Volume 157 — Missouri Appeal Reports

Appeal'from Monroe Circuit Court. — Eon. David E. Eby, Judge. (1) The contract herein sued on is a contract be- • tween the member and the Society and includes the application, the certificate, and the constitution and bylaws of the defendant. 3 Am. and Ency. of Law, (2d Ed.), page 108; Bacon on Benefit Societies, secs. 87, 91 and 116; Niblack on Benefit Societies, sec. 136.

— Hon. David H. Eby, Judge. It is well settled that before an impeaching witness can be called to prove that another witness made statements or declarations indicating bias, a proper foundation must be laid by giving said witness an opportunity to deny or explain away such supposed utterance indicating bias, before the testimony of the impeaching witness can be heard.

Louis City Circuit Court. — Hon. Matt Q-. Reynolds, Judge. (1) The petition does not state facts sufficient to ■constitute a cause of action against this appellant, (a) The petition does not show privity of contract between plaintiff and defendant. Bliss, Code Pleading, sec. 220, 284 and 285; 7 Am. and Eng. Ency of Law, p. 104, note 2; Davis v. Clinton W. W. Co., 54 Iowa 59; Eau Claire, St. L. L. Co. v. Banks et al., 117 S. W. 611.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) The counterclaim, being a statement in tort for unliquidated damages, cannot be set up herein, as it does not arise out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, nor is it connected with the same subject of action. Sec. 1807, R. S. 1909; sec. 7445, R. S. 1909; McCormick Co. v. Hill, 104 Mo. App. 544.

<p>1. NEGLIGENCE: Automobile Collision: Excessive Speed: Driving on Wrong Side of Road: Contributory Negligence: Facts Stated. Plaintiff’s automobile came around a sharp curve in the road at a speed of twenty to twenty-five miles per hour, though trees and shrubbery prevented seeing more than thirty-five or forty feet ahead, and, in an endeavor to avoid defendant’s automobile, approaching at a speed twenty-five or thirty miles an hour and on the left side of the road, when, according to custom it should have been on the right, plaintiff’s car was wrecked by running into the abutment of a bridge. Plaintiff’s chauffeur was familiar with the locality, and knew that the road was in constant use by automobiles running at high speed, and that, at the point of the meeting, cars coming from the opposite direction would be likely to he on the wrong side of the road, to avoid broken stone on the other side. • Held, that defendant was negligent in running his car at a high rate of speed on the wrong side of the road; held, further, that plaintiff’s chauffeur also was negligent in operating the machine around a short curve, where his view was obscured, at the high and dangerous speed of twenty to twenty-five miles an hour, and that the negligence was mutual and concurring and hence plaintiff was not entitled to recover.</p> <p>. 2. -: Contributory Negligence: Ability of Plaintiff to Avoid Consequences of Defendant’s Negligence. . In an action for personal injuries, where it appears the injuries received might'have been averted and the consequences of defendant’s negligence avoided by the exercise of ordinary care on the part of the injured person, he is not entitled to recover, the . case being one of mutual and contiurring negligence, witfi respect to which the law will neither cast all of the consequences on the defendant nor attempt to apportion them between the parties; and where it appears that, though defendant was negligent, the injury would not have occurred but for the negligence of plaintiff as well, contributing proximately thereto, a- recovery will not be allowed.</p> <p>3. -: Automobile Collision: Contributory Negligence: Failure to Think of Dangers. In an action for damages sustained in a collision between two automobiles, where it appeared that plaintiff’s chauffeur was familiar with the locality and knew that the road was in constant use by automobiles, running at high speed, the fact that he did not think, at the time being, of the probable presence of other automobiles will not operate to excuse him from contributory negligence in operating his machine at a high rate of speed, but, on the contrary, tends to prove negligence on his part, for an ordinarily prudent person would have thought of such danger, under the circumstances.</p> <p>4. -: -: -: Approaching Dangerous Situation. A person driving a conveyance is required to approach known dangerous situations, such as railroad crossings, with his conveyance sufficiently under control to enable him to avoid a collision, and if he fails to do so, he is guilty of contributory negligence as a matter of law; and while the strict rule would not obtain in every case of collision between automobiles, its application is proper where the evidence of the case discloses a situation almost as dangerous to a reckless driver as those which obtain at railroad crossings.</p> <p>5. APPELLATE PRACTICE: Harmless Error: Appellant Not Entitled to Recover. Where, on the conceded facts, plaintiff was guilty of contributory negligence as a matter of law, a judgment for defendant will be affirmed, regardless of errors at the trial.</p>

— Hon. Henry O. Riley, Judge. (1) There is no evidence that plaintiff’s cow was struck by a train; on the other hand the evidence is that the cow died from natural causes. The finding of the court that the animal was killed by a train is conjecture, and not supported by the testimony, and the judgment should be reversed. Hesse v. Railroad, 86 Mo. App.-168.

Circuit Court. — Eon. Samuel Davis, Special Judge. (1) The court erred in refusing to instruct a verdict for the defendant for the reasons: (a) the proof shows that the plaintiff was injured as the result of his own negligence in going upon the track in front of an approaching engine that he either saw or could have seen; (b) the plaintiff’s proof does not show that the speed of the train was the proximate cause' of the injury but on the other hand shows that notwithstanding…

— Eon. David E. Fby, Judge. (1) The court should have given the instruction asked by defendant in the nature of a demurrer to the evidence at the close of the evidence, for the reason that the plaintiff was guilty of contributory negligence as shown by her. own and her witness’ testimony to the effect that she was suffering from nervous troubles, had been half a dozen times under physician’s care when she was apparently unconscious from nervous trouble, and yet she stood in…

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) The demurrer to the evidence should have been sustained. When the allegations of the petition concerning failure to box, or otherwise guard, the shaft are eliminated, there is nothing, in substance, left but the charge that the defendant was negligent in ordering the plaintiff to work at cleaning: the shaft while it was moving, without warning plaintiff.

— Hon. James D. The petition does not state a cause of action and the court erred in overruling the defendant’s demurrer thereto and in overruling the defendant’s objection to the introduction of .any evidence and in-overruling the defendant’s motion in arrest of judgment.

Louis City Circuit Court. — Hon. James E. Withrow, Judge On the undisputed evidence the appellant was entitled to have the cause submitted to the jury. Mercantile Trust Co. v. Lamar, 128 S. W. 20; Lipscomb v. Mastin, 125 S. W. 1177; Henderson v. Mace, 64 Mo. App. 396; Glover v. Henderson, 120 Mo. 376; Sallee v. McMurray, 113 Mo. App. 267.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) This case is governed by the law of New York, inasmuch as the property here involved is situated in that state, and the contract was both made and to be performed therein. Richardson v. De Giverville, 107 Mo. 422; Stix v. Matthews, 68 Mo. 371; Parks v. Ins. Co., 26 Mo. App. 511; Roach v. Type Foundry, 21 Mo. App. 1. (2) The common law is presumed to prevail in the state of New York.

<p>1. MASTER AND SERVANT: Injury to Servant: Assumption of Risk: Injury Arising From Method of Business. While it is the master’s duty to furnish a servant reasonably safe appliances and place to work, yet the master may conduct his business in his own way, so long as such way is not unlawful; and if a servant, knowing the hazard of the employment, as the business is being conducted, sees fit to undertake its performance, he impliedly waives the right to compensation for injuries resulting from the method of conducting the work, although a different method would be less dangerous.</p> <p>'2. -: -: -: -: Facts Stated. An experienced workman, employed to pass sheets of leather through a splitting machine in a shoe factory, assumed the risk of being injured on account of his hand becoming .caught by a flap on the leather, where the employer’s known method of doing the work, which required the flaps to be left on the sheets, was not unlawful, and the danger of injury therefrom was open and obvious.</p> <p>U. -: -: Failure to Guard Machinery: Sufficiency of Evidence. In an action for injury to an employee, resulting from having his hand caught in a splitting machine in a shoe factory, held, evidence that another machine of like kind in the same factory was equipped with a guard of a practical character, which, no doubt, would have prevented plaintiff’s injury, and that it would have been practical to maintain such a guard on the machine in question, a place for it having been created in the manufacture of the machine, was sufficient to establish negligence on the part of defendant in failing to guard the machine.</p> <p>4. -: Furnishing Appliances: Duty of Master: Duty not Delegable. It is the duty of the master to exercise ordinary care toward rendering an appliance furnished for the servant’s use reasonably safe, and this duty, being personal to the master, can not be evaded by delegating it to another.</p> <p>5. -: Injury to Servant: Failure to Guard Machinery: Assumption of Risk. A servant in a shoe factory, employed to feed leather into a splitting machine, does not assume the risk of injury from his hand slipping into the machine by reason of there being no guard on the machine, since such injury was the result of the master’s negligence in failing to provide a guard, and not the result of the mode and manner in which the servant performed his work.</p> <p>6. -: -: -: Instructions: Conformity to Issues. In an action for injury to a servant, resulting from having his hand caught in a splitting machine in a shoe factory, it was error to submit an instruction to the jury, authorizing them to find for plaintiff, if the machine was “so placed” as to be dangerous, and was not guarded, when the petition contained m> specification of negligence that the machine was “so placed” as. to be dangerous.</p>

— Eon. Chas. D. Stewart, Judge. (1) The verdict of the jury is improper and insufficient in form, and not responsive to the issues made by the pleadings, in the following particulars: The verdict failed to make a separate finding on each count of plaintiff’s petition.

— Eon. Charles D. Stewart, Judge. “(1), The “complaint verified by affidavit and ten days notice” as required by section 42 are jurisdictional and necessary, in order to authorize a court to act in the removal of a guardian or curator. Sec. 42, R. S. 1899; In re Estate of Padgett, 114 Mo. App. 812; Llewellyn v. Llewellyn, 87 Mo. App. 9; 1 Woerner’s American Law of Administration, sec. 272.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The delivery of the three cars hy the consign- or, Kennesaw Hardwood Lumber Company, to the initial carrier at Atlanta, Georgia, consigned to plaintiff at East St. Louis, Illinois, prima facie entitled plaintiff to delivery at East St. Louis. Were there no further facts in the case, defendants would have been bound to make delivery to plaintiff at East St. Louis on May 29th, and would undoubtedly have done so.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) Plaintiff was not entitiled to recover under the assignment charging failure to warn him of the car’s approach, because there Avas no evidence of such failure. MeOreery v. Railway Company. 221 Mo. 18.

<p>Appeal from St. Louis City Circuit Court. — Son. Daniel D. Fisher, Judge.</p> <p>(1) Plaintiff’s peril was created solely by his own negligence. His petition is based on the humanitarian, or last chance doctrine, and avers and concedes ■his own negligence. Metz v. Railroad, 217 Mo. 275; Krehmeyer v. Transit Co., 220 Mo. 639; Murphy v. Railroad, 228 Mo. 56; Schmidt v. Railroad; 140 Mo. Ápp. 182; Dey v. Railroad Co'., 140 Mo’. App. 461; Parrish v. Railroad, 140 Mo. App. 700; Hough v. St. Louis Car Co., 1-46 Mo. App. 58; Felver v. Railroad;-216 Mo. 195. (2) After the evidence was all in, the court against the defendant’s objection and protest, allowed the plaintiff to strike out that portion of his petition in which he in-yoked the humanitarian doctrine. The court erred in allowing the plaintiff to thus shift his position at that ■stage of thé case.' (3)' The court erred in refusing defendant’s demurrer to the evidence at the close of the .whole case. Having allowed the plaintiff to strike, out the allegations which were intended to excuse his own negligence, the petition then presented a case in which the facts constituting the plaintiff’s negligence were admitted, and hence stated a case of mutual or concurrent negligence which barred plaintiff’s recovery. . (4) The court erred in the instructions, which it gave at the instance of the plaintiff and on its own motion. The answer clearly and pointedly charged contributory negdigence on- the part of the plaintiff, but plaintiff’s instruction purporting to cover the whole case on' his right to recover ignored the defense altogether. The •-same error occurs in the instruction given by the court oil its own motion. This constitutes reversible' error.. Percell v. Railroad, 126 Mo. App'. 53; Hohstadt v. Daggs, 50 Mo. App. 240; Bolles v. Railroad,. 134 Mo, App. 696; Clark v. Hammerly, 27 Mo. 70; Fitzgerald v. Hayward, 50 Mo. 615; Mansur v.'Botts, 80 Mo. 651. (5) The verdict is excessive. The plaintiff suffered no permanent injury, and there is no element of wantonness or malice in the case.</p>

Lonis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. The court should have granted Sol Rubenstein a decree of divorce, and should have denied Mrs. Rubenstein relief in the maintenance suit. In divorce and maintenance suits it is the duty of the appellate court'to weigh and consider all the evidence and direct such change in the judgment as to it seems proper. It is not bound by the findings of the trial court. Strahorn v. Strahorn, 82 Mo.

<p>DIVORCE: Denial of Divorce: Finding of Trial Court Approved. In an action for divorce, held that tbe decree of tbe trial court denying plaintiff a divorce was proper.</p>

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) The petition does not state a cause of action;, it omits essential averments: (a) It omits to aver that the lot is in the taxing district; an essential fact, not-met by the averment that the lot is within a district. “defined and bounded by section 14, article 41” of the •charter. That averment is a conclusion of law.

— Hon, James D. Barnett, Judge. (1) The property used and occupied by the plaintiff in the town of Olney was her homestead. She and her husband had lived there for eighteen years and had no other home. She continued to live there and use it as her home after her husband’s death. Peake v. Cameron, 102 Mo. 568; Thompson, Homestead, sec. 411.

Louis City Circuit Court. — Eon. George E. Williams} Judge. (1) Where the verdict and judgment were for the right party and no prejudicial error was committed, it is the duty of the appellate court to reverse the order of the trial court granting a new trial. 'Orawford v. Stock Yards, 215 Mo. 394; Simonton v. Transit Co., 207 Mo. 718; Deschner v. Railroad, 200 Mo. 310; Schmidt v. Railroad, 163 Mo. 645; Richardson v. Drug Co., 92 Mo. App. 516; Campbell v. Railroad, 86 Mo.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) The court erred in overruling defendant’s challenge for cause to juror, William Klasek, on Ms voir dire, on the ground that said juror wasprejudiced against defendant. Heidbrink v. United Railways, 133 Mo. App. 40; Theobold v. Transit Co., 191 Mo. 428. (2) The court erred in overruling defendant’s demurrers to the evidence.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The measure of damages for a breach of the covenant of seizin, in case of total failure of title, has always been limited to the purchase money paid, with interest thereon and costs.

— Hon. F. G. Johnston, Judge. (1) The attachment, which was the only-possible basis of the motions for the order to produce the attached property, and for assignment of the alleged bond, had been utterly dissolved and extinguished as if it had never existed, by reason of the adjudication of defendant’s bankruptcy; and, under the United States Court’s decisions, the invalidity of such attachment is open to attack, either direct or collateral; and, in consequence, all rights…

— Eon. W. N. Evans, Judge. (1) Tbe plaintiff’s instructions are unquestioned law. Where a real estate broker entrusted with the sale of land procured a purchaser and while negotiating with him the owner closed a trade with the purchaser through another broker at a less price, the first broker was entitled to recover a commission. Holland v. Yinson, 124 Mo. App. 417; Hogan v. Slade, 98 Mo. App. 44; Hovey & Brown v. Aaron, 133 Mo. App. 573; Wright & Orrison v. Brown, 68 Mo.

— Eon. Argus Cox, Judge.. (1) The evidence in this case clearly shows that the city of Granby had a population of over 2500 at the time of holding the local option election for Newton county,, and yet that city was included and voted on the question along with the county. This would render the election void. State v. Webb, 49' Mo. App. 407; State v. Mitchell, 115 S. W. 1098; State ex rel. v. Cass County, 137 Mo. App. 698.

— Hon. W. N. Evans, Judge. (1) Burden of proving tlie instrument rests upon defendants. They are required to show the testator was of lawful age and of sound mind, as well as the due execution of the will. Harris v. Hays, 53 Mo. 96; Holton v. Cochran, 208 Mo. 410; Mowry v. Norman, 204 Mo. 189; Cowan v. Shaver, 197 Mo. 212.

— Hon. D. E. Blair, Judge. (1) On tlie first assignment of error plaintiff cites the statute section 7268, E. S. 1909, which provides “that no person shall be summoned as such standing juror twice within the period of one year in any court of record. Williamson v. Transit Go., 202 Mo. 368; People v. Thacker, 108 Mich. 652; Brooks v. Jennings County, 73 N. E. (Ind.) 951.

— Eon. Edward J. White, Special Judge. (1) Plaintiffs, being interested in tbe property, paid tbe incumbrance to protect tbeir own interest, and were thereby entitled to be subrogatetd to all tbe rights of tbe bolder of tbe incumbrance so paid. Evans v. Halleck, 83 Mo. 376; Norton v. Highleyman, 88 Mo. 621; Bunn v. Lindsay, 95 Mo. 258, 27' Am. and Eng. Ency. Law (2 Ed.) 203; Capen v. Garrison,'193 Mo. 343. (2) Subrogation is a doctrine of equity jurisprudence.

— Hon. David E. Blair, Judge. (1) In an action of deceit, the plaintiff must allege and prove that the representations were false and that they were known to be false by the defendant at the time they were made, or that the representations were made by defendant as of his own knowledge when in fact he had neither any knowledge on the subject nor any reasonable ground to believe the representations so made to be true. Paretti v. Revenack, 81 Mo.

— Hon. W. N. Evans, Judge. The construction of a contract is a question of law for the court and not an issue of fact for a jury. Rogers v. Modern Brotherhood, 131 Mo. App. 353; State to use v. Donnelly, 9 Mo. App. 520; Lumber Co. v. Warner, 93 Mo. 374; Chapman y. Railroad, 114 Mo. 542; Matthews y. Danaliy, 26 Mo. App. 660. (2).

— Hon. Henry L. Bright, Judge. (1) The property only cost $40,000 and according to the sworn testimony of the two defendants, the property was turned for the whole of the capital stock of the corporation and the capital stock of the corporation was $100,000. From the testimony, I think that the court could have found that they paid no money whatever for their shares of stock and that they were liable for the total amount of the $5000 if held by them in the corporation.

— Hon, James T. Neville, Judge. The doctrine of the common law that the administrator takes property in absolute title does not prevail in this.State. The adjustment and disposition by parties in interest, in absence of affirmative showing that there are creditors, controls the title of administrator. Smarr v. McMasters, 35 Mo. 349; Stagg v. Linenfelser, 59 Mo. 336; Chandler v., Stephenson, 68 Mo. 450; Lessing ■ v. Yertrees, 32 Mo. 431; Richardson v. Dreyfus, 64 Mo.

— Eon. David E. Blair, Judge. (1) The withdrawal of au appearance is within the discretion of the court. As a general rule it should he allowed when the appearance is unauthorized. 3 Cyc. 529; Graham v. Spencer, 14 Fed. 603; 2 Amer. & Eng. Ency. PI. and Pr. 696. (2) If a party makes a motion in a cause, limiting his appearance to a particular purpose, this does not constitute a general appearance. 2 Ency.

— Eon, D. E. Blair, Judge. (1) Before admitting the contracts and assignments bf the St. Dunstan’s Society in evidence, plaintiff should have been required to prove the corporate existence of said society and also to establish by competent evidence the authority cf the officers of said corporation to execute and deliver the contracts so assigned. E. S. 1899, sec. 746; Hyde v. Larkin, 35 Mo.

<p>Appeal from Sullivan Circuit Court. — Son. John P. Butler, .Judge.</p>

<p>1. RAILROADS: Negligence: Experience: Hand Car: Brake. ■ Where the foreman of a “section gang” on a railway, who-aré riding on a hand, ear, going at ten miles an hour, orders one of the men, who is inexperienced in the management or control of such cars, to apply the brake for the purpose of stopping,' and the man in attempting to do so, using due care considering his experience, .is thrown from the car and injured, the railway company is liable in damages.</p> <p>2. -: -: -: Duty to Instruct. If a master employs an adult hut inexperienced servant to operate dangerous machinery with which he is unacquainted and which requires experience to operate safely, it is the duty of the master to instruct the servant how the work may be done with reasonable safety.</p> <p>3. —=-: -: -: Evidence: Blacksmith. Evidence that a section man on a railway had been; prior to such employment, a blacksmith, did not establish that he was a competent man to operate a brake on a hand car running on a railway at ten miles per hour.</p>

<p>1. CARRIERS OF LIVE STOCK: Jurisdiction: County of Suit: Several Liability. In a suit to recover damages by reason of tbe negligence of the connecting carrier in failing to deliver cattle on the Chicago market within a reasonable time, the connecting carrier pleaded want of jurisdiction because its railroad did not pass through the county in which suit was instituted, and because it was served in another county. Held, that section 5446, R. S. 1909, provides that the suit may be brought in any county in the state where process may be served, and the fact that there was no joint liability between the connecting carrier and the initial carrier (which was in county of suit) cannot affect the question of jurisdiction, as the statute by its terms provides for recovery on the ground of the separate liability of the connecting carrier.</p> <p>2. EVIDENCE: Witnesses: Market Prices. In an action for damages for unreasonable delay in delivery of live stock, plaintiff testified that he knew what the market prices were on particular days, and that he had had twenty years experience in buying and selling cattle. He was not cross-examined as to his' qualification to testify as an expert. Held, that the admission of this evidence was not erroneous.</p> <p>3. ->: Witnesses: Refreshing Memory: Trade Journal. A witness who had been engaged for many years in the live-stock commission business was allowed to refresh his memory by reference to the “Drover’s Journal,” a publication that recorded the daily sales of cattle and other stock on the market. Held, that it is competent for a witness to thus refresh his memory.</p> <p>4. CARRIERS OF LIVE STOCK: Negligence: Proof of Delay in Transportation. Where the plaintiff seeks to recover upon the ground of negligent delay in transporting his cattle to .market, he is not entitled to recover by merely showing that there was delay, but must go further, and show that the delay was caused by negligence, although slight evidence of negligence is sufficient.</p> <p>5. -: -: Duty to Carry with Reasonable Despatch. Although a carrier of live stock is under no obligation to transport a shipper’s cattle for any special market or by the utmost despatch, it is bound to carry them by some train in such time as would cause their arrival within a reasonable -time.</p> <p>6. -: -: Proof. Where defendant contends that, even admitting that there was- negligent delay, in any event the cattle would not have reached their destination in time for a certain market, and that therefore plaintiff was not injured, and, as proof thereof submits the schedule time of the train in question, held, that defendant must go further, and show* that it had no other scheduled or unscheduled trains than the ones shown by which plaintiff’s cattle could have reached the market on time.</p>

<p>1. CARRIERS OF PASSENGERS: Negligence: Passenger Thrown From Car: Evidence Consistent with Physical Facts. Plaintiff sued for damages for personal injuries received by being thrown from a s.treet car. She left her seat and went to the rear vestibule to alight, and, while standing in the vestibule, the car was suddenly started forward with a quick motion, and she was thrown from the car. Held, that the demurrer to the evidence was properly overruled.</p> <p>2. -: Evidence: Rebuttal or in Chief: Admission. After the close of defendant’s testimony, plaintiff was permitted to introduce a witness who testified as to the place where plaintiff fell. This was objected to on the ground that this was evidence not in rebuttal, but in chief. Held, that whether the evidence was strictly in rebutttal or not, its admission was not prejudicial error, as such matters are chiefly in the discretion of the trial court.</p> <p>3. -: Pleading: Variance Between Petition and Instruction: When Non-Prejudicial. Where the gravamen of the charge was the negligence of the company in causing the sudden jerk of the street car at a crossing, a variance between the petition and an instruction, and also as to the proof, does not constitute error where the defendant was not prejudiced by it.</p> <p>Í. -: Passenger Thrown from Car: Measure of Damages. Where plaintiff’s instruction confined plaintiff’s right to recover for the injuries which she may have sustained by reason of being thrown from the car, and for pain of body and mind already suffered, and for those which she may reasonably suffer in the future, and for permanent injuries, if any, such an instruction was not a roving commission, but should be sustained.</p> <p>6. -: -: Evidence: Question Assuming Controverted Fact. Where the question -asked conductor by defendant assumed that plaintiff was going to get off the car before it stopped, the plaintiff’s objection thereto was rightfully sustained, because such a question assumed controverted matter about which the witnesses differed.</p> <p>6. -: -: Acts Preliminary to Getting Off: When Not Negligent. It is not error to refuse aif instruction asked by defendant which was grounded on the theory that it is negligence for a passenger to get up from his seat on giving the signal for a stop, and to go to the platform, and stand upon it ready to get off when the car stops. Such acts on the part of the passenger are in compliance with the habit of the public, and are expected as they tend to expedite transportation.</p>

<p>INJUNCTION: Obstructing Ditch: Failure of Proof. In a proceeding by injunction to restrain defendant from obstructing a certain ditch, where the petition alleged that plaintiff, and the then owner of the lands adjoining plaintiff’s, entered into an agreement to cut a ditch from plaintiff’s land and on through the adjoining land, but where plaintiff entirely failed to prove the alleged agreement as to the ditch in controversy, he was not entitled to recover.</p>

<p>1. SALES: Deposit of Proceeds: .Claim of Seiler. S, desiring to assist M, agreed with a bank that if it would cash the latter’s checks in the purchase of live stock, he would pay whatever M, might owe the bank at the wind-up. M, then began buying stock by checking on the bank and selling it and depositing the proceeds with the bank. This continued for several months when the matter was closed and M was found' to be behind with the bank in the sum of $220, which S paid. But while the account was yet open, M bought some sheep from O on a cash sale, and gave him a check for $60 for them, and then sold the sheep and deposited the proceeds with the bank to the credit of his account. O did not present the check for payment for four weeks, which was two weeks after the account was closed, and S had paid the balance. O then sued S for the amount of the check. Held, that he did not have a cause of action.</p> <p>2. -: -: Cash on Delivery: Title: Check: Delay. Though title will not pass to the buyer of personal property on a cash sale, yet if the seller delivers the property and accepts a check as an order for the money, but does not present it for four weeks, and the buyer sells the property, the seller has no claim on the proceeds in the hands of third parties.</p>

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

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p>

.Appeal from Jackson Circuit Court. —Hon. Jas H. Slover, Judge. (1) Appellant contends that this case should be-reversed, for the reason that on all the evidence the-court should have directed a verdict for defendant. Barnard v. Railroad, 137 Mo. App. 684; Hebeler v. Railroad, 132 Mo. App. 551; Gessner v. Railroad, 137 Mo. App. 47; Gabriel v. Railroad, 130 Mo. App. 651. (2) The court erred in giving instruction No. 1 at plaintiff’s request.

— Hon. Thos. J. Seehorn, Judge. (1) It is essential to a valid notice of appeal from a justice’s court that a venue be laid and that the' state, county, township, or before what justice the judgment was taken he set forth. Pettingill v. Donnelly, 27 Minn. 332; Morris v. Brewster, 60 Wis. 229. (2) The judgment is not sufficiently designated if the amount of the judgment is not set out.

— lion. James H. Slover, Judge. (1) Carriers of passengers not being insurers of the safety of passengers are not liable for injuries to such passengers unless negligence is shown. Witters v. Railroad, 132 S. W. 38; Hite v. Railroad, 130 Mo. 132 and cases cited; Pryor v. Railroad, 85 Mo. App. 379; Evers v. Wiggins Perry Co., 116 Mo. App. 130, 138, and cases cited; Saxton v. Railroad, 98 Mo. 503, and cases cited; Banks v. Railroad, 40 Mo.

— Eon. E. C. Timmonds, Special Judge. (1) The election of the Hon. H. C. Timmonds as judge on Thursday, April 1, 1909, the same being the sixty-seventh day of the January, 1909, term of the circuit court of Jackson county, Missouri, was only for the balance of that term, and when the April, 1909, term of the same court opened on the 12th day of April, 1909, with the Hon. Thos.

<p>1. CARRIERS OF PASSENGERS: Assault: Instructions: Actual Damages. This' is an action by a passenger against a street railway company for an assault hy one of its employees. Plaintiff had received a very painful injury in the face. Defendant attacked his instructions on the grounds that they gave a roving commission to the jury to award speculative damages, and v that they were not specific enough. Meld, that, where the instructions restricted the assessment of actual damages to compensation for bodily pain and injury, they were not erroneous. Such a defect is a mere non-direction,' constituting no ground for reversal.</p> <p>2. -: -: -: Punitive Damages. The same principle applies also to the instructions relating to punitive damages.</p> <p>3. -: -: Damages not Excessive. Where the evidence shows beyond dispute that an assault upon a passenger was . wholly unjustifiable, and where plaintiff’s cheek hone' was fractured, and he was incapacitated, for 'two weeks, suffered great pain, and is still disfigured hy a scar left hy the wound, neither the $1000 allowed as compensatory, nor the $750 allowed as punitive, damages is excessive.</p>

— Hon. John G. Park Judge. (1) Appellant’s demurrer to plaintiff’s evidence should have been sustained as the city did not have either actual or constructive notice of the dangerous condition of the walk which caused respondent’s injury. Fehlhauser v. St. Louis, 178 Mo. 635; Dwyer v. Boston, 180 Mass. 208; McFeéters' v. New York, 102 App.

— Hon. Sam Sparrow, Special Judge. (1) The court erred in not sustaining defendant’s demurrer to the second count of petition at the conclusion of the evidence offered by the plaintiff. Whit-ting v. Railroad, 101 Mo. 639; Milling Co. v. Transit Co., 122 Mo. 274; Holtzclaw v. Duff, 27 Mo. 394; McCarthy v. Waif, 40 Mo. 323; Plow Co. v. Railroad, 61 Mo. App. 374; Cohen v. Railroad, 59 Mo. Ápp. 68.

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

— Hon. Samuel Davis, Special Judge. (1) The court erred in instructing the jury that they might convict the defendant on each count and should do so if they found he made both sales charged in the indictment and in failing to instruct them that they might acquit him on each count or either count of the indictment, where the court attempted in one instruction to define the law governing the whole case.

<p>Appeal from Pettis Circuit Court. — Hon. Charles Hoffman, Judge.</p>

<p>Error to Jackson Circuit Court. — Hon. Hermann BTurnback, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Mon. Walter A. Poivell, Judge.</p>

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

<p>Appeal from Jackson Circuit Court. — Hon. James H. Slover, Judge.</p>

<p>CRIMES AND PUNISHMENTS: Intent: Tearing Down Fence: Dedication of Street. Defendant was tried upon information under section 4598, R. S. 1909 (section 1958, R. S. 1899), for willfully and maliciously tearing down a certain fence in which he had no interest. The real issue was one of fact going to the intent of defendant which depended upon the further question of whether defendant had the right to tear down the fence. Defendant claimed that the fence crossed a public street; the state contended that as the street had never been used as such, and had been fenced up by private persons, and in their possession for a period of ten years, it was not a public highway. The town in which the alleged street was situated was never incorporated, and the street was never used by the public. There was an attempt to dedicate, as provided by statute, but the public never accepted the proffered dedication, nor used the land for street purposes. Held, that, although the attempt to dedicate would have been treated as a common-law dedication, had it been accepted by the public, however, since there .was in fact no dedication of the land for street purposes, the defendant was not authorized to tear down the fence of private persons, they being in possession, and claiming title to the land. As against defendant, possession for any length of time with claim of title was sufficient.</p>

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

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

<p>ACTIONS: Suit for Maintenance of Child: Barred by Pending Divorce Suit. During the pendency of a divorce suit between her husband and herself, the wife brought an independent 'suit at law against her husband for expenses already incurred and defrayed by her in the maintenance of their minor child. Plaintiff grounded her action on the primary duty of the husband at common law to support his offspring. The issue litigated in the present case was actually litigated and determined in the diyorce suit. Held, that the latter suit, during its pendency, was a bar to the maintenance of a later independent suit for a cause properly at issue in the divorce proceedings, since the statutes (sec. 2375, R. S. 1909 et seq.) provide for the determination in the divorce proceedings of all issues relating to the custody and support of the children pendente lite, and since section 1800, R. S. 1909, bars two actions for the same cause between the same parties at the same time.</p>

<p>1. SALES: Warranty: Fraud: Latent Defect. In an action to recover damages for breach, of warranty, and for fraud practiced in the sale of a mule, the sale being at public auction, and the bidding stopping at seventy-five dollars, it appeared that the auctioneer turned to the defendant’s secretary, whom the evidence of plaintiff showed then knew that the mule had a disease of the kidneys, and asked the secretary, “what is the matter with the mule,” and, in the hearing of the bidders received the reply that the mule was “straight and all right.” Plaintiff relying on this statement bid in the animal at $122, which shortly after died. Held, that where the defect was latent, and with knowledge that it existed, defendant’s secretary gave positive assurance of the soundness of the animal under circumstances disclosing an intent, to deceive bidders into paying a sound price for an unsound commodity, the representations thus made will support an action for fraud as well as for breach of warranty.</p> <p>2. -: -: Form. To constitute a warrant of quality or condition, the law does not require that the agreement he in writing, or that the word “warrant” he used, or-that any'other word or verbal form be employed, and where the defect is not discoverable upon ordinary inspection, representations of soundness made by the vendor with the intent and purpose of inducing the vendee to rely on them, and their acceptance • by the vendee, will constitute a warranty.</p> <p>3. EVIDENCE: Impeaching Own Witness: When Permissible. Where the judge permitted plaintiff to ask questions of an unfriendly witness produced by him which tended- to impeach the credibility of the witness, the rule is that the trial court in its discretion may suffer the party to show why he called the witness, though in so doing he may tend to discredit his own witness, and hence the interrogation in question was proper.</p>

<p>APPEAL AND ERROR: Second Appeal: Sufficiency of Evidence. Where, on second appeal the evidence lacking, for which a new trial was granted and appeal taken hy plaintiff, is supplied, the judgment will he affirmed. (S. c., 136 Mo. App. 353.)</p>

— Eon. E. E. Porterfield, Judge. (1) The petition states no cause of action under the double damage act, because it is not alleged that the place where the horse entered the right of way was one required by that section to be fenced; it does not state one under the single damage act (sec. 2867) because no facts are alleged which show that the right of way might have been fenced; nothing but a conclusion of law. Radcliffe v. Railroad, 90 Mo. 133; Redmond v. Railroad, 104 Mo.

— Hon. IF. B. Teasdale, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. Under either version of the accident as given by plaintiff’s witnesses deceased was guilty of such contributory negligence as bars a recovery. McGrath v. Railroad, 197 Mo. 107; Davies v. Railroad, 159 Mo. 6; Ciancey v. Transit Co., 192 Mo. 655; Wheat v. City of St. Louis, 179 Mo. 572.

— Hon. W. O. Thomas, Judge. (1) If the contract be construed as contended for by respondent the result would be most inequitable and unfair to appellant. When the wording of a contract permits, the courts will so construe it as so constitute a fair and equitable arrangement between the parties. Coghlan'v. Stetson, 19 Fed. 727; Robinson v. Stowe, 39 111. 568; Bickford v. Cooper & Co., 41 Pa.

— Eon. John G. Park, Judge. (1) The motion, upon which the hearing was had, asked for alimony for the wife, and the order of the court was for support for the children. The judgment -was, therefore, erroneous.

<p>1. CARRIERS OF LIVE STOCK: Negligent Delay of Connecting Carrier: Liability of Initial Carrier Therefor. In an action by a shipper of cattle against a common carrier to recover damages caused by the negligent delay of the connecting carrier, the facts showed conclusively that the contract of affreightment was for a through shipment to Chicago, and not for the transportation of the property only to the end of defendant’s line at St. Louis. Held,, under the construction placed on section 5446, R. S. 1909, that, if the receiving carrier’s contract is to transport the freight to the point of destination, it cannot limit its liability for the negligence of the connecting carrier, and that the receipt of freight, and ’ issuing of bill of lading therefor to a destination beyond its own line is prima facie an agreement to carry it to such point, that to prevent such an operation of the contract, it becomes necessary for the initial carrier to stipulate that it is only to carry it to the end of its own line.</p> <p>2. -: Authority of Agent of Initial Carrier: Contract for Delivery to Connecting Carrier. The claim that as a matter of law, an agent at the initial shipping point had no authority to contract to carry the stock heyond defendant’s line, and that his lack of authority appeared on the face of the contract of affreightment is without merit, because such a provision was a nullity. Having failed to limit his company’s liability, as he had a right to do, the statute makes the shipment a contract for carriage for the entire route, or is evidence of such a contract which is the equivalent.</p> <p>3. -: Delivery to Connecting Carrier: No Notice to Initial Carrier Required. Where the undisputed evidence shows that the cattle were reloaded at St. Louis, and shipped on the original bill of lading issued by defendant, the initial carrier, under the terms of the shipping contract, and where there was nothing in such contract requiring shipper to give notice to defendant of his intention to ship to Chicago, the contract cannot be' held to have terminated at St. Louis, because of plaintiff’s failure to give such notice.</p>

— Hon. Thomas J. Seehórn, Judge. (1) The court erred in giving instructions numbered 3, as modified. This instruction assumes that a wrong was done to plaintiff. Wright v. Fonda, 44 Mo. App. 634. (2) The court erred in giving instruction numbered 4 for plaintiff. The court erred in giving instruction numbered 9, as modified, because said instruction assumes that there was at least some injuries.

— Hon. Thomas J. Seehorn, Judge. (1) The court erred in overruling defendant’s motion in arrest of judgment for the reason tliat the petition does not state facts sufficient to constiute a cause of action. Stone v. Craves, 8 Mo. 148; State v. Fitzsimmons, 30 Mo. 236; State v. Pittman, 76 Mo. 56; State v. Fairgrieve, 29 Mo. App. 641; Comonwealth v. Abell, 29 Ky. 476 (6 J. J. Marsh).

Circuit Court. — New. E. E. Porterfield, Judge. (1) (a) The Attorney’s Lien Law, sections 964-65, R. S. Mo., 1909, does not vest in the attorney a property right in his client’s canse of action, but merely gives him a lien on the proceeds thereof to insure the payment of his fee for services. Laughlin v. Powder Co'., 134 S.' W. 116; Hurr v. Railroad, 141 Mo. App. 217; O’Connor v. Transit Co., 198 Mo. 622, 641-642; Curtis v. Railroad, 118 Mo.

A. D. Burnes,' Judge. (1) Plaintiff’s instruction numbered 1 is erroneous in that it fails to authorize the jury to take into consideration, in making up their verdict, the defense to said policy,- namely, “that said property was not a total loss, only partial,” and said instruction authorizes a verdict for plaintiff if they find’ that plaintiff notified defendant of said loss, and defendant denied liability under said policy, thus directing and telling the jury that if such…

— Eon. Thomas J. Seehorn, Judge. (1) The plaintiff was guilty of contributory negligence and tbe demurrer to tbe evidence should bave been sustained. Herdt v. Koenig, 137 Mo. App. 589; Yorratb v. Burke, 63 N. J. Law, 188; Sbackford v. Coffin, 95 Me. 69; MitCbell v. Stewart, 187 Pa. St. 217.

— Hon. Walter A. Powell, Judge. (1) The letter complained of is not libelous per. se. Kenworthy v. Journal Co., 117 Mo. App. 327; Legg v. Dunleavy, 80 Mo. 558, 562; Julian v. K. C. Star, 209 Mo. 35, 71; 25 Cyc. L. and P. 243; 2 Bouvier’s L. Diet. 207. (2) The petition does not state a cause ■of action. McManus v. Jackson, 28 Mo. 56; Christal v. Craig, 80 Mo. 367; Legg v. Dunleavy, 80 Mo. 558; Wood v. Hilbish, 23 Mo. App. 389.

— Hon. Lucian J. Eastin, Judge. (1) The ground for divorce alleged by plaintiff in this case was adultery, committed by the mother of the plaintiff’s son, for whom he pretends to have such great affection.

— Eon. B. G. Thurman, Judge. (1) The defendants, Keller and Fetters, having given an appeal bond with T. E. Stacey and Harrison Keller as sureties conditioned that they should prosecute their appeal with due diligence to a decision, and thereafter the appeal having been dismissed this was a breach of the bond and rendered the sureties liable. Campbell v. Harrington, 93 Mo.

— Hon. David E. Blair, Judge. . (1) The deed of trust executed and delivered by the Optimo Lead & Zinc Company, an Arizona corporation which has not complied with the laws of this State, is a contract. Contracts made by foreign corporations doing business in this state which have not complied with the laws of this state are void. Tri-State Amusement Co. v. Amusement Co,, 192 Mo. 423; Roeder v. Robertson, 202 Mo. 536; Erhardt v. Robertson, 78 Mo.