Volume 166 — Missouri Appeal Reports

— Hon. E. M. Dearing, Judge. (1) The court should have under the pleadings and the evidence sustained defendant’s instruction in the nature of demurrer. 1 Thompson on Negligence, secs. 168, 169; 29 Cyc. pp. 526, 527, 528; Meyers v. Glass Co., 129 Mo. App. 556; Sands v.- Brewing Co., 131 Mo. App. 413; Coffey v. Carthage, 186 Mo. 585; Wheat v. St. Louis, 179 Mo. 572; Phelps v. Salisberry, 161 Mo. 1; Jackson v. Kansas City, 106 Mo. App. 52; Churchman v. Kansas City, 44 Mo.

— Hon. James D. Barnett, Judge. (1) The court erred in admitting evidence of alleged representations by plaintiff’s agent before contract was made. Curtiss v. Waterloo, 38 Iowa, 266; Singleton v. Pore, 7 Mo. 515; Grooch v. Conner, 8 Mo. 391; Adams v. Eailroad, 74 Mo. 553; Crutchfield v. Warrensburg, 30 Mo. App. 456; Savage v. Springfield, 83 Mo. App. 323.

Louis County Circuit Court. — Son. G. A. Wurdemon, Judge. (1) To maintain this action, it was necessary for the complainant to prove that at the time of the alleged entry and disseizin by defendant, she was in the actual, visible, open, exclusive, peaceful and bona fide possession of the premises claimed, and this she has not done; the evidence does not even tend to show such possession. Armstrong v. Hendricks, 67 Mo. 542; Keen v. Schweigler, 70 Mo.

— New. C. D. Stewart, Judge. (1) Plaintiffs’ canse of action is based upon tbe charge that defendant is obstructing the channel of a natural watercourse by building a dam across it and diverting the water therefrom unto plaintiffs’ lands. To make out their cause of action plaintiff must- prove that Doe branch is a natural watercourse. Benson v. Railroad, 78 Mo. 504; Jones v. Railroad, 18 Mo. App. 251; Webb v. Carter, 121 Mo. App. 147; Hoester v. Hemsath, 16 Mo. App. 485.

— Hon. Chas. D. Steivart, Judge. Where the contract or order for the sale of machinery contains a written warranty providing that, if the article sold fails, within a specified time after beginning to use it, to comply with the warranty, the purchaser shall give a certain specified written notice thereof to the company at its home office, and that, if the company should afterwards fail to remedy the defect, the purchaser shall return the article to the company at a specified…

— Eon. E. M. Dearing,- Judge. (1) The court should have sustained the objection of the defendant to the introduction of any evidence in this case, it appearing from the pleadings in the case that the debt had been fully sátisfied. Thompson v. Elevator Co., 77 Mo. 520; Murphy v. Smith, 86 Mo. 333; R. S. 1899, sec. 1547; R. S. 1909, sec. 2263. (2) The instruction No. 1 offered by defendant should have been given.

<p>REAL ESTATE BROKER: Dual Agency: Pleading: Amendment. Dual agency of a real estate broker, unknown to the parties, will defeat a claim for commission for bringing the parties together in an effort to consúmate an exchange oí property. But to be available as a defense it should be pleaded; If the dual agency is not known to defendant until during the progress of the trial, he should obtain leave to amend his answer.</p>

<p>1. WILLS: Life Estate: Power of Disposal: Enlargement to Fee., If property is by will given to another for life, though with full power of sale in the devisee, the estate is one for life only, and the authority to sell is but a power; the rule being that if a life estate is clearly given, it is not enlarged to a fee by subsequent power of disposal.</p> <p>2. -: Devise Generally: Power of Sale: Remainder. If property is by will given to another generally, with full power of disposal, the devisee takes an estate in fee, and an attempted limitation of a remainder to a third person is void. ■But if the property is not given generally to the first taker, but specifically for his life, then a power of sale will not enlarge the life estate into a fee.</p> <p>3. -: -: Husband and Wife: Joint Will: Survivor. A husband and wife, without children of their own, made a joint will containing the following clause: “We each will, bequeath and devise, to the other surviving all the property, real, personal or mixed, .of which we or either of us shall die seized, with full power of disposition for and during the life of such survivor.” And by a subsequent clause they willed the remainder of their estates to three persons, in equal parts, or their descendants. The husband died first and it was held that the wife took a life estate. And that each gave a life estate to the survivor, and both gave the remainder to the three persons.</p> <p>■4. -: -- — : -: Lapse: General Estate. A husband and wife, without children of their own, made a joint will, whereby they each gave a life estate to the survivor and the remainder to three persons in equal parts, or their descendants. The husband died,- and afterwards one of the three devisees died without issue, and then the wife died. It was held, that the devise to the deceased devisee lapsed, since he did not leave descendants. His share of the estate would remain as general estate of the two testators and would go to their statutory heirs in the proportion of the original estate of each of them.</p> <p>'5. -; -; -; Descendants. The word “descendants” is held not to mean collateral kin, such as brothers and sisters, but direct issue from the body, including grandchildren to the remotest degree.</p>

<p>Appeal from Linn Circuit Court. — Eon. John P. Butler, Judge.</p>

<p>1. WITNESS: Civil Case: Secreting Witness: Contract: Public Policy. It is unlawful both, by statute and from principles of public policy, to induce or deter a person from appearing as a witness in a civil case, by secreting him or placing him beyond the jurisdiction of the court, and a contract for such service is void.</p> <p>2. -: Party to Cause: Minor: Secreting Release. Where a release of a cause of action, upon which suit had been brought, had been obtained from a minor plaintiff, and it was feared such minor might appear at the next term of court to reject the release and prosecute the action, a contract made with defendant and another for the latter, to take the minor out of the state and secrete her until the case had been dismissed, is fraudulent and against public policy, and no recovery can be had for such services.</p> <p>3. -: Unlawful Service: Knowledge: Continued Service. If one engaged to perform a service, not unlawful, but learns soon after entering upon the performance that it is unlawful, and yet continues to the end, it taints the entire transaction, and no action can be maintained for such service.</p> <p>4. -: —--: Release: Delivery: Compensation. If one agrees to obtain and deliver a written release of a cause of action from one party to another, and he obtains the release but does not deliver it to the defendant employing him to get it, he cannot recover compensation.</p> <p>5. -: Quaere: Inducing Party to a Cause. Whether inducing a party to a cause, who is an adult, to keep in hiding so as not to be present when the case is called for trial, is a wrong for which no compensation can be recovered, quaere.</p>

— Hon. Walter A, Powell, Judge. (1) There is nothing in the claim that plaintiffs waived their rights by standing by and seeing the work done; jurisdictional matters, such as the preliminary resolution and an ordinance describing the work, cannot be waived. Keane v. Klansman, 21 Mo. App. 485; Bank v. Western, 68 Mo. App. 137; Parkinson v. Houlan, 182 Mo. 189. (2) The street and alley committee had no authority to do anything but fill holes made here and there in the street.

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

<p>Appeal from Jackson Circuit Court. — Hon. Kimbrough Stone, Special Judge.</p>

— Hon. Walter A. Powell, Judge. (a) Plaintiff’s statement that seeing the approaching car he drove on the track, there sat, watched and waited for it to run up and hit him, at all times knowing he could avoid a collision, must reverse this case. Getty v. Transit Co., 103 Mo. App. 564; Hawkins v. Railroad, 135 Mo.

<p>1. REPLEVIN: Contracts: Evidence: Interlineation. Where it is shown in an action to replevin a house built by a tenant on a farm under an agreement with the owner to permit its removal when possession of the farm was surrendered, that when the farm was subsequently sold and the owner'desired to give the purchaser possession, it was agreed that the tenant was to give possession upon the return to him of a certain note and the payment of a specific amount, and that said note was returned and the .money paid and a receipt containing said agreement signed by the tenant and delivered, the tenant is not entitled to recover, notwithstanding he, subsequently to the execution and delivery, made interlineations in the receipt by which he reserved to himself the house.</p> <p>2. CONTRACTS: FRAUD. Parties to a contract are presumed to know what the contract contains and where they stand on an equality, are bound by its terms, in the absence of fraud.</p>

<p>1. NEGLIGENCE: Street Railways: Collision with Vehicle: Humanitarian Rule. Plaintiff sued for damages for injuries received when the buggy in which he was riding was struck in the rear by an electric propelled street car. H© was driving west and had just turned onto the street car track to go around a wagon ahead when someone warned him of the rapid approach of a west hound car. He then turned to get oft the track when the ear struck the rear axle of his huggy, and he was thrown out. No hell was s'ounded or attempt made to check the speed of the car before the collision. Held, that the conduct of the motorman as depicted in the evidence clearly was negligent under the humanitarian rule.</p> <p>2. INSTRUCTIONS: Defining Negligence. The rule that the term negligence must he defined in instructions to the jury does not refer so much to a mere law dictionary definition as to a definition hy the statement of facts or acts from which the inference of negligence would have to he implied.</p>

<p>1. MUNICIPAL CORPORATIONS: Excavations: Lights:, Insurance: Duty. It is the duty of those making excavations in the streets of Kansas City, on quitting work in the evening to provide properly secured lights of warning of danger to pedestrians or those driving along the streets. But such duty does not extend to a condition of insurance, and therefore there is no obligation to see that the lights are kept in place all night.</p> <p>2. -: -: -: -: -: Instructions: Contradictory. If an instruction is given for a plaintiff who drives into an excavation in the street, that it was the duty of a city and contractor who had excavated in the street, to see that the light was burning at the time plaintiff drove into it, it is prejudicial error which is not cured by a correct instruction given for defendants.</p>

<p>Appeal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.</p>

<p>1. STREET RAILWAYS: Personal Injury: Humanitarian Rule: Instructions: Assuming Facts. It is not improper, in a case of personal injury founded on the humanitarian rule, to refuse an instruction for defendant which assumes as facts matters -which are in controversy.</p> <p>2. -: -: -: -: Practice: Evidence: Motion to Strike Out. When an improper question is answered before objection can be made, the proper practice to so move to strike it out.</p>

<p>COURTS: Judgments: Courts of Appeals: Res Adjudicata. Where an issue has been decided by one of the Courts of Appeals, and afterwards is certified to the Supreme Court, under section 6 of Amendments to Constitution (R. S. 1909, p. 101) because of difference of opinion of another of the Courts of Appeals, such decision is not an adjudication of such issue thereafter arising in a case between the same parties.</p>

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

<p>FRATERNAL SOCIETY: Physician as Agent: Application: Estoppel: Concealment. Where a fraternal benefit association’s examining physician takes the application of a member for a benefit certificate of insurance and himself writes down some of the answers and omits others on the ground that they are unimportant, the acts of the physician are the acts of the company, and it will not be allowed to say that there was a warranty that the application contained full and complete answers to the questions propounded therein, provided, that the applicant, in fact, made true answers as asked; and whether he did or not, there being evidence pro and con, was a question for the jury.</p>

<p>1. ADMINISTRATION: Partnership Estates: Priority of Claims. While a firm member may be a creditor of his firm, he can only be a secondary creditor, that is, however unequally the members of a firm ma!y have contributed to the firm assets, and however much the firm may be owing any member thereof on account of such excess contributions, no firm member can take anything from an insolvent firm’s estate in process of liquidation until after all of the general firm’s debts have been satisfied.</p> <p>2. -: Allowance of Claims: Equitable Priority: Res Adjudicata. The right of equitable priority is not affected by the statutes relating to the allowance and classification of demands and the equitable priorities of creditors are not foreclosed by a judgment of allowance and classification.</p> <p>3. PARTNERSHIPS: Priority of Creditors: Rights of Partners. Where a partner pays firm’s debts with his individual funds, being separately as well as jointly liable therefor, he does not become subrogated to the rights of such creditors against the partnership. He only acquires a valid demand against his partners which should be paid out of what remains after the partnership creditors are fully satisfied.</p>

<p>1. NEGLIGENCE: Humanitarian Rule: Excessive Speed:' Pleading. The allegation of the two acts of negligence in the petition, viz., excessive speed and negligence under the humanitarian rule do not make the pleading bad, on the ground that they are so inconsistent that each destroys the other. Such acts may be alleged in the same petition (Gaedis v. Railway, 161 Mo-. App. 225).</p> <p>2. HUMANITARIAN RULE: Discovery of Peril. The beneficent principle of the humanitarian doctrine does not take into consideration the origin of the peril of the plaintiff which culminated in his injury, but whether he was careful or negligent requires of the operator of the car the exercise of reasonable care to discover the peril and avoid the threatened injury.</p> <p>3. -: Two Principal Tests. In cases involving the humanitarian rule there are- two principal tests: First, was the plaintiff in danger of which he did not become aware until too late to save himself and, second, was his peril obvious to a reasonably careful man in the position of the motorman at. the time when the latter had a reasonable opportunity to prevent the inury?</p> <p>4. NEGLIGENCE: “Last Chance:” Sole Cause. Where a clear case of “last chance” negligence is presented, such- negligence occupies the whole field of culpability and must be considered as the sole producing cause of the injury.</p> <p>5. INSTRUCTION: Damages: Maximum to be Recovered. An instruction which, in effect, told the jury that the maximum of the damages plaintiff could recover under the petition, would be a reasonable assessment of damages, is not erroneous under the ruling in Stid v. Railway, 236 Mo. 382.</p>

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

<p>1. NEGLIGENCE: Derailment. Plaintiff sued for damages for injuries caused by an electric car leaving tbe rails and running into his horse and wagon and throwing them against him. He conducted a feed store and was in tbe act of putting a bale of bay into bis wagon which was standing in front of bis store when tbe accident occurred. Held, that tbe demurrer to tbe evidence was properly overruled.</p> <p>2. PLEADING: Derailment: Cause of: Prima Facie Case. In an action for damages for injuries caused by tbe derailment of a street car it is only necessary in order to make a prima facie case of negligence to plead and prove that tbe injury . was caused by the derailment of tbe car while tbe person injured was in tbe lawful use of a public street.</p> <p>3. NEGLIGENCE: Proximate Cause. Tbe proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event and without which it would not have happened.</p>

<p>1. STREET RAILWAYS: Humanitarian Rule: Personal Injury. The humanitarian rule is a doctrine of the law, which, in one of its phases, casts liability upon a negligent street railway company whenever its servants, operating its car on a public street, see, or by the exercise of ordinary care could see, a street traveler in danger from the going car, and thereafter fail to exercise ordinary care in the use of means at hand to ' avoid injuring him, when such ordinary care, having regard to the safety of passengers, could have saved the traveler.</p> <p>2. -: -: -: Contributory Neligence: Right to Recover. S was driving a covered milk wogan along the west side of a street and desiring to cross to the east side he stopped and looked back for a street car and saw one approaching, 150 feet away, at a speed of twelve or fifteen miles per hour. He, notwithstanding this, attempted to cross, and was struck by the car. There was evidence that the street car was seventy-five feet away when the horse got on the track and that the- car could have been stopped, by use of ordinary care^ within thirty-five or forty-five feet. It was held that S was guilty of contributory negligence, but that he could recover damages under the humanitarian rule.</p>

<p>APPEALS: Jurisdiction: Supreme Court: Courts of Appeals: Subsequent Appeals. Where a plaintiff claimed an amount in his petition exceeding the jurisdiction of the Court of Appeals, and was defeated in the circuit court, the Supreme Court has jurisdiction of his appeal, and if the case be remanded for a new trial, in which plaintiff recovers a sum within the jurisdiction of the Court of Appeals, the Supreme Court will nevertheless have jurisdiction of the defendant’s appeal. The statute contemplates that a case once properly appealed and heard by the Supreme Court, that court has jurisdiction of all subsequent appeals regardless of amount.</p>

<p>1. INSURANCE: Accident Policy: Evidence: Res Gestae. Where in an action on an accident policy it appeared that a man was stricken with apoplexy in a street car, from which death ensued, and the question was whether the apoplexy was caused naturally or by a fall in the aisle of the car, it was shown that he was assisted out of the car and carried to his house nearby and laid on a couch; his arm ws bruised and pained him. The court refused to permit a witness for the plaintiff to testify as a part of the res gestae, that after he was put on the couch and within thirty minutes after being stricken, he stated that he fell in the car and hurt his arm. Held, not error.</p> <p>2. -: -- — : Disease: Accident: Direct Cause: Instructions. Even though one is so diseased that death will shortly ensue, yet if the immediate cause of his death is an accident, and though he would not have died but for his diseased condition,' liability on an accident policy of insurance is incurred. And instructions for the defendant which practically cut off such consideration by the jury are erroneous.</p> <p>3. -: -: Instructions: Motion for New Trial: General Statement of Error.- If several instructions are given for a defendant and exception taken to giving a part of them, it is sufficient to allege, generally, in the motion for new trial, that “The court erred in giving erroneous and impoper instructions,” without designating specifically which ones are erroneous.</p>

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

— Hon. John P. Butler, Judge. Good faith to his fellow members, who must be assessed to pay his policy if snch payment is required, demanded that if he intended to retain his membership and to assert the invalidity or irregularity of the forfeiture of his membership, that he bring it, within a reasonable- time, to the attention of the company.

<p>1. DIVORCE: Motion for Alimony: Appeals and Error. A motion for alimony pendente lite in a divorce proceeding relates to a cause of action that is separate and distinct from the divorce cause, but is incidental thereto, and an order, made on a proper hearing of such motion, is an adjudication of the issues thereby raised, and on the failure of the defeated party to perfect an appeal from such order the adjudication becomes final.</p> <p>2.'-: Alimony: Right of Wife. Whether guilty or innocent the wife has a right to prosecute or defend an action for divorce, and since the husband usually holds the purse strings he must furnish her the means of attack or defense, if she is without adequate means of her own, and the fact that she is found to be the guilty party does not deprive her of the right to an appeal and to the means of prosecuting it and to sustain herself during its pendency.</p> <p>3. -: Judgment: Collateral Attack. Where a motion for alimony, pending an appeal, is overruled and no appeal taken from such judgment, it is error to thereafter sustain a motion to set aside such judgment.</p>

<p>Appeal from Jackson Circuit Court. — Ron. E. E. Porterfield, Judge.</p>

— Eon. W. A. Whit-sett, Judge. It was the duty of the respondent before driving upon the tracks of appellant to stop, look and listen, and inform himself as to the proximity of the train before attempting to cross. Elliott, 2nd Ed., 3rd Vol., p. 1143, pages 310 and 311; Boyd v. Wabash, 105 Mo. 1. c., 376, 377; Zimmerman v. Co., 71 Mo. 476; Stotler v. Railroad, 204 Mo. 638; Kelsay v. Railroad, 129 Mo. •372; Schaub v. Railroad, 133 Mo.

<p>Appeal from Henry Circuit Court. — Hon. G. A. Denton, Judge.</p>

— Hon. W. K. Amick, Judge. The demurrer to the evidence should have been given. Under the provisions of the contract of insurance, plaintiff’s rights are governed by the laws of 1908. Richmond v. Supreme Lodge, 100 Mo. App. 8; Lewine v. Knights of Pythias, 122 Mo. App. 547; Gruewell v. Knights & Ladies of Security, 126 Mo. App. 496.

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

<p>1. EQUITY: Burden of Proof: Voluntary Disposition of Property: Solvency. 'Where in an action in equity to subject shares of stock belonging to the wife, to the payment of a judgment against tbe husband, it was shown that the husband had made a voluntary disposition of his property, the burden of proof is cast upon him to show that at the time he was solvent and could make such disposition without impairing his ability to pay his debts.</p> <p>2. -: Voluntary Conveyance: Fraudulent as to Creditors. Burden of Proof. A voluntary conveyance is presumptively fraudulent as to existing creditors and the burden of proof is on the donee to repel such presumption and to show that the donor had sufficient means- to meet his liabilities.</p>

— Eon. O. A. Lucas, Judge. The instrument on which the suit is based never became a contract binding on the defendant, for the reason that it was never signed by both parties of the second part or. delivered as a contract. Brown v. Rice, 29 Mo. 322; Gann v. Railroad, 65 Mo. App. 670; Green v. Cole, 103 Mo. 70; McCauley v. Schatzley, 88 N. E. Rep. (Ind.) 972; Barber v. Burrows, 51 Cal. 404 ; 51 Cal. 473; Fish v. Johnson, 16 La.

<p>Appeal from Pike Circuit Court. — Hon. David H. Ely, Judge.</p>

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) A landowner who gathers waters upon his land and then casts them upon the premises of another is liable in damages and can be enjoined. Paddock v. Somes, 102 Mo. 226; Grant v. Railroad, 149 Mo. App. 306; Lewis v. Springfield, 142 Mo. App. 84; Ready v. Railway, 98 Mo. App. 467.

— Eon. David E. Eby, Judge. A railroad company is not liable for injuries resulting from ordinary negligence to an individual •whom it permits to ride without charge on condition that he takes all the risk of such negligence. Adams v. Railroad, 192 U. S. 440; Rogers v. Railroad Co., 5 L. R. A. 491; Quinby v. Railroad, 5 L. R. A. 846; Griswold v. Railroad, 55 Am. Rep. 115; Kinney v. Railroad, 3 Am.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The contract being upon a printed form prepared by plaintiff, all ambiguities — all doubts — therein must be determined in favor of defendant. Surety Co. v. Pauley, 170 U. S. 133; Dezell v. Casualty Co., 176 Mo. 253; Hurley v. Co., 95 Mo. App. 88; Hoffman v. Indemnity Co., 56 Mo. App. 301; Seevers v. Gable, 27 L. R. A. 735.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) Prior to the amendment of the statute (now-section 7182, Revised Statutes 1909), in 1905, usurious interest paid could not he recovered in this state. Kirkpatrick v. Smith, 55 Mo. 389; Murdock v. Lewis, 26 Mo. App. 234; Peters v. Lowenstein, 44 Mo. App. 406; Ferguson v. Soden, 111 Mo. 208.

Louis City Circuit Court. — Son. Charles Claflin Allen, Judge. (1) The action for money had and received is favored in law, embracing equitable as well as legal doctrines, and lies where the defendant has received or obtained possession of the money of the plaintiff, which, in equity and good conscience he ought to pay over to the plaintiff. Banking Co. v. Com. Co., 195 Mo. 262; Greenleaf on Evidence, sec. 117.

— Eon. J. L. Fort, Judge. (1) The conduct of counsel for defendant was such that this case should be reversed for that reason alone, were there no other error in the case, for it is reversible error for counsel to continue asking prejudicial questions, even though the court sustains an objection thereto and prevent the answer going to the jury.

- — Hon. Henry G. Riley, Judge. (1) No recovery can be had for damages for purely speculative or contingent damages or for damages which could not have been reasonably anticipated by defendant. Taylor v. McGuire, 12 Mo. 313; Mining Co. v. Clark, 32 Mo. 309; Steffen v. Railroad, 156 Mo. 336; Connoble v. Clark, 38 Mo. App. 483; Rogan v. Railroad, 51 Mo. App. 665; Gray v. Railway, 54 Mo. App. 666.

— Hon. Henry C. Riley, Judge. (1) The defense, stricken out by the court, set up a state of facts showing the death of plaintiff’s husband occurred while he was in the employ of the defendant, and while the defendant was engaging in commerce between states, and, therefore, her cause of action, if any she has, arose under the laws of the United States, and she could not maintain the suit in her own name, but under the act of Congress the personal representative of her…

— Hon. Hat. M. Shelton, Judge. Where life insurance policies and applications contain stipulations that, the policy shall not take effect unless delivered to the insured while he is in good health, such a stipulation is a condition precedent, and there can be no recovery if the insured is in ill health before the delivery of the policy. Under such circumstances the contract is not consummated. Misselhorn v. Life Assn., 30 Mo. App. 589; Kilcullen v. Ins. Co., 108 Mo.

Charles Circuit Court. — Eon. James D. Barnett, Judge. (1) The trial court erred in refusing to give the instruction directing a verdict for the defendant, (a) The evidence clearly discloses the fact that the city had been guilty of no negligence or omission of duty, (b) It also clearly and conclusively appeared that any. injuries suffered by plaintiff were the result of her own negligence. (2) The court erred in giving plaintiff’s instructions numbered 1 and 2.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The question involved in this case was fully considered and determined by this court in Board of Education ex rel. v. Fidelity & Guaranty Co., 155 Mo. App. 109. (2) The distinction sought to be made by the respondent between the former case and this, is not supported by the evidence and is not good in law.

— Eon. W. S. C. Walker, Judge. (1) The court erred in overruling defendant’s motion to require plaintiff to produce her attending physician as a witness for her. Smart v. Kansas City, 91' Mo. App. 593; Evans v. Trenton, 112 Mo. 403; Mc-Clanahan v. Railroad, 147 Mo. App. 410; Reyburn v. Railroad, 187 Mo. 575; 11 Am. & Eng. Ency. Law (2 Ed.), p. 503; 22 Am. & Eng. Ency Law (2 Ed.), p. 1261.

Louis County Circuit Court. — Hon, John W. McElhinney, Judge. (1) It is no longer an open question in this state, that it is a duty incumbent upon the operators of a steam railroad, whenever prudence requires them to keep a watch for persons approaching or on the track and in danger, such watch must be kept, even for trespassers and licensees, as well as for persons who may lawfully be near or on the track.

— Hon. Henry C. Riley, Judge. (1) The plaintiffs sne on a special contract, and. therefore he must recover upon that or not at all in this action. Cole v. Armour, 154 Mo. 350; Koons v. Car .Co., 203 Mo. 255.

Court of Common Pleas. —Hon. R. G. Rcmney, Judge. (1) Cape Girardeu is a city of the third class. The city not only has the right to abate nuisances within the city but it is its duty to do so. It is one of the police powers of the city, and may be exercised in a summary manner.. Secs. 9231, 9235, 9574, E. S. 1909; McQuillian Municipal Ordinances, sec. 444; 29 Cyc. pp. 1214-1218; Chillicothe v. Bryan, 103 Mo. App. 409; Waggoner v. South Gorin, 88 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. The court erred in overruling defendant’s demurrer to the evidence and sending the case to the jury, because there was no evidence of any probative value tending to show that plaintiff was of unsound mind at the time the release in question was executed; her bald statement to the effect that she did not know she signed it is so outrageously against the conscience it raises no issuable fact. Lange v. Railroad, 151 Mo.

— Hon. G. D. Stewart, Judge. (1) Plaintiff’s instruction No. 1 prescribes an erroneous measure of damages for tbis ease, to-wit: tbe entire agreed price of tbe straw which defendant refused to accept.

<p>1. CRIMES AND PUNISHMENTS: Appellate Practice: Necessity of Filing Motion for New Trial: Record Proper. In the absence of a motion for a new trial, filed in apt time, and an exception duly saved to its denial, all the proceedings of a criminal trial are closed to examination on appeal, except those shown by the record proper, which, in the case at bar, is held to consist of the information, the plea, the submission of the cause to the court, the finding, and the judgment or sentence.</p> <p>2. BARBERS: Conducting School Without Permit: Indictments and Informations: Sufficiency. An information charging accused with conducting a barbers’ school without obtaining a permit from-the State Board of Barber Examiners, in violation of section 1192, Revised Statutes 1909,- which charges the offense substantially in the language of the statute, is sufficient.</p> <p>3. APPELLATE PRACTICE: Conclusiveness of Supreme Court’s Decision: Law of Case. Where the Supreme Court, on a motion to transfer a case, pending on appeal, to the Court of Appeals, held that the motion for a new trial was not filed in time, the Court of Appeals is thereby precluded from reviewing any matters requiring such motion as a prerequisite to review on appeal.</p> <p>4.JURISDICTION: Courts of Appeals: Construction of Federal Constitution. The determination of questions involving the construction of the Federal Constitution is not within the jurisdiction of the St. Louis Court of Appeals, under section 12, article 6 of the Constitution of Missouri, as amended hy ¡section 5 of the Constitutional Amendment of 1884.</p> <p>5. CRIMES AND PUNISHMENTS: Appellate Practice: Necessity of Filing Motion for New Trial. Even if questions involving the construction of the Federal Constitution were within the jurisdiction of the St. Louis Court of Appeals, they could not be reviewed in a criminal case, where they were not presented in the lower court, and preserved for review by the filing of a motion for a new trial.</p>

— Hon. William M. Kinsey, Judge. (a) The testimony of witness Russell was improperly admitted in evidence, (b) Without the testimony of witness Russell, no evidence was adduced of the wrongful delivery of the shipment and defendant’s demurrer to the evidence should have been given. Spencer v. Ins. Co., 112 Mo. App. 86; McG-raw v. O’Neil, 123 Mo. App. 699; 2 Cook on Corporations (6 Ed.), p. 2363.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) A steamboat engaged in tbe carriage of passengers for Lire, is a common carrier. 6 Cyc. 535. (2) As to baggage retained by a passenger iri Ms own possession, a carrier is under the duty of exercising reasonable care to protect it from loss, and is liable for loss of such baggage occurring by reason of his failure to exercise such care, unless the loss was the result of the passenger’s negligence.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) A court of equity has jurisdiction, at the suit of those parties to a joint liability who have discharged to the obligee the whole liability, to bring in those who have not contributed their share and to require them to make contribution; and to make an amicable adjustment of the burden among the parties and settle the whole controversy in one suit. Dysart v. Crow, 170 Mo. 275.

Louis County Circuit Court. — Hon. G. A. Wurdeman, Judge. (1) The deposition of plaintiff offered herein was erroneously admitted in evidence against the objections and exceptions made and saved by defendant at the trial herein. Depositions shall be accompanied by certificate of the official character of the officer taking them, etc. R. S. 1909, sec. 6408.

— Hon. W. O. Thomas, Judge. (1) Tlie court below erred in admitting evidence of the number and ages of plaintiff’s children. Williams v. Railroad, 123 Mo. 573; Stephens v. Railroad, 96 Mo. 217; Dayhard v. Railroad, 103 Mo. 570; Ma-honey v. Railroad, 108 Mo. 191; Railroad v. Powers, 74 111. 341; Shaw v. Boston, 8 Gray (Mass.) 45; Railroad v. Books, 57 Pa. St. 339; Crouse v. Chicago^ etc., 102 Wis. 196; Penn. Co. v. Roy, 102 U. S. 451.

<p>1. NEGLIGENCE: Injuries on Stairway. Defendant and another owned adjoining two-story buildings having a common stairway leading to the second floor. Plaintiff was the tenant of the -latter and was injured by a fall upon the stairway. The roof over the stairway leaked and ice accumulated upon the steps, .and caused plaintiff to fall. Each owner claimed and was in possession of the roof over his building. Plaintiff’s landlord, some time before the accident, put a new tin roof ■on its building, including the roof over half of the stairway, but this did not stop the leak. Water from the leak continued to fall principally from the middle of the stairway. Held, that as it was, under the evidence, as reasonable to infer that the defect was in the roof of the adjoining building as that of the defendant, the demurrer to the evidence was properly sustained.</p> <p>2. -: Demurrer to Evidence: Jury. Where evidence presents two or more probable causes of an injury for one of which defendant would be liable and not for the others, the jury should not be allowed to make a. capricious selection from such probabilities.</p>

— Eon. Herman BrumbacJc, Judge. (1) The court erred in admitting Mr. Lemley’s conversation with the deceased after the explosion. Redman v. Railroad 185 Mo. 11; Leahy v. Railroad, 97 Mo. 165; Dunlap v. Railroad, 145 Mo. App. 215;' Lee v. Railroad, 112 Mo. App. 372. (2) The court erred in admitting the testimony of witness, Freeman Bailey, as to the switch and as to the contrivances mentioned in the specifications of negligence set out in the petition.

— Hon, Joseph A. Guthrie, Judge. (1) Appellant’s instruction in the nature of a demurrer to the evidence should have been sustained. The policy did not cover loss from liability. for injuries suffered by any person before the premises or •elevator plant were completed ready for occupancy. The elevator plant was not completed ready for occupancy at the time of the injury. Donnell Mfg. Co. v. Hart, 40 Mo.

— Hon. D. H. Harris, Judge. All authorities agree that in order to entitle the plaintiff to recover in an action for slander of title he must show, first, the publication of slanderous statements by defendant, second, title in plaintiff and consequently that the statements were false, third, that the statements were uttered maliciously, and fourth, that special damage resulted to plaintiff. Linville v. Rhoades, 73. Mo. App. 217; Butts v. Long, 94 Mo.

Appeal form Boone Circuit Court. — Hon. N. D. Thurmond, Judge. (1) Plaintiff’s judgments constituted a lien upon the land subject to the deed of trust. Defendant Settle, after agreeing to pay the notes and' taking the land subject to the lien of these judgments, could not, by his own default in the performance of his contract, procure a foreclosure of the mortgage.

— Eon. D. E. Earris, Judge. (1) The court erred in excluding the testimony ■as to the previous criminal record of the State’s witness, Jack Houston. State v. Blitz, 171 Mo. 530; State v. Arnold, 206 Mo. 597; State v. Kennedy, 207 Mo. 528.' (2) The court erred in making oral statements to the jury, which statements prejudiced defendant’s case in the minds of the jury. Skinner v. Stifel, 55 Mo. App. 13; Parldeton v. Pugsley, 107 Mo. App. 678; Clark v. Fairley, 30 Mo. App. 335.

— Hon. Walter A. Powell, Judge. (1) . The court erred in giving instruction in the nature of a demurrer to the evidence at the close of all of the evidence, peremptorily requiring the jury to find in favor of the defendant. Boggs & Leathe v. American Ins. Co., 30 Mo. 63; Ormsby v. Ins. Co., 105 Mo. App. 143; Williams v. Ins. Co., 73 Mo. App. 607; 'Thomas v. Hartford Fire Ins. Co., 20 Mo. App. 150; Dowling v. Ins. Co., 168 Pa. 234; Bnsnell v. Ins. Co., 110 Mo.

<p>Appeal from Chariton Circuit Court. — Eon. Fred L. Lamb, Judge.</p>

— Hon. John M. Williams, Judge. (1) By filing suit and procuring a divorce from her husband, plaintiff did not lose her husband within the meaning and intention her father, as expressed in his will. Shafer v. Senseman, 125 Pa. 310; Bank v. Buhl, 129 Mich. 193; Sovern v. Yorn, 20 Pa. 100; Thorne v. Marfflin, 100 Pa. 515; Vorrman v. Jenkins, 12 Wend. 563.

Circuit Court. — How. Kimbrough Stone, Special Judge. (1) An appeal lies from tlie order setting aside the judgment. Miller v. Crawford, 140 Mo. App. 711; Harkness v. Jarvis, 182 Mo. 231. (2) A motion to set aside judgment by default must state facts which show a meritorious defense and be supported by an affidavit showing due diligence. E. S. 1909',- sec. 2104; Cowan, Trustee v. Bircher, 5 Mo.

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

<p>Appeal from Jackson Circuit Court. — Ron; Thomas R. Seehorn, Judge.</p>

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

<p>CONTRACTS: Rescission: False Representations. Plaintiff purchased billiard and pool tables for a given price, part of which was paid in cash and an installment note given for the balance secured by mortgage on the tables. Ten months later plaintiff offered to return the property and demanded the amount already paid because of false representations as to the kind of cushions to be furnished with the tables. Upon the refusal of defendants to take the tables and refund the money, plaintiff brought suit. It is held, that upon consideration of all the evidence, plaintiff made no sufficient offer to rescind and no right to rescind existed at the time of the alleged rescission.</p>

— Hon. James A. Goodrich, Judge. (1) The court erred in granting a new trial on the ground that it should have instructed the jury that defendant owed plaintiff no duty except not to wilfully and recklessly injure him after becoming aware that he was in peril for the reason that the laws of California and Missouri are exactly similar on the measure of duty owing to a person discovered to be in peril and that duty is to exercise ordinary care to avoid injury to such person…

— Eon. James E. Slover, Judge. (1) For the action of the trial court in charging defendant with unfairness and compelling it to deliver to plaintiff her signed statement before defendant had used it or attempted to use same, this case must be reversed. Levels v. Railroad, 196 Mo. 606; Rose v. Kansas City, 125 Mo. App. 231; Steltemier v. Barrett, 115 Mo. App. 323. (2) Plaintiff’s admission that the car had started before she got out is conclusive against her.

<p>Appeal from Jackson Circuit Court. — Ho». James E. Goodrich, Judge.</p>

<p>1. BILLS OF EXCEPTION: Time for Filing. Under section 2029, R. S. 1909 as amended by the Legislature in 1911 (Session Laws of 1911, page 139), the appellant has an unqualified right to have his bill of exceptions signed and allowed at any time before he is required to serve the respondent with his abstract of the record.</p> <p>2. NEGLIGENCE: Master and Servant: Custom. As a general rule, the master in conducting his business in the usual and customary manner, is not chargeable with negligence, but custom prevails upon the theory that experience has demonstrated that it is reasonably safe, and if an act is done in a negligent manner, it cannot be justified on the ground that it is the custom.</p> <p>3.-: -. A switchman was injured while engaged in switching a car on to a track, at the other end of which another crew shoved in some ears that collided with the one in charge of plaintiff. The yards were so situated that the switching crew, at one end, could not see the plaintiff and his associates. Held, that under the evidence the court was fully justified in submitting the case to the jury upon the question whether or not the switching that caused plaintiff’s injury was done in an negligent manner.</p>

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

<p>1. NEGLIGENCE: Instructions: Roads and Highways. In an action for damages caused by a collision on a public highway between an automobile and a vehicle drawn by horses, an instruction which told the jury that, “the law imposes no duty on the owners of vehicles on streets or highways to turn from the center of same, unless it became necessary to allow vehicles moving in the opposite direction to pass them,” is erroneous because it is contrary to the provisions of section 10540, E. S. 1909.</p> <p>2. -: - — : -. Tbe statute requires persons driving on public highways to turn to the right on meeting another vehicle going in an opposite direction, and they are not permitted to continue in the center of the highway because in their judgment there is sufficient room for the others to pass without collision, the only exception being in favor of heavily laden wagons.</p>

<p>(LOCAL OPTION: County Courts. The proceedings to procure an election to vote on the adoption of the Local Option Law were begun in the County Court of Randolph County, at Moberly by petition, and an election ordered. Afterwards, at Huntsville, the county court appointed the judges to hold such, election. Held, that under the Act of the Legislature (1885, sec. 6) providing for the holding of terms of the county court at Moberly, the Local Option Law was not legally adopted.</p>

<p>1. NEGLIGENCE: Collision in Street. The plaintiff, a minor, was riding a bicycle west on the north side of a public street and close to the outside rail of the street car track, when the driver of the defendant’s laundry wagon, which was standing near the curb on the same side of the street and facing the same way as the plaintiff, suddenly, without looking around, pulled the horse around into the plaintiff’s course, thus causing the plaintiff to collide with the legs of the defendant’s horse, whereby the plaintiff fell and was injured. Held, that driver of the wagon was guilty of culpable negligence.'</p> <p>2. - — : Duty of Drivers of Vehicles. It was negligent for the driver of wagon in a crowded street not to keep a proper lookout so as to prevent collisions.</p> <p>3. -: Ordinary Care. Everyone while traveling on a street, is required to exercise ordinary care so that he may not interfere with its reasonable use by other travelers.</p> <p>4. ADMISSIONS: Agency: Evidence. The admission that the driver wais in charge of and was driving the defendant’s wagon is prima facie evidence that he was engaged in the defendant’s business.</p> <p>5. INSTRUCTIONS: Technical Objections. The objection to an instruction that it required the defendant to maintain a lookout for the plaintiff instead of requiring the exercise of ordinary care, is purely technical.</p>

<p>RAILROADS: Negligence: Personal Injury: Question for Jury. Plaintiff, a section man, was sent by bis foreman down tbe railroad track at nigbt to flag an approaching passenger train at a dangerous place on tbe track. A slow order bad limited speed of trains over sucb track to five miles an hour. Plaintiff testified that when tbe train approached, be was standing in tbe position be bad been ordered to take, and that he gave tbe slow signal, but receiving no response, remained on tbe track, repeating the signal, until too late to escape injury because of the speed of the train. The train approached on a straight track, at night, and plaintiff testified that it was impossible to judge its speed. There was evidence showing the train was running at a speed much greater than that limited by the slow order. Held, in an action for damages for such injury that there was sufficient evidence to make a question for the jury, and that a demurrer to the evidence was improperly sustained.</p> <p>On Motion to Modify.</p> <p>1. ATTORNEY: Agreement: Authority. An attorney for defendant has implied authority in the conduct of a trial for his client, to agree that at the close of the evidence he will present a demurrer thereto, which, if sustained by the court, judgment shall be rendered for defendant; but that if the demurrer is refused, the findings and judgment shall be in favor of plaintiff for $5000, the losing party retaining a right to appeal.</p> <p>2. JUDGMENT: Verity: Judge's Docket: Clerk’s Minutes. The recorded judgment of a court of record imports absolute verity unless contradicted by other parts of the record. And such judgment may properly recite agreements of parties not contradicted by the judge’s docket or the clerk’s minutes, though such agreements are not mentioned in such docket or minutes.</p> <p>2. JUDGMENT: Appellate Court: Assumption: Remedy. If a recorded judgment of the trial court recites an agreement of the parties which is made by the attorneys in the cause, an appellate court will assume that the court found the attorneys had authority to make the agreement. An appellate court cannot inquire into the authority of such attorneys. The proper remedy is by proper proceedings in the proper court against the judgment.</p> <p>Case No. 10384. On Supplemental Proceedings.</p> <p>1. NUNC PRO TUNC: Judgment Entered: Presumption: Evidence. A judgment entered in the judgment record is presumptively the judgment rendered by the court, and to correct it by proceedings nunc pro tuno, after the term, oral evidence is not admissible. The only competent evidence is from the judge’s docket or the clerk’s minutes or other record in the cause showing that a different judgment was rendered.</p> <p>2. -: -: -: Judge's Docket: Clerk’s Minutes: Silence. If reliance is placed on the judge’s docket and clerk’s minutes to correct a judgment, nunc pro tunc, they, to authorize the correction, must show that the judgment entered is not tlie one which the court rendered. The mere silence of the docket and the minutes as to a part of the judgment entered on the record, is not sufficient to authorize that portion to he stricken from the judgment.</p>

<p>1. MUNICIPAL OFFENSE: Reasonable Doubt: Malum In se. In prosecutions by a city under a municipal ordinance for an offense which is malum in se, the defendant is entitled to an instruction requiring the jury to give him the benefit of a reasonable doubt.</p> <p>2. OFFICER: Arrest: Flight: Firing upon. In attempting to apprehend one charged with a violation of a municipal ordinance, or a misdemeanor, who has taken to flight, an officer has no right to kill him, or to fire upon him with intent to do so.</p> <p>3. -: -: -: Assault with Intent to Kill: Defense of Brother. Where a city marshal in attempting to apprehend a person fleeing from arrest for violation of a municipal ordinance, attempts to kill him by firing upon him with a pistol, the brother of such person has a right to defend him by resisting the officer.</p>

<p>1. BUILDING AND LOAN ASSOCIATIONS: Bonus: Premium: Interest. The bonus or premium for obtaining a loan from a building and loan association, is a certain and definite sum paid for the loan and is distinct from the rate of interest, ft cannot consist of a rate per cent payable indefinitely.</p> <p>2. -: -: -: Bonus as Per Cent of Loan. The statute (Sec. 3389, R. S. 1909) providing that a building and loan association may dispense with bids for loans and that such loans may be made to members at such rate of interest and premium as may be provided by by-laws, such premium to be paid in. gross installments, does not mean that the premium can be made a per cent of the loan payable monthly during the whole time the money may be unpaid.</p> <p>3. -: -:--: Bonus: Per Cent of Principal. Tbe statute (Sec. 3389, R. S. 1909) in providing that a premium or bonus can be a certain per cent, means a certain per cent of the principal as an ascertained sum, and not a rate per cent during the whole time the loan may remain unpaid. Different provisions of the statute discussed.</p> <p>4. -: -: -: -: Interest: Usury. A bonus or premium for a loan is not interest, and if, under the name of bonus or premium an additional rate of interest is added, which, together with interest proper, makes a greater per cent than the lawful rate of interest, it will be usury.</p> <p>5. -: -: -: -: Second Appeal. Where an appellate court remands a case to the trial court with directions to ascertain the amount due on the notes and enter a decree of foreclosure for the same, such order does not mean a decree for plaintiff even though the trial court should find nothing was due.</p> <p>6. -: -: -: Res Adjudicata: Second Appeal. If an appellate court erroneously decides a case, or erroneously states the law, it may in clear cases and to avoid manifest injustice, make a contrary ruling in the same case on a second appeal.</p>

<p>1. IMPLIED CONTRACT: Family Relation: Instruction. A married daughter rendered services, such as washing, to her father who lived alone. There was evidence tending to show that she did not intend to have him pay for such service. B'eld, that it was proper to instruct the jury that in passing on the question of an implied contract to pay, they had a right to examine the circumstances shown in evidence, including the relationship of the parties.</p> <p>2. -: -: -: Payment to Debtor: Evidence. Where the evidence showed that a married daughter paid to her father a note of $388 after her account for services against him was charged to have accrued, it was held to be evidence tending to show that she did not intend to charge for such services.</p> <p>3. -: -: -: Argument: Practice: Court’s Rulings. It is not proper practice for counsel to state to the jury in his closing argument what the court would have ruled had plaintiff offered herself as a witness. The court’s rulings, should be announced by the court.</p>