Volume 192 — Missouri Appeal Reports

— Eon. W. S. C. Walker, Judge. (1) The court erred in overruling the demurrer to the evidence interposed by defendant at the close of plaintiff’s case, and in refusing defendant’s request for a peremptory instruction at the close of all the evidence. Ervin v. Railroad, 94 Mo. App. 2891; Portuchek v. Railroad, 101 Mo. App. 52; Shields v. Railroad, 87 Mo. App. 646; Wait v. Railroad, 165 Mo. 612; ITedrick v. Railroad, 195 Mo. 104; Guffey v. Railroad, 53 Mo.

— Hon. W. S. G. Walker, Judge. The third instruction offered by the plaintiff and given by the court is erroneous, because it authorizes a verdict for the plaintiff, on the mere finding that defendant uttered the words of and concerning the plaintiff, without regard to the fact as to whether'they were published, that is, spoken' in the presence of and heard and understood by others. There can be no slander without publication of the words.

<p>Appeal from St. Louis City Circuit Court. — Eon. Rhodes E. Cave, Judge.</p>

<p>1. JUDGMENTS: Revival: Proceedings Against Heirs of Decedent. Under Sec. 2137, R. S. 1909, a judgment creditor who wishes to maintain the lien of the judgment against real estate of the judgment debtor, who is dead, should institute revival proceedings against the heirs or devisees of decedent, the personal representative of decedent not being a proper party thereto; and such proceedings are not confined to the revival of judgments concerning real estate, in the sense that they are the result of an action affecting real estate or the title thereto, but the lien of any kind of judgment may be so revived.</p> <p>2. -: -: -. It does not affect a judgment creditor’s right to revive a judgment against the heirs of a deceased judgment debtor, under Sec. 2137, R. S. 1909, so as to maintain the lien of the judgment against real estate of such debtor, that such debtor owned no real estate except a homestead and that there would be no present right to the possession of the homestead if a sale thereof should take place under execution.</p>

— lion. W. 8. C. Walker, Judge. Section 3330, R. S. 1909, is highly penal and must be strictly construed, and applies only to such cases as come clearly within its provisions and manifest spirit and intent. The plaintiff must bring himself clearly within the provisions of the statute before ho can recover. Taylor v. Telegraph Co., 181 Mo. App. 294; Brockman v. Western Union, 180 Mo. App. 626; Nasep v. Western Union, 184 Mo. App. 141; Moore v. Western Union, 164 Mo.

<p>1. APPELLATE PACTICE: Bill of Exceptions. When that part of the record, called the record proper, to distinguish it from that part of the record made so b.y the timely and proper filing of a bill of exceptions, fails to show either that the motion for new trial was filed or that it Was overruled, there is nothing before the court to review except the record proper.</p> <p>2. -: -: Rules of Appellate Courts. Matters of exception cannot be reviewed in the appellate court unless they were preserved in a motion for a new trial, filed in proper time, and it is just as necessary now as it was before the adoption of rule 26 that the filing and overruling of the motion appear in the abstract of that part of the record called the record proper to distinguish it from the bill’ of exceptions.</p>

<p>1. NEGLIGENCE: Personal Injuries: Master and Servant: Scope of Employment. Plaintiff with other employees working under a boss around a rail bending machine was injured by one of his fellow servants throwing a rail against his knee. This fellow servant had been ordered to turn the rail end for end in order that it might be placed upon the machine. The servant in a fit of anger at the boss obeyed the latter’s order but threw ■ the rail with violence resulting in injury to plaintiff. Held, that the fellow servant in turning the rail around was acting within the scope of his employment and in the line of his duty although he may have intended that the rail should strike the boss. To make the master liable, the act must be done not only while the servant is employed in the master’s,business but it must be done in the course of that employment and be one that is in furtherance of the employer’s business. If the servant is doing the work for which he is employed,.the master is liable to a third person for an injury caused by either the manner or the mode of performance. If, however, the servant turns aside from his work for however short a time, to effect a .purpose of his own, the master will not be liable. The presence of ulterior motive or purpose in the servant’s mind does not affect the master’s liability where that which the servant does is in the line of his duty and in the prosecution of his master’s work.'</p> <p>2. -: -: -: -: Fellow Servants. Under sections 5434 and 5439, R. S. 1909, plaintiff and his fellow servant did not have to be actually engaged in running a car in order to come within the meaning of the statutory phrase “operating a railroad” but only that they should be engaged in doing any work for the railroad which was directly necessary for the operation thereof and in this case there is sufficient evidence to show that the rails were being bent for the purpose of repairing an existing track of a road then being operated and hence the bending should be construed as incidental to the operation of the road.</p>

<p>1. DAMAGES: Negligence: Personal Injuries: Federal Employer’s Liability Act: Interstate Commerce. To create a right of recovery under the Federal Employer’s Liability Act, the employer must be a common carrier by railroad, engaged in interstate commerce, and the injury to - the employee must have occurred when the particular service in which the employee is engaged is a part’of interstate commerce. In this case the employer was a common carrier by railroad engaged in interstate commerce. The road was nine miles in length lying wholly within the State of Missouri, but its western -terminus was but a short distance from the Kansas line. At this point it connected with three other roads coming from other States and hauling freight billed to this terminus but which in fact went on through to paints along defendant’s line in Missouri. Defendant’s duty was to take the shipments from this terminus to the consignees along its line, afford the latter switching facilities and then return the empty cars to the said terminus where they were again taken, by the road bringing them to defendant, and carried westward into Kansas to re-enter the stream of eastward commerce. Flaintiff- was injured while switching one of these empty cars, which had come in loaded from Kansas, preparatory to returning the car to its terminus where it would be taken, and in fact was so taken, to Kansas for use in the shipment .of wheat. Held that the movement of the empty ear by the defendant at the time plaintiff was hurt, was a completion of the circuit the car was making in the transportation of the country's commerce, and hence the Federal act applied, since the plaintiff was engaged in interstate commerce at the very time of his injury.</p> <p>2. -:-:-:-:-: — : Empty Cars. It is the nature of the service performed by the carrier and not the way goods are billed that determines whether the carriage is interstate or not. And the hauling of empty cars from one State to another is interstate commerce within the meaning of the act.</p> <p>3. -: -: -. Plaintiff, standing on the footboard of an electric switch engine, and approaching a car about to be coupled, saw that the couplers were not in alignment, thus allowing the drawheads to pass each other and subjecting plaintiff to the danger of being crushed. He gave the engineer a signal to stop in time for the latter to have done so had he observed and obeyed the signal. Seeing that the engine was not going to stop, plaintiff kicked the drawhead on the engine and. his foot was crushed. Held, that the negligence of the engineer in failing to stop was the cause of the injury, and that plaintiff was entitled to recover.</p> <p>4. PLEADING: Safety Appliance Act. Although the petition alleged that the couplers would not meet and referred to the “condition of the couplers” yet the petition further alleged that this arose because of the poorly ballasted roadbed which caused the engine to sway from side to side and allow the couplers to pass each other. There was no allegation of any defect inherent in the coupler. Hence the cause of action stated was not based upon the violation of the Safety Appliance Act but is based solely upon the engineer’s negligence in the operation of his engine. Held, also, that there was sufficient evidence of the engineer’s negligence to take the case to the jury.</p> <p>5. -: -: -: Contributory Negligence: Assump-. tion of Risk. Under the third section of the Employer’s Liability Act, contributory negligence is not a complete defense but operates only to reduce the damages. Under the Federal act in question there is a distinction between contributory negligence and assumption of risk. The former term involving the nature of some fault or breach of duty on the part of the employee and the failure to use such care for his safety as ordinarily prudent employees under similar circumstances would use; while assumption of risk may be free from any suggestion of fault or negligence on his part. In this case, therefore, plaintiff’s act in kicking the coupler constituted contributory negligence, if anything, rather than assumption of risk, and since it is only when the injury is due solely to tbe negligence of tbe employee that such fault on his part will preclude a recovery, and since plaintiffs act in kicking the coupler was not the sole cause of the injury, he should not be debarred from recovery on the ground of contributory negligence.</p>

<p>1. CONTRACTS: Silent Party. Where one party executes a Son-tract acting for himself and for another, the opposite party can, upon a breach thereof, sue both, even though the name of the other does not appear in said contract.</p> <p>2. AGENCY: Insanity of Principal: Termination of Agency. Where a principal has created another his agent coupled with an interest in the subject-matter of the agency, the after occurring insanity of the principal does not have the effect of terminating the agency.</p> <p>3. PRACTICE: New Trial: Discretion of Trial Court in Granting. Where, in a suit for damages for breach of a contract, the evidence showed substantial damages and the jury returned a verdict for only -nominal damages, the trial court was strictly within its rights when it set the verdict aside and granted a new trial. The trial court’s discretion to grant a new trial should not be interfered with by an appellate court unless that discretion has been clearly abused.</p> <p>4. -: -: -. If there is any substantial basis for the granting of a new trial it will be upheld. If, however, the case is such that no verdict in favor of the party to whom the new trial is granted could be allowed to stand, then the order granting a new trial will be reversed.</p> <p>5. EVIDENCE: Damages: Value of Business. Where the suit is for damages for the wrecking of an alleged prosperous business, evidence as to the real value and extent of that business offered by defendant to show that it was small and unprofitable at the time he took charge is admissible as bearing on the amount of damages plaintiff has sustained.</p>

<p>1. CONTRACTS: Breach of Promise to Marry. An action for a breach of promise of marriage is founded on contract and it will be presumed that a party to such a contract possessed legal capacity to enter into it, the burden of proving lack of such .capacity being on the opposing party.</p> <p>2. INSTRUCTIONS: Error. It is not error in an instruction to assume the truth of concedéd facts, and a court is not in e.rror to instruct the jury to give no effect to defendants’ offers of marriage if they believed they were “not made in good faith but to ayoid this suit.”</p> <p>3. -: Disregarded by Jury. A breach of promise of mar7 riage, as a breach of any other contract, gives an instant right of action and an offer of defendant to fulfill his promise made after suit is brought by the promisee should be disregarded by the jury as a defense or in mitigation of damages.</p>

<p>Appeal from Buchanan Circuit Court. — Ron. Win. R. Raynes, Judge.</p>

<p>Appeal from Clinton Circuit'Court. — Eon. A. D: Burnes, Judge.</p>

<p>1. DIVORCE: Adultery: Evidence. Evidence as to adultery examined and found sufficient to sustain a decree of divorce.</p> <p>2. ALIMONY: Acceptance of Part: Appeal: Estoppel. A party who accepts parts of the provisions of a judgment in his favor is estopped from appealing from such judgment. Such person .cannot separate the part favorable from that unfavorable. As in an action for divorce and alimony the wife cannot accept payments of instalments of alimony and at same time prosecute an appeal for a larger sum.</p> <p>3. --: -: -: Drafting Decree: Check. The fact that a wife’s attorney drafts the decree, including alimony in pencil for the court and clerk, does not show an acceptance of the -alimony so as to cut out her right of appeal. Nor will a check from the husband for an instalment of the alimony which is subsequently returned, have that effect.</p>

<p>Appeal from Jackson Circuit Court. — lion. Wm. 0. Thomas, Judge.</p>

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

<p>1. BILLS AND NOTES: Mortgages and Deeds of Trust: Primary Fund for Payment of Debt. Defendants excuted their note and secured it hy a mortgage on an undivided interest in land. Afterwards this land was partitioned and sold without making ,the holder of the note a party to the suit, and defendants obtained thé full value of their interest sold as unincumbered land. Plaintiff bought the note and took an assignment thereof hut in doing so had no connection with the purchaser of the land. Held, that the release of the mortgage did not release defendants on the note. The original mortgagee was not hound to look to the land for his debt nor was his assignee required to do so.</p> <p>2. -: -: Equity of Redemption. If the equity of redemption he sold on execution, the purchaser cannot either legally or equitably claim that the mortgagor shall pay off the mortgage, and, as between these two, the land remains a primary fund out of which the mortgage should he paid. But this is not true as to the mortgagee unless there has been some agreement on his part or something done hy him which hinds him to look to the land as a primary fund.</p>

<p>1. INDICTMENTS AND INFORMATIONS: Roads and Highways: Obstruction of Highways. The defendant was charged by information with obstructing a highway, and convicted. The defendant contended that the old fence marked the south boundary line of the land dedicated by his grantor, and that in the absence of public use of this strip of land, there was no dedication, and the boundary between the road and defendant’s land is still on the line of the old fence. Held, that the court did not err in finding the issues for the State.</p> <p>2. -: -: -. The principal object of judicial inquiry in the obstruction of roads and highways, after it is dedicated and the boundary line of such road or roads is in dispute, is to ascertain the intention of the dedicator with reference to the boundaries of his grant and such intention is to be ascertained from his acts in the light of their circumstances.</p>

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

<p>Appeal from Gentry Circuit Court. — Hon. D. D. Reeves, Special Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrje, Judge.</p>

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

<p>1. ACCIDENT INSURANCE: Thumb and Finger: “At the.Joint.” It was provided in an accident insurance policy that the insured should receive certain compensation for the loss of thumb and index finger of either hand, by severance at or above the joint connecting the thumb and' finger with the body of the hand. It was held that “joint” meant the point of apposition or contact between the ends of the.bones; and that an amputation through the bone, three-eights of an inch lower than such point, did not make a claim under the policy.</p> <p>2. -: -: Structures: Amputation. Where an accident insurance policy provides compensation for a severance of a thumb or finger “at the joint,” a severance of the structures holding together the bones and the bone on one side of the joint, is not a severance “at the joint.”</p> <p>3. CONTRACT: Interpretation: Court: Evidence. The interpretation or construction of a contract is for the court and should not be submitted' to the jury.</p>

<p>1. NEGLIGENCE: Railroads: Stockyards Gates. The plaintiff sued to recover damages against the defendant hy reason of a stockyards gate falling on him, whereby he was seriously and painfully injured. The gatepost was rotten and the top hinge was lose’ and when the plaintiff attempted to open the gate it fell on him. Held, that he was entitled to recover.</p> <p>2. -: -: -: invitee. Where a stockyards is maintained by a railroad company, for the benefit of its carrying business, one going there connected with such carrying business is an 'invitee and the railroad owes such person the duty to observe ordinary care to see that he is not injured.</p> <p>3. -: -: Res Adjudicata. When one dismisses a case before there is an adjudication on the merits, he is not precluded from filing another suit and obtaining an adjudication on the merits in his favor, because where a plaintiff suffers a voluntary nonsuit which was, in effect a dismissal of his case, there is not res adjudcata as. to the merits.</p> <p>4. -: -,-: -: Duty to Use Care. Although it is negligence for a railroad company to keep the gate of a stock pen in reasonably safe repair, it is not actionable negligence unless the company owes to the particular person injured thereby the duty to keep its stock pen and premises reasonably safe.</p>

<p>CARRIERS OF GOODS: Contracts Annulled by Law making Performance Illegal. Defendant Express Company refused to receive C. O. D. shipments of intoxicating liquor on the ground that it was no part of its common-law duty to collect and remit the purchase price of the goods. Plaintiff obtained a temporary injunction from the United States Circuit Court compelling the Express Company to receive such shipments “until the further order of the court.” In obedience thereto defendant received certain C. O. D. shipments of liquor from plaintiff and agreed to carry them, without being liable for the restraints of government. The goods were carried without delay, but before they could be delivered, the state put into effect a law making delivery impossible and unlawful. The day this law went into effect the United States Court annulled its order and afterwards dismissed the plaintiff’s bill. Held, that the passage of the law excused the carrier from performing the delivery feature of its contract. Held, also, that the statute did not encroach upon the power of the United States Court, nor did plaintiffs obtain any vested right to have delivery made on C. 0. D. terms, by virtue of the contract made under said order. Hence, defendant is not liable for failure to deliver said liquor on C. 0. D. terms.</p>

<p>1. FOREIGN JUDGMENTS: Jurisdiction of the Person: Res Adjudicata: Collateral Attack. In a suit by a wife against her husband for separate maintenance, the latter pleaded res adjudicata based upon a judgment of divorce rendered in his favor by an Arizona court prior to the bringing of plaintiff’s suit. The Arizona decree was upon constructive service. The record of that court showed upon its face that publication was not made in accordance with the Arizona laws governing service by publication, and was not notice to the defendant therein. Hence, the Arizona court obtained no jurisdiction over the person of the defendant in the divorce suit (who is plaintiff here), and, therefore, said decree could be collaterally attacked, was not res adjudicata, and was no bar t'o plaintiff’s suit.</p> <p>2. -: -: -: Recitation of Due Service in Decree. A recitation in a foreign judgment that due and legal service has been made upon defendant makes out a prima-facie case of proper service where only the decree itself is offered in evidence. But where *the entire record of the case is introduced and the other parts of said record, of equal dignity and importing equal verity, show that the record of due service in the decree is untrue, then the recital in the decree is overthrown.</p> <p>3. PROCEDURE: Summons by Publication: Error in Name of Parties: Idem Sonans. Service, in the case at bar, was had by publication against defendant as-a non-resident. The order of publication as published gave plaintiff’s first name as “Stella” and defendant’s first name as “Alford” when their true names were “Estella” and “Alfred” respectively. Held, that as to the defendant, the one to be served, “Alford” is idem sonans with “Alfred.” The law does not regard the spelling of names so much as their sound. By the doctrine of idem sonans, if two names, though spelled differently, sound alike they are to be regarded as the same. If the attentive ear finds difficulty in distinguishing the two names when pronounced they are idem sonans.</p> <p>4. -: -: -: Want of Jurisdiction Over Person on Account of: Waiver by Appearing and Obeying Order of Court. Without regard to the doctrine of idem sonans, the defendant waived the question of jurisdiction over his person by submitting to, and paying, the court’s judgment for alimony pendente lite.</p> <p>5. JUDGMENTS FOR ALIMONY PENDENTE LITE. A judgment for alimony pendente lite is a final judgment from which an appeal will lie.</p>

<p>1. CARRIERS OF LIVE STOCK: Interstate Commerce: Intention. An owner of several horses and mules shipped them over a railroad from Glasgow, Missouri, to Kansas City, Missouri, receiving a written contract from the carrier to transport them to the latter place. On the next day after their arrival at Kansas City he had 1/hem transported by another railroad to Horatio, Arkansas, free of charge. The shipper had in mind when he shipped from Glasgow that the animals were to be ultimately taken to Arkansas, but his intention was to get them to Kansas City where he would find free transportation to Arkansas. It was held that the shipment was intrastate and not interstate commerce.</p> <p>2. --; Notice of Loss: Waiver. A carrier may waive written claim for damages, by accepting verbal claim and entering upon an investigation of the loss.</p> <p>3. -: Maximum Liability: Consideration: Reduced Rate. There may be a valid contract limiting the maximum liability for animals injured or lost in shipment; but it must be on a valid consideration such as a reduced. rate. And if the rate charged is in excess of the legal rate it is not a reduced rate.</p> <p>4. -: Live Stock: Propensity of Animals: Burden of Proof. When the shipment is of live stock, accompanied by the shipper, which arrives at destination the burden is on him to show that the injury was not self inflicted by the propensities of the animals. But this may be shown by circumstantial evidence. Instructions examined and error therein held harmless.</p>

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

<p>1. SPECIAL TAX BILLS: Indefiniteness of Area of Land Described In Tax Bill. The plaintiff sued to enforce the lien of a special tax hill. The defendant attacked the validity of such tax bill on the ground of indefiniteness in the description of the land against which the bill was issued. Held,, that the description -of the land in the tax bill is not subject to the criticism of being indefinite and uncertain.</p> <p>2. -: -: City Charter. The question of the location of the boundary line found by the Board of Public Works as shown by the area apportioned to a tract in a tax bill is immaterial to the issue, when a suit is brought on such tax bills. Under the provisions of section 18, article IX of the Charter of Kansas City, defendants might have pleaded and proved such error in description, if it existed, in reduction of the amount of the tax bills, but not to defeat that part of the assessment based upon the true area of that tract.</p>

<p>PUNITIVE DAMAGES: Verdict: Jury: Court. In an action for damages for insulting and wrongfully ejecting a passenger from a train who had tendered proper fare, the jury returned a verdict for punitive damages in the sum of $500. The trial court suggested a remittitur of $400 which the plaintiff: refused to enter and in consequence a new trial was granted. It was Held that in such cases punitive damages and the amount are within the exclusive province of the jury and the court has no authority to disturb the verdict except the amount is so flagrantly outrageous as to force the .conviction that the jury had abdicated its function, and become partizan or corrupt.</p>

<p>Appeal from Jackson Circuit Court. — IIon. Harris Robinson, Judge.</p>

<p>1. ALIENATION OF AFFECTIONS: Damages. The plaintiff sued to recover damages for the alienation of the affections of her husband by the defendant, his foster father, and obtained a verdict for $3000 actual and $1500 exemplary damages. The plaintiff afterwards remitted $2000 and defendant appealed. Held, there is no prejudicial error in the record and the judgment is affirmed.</p> <p>2. INSTRUCTIONS: Reference to Petition for Essential Facts. An instruction in suit for alienation of affection which states “The law gives her a right of-action against any person who wilfully and maliciously entices, persuades, induces or influences her husband to separate or remain apart from her. Therefore, if you shall believe from the evidence that the-defendant, Frank P. McKay, wilfully and maliciously so conducted himself, as alleged in plaintiff’s petition with the purpose and intent to cause the separation of the plaintiff’s husband from her, and that he did thereby accomplish such purpose and intent, then your verdict shall be in favor of the plaintiff” is not open to the objection, that the jury must refer to the petition for essential facts upon which the right to recovery is predicated.</p> <p>3. EVIDENCE: Refusal to Permit the Husband to Testify. Under Sections 6354 and 6359, Revised Statutes 1909, a husband is not competent to testify for or against his spouse in the latter’s suit for alienation of affections, because these sections do not go far enough to abrogate the common law rule disqualifying the husband or wife from testifying against each other.</p>

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

<p>Appeal from Henry Circuit Court. — Ron. G. A. Calvird, Judge.</p>

<p>1. PARTITION: Attorneys’ Fee: Agreement. In a suit in partition an attorney’s fee may be allowed by the court though there was no agreement for a fee, or that the court might fix upon an amount for a fee.</p> <p>2. -: -: Share: Contest: Interest. An attorney for the plaintiff in a partition suit cannot be allowed any part of his fee out of the share of a party whose interests such attorney contests.</p> <p>3. -: -: Lienor Defendant: Fee: Apportionment. Where one of the defendants in a suit in partition has advanced money in the payment of a mortgage and taxes against the estate and seeks, by his answer, to fasten a lien on the estate for such advancements, and the attorney bringing the suit contests the. lien, for the other parties in interest (plaintiffs and defendants) the court should not include any of such labor in fixing the part of the attorneys’ fee against the lienor. But such labor should be considered in ascertaining the amount of the fee to be assessed against the other parties.</p> <p>4. -: -: -: Sale: Adjustment of Fee. A defendant in a partition suit claimed a lien against the estate for money advanced to pay a mortgage, taxes and necessary repairs. The other parties, to the suit contested the lien and the court allowed it. The land could not be divided and it was ordered to be sold. The defendant lienor, bought it at the sale. It was held that he should pay as part of the costs, the parts of the attorneys’ fee due from the shares of the other parties whose interests he purchased.</p> <p>5. -: Conflicting Interests: Attorney. An attorney cannot represent the party plaintiff in bringing a suit in partition and at the same time represent defendants, if the parties are contesting and are claiming antagonistic interests.</p>

<p>1. DAMAGES: Railroads: Approaching Track: Contributory Negligence. Plaintiff was working near a switch, track lead-ind from defendant’s depot yards to its roundhouse. Needing a bar of iron he saw a piece of gas pipe lying west of him and about two and one-half feet from the rail. Without looking to the east to see if a train was coming behind him from the east he started west'to the gas pipe keeping close to a path four feet from the track. He stooped and picked up the gas pipe and as he arose and turned to face east was struck by the end of the pilot beam of defendant’s engine. He did not look behind him after he started. Held, that since he admits he approached dangerously near to a railroad track without looking for a train, he must be held guilty of contributory negligence as matter of law. And for this reason plaintiff cannot recover upon the ground that the defendant exceeded the speed limit established by city ordinance at that place.</p> <p>2. --:-:-:-- — . The fact that the track was a switch track makes no difference. It was a track in use and was in itself a signal of danger. There was, therefore, as much necessity for looking when approaching this track as any other.</p> <p>3. -: -: -: -: Cause of Injury: Jury Question. Possibly plaintiff could not be held to be guilty oí contributory negligence, as a matter of law, if, at the time he started west, the train was so far away that it could not have been seen, or was so far distant that any reasonably prudent man would know he had plenty of time to get the pipe before the train could arrive, traveling at a lawful rate of speed. If the train was that far away but was going at such excessive and unlawful speed as to enable it to travel that great distance and strike plaintiff in such an unreasonably and unexpectedly short time, then perhaps it would be solely the speed that caused the injury and not plaintiff’s failure to look. In that case, the question whether his failure to look contributed to his injury would be for the jury to determine. But in this ease the speed of the train was not so great as to give rise to an inference that the engine was so far away as that, or that the engine could not have been seen by plaintiff had he looked.</p> <p>4. -: -: -: -: Humanitarian Rule. But plaintiff’s contributory negligence will not defeat his recovery if, after he is seen to be in danger, the persons in charge of the train had time, either to warn him so that he could have escaped, or to prevent the collision themselves by slowing, up or stopping the engine, and failed to do so. In such case there would be a violation of the humanitarian rule against which plaintiff’s contributory negligence constitutes no defense.</p> <p>5 -; Seeing One In Danger When to Look Is to See. A man was on the pilot of the engine whose duty it was to look for danger. He swore he was looking west (in plaintiff’s direction). The ground was level, the view unobstructed for over one hundred yards before plaintiff was reached. Under these conditions to look was to see, and, therefore, the jury were entitled to disregard his statement that he did not see plaintiff in time to warn him.</p> <p>6. -: -: Place of Safety. Plaintiff, in walking west alongside the track was within a few inches of the line of danger. He gave no intimation that he knew the engine was coming. A slight step, a swaying of the body, or a swaying of the engine would bring him within striking distance of the pilot beam. In such circumstances plaintiff cannot be said to be in a place of safety so as to clearly and conclusively excuse the man on the pilot from warning him. If a reasonably prudent man, exercising ordinary care, would have warned him and could have done so in time, then the man on the pilot was negligent in failing to do so, and defendant would be liable under the humanitarian rule.</p> <p>7. --: -: -: Duty to Warn. The duty to warn did not lie dormant until the man on the pilot actually knew plaintiff was within reach of the pilot beam. That duty arose as soon as he had sufficient notice to put a reasonably prudent man on the alert. He must then take such precautions as such a man would take under similar circumstances.</p> <p>8. -: Instructions. Where there are two grounds of negligence alleged in the petition, upon one of which plaintiff is not, entitled to recover, it is error to submit the case upon instructions which authorize the jury to find for plaintiff upon either ground where there is a general verdict returned.</p>

<p>1. CONTRACTS: Railroads: Relief Benefit. A railroad company cannot make a valid contract with its employee against its own negligence, and that in whatsoever guise it may appear, or howsoever cunningly designed or phrased, such contract will be denounced and rejected by the courts as opposed to the dictates of common morality and humanity.</p> <p>2. -: -: -. A relief benefit contract accepted by railroad employees, wherein the contract seeks to provide in advance for the release of tho defendant from the legal consequences of its future wrongs is nonenforceable, regardless of whether or not it has the support of a consideration moving from the railroad company to the employees.</p> <p>3. -:--: -. When an employee of a railroad contributes his dues to the Benefit fund, established by a road, the law looks with extreme disfavor upon forfeitures designed to destroy his rights bought and paid for, and will not enforce them unless compelled by the plain letter of the contract.</p>

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

<p>Appeal from Buchanan Circuit Court. — Thos. B. Allen, Judge.</p>

<p>1. ACCIDENT INSURANCE: Construction of Policy: Death from Bodily Injuries Caused Solely, Directly and independently of all Other Causes by Accidental Means. The language of a policy construed and held not to create a limited liability for the accidental death of insured. That is to say, the policy does not mean that even though insured suffered an accidental fall which brought on or caused a disease which in turn resulted in his death, the defendant is not liable.</p> <p>2. -:--: -: Accidental Fall: Evidence. The evidence in a case is reviewed and held to be sufficient to authorize the submission of the question of an accidental fall to the jury.</p> <p>3. -: Evidence: Declaration: Res Gestae. Insured, a large man weighing 200 pounds, in apparent good health and normal in manner, conduct and appearance, arose from his bed about three a. m. and went to the bath room thirty feet away. The instant he reached there his wife heard a fall and groan. She rushed to the bath room and finding her husband on the floor bleeding profusely from a cut on his head, exclaimed “What’s the matter” and the husband replied “I slipped and fell.” Held, admissible as a part of the res gestae and not the mere narration of a past transaction.</p> <p>4. -:--: -: Confidential'Communications Between Husband and Wife. Since the statement “I slipped and fell” was a part of the res gestae, it cannot be considered as a confidential communication from husband to wife. Nor can such objection to its admissibility be made for the first time in the appellate court. If that ground of objection was not made in the trial court, it will not be available on appeal.</p> <p>5 -; Accidental Death: Jury Question: Sufficiency of Evidence. Evidence of case analyzed and held sufficient to make a case for the jury on question of accidental fall resulting in death.</p> <p>6. -:--: -: -. Where plaintiff -has made a prima-facie case and whether that prima facie case has been overthrown depends upon the weight to be given the oral testimony of defendant’s witnesses, the case is one for the determination of the jury, since it is their province to say' which .witnesses shall be believed.</p> <p>7. -: -:--:--: Contrary to Natural Law. If witnesses testify to matters directly contrary to well known and clearly established laws of nature a court may, as matter of law, disregard such testimony as unworthy of belief. But that can have no application in a case where the defense rests upon highly scientific theories which have not yet met the full approval of all scientific men.</p>

<p>1. STATUTE OF LIMITATIONS: Removal from State: Return. Where a debtor executed his note and in a few days afterwards, before it became due, removed from the State, but returned on a visit more than ten years after it became due and was sued, it was held, to be barred by the Statute of Limitations.</p> <p>2. -: Accrual of Cause of Action. A cause of action on a note has not accrued for the purposes of applying the Statute of Limitations, until it becomes due.</p> <p>3. -: Attachment for Debt and Due. The statutory tight to attach property on a debt not due, does not affect the running of the Statute of Limitations.</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS: Consolidated Schools and Rural High Schools: Notice: Requirements of Statute. Sec. 3, p. 722, Laws 1913, requires the school superintendent to post certain notices when a consolidation of school districts is contemplated also certain plats of the proposed consolidated district. It is not necessary that the superintendent shall personally post such notices and plats. It is sufficient if they are posted by another acting at the instance and under the direction of the superintendent.</p> <p>2. -: -: Requirements of Statute. Where a consolidation of certain school districts is proposed, under Laws 1913, sec. 3, p. 722, the county superintendent shall file with the county clerk a copy of the petition and of the plat of the proposed district. This requirement is directory and not mandatory and though such copies were not filed before the election to determine whether such district should be formed, such election was not thereby rendered invalid.</p>

<p>1. SETTLEMENT BY COMPROMISE: Elements Essential to Bar Original Cause: Accord,and Satisfaction. Plaintiff and defendant entered into an agreement to settle differences caused by defendant having broken his promise to marry plaintiff. Part .of the agreed sum was paid. Eater plaintiff returned the amount paid, repudiated the agreement and refused to accept the balance. The agreement did not bar the original cause of action because both accord and satisfaction must enter into such agreement to render it such a bar.</p> <p>2. ACCORD AND SATISFACTION: Executed and Executory Agreements. In order that there be satisfaction of an accord, the agreement must be executed. A mere executory accord is insufficient to sustain a plea in bar to the original cause of action. The rule is not affected by a part performance.</p> <p>3. MARRIAGE CONTRACTS: Breach of: Mutual Promises: When Promise Implied. Marriage contracts, like others, must contain promises by both parties. However it is not necessary to establish the contract by an express promise. Promise may be implied from acceptance of promise of the other party.</p> <p>4. -: -: Promise: Request to Fulfill. In an action for a breach of a marriage promise testimony reviewed and held that there was some evidence of a request of defendant to fulfill his promise.</p> <p>5. -: Consideration Immoral: Courts Will Not Enforce. Where a promise to marry is bartered for the act of yielding to illicit sexual intercourse the courts will not enforce the contract because it would be against public policy to do so.</p> <p>6. -: -: When Not. Where the sexual intercourse is not the consideration for the promise of marriage, though the woman did yield to sexual intercourse with the man in reliance on his promise to marry her, the contract is not immoral.</p> <p>7. -: Breach: Immoral Consideration. In an action for breach of promise of marriage, even though sexual intercourse may have been the original consideration for the promise, yet if there was afterwards another promise independent of the intercourse, the plaintiff may recover for defendant’s breach.</p> <p>8. SEDUCTION: When Action Will Not Lie: Promise of Marriage as a Consideration. Damages for seduction cannot be recovered where sexual intercourse was indulged in under an agreement that if plaintiff would yield, defendant would marry her, though, subsequently, there was an agreement to marry independent of such intercourse.</p> <p>9. MARRIAGE PROMISES: Breach: Evidence: Reviewal. Action for breach of promise of marriage, the defendant contending that sexual intercourse was the sole consideration for the promise, hence the same was immoral and not binding. Evidence reviewed and considered sufficient to justify submission of the issue as to subsequent recognition of the contract by defendant.</p> <p>10. APPELLATE PRACTICE: Reviewing Evidence: Inferences. Where defendant in an action for breach of marriage contract did not testify or deny in any way plaintiff’s evidence, the plaintiff is entitled to every reasonable inference deducible from her evidence to support the verdict.</p> <p>11. INSTRUCTIONS: Harmless Error: Breach of Marriage Promise: Damages. An instruction as to damages for breach of promise to marry examined and considered harmless, even if erroneous, in view of the evidence.</p> <p>12. MARRIAGE PROMISES: Breach of: Damages: Financial Standing of Parties. Action for breach of promise of marriage. Testimony as to the pecuniary standing of the parties is admissible.</p>

<p>1. APPEAL AND ERROR: Appeal Bond: Condition Breached: Surety’s Liability. An appeal bond, following the language of Sec. 2042, Revised Statute 1909, with a condition that the appeal shall be prosecuted with due diligence, is breached by allowing the appeal to be dismissed for failure to prosecute and the surety thereon is thus rendered liable.</p> <p>2. -: -: Purpose of Bond. The whole purpose of an appeal bond is to stay the judgment creditor’s execution until the cause can be passed on and disposed of by the appellate court, and in consideration of such stay the bondsmen agree to pay the entire judgment and costs unless on appeal some relief or modification of the judgment appealed from is obtained.</p>

<p>Appeal from Butler County Circuit Court. — Hon. John A. Gloriod, Special Judge.</p>

<p>Appeal from Webster County Circuit Court. — Hon. G. H. SMnker, Judge.</p>

<p>.Appeal from Crawford County Circuit Court. — Eon. L. B. Woodside, Judge.</p>

<p>Appeal from Butler County Circuit Court. — Hon. J. ■ " P. Foard, Judge.</p>

<p>I. COMMON CARRIERS: Duty to Furnish Cars for Shipping: Statutory Liability for Failure: Common-Law Liability. Action by prospective shippers against defendant railroad because of failure to furnish ears for shipping, plaintiff’s having made verbal demand for same. Although Written notice was not given as required by section! 3108, Revised Statutes 1909, as a condition precedent to recovering the statutory penalty thereunder, yet recovery may be had for breach of the road’s common-law duty to furnish cars, since section 3116, Revised Statutes 1909, keeps alive such common-law right of action and there is no conflict between the provisions of section 3108 and the common law.</p> <p>2. STATUTES: When Effect Repeal of Common Law. Statutes that repeal former statutes or the common law must do so either in express terms or by necessary implication.</p> <p>3. ACTION: Common Law: Statutory: Concurrent Actions. Where an affirmative remedy is given by statute for a matter which was actionable at common law, no express or implied negative being contained therein, action may be brought at common law as well as under the statute.</p> <p>4. CARRIERS: Failure to Furnish Cars for Shipping: Remedy of Shipper. Section 3108, Revised Statutes 1909, neither supersedes nor abrogates the common-law right of action against a common carrier for failure to furnish cars within a reasonable time upon verbal notice.</p>

<p>Appeal from Phelps Circuit Court. — Hon L. B. Wood-side, Judge.</p>

<p>1. APPEAL AND ERROR: Bill of Exceptions: Filing. Where ninety days was allowed by the trial court for filing a bill of exceptions on appeal from a conviction, in the absence of an extension of such period, the bill filed after such time must be disregarded, unless filed according to the amendment of section 2029, Revised Statutes, 1909, by Laws 1911, page 139.</p> <p>2. -: -: -. Under the provisions added to section 2029, Revised Statutes 1909, by Laws 1911, page 139, bills of exceptions may be filed regardless of any extension of time therefor at any time before the appellant is required by the rules of the appellate court to serve abstracts of the record, and this 'applies to criminal eases except that in such cases a full transcript must be filed in the appellate court and no abstracts are required.</p> <p>3. -: -: Order Extending Time: Return- Term of Appeal in -Criminal Cases. In criminal cases, since full transcripts are required to be filed in the appellate court the return term of the appeal is determined by the expiration of any orders or stipulations extending the time for filing bill of exceptions.</p> <p>4. -: -: When Filed in Criminal Cases. In criminal cases where full transcript must be filed in the appellate court the bill of exceptions, when filed under section 2029, Revised Statutes 1909, as amended by Laws 1911, page 139, must be filed in time to have the case heard in the appellate court at the return term as determined by the expiration of the court orders or stipulations, if any, extending the time for filing the bill of exceptions.</p> <p>5. -: Record: Time for Filing. An appeal from a conviction was granted July 13, 1914, at which time appellant was given ninety days within which to file his bill of exceptions. The bill of exceptions was not filed until April 28, 1915, too late for the March term of the appellate court, which was the return term. Held, that the bill of exceptions was not part of the record, not being filed in time. [Citing R. S. 1909, sections 5308, 5309, 5312, 5345 and 2029, as amended by Laws 1911, p. 139; also Springfield Court of Appeals Rule No. 16.]</p>

<p>,1. JUDGMENT: How Evidenced: Record: Minutes. What is the judgment of a court is evidenced by the written record of the same and not by the judge’s minutes thereof. No part of the judgment as entered is subject to collateral attack because not supported by or mentioned in the judge’s minutes.</p> <p>2. -: Record: Minutes: Res Judicata: What Not. In a suit to determine title to property the minutes of the trial judge entered by him on his docket, recited: “Trial by court: Judgment for plaintiff subject to easement of public.” The judgment as entered by the clerk was: “For the plaintiff subject to an easement in the public as well as all the defendants, to use the land as an alley.” The minutes did not invalidate the record judgment or make it res judicata in a later suit between the same parties.</p> <p>3. -: Correctness of: Evidence. When a part of a judgment as entered is assailed by a motion for new trial or in arrest, which the court overrules, it is conclusively shown that such part is a part of the court’s judgment, though not mentioned in the judge’s minutes.</p> <p>i. APPEAL AND ERROR: New Trial: Newly Discovered Evidence. A new trial should not be granted on the ground o£ newly discovered evidence when such evidence is not competent or sufficient to overturn or change the judgment entered.</p> <p>5. -: Granting New Trial: When Upheld. Though a trial court may have been wrong in granting a new trial on the ground assigned by it, yet such action may be upheld on any ground contained in the motion if found to be valid.</p> <p>6. JUDGMENT: Res Judicata: What Included. To be res judicata the matter adjudicated must be within the scope of the issues made by the pleadings.</p> <p>7. -: When Subject to Collateral Attack. That a judgment or any part of it may be void and subject to collateral attack as not being supported by the pleadings, the matter adjudicated must be such as is beyond the scope and purport of the pleadings.</p> <p>8. --: When Pleadings Support. In a suit to determine title to land under section 2535, Revised Statutes 1909, judgment that defendants had an easement or a right of way over the land is authorized by the general scope of the pleadings and conclusive in a subsequent suit between the same parties.</p> <p>9. APPEAL AND ERROR: Motion for New Trial Granted: Effect of Reversal on Motion in Arrest. Where a motion for new trial and one in arrest of judgment are filed and the court grants the motion for new trial which is reversed on appeal, this leaves the motion in arrest to be acted on by the trial court.</p>

<p>Appeal from Jackson. Circuit Court. — Hon. W. 0. Thomas, Judge.</p>

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

<p>Appeal from Jackson Circuit Court. — Eon. L. T. Dry den, Special Judge.</p>

<p>Appeal from Yeruou Circuit Court. — Ron. B. 0. Thurmond, Judge.</p>

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

<p>1. ATTACHMENTS: Affidavit: Amendment: Jurisdiction. An affidavit is an indispensable prerequisite to the issuance of a valid attachment writ. In an attachment suit the court obtains jurisdiction over the res, the property attached, only by the levy thereon of a writ properly issued. If the affidavit filed is indeed an affidavit but is merely insufficient in some one or more features thereof, the statute provides that it can be amended. But where a writ of attachment is issued and levied without an affidavit, or (which is the same thing), upon a paper purporting to be an affidavit but which, in fact, is not, the writ is void and cannot be galvanized into life by the filing of an affidavit attempting, to amend an affidavit which never existed. And the levying of such-a writ cannot confer jurisdiction over the res.</p> <p>2. -: -: -: -: Appearance of Defendant. Nor does the appearance of the attachment defendant confer jurisdiction over the property seized. Such appearance would give juridiction over the person of the defendant hut this would have no effect in giving validity to the attachment part of the suit.</p> <p>3. -: -. Plaintiff brought suit on two promissory notes and filed a bond in attachment but no affidavit. A writ was issued which was one of summons and also of attachment. No levy was made of this -writ however. Three days later plaintiff filed an affidavit for attachment and the court ordered the attachment writ to issue. Levy was made upon the property under the second writ, and a garnishee summoned. The attachment defendant appeared and answered to the merits and also , filed a plea in abatement. Held, that the court acquired jurisdiction to render a personal judgment against the defendant by reason of his having appeared and answered to the merits; and that it obtained jurisdiction over the res, the property attached, by virtue of the levy made under the second writ.' The jurisdiction over the res did not depend in any way on the first writ. Neither was the second writ issued upon an affidavit amendatory of any former step attempted to be made.</p> <p>4. -: -: Filing Affidavit in Suit Commenced by Summons. When the petition was filed and the writ of summons was issued a suit “commenced by summons” was pending, and the plaintiff had a right to file an affidavit in attachment and, upon taking all the steps necessary to complete its right to attachment, was entitled to have the writ of attachment issue.</p> <p>5. -: -: -: Approval of Bond. The court, in ordering the attachment writ to issue, thereby impliedly approved the bond although the record discloses no formal entry of an order approving the bond.</p> <p>6. -: -: -: -: After Judgment. It is too late after judgment on a plea in abatement to raise the objection that the bond was not approved.</p>

<p>Appeal from Jackson Circuit Court.- — Hon. Harris Robinson, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Ron. Thos. B. Allen, Judge.</p>

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

<p>1. BAWDYHOUSE: Court of Equity: Jurisdiction. A court of equity has no jurisdiction to abate a bawdyhouse as being a nuisance; the criminal law, with trial by jury, is the proper tribunal for the correction of that evil.</p> <p>2. -: Decree in Injunction: Consent: Contempt: Jurisdiction. The fact that a woman appears to a bill to obtain an injunction against her for keeping a bawdyhouse and consents to a decree, will not prevent her raising the question of jurisdiction when she is cited for contempt in disobeying the decree.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. W. 0. Thomas, Judge.</p>

<p>1. EQUITY: Subjecting Wife’s Land to Debt of Insolvent Husband: Courtesy. A. wife’s creditor sought to subject ber land to ber husband’s debt on the ground that, while he was insolvent, be had used his money to make permanent and valuable improvements upon her land. The land was subject to a deed of trust given for the wife’s debt and which the husband had signed. The husband used his money in finish-, ing a business house on the wife’s lot after her death. Held that as the husband had a courtesy in his deceased wife’s land, he had a right to use his money to protect his courtesy from foreclosure of the deed of trust, and the use thereof was not fraudulent.</p> <p>2. -: -. Where an insolvent husband uses his own funds to improve his wife’s land, the value of such improvements may be reached by appropriate chancery proceedings on the part of his creditors who are defrauded thereby.</p> <p>3. -: -: -. Where a widower releases or gives away his courtesy estate, which has become complete by the death of his wife, to his children or to her devisees, he being insolvent, such relief or gift being in fraud of creditors, can be set aside and his courtesy interest subjected to the payment of such creditors.</p> <p>4. -: -: -. An insolvent husband has no right, as against his creditors, to give away the income arising from his courtesy in his wife’s real estate in paying therewith the general debts of his wife’s estate. But where the creditor could have secured a judgment against the husband and levied an execution at any time upon the husband’s courtesy and . collected the debt, but failed to do so, and waited for several years until the husband was dead and the evidence concerning the transaction had grown dim and uncertain, then in such case relief will be denied the creditor on the ground that the creditor had an adequate remedy at law, and in fulfillment of the maxim that equity aids the diligent and not those who slumber upon their rights.</p> <p>5. -: -:-: Insolvency. In a case where a creditor of an insolvent husband seeks to subject the debtor’s wife’s land to the payment of the husband’s debt on the ground that the latter has used his own funds to make permanent improvements -on his wife’s land, the creditors must show that the husband was insolvent at the time such funds were used. Proof that the husband- was insolvent at the time of his death, several years later, is not sufficient.</p>

<p>1. JUDGMENTS: Motion to Set Aside: irregularity. The defendants appealed from a final order of the circuit court overruling a motion to set aside a judgment rendered against them about two years before. The principal irregularities urged by' defendants, are the failure of the record to show what attorneys were present at the alleged election of the special judge, who tried the cause; that as many as five were present, and that the attorney assumed to have been elected was there in attendance upon the court. Held, that the proceedings were according to law and that the. requisite number of attorneys were in attendance, as was also the successful candidate. *</p> <p>2. -: Election of Special Judges. When the regular judge is disqualified or unable to hold any term or part of a term of court and fails to procure another judge to hold court in his stead, the attorneys of the court who are present and not less than five in number may elect one of its members then in attendance having the qualifications of a circuit judge to hold the election.</p> <p>3. -: -: Presumption. The presumption may well be indulged that the intelligent members of the bar will not elect any person who is disqualified to adjudicate their causes, and if there was the slightest reason why he should not act, some one of the numerous counsel herein would have discovered it.</p>

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

<p>1. AGENCY: Money Paid under Mistake. Defendant bank, acting as a collecting agent for another bank, collected from 1 • plaintiff the amount due on two interest coupons, the latter supposing they were a part of a deed of trust on land he had bought subject thereto. It turned out afterwards that the coupons were not the ones plaintiff was interested in paying, '1 but at the time they were paid, the bank had no means of knowing they were not, though the plaintiff did. Before the mistake was discovered the defendant bank had remitted the collection in good faith and without notice. In a suit to recover the money paid by mistake the plaintiff obtained judgment: Held that the court properly granted a new trial.</p> <p>2; -: — : -: Mistake of One Party. If, in the circumstances > stated, the mistake had been mutual, then the fact that -the .defendant bank had, in good faith and without malice, paid over the money to its principal, would constitute no defense to a suit by plaintiff to recover it and this would be true regardless of plaintiff’s lack of care in failing to see- that i,they were not the coupons he desired to pay. But the mistake of one party to a contract will not entitle him to relief, in an action at law, unless it appears that his mistake was ' induced by the fraud, or misconduct amounting to fraud, on the part of the one who did not make the mistake.</p> <p>3. ——1—: -: -: Mistake of Principal not Imparted to . Agent where Agency is Known to Opposite Party. If the mistake of defendant’s principal is to be imputed to defendant so as to make the mistake mutual it can only do so in the event that the fact of agency was not disclosed to the plaintiff, but since there was evidence in the case tending to show that the defendant! bank was known to be acting as agent, the appellate court cannot say the trial court was wrong in granting a new trial.</p>

<p>1. DAMAGES: Railroad: Interstate Shipments. The plaintiff sued to recover damages from defendants for a breach of contract in transporting a carload of horses from Unionville, Missouri, to East St. Louis, Illinois. The Burlington Company was the initial carrier and delivered the horses in good order to the defendant Wabash Company, which completed the transportation. The Burlington Company agreed, in writing, inserted in the bill of lading, to stop the shipment at a certain point on the Wabash Railroad and to allow plaintiff to load more horses. The Wabash Comi>any failed to make the agreed stop. Helé, that plaintiff had a right to join the two carriers as defendant .in the one action, the cause of ■ action against each being the same; to-wit, the negligent breach of the shipping contract.</p> <p>2. -: —-. When a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip, to a point beyond the limits of the state where delivered, the character of interstate or foreign commerce attaches thereto, and it is immaterial whether the shipment be made on a through bill of lading or upon a hill or bills issued for transportation between intrastate points.</p> <p>3. -: -: -. An initial carrier, which is liable to a party for any loss caused' by that carrier or its connecting carrier, may have recourse against the latter in another action, if it is compelled to compensate plaintiff in damages for a loss caused by the negligence of the latter.</p>

<p>1. NEGLIGENCE: Pleading: Original and Amended Petition: Departure; Answer: Waiver. If an original petition declares a common-law action for damages for personal injury and an amended petition is filed declaring on a statutory action for that injury, and a second amended petition is filed declaring on the Employer’s Liability Act of Congress, it was held that the first amended petition was a departure from the original, and the second was a departure from the first amendment. But as the defendant filed its answer and went to trial on the merits, it waived the departure.</p> <p>'2. -: -: Departure: State Law: Federal Courts. A question of departure in pleading from an action in a State Court on a State statute for personal injury, to an action on the law of Congress known as the Employer’s Liability Act, is one of pleading and practice and is governed by the State law, which is followed by the Federal Courts.</p> <p>3. -: Railways: Interurban Electric Line: Interstate Commerce. Where an interurban electric railway carries. passengers in cars from points in one State to a point near the State line and then transfers the cars with passengers to a street railway track, thence run into another' State by the motorman of the interurban company, a conductor in the employ of the street railway taking charge of the car for the purpose of collecting five cent fares to be divided between the two companies, under a traffic arrangement, and the cars receive passengers in the latter State for points in the former State and then is run back into the first State by the same motorman; the schedule, orders, and general directions being issued by the interurban road; it was held that the latter was engaged in interstate commerce.</p> <p>4. -: -: -: .Street Railway: Railroad. An interurban electric car line carring passengers and operated on time table and orders from points in one State to the State line and thence transfers its cars, with passengers, to a street railway track to be taken by the former’s motorman into anothfer State, then to receive passengers and loop back to the first state, is a railroad within the meaning of the interstate commerce law, and is engaged in interstate commerce. The street railway being no more than the interurban road’s terminal facility.</p>

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

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

<p>Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.</p>

<p>1. NEGLIGENCE: Municipal Corporations: Ice on Sidewalks. While walking along one- of the streets of Kansas City the plaintiff fell upon an icy sidewalk and was severely injured.A heavy snow fall, reduced from day to day by melting and evaporation and rendered rough and uneven by freezing and usage by pesdestrians causing the formation of mounds and ridges, made the sidewalk where plaintiff fell dangerous for travel. This condition of the sidewalk had existed for several days. It was field that no error was committed in the refusal of the city’s request for a peremptory instruction to the jury to find for defendant.</p> <p>2. -: Duty of Cities. A. city is required to exercise reasonable care to keep its sidewalks clear from all dangerous obstructions and ice and snow suffered to accumulate upon a sidewalk and to-assume an especially dangerous form is such an obstruction.</p> <p>3. -: Instructions: Reasonable Care. An instruction which states that “it is the duty of the city to keep its sidewalks in a reasonably safe condition for travel” is erroneous. The city’s duty is to exercise reasonable care to keep them in such condition.</p>

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

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

<p>1. EQUITY: Pledges: Conditional Sales. If doubt exists whether a transaction is a conditional sale or a pledge, the doubt is resolved in favor of its being deemed a pledge.</p> <p>2. -: -: -. Where the language of a contract shows the transaction was a loan and not a sale, and the evidence shows that such was the intention of the parties, the same is to be. deemed a pledge, and the character of the transaction is fixed at its inception and is not changed by lapse of time. And if the relation of debtor and creditor is created, there need be no express promise to repay, nor does that duty have to be evidenced by a bond or note, since the loan implies a promise on the part of the debtor to repay that which he has borrowed.</p> <p>3. -: -: -. In order to determine whether a contract is a conditional sale or a mortgage, the courts will look not only to the writings, but to all the circumstances of the contract. And when the parties originally meet upon the footing of borrower and lender, the transaction will be considered a mortgage and will continue to be such unless the evidence shows the parties afterwards contracted for an absolute sale of the property without reference to the loan.</p> <p>4. -: -: —--: Pledgor’s Right Remains until Foreclosure. Where the transaction, is a pledge the pledgor’s right to the property pledged remains until there has been a foreclosure of the same.</p> <p>5. -: -: -: -: Pledge Tainted With Usury. If the pledge is tainted with usury the pledge is void under the statute and the pledgee has no lien on the property covered by the void pledge. Hence the pledgor, being entitled to the possession of the property, does not have to tender the debt in order to obtain possession.</p>

<p>1. REPLEVIN: Husband and Wife: Separation: Possession: Furniture. The husband was the owner of household furniture. Then he and his wife separated, she taking the furniture and living apart from her husband. After the separation he gave a bill of sale for the furniture. It was held that her possession made her the presumptive owner.</p> <p>2. -: -: Presumption: Possession. When a husband and wife are separated, though not divorced, any presumption that the wife’s possession is the possession of the husband ceases.</p> <p>3. -: -: Evidence: Admission of Evidence. Evidence that a wife living separate from her husband said that her husband ought to give her the furniture then in her possession, is admissible as tending to rebut her ownership, arising alone on her possesion.</p>

<p>Appeal from Worth Circuit Court. — Eon. Wm. G. Ellison, Judge.</p>

<p>1. COMMON CARRIERS: Conversion of Shipment: Change of Billings: Improper Delivery. A connecting carrier, with the consent only of the attendant, who had no authority to give such consent, changed the billing of a shipment, from a consignment to the shipper at destination, “shipper’s order, notify G. Bank,” to a straight consignment to C. Bank, and the initial carrier, with knowledge of this1 change of billing, turned the shipment over to the connecting carrier. Held, that the carriers were guilty of a .ioint conversion of the shipment — the connecting carrier because it changed the billing, and the initial carrier because it acceded to the change and delivered the shipment to the connecting carrier with knowledge thereof; following S. C. 158 Mo. App. 519.</p> <p>2. -: -: Measure of Damages. The measure of damages for the conversion of a shipment by a carrier is the value of the goods at destination, less the cost of transportation, with interest, under Sec. 5430, R. S. 1909, if the .iury sees fit to give it.</p> <p>3. -: -: Effect on Limitations of Liability. A carrier’s conversion of a shipment deprives it of the benefit of provisions in the shipping contract, requiring the shipper to present notice of his claim within a certain time, and limiting the carrier’s liability to a certain sum, since, as a result of the tort, the law creates a new relation between the parties independent of the contract.</p> <p>4. PAYMENT: Taking Promissory Note for Debt. The taking of a promissory note for an antecedent debt does not extinguish the indebtedness, unless an agreement to that effect is made at the time.</p> <p>5. PLEDGES: Common Carriers: Conversion by Carrier: Right of Pledgee to Maintain Action. After a bill of lading had been pledged by the shipper to secure a debt, the pledgee took a promissory note from the pledgor for the indebtedness, without any agreement for extinguishment of the indebtedness, and^ thereafter made an agreement with' a third person, whereby the latter took this note to hold until money he then loaned the pledgee was repaid to him from the expected recovery in a then-pending action by the pledgee against the carrier for conversion of the shipment for which the bill of lading was given. Held, that the pledgee’s right to maintain the action was not lost by reason of these transactions, since the taking of the note did not operate to extinguish the indebtedness for which the bill of lading was pledged, for the reason that no agreement that it should so operate was made at the time, and since there was no sale of the note in the second transaction, but the note was merely given into the possession of the third party to hold as evidence of the agreement.</p> <p>6. COMMON CARRIERS: Conversion of Shipment: Waiver by Shipper: Effect on Pledgee of Bill of Lading. Where a shipper of live stock, consigned to his own order, pledged the bill of lading to secure an indebtedness, a waiver by the shipper, who did not represent the pledgee, of the carrier’s conversion-of the shipment did not affect the right of the pledgee to recover against the carrier, to the extent of his interest.</p> <p>7. CONVERSION: Interest. In an action for conversion, the jury may, in their discretion, under Sec. 5430, R. S. 1909, give damages, in the nature of interest.</p> <p>8. - COMMON CARRIERS: Conversion of Shipment: Parties: Pledgee of Bill of Lading. One to whom a bill of lading is negotiated as collateral security for a debt is the proper party to sue for the entire loss from conversion of the shipment by the carrier, as the bill of lading is indicia of title and operates to transfer the entire property; but as to the recovery! by the pledgee above his interest, he stands to the pledgor in the relation of trustee of an express trust.</p> <p>9. WAIVER: Essentials. Waiver depends on knowledge of the facts and is to be found from the intention of the party. 10. COMMON CARRIERS: Conversion of Shipment: Waiver. In an action against a carrier for the conversion of a shipment of horses by changing the billing, held that the question of whether the conversion was waived by the shipper, by his receiving the horses and paying the freight, was a question of fact for the .iury, since the evidence was not conclusive as to his knowledge of the conversion at the time he received the shipment and paid the freight.</p> <p>11. WAIVER: Right to Recall. A waiver once made cannot be recalled.</p> <p>12. COMMON CARRIERS: Pledges: Conversion of Shipment: Recovery by Pledgee of Bill of Lading: Expenses of Suit. In an action against a carrier by the pledgee of a bill of lading, for conversion of the shipment, the pledgee is entitled to recover, so long as such recovery does not exceed the value of the shipment, not only the amount of the debt secured by the pledge, but also the expenses of litigation, notwithstanding a waiver of the conversion by the pledgor, preventing a recovery for his use after satisfying the secured debt, for the reason that the pledgee sues as trustee, to the end of rendering the collateral security available in liquidation of the indebtedness secured.</p>

Louis City Circuit Court — lion. Wilson Ai Taylor, Judge. (1) Originally, alimony awarded by the ecclesiastical courts was in periodical stipends because the divorces granted were only from bed and board, leaving the marital status and property rights unaffected, contemplating’ a reconciliation and resumption of the marital relations. Hyde v. Hyde, 4 Sw. & Tr. 80; Cooke v. Cooke, 2 Phill.

Louis City Circuit Court. — Son. Leo 8. Rassieut, Judge. (1) The contract between the appellant and the Donnell Company created an agency for the doing of business for the Donnell Company in South Carolina. Willcox & Gibbs Sewing Machine Co. v. 'Ewing, 141 U. S. 627, 35 Law. Ed. 882.

<p>1. PROHIBITION: Preliminary Rule: Time of Issuance. An order made by a circuit court directing a justice of tbe peace to correct the entries of judgments rendered by his predecessor, to conform to the transcript certified by his predecessor and filed in the office of the circuit clerk, was an assertion of its jurisdiction and authority to issue the rule upon the justice, so that, if that court was without jurisdiction to issue a final order against the justice, a preliminary rule in prohibition was not prematurely issued.</p> <p>2. JUSTICES’ COURTS: Judgments: Correction by Circuit Court: Jurisdiction. Section Y528, it. S. 1909, providing that, from the time of the filing of a transcript of a judgment of a justice of the peace in the office of the circuit clerk, it shall be under the control of the court where the transcript is filed, does not apply to a so-called transcript of a justice’s judgment which shows the rendition of judgment for a certain amount, whereas the amount of the judgment is left blank in the justice’s docket entries, so as to authorize the circuit court to order the justice to correct his docket entries to conform to the so-called transcript, since there can be no transcript of a judgment which has never been entered: and Sec. 23, Art. 6 of the Constitution and See. 3956, R. S. 1909, giving circuit courts superintending control over justices of the peace, does not empower the circuit court to order a justice to make a correction or amendment of his predecessor’s entries of judgment so as to make them conform to the judgment as rendered or to the so-called transcript filed in the office of Jhe circuit clerk.</p> <p>3. --: -: Verity. Judgments rendered by justices of the peace speak for themselves as entered and import verity.</p> <p>4. -: -: Amendment. To insert in the judgment of a justice of the peace an amount in dollars and cents in place of a blank left therein would be to amend or correct the judgment.</p>

Louis City Circuit Court.- — Eon. Rhodes E. Cave, Judge. (1) The court erred in overruling the challenge to juror Byrne. Carroll v. Railroad, 157 Mo. App. 260 ;. Heidbrink v. Railroad, 133 Mo. App. 41; Theobald v. Tr. Co., 191 Mo. 428. (2) The court erred in refusing to give the demurrer to the evidence at the close of plaintiff’s case, because the evidence -shows Joseph Albert was guilty of negligence in permitting Lillie Albert to go upon the street.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) After the passage of the Marriage Woman’s Act, the husband and wife had the right to contract with and deal at arm’s length with each other. Rice Stix & Company v. Sally, 176 Mo. 107.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The plaintiff’s cause of action was barred by the Statute of Limitations before his suit was filed. Limitations begin to run when the cause of action accrues (R. S. 1909, sec. 1887), and it accrues when the right to institute a suit for its enforcement first arises. Stark Bros. v. Gooding, 175 Mo. App. 353; Frank v. Organ, 167 Mo. App. 493; Rivard v. Mo. Pac. Ry., 257 Mo. 135; Gray v. Givens, 26 Mo. 291.

Louis Circuit Court. — Eon. George E. Shields, Judge. (1) This being a suit for breach of a covenant of •warranty in a deed, and plaintiff having been put in possession by the defendant, she could not voluntarily yield up the possession to the detriment of the defendant without legal claim or demand therefor. Morgan v. Railroad, 63 Mo. 129. (2) The judgment in the ejectment suit being void, no right of any character could be based thereon.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) There being no dispute between the parties as to the amount then due by respondent, it therefore follows that there being no consideration, the payment of the smaller amount would not extinguish the amount unpaid.