Volume 164 — Missouri Appeal Reports

<p>1. INSURANCE: Three-fourths Valuation: Valued Policy: Estoppel. Under the statute, Sec. 7030, ft. S. 1909, an insurance company is directed not to issue a policy of fire insurance for more than three-fourths of the value of the property; but when such value is fixed and the policy issued the company is estopped from asserting that the policy was for more than three-fourths of the value at the date of the insurance (Gibson v. Ins. Co., 82 Mo. App. 515; distinguishing Surface v. Ins. Co., 157 Mo. App. 570); and recovery may be had for the face of the policy less depreciation since date of insurance.</p> <p>2. -: -: -: Depreciation: Sales: Salvage. But the fact that the policy is thus practically a valued policy will not prevent the amount of liability being reduced by depreciation, sales, decay or salvage.</p> <p>3. -: -:. -: Books: Inventory: Forfeiture. When a policy of fire insurance on personal property provides for keeping of books and inventories and the insurer does not demand their production after the fire, no forfeiture can be had for want of compliance with the policy.</p>

<p>1. COUNTERCLAIM: Set-off. A counterclaim must constitute a good cause of action, in favor of defendant and against plaintiff, and must be a claim upon which a separate action would lie. If the facts do not constitute such a cause of action, they do not constitute a counterclaim, although they may be sufficient to constitute a set-off.</p> <p>2. -: -: Unliquidated Damages. To constitute a set-off the demand must be in the nature of a debt, and as an unliquidated claim for damages is not included in the term “debt” it cannot he made the subject of set-off.</p> <p>3. CONTRACT: Breach: Damages. A person, who commits a breach of a contract and thereby injures the. other party, is not permitted to escape liability because the amount of the damages he caused is uncertain and not susceptible of accurate proof. The jury are invested, in such cases, with the function of fixing the amount from the facts and circumstances shown by proof.</p>

<p>Appeal from Johnson Circuit Court. — Hon. A. A. Whit sett, Judge.</p>

<p>1. PUBLIC NUISANCE: Damages: Stagnant Water. A landowner has no right to collect surface water on his land and precipitate it in a hody on the land of his neighbor, nor to collect and hold it in a stagnant, offensive and disease-breeding body and thereby inflict an injury to his neighbor.</p> <p>2. -: -: Public Street. Where a city suffers a nuisance to be erected in a public street and does not abate it within a reasonablé time after the reception of knowledge of its existence, it becomes liable for the injurious consequences to the same extent as it would had it created the nuisance..</p>

<p>Appeal from Buchanan Circuit Court. — Hon. William ID. Rusk. Judge.</p>

— Hon. James H. Slover, Judge. (1) The petition alleged specific negligence on the part of the defendant, and no proof of any negligence was made. For this reason the demurrer to the evidence should have been sustained. Roscoe v. Railroad, 202 Mo. 576; Orcutt v. Building Co., 201 Mo. 442; McGrath v. Transit Co., 197 Mo. 457; Morgan v. Mulhall, 214 Mo. 457; Ely v. Railroad, 77 Mo. 34.

<p>2. EVIDENCE: Hypothetical Question: Expert: Rental Value: Farmer. A farmer residing in tke vicinity of a tract of land and acquainted with rental values, is competent to state tke rental value of suck tract. Suck interrogation does not involve or embrace wkat is known as a kypotketical question propounded to experts.</p> <p>2. -: Res Adjudicata: Lease: Former Appeal. Though an appellate court may decide that a certain alleged verbal contract, as testified to by tke plaintiff, was a valid lease, yet on a retrial tke question whether suck verbal contract was, in fact, made, is open for testimony on both sides of tke issue, and it is error to refuse to let defendant testify in denial on tke ground that it is res adjudicata by the former appeal.</p>

— Hon. James E. Goodrich, Judge. (1) The canse of action was not shown to have been one which conld survive the death of the original plaintiff, Armstrong. Elliott v. Kansas City, 210 Mo. 576; Millar v. Transit Co., 216 Mo. 99, 104; Behen v. Transit Co., 186 Mo. 430, 445; Bates v. Sylvester, 205 Mo. 493.; R. S. 1909, Sec. 106 ; Vawter v. Railroad, 84 Mo. 679; Oates v. Railroad, 104 Mo. 514; Strottman v. Railroad, 211 Mo. 227.

<p>DIVORCE: Fraud and Deceit: New Trial. Plaintiff obtained a decree of divorce, the defendant not appearing, although she had filed an answer and cross-bill. Within four days and at the same term she filed a motion to set aside the decree on the ground of fraud and deceit practiced on her by plaintiff by which she was prevented from appearing at the trial. Plaintiff filed a plea to the jurisdiction of the court. The court sustained defendant’s motion and granted a new trial. Held, that defendant’s motion was, in effect, one for a new trial and not a petition for review.</p>

<p>1. NEGLIGENCE: Pleading: Specific Acts. Where specific acts of negligence are alleged, the burden of proof is upon the pleader to show that the injury was caused by the negligence averred and the instructions must restrict the right to recover to the pleaded cause.</p> <p>2; -; Degree of Care: Instructions. Where the petition in a case of a passenger against a common carrier pleads specific acts of negligence, it is error to direct a verdict for plaintiff on the finding of the jury that the injury was caused by the negligent failure of the defendant to exercise the highest practicable degree of care for the safety of plaintiff.</p>

— Hon. W. O. Thomas, Judge. (1) Defendant’s ídstrnction in the nature of a demurrer at the close of all the evidence should have been given, for the following reasons: (a) The evidence shows that defendant was not negligent, (b) Plaintiff assumed the risk of injury in performing the work at the time and place in question. Cunningham v. Journal Co., 95 Mo. A.pp. 47; Shinners v. Mullins, 136 Mo. App. 298; Chrismer v. Telephone Co., 194 Mo. 189.

— Hon. James E. Goodrich, Judge. Where work is improperly done under a building contract and the owner, with knowledge of the defect, takes possession of and uses the building, without waiver, the amount of damages would be the difference between the value of the work as done and as it should have been done.

— Hon. E. E. ■ Porterfield. Judge. (1) A landlord is responsible for injuries to a third person arising from the bad repair of the sidewalk space upon which the leased premises abut, if the condition existed at the time the premises were let. Stoetzele v. Swearingen, 90 Mo. App. 588; Powers v. Ins. Co., 91 Mo. App. 55; Mancuso v. Kansas City, 74 Mo. App. 138; Timlin v. Oil Co., 126 N. T. 514. 2.

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

<p>1. MUNICIPAL CORPORATIONS: Plumbers: License: Right to Tax: Ordinance. A city charter did not name plumbing as a business or vocation which might be taxed, and it was held that an ordinance requiring plumbers to pay a license of $25 for the revenue fund, was invalid.</p> <p>2. -: -: -: -:.-: Business: Shop. An ordinance which requires a license tax for plumbers in doing any work connected with sewers and house connections therewith, is essentially a tax on his business if conducted outside of his shop.</p>

<p>CRIMINAL LAW: City Prosecution: Arraignment: Civil Action. In a prosecution for violating a city ordinance, in tbe sale of liquor, a conviction will not be invalidated because tbe defendant was not arraigned and a plea of not guilty entered. In that respect tbe prosecution bears resemblance to a civil action.</p>

<p>Appeal from Jackson Circuit Court. — Hon. O. A. . Lucas, Judge.</p>

<p>1. STREET RAILWAYS: Invitation to Ride: Evidence. Plaintiff, a boy fourteen years old, frequently boarded a street car at tbe front end and where tbe vestibule entrance faced towards tbe other track. To do this he stood between the tracks and signalled for the car to stop. As it slowed down to near a stop, the motorman said to him: “Get on, kid,” and as he got one foot on the car step, the car was suddenly started forward with a jerk, throwing him to the pavement, the car wheel running over his leg so that it had to be amputated. It was held to be a case for the jury.</p> <p>2. -: Instructions: Care and Prudence: “Permit.” Where other instructions clearly define the care and caution necessary in a plaintiff in deciding whether to attempt to board a slowly moving car, it is not reversible error to give an instruction submitting whether the situation was such as to “permit” a cautious person to board the car.</p>

— lion. Thomas J. Seehorn, Judge. (1) The justice of the peace had jurisdiction to render a personal money judgment against respondent for an amount aggregating $300, even though he did not have jurisdiction to enforce the lien. Patrick v. Abeles, 27 Mo. 184; Mulloy v. Lawrence, 31 Mo. 583; Matlock v. Lare, 32 Mo. 262; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69'Mo. 548; Company v. McCornish, 74 Mo. App. 609; Heimberger v. Harrison, 83» Mo. App. 544.

— Hon. James H. Slover, Judge. (1) Inasmuch as there was a confessed failure fully to perform the contract, plaintiff was not entitled to recover in this action in which the petition does not declare upon quantum meruit and does not plead any waiver of full performance, hut declares upon the written contract, sets forth and pleads the same with particularity, and pleads full performance thereof.

— Hon. James H. Blover, Judge. It has been held repeatedly in this state that where the petition alleges separately the amount of damages sustained on several elements or items of damage, the instruction on measure of damages should limit the amount of recovery upon each item to the amount alleged in the petition on such item.

— Hon. Nat. M. Shelton, Judge. (1) Plaintiff’s petition fails to state a cause of action. Gurley v. Railroad, 93 Mo. 445; Railroad v. Adams, 24 S. W. 839; Hennessey v. Railroad, 12 S. W. 608; Nivert v. Railroad, 232 Mo. 626. (2) The court should have required plaintiff to make her petition more definite, specific and certain. R. S. 1909, art. 5, chap. 21, sec. 1794; R. S. 1909, art. 5, chap. 21, sec. 1815; Gurley v. Land & L. S. Co., 163 Mo. 342; Rush v. Brown, 101 Mo. 589.

— Hon. Walter A.. Powell, Judge. (1) The circuit court erred in dismissing the appeal of appellant from the justice of the peace. R. S. 1909, sec. 7579; Drake v. Gorrell, 127 Mo. App. 636;, Kraas & Thurman v. Shipp, 69 Mo. App. 46; Hull v. Beard, 80 Mo. App. 200; Bailey v. Kelley, 38 Mo. App. 623; Kermis v. Distilling Co., 79 Mo. App. 114. The claim that defendant had no opportunity given to it, to file a bond, has no foundation in fact.

<p>1. EVIDENCE: Leading Questions: Discretion of Court. A trial judge may exercise a sound discretion in ruling on objections to leading questions and the appellate courts will not interfere with such rulings unless it appears that there was an abuse of discretion.</p> <p>2. WITNESSES: Local Option: Impeachment. When a defendant in a criminal proceeding offers himself as a witness his credibility may be assailed by proof that he bears the reputation in the community of being guilty of offenses analogous to that for which he is being tried.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. W. K.. Amick, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. H. B. Shain, Judge.</p>

<p>1. DRAMSHOP LICENSE: Remonstrance: Appointment of Commissioner. Where an application for a license to keep a dram-shop is contested by a remonstrance, it is not improper for the county court, on agreement of the parties, to appoint a competent person to meet with the parties or their attorneys to canvass the names of petitioners and remonstrants, to sift out the names of those agreed to be incompetent signers and those agreed to be qualified.</p> <p>2. -: -: County . Court: Certiorari: Jurisdiction: Mistakes. The county court has exclusive jurisdiction in the matter of granting dramshop licenses and so long as its record shows that it did not go beyond its jurisdiction in the procedure for a license and in granting the license, its decision cannot be questioned by writ of certiorari. Errors or mistakes in law or fact cannot be questioned or corrected in such procedure.</p>

— Ron. O. A. Lucas, Judge. The plaintiff by production of the notes and proof of the indorsements made a prima facie case without even the evidence of J. H. Youtsey. Ashbrook v. Letcher, 41 Mo. App. 369. Hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge.

— Eon. N. D. Thurmond, Judge. (1) The plaintiff cannot complain of any failure to warn or instruct him as to the danger of injury from contact with the revolving cutter-head of the machine, because the danger was obvious and he was fully aware of it. Nugent v. Mill Co., 131 Mo. 241; Smith v. Bos Co., 193 Mo. 715; Hirsch v. Bread Co., 150 Mo. App. 162; Stegman v. Grerber, 146 Mr. App. 104; Blair v. Heibel, 103 Mo. App. 621; Herbert v. Shoe Co., 90 Mo. App. 315.

— Eon. W. O. Thomas, Judge. (1) A motion for new trial is not necessary to secure the review of the lower court’s ruling on a motion such as that in question. Parker v. Waugh, 34 Mo. 343; O’Connor v. Koch, 56 Mo. 258; Sternberg _ v. Levy, 159 Mo. 624; Butler v. Lawson, 72 Mo. 244; Rigdon v. Furguson, 172 Mo. 52; Aultman & Co. v. Daggs. 50 Mo. App. 288; Bowie v. Kansas City, 51 Mo. 459; Brewing Co. v. Ehlhardt, 139 Mo. App. 133; Johnson v. Latta, 84 Mo. 139.

— Hon. E. E. Porterfield, Judge. The property insured was vacant and unoccupied when destroyed, and under the terms of the policy defendant was relieved from any liability on that account. Hoover v. Ins. Co., 93 Mo. App. Ill; Cook v. Ins. Co., 70 Mo. 610.

— Hon. N. D. Thurmond, Judge. (1) This suit is based on Sec. 3330, R. S. 1909, and is a penalty statute. Such statutes are considered by the courts of this state as harsh and must he strictly construed. The statutes shall apply to such cases only as come fully and clearly -within the provisions. Nothing must he taken by intendment. Cowan v. Telegraph Co., 149 Mo. App. 407; Edrington v. Telegraph Co., 115 Mo. App. 98; Rixke v. Telegraph Co., 96 Mo.

— Hon. J. E. Goodrich, Judge. (1) The court erred in holding that deceased was liable upon the note.

— Hon. Francis H. Trimble, Judge. (1) The walk as it existed was reasonably safe, as a matter of law. (2) The plaintiff was guilty of contributory negligence in this case. Diamond v. Kansas City, 120 Mo. App. 185; Rogers v. Bloomington, 52 N. E. 242; Payne v. Railroad, 136 Mo. 562; Spiro v. Transit Co., 102 Mo.

— Hon. W. O. Thomas, Judge. (1) This was a statutory arbitration. The arbitration agreement was in writing, and provided that it should be carried out in conformity with the statute relating to arbitrations. Tucker v. Allen, 47 Mo. 490; Cochran v. Bartle, 91 Mo. 644; Yalle v. Company, 37 Mo. 451; 2 Am. and Eng. Ency. Law (2 Eel.), 541; Erie v. Bent, 39 Fed. 409; Williams v. Watton, 9 Cal. 142; Deerfield v. Arms, 20 Pick. 480, 32 Am.

— Hon. L. B. Woodside, Judge. (1) Instruction 2 given for the defendants is wrong, misleading, is without evidence upon which to base it and is in direct conflict with the opinion of this court in the former appeal of this cause. Link v. Jackson, 139 S. W. 597.

— Hon. Alfred Page, Judge. (1) The information fails to charge that the bottles used by the defendant were bearing the name of some person or corporation, who were then and there mannfactnrers of the described drinks.

— Eon. David E. Blair, Judge. (1) In a suit by landlord against tbe tenant for a non-payment of rent, one of the grounds of tbe attachment is that tbe rent was due and unpaid at tbe time tbe suit was filed and that demand for payment bad been made before tbe suit was filed. E. S. 1909, sec. 7896.

— Mon. John T. Moore, Judge. (1) If the affidavit was defective, or a nullity, respondeat should have objected to the order of the trial court granting the appeal and saved an exception if his objection was overruled, which respondent did not do. (2) Respondent before he can he heard to complain should have saved his exceptions and had them incorporated in the bill of exceptions. R. S. 1909, sec. 5245; State v. Black, 99 Mo.

— Hon. G. H. Skinker, Judge. (1) Although, there are alterations apparent on the face of the instrument, yet unless there is something suspicious about them, it will be presumed that they were made contemporaneously with the execution ■of the instrument. Paul v. Leeper, 98 Mo. App. 515; Bailey v. Bank, 99 Mo. App. 571; Cox v. Mignery & Co., 126 Mo. App. 682; Stillwell v. Patton, 108 Mo. 352; Kirkpatrick v. Wiley, 197 Mo. 163.

— Eon, N. D. Thurmond, Special Judge. (1) This statute is highly penal and must be strictly construed and the offense proven must come clearly within its terms. Is confined to negligence in transmission or delivery and liability under-it cannot be enlarged. Edington v. Telegraph Co., 115 Mo. App. 98: Connell v. Telegraph Co., 108 Mo. 459; Cowan v. Telegraph Co., 149 Mo. App. 407; Wagner v. Telegraph Co., 133 S. W. 91; Peterson v. Telegraph Co., 37 N. E. 810.

— Hon. N. D. ■ Thurmond, Special Judge. (1) It is essential to a valid parol gift that it goes into effect at once and completely. If it regards the future it is but a promise, and being a promise without consideration, it can not be enforced, and has no legal validity. Mere words signifying an intent to transfer in the future are insufficient. Spencer v. Vance, 57 Mo. 427; Vogel v. Oast, 20 Mo. App. 104; Tygard v. McComb, 54 Mo.

— Hon. David H. Eby, Judge. (1) When a trial court sustains a motion for new trial generally and gives no specific reason for its action, the appellate court is driven to take into consideration all the grounds assigned in the motion, and if any one of them is sufficient to justify the action of the court, to affirm the judgment. Pink v. McCue, 123 Mo.

Henry C. Riley, Judge. (1) Tlie powers of a public corporation are those granted in express words by its charter or the general statutes under which it is incorporated; the powers necessarily or fairly implied in or incident to the powers thus expressly granted; and the powers essential to the declared purposes of the corporation, not only convenient bnt indispensable. 1 Beach on Public Corporations, sec. 538; 1 Dillon on Municipal Corporations (4 Ed.), sec. 89; 1 Tiedeman…

— Hon. Henry G. Riley, Judge. (1) The peremptory instruction asked by defendant at the close of all the evidence should have been given. The act of the servant for which the master was held liable was not an act within the scope of the servant’s employment, in the line of his duty, and relating to the duties of his employment. Hartman v.Muehlbach, 64 Mo. App. 565; Howard v. Railroad, 110 Mo. App. 574; Dickey v. Dickey, 111 Mo. App. 304; Long v. Nute, 123 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. The court erred in overruling the demurrer to the evidence offered at the close of plaintiff’s case, and again interposed at the close of the whole case, because : (a) There was no evidence of any negligence in warning the approaching train of the obstruction on the crossing. Frounfelker v. Railroad, 77 N. Y. Sup. 470; Railroad v. Culpepper, 19 Tex. Civ. App. 182; Smith v. Railroad, 113 Mo. 70.

Original Proceeding for Prohibition. Tbe preliminary writ heretofore awarded should be made permanent and absolute for the lack of jurisdiction of respondent, over the subject-matter in the action pending before him, because said action is local and not transitory in nature, and can be maintained only within the jurisdiction where it arose, which is Granite City, state of Illinois. An action is local: (a) When it is founded upon privity of estate.

<p>The opinion of the Springfield Court of Appeals in this case (149 Mo. App. 266) is adopted as the opinión of the court.</p>

— Hon: Henry C. Riley r Judge. The issue of fact for the recovery of money or property must he tried by a jury unless a jury is waived in proper manner. R. S. 1909, sees. 1968,1970'; Scott v. Young, 113 Mo. App. 46 ; Briggs v. Railroad, 111 Mo. App. 175; Brown v. Railroad, 69 Mo. App. 418. Either the judgment or the minutes of the clerk must show that the right of trial by jury was waived. Brown v. Railroad, 69 Mo. App. 418.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Neither the member of these benefit associations working under the lodge system nor their beneficiaries have any vested interest in the fund or the certificate prior to the death of the member. Westerman v. Supreme Lodge, 196 Mo. 670; Wells v. Mutual Ben. Assn., 126 Mo. 630; Sullivan v. Knights of Father Matthew, 73 Mo. App. 43; Masonic Ben. Assns. v. Bunch, 109 Mo 560.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. Statement. — The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. [See Laws of Missouri 1909, p. 396; see, also, Sec. 3939, R. S. 1909.] In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge Cox of that court, as…

— Hon. Joseph J. Williams, Judge. (1) The court was without jurisdiction to try the cause, there being no transcript on file from the justice. State v. Metzger, 26 Mo. 65; State v. Cowden, 85 Mo. App. 403. (2) Neither the purported transcript of the justice nor the circuit court records show any arraignment or plea of defendant. State v. Llewellyn, 93 Mo. App. 469; State v. Sharpe, 119 Mo. App. 386.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Accord and satisfaction discharges a liability and the agreement between the parties in satisfaction of such liability defines and limits their obligation. 1 Am. and Eng. Ency. Law, p. 423; Marshall y. Larkin, 82 Mo. App. 635; Worden v. Houston, 92 Mo. App. 371; Babcock v. Hawkins, 23 Yt. 561.

— lion. James D. Barnett, Judge. (1) The owner of a building who divides it into several apartments which he lets to various tenants, retaining to himself control of the halls and stairways for the common use of the different tenants and those having lawful occasion to be there, is bound to see that reasonable care and skill are exercised to render the halls and stairways, porches and landings, reasonably fit for the uses which he thus invites his tenants and others to make…

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) Instruction of nonsuit lias been given because: (a) By tbe judgment in tbe replevin suit all questions litigated or that could bave been litigated in that case became res judicata, and tbe trial court bad no power in this case to build up or work out a different judgment from that rendered therein, (b) Tbe goods sued for were delivered to appellants by tbe constable under a valid writ in a valid replevin suit…

Louis City Circuit Court. — Hon-William B. Homer, Judge. (1) We admit that as a fundamental proposition injunction will not lie to restrain an arrest, hut when the exercise of the. arresting- power exceeds the warrant and authority of law and goes to the extent of committing irreparable and incalculable damage to a man’s property, rights and franchises, then courts of equity may be called upon and will interfere with such action, even though its effect is to enjoin the…

<p>-1. EVIDENCE: Carbon Copy. A carbon copy of a'document,.made at the same time as and by the impressions that produced the original, is competent evidence in any case in which the original would be competent.</p> <p>2. WITNESSES: Attorney and Client: Privileged Communications. Where a carbon copy of an application for a patent is in the hands of the inventor’s attorney, it is privileged, and the attorney cannot be compelled to produce it.</p> <p>8. -: -; -; Producing Documents Committed to Attorney. In a suit for specific performance of a contract to convey a half interest in a patent, plaintiff applied for an order requiring defendant (the patentee) to produce the application for the patent. It appearing that the original application was on file in the patent office, the court made an order, under sections 1944 and 1945, Revised Statutes 1909, requiring defendant to produce a copy of the application, for use in the case. This defendant declined to do, because the copy was in the possession of his attorney and not in his own possession, and he objected to the attorney’s producing it because it was privileged. The attorney laid no claim to the paper, nor ■ objected to producing it on his own account, but was willing to furnish it to his client on his request. Held, that it was not material that the attorney owned the paper on which the copy .of the application was written, and, the copy not .being privileged in the hands of defendant, it could not be made privileged by defendant’s placing it in the possession of his counsel, and hence an order requiring, defendant to recall the copy from his counsel and to then produce it was proper.</p>

— Hon. David H. Eby, Judge. (1) It was defendant’s dnty to be on tbe look ont for danger to travelers and whenever it became apparent to a reasonable mind that one was in imminent danger from tbe operation of tbe engine and tbe means 'were at band to avoid inflicting an injury it was its dnty reasonably to employ sncb means. Feeny v. Railroad, 123 Mo. App. 429; Chamberlin v. Railroad, 133 Mo. 587.

<p>Appeal from St. Louis County Circuit Court. — Ron. John W. McElhinney, Judge.</p>

<p>1. APPELLATE PRACTICE: Proceedings for Appeal Liberally Construed. While an affidavit for appeal must substantially comply with the statute, the precedent steps for an appeal should be liberally construed with a view to sustain the appeal.</p> <p>2. -: Defective Affidavit for Appeal: Necessity of Objecting Below.' An appeal will not be dismissed because the affidavit for appeal was sworn to before the judgment was rendered, contrary to the procedure contemplated by the statute, where the trial court’s attention was not called to the defect,</p> <p>3. -: Affidavit for Appeal: Time for Making. The statute requiring an affidavit for appeal (section 2040, Revised Statutes 1909) does not contemplate the making of the affidavit before the judgment appealed from is rendered, and such a course is highly improper and would justify a refusal by the trial court to grant an appeal.</p> <p>4. -: No Bill of Exceptions: Dismissal of Appeal. The failure to file a bill of exceptions is not ground for dismissing the appeal, inasmuch as the record proper would still be before the court for review.</p> <p>5. -: -: Review of Record Proper: Executors and Administrators. On appeal to the circuit court from an order of a probate court, rejecting the vacation appointment of the party appealing, as administrator of an estate, pursuant to section 9, Revised Statutes 1909, and appointing another as such administrator, a judgment of the circuit court, adjudging that said order of the probate court be set aside, was sufficient, even in the absence of a bill of exceptions, to warrant consideration by the Court of Appeals of the question as to the right of the administrator, appointed in vacation, to appeal from the order of the probate court, made in term, rejecting the vacation appointment.</p> <p>6. EXECUTORS AND ADMINISTRATORS: Refusal to Appoint Applicant: Probate Courts: Appealable Orders. The right of appeal in probate matter is determined solely by section 289, Revised Statutes 1909; and, under it, an appeal does not lie from an order refusing to appoint one administrator of an estate in the first instance.</p> <p>7. -: Vacation Appointment: Tenure of Office. The term of one appointed administrator of an estate, in vacation of the probate court, pursuant to section 9, Revised Statutes 1909, extends only to the convening of the court in term and until the court either confirms or rejects the appointments.</p> <p>8. -: -: Refusal to Confirm: Probate Courts: Appealable Orders. Section 9, Revised Statutes 1909, provides that the probate court, or the clerk or judge thereof in vacation, “subject to the confirmation or rejection of the court,” shall grant letters of administration. Subdivision 9 of section 289, Revised Statutes 1909, gives a right of appeal from all orders revoking letters of administration, and subdivision 15 provides that the right of appeal therein given shall extend to any heir, creditor or other person having an interest in the estate being administered. Held, that an administrator appointed in vacation had no right, under the statutes, to appeal from an order of the probate court, made in term, rejecting the vacation appointment; there being no “revocation” of letters of administration, within subdivision 9, and the vacation appointment not having vested the appointee with an interest authorizing an appeal under subdivision 15.</p>

<p>The opinion of the Springfield Court.of Appeals in this case (151 Mo. App. 649) is adopted as the opinion of the court.</p>

<p>Appeal from Perry Circuit Court. — Hon. Charles A. Killian, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Son. Robert M. Foster, Judge.</p>

<p>The opinion of the Springfield Court of Appeals in this case (154 Mo. App. 420) is adopted as the opinion of the court.</p>

— Eon. J. G. Sheppard, Judge. (1) There is no proof in the record of where the animals alleged to -have been killed entered the right of way, and the law in such case presumes that such entry was made at the point where the animals were found dead.' Souders v. Railroad, 127 Mo. App. 123: Acord v. Railroad, 113 Mo. App. 99; Hurd v. Chappel, 91 Mo. App. 317; Ellis v. Railroad, 89 Mo. App. 243; Kinion v. Railroad, 39 Mo. App. 383; Duke v. Railroad, 39 Mo. App. 107.

— Hon. James T. Neville, Judge. (1) Appellants procured the purchaser and brought about the sale. Therefore they' are entitled to the regular commission on the amount paid, to-wit, $4150; Nichols v. Whiteacre, 112 Mo. App. 692; Gwinup v. Sibert, 106 Mo. App. 709. (2) If the seller reduces the price from that given the broker, and accepts a smaller sum, he is liable to the broker for his regular commission on the amount of the proceeds actually realized.

— Hon. David E. Blair, Judge. (1) Section 7481, Revised Statutes 1909, provides: “Either party shall be entitled to a change of venue in any civil cause pending before a justice of the peace, if he shall, before the jury is sworn, or the trial is commenced before the justice, file an affidavit,” etc. The cause pending referred to in the section above quoted does not mean the cause of action sued upon, but refers to and means the case pending, the action pending, the suit…

— Hon. John T. Moore, Special Judge. (1) The indictment is based upon section 7221, Revised Statutes 1909. The defendant is charged as a winegrower and a failure to prove him to he such is a fatal conviction. State v. Gary, 124 Mo. App. 175; State v. Douglas, 48 Mo. App. 39; State v. Kurtz, 64 Mo. App. 123; State v. Green, 26 Mo. App. 626; State v. Barnett, 111 Mo. App. 692. The case of State v. Gary, 124 Mo.

— Hon. L. B. Woodside, Judge. (1) Defendant should not have been permitted to show the value of the property insured immediately before it was damaged and the court’s refusal to permit the introduction of evidence to that end was error. Stevens v. Ins. Co., 120 Mo. App. 107; Surface v. Ins. Co., 157 Mo. App. 570; Burge v. Ins. Co., 106 Mo. App. 255; Howerton v. Ins. Co., 105 Mo. App. 575; Gustin v. Ins. Co., 164 Mo. 172.

Circuit Court. — Hon. David E. Blair, Judge. (1) The rule is that where non-lienable items are included in the mechanic’s lien account filed in the office of the clerk of the circuit court that if they can be easily segregated from the lienable items and if the lienor did not know at the time he filed the account that there was included in it the non-lienable items, the inclusion of such item will not vitiate the lien. Hittrell v. ITopkins, 114 Mo. App. 431.

<p>1. RAILROADS: Escaping Cars: Negligence: Contributory Negligence: Jury Question. In an action against a railroad company by an administrator for damages for the alleged negligent killing of his intestate, who at the time of his death was a brakeman on a freight train, engaged in switching cars and Who was killed on account of a collision caused by freight cars escaping from a side track because they had not been properly blocked and the brakes set; the evidence is examined and helé that the question of defendant’s negligence and deceased’s contributory negligence were for the jury and that the court properly overruled defendant’s demurrer to the testimony.</p> <p>2. MASTER AND SERVANT: Safe Place to Work: Continuous Duty. The duty of the master to furnish the servant a reasonably safe place in which to work is not discharged by furnishing such place at the beginning of the servant’s work, but the master is required to use ordinary care to see that the place continues in a reasonably safe condition, the duty being a continuous one and non-delegable.</p> <p>3. RAILROADS: Escaping Cars: Blocking Cars: Master and Servant: Duty of Master. A railroad company owes the duty to its servants employed in the handling of trains to use reasonable care to have its cars left on a side track properly blocked and braked, so as to prevent said cars from escaping.</p> <p>4. -: -: -: -: -: Presumption: Res Ipsa Loquitur. Where cars left on a side track get loose and injure a servant in the due performance of his duty, the presumption will be raised that the master did not use reasonable care to hold the cars on the side track and the burden would be upon the master to prove that he performed his duty in this respect.</p> <p>5. APPEAL AND ERROR: Evidence: Preserving Diagram in Record. Where a witness was examined with a map or diagram of the scene of the accident, but the appellant did not preserve such map or diagram in the record presented to the appellate court and the testimony standing alone is unintelligible, the appellant will not be permitted to draw unfavorable inferences from such testimony.</p> <p>(j. PRACTICE: Demurrer to Evidence: Jury Question. In considering a demurrer to the evidence, where the evidence is susceptible to two inferences, one consistent with ordinary care ' and the other tending to show negligence, the question is one of fact for the jury.</p> <p>7. -: -. A demurrer to the evidence admits every fact of plaintiff’s case to be true which the evidence tends to prove.</p> <p>8. BURDEN OF PROOF: Prima Facie Case: Oral Testimony: Jury Question. Where the plaintiff has the burden of proof and has made out a prima facie case by oral evidence and though plaintiff’s witnesses are uncontradicted and defendant offers no evidence at all, the court has no right to direct a verdict but the defendant is entitled to have the jury pass on the credibility of the witnesses. This rule is applied in a case where defendant contended that the oral evidence established the contributory negligence of plaintiff.</p> <p>9. RAILROADS: Escaping Cars: Contributory Negligence: Servant Selecting Dangerous Method: Violating Rules of Company. Plaintiff’s decedent was killed on account of cars escaping from a side track and colliding with an engine. The deceased, who was a brakeman and was assisting in uncoupling and switching cars, had jumped on the pilot of the engine at the time of the accident. Defendant contended that deceased was guilty of contributory negligence in having failed to block and brake the cars that escaped, in selecting a dangerous method of uncoupling the cars and in violating the rules of the company by jumping on the pilot of the engine. Held, under the evidence that plaintiff’s contributory negligence was for the jury and that the instructions given on that question correctly declared the law.</p> <p>10. RAILROADS: Master and Servant: Violating • Rules: Tacit Consent of Officers: Contributory Negligence. Although a railroad company had posted rules forbidding the uncoupling of cars by getting on the pilot or between the cars while the uncoupling took place, if the company’s officers knew of the violation of the rule and with their tacit consent have allowed the same to be habitually violated, an employee in pursuing the usual method of uncoupling the cars would not be guilty of contributory negligence as a matter of law.</p> <p>11. DEATH BY WRONGFUL ACT: Compensatory Damages: Evidence: Parents’ Loss of Son. In an action by an administrator for the wrongful death of his decedent, a single man, who was killed by the cars while employed as a brakeman for defendant, it was held competent for the father to testify as to the earnings of the deceased and the amount of money he had furnished his parents during his lifetime and their dependence upon his earnings for support, following the holding of the Supreme Court in Boyd v. Railroad, 139 S. W. 561.</p> <p>12. EVIDENCE: Objections: Practice. A party objecting to testimony is not required to keep up a running fire of objections throughout the entire examination. In this case the defendant’s objections are held to have been sufficiently well timed and numerous enough to meet all the requirements of the law.</p> <p>13. DEATH BY WRONGFUL ACT: Statutory Actions: Action Based on Particular Statute. In an action under the damage act for the wrongful death of a party resulting from the negligence of the peculiar character specified in section 5425, Revised Statutes 1909, the aggrieved plaintiff must sue under that section and does not have the option of suing under sections 5426 and 5427. These are purely statutory rights and must rest each upon its own statute.</p> <p>14. -: -: -: Railroads. If the servants and agents of defendant railroad company killed the deceased under circumstances such as to create a liability under section 5425, Revised Statutes 1909, necessarily defendant is not liable for such killing under any other sections; contra, if the servants . and agents of the defendant killed the deceased under eircumstances making defendant liable under any other section of the statute than 5425, such defendant is necessarily not liable under such section.</p> <p>15. -: --: -: Pleading. In an action under the damage act for the wrongful death of a party, resulting from defendant’s negligence, it is not necessary for the pleader to designate under which of the sections his action is brought, nor would such designation, if made, be conclusive as to which section the liability would be based upon.</p> <p>16. -: -: -: -. in an action by an administrator for the wrongful death of his decedent, a brakeman, alleged to have been caused through defendant’s negligence, the plaintiff contended that his petition was drawn under sections 5426 and 5427, Revised Statutes 1909. His evidence wag given, the instructions drawn and the trial conducted on that theory. The defendant contended that the suit is prosecuted under section 5425, Revised Statutes 1909. Held, that plaintiff’s cause of action was in fact for a liability under section 5425 and that the petition stated the necessary constituent facts in such a case as to apprise defendant that plaintiff was prosecuting under section 5425.</p> <p>17. -: -: -: Death from Operating Train: Time of Negligent Act. The general purpose of section 5425, Revised Statutes 1909, is to allow damages for wrongful death, resulting from the negligent acts of servants or employees engaged in running, conducting or managing public conveyances, controlled mostly by common carriers; it requires that the negligence of defendant’s employees must have concurred in point of time with the movement or operation of its cars, but not that the negligence must have occurred in point of time with the infliction of the injuries caused the death.</p> <p>18. NEGLIGENCE: Time of Negligent Act: Proximate Cause. Under the general rule of actionable negligence while the injuries may not immediately follow the negligent act, it must appear that the injuries were the natural and proximate consequence of the negligence and might and ought to have been foreseen by a reasonably prudent man in -the light of all the attendant circumstances.</p> <p>19. DEATH BY WRONGFUL ACT: Suit by Administrator: Action Not for Benefit of Estate. An administrator prosecuting an action under section 5425, Revised Statutes 1909, for the wrongful death of his decedent, cannot sue for the benefit of the estate, there being no such statutory provision, but he sues as the personal representative of the distributees who would be entitled to the decedent’s real and personal property under the laws of descent and distribution.</p> <p>20. STATUTORY CONSTRUCTION: Giving Effect to Every Word. A familiar canon of statutory construction is that every word of the statute, where it can be consistently done, is to be given force and effect, especially if they are in harmony with the legislature’s intention as collected from the entire act.</p> <p>21. DEATH BY WRONGFUL ACT: Compensatory Damages: Rule for Estimating Damages. In estimating the amount of compensatory damages, if any are allowed under section 5425, Revised Statutes 1909, it would seem proper to apply the rule given by section 5427, that is, that such an amount shall be allowed as the jury may deem fair and just with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue.</p> <p>22. -: -: -: — . The beneficiaries provided for by the fourth clause of section 5425 are not generally dependent upon the deceased and it is only in those cases where they have in- fact been receiving pecuniary assistance and then only to the extent of a fair and just estimate of their loss that they could recover compensatory damages under said section.</p> <p>28. -: -: Distribution of Amount Recovered. In an action under section 5425, Revised Statutes 1909, for the wrongful death of plaintiff’s decedent, the beneficiaries were those provided for by the fourth clause of said section. Held, that the amount recovered would go to the father, mother, brothers and sisters of the deceased and their descendente in equal parts, .although the father and mother were the only ones who suffered pecuniary loss.</p> <p>24. INSTRUCTIONS: Negligence: Contributory Negligence. In an action by an administrator to recover damages for the wrongful death of his decedent, who was killed by a collision resulting from the escape of cars that had been stored on a side track, and which were not properly blocked and braked, an instruction is criticised because it confined the duty of fastening the cars to the day of the accident and it further failed to require a finding of negligence of the agents, servants and employees of the defendant, other than the deceased.</p> <p>25. -: Must be intelligible. It is important that instructions to the jury should be intelligible and couched in plain and unequivocal language so as to be readily understood by them.</p> <p>26. WORDS AND PHRASES: Unmarried: Pleading. An allegation in a pleading that a person is single and unmarried does not necessarily mean that such person was never married, but ordinarily and especially after verdict the word “unmarried” would properly he held to mean that the party had never been married.</p> <p>27. DEATH BY WRONGFUL ACT: Action by Administrator: Pleading: Allegation Concerning Children. In an action under section 5425, Revised Statutes 1909, to recover ior the wrongful death of plaintiff’s decedent, an allegation that deceased was single and unmarried would be a sufficient allegation that he left no natural children, but not a sufficient statement from which it would naturally be inferred that he did not leave surviving him an adopted child or children.</p> <p>28. PARENT AND CHILD: Adopted Children: May be Adopted by Unmarried Person. The general law is that where the statute does not make any restrictions, an unmarried person may legally adopt a child.</p> <p>29. DEATH BY WRONGFUL ACT: Pleading. In statutory actions to recover for the wrongful death of a person the party suing must bring himself strictly within the statutory requirements necessary to confer the right and they must appear in his petition, otherwise it shows no cause of action.</p> <p>80. PLEADING: Failure to State Cause of Action: Always Open to Review. A petition that does not state a cause of action is always open for review at every stage of the case, at any time, in any court, whether raised by demurrer or not.</p> <p>31. APPEAL AND ERROR: Reviewing Record. Section 2083, Revised Statutes 1909, has made it the duty of the appellate court, independent of any action of the attorneys, to examine the record and if any error is apparent on the face of the record to reverse the judgment sua sponti, whether any exceptions are taken or not.</p> <p>32. VERDICT: Excessive: Death by Wrongful Act. In an action by an administrator to recover damages for the wrongful death of plaintiff’s decedent, COX, J., in a separate opinion concurs in reversing and remanding the cause, but places his concurrence upon the ground that since the measure of damages that went to the jury was compensatory alone, the verdict of $7500 was excessive. It appeared that the mother and father of deceased were the only relatives who suffered pecuniary loss from the death.</p> <p>33 RAILROADS: Escaping Cars: Contributory Negligence: Instructions. In an action for damages on account of the death of plaintiff’s decedent, which resulted from a collision caused by the escape of cars stored on a side track, which had not been properly braked and blocked, held, in separate opinion by COX, J., concurred in by GRAY, J., that on the question of contributory negligence the jury should be instructed that if they should find from the evidence that it was the duty of the deceased to see that the cars left standing on the switch had sufficient breaks set to hold them in place while the switching was done and he failed to perform that duty, then plaintiff could not recover.</p>

— Hon. J. D. Perkins, Judge. (1) The common law rule that a person having a pecuniary interest directly involved in the matter in issue on trial, and is disqualified to testify as a witness, has been abolished absolutely and unconditionally by section 6354, Revised Statutes 1909. Norvell v. v. Cooper, 155 Mo. App. 445; McKee v. Downing, 224 Mo. 115; Smith v. Brinkley, 151 Mo. App. 498.

— Hon. David E. Blair, Judge. (1) In order to make out a case it is necessary to prove that the alleged acts of negligence caused the injury. Brown v. L. & L. Co., 65 Mo. App. 166; Ilerke v. Railroad, 141 Mo. App. 617; Warner v. Railroad, 178 Mo. 125; Groranson v. Mfg. Co., 186 Mo. 300; Trigg v. Land and Lumber Co., 187 Mo. 231; Klebe v. Distilling Co., 207 Mo. 480. (2) It is not enough to show that Ridenour’s death might have resulted from the acts of negligence.

Appealed from Barton Circuit Court.- — Hon. B. G. Thurman, Judge. (1) Appellant was not an insurer of its employees and was only required to maintain-the depot platform in a reasonably safe condition; the evidence in this case fails to show neglect of this duty on the part of the appellant. Hutchison on Carriers (2 ed.), sec. 521; 4 Elliott on Railroads, sec. 1590; Gunderman v. Railroad, 58 Mo.

— Hon. L. B. Woodside, Judge. (1) Defendant’s peremptory instruction at the close of the plaintiff’s evidence should have been given, because no presumption arose that defendant received any notice of claim within sixty days. Best v. Ins. Co., 68 Mo. App. 598; Ins. Co. v. Hargrove, 116 S. W. 256; Trezevant & Cochran v. Powell & Co., 130 S. W. 234; Drill Co. v. Lindquist, 114 N. W. 1098; Railroad v. Bank, 174 Fed. 923; Postal Laws and Regulations, chap. 6, sec. 636.

Jasper Circuit Court. — Hon. Joseph D. Perldns, Judge. (1) All of the counts fail to state a cause of action upon an account of an indebtedness. This question was raised by timely objections to the introduction of evidence and also on motion in arrest of judgment. Such objection under section 1804, Revised Statutes 1909, is never waived. Paddock v. Soure, 102 Mo. 226; Hobber v. Coburn, 198 Mo. 547; Hubbert v. Slavens, 218 Mo. 598; Slavens v. Transit Co., 102 Mo.

Original Proceeding by Writ of Prohibition. (1)- The only Missouri cases upon this subject that we have been able to find are as follows: Christian v. Williams, 111 Mo. 429; Baisley v. Baisley, 113 Mo. 544. (2) In Wilson Machine Co. v. Wilson, 22 Fed.

— Horn L. B. Woodside, Judge. (!) Where a broker employed to negotiate a loan obtains one ready and willing to make the loan and it turns out that the title to the real estate is imperfect, so that the loan is not made, he is entitled to his commission; also where the borrower changed his mind and refused to accept the loan. Pitch on Real Estate Agency, 113.

<p>Original Proceeding in Mandamns.</p>

<p>Appeal from the Christian Circuit Court. — Eon. John T. Moore, Judge.</p>

— Hon. L. B. Woodside, Judge. (1) Under the statute only bona fide residents of a school district are entitled to attend school without paying tuition, unless they come within the exceptions therein contained. R. S. Í909, sec. 10785; Lexington ex rel. v. Bank, 130 Mo. App. 692; Binde v. Klinge, 30 Mo. App. 285. (2) In order to constitute a minor resident for school purposes the parent or guardian must be a resident' of the school district. State ex rel. v. Smith, 64 Mo.

Aldred Page, Judge. (1) The discretion of the trial court in granting a new trial is properly exercised only when there is contradictory or conflicting evidence. Bohle v. Merc. Co., 114 Mo. App. 439; Casey v. Transit Co., 186 Mo. 229; Bank v. Wood, 124 Mo. 76; Wells v. Andrews, 133 Mo. 667.

— Hon. Joseph D. Perhins, Judge. (1) There is no implied warranty in a sale of a note or chattel except the (a) vendor owns it, (h) the note is not a forgery, (c) when sold by sample that the hulk will equal the sample. In the sale of a machine for particular use or purpose that it is suited to the purpose for which sold. Otherwise caveat emptor is the rule. Norris v. Reinstedler, 90 Mo. App. 629; Lindsey v. Davis, 30 Mo. 406; Machinery Co. v. Foundry Co., 131 Mo.

— Hon. B. O. Thurman¡ Judge. (1) The court erred in refusing to sustain defendant’s requested instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s case and again at the close of all the evidence in the case. Sanquinette v. Railroad, 196 Mo. 466; Porter v. Railroad, 199 Mo. 97; Walker v. Railroad, 193 Mo. 478; Mockowick v. Railroad, 196 Mo. 568; Stotler v. Railroad, 204 Mo. 619; Gumm v. Railroad, 141 Mo.

<p>Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.</p>

<p>Appeal from Greene Circuit Court. — lion. Alfred Page, Judge.</p>