Volume 159 — Missouri Appeal Reports

— Hon. B. Steele Byors, Judge. (1) The payment by the defendant and the acceptance by plaintiff of the rent for the months of March, April, May and June, 1909, after the expiration of Bennett’s original lease, containing the clause, “with the privilege of renewal for five years,” had the legal effect to renew the original lease for a term of five years, and to continue in force and effect all the provisions of said original lease.

— Hon. James D. Barnett, Judge. (1) The evidence of plaintiff’s attorney, Bruton, was inadmissible. It related to remarks made by the defendant as against the plaintiff the morning of the 15th of September, the forenoon of the day when the difficulty occurred. Evidence of threats in a case of assault is admissible on the ground that it may show who was the aggressor. State v. McNally, 87 Mo. 644.

Louis City Circuit Court. — Hon. George H. Shields, Judge. Plaintiff, if entitled to recover at all, was entitled to recover only under sec. 5427, Gen’l Stats. Mo. 1909, on account of the death of her son, and not a penal sum. The damages should have been limited to nominal damages only. If plaintiff was entitled to more than nominal damages the damages assessed are excessive.

<p>Appeal from St. Louis City Circuit Court. — lion. George C. Hitchcock, Judge.</p> <p>Transferred to Supreme Court.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) There is, as a matter of law, a difference between the office of manager of a hotel and that which the plaintiff originally contracted to fill. Wheeler, etc., Co. v. Lawson, 57 Wis. 404; Oro, etc., Co. v. Kaiser, 4 Colo. App. 224; Kansas City v. Cullinane, 66 Kansas, 77; Taylor v. Assn., 136 N. Y. 46. (2) An assistant is one who stands by and helps or aids another. State ex rel. v. Longfellow, 95 Mo.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The defendant was a holder for value of the cheek for the amount of which a recovery was had in this action. R. S. 1909, secs. 9995, 9996, 9999; Tied ornan on Bills and, Notes, sec. 113; Jennings v. Todd, 118 Mo. 296; Hamilton v. Marks, 3 Mo. 178; Hayes v. Robinson, 93 Mo. 122. (2) No title, right or interest in said check or its proceeds passed to the plaintiff as trustee in bankruptcy.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The ordinance does not require the operator or operators to ride upon the elevator; there is no evidence that those who operated it were not qualified in all respects as the ordinance requires. There was no proof of any failure to obey the ordinance, as such law has been construed by the Supreme Court. The burden of proof on these points was on plaintiff and it was never discharged.

Appeal, from Montgomery Circuit Court. — Hon. J. D. Barnett, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and the court erred in overruling defendant’s objection, to the admission of any evidence; the petition showing contributory negligence of deceased and no allegation bringing the case within the humanitarian doctrine. Nivert v. Railroad, 135 S. W. 33; authorities cited under point 3.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The law favors the free and untrammeled use of real property. Restrictions in conveyances of the fee are regarded unfavorably, and are therefore strictly construed. Hutchinson v. Ulrich, 145 111. 33; Eckart v. Irons, 128 111. 568; 6 Am. and Eng. Eney. Law (2 Ed.), 513.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) “Cash” means ready money, placed where the owner can command it at any time. It does not include promises to pay in the future. Long v. Strauss, 107 Ind. 94; Crocker v. Crane, 21 Wend. 211; Palliser v. U. S., 136 U. S. 257; State v. Moore, 48 Neb. 870; 6 Cyc. 700. -(2) A certificate of deposit is a mere promise to pay money.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The facts shown as to the condition, size and number of broken bolts and supports of the shaft which fell, the fact that the' bolts or screws holding the journals had worked loose and had to be tightened, the coming off of the ropes a short time prior to the accident showing the shaft and sheave not properly or accurately in alignment was circumstantial evidence of negligence sufficient to support a verdict in favor of…

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) Plaintiff’s first instruction is reversible error, because it invades tbe province of tbe jury by peremptorily fixing the amount of plaintiff’s recovery. Cates v. Nickel, 42 Mo. 169; Dawson v. Wombles, 111 Mo. App. 532; Lederer v. Morrow, 132 Mo. App. 438; Kroge v. M. B. of A., 126 Mo. App. 693; Corbitt v. Mooney, 84 Mo. App. 522; Burgbart v. Brown, 60 Mo. 24.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Two essentials are necessary to make good a gift inter vivos: there must be an intention to give and there must be a complete, unconditional delivery. Both must concur; the one is not' sufficient without the other.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) If it was an error to sustain defendant’s motion to elect, it was a harmless one. Instead of electing on which count he would stand he voluntarily dismissed the second count of his petition. (2) The court did not err in requiring plaintiff to elect. Brinkman v. Hunter, 73 Mo. 172; Enterprise Soap Works v. Sayers, 51 Mo. App. 315.

<p>1. ATTORNEY AND CLIENT: Attorney’s Lien: Remedies. While no provision is made by section 964, Revised Statutes 1909, for the enforcement of the attorney’s lien created by it, the courts will look to the common law for an adequate remedy. The lien may be enforced by a motion to set aside satisfaction and to award execution to the extent of the lien, and where the proceeds' of a judgment subject to the lien have been paid to another, the attorney may follow the same into the hands of such person. The lien may also be enforced against a party who has made a settlement in disregard of the attorney’s contract, even though he has paid the claimant, provided he had notice, as required by section 965, but if the settlement was.made after suit was brought, no notice was necessary.</p> <p>2. -:-: Notice: “Commencement of Action.” After the sale of certain real estate in partition, an attorney was employed to have the sale set aside and to procure a new sale, each of the owners agreeing to pay as a fee a percentage of his proportion of any increase obtained on resale. The sale was set aside and a new one ordered and the property was sold at an increase. Between the times of the two sales, the original purchaser, who became purchaser .at the resale also, purchased the interests of two of the co-owners of the property, with notice of the attorney’s contract. The purchaser refused to pay the attorney his fee in accordance with the contract made by the purchaser’s assignors. In an action against him by the attorney, held, that the filing of the motion to set aside the original sale was the “commencement of an action,” within section 964, Revised Statutes 1909, and, therefore, although no written notice of the attorney’s lien was given, as provided by section 965, plaintiff was entitled to enforce his lien, whether the purchaser paid the full amount of his bid into court or deducted therefrom and retained the amount due his assignors.</p> <p>3. GUARDIAN AND WARD: Pleading: Contract for Ward: Attorney and Client. In a suit to enforce an attorney’s lien against the proceeds of a sale of certain property in partition, a petition alleging that the purchaser received the interest of certain minors, pursuant to an assignment by their guardian pendente lile, and that plaintiff’s contract for fees, so far as such minors were concerned, was duly and legally made for and on their behalf by their father, who was their guardian and curator, was not demurrable for failure to allege that the curator was authorized by the probate court to make the contract with plaintiffs-as to their fees, that being a matter of proof.</p>

<p>Appeal from Lewis Circuit Court. — -Hem. Charles D. Stewart, Judge.</p> <p>Transferred to Supreme Court.</p>

Greene Circuit Court. — Hon. Alfred Page, Judge, (1) Under the evidence and from the experience and observation of all men, it is perfectly manifest that this was an ordinary attempt at hopping on a moving train, which, if it had been successful would have caused some pride to the respondent, it being his first attempt, and likewise to his leader, Parsons, himself an experienced train hopper, but failing, the unfortunate injury resulting therefrom is made the basis of a suit…

— Hon. W.m. N. Evans, Judge. A plaintiff who predicates Ms action upon the negligence of the defendant must show'not only the .conduct of the defendant, but also that it was the violation of some duty which the defendant owed to him. In this case neither the petition nor the evidence discloses any -state of facts, which renders the defendant liable to the plaintiff.

— Hon. Don. O. Vernon, Special Judge. (1) The original notes given to the bank, five in number, amounted to $535 principal at eight per cent interest. The evidence conclusively proves that defendant gave the note in compromise, settlement of these old notes, which was a good consideration. It was the duty of the trial court to give peremptory instructions to the jury to find the issues for plaintiff.

— Hon. Wm. N. Evans, Judge. (1) In a suit by husband and wife, if either is but a nominal party, such nominal party can testify only in ease he or she is the agent of the other in the transaction. Haerle v. Kreihn, 65 Mo. 202. (2) A wife is not a competent witness to prove what was said in a conversation between her husband and another nor to prove any fact done in connection with such conversation and which might be explained thereby.

— Hon. C. H. Skinker, Judge. (1) The administrator has full power to waive service of notice. R. S. 1909, sec. 205. (2) The question of waiver is a mixed question of law and fact. The court assumed the authority to pass on the notion to dismiss, thereby depriving appellants the right to a trial by jury on the question of waiver and on the merits. Bank v. Ins. Co., 109 Mo. App. 659; Keet & Rountree v. Ins. Co., 100 Mo. App. 512; Okey v. Ins. Co., 29 Mo. App.

Writ of Error from Oregon Circuit Court — Hon. W. N. Evans, Judge. (1) Making extraordinary, efforts and incurring expenses not covered by legal fees is voluntary and will not entitle an officer to recover a reward for making an arrest or causing an arrest to be made which it was Ms legal duty to do. Therefore a sheriff is not entitled to a reward offered for the arrest or conviction of a criminal when the service performed is in the line or scope of Ms duty.

— Hon. L. B. Woodside, Judge. (1) The trial court erred in not granting plaintiff a new trial upon the ground of newly discovered evidence. State v. Spiritus, 191 Mo. 24, 90 S. W. 464; Pelanourges v. Clark, 9 Iowa, 1; Goff v. Mulholland, 33 Mo. 203; Wilden v. Greenlee, 49 111. 253; Yan Riper v. Mfg. Co., 33N. J. L. (4 Yroom) 152; Marshall v. Ins. Co., 9 Fed. 134; Watts v. Howard, 48 Mass. 478; Raymond v. Ring, 112 N. Y. S. 1, 60 Misc.

— Hon. L. B. Woodside, Judge. (1) To maintain an action for malicious prosecution the plaintiff must show among other things, the following: 1st, the institution of the proceedings; 2d, without probable cause; and 3d, with malice. In this case the plaintiff failed to show the instituting of the criminal proceedings by defendant.

— Hon. C. H. Skinker, Judge. (1) If respondent gave the company or any person permission to build its road over and across the land in question at a certain specified place, and the road is thereafter located at a different place from that specified and such different location is made with the knowledge of the respondent, but without objection on his part, then such company or person would not be liable for trespass and damages in this cause.

— Hon. W. N. Evans, Judge. (1) The purchaser at execution sales must look to the judgment, execution and levy. If all these are valid, his title will be protected. If void, his title may be attacked collaterally. Morrison v. Dent, 1 Mo. 246; Hewitt v. Weatherly, 57 Mo. 276; Saunders v. Rains, 10 Mo. 771; Janney v. Spedden, 38 Mo. 395; Abbot v. Sheppard, 44 Mo. 273; Howard v. Thornton, 50 Mo. 291; 17 Cyc. 1286, 1308; Gray v. Hawes, 8 Cal. 562; Wooters v. Joseph, 137 111. 113.

Court — Hon. Guy D. Kirby, Judge. ' (1) Where a judgment is exclusively predicated upon the testimony of a party litigant and it clearly appears that such testimony is not only false but knowingly false — perjured, equity will set aside such judgment for that reason and that reason alone. Klaes v. Klaes, 1030 Iowa, 686, 72 N. W. 777; Laithe v. McDonald, 12 Kas. 340; Rowe v. Lbr. Co., 50 La.

Alfred Page, Judge. (1) The provision contained in the contract that the cement contracted for was to be used in the erection of the courthouse at Springfield, Missouri, was known by the parties to said contract at the time of the execution thereof to be impossible for performance and was void. Beech on Contracts, sec. 22, p. 276; Lawson on Contract, secs. 101, 419; Bishop on Contracts, sec. 579; Nordyke v. Kehlor, 155 Mo. 643; Buchanan v. Layne, 95 Mo. App. 148.

— Hon. L. B.' Woodside, Judge. (1) The words alleged to have been spoken not being slanderous per se, the petition fails to state a cause of action, and the court should not have allowed the case to go to the jury. Adams v. Hannon, 3 Mo. 222; Walker v. Hoeffner, 54 Mo. App. 558; Kerone v. Block, 144 Mo. App. 575; Kunz v. Hartwig, 151 Mo.

<p>1. CONTRACT OF SALE: Warranty: Waiver. Where a machine is warranted, bnt the contract also provides that any defective part must be returned to the seller, the latter may waive a return by himself repudiating the contract.</p> <p>2. -: -: Part Payment: Counterclaim: Estoppel. If a buyer expresses satisfaction with a machine when a defect has been apparently remedied and is assured by the seller that he will make it come up to the warranty, and being thus induced, pays one of three notes given for the purchase money, he is not estopped to defend against the other notes when sued; nor to plead a counterclaim for the money paid on the first note.</p>

<p>1. RESCISSION: Fraud: Life Insurance: Equity. Appellant was an assessment life insurance company organized under the laws of New York. Respondents held a $1000 policy in that company. When the policy had run about ten years appellant persuaded respondent to exchange it for a new form of policy. The old policy was by its terms a level premium policy. The new one was a twenty-payment policy. In making the exchange, appellant’s agent presented to the insured for his signature a note for the first year’s- premium, an application, and a certificate of loan. The certificate of loan was an acknowledgment of an interest-bearing indebtedness of $299.10 which was a lien on the policy, and it carried itself without attention from the policy holder until his death, when so much of it as was not absorbed by dividends would be deducted from the face of the policy. The appearance of the papers and the representations and conduct of appellant’s agent deceived respondent, and lead him to sign the papers, including the certificate of loan, without knowing what the latter was, and there was nothing on the face of the new policy to disclose the existence of the certificate of loan. The evidence was sufficient to justify a court of equity in cancelling the new policy and reinstating 'the old.</p> <p>2. -: -: -: Delay. Respondent did not discover that he had signed the certificate of loan until four years after-wards. Within a few days after the discovery he brought a suit to cancel that certificate only, on the theory that the certificate of loan was a separate and independent contract in itself. On the trial of that case it developed,- or appeared to develop, that the certificate of loan was a part of the general contract of exchange of policies; at any rate plaintiff concluded that it would be safer to dismiss that action, and he dismissed it, and instituted this one. He did not lose his rights by delay in bringing this action.</p> <p>3. -: -: Part of Contract. A party cannot rescind one part of an indivisible contract and hold on to the other part.</p> <p>4. DISTINCTION IN LAW AND EQUITY. In a law action based on a rescission the rescinding party must tender to the other all that the former has received. In an equity action it is sufficient if he makes the tender in his bill.</p> <p>5. -: Tender: Effect of Paying Premiums Under New Policy. Plaintiff, by paying the premiums under the new policy did not thereby forfeit his right to compel the reinstatement of the old policy, the premiums under the new policy being larger than those under the old, there being no evidence that he has received any benefits by the exchange, and there being no difficulty in putting the parties in statu quo.</p> <p>6. TENDER: Putting Parties in Statu Quo. Where it is impossible to put parties in statu quo, if the impossibility results from the fraud of the defendant without fault on plaintiff’s part, rescission may be granted by a court of equity, and the court will do justice between the parties as nearly as the circumstances will permit.</p> <p>7. PAYMENTS MADE UNDER OLD CONTRACTS: Restoration. A reinstatement of an old policy having been ordered, the plaintiffs are entitled to a return of so much of the premiums paid on the new policy as the sum of those premiums would exceed the sum of the premiums due on the old policy.</p> <p>8. FRAUD: Negligence. A person who is defrauded is not to be denied relief because of his negligence in permitting himself to be defrauded unless the negligence amounts to the violation of a positive legal duty, and this is especially true where the rights of' innocent third persons have not intervened. -</p> <p>9. -: Equity: Unraveling Means of Accomplishing Fraud.. Where fraud is established a court of equity has power to act even though the evidence may not show the precise method by which the fraud was accomplished.</p> <p>10. PLEADING: Waiving Objection to Sufficiency of Petition. The petition charged that plaintiff did not execute the certificate of' loan, and that if he signed it his signature was procured by fraud. The petition did not contain contradictory allegations. In the absence of a motion to make it definite the petition is good.</p> <p>11. LIFE INSURANCE: Level Premium Policy. Where a policy calls for a fixed annual premium, with no provision for an increase in the premium rate, it is, under the law of Missouri, a level premium policy, even though issued by a company oragnized on the assessment plan..</p> <p>12. CONFLICT OF LAWS: Lex Loci Contractus. Parties may, by their contract, establish the place according to the laws of which the construction of the contract shall be determined.</p> <p>13. CONTRACTS: Divisibility. A divisible contract is one in its nature and purpose susceptible of division and apportionment, having two or more parts in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, and not intended to be by the parties to it.</p> <p>14. -:-: Mutuality of Intention. The contention by one of the parties that a contract is indivisible is not conclusive.</p>

<p>1. MASTER AND SERVANT: Railroads: Negligence: Contributory Negligence. Plaintiff, a section hand, with other section hands, under the direction of their forman, all in defendant’s employ, were running a handcar after dark ahead of a passenger , train reported to be late. The foreman made one or more stops to look for the train. Suddenly the train approached around a curve, and plaintiff, to save himself, jumped and was injured. Plaintiff had been facing the direction from which the train approached, and if he had been looking he could have seen the reflection of the headlight on the train before it was discovered by the foreman. Under the evidence it was for the jury to determine whether defendant’s foreman was negligent in failing to properly guard against and watch out for the approach of the train, and whether plaintiff was negligent in not sooner discovering its approach.</p> <p>2. -: -:-. A person of ordinary prudence has no right to risk those in his care to mere chance where he has at hand the means to overcome probable danger.</p> <p>3. —-■:--. Where the issue of plaintiff’s contributory negligence is such that there might be two different views in the minds of fair minded men, the question is for the jury.</p> <p>4. TRIAL PRACTICE: Instructions: Presumption of Due Care. An instruction is not erroneous which tells the jury that the burden is on the defendant to establish plaintiff’s contributory negligence, and that it is for them to determine whether the evidence is sufficient to overcome the presumption of due care which arises in plaintiff’s favor founded on instincts of self-preservation.</p> <p>5. -: -: Sufficiency of Evidence. An instruction which tells the jury to find that 'the defendant’s foreman was negligent if he failed to take any reasonable precautionary measures to guard the safety of the men on the handcar, is not erroneous as ignoring precautionary measures taken by the foreman and as not being supported by any evidence that there were other precautionary measures which he might have taken. It was for the jury to say whether the measures taken were reasonably precautionary; and it required no evidence to show that the foreman could have warned the operators of the train by flags, or torpedoes, or other signals.</p> <p>"* 6. REMOVAL OF CAUSES: Amount in Controversy: Jurisdiction. Plaintiff sued in two counts, each for $1999. The first count alleged an expenditure of $100 for medical care; the second count omitted this item. These allegations did not make the total amount sued for in either count exceed $1999, and therefore the action was not removable.</p> <p>7. COURTS: Jurisdiction: Federal Question. Appellant’s contention that the amount involved in this case made the case removable is without merit, and it is not the duty of this court to certify such a case to the supreme court.</p>

— Hon. James H. Slover, Judge. The court erred in overruling defendant’s motion for new trial: (a) Defendant was entitled to a new trial on the ground of newly discovered evidence. Proper diligence was shown; the evidence had been kept concealed as thoroughly as possible by plaintiff, and, owing to the nature of the disease and its treatment, it was very difficult to get at. Its nature was such as that it ought to very materially affect the verdict of. a jury.

<p>Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.</p>

— Hon. William O. Thomas, Judge. The admitted facts as to the title to the property sold by Betker and the admitted customs of real estate transactions in Kansas City, did not require Betker to pay off mortgages and taxes unless Snyder would •agree to take the property. Obligations of the seller and of the purchaser are concurrent and dependent. An offer to perform by either party is necessary to put the other party in default and lay the foundation for an action.

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

— Hon. Wm. H. Martin, Judge. The new matter set up in the answer was in mitigation of the damages and tended to lessen the same, and the court erred in striking it out. R. S. 1909, sec. 1838; Trimble v. Foster, 87 Mo. 49; Minter v. Bradstreet, 174 Mo. 444; Yager v. Bruce, 116 App. 473; 4 Townsend on Slander and Libel, see. 361, p. 603; Nelson v. Wallace, 48 App. 193.

Circuit Court. — Hon. A. H. Waller, Judge. (1) Defendant’s demurrer to the evidence at the close of the entire ease should have been given. Where, as in this ease, the undisputed evidence disclosed that-a number of answers in the application for membership were false and untrue, it became the duty of the trial court to direct a verdict for the defendant, and the trial court having refused to so direct the jury, the appellate court will, on appeal, reverse such judgment.

<p>CRIMINAL LAW: Evidence: Killing Hog: Jury Question. A defendant sold the flesh of a hog to different persons and there was. evidence tending to show that it had died a natural death and had not been slaughtered. There was also evidence that the hog-had been killed and dressed by defendant. It was held that the question was one for the jury and the trial court and that a verdict, of guilty would not be disturbed on appeal.</p>

<p>Error to DeKalb Circuit Court. — Hon. A. D. Burnes, Judge.</p>

— Hon. A. H. Waller, Judge. (1) Under the utmost liberal rule there must be some statement filed before process. Brashers v¡ Stock, 46 Mo. 221. The law does not require formal pleadings before a justice of the peace, but does not permit plaintiff to decide after process upon what to base his suit. There can be no amendment of a nullity. Nichols v. -Hicklin, 127 Mo. App. 676; McCrary v. Good, 74 Mo. App. 425; Jarrett v. Mohan, 142 Mo. App. 29.

<p>1. CARRIER OF PASSENGERS: Railroads: Negligence: Hole in Depot Platform. Plaintiff was injured while going from defendant’s ticket office' to its train by stepping through, a hole in the depot platform. Under the evidence the jury was justified in finding that defendant was negligent and that plaintiff was not negligent.</p> <p>2. PLEADING: Conflict of Laws: Presumption as to Láw of Another State. Plaintiff’s petition stated a cause of action under the common law. Although the accident happened in Iowa it was not necessary for plaintiff to plead the law of that state. In the absence of any allegation in the pleading, it is presumed the law of Iowa is the same as our own.</p> <p>3. DAMAGES: Contributory Negligence in Failing to Give Proper Treatment. Plaintiff received a sprained ankle which she attempted to treat without the assistance of a physician. It was a question for the jury whether she exercised ordinary care in so doing.</p> <p>4. TRIAL PRACTICE: Instructions: Exceptions. It is not necessary to both object and except to the giving or refusing of instructions.</p> <p>5. -: -. Plaintiff’s Instructions authorized the jury to allow plaintiff damages for injuries received by the negligence of defendant. Defendant’s instructions told the jury not to allow plaintiff for any aggravation of injuries caused by her own negligence. The two instructions were not in conflict.</p>

<p>Appeal from Moniteau Circuit Court. — Hon. John M. Williams, Judge.</p>

— Hon. C. A. Mosman, Judge. The order complained of is not appealable in that it is not a final judgment, and is not one of the orders from which an ■ appeal is specifically permitted by statute, and appellant’s appeal should be dismissed. R. S. 1909, See. 2038; State ex rel v. Edwards, 104 Mo. 125; Railroad v. Railroad, 94 Mo. 540.

— Hon. Nat M. Shelton, Judge. (1) The contract alleged is within the purview of that portion of the Statute of Frauds requiring contracts not to be performed within one year from the making thereof to be in writing. Sharp v. Rhiel, 55 Mo. 97; Briar v. Robertson, 19 Mo. App. 66; Beiler v. Devoll, 40 Mo. App. 251, 254; Cook v. Redman, 45 Mo. App. 397, 401; Miller v. Banking Co., 53 Mo. App. 430; Butts v. Fox, 96 Mo. App. 437; Biest v. Shoe Co., 97 Mo.

<p>1. TRIAL PRACTICE: Instruction Defining Preponderance of Evidence. Plaintiff sued defendant for a commission for the sale of real estate. On the trial the court gave an instruction defining preponderance of evidence. Defendant complained of this instruction, claiming that the jury were directed to give greater weight to the evidence of plaintiff’s one witness than to defendant’s two. As the finding of the jury was in favor or the defendant on the issue supported by two witnesses for defendant, the error in the instruction was harmless.</p> <p>2. --: Theory Adopted on Trial. Where defendant by his instructions did not submit the question of whether or not there was a partnership relation between him and plaintiff in the sale of the land, he will not be heard to present the question in this court, especially as that contention is inconsistent with the theory presented in the trial court.</p> <p>3. -: Sufficiency of Evidence: Question for Jury. Where plaintiff’s statements are possible and consistent, the question of their truth is for the jury.</p>

— Hon. C. A. Denton, Judge. The hypothetical question put to Dr. Kieffer complained of by appellant was proper. It did not call for a conclusion but for an opinion of the witness. Thomas v. Street Ry. Co., 125 Mo. App. 131; Saeger v. Railroad, 131 Mo. App. 282; Mayes v. Street Ry., 121 Mo. App. 622; Hufford v. Street Ry. Co., 130 Mo. App. 638; Comas v. Roundtree Com. Co., 205 Mo. 367; Glasgow v. Street Ry.

— Hon. C. A.' Mosman, Judge. (1) Appellant’s motion to quash the panel of jurors should have been sustained. The jury was drawn in the manner provided by article 4 of chapter 64, Eevised Statutes of Missouri for 1909. These prolusions had no application to Buchanan county, and the jury empaneled was not a lawful jury. State ex rel. v. Eyan et al. 232 Mo. 77. (2) Defendant’s demurrer to the evidence should have been given.

— Hon. Francis H. Trimble, Judge. (1) The testimony showing that Henry Gordon, defendant’s clerk, who sold the whiskey to Hightower, bore the general reputation selling liquor illegally in defendant’s store in the summer of 1907, was competent in chief to prove that the defendant knew Gordon, was selling, because no man is presumed to be so much of a recluse as not to be aware of what ■is generally known and talked of in the neighborhood.

— Hon. John P. Butler, Judge. The circuit court tried the case on the theory that the plaintiff was not liable for her failure to fulfill her covenants contained in the lease to defendant Dunlap with respect to making repairs of the fences and other improvements on the farm, specified in the lease to be made by her, unless said defendant demanded of her that she make the same. This was manifest error.

Circuit Court. — Hon. A. H. Waller, Judge. (1) Appellate courts in equity cases review the evidence upon which the findings of the trial court are based. Meredith v. Meredith, 79 Mo. App. 636; Lilly v. Menke, 92 Mo. App. 354; Turner v. Overall, 172 Mo. 271; Lins v. Lenhardt, 127 Mo. 280.

<p>Error to DeKalb Circuit Court. — Hon. Alonzo D. Burnes, Judge.</p>

<p>1. MASTER AND SERVANT: Negligence: Railroads: Sufficiency of Evidence. Plaintiff, a brakeman in defendant’s employ, claimed to have been injured by the door of .a freight ear falling on him while he was opening it. His evidence was that there should have been a strip at the top of the door to keep the hooks supporting the door from jumping off the rail on which they moved when the door was pushed open, but that this strip, by process of decay, had pulled off and was missing. Defendant’s evidence was that the door which plaintiff claimed fell on him was of a kind which did not require a strip, and never had one, and that the accident could not have happened as plaintiff claimed. There being no physical impossibility in plaintiff’s evidence, and no conclusive proof of the truth of defendant’s evidence, the ease was one for the jury.</p> <p>2. PLEADING: Plaintiff Limited to Allegations of Petition. A plaintiff is held to the specification of negligence in his petition, and cannot recover on any other hypothesis.</p> <p>,3. MASTER AND SERVANT: Negligence: Railroads. The master must exercise reasonable care to provide his servant with a reasonably safe place to work. The failure of a railroad company to make reasonable inspections of its cars is negligence.</p> <p>4. TRIAL PRACTICE: Jury: Credibility of Evidence: Master and Servant: Negligence. A jury is not bound to believe the testimony of defendant that a car was inspected, or that the inspection was sufficient.</p>

<p>CONTRACTS: Construction. Plaintiff and defendant executed a contract making plaintiff defendant’s agent to sell its ears on commission in a certain territory. Plaintiff sent in an order for one car, which order was accepted, but before the order was filled defendant raised objection that plaintiff had not done a satisfactory amount of business, and demanded that he execute an employment contract with more vigorous terms than the. first, and defendant insisted that if he did not execute the contract it would not deliver the ear on the terms fixed by the original contract, but he would have to pay therefor the list price without any commission. Plaintiff declined to sign the contract, refused to pay the price last demanded, and sued for his commission. The defendant sought to justify its action under a clause of the original contract which provided that the defendant did not agree to ship plaintiff any of its products, and that all orders were accepted by it with the express understanding that prices were subject to change. Taking the instrument as a whole, and giving effect to the evident mutual intention of the parties, this clause of the contract is construed as a shield to protect defendant from loss arising from unexpected conditions of business, and not as a club to compel one of its agents to enter into a contract which he deemed unfair. Defendant had no right to refuse to perform its original contract, and plaintiff was entitled to his commission.</p>

— Hon. Walter A. Powell, Judge. (1) The court erred in refusing to sustain the demurrer to the evidence as to both defendants, (a) The question of ownership was contested throughout the trial; none was shown in this appellant. Brubaker v. Electric Light Co., 130 Mo. App. 444. (b) There was no proof of any negligence on the part of appellant; in fact, the proof showed conclusively there was none. Erauenthal v. Gaslight. Co., 67 Mo. App. 1; Strack v. Met. St. Ry.

<p>Original Proceeding — Prohibition.</p>

<p>Appeal from Chariton Circuit Court. — Hon. John P. Butler, Judge.</p> <p>(1) The court erred in permitting witness, Mrs. Rodgers, to testify on behalf of plaintiff, for the reason that she was plaintiff’s agent in making the alleged contract detailed in evidence and the other party to said contract, William C. Recob, was dead. Defendant’s” objection to her competency should have been sustained by the court. Edwards v. Warner, 84 Mo. App. 202; Donnell Newspaper Co. v. Jung, 81 Mo. 581; Walterman v. Sheniek’s Est., 102 Mo. App. 142; Green v. Ditsch, 143 Mo. 8; Bank v. Slattery’s Admr., 166 Mo. 491; Brewery Co. v. Rohling, 133 Mo. App. 67. (2) The trial court erred in giving instruction number 3, requested by plaintiff, for the reason that said instruction assumes and expressly declares the truth of the most important fact in controversy; and, for the further reason that said instruction number 3, given for plaintiff, is contradictory of and in direct conflict with all the other instructions in the case. Dulaney v. Sugar Ref. Co., 42 Mo. 662; Merriwether v. Kansas City Cable Co., 45 Mo. App. 532; Crow v. Railroad, 212 Mo. 610; Klein v. St. Louis Transit Co., 117 Mo. App. 696; Browning v. Railroad, 118 Mo. App. 458; Orscheln v. Scott, 79 Mo. App. 540; Bluedorn v. Railroad, 108 Mo. 450; McKinnon v. Coal Mining Co., 120 Mo. App. 164; McNichols v. Nelson, 45 Mo. App. 454; Wallack v. St. L. Transit Co., 123 Mo. App. 167; Russell v. Poor, 133 Mo. App. 729; Ross v. Street Ry. Co., 132 Mo. App. 481; Baer, Seásongood & Co. v. Lisman, 85 Mo. App. 320; Meily v. Railroad, 215 Mo. 586; Haynor v. Light Co., 129 Mo. App. 698.</p>

— Hon. John M. Williams, Judge. The construction of -wooden gutter crossings, held in place by their own weight, was not negligent, because the liability of such crossings to become misplaced, if a defect at all, is one inherent in that sort of crossings, and for such errors of judgment on the part of the governing board in adopting and using them the city is not hable. Urquart v. City, 91 N. Y. 67; Augusta v. Littlefield, 115 Ga. 124.

— Hon. Fred Lamb, Judge. (1) Upon removal of the property from the place where insured the policy at once became, null; once void it so remained. There is no evidence of an agreement to revive, nor is any consideration for- a revival shown. Imperial Ins. Co. v. Coos County, 151 U. S. 463; Kyte v. Assurance Co., 149 Mass. 116; Hoover v. Insurance Co., 93 Mo. App. 111.

— Hon. Fred Lamb, Judge. (1) To establish a warranty. The word “warrant,” nor any other word of precisely the same meaning, need not be used; it is enough if the words actually used impart an undertaking on the part of the owners that the chattel is what it is represented and be, or an equivalent to such an undertaking. Carter v. Black, 46 Mo. 384; Anthony v. Potts, 63 Mo. App. 517.

— Hon. John G. Park, Judge. A passenger riding in a place not intended for passengers to ride, or in away and manner not intended for them to ride, is guilty of contributory negligence, and assumes all risks incident to such. acts. White on Personal Injuries on Railroads, col. 2, sec. 773-802; Vessels v. Railroad, 129 Mo. App. 708; Hedrick v. Railroad Co., 195 Mo. 104; Carroll v. Railroad, 100 Mo. 653; Lehnick v. Railroad, 118 Mo. App. 611.

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

<p>SALE OF GOODS: Lien for Purchase Price: Misappropriation of Proceeds: Interlocutory Order: Right to Appeal. A petition in equity stated that there was an agreement between the seller and buyer of a stock of goods that the former may have a lien on the goods for the purchase price, and tha't a trustee shall be put in possession to sell and deposit the proceeds in a certain bank to be applied on the purchase ‘money. And thereafter the trustee sells to the amount of $85 and fails to deposit. And afterwards the seller agrees with the buyer that if he will permit him he will sell the stock in bulk to a purchaser and deposit $700 in the bank to be paid on the purchase money, but" upon making the sale puts the money in a safe deposit vault instead of the bank. The petition asked that the $700 be ordered paid into court to await the order of the court after a trial of the case on the merits, and if that was not done that the plaintiff’s lien on the goods be foreclosed and for other proper relief. It was held that the petition stated a case in equity, and that the trial court was justified on the preliminary hearing in ordering the $700 paid into court to await the trial on the merits.</p>

<p>1. CONTRACTS: Ultra Vires: Use of City Water for Ice Plant. A city of the third class, owning waterworks, has not the authority to contract with a manufacturer of ice that he, without rendering compensation, may divert the water from the city reservoir so that it will run over the pipes of his plant and thence back into the reservoir, notwithstanding the water is returned iB. as good condition as when received.</p> <p>2. -:-: Trustee: Gratuity. A city, in operating waterworks, is a trustee for the benefit of the citizens thereof, and it has no authority to lend the public water to a private business enterprise, without proper consideration.</p>

<p>1. MASTER AND SERVANT: Negligence: Assumption of Risk: Jury Question. An employee in the machine shop of a railroad had his arm broken just above the hand, while operating a press drill. The drill was held in a revolving spindle or shaft by a key, which had been lost and an old file substituted, which stuck out three-fourths of an inch from the side of the shaft. A water faucet was about six inches from the drill and when it became heated the employee would reach over and turn on the water. He had been engaged at this work about two months and when hurt had turned on some water and in withdrawing his hand the end of the sleeve of his jacket was caught by the protruding file, jerking his hand around the spindle so as to break his arm. It was held ■ that the railroad company was negligent and that whether the employee was guilty of contributory negligence or had assumed the risk, was a question for the jury.</p> <p>2. -: -: Avoidable Consequences: Duty of Injured Person. Under the rule of avoidable consequences, it is the duty of one injured by the negligence of another to do all which is known to be reasonably necessary and reasonably within his power, to lessen the injury; and if he fails to do so he cannot have damage for that part of the injury resulting from such neglect.</p> <p>3. -: -: -:' Advice of Physician: Duty to Follow. Where the physician of a person injured by the negligence of another, advises an operation in which it would be necessary to use an anesthetic, and the person refuses through ■ fear of fatal results on account of the condition of his heart, and he is corroborated by another physician who examined him, an instruction which confined the jury’s consideration to whether the first physician’s advice was reasonably proper, was correctly ■ modified so as to include a consideration of the other physician’s opinion also.</p>

<p>Appeal from Sullivan Circuit Court. — Hon. Fred Lamb, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Busk, Judge.</p>

<p>1. NEGLIGENCE: Husband and Wife: Release: Reform. Plaintiff’s wife was injured in the wreck of the defendant’s railway train caused by its negligence. She adjusted and settled her claim for damages and gave defendant a written release. Defendant insisted that plaintiff’s claim for damages on account of the wife’s injury was included in the settlement and that he joined in the release by signing with her. His name appeared signed under hers at the place for signatures. He denied a settlement of his claim and insisted that he was only asked to witness her signature and in signing he inadvertently put his name at the wrong place on the paper, and asked the court to reform the instrument in this respect, which the court did. It was held that the evidence justified the. court’s action.</p> <p>2. -:-:-: Failure to Call Witness: Presumption. Where defendant’s claim agent is in court and hears plaintiff testify that the agent asked him to sign a release of damages as a witness to his wife’s signature and not as a party, and such agent is not called to deny these statements. Held, that presumably he would have been called as a witness if he could have truthfully denied plaintiff’s statement.</p> <p>3. -:-: Petition ¡Evidence: Negligence General or Special. If the evidence is responsive to the petition, that is, proves the allegations of the petition as to negligence, it is sufficient, regardless of whether those allegations constitute general or specific negligence.</p> <p>4. -: -: -: Injury at Time of Trial; Connection. The condition of the wife at time of trial must be shown to be connected with the prior injury received from defendant’s negligence; and in this case it was held that the question asked of a witness embraced that connection.</p> <p>5. -: -: -: Evidence: Insurance: Medical Certificate. Where the action is brought by the husband for damages occasioned to him by an injury to the wife, and it appears that she made application for life insurance after the injury, accompanying which was a physician’s certificate as to her health, and that she had recovered from the effects of the injury: It was held that such certificate was not evidence against the husband and was properly excluded.</p> <p>6. --: -: -: Instructions: Abstraction Joining in Error. Where plaintiff’s instruction merely states an abstraction and uses the word “fault” in place of negligence, without defining it, and defendant follows it by making use of the same word in the same connection, he cannot complain.</p> <p>7. -: -: ;-: Non-Direction. Where neither party asks an instruction defining negligence, it is mere non-direction, and, in a civil case, is not error.</p>

<p>Appeal from .Clay Circuit Court. — Hon. Francis H. Trimble, Judge.</p> <p>Where one petitions the city to grade a street and the city has the street graded the owner of abutting property is estopped from asserting a claim against the city, or anyone else on account of changing the grade in front of his premises. Cross v. City of Kansas City, 90 Mo. 13; Yaile v. City of Independence, 116 Mo. 333; Galbreath v. Newton, 30 Mo. App. 380; Brick & Terra Cotta Co. v. Hill, 49 Mo. App. 433; Sheehan v. Owen, 82 Mo. 458; Construction Co. v. Hutchinson, 100 Mo. App. 294; Jaicks v. Merrill, 201 Mo. 91.</p> <p>A city and its contractor are jointly liable for changing the grade of a street, and any one interfering with the grade of a city’s street must be able to point to the ordinance of the city authorizing him to bring the street to a grade to even make the city jointly liable. In this case there? was neither ordinance establishing a grade, nor ordinance authorizing defendant to bring the street to such grade, nor had defendant entered into a contract with the city. He was a trespasser pure and simple. McQuarter y. St. Joseph, 139 Mo. App. 640; Faust v. Pope, 132 Mo. App. 287; River v. Columbia, 80 Mo. App. 173; Schrodt v. St. Joseph, 109 Mo. App. 627; Colvert v. St. Joseph, 118 Mo. App. 503; Graden v. Parkville, 114 Mo. App. 527; Gardner v. St. Joseph, 96 Mo. App. 657; Smith v. West Port, 105 Mo. App. 221; Clay v. City of Mexico, 92 Mo. App. 611; Kroffe v. Springfield, 86 Mo. App. 530; Stinbner v. St. Joseph, 81 Mo. App. 273; Hall v; Trenton, 86 Mo. App. 326.</p>

<p>Appeal from Worth Circuit Court. — Hon. Wm. C. Ellison, Judge.</p>

— Hon. Walter A. Powell, Judge. (1) The court erred in refusing appellant’s demurrer to the evidence and the instruction in that nature, requested at the close of all the evidence, for the reason that there was a total failure of proof upon the issue of a warranty and a breach thereof. There was no breach of warranty. Kuhler v. Tobin, 61 Mo. App. 576; Toney v. Goodley, 57 Mo. App. 235; York v. Farmers Bank, 105 Mo.

— Hon. C. A. Mosman, Judge. The court committed error in overruling the motion to quash the panel of jurors. State ex rel. Major, Atty. Gen., v. Ryan, 232 Mo. 77; State ex inf. Crow, Atty. Gen., v. Evans, 166 Mo. 347; State v. May, 168 Mo. 122. ' There was no error in overruling the motion to quash the panel of jurors because it was drawn in the manner authorized by sections 7318 to 7333, inclusive, of Revised Statutes of Missouri.

— Eon’. Wm. H. Martin, Judge. The demurrer to the evidence offered by the defendant at the close of the evidence should have been sustained. Magee v. Railroad, 214 Mo. 542; King v. Railroad, 211 Mo. 14; Hawkins v. Railroad, 135 Mo. App. 527; Matz v. Railroad, 127 Mo. 298; Day v. Railroad, 140 Mo.

— Hon. Alonzo D. Burnes, Judge.. The trial court, in granting a new trial, had no right to tax any costs against the plaintiff Sperry— and, did not tax any costs against him. The action of the trial court, in granting a new trial in the principal case, merely left the trial court costs to abide the final results of the case — and, awarded the defendants a retrial.

<p>1. MORTGAGES: Indemnity of Endorser: Evidence. Where a mortgage is given by the payer of a promissory note to indemnify an endorser on such note against Ms having to pay it, in an action to foreclose the mortgage by the endorser, it is necessary that he should show that he was compelled to pay the note by reason of indorsing it.</p> <p>2. -: -s Construction: Indemnity. Where a mortgage is given reciting that it is to secure and indemnify another as endorser of two promissory notes for the mortgagor, and wherein it is stated that it is executed “for the purpose of securing the endorser from the payment of the notes” and to save and keep him harmless' and to indemnify him “from the payment of said notes,” it was held that the fact that the mortgage at one place referred to one of the notes as payable directly to the endorser, did not prevent a construction of its entire terms as being a deed of indemnity only.</p>

— Hon. John G. Park, Judge. The petition does not state facts sufficient to authorize a verdict herein. Flowers v. Smith, 214 Mo. 1. c. 129, 130; Boyd v. St. Louis Transit Co., 108 Mo. App. 303. The court erred in overruling appellant’s motion for a new trial and motion in arrest of judgment. McMurray v. Transit Co., 225 Mo. 272; Jordan v. Transit Co., 202 Mo. 418; Flowers v. Smith, 214 Mo. 1. c. 141.

— Hon. A. Z>. Burnes, Judge. The wife of plaintiff was not a competent witness in this action to testify in his behalf to her alleged criminal intimacy with defendant during her marital relations with plaintiff. The prevailing rule at common law denied the right of the wife to testify either for or against her husband. 1 G-reenleaf on Evid.

— How. Nat. M. Shelton, Judge. (1) The court erred in rejecting the-statements and admissions of defendant. Statements and admissions made by defendant before and at the time the wall fell were competent. Admissions against interest are receivable against party making them. 1 Am. and Eng. E-ncy. of Law (2 Ed.), 675; Carder v. Huskey, 79 Mo. 509; Meir v. Meir, 106 Mo. 411,1. c. 420; Gubernator v. Rettalack, 86 Mo. App. 289.

<p>1. PRACTICE, APPELLATE: Abstracts of Record. Where it is desired to have a demurrer to the evidence considered hy the appellate court, appellant must abstract alll of the evidence of all of the witnesses. It is not necessary to set it out hy question and answer, hut it may he put in narrative form, in the words of the witnesses.</p> <p>2. DAMAGES: Alienation of Affections. There is no inference of malice from the mere fact that parents interfere in the marital relations of the child, and therefore where damages aré sought for the alienation of the husband’s affections, the proof must go farther and show that the interference of the parents was without just cause or excuse.</p> <p>3. -: -: Evidence. Where the evidence shows probable cause for the interference hy the parents in the marital relations of their son, and that the evil conduct and vile acts of the husband were the only cause for the separation of the husband and wife, a judgment against the parents in favor of the wife cannot he sustained.</p>

<p>MASTER AND SERVANT: Negligence.' An engine was left standing on a spur track, by the engineer, and turned over to plaintiff as caretaker. The levers and throttle were left in proper position to keep the engine stationary. Several hours afterwards while plaintiff was underneath cleaning the engine it suddenly started forward and injured him. Plaintiff did nothing to cause it to move, nor was it caused to move by any human agency. The throttle, from long usage, had become so worn that it permitted steam to escape into the cylinders, and thus move the engine. This condition of the throttle could have been discovered, by inspection, in ample time before the accident to permit repairs. Held, that it cannot be said as a matter of law that plaintiff’s version of his injury is opposed to physical facts or laws or is so unreasonable as to overtax creduity.</p>

— Hon. John O. Park, Judge. It was the duty of defendants to provide plaintiff a reasonably safe place in which to work. Placing a cask on its side so near the edge of the casks on which it rested that the jarring and shaking of the car by rolling half barrels of beer across the floor of the car would cause the cask to roll, certainly made a case of negligence to go to the jury.

<p>Appeal from Platte Circuit Court. — Hon. A. D. Burnes-, Judge.</p>

<p>RAILROADS: Fencing Track: Second Appeal. Where, on second appeal, the new evidence is merely cumulative and the issues it presents were analyzed and determined in the former hearing, the opinion of this court on the first appeal will not be disturbed. [132 Mo. App. 576.]</p>

<p>Appeal from Boone Circnit Court. — Hon. N. D. Thurmond, Judge.</p> <p>(1) Defendant’s engineer saw plaintiff and discovered her perilous position; he should have discontinued the whistling or stopped his train. Smith v. Railroad, 53 S. W. 269, and cases cited; Stanger v. Railroad, 32 N. E. 209; Phelan v. Paving Co., 207 Mo. 666, 710. (2) Under the evidence in this case the plaintiff was entitled to the verdict of the jury on the question of negligence. It is only when the facts are . of such a character that all reasonable men must draw the same inference that it becomes the duty of the court to decide the question of negligence as one of law. Ward v. Maine Central Co., 96 Me. 136; Hanlon v. Turnpike Co., 182 Pa. St. 115; Railroad v. Box, 17 S. W. 375; Railroad v. Syfan, 43 S. W. 551. (3) It was negligence in the engineer to sound the whistle in such close proximity to plaintiff’s team. Brown v. Railroad, 89 Mo. App. 192; Peeny v. Railroad, 123 Mo. App. 420, 428; Pulton v. Railroad, 39 So. 282; 23 Am. and Eng. Ency. Law, p. 744. (4) Under the circumstances of this case defendant’s failure to suspend the whistle of the engine was an act of wantonness and negligence. Cole v. Railroad, 121 Mo. App. 605; Beckenwald v. Railroad, 121 Mo. App. 595; Phelan v. Paving Co., 115 Mo. App. 423. The dictates of humanity should have prompted the engineer to suspend the whistle when he discovered its effect upon plaintiff’s team. Morgan v. Railroad, 159 Mo. 262, and cases cited; Oates v. Railroad, 168 Mo. 535; O’Donnell v. O’Neill, 130 Mo. App. 360.</p> <p>(1) Since the plaintiff relied on negligence in sounding unusual or unnecessary whistle signals, or in continuing them after the team became frightened, the burden was necessarily upon her to affirmatively prove that the accident was caused by negligence in some one or more of these particulars. Webb v. Eailroad, 52 Atl. 5;-O’Brien v. Eailroad, 118 N. T. S. 1025; Feeney v. Eailroad, ’ 123 Mo. App 420. (2) There was a total failure to prove that the sounding of the whistle in the first instance was either unusual, unnecessary or improper under the circumstances. Berry v. Eailroad, 66 Atl. 386; McCandless v. Eailroad, 93 S. W. 1040. The operators of the train were under no legal duty to look out for travelers on adjoining highways, or refrain from the ordinary and necessary signals and noises of operation merely because horses in that vicinity might become frightened thereby. Lamb v. Eailroad, 140 Mass'. 79; Eailroad v. Walkenshaw, 81 Pac. 463; Whistenaut v. Eailroad, 59 S. E. 920; Eailroad v. Smith, 53 S. W. 269; McCandless v. Eailroad, 93 S. W. 1040; Eaires v. Eailroad, 77 Pac. 230; Eowe v. Eailroad, 137 S. W. 511; Feeney v. Eailroad, 123 Mo. App. 420. There is no proof whatever that the engineer actually saw the plaintiff or her team at all, or was in the least aware of any peril, because the bare fact that the engineer could have seen the buggy, etc., furnishes no evidence that he did in fact see or became aware of the situation. Hall v. Eailroad, 219 Mo. 588; Day v. Eailroad, 52 Atl. 771; McGhee v. Eailroad, 214 M'o. 522. (3) The plaintiff failed to make a case of negligence for continuing the whistle signals, because there was no evidence that the engineer was aware of the danger, or -that he could have prevented the accident after the first whistle blast was sounded. Day v. Eailroad, -52 Atl. 771; Hall v. Railroad, 219 Mo. 588, and discussion under preceding point.</p>

<p>Appeal from Saline Circuit Court. — Hon. Samuel Davis, Judge.</p>

— Ho#. Thomas J. Seehorn, Judge. ' (1) The court erred in overruling defendant’s demurrer to the evidence, (a) For the reason that plaintiff was not in the exercise of ordinary care for Ms own safety at the time he was injured, (b) For the reason that plaintiff and Frank McPheeters, who set up the hale by the fall of which plaintiff was injured, were fellow-servants in the matter of setting up the hales, (c) For the reason that no general custom within the meaning of the…

<p>Appeal from Cooper Circuit Court. — Ho». Wm. H. Martin, Judge.</p>

<p>Appeal from Nodaway Circuit .Court. — No». Wm. C. Ellison, Judge.</p>

<p>1. DIVORCE: Plaintiff Must be. Free from Fault. Plaintiff sued his wife for divorce. The evidence was more than sufficient to prove the wife’s misconduct. It appeared, however, that the plaintiff was aware of his wife’s moral shortcomings at the time he married her. It also appeared that plaintiff in an effort to find evidence of misconduct on defendant’s part after the marriage, was more satisfied than shocked at the success ■of his effort. It also appeared that while defendant was ill' plaintiff failed to bestow upon her the care and protection which the law demands that a husband must give his wife however erring she may he. It was held that plaintiff was not entitléd to a divorce.</p> <p>2. -: Immateriality of MStive Causing Marriage. Prior to the time plaintiff and defendant were married they had lived together. Just before they were married they executed a written contract that the wife should get a divorce from plaintiff. The contract provided that plaintiff was to pay defendant $1500 in monthly instalments of $50 each. This contract was a nullity and its execution did not affect the validity of the marriage or change in any respect the marital obligations imposed by law upon the parties to the contract of marriage.</p>

<p>1. MASTER AND SERVANT: Railroads: Negligence: Contributory Negligence. Plaintiff was an engineer in the employ of defendant. He was injured by his' engine colliding with the train of another railroad company at a point where the roads cross each other. Plaintiff had not run an engine over this part of defendant’s road for two years before the night of the accident. The two roads ran side by side for two or three miles before crossing. Half a mile before reaching the crossing defendant maintained a signboard to warn the trainmen of their approach to the crossing. The collision was the result of the fact that the electric headlight on plaintiff’s engine failed to furnish sufficient light to disclose the signboard. The failure of the headlight to furnish sufficient light was the result of the inability of the engine to furnish enough power to generate the electricity necessary to make the light efficient. The defendant contended that there were several circumstances which if plaintiff had been in the exercise of ordinary care, would have enabled him to know of the location of the crossing, and of the presence of the other train thereon, and that if he were in doubt as to the location of the crossing he should have inquired of the fireman who was familiar with the location. Under the evidence it was for the jury to say whether the defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence.</p> <p>2. PRACTICE: Trial: Instructions: Witness Swearing Falsely. Even though the plaintiff on cross-examination gives evidence differing from former statements made by him, the trial court may in its discretion refuse to give to the jury an instruction advising them of their right to disregard the whole of the evidence of any witness who has sworn falsely to any material fact.</p> <p>3. -: -: Admissions Against Interest. Defendant asked the court to instruct the jury that plaintiff was bound by his admissions, if any, contrary to Ms testimony given on the witness stand. The court modified the instruction by saying that the plaintiff was bound by his admissions, if any, against Ms interest. Defendant’s objection to the modification was properly overruled.</p>

— Ho». Nat. M. Shelton, Judge. Negligence cannot be presumed from tbe fact -of an accident and resulting injury. Yarnell v. Railroad, 113 Mo. 570,1. c. 580 and cases cited; Scbaffer v. Railroad, 128 Mo. 64, L c. 71, 72; Railroad v. MacKinney, 135 Pa. St. 462; s. c. 37, A. & E. R. R. Cas. (O. S.) 152, 1. c. 158. Burden of proof always on plaintiff. Schaffer v. Railroad, 128 Mo. 64, 1. c. 71-72; Railroad v. MacKinney, 135 Pa.

— Hon. R. 8. Ryors, Judge. (1) The law is well settled, that having sued upon an express contract the plaintiff must recover, if at all, upon the identical contract sued upon, and no other. Electric Ry. Co. v. Curtis, 154 Mo. 10; Davis & Rankin v. Creamery Assn., 63 Mo. App. 480.

<p>1. MASTER AND SERVANT: Injuries to Servant: Fellow Servants: Evidence. In an action by a servant for injuries received while repairing the master’s machinery, evidence that a vice principal ordered plaintiff to work under another servant, and that the latter exercised superintendence and control over the servants working with him on all repair jobs was sufficient to justify an inference that such servant was vested by the master with the power of superintending control over plaintiff, which would be sufficient to constitute him a vice principal, and hence the question whether such servant was a fellow servant of plaintiff or a vice principal of the master was for the jury.</p> <p>2. -: Fellow Servants: Dual . Capacity Rule. The “dual capacity” rule prevails in this state.</p> <p>3. -: -: -: Liability of Master. Where a servant was entrusted by the master with the superintending control over the servants working with him in doing certain work, such servant, under the “dual capacity” rule, represented the master and the master was liable for his negligence only in the discharge of such duties as the master himself should have discharged or which rested upon the master as absolute duties.</p> <p>4. -: Duty of Master: Safe Place to Work. It is the duty of the master to exercise reasonable care to furnish appliances for his servants in the performance of their duties that are reasonably safe, suitable and fit for the designed use; and this duty is an absolute and personal one.</p> <p>5. -: Fellow Servants: Dual Capacity Rule: Selection of Appliances by Foreman: Liability of Master. Where a master gave a servant superintending control over the men working with him in doing certain work, such servant, in selecting from the. storeroom an unsuitable apparatus for the work over which he had superintending control, was acting as a vice principal and not as a fellow servant, since the selection of a suitable apparatus was an absolute and personal duty on the ' part of the master.</p> <p>6. -: -: Selection of Appliances by Foreman. Although the master might be said to have performed his duty by providing safe appliances and entrusting the selection of the particular one to be used to the judgment of his servants, yet if he does not entrust such selection to a mere servant, but undertakes to make it himself, or entrusts it to a servant having superintending control over the other servants, he is liable for failing to exercise due care in making it.</p> <p>7. -: -: -. Where a foreman selects an appliance from many other appliances furnished by the master and expressly or impliedly directs the workmen to use it, the selection is blended with command, direction and assurance, and the workmen have a right to presume the appliance is a proper one, unless the danger of its use is so obvious that a reasonable man would not risk it; but where such a selection is made by a mere servant, the co-servants would have some discretion to reject it and to get the proper appliance.</p> <p>8. '-: -: -. Where a vice principal produces only one appliance and directs it to be used, that is the only appliance that is “provided” in attempted compliance with the duty of the master; and although there may be other appliances, yet, if they are not produced, especially where their whereabouts are unknown, they are not provided.</p> <p>9. -: Injuries to Servant: Sufficiency of Evidence. In an action by a servant for injuries received by reason of a defective apparatus, which was selected by another servant who exercised superintending control over plaintiff, 7mid that the question of the master’s liability was for the jury.</p> <p>10. -: -: Contributory Negligence. In an action by a servant for injuries received by reason of a defective apparatus, held that the evidence tended to prove plaintiff worked with the apparatus knowing it to be unsafe, and hence that the question of whether or not he was guilty of contributory negligence was in the case.</p> <p>11. NEGLIGENCE: Instructions: Submitting Negligence as Contributing Cause. Where, in a negligence case, there is evidence of defendant’s negligence and plaintiff’s contributory negligence, but no evidence that any other cause contributed to the injury, an instruction that plaintiff is entitled to recover, if the jury believed the negligence therein hypothesized “directly contributed to cause” the injury, is erroneous; and although, in such a case, there be evidence of other causes concurring with defendant’s negligence to product the injury, yet, in order to excuse the words, “contributed to cause,” they should always be so safeguarded as to exclude the idea that the concurring negligence of plaintiff and defendant will permit a recovery, and should indicate what fact contributed with defendant’s negligence to cause the injury.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Suppression of the truth is deceit, and therefore a fraud, which will defeat an action for specific performance. Stewart v. Cattle Range Co., 128 TJ. S. 383-388; Isaacs v. Skrainka, 95 Mo. 524; Bouvier’s Law Dictionary, vol. 1, p. 437; Bird v. Logan, 34 Kas. 228; Margraf v. Muir, 57 N. T. 158; King v. Knapp, 59 N. T. 462; Hetfield v. Willey, 105 111. Sup. 286; Brewster v. Company, 34 Fed.

<p>Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.</p> <p>(1) Unfounded charges of infidelity constitute indignities authorizing a divorce. Rose v. Rose, 129 Mo. App. 175; Griesedieek v. Griesedieek, 56 Mo. App. 94; Ashburn v. Ashburn, 101 Mo. App. 365; Green v. Green, 131 N. C. 533, 42 S. E. 954; Braun v. Braun, 194 Pa. St. 287. And, where the plaintiff proves himself entitled to a divorce, the court has no discretion to deny him the relief asked, but must grant him hi& decree. Raney v. Raney, 128 Mo. App. 167; Wares v. Wares, 122 Mo. App. 129. (2) Recrimination, to be a defense to an action for divorce, must consist of acts which would entitle the defendant to a decree of divorce. Hoffman v. Hoffman, 43 Mo. 547; Owen v. Owen, 48 Mo. App. 208; House v. House, 131 N. C. 140, 42 S. E. 546; Pierce v. Pierce, 33 Iowa 238. And strong suspicions' of misconduct will .not defeat the husband’s right to a divorce; but the wife must prove such facts as would entitle her to a divorce. Drayton v. Drayton, 54 N. J. Éq. 298, 38 Atl. 25. (3). Sudden acts of retaliation by plaintiff, provoked by the conduct of the defendant, will not defeat the action, where repeated acts of the defendant, constituting grounds for divorce,' have been shown. Uriesedieck v. Griesedieck, 56 Mo. App. 94; Hoffman v. Hoffman, 43 Mo. 547. (4) An action for divorce is not a suit in equity. The maxim that a party must come into court with “clean hands,” does not apply in divorce cases. Im re Kinsolving, 135 Mo. App. 631; Hoffman v. Hoffman, 43 Mo. 547. (5) it is the duty of appellate courts, in divorce cases, to review the evidence and award such judgment as the trial court should have awarded. Donley v. Donley, 131 S. W. 356; Grove v. Grove, 79 Mo. App. 142.</p>

Genevieve Circuit Court. — Hon. Charles A. Killian, Judge. (1) The gist of an action for slander, is the speaking of the alleged slanderous words. If the evidence fails to establish that defendant spoke the exact words alleged to have been spoken, or fails to prove enough of the same identical words to make out the slander charged, the court should direct a verdict for defendant.

— Hon. Henry C.. Riley, Judge. (1) The demurrer to the evidence should have been sustained: (a) Because wrongful detention is the gist' of replevin. R. S. 1909, sec. 7759; Barnes v. Plessner, 137 Mo. App. 573; Grant v. Stubblefield, 138 Mo. App. 555. (b) Because the defendant had a lien on the goods for its freight charges, that is, the right to retain possession until such charges were paid, and therefore, its detention of the goods was not wrongful.

<p>1: APPELLATE PRACTICE: Prerequisites to Review: Exceptions: Abstract of Record. The merits of a ease will not be reviewed on appeal, unless the abstract of the record reveals the fact that an exception was preserved in the bill of exceptions to the overruling of the motion for a new trial.</p> <p>2. -: -: -: Necessity of Bill of Exceptions. Exceptions can be preserved for review only by a bill of exceptions, and hence where a bill of exceptions did not preserve an exception to the overruling of the motion for a new trial, the fact that the order overruling the motion recited that the movant saved an exception to such action would not preserve such exception for review.</p>

<p>Appeal from.Lincoln Circuit Court. — Hon. James D. Barnett, Judge.</p> <p>The court erred in giving the instruction asked by plaintiff, because: (a) It singles out one of several defenses (all being supported by proof), ignored all the other defenses, and told the jury that unless the defendant had sustained that single defense they could not find for it on that issue. Rudd v. Eire Ins. Co., 120 Mo. App. 1; Imboden v. Trust Co., Ill Mo. App. .220; Ormsby v. Ins. Co., 98 Mo. App. 371; Swink v. Anthony, 96 Mo. App. 420; Halladay, etc., Co. v. Moss Tie Co., 87 Mo. App. 167. (b) It was misleading and well calculated to have the effect on the jury of making them disregard the other defenses and find a ■verdict for plaintiff if the special defense mentioned in the instruction was not sustained to their satisfaction. Sapp v. Hunter, 134 Mo. App. 685; Harrison v. Franklin, 126 Mo. App. 366; Trustees, etc., v. Hoffman, 95 Mo. App. 488.</p> <p>(1) No “fraud” or “false swearing” is pleaded.' Allegations that Burton and Caraway “conspired to defraud” and that Caraway “falsely swore” amount to no pleading at all unless followed by specific allegations, and no specific allegations appear here. Dorman v. Hall, 124 Mo. App. 9.. (2) However strong the proof of fraud or false swearing might have been, it would avail the defendant nothing, for proof without allegations is as futile as are allegations without proof. Laclede Co. v. Tudor Wks., 169 Mo. 154; Cole v. Armour, 154 Mo. 350.</p>

<p>Appeal from Lincoln Circuit Court. — Hem. James D. Barnett, Judge.</p> <p>The court erred in giving instruction numbered one asked by plaintiff because: (a) It was vague, misleading and confusing. Sapp v. Hunter, 134 Mo. App. 685; Harrison v. Franklin, 126 Mo. App. 366; Trustees, etc., v. Hoffman, 95 Mo. App. 488. (b) It singled out one defense, to-wit, the failure to keep proper books and inventory under the “iron safe” clause, and directed the jury that if they found certain facts therein set forth that then the jury, upon that issue, might find for plaintiff, ignoring the other — the fraud — defense. Eudd v. Fire Ins. Co., 120 Mo. App. 1; Imboden v. Trust Co., Ill Mo. App. 220; Ormsby v. Tus. Co., 98 Mo. App. 371; Swink v. Anthony, 96 Mo. App. 420; Iiolladay, etc., Co. v. Moss Tie Co., 87 Mo. App. 167. (c) It singled out certain facts and told the jury that if they found these facts the company waived its right to forfeit the policy “for those reasons.” James v. Insurance Co., 135 Mo. App. 247; Landrum v. Railroad, 132 Mo. App. 717; Gage v. Mears, 107 Mo. App. 140. (d) It was in substance an instruction to the jury that if they found against defendant on one of the defenses interposed they could return a verdict for plaintiff, ignoring other defenses made and supported by proof. Authorities, supra, (b). (e) It was argumentative and a comment on evidence. Smith v. Woodmen, 179 Mo. 119; James v. Insurance Co., 135 Mo. App. 247; Ford v. Gray, 131 Mo. App. 240; Gage v. Mears, 107 Mo. App. 140; Swink v. Anthony, 96 Mo. App. 420. (f) It assumed a strongly contradicted fact, namely, that Caraway, at Dallas, “went over the facts of his loss” with Slaton. Crow v. Railroad, 212 Mo. 589; Railroad v. Stewart, 201 Mo. 491. (g) It squarely conflicted with defendant’s instruction No. 5.</p> <p>(1) Respondent’s instruction No. 1 is not subject to the objection that it leaves out of consideration the defense of fraud as it is limited to one issue, waiver of books and inventory. And defendant’s instructions set forth its .defense just as requested by it. All the facts and issues proper to be submitted need not be combined in one instruction. They may be included in a series of instructions. It is sufficient if the instructions, as a whole, present the issues fairly to the jury. Minter v. Bradstreet Co., 174 Mo. 444; Russell v. State Ins. Co., 55 Mo. 585; Fullerton v. Railroad, 84 Mo. App. 498; Muehlhausen v. Railroad, 91 Mo. 382; Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo. Ap.p. 144; Fletcher v. Mfg. Co., 35 Mo..App. 321. (2) Instructions may assume a fact conceded or established or about which there is or can be no reasonable controversy. “The rule is that the assumption in an instruction of an issuable fact conceded by the other party is not erroneous.” Sweeney v. Cable Ry. Co., 150 Mo. 385; Taylor v. Architectural Iron Co., 133 Mo. 349. (3) The answer of defendant does not plead the defenses of fraud or false swearing sought to be invoked by defendant, because no facts showing fraud, or falsity, are set forth, hence these issues are not in this case. A mere charge of fraud, or falsity, without specification how and without particulars, of the alleged false acts, amounts to .nothing in pleading. Newman v. Trust C'o., 189' Mo. 444; Barrie v. Railroad, 138 Mo. App. 645.</p>

<p>Appeal from Lawrence Circuit Court. — flo». Carr McNatt, Judge.</p> <p>(1) The court erred in giving plaintiff’s instruction number 1. Dowling v. Allen, 102 Mo. 213; Czernicke v. Erlich, 212 Mo. 395; Zellars v. Light Co., 92 Mo. App. 119; Clark v. Railroad, 179 Mo. 66; Mueller v. Shoe Co., 109 Mo. App. 506; Brands v. Car Co., 213 Mo. 714; Musick v. Packing Co., 58 Mo. App. 300; Each v. Railroad, 117 Mo. App. 11; Clonts v. Light Co., 144 Mo. App. 582; Lee v. Railroad, 150 Mo. App. 175. (2) Said instruction number 1 is erroneous because it does not present to the jury the case pleaded and presented to the jury by the petition and the evidence. Unless it can be said as a matter of law the- evidence disclosed knowledge on the part of defendant of the tendency of the bucket to suddenly turn and knowledge of the danger and increased hazard and knowledge of the youth and inexperience of the plaintiff. Hufft v. Railroad, 222 Mo. 304; Eppstein v. Railroad, 197 Mo. 734; Morgan v. Railroad, 159 Mo. 270; Ahnefeld v. Railroad, 212 Mo. 300. (3) Instructions must not only be within the scope of the pleadings but within the scope of the evidence. Block v. Railroad, 217 Mo. 672; Crumley v. Timber Co., 144 Mo. App. 528-. (4) Said instruction number 1, is erroneous because it refers the jury to the petition for the injuries of the plaintiff for which they might compensate him,- to quote the language of the instruction: “If you find from the evidence that plaintiff . . . was thereby • thrown to the ground and received any of the injuries complained of.” Fisher v. Transit Co., 198 Mo. 562; Pandjiris v. Hartman, 196 Mo. 539; Glasgow v. Railroad, 191 Mo. 374; Webb v. Carter, 121 Mo. App. 155; Allen v. Transit Co., 183 Mo. 432; Flischman v. Miller, 38 Mo. App. 181; Com. Co. v. Hunter, 91 Mo. App. 337. (5) The peremptory instruction offered at the conclusion of all the evidence by the defendant should have been given and in consequence this case should be reversed without remanding. Because the petition in failing to allege the defendant knew, or by the exercise of ordinary care could have known of the liability of the bucket or hopper to suddenly turn or revolve and injure plaintiff, or that it knew or could have known of the danger or increased hazard, the pláintiff failed absolutely to state a cause of action and the defect cannot be cured by the verdict. Mueller v. Shoe Go., 109' Mo. App. 507; Current v. Railroad, 86 Mo. 62; Crane v. Railroad, 87 Mo. 588; Johnson, v. Railroad, 96 Mo. 340; Fisher v. Lead .Co., 156' Mo. 479'; Durst v. Stamping Co., 163 Mo. 607. (6) Because defendant was not required to have provided against all possibly anticipated happenings. Glasscock v. Dry Goods Co., 106 Mo. App. 657; Kapper v. Shoe Co., 116 Mo. App. 168; Brubaker v. Light Co., 130 Mo. App. 439; Saxton v. Railroad, 98 Mo. App. 494. (7) That the bucket under the circumstances after coming down straight would, when the plaintiff went to take hold of it, suddenly whirl and knock him down is contrary to the laws of physics and plaintiff’s testimony that it did so happen should be disregarded. DeMalt v. Fidelity Có., 121 Mo. App. 92; Baker v. Railroad, 122 Mo. 589; Way v. Power Co., 68 Mo. App. 389; Gorman v. Transit Co., 96 Mo. App. 606; Payne v. Railroad, 136 Mo. 562; Latson v. Transit Co., 192 Mo. 449; State v. Vaughn, 200 Mo. 22. (8) The evidence is wholly insufficient to show that the defendant had reasonable cause to anticipate plaintiff’s injury. This being the fact, there was no negligence on the part of defendant, and the demurrer should have been sustained. Halloran v. Pullman Co., 148 Mo. App.' 247; Wendall v. Railroád, 100 Mo. App. 566; Anderson v. Box C.o., 103 Mo. App. 382; Dickey v. Dickey, 111 Mo. App. 304; Cole v. Lead Co., 130 Mo. App. 253; Harris v. Railroad, 146 Mo. App. 524; Leitner v. Grien, 104 Mo. App. 173.</p> <p>(1) In this ease respondent pleaded that he was given a defective and dangerous machinery and appliances and the turning of the bucket was only incident to the defective hoist, and as it was admitted throughout the trial that the hoist was defective, therefore, it was a useless ceremony to incorporate the same in the instructions. Cornovski v. Transit Go., 207 Mo. 274; Zellers v. Water Co., 92 Mo. App. 128. (2) When instructions are not inconsistent and where plaintiff’s instructions omit certain requirements, yet when the instructions of defendant supply the defect appellant cannot complain. Gibler v. Railroad, 203 Mo. 222; Goetz v. Railroad, 50 Mo. 472; Chambers v. Chester, 172 Mo. 461. (3) Where the plaintiff is a minor, it is a prime .duty to warn him and caution him especially where the youth is required to work with complicated machinery. Yanesler v. Box Co., 108 Mo. App. 629; Sailer v. Shoe Co., 130 Mo. App. 729. (4) Not a single witness for defendant ever intimated that they were ignorant of his age or inexperience. Zellers v. Water Co., 92 Mo. App. 128 ; Crane v. Railroad, 87 Mo. 595. (5) Not only the age but the experience and capacity of the minor enters as a factor in the degree of care he is required to observe. The proposition of law as set forth in instruction No. 2 is correct as applied to this case. Thien v. Supply Co., 116 Mo. 5; Henderson v. Kansas City, 177 Mo. 490; Vessels v. Car Co., 129 Mo. App. 713.</p>