Volume 191 — Missouri Appeal Reports

Louis City Circuit Court — How. Thomas G. Hennings, Judge. (1) The court erred in admitting over the defendants’ objection plaintiff’s exhibit B, a drawing made from a photograph not offered in evidence. It was not shown when the photograph was taken or when the drawing was made, nor was any one able to state that the drawing was an accurate picture of the coupling and set screws.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Tlie telegrams constitute a contract for the sale by plaintiff and the purchase by defendant of one carload of strawberries. Elam v. Telegraph Co., 113 Mo. App. 588; Reynolds v. Telephone Co., 81 Mo. App. 223; Thompson y. Thorne, 83 Mo. App. 241; Fruit & Trading Co. v. McGuire, 81 Minn. 232. (2) The strawberries were properly shipped, and were of the kind and quality ordered and were in good merchantable condition.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Where, in an action for the recovery of damages for the breach of a contract, the execution of the contract and its breach are admitted by the defendant, even in the absence of evidence showing any substantial damages resulting from such breach, the law presumes that there was damage, and it is the duty of the trial court to render judgment in favor of the plaintiff for nominal damages. Lampert v. Drug Co., 119 Mo.

<p>1. LIFE INSURANCE: Sufficiency of Proof of Death: Circumstantial Evidence. In an action on a life insurance policy, where there was evidence tending to show that, at a certain time and place, insured was shot and killed, although his body was never seen or identified by any one who was acquainted with him, it was not necessary to a recovery that plaintiff prove that efforts were made to locate insured, as would be required if the unexplained disappearance of -insured for the statutory-period were relied on as proof of death.</p> <p>2. -: -: -. In an action on a life insurance policy, evidence held sufficient to-warrant the jury in finding that insured was killed at a certain place and time, although his body was never seen or recognized by any One thereafter.</p> <p>3. -: -: Evidence. In an action on a life insurance policy, where the evidence as to the death of insured is circumstantial, evidence of the character.and habits of insured and of his affection for his family is admissible as tending to show lack of motive for desertion.</p> <p>4. TRIAL PRACTICE: Demurrer to Evidence: Rules of Decision. In determining whether defendant’s demurrer to the evidence should be given, plaintiff is entitled to the benefit of all the inferences which the jury can legitimately and properly draw from the evidence.</p> <p>5. LIFE INSURANCE: Sufficiency of Proof of Death: Circumstantial Evidence. In an action on a life insurance policy, where the evidence of the death of insured is circumstantial, the fact that the body was never seen or identified by any one who was acquainted with insured does not preclude the jury from drawing an inference of death from such evidence.</p> <p>fi. -: -: -: Instructions. The evidence, in an action on a life insurance policy, was sufficient to warrant a finding that insured died as a result of a gunshot wound inflicted on the date specified in the petition. His body was never seen or identified by anyone who was acquainted with him. At the instance of plaintiff,'the court charged the jury that, in order to entitle plaintiff to recover, she must prove to the satisfaction of the jury, by a preponderance, or greater weight, of the evidence, that insured died on or about the date specified in the petition, “but the fact or time of his death may be established by circumstances, in the absence of direct and positive evidence,” and that there was no evidence of any person who saw and identified the body of insured after such date, and, therefore, in determining whether he died on or about such date the jury should take into consideration the particular circumstances of his disappearance, his character, habits, relations and conduct with and toward his family at home, and, from all such facts and circumstances in evidence, if they believed that his absence from his home and family for any cause other than his death was improbable, their verdict and finding on the issue of his death should be in favor of plaintiff. Held, that the instructions correctly declared the law.</p> <p>7. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict supported by substantial evidence is conclusive on the appellate court.</p>

Louis City Circuit Court. — Hon. Thomas C. Hennings, Judge. (1) The court erred in admitting sec. 58, vol. 3 of the Laws of the State of New York requiring the application to he endorsed upon or attached to the policy when issued. The policy in suit was issued and delivered in Missouri and therefore the laws of this State govern. Whittaker v. Insurance Co., 138 Mo. App. 664; Haven v. Insurance Co., 149 Mo. App. 291.

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. ' (1) Tbe defendant is a co-operative society founded upon tbe mutual relations of its members, one to tbe other. Tbe relationship of tbe members is twofold — -that is, as individuals they are tbe insured, and collectively they are tbe insurers.

Louis City Circuit Court. — Jlon. Eugene McQuillin, Judge. (1) The plaintiff showed no title in himself to maintain the action. His appointment as special commissioner is utterly void and open to collateral attack. The certified copy of Ms appointment should have been excluded.

<p>1. NEGLIGENCE: Automobile: Chauffeur: Orders: Liability. A chauffeur in the employ of the owner of an automobile drove the owner to church in Kansas City. On getting out at the church, the owner ordered the chauffeur to go after his son at a place about nine blocks west of the church, -bring the son to the church and there wait to take them home when services were over. The chauffeur drove several blocks in an opposite direction to collect a debt owing to him by a friend, collected the debt and invited his friend to ride back with him on the same seat. At his friend’s request he let him handle the steering wheel and drive the machine. On their way back to where the owner’s son was, the machine collided with a hearse and injured those in charge of it. It was held that the owner was liable, even though his machine was being driven by the chauffeur’s friend at the time of the collision.</p> <p>2.--: -: -: -. Orders of care in driving an automobile and directions not to let any one else drive it will not excuse the owner from an act of the chauffeur injuring another, though it occurred on account of violating such orders.</p> <p>3. -: Indirect Course: Private Errand. The fact that the chauffeur in obeying instructions of the master to go to a certain place, drives the automobile out of a direct course, to another place on an errand of his own will not free the master of liability for an injury to a third party in a collision occurring on the way back to the place he was directed to go.</p> <p>4. -: Chauffeur: Invited Friend: Negligence. If a chauffeur in charge of the master’s automobile invites a friend to ride on the seat with him and permits the friend to take charge of the steering wheel and run the machine, and the latter negligently collides with a hearse and injures those in charge of it, the master is liable.</p>

<p>1. PRINCIPAL AND SURETY: Mechanic’s Liens: Contractors: Materialmen. The plaintiffs, who sold to a contractor materials which were used in the construction of a building, sued the defendant on a bond, which the defendant furnished to the contractor to protect the owner against Mechanic’s Liens. The plaintiffs filed a Mechanic’s lien against the building and • brought a suit thereon. Held, that the bond was for the benefit of the obligee,' the owner, and not for the materialman.</p> <p>2. -:-:-. A contract between two parties upon a valid consideration may be enforced by a third party when entered into for his benefit, although such third party is not named in the contract and was not a party to the consideration. It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim. But this does not extend so far as to give a third person who is only indirectly and incidentally benefited by the contract a right to sue upon it.</p>

<p>1. NEGLIGENCE: Master and Servant: Safe Place to Work: Rest Room for Servants. Where a master .provided a rest room in which, the telephone operators were required to go at stated periods during the day and rest as part of their duties, an operator, who, when the rest period arrived, had left the board and gone to the rest room as required was still in her line of duties and was required to be in the regular performance of her work. In such case the duty rested upon the defendant master to see that the rest room was maintained in a reasonably safe condition.</p> <p>2. -: -:--: -. The master cannot delegate to an independent contractor the duty to use reasonable care to furnish his servants with a reasonably safe place in which to work. Where one is charged with a duty arising from a legal obligation which he cannot devolve upon another, the rule as to independent contract does not apply.</p> <p>3. PLEADING AND PROOF: Acts of Ne'gligence. Where a plaintiff pleads and proves two or more negligent acts and proves that his injury must have been the direct result of one or all of them he is not required to go further and distinguish by proof the particular one that caused his injury. To satisfy his burden, it is enough for him to show that his injury resulted from a specified wrongful act of defendant.</p>

<p>1. NEGLIGENCE: Personal Injuries: Leveler Machine. The plaintiff, a minor, was operating a leveler ' machine in the defendant’s shoe factory and sues to recover damages for injury to one of his thumbs. The machine which he was operating had two treadles, and while he was endeavoring to pull a shoe from the last, he lost his balance, inadvertently stepped on the wrong treadle, and the thumb of his left hand was caught and mashed. Held, that the demurrer to the evidence was properly overruled. -</p> <p>2. -: Master and Servant: Minor. The master is liable for failure to instruct a minor unless both the danger and the means of avoiding it are apparent and within the comprehension of the servant. And where the servant is a minor, the master must put his warnings in such language as to be sure that the servant understands and appreciates the danger. It is not enough that he should do his best to make the servant understand, he must actually understand and appreciate the danger.</p> <p>3. INSTRUCTIONS: Proximate Cause. It is error to submit, in an instruction, a question, raised in the petition, of negligence in failing to.instruct plaintiff in the use of the brake, and of whether or not such negligence was the approximate cause of the injury, when the plaintiff’s own evidence demonstrates beyond question that the absence of instructions relating to the use of the brake or clutch could not have been a ’ proximate cause.</p>

<p>1. NEGLIGENCE: Master and Servant: Scope of Employment. Á shipper told the station agent the freight car he was to use in shipping his household goods was not in a convenient place. The agent said to see the engine hostler and get him to place the car where he desired. The hostler told his helper to take a freight engine standing in the yard and “spot” the car. He.did so first in front of the shipper’s house and afterward on a storage track in front of the shipper’s shop. This track was never used for loading cars. After the hostler’s helper had spotted the car on the storage track and the shipper began loading his goods, the hostler helper uncoupled the engine and went about his regular duties coaling and caring for the engine. He then stored it, as was his duty, on- the track, and in doing so struck the car and injured the shipper who was loading his goods. Held, that even if- the spotting of the car was outside the scope of the hostler helper’s duties and in violation of his master’s orders, yet when he did the injury he was clearly acting for his master ■ and in the line of his duty, and knowing or having reason to believe the shipper was in the car he had no right to negligently injure him, and if he - did so his master was liable.</p> <p>2. -: -: -: Contributory Negligence. Since it was not conclusively shown that the shipper knew it was in violation of the master’s rules to place the car where it was, and since the shipper knew the servant was aware of his presence in the - car, he had a right to assume that the servant would not negligently strike the car with his engine and injure him. Hence the shipper was not guilty of contributory negligence in not keeping a watch outside the car for the engine or in attempting to load the car at that point.</p>

<p>1. DIVORCE: Custody of Children: Jurisdiction. By reason of the separation and divorce of parents, their child becomes a ward of the court in which the decree of divorce is rendered, and jurisdiction to award the custody of such child vests in that court to the exclusion of all others. Such jurisdiction is a continuing one, giving the court power to modify its decree as to the custody of the child from time to time, as circumstances change and new conditions arise to make a modification necessary.</p> <p>2. -: -:--: Rights of Parents. The Act of 1913, Laws of Mo. 1913, page 91, in relation to the custody of children did not create a new rule or principle upon which cases involving the custody of children are to be decided, but merely placed the mother upon the same legal level with the father in respect of her eligibility to be selected as the custodian of her child. The right of neither parent is absolute, nor can it become so by contract or agreement. The custody of a child is in the nature of a trust and is upheld only so long as the duties of that trust are faithfully carried out.</p> <p>3. -: -: -: -: Contracts Relating to Custody. Parties cannot make a final and absolutely irrevocable contract concerning the custody of their child save in the method pointed out by statute by apprenticeships and deeds of adoption. Nor can the court which renders a decree of divorce make a final and absolute decree as to the custody of the child. It is subject to modification as new circumstances arise from time to time.</p> <p>4. -: -: -: -: Guiding Principles. In determining who shall have the custody of a child the supreme consideration to be ever kept in mind is the child’s welfare. The rights of neither parent should be disregarded, but the welfare of the child is superior to the claims of either parent; even the wishes of the child itself must yield to that.</p> <p>5 -: -: Evidence. In cases involving the custody of children, the evidence takes a wide range. No other occasion can call more -loudly for judicial vigilance in reaching for the exact truth. The attitude of the parents toward each other, the causes leading to the divorce, their treatment of each other, and the character of the parties are all material and admissible in evidence as bearing upon the question of the fitness of the respective parents to have the custody of their child. This should be considered solely in order to arrive at what is for the good of the child, and not in any way for the purpose of gratifying the wishes of one parent or the other, or with any idea of punishment or of rewarding either parent.</p> <p>6. -: -: Facts Justifying a Change of Custody: Influencing Child Against Parent. Any act on the part of one parent which tends, or will tend, to cause the child to lose respect for the other parent or prejudice the mind of the child against its parent is an abuse of the trust. And where the evidence shows that the influences surrounding a child were such as to lead him to believe without cause that his father was not to be trusted; that he was not respected and had no standing in the community; that the father did not provide for him; that his father’s family and relations were undesiraable people all of which was without foundation; and that the child was led to imbibe unwholsome views of life; this will be deemed sufficient grounds for changing the custody of the child.</p> <p>7. -: -: -. The facts in this- case considered and analyzed, it is held that, taking the whole cycle of the boy’s career into consideration, and that he is now twelve-and-a-half years of age and about to enter upon one of the most critical periods of life and needs a father’s advice and direction, and that at this age boys begin to escape their mother’s apron strings and the influence and training of his father and the benefits of his father’s society are what is best for him now, the custody of the boy should be, and is, awarded to the father under certain conditions.</p>

<p>1. PRINCIPAL AND SURETY: Executors and Administrators: Partnership. If an administrator takes property into his hands under color of his office, and fails to account for it, his surety is bound therefor even if, as a matter of fact, it was not in reality assets of the estate.</p> <p>2. -:--: -. The improper appointment of an administrator de bonis non does not affect the liability of his sureties, if the administrator acts under the appointment; and, even if the letters of administration are void, the bond is good as a common-law bond.</p> <p>3. -: -; -. Where an administrator purchases property at his own sale and at one-half of the appraised value, the same is void and as if it had never been.</p> <p>4. --: -: Final Settlement. In passing on the final settlement of an estate the probate court has power to go into all past accounts and settlements and correct any errors or invalidities anywhere throughout the administration.</p>

<p>FIRE INSURANCE: Total Loss. The plaintiff sued to recover from the defendant $1500, as the three-fourths value of the face of a fire insurance policy on her furniture worth something over $2000, which was totally destroyed by fire. The adjuster agreed to pay her $1266.67, and she agreed to take it provided it was paid immediately. The adjuster then discovered the three-fourths clause in the policy and told her after she made up proof for $1266.67, that they could only pay her $950. This she refused to accept. Held, that since the evidence was conflicting . it was for the jury to determine and their verdict is final.</p>

<p>1. NEGLIGENCE: Railroads: Federal Employer’s Liability Act. The plaintiff sued to recover damages from defendant, for the negligent placing of a piece-of “scrap” or “junk” rubber hose, so that when plaintiff descended a ladder on which he had been' working cleaning an engine he stepped upon it thereby severely spraining his ankle. Held, that defendant’s demurrer to the evidence was properly overruled.</p> <p>2. -: Federal Employer's Liability Act. The Federal Employer’s Liability Act abrogates the rule regarding contributory negligence and merely permits such negligence to diminish the ■ damages. .</p> <p>3. -: -: Assumption of Risk: Federal Rule: Missouri Rule Under the Federal Rule Concerning Assumption of Risk. When the employee knows of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer, or his representative, an assurance that the defect will he remedied, the employee assumes the risk, even though it arise out of the master’s breach of duty. Such, however, is not the Missouri rule.</p> <p>4. INSTRUCTIONS: Damages, Measure of. An instruction on the measure of damages regarding the contributory negligence of plaintiff which states: “Then such damage should be diminished by the jury in proportion to the amount of negligence attributable to him, as compared with the negligence, if any, attributable to the defendant” is erroneous.</p>

<p>ADMINISTRATORS: Dower in Personalty: ■ Distribution. The phrase “dower in personal estate” occurring in section 117, Re-' vised Statutes of Missouri 1909, refers to the widow’s share' in the personalty of her deceased husband, equal to the share of a child of such husband, given by section 349. So that when an intestate died leaving a widow and one child, and the widow had taken $400 worth of property at its appraised value under section 316, on this distribution between the widow and the child, said $400 should be deducted from the share going to the widow under said section 349.</p>

<p>1. ATTACHMENTS: Principal and Surety: Bond. The administrator of Mullett brought this action on attachment bond, which was executed by the defendant’s manager at the time an attachment suit was instituted by defendant company against Mullett. The defendant denies liability on the bond on the ground that the execution thereof was never authorized nor thereafter ratified. Held, that the defendant by pressing the litigation, of which the bond is a part, ratified the execution of the bond.</p> <p>2. —:-: -: -. The authority of an agent to execute a bond required' by law to be under seal, must be shown and conferred by an instrument executed with the same formality. Ratification cannot be established by anything less than a writing under seal, provided, there is no element of equitable estoppel involved.</p> <p>3. STATUTE OF FRAUDS: Sales on Contracts of Corporations. .The contracts which the Statute of Frauds requires to be in writing, must be in writing, but as the Statute of Frauds does not require contracts within its purview to be under seal the contracts of corporations even for the sale of land do not have to be under seal.</p>

<p>1. VENDOR AND VENDEE: Fraudulent Representation. The plaintiff sold a threshing machine to defendants and took a chattel mortgage on it and on an old engine to secure notes given for the purchase price of the threshing machine. The machine did not work satisfactorily and defendants tendered back the machine,1 and demanded their notes and mortgages claiming they had been induced to purchase the machine through fraud. The plaintiff brought this action to foreclose mortgage and to obtain deficiency judgment. A verdict was rendered in favor of the defendants and plaintiff appealed. Held, that the jury having found for the defendants, the verdict must be accepted.</p> <p>2. -: -: Contracts. Where a sale is made by written contract this does not preclude defendants from showing that its execution was procured by fraud. And testimony of such fraud does not vary the terms of such a written contract.</p> <p>3. INSTRUCTION: Fraudulent Representations. In an instruction it is not necessary to tell the jury in so many words that the vendor must have known the representations were false and made them for the purpose of defrauding the vendees, the substance thereof being sufficient.</p>

<p>1. NEGLIGENCE: Street Railways: Death. The plaintiffs sued the defendants for the negligent death of their child. The plaintiffs claimed that the child, nineteen months old, went in front of a standing street car, and the servants of defendants negligently ran over the child. Held, that the plaintiffs were entitled to recover.</p> <p>2. INSTRUCTIONS: Measure of Damages. An instruction, which told the jury that in the event they found for plaintiffs they would assess their damages in a sum not less than two thousand and- not more than ten thousand in the discretion of the jury taking into consideration all the facts and circumstances in evidence in the case, is not erroneous. And the omission of explanatory features was mere nondirection and not misdirection and is not reversible error, especially when the records clearly show that the appellants were in no way prejudiced thereby.</p>

<p>DIVORCE: Pleading: Vagrancy. In an action for divorce, where the plaintiff pleads vagrancy and other indignities, it is not necessary to plead the exact language of the statute. And when the evidence shows that the defendant is clearly a vagrant within the meaning of the statute she is entitled to divorce.</p>

<p>1. PROBATE COURTS: Bills and Notes: Claims. The plaintiff presented a demand against the defendant estate on a promissory note which was executed by Young and his wife to the deceased defendant and endorsed by the deceased defendant to plaintiff. Held, that presentment for payment is not required in order to charge an endorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented.</p> <p>2. -: -: Indorser. When an endorser promises to pay a note with full knowledge of the facts, he is deemed to have waived the requirement of presentment for payment and notice.</p> <p>3. EVIDENCE: Death of One Party to Contract. It is not error to allow one party to a contract to testify, when the other party is dead, in the trial of a case in the circuit, court, since she was allowed to testify in the trial in the probate court, without objection. The right to object to such testimony is deemed to have been waived.</p>

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

<p>1. ATTACHMENTS: Creditors: General, Judgment and Attachment Creditors: Fraudulent Conveyance: Pleading. A general creditor cannot, but a judgment or attachment creditor can, attack a fraudulent conveyance of his debtor’s property. But the petition in an action to set aside such conveyance which does not allege that such creditor is a judgment or attachment creditor does not state a cause of action.</p> <p>2. PLEADING: Receiver: Cause of Action. Where a receiver is appointed in an action to set aside a conveyance of real estate for fraud and it appears that no cause of action is stated in the petition, the order appointing the receiver should be vacated.</p>

<p>1. NEGLIGENCE: Automobiles: Father and Son. The question is discussed whether the father owning an automobile for use of himself and his family, is liable for the negligence of his son driving the automobile in escorting a young lady friend from church.</p> <p>2. -: -: Petition: Damages: Lump Sum: Verdict; If a petition for damages for negligence in driving an automobile against plaintiff’s buggy, asks damages, in a lump sum, for the personal injury and injury to the horse and destruction of the buggy and harness; and, on account of failing to prove the value of the horse, buggy and harness, the court directed that no damages could be allowed for those items, yet the jury returned a verdict for the entire sum claimed, it was held that such verdict should be set aside.</p>

<p>1. CONTRACTS: Substitution: Consideration. When a later contract is substituted for an earlier one the withdrawal of the first and substitution of the second are themselves a consideration.</p> <p>2. -: -: In Part. Where one is already legally bound by his contract to perform a certain service a later contract involving only one item of the first contract is not á substitution of one contract for another.</p> <p>3. -: Party Bound: Additional Contract: Consideration. Where one is already legally bound by his contract to perform a certain service, a later contract agreeing to pay him a larger compensation for that service is without consideration.</p> <p>4. -: Tender: Admission. A tender of a sum to the opposing party and depositing it in court is an admission that it is due that party.</p> <p>5. -: Tender: Requisite to Bringing Injunction: Judgment. Where a beneficiary is proceeding to foreclose his deed of trust on -the. debtor’s property and the latter believing the debt to have been paid brings an injunction to prevent the sale, it is not necessary, as a requisite to his right to bring the action, that he should tender any sum, although the court finds that he still owes a balance. It is sufficient to authorize a judgment granting the injunction if he tenders the amount found by the court and deposits it in court.</p> <p>6. -: -: Costs. Although it is not necessary to make a tender to one who is proceeding to foreclose a deed of trust, before bringing an injunction against him, to prevent the sale, and although the court finds a balance is due the holder of the deed and the debtor then tenders it and pays it into court and the latter sustains the injunction, yet the holder of the deed of trust is entitled to a judgment for the costs.</p>

<p>1. NEGLIGENCE: Bodily Injury: Fright: Nervousness: Damages. A large mercantile establishment operated elevators to take customers from floor to floor. A woman entered one on the second floor to descend to the street floor. Through negligent defects in the elevator, it failed to stop and ran rapidly to the basement where it struck violently against the elevator shaft. This frightened and terrified the woman and other passengers, and hurt her bodily, as well. Bodily injury further developed, as well as great nervous derangement. It was held that,' the bodily injury, anguish of mind and nervous derangement, were all elements of damages in her husband’s action for loss of services.</p> <p>2. FRIGHT: Terror: Injury: Jolt: Internal Injury: Damages. Fright, terror and nervous derangement, accompanied by bodily injury caused by negligence, become elements of damages. And such physical injury may be wholly internal, and it may be caused by a jar or jolt, resulting from the impact of an elevator where it has dropped to the bottom of the shaft.</p> <p>3. -: Physical Injury: Nervous Injury: Damages. If a negligent act causes fright and terror, but not bodily injury, there is no liability, though bodily injury should result from the fright. But if the negligence causes physical injury, and fright, there is liability for both; and, in that case, the injuries, physical and nervous, which are caused and followed by the fright, also are elements of damage.</p>

<p>1. NEGLIGENCE: Unloading Sugar: Runway: Deputy. Two parallel car tracks entered defendant’s house and a freight car stood on each. One was filled with sugar in sacks which were loaded onto a four-wheeled truck; the truck was then pulled out of the car onto a runway which carried it over to the other car, thence it was pulled through that car onto another runway, carrying it to a dock where it was to be unloaded. The end of the runway was negligently fastened inside the last car by another employee, and as plaintiff attempted to pull the truck through the car onto the runway, it slipped out of position and fell to the ground with plaintiff and the truck whereby he was injured. Held, that it was the master’s duty to see that the runway was reasonably safe, and though he deputized that duty to another employee, he was liable for the latter’s negligence.</p> <p>2. -: Master: Deputy: Positive Duty. A master who deputizes a servant to perform one of his positive duties to other servants, cannot escape liability for the deputy’s negligence, no matter how low down in the scale of employment the latter may be.</p>

<p>PROBATE COURTS: Contracts: Claim for Services Rendered. When parties enter into the employment of a person and accept money, etc., as their compensation, without complaint, they ■cannot after his death maintain a valid claim against his estate for services over and above what they were paid, especially where they not only fail to prove a contract of employment, but also utterly fail to prove any indebtedness from their employer to them under the terms of that contract.</p>

<p>1. DIVORCE: Jurisdiction: Appellate Practice. The plaintiff sued for divorce alleging that the offense or injury complained of was committed within this State and while both of the parties resided in this State. The defendant failed to appear, and the court heard the evidence and dismissed the suit for lack of jurisdiction. Held, that matters of exception cannot be reviewed in the appellate court unless they are preserved in a motion for new trial, filed in proper time and the filing and overruling of the motion must appear in the abstract of that part of the record called the record proper to distinguish it from the bill of exceptions.</p> <p>2. --: -: Petition. It is not necessary to allege in a petition for divorce that the plaintiff resided within the State one whole year next before the filing of the petition, if it is alleged that the offense or injury complained of was committed within the State or while one or both parties resided within this State.</p> <p>3. APPELLATE PRACTICE: Matters of Exception. Matters of exception cannot be reviewed unless they are preserved by a timely motion for a new trial, and the action of the court in overruling such motion must appear in that part of the abstract called the record proper.</p>

<p>Appeal from Jackson Circuit Court. — Ron. A. C. Southern, Judge.</p>

<p>1. CONTRACTS: Privity: Payee: Bank. There is no privity of contract between a payee of an ordinary check and the bank upon which it is drawn, and hence the payee cannot maintain an action, ex contractu against the bank for the amount of the check.</p> <p>2. BANK CHECK: Action Ex Contractu: Ex Delicto. A payee of a cheek may maintain an action, ex delicto, in conversion against the bank on which it is drawn, where the latter permits an agent of such payee, without authority, to endorse the check to it and places the amount to the agent’s individual credit.</p> <p>3. CHECKS: Conversion: Property: Measure of Damages. Bank checks are property and may be converted; and prima facie, the amount of the check is the measure of damages in an action for conversion.</p> <p>4. SALESMAN: Authority: Endorsement: Checks. A travelling salesman for'a wholesale grocery house with authority to sell and receive cash payments and also checks payable to the wholesale house, has no authority to endorse such check. And a bank accepting such endorsement and paying the money is guilty of a conversion.</p> <p>5. -: -: -. The fact that a travelling salesman for a wholesale house with authority to collect cash for sales and to receive checks payable to the house, deposits the cash with a bank to his individual credit and then checks it out to the house is not evidence sufficient to show that such salesman has, without authority, also endorsed its name on checks and deposited them to his own credit.</p>

<p>1. EVIDENCE: Deposition: In Former Trial: Contradiction. When a witness is confronted with his deposition, or a bill of exceptions in a former trial, for the purpose of contradicting his present testimony, he is entitled to see the whole of his testimony, on the subject in hand; and, unless the whole is introduced, it is error for opposing counsel to select special parts with which to contradict him.</p> <p>2. PERSONAL INJURY: Death:. Damages: Expectancy of Life: Date of Death. Where a party is injured through negligence of another and dies before judgment, hut not from his injury, his administrator is not entitled to recover damages for a period covering his expectancy in life; hut only np to his death.</p>

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

<p>1. ATTORNEY AND CLIENT: Contracts: Claims Against Estates. When the record before the appellate court discloses sufficient evidence to sustain plaintiffs claim of employment and that he performed the services required thereunder, so far as a judgment based on said evidence is concerned, it will be presumed, on appeal, that the court reached the correct result.</p> <p>2. -: -: Judgment. Judgments remain in the breast of the court during the entire term at which they are rendered and may be set aside or vacated at any time during the term upon its own motion.</p>

<p>1. INDICTMENTS AND INFORMATIONS: Practicing Medicine Without License. An indictment, which in one court charges a defendant .with practicing medicine without a license from the State Board- of Health, and, also with failing to record his license in the county of his residence, is not a good indictment, ■because the latter offense is under section 8314, R. S. 1909, and the former under section 8315, R. S. 1909, and, further, because . two or more distinct separate offenses cannot be charged in the 'same count of an indictment.</p> <p>2. --: -: Language of Statute. Where an indictment is not in the language of the statute and does not negative the exceptions therein contained, it comes within the. rule that, .where an indictment is unnecessarily particular in its negatives," the State is concluded by it, if it fails to specifically negative all exceptions.</p> <p>3. INSTRUCTIONS: Practicing Medicine Without License. An instruction which told the jury that they should find the defendant guilty if they believed from the evidence beyond a reasonable doubt that the defendant, for pay, treated the person, and, at the time of such treatment, if any, “had no license from the State Board of Health recorded in the office of the county clerk,” etc., is erroneous.</p>

Louis City Circuit Court. — Hon. J-Hugo Grimm, Judge. (1) In case of total loss by fire of a second-hand automobile, the valued policy law (Sec. 7030, R. S. 1909)» does not preclude the .defenses of breach of warranty and fraud in the inducement based upon misstatements as to its cost made by the assured at the time the policy was written. See. 6009, R. S. 1879; Sec. 7020, R. S. 1909; Holloway v. Dwelling House Insurance Co., 48' Mo.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. The courts all concur in this, that no man can set up another’s act or conduct as the ground of estoppel, unless he has himself been misled or deceived -by such act or conduct; nor can he set it up when he knew or had the same means of knowledge as to the truth of the statement as the other party.

Louis City Circuit Court. — Ron. William T. Jones, Judge. - (1) Under the provisions of section 2534, Revised Statutes 1909, a separate ground of relief is due appellant on each charge made in her petition. (2) The threatened sale in this case need not constitute a cloud on the title; it is enough if the appellant is interfered with in any way in the absolutely free use and disposition of her property. Duncan v. Turner, 171 Mo. App. 677; The Charter Oak Life Ins.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) In order to recover funds of a corporation paid by an officer of tbe corporation and alleged to bave been misappropriated, it must be conclusively shown that tbe one so receiving tbe funds bad knowledge of tbe fact that tbe funds so received were funds of tbe corporation. Roan v. Winn, 93 Mo. 503; St. Charles Saying Bank v. Edwards, 243 Mo. 553; Coleman, trustee, v. Stocke, 159 Mo. App. 43.

— Hon. E:M. Bearing, Judge. (1) Since this suit is based upon an Indiana contract we think the lex loci contractus governs. 9 Cyc. 672; Johnson, v. Gawtry, 83 Mo. 339; Kerwin v. Doran, 29 Mo. App. 397. (2) This suit being between the immediate parties the actual consideration can be inquired into by parol.

Louis City Circuit Court. — Eon. J. Engo Grimm, Judge. (1) This case should be reversed because of the failure of the court below to give defendant’s instruction in the nature of a demurrer to the evidence, for: (a) The plaintiff: was not a designated beneficiary nor did she fall within any of the classes named in the facility of payment clause. Floyd v. Prudential Ins. Co., 72 Mo. App. 455, 459-60; Kelly v. Prudential Ins. Co., 148 Mo. 249; Ferretti v. Prud. Ins.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) Tliere was no evidence of negligence on the part of defendant and the court should have so instructed the jury. Mathis v. Kansas City Stock Yards Co., 185 Mo. 434. (2) The plaintiff assumed the risk of the inside section of said lintel falling and the master conld not guard against the same, and was not required so to do.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The plea of res ad judicata made by defendant here is not well taken. The case of State ex rel. Held: and properly denied the defendant’s plea of res adjudicata.„ The plea of res adjudicata must fail where there is no identity of the cause of action, or where the merits of the subject-matter of the former suit were not litigated. Windham v. Kline, 77 Mo. App. 37; Perkins v. Groddin, 111 Mo.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Tbe insured agreed that tlie laws of the order in force at the time of his death should determine the rights of the beneficiaries and the obligations between the order and its members and that his rights should be limited by the laws then in force or which might afterwards be adopted. Such an agreement is valid, and an after-adopted suicide law is binding. Westerman v. K. P., 196 Mo. 740; Lewine v. K. P., 122 Mo.

— Eon. William T. Ragland, Judge. (1) Plaintiff was vice-principal of the defendant and was injured by his own carelessness and by servants who were his subordinates. Pie has no cause of action against the defendant, and defendant’s demurrer should have been sustained. McGrory v. Railroad, 118 S. W. 710, 23 L. R. A. (N. S.) 301; Linemueller v. Arthur, 53 So. 500, 127 La. 500; Langdon-Creasy Co. v. Rouse, 72 S. W. 1113; Evans v. Railroad, 62 Mo. 49; Minster v. Citizens’ Ry.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Remarks made by the trial judge are not ground for granting a new trial, unless they are made improperly and are of a character to prejudice the jury against one of the parties. State v. Teeters, 239 Mo. 475; Hutchinson v. Richmond Safety Grate Co., 247 Mo. 71; Farrar v. Railroad, 249 Mo. 210; Landers v. Railroad, 134 Mo. App. 80; Tuck v. Traction Co., 140 Mo. App. 335; Steltemeier v. Barrett, 145 Mo. App. 534.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The offer contained in appellant’s letter of November 24, 1909, to Judge Klein was unsupported by any valid consideration and therefore was and is unenforcible. Bulldey v. Landon, 2 Conn. 404; Com-stock v. Smith, 7 Johns. 86; Bank v. Striever, 82 N. Y. 508; Arend v. Smith, 151 N. Y. 505; McQuaid v. Baughman, 167 111. 430; Cleaver v. Lenhart, 182 Pa. St. 285; Howard v. McNeil (Ky:), 78 S. W. 142; Littlepage v. Pub.

— Hon. William T. Ragland, Judge. (1) The verdict was for the right party; plaintiff was not entitled to recover, and the court should have given defendant’s peremptory instructions, (a) There was no evidence that the defects testified, to by plaintiff’s witness, Hopson, caused the explosion; and (b) it could just as reasonably be inferred that the explosion was the result of low water as that it was the result of any other cause. Breen v. St. Louis Cooperage Co., 50 Mo.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) The alley here in question existed merely on paper. It had never been thrown open to the public for travel. Hence, the city was under no duty to make it safe for travel; and neither owners nor occupants of private property adjoining same were required to guard places on their land which may have been dangerous.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) The alley in question was not a public highway. It was closed on both ends and only accessible by crossing private property. The deceased was in consequence a trespasser and he must take the premises as he finds them. The excavation, if any, on the property of this appellant was therefore not on or abutting a public highway, and - this appellant owed the deceased no duty to protect him against such excavation.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. Defendant tendered the correct amount due under the contract and had a right to annex as a condition to such tender that plaintiff would cancel the obligation evidenced by the certificate, and plaintiff’s act in afterwards accepting the exact amount previsously tendered and acknowledging that defendant was only liable for such amount at any time precludes the recovery of interest. Engelbach v. Simpson, 12 Tex. Civ.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The evidence in this case shows that there was a mutual mistake. The plaintiff at the time of sale, according to his own testimony, “wouldn’t expect any person to pay for the beans if they were rotten when sold.” The defendant thought he was buying beans lit for human food, as, unless they were fit for human food, they were worthless for any purpose.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) Tlie court erred in permitting counsel for defendant to interrogate and prove by tbe plaintiff, over the objection of Ms counsel, that he had been indicted for arson. An indictment is not evidence of guilt, and such evidence was prejudicial to plaintiff.

Louis City Circuit Court. — lion. William M. Kinsey, Judge. (1) The charge of negligence is not refuted by evidence that the best of surgeons are sometimes negligent. Reeves v. Lutz, 179 Mo. App. 61; Samuels v. Willis, 133 Ky. 459; Davis v. Kerr (Pa.), 86 Atl. 1007. (2) (a) It is erroneous to give undue prominence to evidence by repetition of instructions.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) It was error to instruct the jury that it was admitted that Rosenbaum was an accommodation indorser and that the plaintiff was aware of that fact. It was a fact in issue under the.pleadings. The effort of the defendant to testify to it had been defeated on the plaintiff’s objection. And there was not only no such admission, but no evidence to that effect.

Louis County Circuit Court. — Eon. G. A. Wwdeman, Judge. (1) Unless by authority of statute, money voluntarily paid to discharge a tax cannot be recovered back because tbe tax was irregular or void. State ex - rel. Rice v. Powell, 44 Mo. 436; 4 Dillon on Municipal '■ Corporations (5 Ed.), secs. 1617-1619; Robins v. Latham, 134 Mo. 466.

<p>.1. MANDAMUS: Right to Writ. In order for mandamus tó be-available, it is essential that the. relator have a clear legal right to the thing demanded, and it must be. the imperative duty of the respondent to perform the act required.</p> <p>2.' MUNICIPAL CORPORATIONS: Employment and Compensation of Officers: Right to Dispense with Special Services. Where the salary of a city marshal was fixed by ordinance, the fact that his predecessors were .paid, and that, during a certain period, he was paid, additional compensation for acting as night watchman, pursuant to a resolution adopted by the board of aldermen; did not entitle him to receive such additional compensation after his services as night watchman were dispensed with by the board, since it was within .the power of the board to dispense with such services, after which he was entitled only to the salary fixed by ordinance.</p>

Louis City Circuit Court. — Hon. Le (1) Under the pronouncement of the Supreme Court of this State in the case of McManus v. Burrows, 246 Mo. 438, to the effect that execution number 94, December term, 1908, is in conformity with the judgment, unexceptionable and valid, the payment by appellant of all the. costs in said execution itemized as payable by him, on the 24th day of December, 1912, constituted a full and complete satisfaction of his judgment indebtedness; and…

Louis City Circuit Court. — lion. William T. Jones, Judge. George Stone was a competent witness at the second trial of this case as well as at the first trial. The transactions about which he was interrogated were had between him, either in his own behalf or as agent of Rosenberg, with the agent of the deceased Brown, who was still living and who testified at both trials.

Louis . City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) (a) A physician cannot be held for an honest error of judgment, a mistake in matters of doubt, or an uncertainty. Core v. Brockman, 138 Mo. App. 231; Hales v. Raines, 146 Mo. App. 232, 245. (b) Where a physician uses a recognized system of treatment he is not negligent. McClarin v. Crenzfelder, 147 Mo. App. 478, 488.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The standard of conduct required of an agent exercising discretionary powers in dealing with persons opposed in interest to his employer, is that he shall not voluntarily place himself in a position where he will he tempted not to do his best for the protection of the interests confided to him.

• Appeal from Jefferson Circuit Court. — Hon. E. M. D earing, Judge. (1) The court erred in overruling the demurrer to the evidence at the close of plaintiff’s case, and in refusing the peremptory instruction requested hy defendant at the close of the whole case. The petition charged specific acts of negligence, and plaintiff therefore cannot invoke the doctrine res ipsa loquitur. Mc-Grath v. Trans. Co., 197 Mo. 105; Orcutt v. Bldg.

— Eon. E. M. Bearing, Judge. (1) The court committed error in allowing defendant, J. H. Buford, to testify that he thought he had six years to cut and remove the timber from appellant’s land beginning at any time he desired. 21 Am. & Eng. Ency. of Law (2 Ed.), 1078 and 1113. (2) There can be no question but that the meaning of the removal clause in the deed of conveyance means that the timber must be removed within six years, and that from the date of the conveyance.

— Eon. Nai. M. Shelton, Judge. (1) The rule of construction of a will is that the whole will must be taken together and that construction given that was the intention of the testator. Sec. 583, R. S. 1909; Grace v. Perry, 197 Mo. 550; Peregnet v. Berthold, 188 Mo. 61. (2) The testator in the will in question, in the body thereof, set out and bequeathed for Leroy Asbury, five thousand dollars in money.

— Hon. James D. Barrett, Judge. (1) It is well settled that where a shipper sues two or more carriers under the provisions of Sec. 5446, R. S. 1909, he can only recover from the carrier through whose negligence the loss or damage occurred. Crockett v. Railroad, 147 Mo. App. 347; Wilburn v. Railroad, 148 Mo. App. 692.

— Hon. W. 8. C. Walker, Judge. (1) The verdict of the jury, in this case is against the' evidence, the weight of the evidence and is for the wrong party, and the cause ought to be reversed. There-was no evidence to go to the jury. State ex rel., Savings Trust Co.' v. Hallen, 165- Mo. App. 422; Dutcher v. Railroad, 241 Mo. 137.

— Hon. W. S. C. Walker, Judge. The court erred in dissolving the temporary writ of injunction and overruling plaintiff’s motion for new trial: (1) Because the Board of Aldermen of the city of Kennett had the express power to pass an ordinance establishing fire limits and regulating the kind and character of buildings to be erected within such limits in conformity with law. R. S. 1899, sec. 5958, Laws 1895, page 65; R. S. 1909, sec. 9372.

— Hon. B. H. Dyer, Judge. (1) There was no evidence tending to show that defendant or its agent had any notice or knowledge of the delivery of plaintiff’s hogs into its stock pens, and no liability of defendant attached with reference to them prior to the escape of the hogs alleged to have been lost! Merriam v. Railroad, 20 Conn. 354; Williams v. Peytavin, 4 Mart. (La.) 304; Grosvenor v. Railroad, 39 N. Y. 34; Blaehard v. Isaacs, 3 Barb.