Volume 193 — Missouri Appeal Reports

Louis City Circuit Court. — Eon. Eugene McQuillin, Judge. (1) The defect complained of did not occur after the letting; it was patent; there was no concealment by the landlord; it was known to the tenant before and at the time she rented the premises, to-wit, March 15, 1911, according to her own testimony.. She therefore took the apartment in that condition, and the child having no greater rights, cannot recover.

Louis City Circuit Court. — lion. Wilson A. Taylor, Judge. (1). The jurisdiction of equity cannot be invoked to reform an instrument which has ceased to be operative, the voluntary reformation of which has never been refused. Page on Contracts, sec. 1249; 34 Cyc. 946.

Original Proceeding. Prohibition. (1) There is no fixed situs of a debt. It follows the domicile either (a) of the owner or (b) the debtor. Ordinarily it is the domicile of the owner that determines the situs of a debt but for the purpose of attachment it may be the domicile of the debtor. In the case at bar the domicile of the alleged owners of the debt, or creditors, is Canada, and the domicile of the alleged debtors, relators herein, is the city of St. Louis.

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge, (1) This action is predicated upon section 8295, E. S. 1909. An allowance for suit money pendente lite in an action by the wife for maintenance is not allowable. Dorrance v. Dorrance, 257 Mo. 317. (a) The evidence in support of the motion for alimony pending the case in the circuit court and for suit money did not make out a prima-facie case, show necessity or good faith.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. The proof showed that the plaintiff was an inexperienced foreigner; could not speak the German language; that the contract attempting to limit liability was in the German language; that she did not see it, could not read it and could not understand it and did not sign it, and the limitations were on the reverse side, and not on the side which a passenger would ordinarily look at.

Louis City Circuit Court. — lion. Rhodes B. Gave, Judge. (1) The court erred in sustaining plaintiff’s demurrer to parts of defendant’s answer. The ordinance does not change the rules of evidence as such, hut sets forth the terms and conditions under which a junk merchant may do business in the city of St. Louis and the condition requiring a license is another condition required by tbe ordinance. Tbe city of St. Louis under its Charter bad tbe right to pass such an ordinance.

Louis City Circuit Court. — Hon. J. Hngo Grimm, Judge. (1) The trial court erred in submitting the case to the jury.

Louis City Circuit Court. — -Hem. Daniel D. Fisher, Judge. (1) Before a purchaser is entitled to recover lost profits 'which he might have made if the vendor had not failed to deliver the g’oods, he must show a valid sub-sale in contemplation of the parties at the time the original sale was contracted. G-uetzskow Bros. Co. v. Andrews & Co., 92 Wis. 214; Wilson v. Russler, 91 Mo. App. 275.

Louis City Circuit Court. — Son. Daniel D. Fisher, Judge. The power of suspension of sale is not absolute; it is limited only to competitors; it is not repugnant to the estate created; as to all others than competitors it is untrammeled. A partial restraint, as to persons to whom alienation may be made, is not void as against public policy.

<p>1. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict rendered on conflicting evidence, under proper instructions, is conclusive, on appeal.</p> <p>2. INNKEEPERS: Liens: Liability of Guest of Person Contracting for Entertainment. Where a husband contracted for lodging for his wife in a hotel, the baggage and other valuables belonging to the wife were not subject to a lien, under Sec. 8247, R. S. 1909, providing that hotel keepers shall have a lien on the baggage and other valuables of their guests brought into the hotel by such guests, for proper charges due from them, since the word “guests,” as used in the statute, applies to the party contracting for the entertainment, and not to his guests.</p> <p>3. STATUTES: Construction. In construing a statute,-the intention of the Legislature is to be sought and effectuated, but the statute must not be unduly extended.</p> <p>4. APPELLATE PRACTICE: Prerequisites to Review of Rulings on Evidence. A ruling of the trial court on the admission or rejection of evidence is not reviewable, on appeal, unless an exception to such ruling was saved at the time it was made.</p>

Louis Court of Criminal Correction. —Hon. Calvin N. Miller, Judge. (1) When the prosecuting attorney files an information based upon the affidavit of a private person competent to testify in the case, he must file the affidavit with the information, and the latter must show on its face, when such is the case, that it is predicated upon the affidavit filed with it, in ordér that the defendant may know who his accusers are, the prosecuting attorney or some other person.

Loliis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The corporate existence of the Humes Flour Company is established under the statutes 'of this State, by the showing that the articles of association were filed in the office of the Secretary of State and the certificate of incorporation issued by that officer; and this being true, its corporate character cannot be thereafter attached collaterally or by any one except the state itself.

Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge. ■ (1) The rules applicable to compensated sureties are radically different than, those applicable to the old-fashioned accommodation sureties; the doctrine of strictissimi juris no longer prevails, and in its stead is the doctrine that a compensated surety must show some injury before it can he released for deviations from the contract. Lackland v. Renshaw and Surety Co., 256 Mo. 133; Rule v. Anderson et al., 160 Mo.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) Defendant’s instruction of nonsuit should have been given, because: (a) The evidence established, without conflict, that Bryan and plaintiff were fellow servants. Robinson v. Railroad, 133 App. 117, and cases therein cited; Parker v. Railroad, 109 Mo. 362, 419; Koerner v. Car Company, 209 Mo. 153. (b) The Dual Capacity Doctrine is established in Missouri. Fogarty v. Transfer Co., 180 Mo. 507.

Louis City Circuit Court.— Hon. Geo. C. Hitchcock, Judge. (1) ' The relationship which exists between master and servant is one of peculiar trust and confidence, and where in an action by the servant for breach of a contract of employment the master pleads facts constituting a fraud on that relationship as a justification for the servant’s discharge, the issue on such fraud is equitable in its nature and an appellate court will not consider itself bound by the findings of…

— Hon. James D. Barnett, Judge. (1) The engineer, Gene Williams, in moving the engine in question, was an independent contractor, and the court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff and at the close of all the evidence.

— Eon. William T. Raglcmd, Judge. (1) The rule is well settled that proof is admissible of any collateral, parol agreement or independent fact, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter; and whether such collateral agreement was made or independent fact occurred contemporaneously with or as preliminary to the main contract in writing, is quite immaterial. Owsley v. Jackson, 163 Mo.

— Hon. James D. Barnett, Judge. (1) Section 2864, as amended by the Act of 1905, Laws of Missouri of 1905, pages 135, et seq., allowing a recovery of not less than- two, nor more than ten thousand dollars, in the discretion of the jury, as applied by the court in this case, is unconstitutional and void, because in conflict with the Fourteenth Amendment to the Federal Constitution, and section 30, article 2, of the Missouri Constitution. Yick Wo v. Hopkins, 118 TJ.

Louis City Circuit Court. — Hon. Rhodes E. Cave, Judge. (1) ^The petition states a. good cause of action and the evidence tends to establish all the allegations, of the petition. In passing upon a motion for a non-suit, the plaintiff’s evidence must be taken as true.. Not only must the plaintiff’s evidence be so taken, but; in addition thereto, he is entitled to every reasonable; inference in his favor that can be drawn from the facts proved.

— Hon. James D. Barnett, Judge. (1) The petition does not state a cause of action, and the court erred in overruling defendant’s objection to the introduction of any evidence, (a) As the petition charges that the operatives of the engine conld have seen the decedent on the track, it necessarily follows from snch alleged fact that the decedent, by looking conld have seen the engine; therefore, in failing to see the engine, and allowing himself to be struck thereby, decedent…

— Hon. Jas. D. Barnett, Judge. (1) Relator has mistaken his remedy, (a) When the probate court refused to sustain relator’s motion to remove the testamentary curator, Drunert, and permit the relator to qualify, relator’s remedy was by appeal. Owens v. Link, 48 Mo. App. 534; State v. Collier, 62 Mo. App. 38; State ex rel. v. Reynolds, 121 Mo.

Louis City Circuit Court. — Son. Rhodes E. Gave, Judge. (1) The transfer of the deposit from Fitzpatrick to the credit of Fitzpatrick and Mrs. Du Montimer, payable to either or the survivor, created, a joint tenancy between them, and on his death the fund passed by operation of iaw to her. Mack v. Bank, 3 N. Y. S. 441; Kelly v. Bank, 92 N. Y. S. 578; McElroy v. Bank, 40 N. Y. S. 340; Augsbury v. Shurtliff, 180 N. Y. 138; In re Meehan, 69 N. Y. S. 9; In re Main, 73 Conn. 638;.

<p>Appeal from Macon Circuit Court. — Son. Nat M. Shelton, Judge.</p>

<p>1. PROHIBITION, WRIT OF: Transfer of Causes of Action. A litigant acquires no vested rights to take deposition before a notary public of his own selection, and when the court finds that the consideration of justice and fairness calls for the appointment of a commissioner to preside at the taking of such depositions, such a finding would be a good cause for the transfer of a cause of action from the Independence Circuit Court to Kansas City Circuit Court in order that the action might fall within the purview of section 6390, Revised Statutes 1909. This discretion having been exercised by the court it was well within the confines of its jurisdiction and judicial powers and its results could not properly be disturbed either on appeal or in prohibition.</p> <p>2. -: Motion to Quash Notice. One cannot be deprived of his right to take depositions in preparation for a trial, and the court in ordering a notice to take depositions quashed, instead of granting an alternative prayer for the appointment of a commissioner, acted not only erroneously, but in excess' of the judicial powers which were a proper attribute of its jurisdiction over the cause and subject-matter.</p> <p>3. -: Judicial Discretion. A writ to prohibit the abuse of judicial power will be granted notwithstanding the relator may have the right of appeal, if the exercise of such right would be an inadequate remedy for the abuse.</p>

<p>1. PRACTICE, APPELLATE: Certiorari: Supreme Court. Court of Appeals. A verdict for plaintiff was rendered in a case for personal injury inflicted by alleged negligence of the defendant. The trial court .granted a new trial for error in giving an instruction for plaintiff. Plaintiff then appealed to the Court of Appeals where it was held the instruction was proper and the order granting the new trial was reversed. Defendant then obtained a writ of certiorari from the Supreme Court which court held, with the trial court, that the instruction was erroneous in that it was broader than the petition and remanded the case to the Court of Appeals for further proceedings. Plaintiff then insisted that the Court of Appeals should disregard the instruction on the ground that no exception was taken to it by defendant. It was held, that the Court of Appeals had no authority to avoid the judgment of the Supreme Court on the ground that that Court had overlooked the fact that no exception was taken to the instruction. It was further held, that the fact that evidence of the negligence submitted by the instruction was admitted without objection by defendant, did not authorize the Court of Appeals to avoid the judgment of the Supreme Court. It was further held, that such case was-not one where the rule that notwithstanding an erroneous instruction was given, the judgment would be affirmed, if for the right party.</p> <p>‘2. -: -: Independent Points: Certiorari. If on appeal to the Court of Appeals several distinct errors are claimed for reversal of the judgment and the Court of Appeals decides the case on one of such points and does not consider the others', and the Supreme Court on certiorari reversed such decision and returns the case to the Court of Appeals, the points not considered, and which are not dependent upon, or co itrolled hy the point decided hy the Supreme Court, are open for decision hy the Court of Appeals.</p>

<p>1. CARRIERS OF GOODS: Damages: Interstate Shipmént: Notice of Loss: Waiver. An interstate carrier cannot waive the provisions of a contract of shipment requiring the shipper to give notice of loss or damage, within a specified time.</p> <p>2. -: -: Order of Commission: Prior Shipments. An order of the Interstate Commerce Commission permitting common carriers in certain parts of the country to suspend, or waive, for a certain time, the enforcement of a provision in bills of lading requiring notice of loss of property to be given by the shipper will not apply against the carrier to shipments and losses occurring before the order was made.</p> <p>3. -: -: -: Judicial Notice: Reports: Pleading and Proof. An order of the Interstate Commerce Commission permitting common carriers to waive provisions in bills of lading for notice of loss cannot be noticed judicially by the courts, although the order is1 referred to and eonsiruod in a case reported in the reports of the Interstate Commerce Commission. The order should be pleaded and proven.</p> <p>4. -. In all matters arising under the interstate Commerce Act of Congress, the rulings of the Supreme Court of the United States must be followed by the State courts.</p>

<p>1. BILLS AND NOTES: Interest: Varying Written Contract: Parol Evidence Rule: Collateral Executed Oral Agreement to Pay Interest in Certain Way. Defendant borrowed $20,000 of plaintiff and gave him three notes due in one, two and three years from date. They bore interest from date. At the time they were executed, a parol agreement was entered into that defendant was to pay certain rents, make certain monthly payments on the principal and pay an excess price of $1 on every barrel of beer bought of plaintiff, one-half of which should be applied on the principal and the other half to cover the use of the money, and, if defendant performed these agreements, no interest would he collected on the notes. The defendant fully performed the agreement and in this way paid $14,000 for the use of said money: Held, that, proof of the collateral executed parol agreement was admissible not to. contradict the terms of the note as to interest, but to show that by the collateral agreement the interest had been paid in that way.</p> <p>2. -: -: -: -. A mere parol agreement not to charge interest cannot be allowed to contradict a written instrument which says interest is to be charged, in the absence of fraud or mistake.</p> <p>3. PLEADING: Answer: Facts Stated: Construed According to Legal Effect. Although the answer says no interest was to be charged, yet where it sets out the facts and says such excess price was agreed upon as covering the interest, such answer should be treated as in the nature of a plea of payment and not as attempting to contradict the terms of the notes, since a pleading should be construed according to its legal effect and not by what it is called by the pleader.</p>

<p>FRAUD AND DECEIT: Conspiracy: Proof. While the difficulty of proving fraud does not dispense with the necessity of proof, and while merely suspicious facts and circumstances will not he accepted as legal proof, wide latitude is given as seemingly indifferent things without sinister significance when taken separately, may when properly dovetailed together, establish fraud.</p>

<p>1. MANDAMUS: County Courts: Licensing of Pool Tables. Relator applied for a license to keep pool tables in his pool hall. The county court heard the application and refused to grant the license, not because of any reason peculiar to applicant or his location, but solely because the court was opposed to pool halls and desired to prohibit them. The court admitted that there was no reason for refusing relator a license if any such license should be granted at all. Meld that the county court has the right to refuse to grant a pool hall license for cause, but that where there is no reason for refusing except a desire to prohibit them, the court cannot refuse since it cannot do indirectly what it has no power to do directly.</p> <p>2. -: -: -: Discretion. The power to grant licenses, unless mandatory in terms, carries with it the right to exercise a reasonable discretion in deciding whether to grant or refuse a particular license but this discretion is to be exercised reasonably and not arbitrarily.</p> <p>2. -: -: -: -. Since the Legislature has delegated to the county court the power to license pool tables, and has not granted the right to prohibit them, the court cannot, in a case where it is admitted there is no discretionary reason for refusing, withhold such license in order to prohibit the keeping of pool tables altogether.</p>

<p>1.INNKEEPERS: Relation to Guests: Care Required: Eviction of Guest: Malice. Plaintiff and lier Imsband became guests at defendant’s hotel and occupied a room. Next morning her husband, leaving his wife indisposed and in bed, went to a convention a short distance from the hotel. Another guest paid his bill and left and, by mistake, the clerk credited it to plaintiff’s room and bill. Thereafter the hotel management notified plaintiff that she must vacate the room. She explained to them that she was sick, that her husband was at the convention only a short distance away, that there was a mistake and they should investigate. Her explanation was not accepted nor was an investigation made, nor was there^ any delay to ascertain whether her husband had gone, but she was reauired to leave under circumstances which subjected her to humiliation and insult. Held, that this, together with the failure to investigate, was evidence sufficient to justify the submission of the auestion of malice to the jury, and that the court was not warranted in taking that question away from them.</p> <p>2.-: -: -. The hotel keeper, while not an insurer of the safety, quiet, comfort and repose of his guest, nevertheless owes the guest the exercise of a very high degree of care in that regard. The duty and obligation resting upon him are similar to those of a common carrier toward its passengers.</p> <p>3.-: -: -: -: -: Jury Question. No ill will or hatred or personal spite is necessary to create legal malice. The intentional doing of a wrongful act without just cause or excuse, “has been a definition of legal malice for many years.” In applying this definition, however, a distinction should be made between things that are wrong in themselves and things that are apparently proper. But where defendant was informed of the true state of affairs and that there was a mistake on its part, and .thereafter failed to make any investigation or to wait a little while to ascertain the truth, the question of whether there was legal malice was for the jury, since malice may be presumed from gross and culpable negligence in omitting to make suitable and reasonable inquiries.</p> <p>4. -: -: -: -: -: Elements of Damage. Suspense, anxiety, mental distress or pain of mind, when not connected in any way with, bodily injury is not the subject of damages unless the wrong done is accompanied by circumstances of malice,- oppression, insult or inhumanity. But in this case plaintiff, while receiving no assault upon her person, was caused, while ill, to leave her bed and go to the lobby and upon the streets of a strange city under circumstance which greatly excited and wrought up her nervous system and increased her indisposition, and it cannot be said, as a matter of law, that this resulted in no physical injury to her. It is not the case of a woman suffering mere mental anxiety, suspense and nothing more.</p> <p>6. -: -; — :--. After a guest has been assigned - to a room, he is entitled to the exclusive use thereof subject only to the innkeeper’s right of access thereto at proper times and for such reasonable purposes as are necessary in the general conduct of the hotel, or to attend to the needs of the guest or to meet an emergency.</p> <p>6. -: -: --: -. Where a guest, a delicate and refined woman, after being twice requested to get out of her room and then told by the clerk that she had to get out, and the hotel management brought another guest to the room showing that the command would be enforced, it was not necessary for her to stand her ground and be put out bodily before she could claim to be dispossessed of the room.</p>

<p>1. DAMAGES: Collision: Excessive Speed. The plaintiff sued to recover damages to his electric car, caused by a collision with a seven passenger gasoline car driven by defendant’s chauffeur. The defendant’s car' was being driven at an excessive rate of speed on the wrong or left side of the street, when the collision occurred. The plaintiff’s wife, who was driving, turned out for a car that was standing on the side of the road and after passing that started to turn to the right again, when the collision occurred. Held, that the evidence, as a whole, presents the issue of the defendant’s negligence as one of fact . which the court, sitting as a trier of fact has properly determined in favor of plaintiff.</p> <p>2. -: -: -. Where no declarations of law are ashed or given in a law case tried without a jury, a judgment for the plaintiff will not be reversed, if it can be justified on any theory of law applicable to the evidence most favorable to the pleaded cause of action, but, if there is no evidence to support the judgment the appellate court will'interfere though no declarations of law were ashed.</p> <p>3. EVIDENCE: Witness: Res Gestae. Testimony as to statements made by a defendant’s chauffeur at the time of an accident is admissible, if it is part of the res gestee, and if no objection is interposed at the introduction of such testimony, it will be deemed to have been waived. ■</p> <p>5. NEW TRIAL: Newly Discovered Evidence. In order to afford a sufficient reason for the granting of a new trial because of newly discovered evidence, such evidence must throw additional light on the subject in controversy.</p>

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Agreement with Beneficiary Creating Trust. Insured, while unmarried, obtained a fraternal insurance policy on his life naming his brother as beneficiary therein. Under the contract he had a right to change the beneficiary at any time without the consent of the named beneficiary. Afterwards he married, and, when about to make his wife beneficiary, his brother made an agreement that if he would allow him to remain as beneficiary, so as to have the policy as security for a debt insured owed him, he, the • brother, would, upon insured’s death, collect the policy, and, after paying whatsoever was due upon the debt, would pay the remainder to the insured’s wife: Held, that this created a trust in the named beneficiary which the insured’s widow could enforce against the brother after the insured’s death as to the surplus remaining over and above the amount of the debt.</p> <p>2. -: -: Statute of Frauds. The enforcement of such a contract in no way violates the Statute of Frauds.</p> <p>2. WITNESSES: Incompetency: Waiver. The contract the widow sought to enforce was not one between herself and her husband but one made by her husband with the beneficiary for her benefit and of which she was cognizant. The contract was between two living persons. But even if the widow was incompetent, since the plaintiff took her deposition in reference to the issues involved, prior to the trial, this had the effect of waiving her incompetency if she was incompetent.</p>

<p>TELEGRAPH AND TELEPHONES: Messenger: Agent: Contract. A messenger sent by a telegraph company to a patron to receive a telegram for transmission over its wires and received charges for the same, is the agent of the company and the company is liable for his negligent delay in taking the message to its sending offiee, notwithstanding it may be printed on tbe telegraph blank furnished for the message, that such messenger is the agent of the sender of the telegram.</p>

<p>1. EQUITABLE CONVERSION: Realty: Personalty. Direction, by the testator to the executor to sell real estate converts it into money, under the doctrine of equitable conversion, whereby the original character of the property is converted into that class in which it is directed to be placed.</p> <p>2. -: Election: Beneficiaries. Before an equitable conversion of one class of property into another actually takes place, the beneficiaries may elect to take the property in its original class, or character and thus defeat a conversion.</p> <p>3. -: -: All or Less Number of Beneficiaries. An election to take, in its original character, property directed by a testator to be converted into another class, must be by all of the beneficiaries, unless the election of a less number could not possibly injure those not joining in the election.</p> <p>4. -: -: Heirs: Widow: Tender. The testator directed the executor to sell a tract of land for cash, and out of the proceeds to pay his widow $8000, and divide the balance equally between his two adult children. Before the sale was made the two children (the widow not joining) elected to take the land itself and tendered the $8000 to the widow. It was held that it was a valid election.</p> <p>5. -: -: Executor’s Commission. Where a testator directed the executor in his will to sell a tract of land for cash and out of the proceeds to pay his widow $8000 and to divide the balance between his two children and the latter offered to pay the widow the sum due her and elected to take the land before it was sold; it was held that the executor was entitled to his commission on the whole value of the land; such value to be ascertained by the court.</p>

<p>1. CARRIERS OF LIVE STOCK: Damages: Shrinkage. The plaintiff sued the defendant for damages sustained by the negligent delay in the transportation of a carload of hogs from Athelstan, Missouri, to the market at St. Joseph. The defense was the failure of plaintiff to comply with the provisions of the shipping contract relative to giving the defendant notice of the claim as required by-law. Held, that the defendant waived' formal compliance with the provision concerning the giving of notice of .claim within time by accepting and treating the claim as filed in time and as being formally sufficient.</p> <p>2. -: Notice of Claim. A failure to reject a claim for the failure to give notice, coupled with a denial of liability on the merits, or with a refusal to investigate, is a waiver of notice.</p> <p>S. -: -. Under the Federal Rule concerning provisions for notice of claims in interstate contracts, such notice cannot be waived. But this provision is not so construed under the law of Missouri regarding intrastate contracts.</p>

<p>1. LIFE INSURANCE: Action on Policy: , Limitations. Action on life insurance policy. Insured, plaintiff’s husband died in 1897. Suit on policy was commenced-in 1915. The cause of action is barred, absent waiver or éstoppel of company precluding such defense.</p> <p>2. -: -: Defenses: Special: Waiver. Action on an insurance policy, the defense being the -Statute of Limitations and failure to submit proof of death within ninety days as required by section 5985, fft. S. 1897. Both defenses are affirmative and special and in the nature of personal privileges. They do not go to extinguish the cause of action but to bar the remedy merely and may be waived.</p> <p>3. -: -: -: Forfeitures. Such defenses are “forfeitures,” the plaintiff forfeiting his cause of action and the insurance law does not favor them.</p> <p>4. -: -: Limitations: Policy Provisions: Statutory Provisions. A life insurance policy cannot limit the time of bringing suit to a less period than that fixed by statute. [Sec. 2780, B. S. 1909.]</p> <p>5. -: : Defenses: Waiver: Applies to What. While the doctrine of waiver in insurance law is applied more frequently to furnishing timely proofs of loss or a violation of some warranty or stipulation in the policy, yet it is also applicable to bringing suit within a given time, whether fixed by statute or by the policy.</p> <p>6. -: - — : Waiving Defenses. In an action on a life insurance policy where defendant company demanded and received proof of death after the time therefor had expired, it waived the limitation of suit.</p> <p>7. -: : Waivers: Estoppel. There may he a waiver of limitations after as well as before the time limit has expired. But the element of estoppel must he present where it is made after such expiration.</p> <p>8. -: : Defenses: Limitations. An insurance company is estopped from setting up as a defense the expiration of time for making proof of death where such company has encouraged or induced the plaintiff to go to substantial expense in furnishing such proofs'.</p> <p>9. -: -: Estoppel: Waiver. Action on an insurance policy the defense being the Statute of Limitations. The insured died in 1897, no notification being made to the defendant company until 1914, when the claim was presented. After exchanging several letters, defendant company required plaintiff to make proof of loss on blank.forms which the company sent plaintiff. The company is estopped to assert that the time for such proofs had expired and it cannot escape such estoppel by saying that it did not compel plaintiff to fill out such blanks, since plaintiff’s claim would have béen abandoned had she failed to file such proofs.</p> <p>10. -: Defenses: Waiver: Estoppel. Action on life insurance policy. Claim for the loss of her husband was not made by plaintiff until seventeen years had elapsed after husband’s death. When claim was presented to defendant company it, with full knowledge that the claim was barred, demanded that proofs of loss he submitted, stating generally in the letter which contained such demand that the company waived no defense which it had. No specific reference to any particular defense was made and defendant was estopped to assert the defenses of the Statute of Limitation or of failure to file proofs of loss in time. '</p> <p>11. -: -: Waiver: When Need Not be Pleaded. Action on life insurance policy. The case was tried on an agreed statement of facts, which showed a waiver of the defense of a delay in making proofs of loss and of Statute of Limitations. The fact that plaintiff failed to plead such waiver would not defeat her action.</p>

<p>Appeal from Greene County Circuit Court. — Hon. Guy D. Kirby, Judge.</p>

<p>1. NEGLIGENCE: Railroads: Res Gestae.. The plaintiff, a •widow of a deceased brakeman, sued to recover, damages for hie death, caused by the negligence of the defendant. The husband was a front brakeman on an extra freight train, which train was pulled onto a siding to allow a passenger train to have the right-a-way. When the passenger train had passed, the engineer, after blowing the whistle twice, but before receiving any signal from the husband, as front brakeman, started his train. Plaintiffs husband was found dead on the track, having been run over, apparently where he had gone to fix a leak in the air break hose. Held, that the weight of the plaintiffs evidence, as well as the issues of the credibility of plaintiff’s witnesses were issues of fact which have been definitely and irrevocably settled by the verdict.</p> <p>2. EVIDENCE: Res Gestae. When one makes a statement to a fellow employee, when they are going on their respective duties, that he is going to fix a leak in an air hose and he is killed shortly afterwards, such a declaration is admissible in evidence as part of res gestae relating to the constitutive fact of whether he was in the discharge of duty or had digressed and was where he should not have been.</p> <p>3. -: Motion to Strike Out. The only way improper matter in an answer to a. proper question may be reached is by a motion to strike out such answer, otherwise the objection will be deemed to have been waived.</p>

<p>1. CARRIERS OF GOODS: Damages: Interstate Shipment: Misdelivery: In Transit: Destination. The Carmack amendment to the Hephurn Act of Congress, 34 U. S. Stat. L. 594, whereby the initial carrier is made liable to the legal holder of the bill of lading for loss of property, covers a loss from misdelivery at destination as well as a loss while in transit.</p> <p>2. -: -: Notice of Loss. A provision in a bill of lading for notice of loss of property within a specified time, is valid.</p> <p>3. -: -: -: Waiver. A provision in a contract of shipment requiring an interstate carrier to be notified within a specified time of the loss of property in an interstate shipment, cannot' be waived by the carrier.</p> <p>•4. —■■-: -: Misdelivery: Initial Carrier: Final Carrier: Notice. Where a railway carrier purposely delivered the property to a party not entitled to receive it and took a bond to indemnify it for all damage it might be compelled to pay by reason of such misdelivery, such carrier is entitled to notice of loss. Held further, that where plaintiff seeks to hold the initial carrier liable for the misdelivery of the final carrier, notice must be given to such initial carrier.</p>

<p>1. DAMAGES: Malicious Assault: Elements, of Damage. Humiliation, bodily pain, and mental anguish each and all resulting as they do from an unprovoked assault and consequent personal injury, are elements of general damages and properly referable to the jury under general allegations of assault and wounding.</p> <p>2. -: Compensatory: Aggravation. Where there are no circumstances of aggravation, the damages should be compensatory only and that one should not be punished so extremely for an injury inflicted under strong provocation as ha would be from the same injury wantonly inflicted without any circumstances of excuse or palliation.</p> <p>3» -: Malice. The term “malice” in its legal meaning im- ■ ports nothing more than that the wrongful act was wilful and intentionally wrongful and the quality of wilfulness may be presumed from the facts that the act was wrongful and without just cause or excuse.</p> <p>4. -: Assault and Battery. In order for an assault and battery to be held to have been malicious so as to allow the assessment of damages, it must be shown that it was intentional and without just cause or excuse.</p> <p>5. EVIDENCE: Admissions: Punitive Damages. It is not error in an action for malicious assault to elicit from, defendant the admission that he knew plaintiff was worth sixty or seventy thousand dollars, since the fact of .plaintiff’s unquestionable solvency and defendant’s knowledge thereof, were circumstances of aggravation of material bearing on the issue of punitive damages.</p>

<p>1. PROHIBITON, WRIT OF: School Districts: Boundaries. A school district filed a petition for a writ of prohibition against respondents, to prohibit them from assuming and exercising as a board of arbitration jurisdiction over an appeal to the commissioner in a proceeding to change the boundary between two' adjoining school districts: First, because the proceeding was an attempted encrouchment upon District No. 14 for the mere acquisition of territory by District No. 27, there being neither voters nor persons of school age residing in the territory in question and, second, because the petition presented to the clerk of District No. 14 was signed only by qualified voters in District No. 27, and, therefore, was insufficient. Held, that the court' erred in sustaining the motion for judgment on the pleadings.</p> <p>2. ->: Jurisdiction. If the existence of jurisdiction depends on contested facts which the inferior tribunal is competent’ to inquire into and determine, prohibition will not be granted.</p>

<p>MANDAMUS, WRIT OF: Dramshops: License. One Ashcraft ol> tained á license from the county court on July 4, 1915, to conduct a dramshop in Lee’s Summit, Mo., but the application for a license to the city board was denied. He then applied to the city clerk for a license and tendered the money to open a “beer depot or storeroom." This was also denied. An alternative writ was issued and on final hearing a peremptory writ was ordered. Defendant appealed. Held, that a writ of mandamus is a discretionary writ and should not be granted where it will not promote substantial justice and the burden is on the petitioner to show that he has á clear legal right to the belief prayed but where it appears as clearly as it does here, that the writ is sought for the, mere purposes of aiding the petitioner to violate the law, it should be denied.</p>

<p>FIRE INSURANCE: Vexatious Delay and Refusal to Pay: Pleading. The vexatious refusal to pay fire assurance loss is a fact to he determined by the jury from the evidence, and the real issue is whether or not the defendant, before suit, refused a fair opportunity to discharge its actual liability, and the only fact required to be alleged in order to raise that issue is that defendant refused or failed to pay the loss and that such refusal or failure was vexatious.</p>

<p>1. NEGLIGENCE: Railroads: Master and Servants: Rails. The plaintiff, a track laborer, was engaged in replacing new ties under the rails of the defendant’s railroad. The rails were raised on jacks, and when a train approached the foreman ordered the rails lowered. A fellow servant without warning lowered one of the rails on plaintiff’s foot, smashing three toes, for which he sues to recover damages. Held, that the fellow servant was negligent in dropping the rail without warning and before the plaintiff had been afforded a fair chance to shift his position.</p> <p>2. -: Federal Employers’ Liability Act. Under the Employ-, ers’ Liability Act contributory negligence is not a bar to recovery by the plaintiff where negligence for which the employer is responsible is also found to be the proximate cause of the injury.</p>

<p>1. REPLEVIN-: Bills and Notes: Agency. An agent authorized merely to collect a note has no implied authority to accept another note in payment, and, if he does, his principal -will not he bound unless, with full knowledge of the facts, he' ratifies such unauthorized act of his agent.</p> <p>2. -: -: -. The holder of a negotiable note, indorsed in blank before it is due by the payee is prima facie the owner of it, and he is presumed to hold it in good faith' for value before maturity and without notice.</p> <p>3. -: -: -. Where the title to a ’negotiable promissory note is defective, the burden is upon the holder to show that he took the note .in good faith for value and without any notice of defect in title.</p> <p>4. INSTRUCTIONS: Wrongful Hypothesis. An instruction which is entirely unsupported by evidence, of defendant having claim on the note when the holder, without knowledge of such claim, obtained possession, is erroneous.</p>

<p>1. LOCAL OPTION: Jurisdiction: Polling Places. The defendant was indicted and convicted for a violation of the Local Option Law in that he sold beer to the prosecuting witness. The defendant contended, first, that the sale was not made within one year preceding the finding and return of the indictment; second, that the court had no jurisdiction to try the cause at the term in which the verdict was rendered, because the clerk had failed to enter into the record the minutes that the court ha'd adjourned from May 29, 1915, to June 28, 1915; (The court thereafter ordered a nunc pro tunc entry.) third, that the record fails to show, that prohibition was in force in the county at the time of the alleged offense. Held, that no prejudicial error was committed against the defendant.</p> <p>2. NUNC PRO TUNC ENTRY: -. The rule is well settled that while the record of the court stands as a perpetual memorial of the court’s actions and proceedings and cannot be impeached by oral evidence, yet where the clerk, either by design or mistake fails to record the judgment or order actually rendered or made, the court, nunc pro tunc may correct the record to make it show the judgment pronounced or the order actually made, provided facts appear of record supporting such correction.</p>

<p>1. DAMAGES: Municipality: Independent Contractor: Dangerous Work: Liability. Though a city employing an independent contractor to do public work is not generally liable for Eis wrong in prosecuting such work, yet, if the work which the city engages such independent contractor to do, is necessarily and intrinsically dangerous, the city will be liable. And It was held that the independent contractor was also liable.</p> <p>2. -; Independent Contractor: Sewer: Blasting: Liability for Vibration. If an independent contractor employed by a city to excavate a public sewer blasts rock so that the vibration injures a near-by dwelling, he is liable in damages, notwithstanding he was not guilty of negligence.</p>

<p>1. EQUITY: Contracts: Partial and Entire Assignments: Priorities. The B. Ooal Company, under contract, furnished coal in carload lots to the School District. The coal was mined and sold to the B. Company by the S. Coal Company, and the K. Railroad hauled it to the district. The refusal of the .latter to pay for the coal left the B. Company unable to pay' the freight charges to the railroad or the purchase price of -the coal to the S. Coal Company. The railroad obtained from the B. Company a partial assignment of its claim against the district to secure the freight charges. The B. Company brought •■suit against the district for the coal. The district set up a • counterclaim. The S. Company then secured an assignment of the entire claim against the district, without notice of the former partial assignment to the railroad, and asked to be substituted as plaintiff in the case against the School District. The substitution was' not' made but the case was continued in the name of the B. Company for the S. Company’s benefit. Judgment was obtained against the district and it was about to be paid when the railroad filed an intervening petition asking that its partial assignment be established as a prior claim. Held, that the S. Coal Company’s legal and equitable rights-were superior to the equitable rights of the railroad.</p> <p>2. -: -: -. The partial assignment of art account, without the consent of the debtor, is without sufficient validity to enable the assignee to call in question a subsequent assignment of the whole claim, -nor does it prevent the assignor from afterwards assigning the whole claim. And the rule in this State is the same in equity and at law.</p> <p>3. -: -: -, Even if, in some circumstances, courts of equity will enforce rights acquired under partial assignments, they will not enforce them unless they can do so without working a hardship upon the debtor. A fortiori they will not enforce them against the equities of a subsequent assignee without notice, who has obtained the whole title.</p> <p>4. -: -: -. At the time of the assignments there was no equity* suit. The S. Company obtained the legal title and would have been entitled to the judgment without resort to equity. No equity suit would have arisen had .not the railroad company filed its intervening petition based upon its equitable assignment. In addition to its legal rights, the S.Company had equitable rights fully as strong, if not stronger, than the railroad since it helped secure the judgment and did all in its power to take possession of thfe res, without notice of any prior assignment.</p>

<p>1. MUNICIPAL CORPORATIONS: Public Improvements: Sidewalks: Ordinance Authorizing Liability of City. Before a city can be held liable for damages for making fills to bring the sidewalk portion of the street to grade, it must be shown that such work was authorized by the city by ordinance.</p> <p>2. -: Ordinances: Resolutions: Presumptions. Unless it is 1 shown that a' resolution authorizing the laying of concrete sidewalks was passed with the same formality observed as is required for the passage of an ordinance therefor, it will be presumed that it was not so passed.</p> <p>3. -: Change of Grade for Sidewalks: Ordinances. Action against a city for damages for making fills to bring the sidewalk portion of a street to grade. Ordinance and resolution examined . and held that the action is not justified on the ground that under the ordinance the grade of the street was changed to plaintiff’s damage, not being susceptible of the construction that the laying of the new concrete walks at the new grade was required unless no walks had been already laid.</p> <p>4. MUNICIPAL CORPORATIONS: Public Improvements: Change of Grade for Sidewalk: Damages: Measure of. In an action against a city for damages to property because of change in the grade of a street, the measure of damages is the difference between the market value of the property before and after the change.</p> <p>5. -: -: -: -: The cost of elevating the premises, removing and replacing sod, shrubs, etc., cannot be considered in ascertaining the damage to property because of change of grade of a street.</p> <p>6. -: Public Improvements: Sidewalks: Change of Grade: Damages. A property owner has no right of action against a city merely because an ordinance is passed authorizing a change of grade in the street. Such right of action arises only after the work is actually done.</p> <p>7. -: ———: -: -: Right of Action. Defendant city was proceeding with the construction of sidewalks at a new ■ .grade in front of plaintiff’s property. The fact that the plaintiff made an independent contract for the doing of the work will not defeat his right of action for damages.</p>

<p>1. ESTOPPEL: Equitable Estoppel: Definition. Equitable estoppel or estoppel in pate, is that condition in which justice forbids that one speak the truth in his own behalf. ■</p> <p>2. -: -: Foundation of Doctrine. The doctrine of equitable estoppel rests upon the principle that where one of two innocent persons, each guiltless of intentional or moral wrong, must suffer a loss it must be borne by the one of them, who by his conduct, acts or omissions has rendered the injury possible.</p> <p>3. BILLS AND NOTES: Principal and Surety: Action Against Surety: Equitable Estoppel as a Defense. Action on a promissorry note, plaintiff being' the holder and defendants sureties, though signing as makers. Plaintiff bank assured -defendant sureties that it had in its possession sufficient funds of the principal debtor to satisfy all claims and extended the note without the consent of the sureties. Defendants by such assurances were prevented from paying the note and seeking redress against the principal debtor, who at that time was solvent. Such principal debtor, later having become insolvent, plaintiff ■ was estopped from asserting defendant’s liability.</p> <p>4. ESTOPPEL: Equitable Estoppel: Applicable in Courts of Law. Although the doctrine of equitable estoppel is preeminently the creature of equity, yet it has been incorporated into the law and is applied as well in courts of law as of equity.</p> <p>6. ACTIONS: Defenses: Equitable in Legal Actions. Since courts of law recognize estoppel in pate, such defense does not convert an action at law. on a note into one in equity.</p>

<p>1. INSURANCE: Insurable Interest. A party cannot collect insurance upon property in which he has no insurable interest.</p> <p>2. -: -: Validity of Contract: Waiver. Where,a husband has conveyed an undivided half interest in his property he may not thereafter insure the entire property in his own name and collect the insurance. And no waiver or conduct on the part of the insurer can legalize such insurance.</p> <p>Z. -; Application for Fire Insurance: Misstatements in: Estoppel of Insurer. Where the agent of an insurance company incorrectly fills out an application from facts given him by an applicant who can read and the insured signs the application without reading it relying upon the statements of the insurance agent that it is properly filled out, the defendant is estopped from showing any breach of warranty as to such matter incorrectly filled in, if the application was prepared by the 'agent with full knowledge of the facts.</p> <p>4. -: Application for Policy: Undivided Interest of Insured. R. S. 1909, sec. 7020, which provides for valued insurance policies, applies to a policy insuring an undivided interest in property and insurer is estopped from denying that the property insured was worth the amount of the poliey at the time of its issuance.</p> <p>5. -: Action on Fire Insurance Policy: Erroneous Instruction. Action on fire insurance policy. Ah instruction examined and held erroneous in the light of sections 7020, 7021, 7030, R. S. 1909, because the instruction did not permit the jury to assess the damages by determining the depreciation, if any, in the property insured.</p> <p>6. -: Construction of Fire Insurance Contract. Where a fire insurance policy insured a dwelling at a specified sum, the household furniture at another sum, vehicles at another and an out building at another sum, the policy is a divisible or severable contract and in an action on the policy the court should submit separately the questions of loss and depreciation in each instance. .</p> <p>'7. -: Non-payment of Loss Under Fire Insurance Policy: When Not Penalized. Sec. 7068, R. S. 1909. (amended Laws 1911, p. 282), is not intended to penalize an insurance company for resisting a claim a material part of which the company has good reason to believe is not due the plaintiff.</p>

<p>1. CONTRACTS: Lex Loci Contractus. Action on a contract executed in the State of Illinois. The contract is governed by the laws of that State.</p> <p>2. -: Statutory and Common Law: Presumption. Where in a suit upon a contract executed in another State and governed by the laws of that State, the statute law of that State in such case is not shown, it is presumed that the common law is yet in force there.</p> <p>3. COMMON LAW: Rules of Decision: Sister State. Where a decision must be based on the common law of a sister State, where no statute law of that State on the subject is shown, . the courts will follow the decisions of our own State pertaining thereto.</p> <p>4. HUSBAND AND WIFE: Contract of Wife: Action as Feme Sole. A married woman can maintain, in this State, a suit at law in her own name (R. S. 1909, sec. 8304) on a contract made in another State, even though the common law applies as to the construction and effect of the contract.</p> <p>5. EVIDENCE: .Motion to Strike out Testimony: When Properly Overruled. Where the first and only objection to the testimony of a witness was made when such witness was testifying to transactions about which he was unquestionably a competent witness, a motion to exclude the testimony on the ground that the witness was incompetent and because no foundation had been laid, is properly overruled.</p> <p>6. -: Admissible in Part: Husband and Wife. A motion to exclude all the testimony of a husband who testified concerning his acts as agent for his wife was properly denied where the principal part of his testimony was competent.</p> <p>■7. -: Interest: Contract. Action by a married woman on a contract to manufacture lumber for defendant. Testimony by her husband that some of the lumber had been ready for delivery a considerable time before defendant' had accepted it, was competent to reduce the amount of interest wnich. defendant might be entitled to if the jury found an agreement to pay interest.</p> <p>8. -: Exclusion: Harmless Error, When. Action on a contract to manufacture lumber for defendant. Exclusion of defendant’s testimony as to whether he had continued to receive estimates and pay for the lumber as the contract required was not injurious to defendant where it was not denied that he did not accept lumber and pay therefor.</p> <p>9. Interest: Statutory .Rigiht. Interest is purely a creature of statute and a party seeking- to recover it must there find his authority.</p> <p>10. -: Rate of: Contract: Verbal: In Writing. A contract rate of interest may go to eight per cent if in writing (Sec. 7180, R. S. 1909), but under sec. 7179, R. S. 1909, interest in excess of six per cent is not allowable when the agreement to pay is verbal.</p> <p>11. INSTRUCTIONS: Interest: Precision of Instruction. Where instruction for plaintiff did not state in direct and positive terms under what circumstances defendant would be entitled to interest, the refusal of defendant’s proper instruction thereon was error.</p> <p>12. INTEREST: Verbal Agreement: Rate: Statute. ^Where one verbally agreed to pay seven per cent, he agreed under sec. 7179, R. S. 1909, to pay interest and may be charged with the statutory rate of six per cent.</p>

<p>1. APPEAL AND ERROR: Uncertainty of Judgment: Error Not Presented Below. Action to enjoin defendant electric company from exceeding its rights under franchise given by plaintiff city, defendant contending that it had not violated its franchise. Injunction having been issued, defendant cannot object that the judgment did not show whether certain acts were violations, that matter not having been urged on motion for new trial.</p> <p>2. EQUITY CASES: Findings of Facts and Conclusions of Law. R. S. 1909, sec. 1972, concerning written findings of facts and conclusions of law, is not mandatory as to suits in equity.</p> <p>3. INJUNCTIONS: Sufficiency of Judgment. The franchise held by defendant from plaintiff city specified the purposes for which defendant might sell its current excluding lighting purposes. •A judgment enjoining defendant from selling current for lighting is sufficiently definite.</p> <p>4. APPEAL AND ERROR: Abstracts: Court Rules. Where the abstract did not comply with Springfield Court of Appeals’ rule No. 15, relating to indexing and preparation of abstracts, judgment may be affirmed for that reason.</p>

<p>1. COMMON CARRIERS: Interstate Commerce: Carmack Amendment: Common-law Liability. In a suit brought by a shipper of perishable products against the initial carrier of an interstate shipment, for damage arising from fresh meat spoiling while in transit, the petition need not allege negligence upon the part of the carrier but may sue the initial carrier upon its common-law liability as an insurer since the Carmack Amendment to the Hepburn Act imposed upon the initial carrier the same liability which the common law imposed upon carriers .generally.</p> <p>2. -: -: -: The common-law rule of liability was not limited to negligence but went beyond that and made the carrier liable for any loss or damage not the act of God or the public enemy. In course of time another exception was added, namely, where the property transported became damaged by reason of its own vice or inherent infirmity, and without fault on the part of the carrier. In such case also the latter was not liable.</p> <p>3.-: -: -: -: Even in the case of a shipment of fresh meat, which is of a highly perishable nature, and where the shipment is in the shipper’s car and he does his own original icing, loading, Sispection, closing and sealing of the car, and the carrier has no opportunity to inspect the meat and nothing to do with the inside of the car, except to follow icing directions which can he done from the outside without opening or disturbing that part of the car where the meat is, the mere pleading of a delivery to the carrier, in good condition and properly packed, and the delivery by it after transportation in a damaged condition, is sufficient to state a case against the carrier because the reasons for holding the carrier to its strict common-law liability in such a case are as strong as in any other case of an unaccompanied shipment where the means of knowing what has happened to the property in transit are all in the possession of the carrier. There might be cases where a shipment would be for such a great distance, covering such a length of time as that, from the known tendency of meat to spoil in that time, no presumpion of fault on the part of the carrier would arise from the mere fact that it spoiled in the time necessarily occupied in the journey, hut the present case presents no such features.</p> <p>4. -: -: -: -: Burden of Proof. In the case of a shipment of the kind here in question, although the burden is on defendant to show that the loss arose through one of the causes from which a carrier is exempt as an insurer, yet the plaintiff had the prior burden of showing that it delivered the meat in good condition properly prepared for shipment. While the burden is on defendant to show non-liability as an insurer, yet that burden does not arise until after the shipper has, by proof, established the facts necessary to create that burden.</p> <p>5. -: -: -: -: -: In this case the meat was shipped in plaintiff’s own cars. They were loaded, iced, and sealed by plaintiff and delivered for shipment as a sealed car and defendant had nothing to do with the inside thereof. The bill of lading contained no admission on the part of defendant that the meat was in good condition, properly iced and packed for shipment. These facts were denied in the answer. Hence the court could not give a peremptory instruction to find for plaintiff since this would be telling the jury they must believe plaintiff’s evidence that the meat was in good condition and properly packed.</p> <p>6.-: -: -: -: -: Evidence: Jury Question. This was a shipment of perishable products in a sealed car of plaintiff’s own make and choosing, with the inside of which defendant had nothing to do except to follow icing instructions. The defendant, as a common carrier, did not insure against the meat spoiling from its inherent tendency to decay, not influenced, affected or brought about in any way by any failure of defendant to perform its public duty, and, therefore, it should be permitted to lay before the jury any competent evidence which would tend to show that the meat spoiled solely because of its own tendency. The defendant is not required to prove this by evidence of an express and positive character 'directly to that effect. It may be shown by circumstantial evidence which tends to eliminate every 'possible cause but that. And where there is evidence tending to show that the meat spoiled from its own tendency, either direct evidence to that effect or circumstantial evidence which tends to eliminate every other cause, it is for the jury to say whether the defendant should be held liable or not.</p> <p>Shipping Instructions. It being conceded that the meat was shipped in plaintiff’s own cars, that they were inspected, iced, loaded, closed and sealed by plaintiff; that the cars moved forward without delay and went forward to destination with seals unbroken, the decay of the meat must have arisen either because defendant failed to follow icing instructions or because of the meats inherent tendency to decay. If the meat decayed from the former cause the defendant would be liable; if it decayed from the latter cause the defendant would not be liable. If the defendant introduced testimony tending to show that it followed icing instructions strictly and the jury believed that it did so follow them, then, since under the circumstances of this case every other reasonable cause for the decay of the meat is excluded except its natural tendency, the jury would have the right to say that the meat spoiled from the latter cause. In short, whenever the evidence is in such condition that the jury can reasonably draw the inference that the meat was not spoiled, or that, if spoiled, it was caused by plaintiff’s improper packing, icing, or instructions or because of its inherent tendency, unaffected by anything in the carrier’s treatment or conduct, then the question of the latter’s liability is for the jury.</p>

<p>Appeal from Adair Circuit Court. — Hon. G. D. Stewart, Judge.</p>

<p>1. DAMAGES: Municipal Corporations: Acceptance of Streets: Invitation to Use. A city, in merely accepting a street or by declaring that it is such, or in deciding to what extent the street shall be given to the public for use, acts in its governmental capacity, and cannot be held liable for any neglect of the street until after the city has acted in its ministerial capacity by inviting the public to use the same.</p> <p>2. -: -: -: -; Extent of Invitation. It is a governmental matter for a city to say to what extent it will offer a street to the public for use; and if an individual attempts to use a portion which the city has neither expressly nor impliedly invited him to use, and he is injured thereon, he cannot look to the city for damages.</p> <p>3. -: -: -: -: -: Liability for Defect. It is not the improvement of the street that fixes liability for neglect of a defect therein. It is the invitation, on the part of the city, to the public to use that portion of the street where the defect is and the traveller is injured, that renders the city liable for neglecting to keep such portion in a reasonably safe condition for travel. Improvement by the city is evidence that the portion so improved has been given to the public to be used, but the city’s invitation can be shown in other ways.</p> <p>4. —--: -: -: -: -: -: When it is shown that the city has opened for public travel a street that is level and smooth, fit for travel from property line to property line without anything being done to it, the invitation is that every part thereof may be used. And when an eight-foot strip on the side, suitable for travel, has been left for peopl? to walk upon as a sidewalk and a crossing leads to the strip and the strip has been used by the public for a sidewalk, and after these conditions had become established a row of stakes was driven in said strip rendering the walk dangerous and unsafe, over which plaintiff fell and was injured while exercising ordinary care, the city is liable notwithstanding the fact that no sidewalk of brick, wood or stone was constructed there.</p> <p>5. -: -: -: -: -: Sidewalk. A sidewalk, as its name indicates, is nothing more than a side walk, that is, a path or way for the use of foot passengers at the side of a street. Usually it is paved and this is so often the case that in using the term “sidewalk” the construction is thought of as constituting the sidewalk. But it is not the constructing of a paved pathway that renders the city liable for a failure to keep it reasonable safe; it is the invitation on the part of the city to the public to use the way for a walk. And that invitation may be extended, as in this case, in other ways than by having a paved walk constructed thereon.</p> <p>6. -: -: -: -: -- — : Contributory Negligence. Evidence examined and a pedestrian exonerated from contributory negligence as a matter of law.</p>

<p>Appeal from Vernon Circuit Court. — Hon. B. G. Thurmond, Judge.</p>

<p>CARRIERS OF LIVESTOCK: Railroads: Interstate Commerce: Limitation of Value and Time to Sue: Notice: Waiver. Shipment of a valuable race horse from Independence, Missouri, to Denver, Colorado, is an interstate shipment and a provision .in the contract of shipment limiting the value in case of loss, providing for written notice of loss and limiting the time for bringing an action, are reasonable and legal, and the provision ■ as to notice cannot be waived by the carrier.</p>

<p>1. MINES AND MINING: Damages: Safety Device: Elevator: Evidence. Sufficiency of evidence discussed as to defects in the safety device to an elevator in a mine.</p> <p>2. -: Notice: Elevator Cable: Former Break: Evidence. Evidence that an elevator cable in an adjoining mining shaft broke a year prior to the time of the break in the other shaft which caused the death of an employee is not admissible to prove notice of knowledge of defects in the latter cable.</p> <p>3. -: Deceased Employee's Widow: Child of Deceased by Former Marriage: Evidence. It is error to allow evidence or statements of counsel in a suit of the widow, that the deceased employee left a minor child by a former marriage. She is not under legal obligation to support such child and the fact that there is such child is not an element of damage.</p> <p>4. -: Mining Shaft Elevator: Defect: Knowledge: Repair. where the proprietor of an elevator in a mining shaft knows of a dangerous defect in the elevator and continues to use it and an employee is killed by its falling to the bottom of the shaft, the owner cannot escape liability by the fact that he had not known of the d'efect long enough to repair it.</p>

<p>■1. REFEREES: Costs: Motion to Strike Out: Fee Bills. The statutes do not include referees or referees’ stenographers among the court officers who are entitled to a fee bill and no such bill may be issued pending the final disposition of the cause in the circuit court.</p> <p>2. -: —-—: -: Executions. Without a judgment for one or the other parties to a cause, an incidental judgment for costs could not be rendered and an execution for costs must •run in the name of the party in whose favor the judgment is rendered.</p>

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Jurisdiction: Ultra Vires. As to the,defense of ultra vires there can he no waiver or estoppel since defendant’s officers even if they had afterwards been informed of the falsity of the representations, could not have hound the society hy waiver or estoppel to a contract which its charter from the State could not authorize.</p> <p>2. -: Beneficiaries: Adopted Children. A'foreign fraternal society which authorized the inclusion of “adopted children . . . or other relatives” among the classes eligible to designation as beneficiaries in death benefit certificates, will he accorded the benefits of the laws in this State relating to fraternal beneficiary societies, because an adopted child of a member, may in this State, be designated as a beneficiary, such child being the heir of the member and “other relatives” is identical with “blood relatives.”</p> <p>3. EVIDENCE: Hearsay: Pedigree. When proof of age is not offered for any purpose in connection with the subject of the man’s pedigree or age, declarations of the party who is dead respecting his age when he enlisted in the army are the purest hearsay and should be excluded under the general hearsay rule.</p> <p>4. -: -: -. Where the age of a party is in issue, the court may admit an expression of opinion by a witness as to his age, based on the appearance of the party at the time, accompanied with a description of the appearance from which such opinion was formed.</p>

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

<p>1. HUSBAND AND WIFE: Alienation of Affections. Evidence reviewed and held to be amply sufficient to sbow that defendant, by gifts of money and presents, by artful words and blandishments and by promises of money and luxury, enticed plaintiff’s wife away and alienated her affections from him, and that defendant did this knowing she was plaintiffs wife and intending to alienate her affections.</p> <p>2. --: -: Common-law Marriage. Where there is an express, present mutual contract of marriage entered into by a man and woman, he promising her to he a good husband and she promising him to be a good and faithful wife, and the parties thereupon immediately ” enter into the marriage relation and live together and hold themselves out as husband and wife, a valid common-law marriage is created from which will arise all the rights that flow from marriage solemnized in the usual and proper form, and would, therefore, entitle one of the parties to maintain a suit for alienation the same as in the case of a statutory marriage.</p> <p>3. -T: -: -: Contracted in Another State: Presumption of Validity. The contract of marriage is a contract ■jure gentium and consent and the assumption of the marriage status are all that is required by natural or public law. In ' the absence of local restrictions or regulations^ parties, if otherwise capable, are entitled to contract marriage as of common right: Being, thus recognized by the law of nations, if a contract of marriage made in another State is claimed . to be illegal, the burden is upon the one who asserts the illegality.</p> <p>4. INSTRUCTIONS: Punitive Damages: Malice. Punitive damages are not allowed in the absence of malice. But the enticing of another’s wife is an act inherently wrong and necessarily known to be wrong, and if the alienation from the husband is intentionally done, the law implies malice.</p> <p>5. -: -: -: Referring to Petition. An instruction containing the words “as charged in plaintiff’s petition” is not erroneous if the instruction contains all the facts necessary to entitle plaintiff to recover.</p>

<p>1. APPELLATE PROCEDURE: Divorce: Matter Dehors the Record: Motion ex Necessitate Rei. Matters dehors the record will not be considered under a motion ex necessitate rei when there is nothing “from the' necessity of the thing” compelling the appellate court to pay attention to such matters in order to ascertain its own right and power to adjudicate the matters presented to it.</p> <p>2. -: -: -: -: Remarriage of Successful Party after Appeal. A wife obtained a decree of divorce. If, after her husband had appealed and before the appeal was determined, she married again, she violated no law in so doing, nor did she destroy' the validity of the judgment rendered upon her cause of action at the date of the decree. She ran the risk of being placed in a very awkward situation if her divorce were set aside. But when it is affirmed, the affirmance relates hack to the date of the judgment.</p>

<p>1. VENDOR: Delivery: Bill of Lading: Title. Where a vendor delivers property to a carrier consigned to the vendee it is a delivery to the vendee and title passes to him. But if the vendor consigns the property to himself and takes a bill of lading to himself to which he attaches a draft on the vendee for the purchase money, the title remains in the vendor until payment of the draft.</p> <p>2. -: Bill of Lading: Title: Collection. Even where a vendor consigns property to himself and attaches -a draft on the vendee to the bill of lading only for the purpose of collecting the purchase price, the title remains in the vendor until that price is. paid, or tendered.</p> <p>3. Petition: Contract: Proof: Total Failure. A petition declared on a contract for. sale and delivery of property at a certain place and alleged a delivery there. The evidence showed a delivery to a carrier and shipment from that place ■to a distant place, the vendor taking a bill of lading, making himself the consignee, and attaching a draft on the vendee and sending to destination for collection before delivery,. It was MM that there was a total failure of proof.</p> <p>4. -. W.aiver: Pleading.- There can be no recovery on a waiver of the terms of a contract unless the waiver be pleaded.</p> <p>5. RES ADJUDICATA: Agreed Facts: Evidence. A case tried on an agreed statement of facts and afterwards the judgment reversed and on second trial tried hy oral evidence .differing essentially from the agreed statement, the rule of res adjudicate) does not apply.</p> <p>6. PLEADING: Answer. A case tried on the assumption that an answer consisting of a general denial is filed will he regarded as filed.</p>

<p>1. CRIMINAL LAW. Practicing Medicine without License: Joint .Indictment. Two or more persons cannot be jointly indicted where the offense charged is by its very nature several. ■A license to practice medicine must be obtained by individuals. Each must have his own license. The law does not provide for the issuance of a license to practice medicine jointly to -two persons. If two persons engage in the task of medically treating a sick person without a license the two have not committed a joint offense but each has committed a separate offense.</p> <p>2. -: -: -. The treating of the sick is not an act in itself criminal. It is only so with regard to the particular personal default of the one charged in failing to obtain a license authorizing him to perform that service. And where the offense does not wholly arise from the joint act of all the defendants, but from such act, joined with some personal, and particular defect or omission of each defendant, without which it would be no offense, the indictment must charge them severally and not jointly.</p> <p>3. -: -: -: Joint Offense. To convict of a joint offense the act proved must be joint. Each must be .guilty 'of that which the other does. They both must be guilty of one and the same offense.</p>

<p>1. CONVERSION: Thief: Shipping Clerk: Selling in Own Name. Plaintiff, a coal mining corporation in Kansas, shipped coal to market in Kansas City, Missouri, to defendant, a coal commission company who would se.ll for plaintiff’s account and remit proceeds. Plaintiff had in its employ as billing and shipping clerk, one Hiatt, and he, through a space oi three years, from time to time, embezzled carloads of plaintiff’s coal and shipped to defendant for sale for himself, the proceeds to be remitted to him. These shipments amounted in value to more than $4,000 and when plaintiff discovered Hiatt’s action, its president demanded payment of defendant which was refused. It was held that defendant was guilty of conversion and-was liable to plaintiff.</p> <p>2. -: Notes and Stocks: Indicia of Ownership. Where an owner of property such as notes or stocks, gives his employee possession thereof with every itndieia of ownership, and the employee transfers to an innocent purchaser, then, on the principle that when one of two innocent persons must suffer by the act of a third person, the loss should be put upon the one who put it in the power of such person to commit the fraud. But that principle does not apply to a coal mining corporation whose billing and shipping clerk ships coal to a commission company for himself, the sale money to be remitted to him.</p> <p>3. —--■: Estoppel: . Burden: Damage. One ■ charged with conversion by reason of innocently selling an owner’s property for the thief who had placed it in such person’s hand for sale and who claims that the owner is estopped by reason of leading him to believe that he would not be looked to for payment, and that he therefor did not endeavor to indemnify himself from the thief, must show that he suffered a loss by reason of not making such effort.</p>

<p>1. REPLEVIN: Agister’s Lien: Mortgage: Kansas Agistment. Wliere the cattle, the parties and the agistment were all in Kansas, as well as the mortgage, the rights of the agister and those of the mortgagee, were governed by Kansas law. So that where mortgaged cattle were pastured under circumstances which give the agister a lien therein, and the owner of the cattle secretly shipped them to market in Missouri, the lien of the agister took precedence over the lien of the mortgage as that is the rule in Kansas.</p> <p>2. -: -: -: Replevin to Enforce Lien. Under the circumstances above stated, the agister could follow the cattle to Missouri and then replevin enough of the cattle to satisfy his lien. And the suit herein was not a suit to enforce the lien but only to get possession of the cattle so that the lien could thereafter be enforced.</p> <p>3. -: -: -: -: Jurisdiction. Cause of Action. The justice in Missouri before whom the suit was brought had jurisdiction to entertain such replevin suit. And the fact that in deciding the case, he was required to construe and apply Kansas law, did not rob him of jurisdiction. The cause of action in replevin arose in Missouri since that is where the defendant refused to surrender the cattle upon plaintiff’s demand.</p>

<p>CARRIERS OF GOODS: Damages: Delay in Transportation: Notice to Carrier. In a suit upon the carrier’s common-law liability for damages to a shipment of berries, the fact that the notice to the carrier that claim for damages would be made, gave negligent delay as the cause, will not defeat the case where the notice given afforded the carrier a fair opportunity to investigate the loss at a time when the facts were fresh and the information readily obtainable, and the notice did not mislead the carrier so as to prevent an investigation as to the real cause or the merits of the claim.</p>

<p>1. LAWYER AND CLIENT: Principal & Agent: Printing Briefs: Liability. A solicitor for a printer who printed briefs for use in appellate courts, learned from the court docket that defendant was the lawyer for the appellant in a case appearing on that docket. He sought out defendant and obtained an order for briefs, which he printed and delivered to defendant. There being no showing that the lawyer agreed to pay for the briefs, he was not personally liable.</p> <p>2. —--: Authority: Agreement: Briefs. A lawyer has implied authority to order briefs printed for use in his client’s case in an appellate court, and if he is known to the printer as being his client’s attorney, he is not liable unless he agrees to be personally bound.</p> <p>3. -: Custom. A custom relied upon by plaintiff should he pleaded.</p>

<p>Appeal from Jackson Circuit Court. — Son. Frank Q. Johnson, Judge.</p>

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

<p>1. EQUITY: Foreclosure: Assignment of Insurance Policy: Election. Where a policy of life insurance was assigned to secure a note, the obtaining of a general judgment on the note does not bar the remedy for the endorsement of the lien upon the security for that debt.</p> <p>2. -: -: -: Right to Convert Policy into Paid-up Insurance. Where the policy assigned provided that, upon ¡the failure to pay premiums, it could be converted into a paid-up policy for a certain proportion of its face value; and the assignor failed to pay the premiums as he was required to do, the assignee had the right, after notice, to convert the policy into paid-up insurance according to its terms.</p> <p>3. -: : -: —-: Necessary Parties. In this foreclosure proceeding the Insurance Company has not nor claims an interest in the controversy. The sole question is whether plaintiff has a lien on the policy for the debt and whether that lien shall be enforced by foreclosure. Hence the insurance company is not a necessary party.</p> <p>4. -: -: Limitation. The action to foreclose is not barred by the Statute of Limitations so long as the debt, for which the security is given, is kept alive!. .</p> <p>5. -: -: ———: Procedure: Amending Petition Adding New Parties. After the casé had been tried and submitted to the court and had been taken under advisement, the defendant made an assignment of thé policy to his attorney who otook with full notice of all .of plaintiff’s rights. Plaintiff -thereupon filed an amended petition making said attorney a party defendant. Held, that, the amendment was allowable. The amended petition was confined to the same subject-matter ;as before, the hew facts added were those of the transfer to the attorney in no way affecting the issues, though, perhaps, affecting the validity of .any judgment that might have been rendered for plaintiff under the petition before amendment.</p> <p>(6. -: -: -: : -: Jurisdiction: Waiver by Motion Going to Merits. Although no summons was served upon the new party defendant, yet this did not invalidate the judgment, since the new party defendant, by filing a motion to strike out the amended petition, entered his general appearance. The motion went to the merits of the case' and this made the mover’s appearance general and waived the lack of service of summons upon him even if the moving party says his appearance is special only, and he was not intending to enter his .general appearnce.</p> <p>7. -: -: -: -: Evidence: Deposition of Defendant. The taking of defendant’s deposition by plaintiff was a waiver of defendant’s incompetency as a witness on account of the death of the opposite party to the contract of assignment; but the taking of the deposition did not constitute him 'plaintiff’s witness so as to make defendant’s statements in tlie deposition admissible as statements or admissions of plaintiff.</p> <p>8. JUDGMENTS: Res Adjudicata. After a judgment had been rendered against defendant upon the note, to secure which the policy was assigned, the questions as to prior payment of the note, that the maker did not owe it, that the payee was not the one to whom it should have been made and similar questions were res adjudicaba in the proceeding to foreclose.</p>

<p>BILLS AND NOTES: Consideration: Assumption of Original Obligation: Rights of Co-maker. Plaintiff sold a store taking a note, signed by S. as part payment of purchase price. After-wards, S. sold the store to K. but, owing to the Bulk Sales Law (Laws 191-3, p. 163) the consent of plaintiff had to be obtained. K. and S. went to plaintiff and there agreed that K. should become the principal obligor on the note, and he signed it as maker thereof while it was a subsisting and unmatured obligation. Held that there was a consideration for the obligation thus created, and that K. was not entitled to notice of dishonor; and that a subsequent agreement between S. and K. whereby ‘the latter sold the store back to S. and she agreed to reassume the note, all of which was without the knowledge of plaintiff, did not affect plaintiff’s right to hold K. as a maker of the note.</p>

<p>1. INSURANCE, ACCIDENT: Meaning of the Term “Accident.” MeC., holding a policy of accident insurance, whereby his estate was to be paid $5000 in case of his death by accident, forcibly put another out of a restaurant and, after so doing, was struck upon the head with a heavy wooden bar in the hands of another man, from the affects of which blow insured died. Held, that his death was an “accident” within the meaning of the term as used in insurance policies since, as to insured, it was unforeseen, unexpected and unusual, not taking place according to the usual course of things.</p> <p>2. -: -: Injuries Intentionally Inflicted. Under a policy which, by its terms, did not extend to “any injury fatal or otherwise, intentionally inflicted by any other person” the company was not liable where the insured’s injuries were intentionally inflicted by another. The insured was the individual intended to be struck and intended to be injured. And, since the policy did not cover any injury intentionally inflicted whether fatal or otherwise, it was not incumbent upon the insurer, in order to escape liability, to prove that the one striking the blow intended to kill insured.</p>