the record proper at pages 17 and 18. Held, that the motion for new trial should have been copied in the bill of exceptions and that mere reference to the motion was not sufficient; that the record proper was not the proper depository for the motion for the new trial.</p> <p>2. -: -: Record Proper. In the absence of a motion for a new trial, only the record proper can be examined for error.</p>

— Hon. F. O. Johnston, Judge. (1) This is a civil action and was brought by the prosecuting attorney as required by sec. 3030, R. S. 1909. If the petition should have been signed by the prosecuting attorney the defendant should have .demurred to the petition or raised that question by answer and not having done so and having answered by general denial has waived that point. State ex.rel. v. Land Co., 97 Mo.

— No». James T. Neville, Judge. (1) The judgment should be reversed because there was a total failure on the part of the respondents to keep and preserve an inventory and books of account, correctly showing in detail all purchases and sales from the stock in question and to produce them after the fire, when demanded. Gibson v. Insurance Co., 82 Mo. App. 515; Keet & Rountree D. G. Co. v. Ins. Co., 100 Mo. App. 60; Johnson v. Ins. Co., 120 Mo. App. 86; Hollinbeck v. Ins.

— Eon. Joseph J. Williams, Judge. (T) The attempted change of boundary lines is void for the reason that a common school district cannot detach territory from a village school district. R. S. 1899, secs. 9742 and 9875, R. S. 1899, art. 1, ch. 154-, art. 2, ch. 154; State ex rel. v. Fry, 186 Mo. 198; State ex rel. v. Marshall, 48 Mo. App. 560. (2) Injunction is the proper remedy in this case.- R. S. 1899, sec: ^849; Winkler v. Halstead, 36 Mo.

— -No». Henry G. Riley, Judge. (1) The court erred in admitting any evidence for the reason that the petition fails to state a joint cause of action against the defendants. McLendon v. Railroad, 119 Mo. App. 128; Meyers v. Railroad, 129 Mo. App. 288. (2) The court er'red in refusing to give instructions in the nature of demurrers to the evidence asked by defendants at the close of plaintiff’s evidence in chief, and at the close of all the evidence.

Louis.City Circuit Court. — Eon. George E. Williams, Judge. The transaction of February 18, 1904, whereby the defendant loaned the insured the sum of $12.58, was an investment, and the fact that the money loaned was applied to the payment of premiums is immaterial, since there is still no “notes or other evidence of indebtedness to the company given on account of past premium payments.” The premiums were paid in cash and the evidence of indebtedness is for a loan.

— If on. James T. Neville, Judge. (1) The court abused a sound discretion in the light of the evidence and the instructions given in setting aside the verdict. The evidence clearly'precludes recovery by plaintiff under the law. An analysis will fail to show any great conflict in evidence, but even if ■there be such conflict, substantial evidence sustains the verdict. There is nothing to indicate mistake or passion in the verdict. Lomax v. Electric Co., 119 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. ~W. 0. Thomas, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. R. B. Micldlebrooh, Judge.</p>

— Hon. N. D. Thurmond, Judge. (1) The court erred in permitting the jury to award damages for impaired usefulness of the street, and general depreciation in value caused by the maintenance and operation of the railroad thereon.

— Hon. N. M. Bradley, Judge. (1) The demurrer of the defendants should have been sustained because upon the pleadings and the evidence plaintiff was not entitled to recover as the evidence shows that Crute accepted and retained sixty dollars of the money of W..

— Hon. James H. ' . 8lover, Judge. (1) The court should have sustained the demurrer to the evidence. The defendant was not an insurer— its duty was simply to exercise ordinary care to furnish plaintiff a reasonably safe tool with which to work. Goransson v. Manufacturing Co., 186 Mo. 300; Duerst v. Stamping Co., 163 Mo. 607; Franklin v. Railroad, 97 Mo. App. 480; Railroad v. Nelms, 83 Ga. 70.

<p>1. CARRIERS OF PASSENGERS: Concurrent Negligence. In an action to recover damages for injuries sustained by being struck by the bumper of one of defendant’s street cars, (the fender having passed plaintiff safely), where the evidence showed that' plaintiff approached the track at a slow gait in an oblique direction while the car was also coming from the same direction, even conceding that the motorman was negligent in failing to ring the bell or cheek up the car on seeing the plaintiff approach the track without looking for danger, the concurrent act of the plaintiff and the motorman, was not superseded as the proximate cause of the injury by the sole negligence of the defendant, and the plaintiff was not entitled to recover.</p> <p>2. -: Humanitarian Doctrine: Concurrent Negligence, In such a case, there is no room for the humanitarian doctrine. The negligence of plaintiff was concurrent in point of time with the negligent running of the car, and was the direct proximate cause of the injury.</p>

<p>1. ' CONTRACTS: Breach. Where plaintiffs are the aggressors and cause a breach of their contract - with defendant, they cannot thereafter enforce the same against defendant.</p> <p>2. -: Employer's Personal Liability: Delay in Payment. Where defendant took contracts for painting in his own name, and employed plaintiffs to do the work, he became liable to them for their pay, and could not compel them to wait for their money, until he had collected from the customer.</p>

— Hon. Walter A. Powell, Judge.; (1) The court erred in. permitting the respond- ■ ents to show over the objection of appellant, the negotiations leading up to the letter of April 16, 1908, fixing the amount of respondent’s commissions; and erred in permitting the respondents, over the objection of appellant, to introduce in evidence the letter of October 29, 1907, with respect to respondent’s commissions; and after permitting the foregoing, the court erred' in excluding,…

<p>Appeal from Jackson Circuit Court. — Eon. Thomas J. Beehorn, Judge.</p>

— Hon. Herman Brumbach, Judge. (1) The petition states no case: It does not charge that the money paid to the defendant was trust funds belonging to the estate of which plaintiff is receiver.

<p>1. APPELLATE PRACTICE: Defective Abstract of Record. Where appellant undertook to correct, by interlineation, his defective abstract of. the record, without permission from the appellate court, and where the original abstract showed that appellant’s motion for a new trial was not filed within four days, and the purported bill of exceptions was not filed in time, there is nothing before the appellate court for review except the record proper, and there being no exceptions to the record, on respondent’s motion, the judgment will be affirmed, because of the insufficiency of the abstract.</p> <p>2. -: Corrections by Interlienation. It is too late for a party to ask the indulgence of the court after he .has undertaken without authority to correct the defects of his abstract by interlineation.</p>

— Hon. Thos. J. Seehorn, Judge. (1) The plaintiff utterly failed to prove ber casei and the demurrer offered at the close of plaintiff’s evidence and renewed at the close of tbe testimony should have been sustained for the following reasons: Under-the instructions of the court there was no evidence submitted to the jury in support of the specific negligence pleaded in the petition.

<p>1. TENDER: Condition. Where a party refusing to accept a tender in full discharge of a settlement and refusing to give a receipt in full, yet knowing that the tender is made by the debtor in full discharge, accepts it, he is bound thereby, since he cannot attach a condition to his acceptance.</p> <p>2. ACCORD AND SATISFACTION: Consideration. Accord and satisfaction must be supported by a consideration; but if one accepts a sum of money in place of cattle and hogs which were short of the number agreed to be delivered on a trade, and the value of which was not fixed by the contract, the transaction itself shows a consideration.</p>

<p>Error to Benton Circuit Court. — Hon. G. A. Denton, Judge.</p>

<p>Appeal from Howard Circuit Court. — Hon. A. H. Waller, Judge.</p>

William S. Martin, Judge. (1) Defendants, knowing that appellant had had no transaction of any kind with Reterie Drug Company, and that the officer of appellant did owe Peterie Drug Company four hundred sixty three dollars on his personal account, the act of Smith in issuing and delivering and .of defendants in accepting the check of appellant, which was afterwards cashed, in payment of the personal obligation of Smith to Peterie Drug Company was notice to defendants' that…

— Eon. G-.'W. WanamaJcer, Judge. (1) The master is not an insurer of the safety of the servant. -The plaintiff was an experienced miner, knew what to do and how to do it in cleaning out and repairing the defendants’ • shaft. He knew all the dangers incident thereto, as to the sides caving in. He examined it before he went to work, received larger Avages for undertaking the job. He knew as well as the master, the defendant, that the sides might cave in.

— Hon. G. A. Mosman, Judge. (1) This is a common law action. There is no rule of common law requiring a master to guard dangerous machinery. Bair v. Heiber, 108 Mo. App. 621; Loré v. Mfg. Go., 160 Mo. 6Ó8. The law only required the defendant to furnish plaintiff such appliances, as were of ordinary character and in general use by those engaged in similar business, and of reasonable safety, and the former is the conclusive test of the latter. The test is general use.

<p>Appeal from Gass Circuit Court. — Eon. N. M. Bradley. Judge.</p>

<p>Appeal from Grundy Circuit Court. — Hon. G. W. Wanamaher, Judge.</p>

Writ of Error to Chariton Circuit Court. — Hon. John P. Butler, Judge. (1) The indictment in this case is insufficient in rorm and substance. Its allegations are inconsistent and repugnant. State v. Hamilton, 65 Mo. 659; State v. Harris, 209 Mo. 436; State v. Flint, 62 Mo. 899 ;• State y. Lockwood, 119 Mo. 463; State y. Samuels, 144: Mo. 73; State v. Leonard, 171 Mo. 627; State y. Wey-’ land, 162 Mo. App: 723.

<p>1. JUDGMENTS: Reviver: Scire Facias: Justices of Peace. Plaintiff obtained judgment against defendant, May 14, 1883, in a justice court. On May 22, 1908, a scire facias to revive tbe judgment was sued out. Soon after the rendition of the judgment, defendant left the county and state, and his whereabouts were unknown to plaintiff until a short time before the institution of these proceedings. Held, that the absence of defendant from the state did not suspend the running of the statute (sec. 3008, R. S. 1899), sec. 7212, R. S. 1909, which provides “that no judgment (of a justice court) shall be revived after the lapse of twenty years from the rendition thereof.”</p> <p>2. -: -: -. Inability to serve process upon defendant during his absence from the state is no excuse for not commencing the action, to revive within the prescribed period.</p>

<p>CRIMINAL LAW: Gaming: Sufficiency of Evidence. In a prosecution for gaming it was shown by the state’s witness, a policeman, that he forced his way p ast a colored porter into a room - where defendants were playing cards; that another party, a Mr. Cardwell, tried to prevent him going into the room and offered to “fix it” with the witness and the chief of police; that when he steppéd into the room where the game was in progress, one of the men in the game said, “My God, there’s a cop;” whereupon they all arose hastily from the table, gathered up their poker chips and vanished through a side door. Later the defendants came back and in their presence Mr. Cardwell again offered to “fix it up.”- Held, that the evidence was sufficient to justify a verdict of guilty.</p>

— Eon. David E. Blair, Judge. (1) Defendant had a right to make a reasonable use of the course of drainage and could not be held liable for damages unless it exceeded its rights in the use of said ditch. 30 Amer. and Eng. Ency. Law (2 Ed.), 382. (2) The defendant could not be held liable for damage done by others, acting independently of defendant.

— Hon. Henry L. \Bright, Judge. (1) The second amended answer which was filed as aforesaid after the case was tried and which we contended changed the defense, and should not have been allowed we are not advised just what effect this filing of this answer had upon the court. We are aware that the allowance of amendments is in a large degree in the discretion of the court but that they are not entirely so and may be refused.

— Eon. F. C. Johnston, Judge. (T) Tbe information is defective because it fails to give the names of the persons to whom the alleged sales were made, and the court erred in not quashing it. State v. Martin, 108 Mo.. 117. (2) The court committed prejudicial error in permitting Clanton and Bales to testify regarding the empty Peruvian bottles' behind the chili stand and behind Tom White’s building. State v. Seigenthaler, 121 Mo.

— Hon. G. H. Blanker, Judge. Defendant accepted the hoops and cannot now complain of the quality. No objection was made within a reasonable time. Stevens y. McKay, 40 Mo. 224; Black y. Lumber Co., 93 Mo. 374; Water & Light Co. y. Lamar, 140 Mo. 145; Steel & Wire Co. v. Symons, 110 Mo. App. 48. Under the law and the evidence, the judgment for respondent ought to be affirmed under the following authorities. Association v. McEnroe, 80 Mo. App- 429; Machine Co. v. Brady, 67 Mo.

— Hon. W. N. Evans, Judge. (1) Every party interested must sue in Ms own name and not for another. R. S. 1909. secs. 1730, 1733; Van Stewart v. Miles, 105 Mo. App. 246; Friedman v. Holherg, 74 Mo. 26; Elam v. Garter, 119 S. W. 914.. (2) It is questionable as to whether Mrs. Smotherman, as a married woman, would be entitled to homestead rights, but if she was she could not convey to another, and hold in his name, against the lawful claims of judgment creditors.

- — Eon. L. B. Woodside, Judge. (1) The trial court erred in excluding the question asked the jurors on voir dire examination touching their qualifications to serve in the cause. Plaintiff was entitled to a trial before a jury free from bias or prejudice, and in order to determine whether the prospective jurors possessed such qualifications had the right to ask such questions, the answer to which might tend to elicit such information.

— Eon. L. B. Wooclside, Judge. (1) The question in this case to' he determined is, was the plaintiff an innocent purchaser for value before maturity without notice of any fraud in the inception of the contract, and if so then it is entitled to recover. Jennings v. Todd, 118 Mo. 296. (2) There was no fraud in the procurement of the note sued on. Bank v. Brisch, 110 Mo. App. 216.

— Hon. Alfred Page, Judge. The rights of the party must be deduced from their intention as shown by the agreement read in the light of surrounding circumstances, and it is well settled that the mere participation, by one, in the proceeds of a transaction or business does not jper se constitute Mm a partner therein. Thomson v. Holden, 117 Mo. 128; Mingus v. Bank, 136 Mo. App. 407; Beller y. Murphy, 139 Mo. App. 668.

— Eon. D. E. Blair, Judge. (1) There were such changes made that were made necessary by negligence and failure of the contractor to perform the work according to the terms of the contract as shown by the record. “But a surety will not be discharged by a change in the work contracted for, which was rendered necessary solely by the negligence of his principal in- the execution of -the contract. Killoren v. Meehan, 55 Mo. App. 428.

! — Hon. TP. N. ■ Evans, Judge. (1) The information charges that on the 19th day of July, 1906, the Act of the Legislature, etc., had been adopted, and was and is in force as the law of the state, but there is no allegation that the law was in force on the 27th day of August, 1910. These allegations are necessary under the following authorities. State v. Hall, 130 Mo. App. 170; State v. Polk, 127 S. W. 933.

— Hon. G. H. Blanker, Judge. (1) Contracts of infants for necessaries are neither void nor voidable and the parent is liable for such, unless he can avoid responsibility on some such ground as emancipation which has been attempted in this case. But which we think cannot be maintained under the evidence. Industrial Home v. Fritchey, 10 Mo. App. 344; Paul t. Smith, 41 Mo. App. 275; Rankin v. Rankin, 83 Mo. App. 341; Academy v. Bobb, 52 Mo. 357.

Greene Circuit Court. — Hon. G. W. Goad, Special Judge. (T) That mandamus judgment is conclusive only on application for an alias writ, or in compelling performance of mandate or in punishing for disobedience, see People v. Solomon, 54 111. 39; People v. Rice, 144 N. Y. 249; People v. Rochester, 76 N. Y. 294; 19 Ency. of Law (2 Ed.), 723 ; 26 Cyc. Law and Procedure, 485.

Greene Circuit Court. — Hon. John T. Moore, Special Judge. (1) Tlie court erred in admitting testimony to the effect that the place where defendants were arrested was commonly called a gambling house. It is not admissible to prove the character of a house by general reputation, or common rumor. Kelley’s Criminal Law ,(2 Ed.), 956; 6 Ency. of Evidence, 199; Wharton on Criminal Evidence, (9 Ed.), secs. 260 and 261; Loehner v. Ins. Co., 17 Mo. 258; In re Imboden, 128 Mo.

— Hon. A. H. Wear. Special Judge. (1) The plaintiffs were entitled to nominal damages as a result from breach of the officer’s duty to make a true return to the summons, and a judgment for nominal damages carries cost. Refusal to award nominal damages for breach of an officer’s duty is the denial of a substantial right and ground for reversal. State ex rel. v. Hickman, 124 S. W. 29. (2) Lewis could waive his homestead exemptions. Parketon v. Pugsley, 142 Mo.

— Hon. Henry L. Bright, Judge. (1) Section 1729, R. S. 1909, provides that “every action shall be prosecuted in the name of the real party in interest except- as otherwise provided in the next succeeding section.” Sheridan v. Nation, 159 Mo. 27.

<p>LIFE INSURANCE: Disappearance Case: Sufficiency of Evidence: Appellate Practice. In ail action on a life insurance policy plaintiff recovered in tlie lower court on tlie theory that her husband who had disappeared more than seven years ago had died about the time of his disappearance. After the defendant had appealed to the Springfield Court of Appeals, the insured was found in Texas and his identity fully established and he ■ appeared in the appellate court by attorney and asked to be made a party because of his interest in the policy involved in the suit. Subsequently a stipulation was filed in the appellate court signed by the attorneys for all parties to the effect that if appellant by affidavits and otherwise, convinced the court beyond a reasonable doubt that said insured was in fact alive, then the judgment could be reversed, otherwise to be affirmed. The proofs submitted by appellant are examined and held to establish beyond a reasonable doubt that the insured was alive, and the judgment was accordingly reversed.</p>

— Horn. F. G. Johnston, Judge. (T) In a suit against a firm the jury are not required to decide whether the partnership actually existed, but only whether it was held out to' the plaintiff as existing and when a man advisedly permits the representation that he is a member of partnership or so represents himself to a person who is doing business with the firm he will be treated as a partner as to that person.

— Eon. L. B. Woodside, Judge. (1) The antecedent existence of the indebtedness having been proved by the creditor, the burden of proving its discharge is upon the debtor or person alleging the discharge. Supply Co. v. Wolfe, 127 Mo. 616; Barrett v. Kern, 141 Mo. App. 48Griffith v. Creighton, 61 Mo. App. 1; Diel v. Stegner, 56 Mo. App. 535 ; Carder v. Primm, 47 Mo. App. 301; Hutchinson v. Henry, 44 Mo. App. 263.