Volume 195 — Missouri Appeal Reports

<p>Appeal from the Buchannan Circuit Court.- — Eon. Chas. E. Mayer, Judge.</p>

<p>1. NEGLIGENCE: Street Railways: Collision. The plaintiff sued to recover damages for injuries received when one of defendant’s cars collided with his wagon. The plaintiff was driving south on Cherry street in Kansas City when said street was icy and slippery. When he came to the intersection of Cherry street with 18th he saw a street car approaching, but unable to stop his horse and wagon, and the motorman was unable to stop the car and the collision resulted. Held, that the plaintiff was guilty of contributory negligence, and the demurrer to the evidence should have been sustained.</p> <p>2. -r-: -:--. A mere error of judgment committed under stress of exiting and imminent danger in an honest and spontaneous effort to avoid injury is not alone proof of negligence.</p>

<p>1. INTOXICATING LIQUORS: Delivery of in Local Option Territory: What Constitutes. Appeal from conviction on a charge of delivering to another, intoxicating liquor in local option territory. Accused received money from another with the understand; ing that he was to procure whisky with same. The money was given by the accused to a third party who advised the accused that he had put some whisky under a certain box. This information the accused conveyed to the purchaser. Held that there was a delivery of the whisky by the accused to such purchaser.</p> <p>2. INSTRUCTIONS: Commenting on Evidence: What Not. In a prosecution for delivery of whisky in local option territory, an instruction stating that certain facts set out in the instruction which the evidence tended to prove would constitute a “delivery” of the whisky by the accused was not erroneous as commenting on the evidence.</p> <p>3. DEFINITION: “Delivery.” There is a delivery of an article when a voluntary and intentional surrender is made of such article by one who is in possession and control of same to another in such a manner that it is intended that the other shall come into possession and control of the article and the other does come' into full possession and control of it. (Peb Eabrington, J.)</p>

<p>1. BILLS AND NOTES: Notice of Infirmities. Action on a promissory note endorsed before maturity, given in payment of a cream separator. Under the evidence the company manufacturing the separator was fully aware by its contract with the company selling' same that all notes taken upon sales were based on a transaction containing a warranty. The manufacturing company took a note which the purchaser gave the selling company with notice of infirmities caused by a breach of such warranty.</p> <p>2. INSTRUCTIONS: Contracts:* Interpretation: Court’s Duty. Where the question of notice of infirmities of a promissory note is a conclusion justified by an interpretation of the contracts, it it the duty of the court to tell he jury the legal effect of such contracts.</p>

<p>1. SALES: Refusal of Buyer to Accept Goods: Damages: Market, Where. Where a buyer refuses to accept goods purchased and the vendor resells same without notice to the buyer, the damage o“ the vendor is the excess of the contract price over the market value at the time and place agreed upon for delivery.' But if there is no market at the time and place of delivery, then the damage is the excess of-the contract price over the market value at the best market obtainable.</p> <p>2. -: -: Damages: What Not Proper Measure. Action to recover damages for refusal of defendant to accept and pay for certain cars of grain which he had purchased from plaintiff. The vendor resold the grain without notice to the purchaser at another market. The damages could not be based on the market valué thereof at the place of delivery, where such place was a town in which the purchaser refusing to accept the goods was the only dealer who handled grain in such large quantities.</p>

<p>1. ANIMALS: Restraining from Running at Large: Statutes. Under section 772, Revised Statutes 1909, it is unlawful for the owner of domestic animals to permit same to run at large outside the owner’s enclosure. Section 779, Revised Statutes 1909, suspends the action of such law until the same is adopted by a majority vote at a general or special election. Sections 784 and 787, Revised Statutes 1909, which were passed later, provide for the adoption of the law by five or more townships in one body under certain conditions. Voters in townships which have already adopted the law under section 787 are eligible to vote in a county election on the same question.</p> <p>2. STATUTES: Repeal by Implication: Duty of Court to Harmonize if Possible. Repeals of statutes by implication are not favored and it is the duty of the courts to so construe a statute and a seemingly inconsistent one subsequently passed that both shall be operative if possible.</p> <p>3. -: -. An act will not be held to be repealed by implication by a subsequent act on the same subject unless there is such an inconsistency that both cannot operate together.</p> <p>4. MANDAMUS: Elections: No Discretionary Matter Remaining: Officer’s Duty. Where the proceedings are regular and no matter of discretion remains to be disposed of by a county court and the only duty left to be performed is that of proceeding with the election, mandamus is the proper remedy to compel such authorities to proceed with the election.</p>

<p>1. JURY: Challenge of Juror: What Not Ground. It is not ground for challenge of a juror for violation of the Local Option Law because such juror was a member of a commercial club which had passed a resolution in favor of law enforcement and urging officials to do their duty in the prosecution of such violations.</p> <p>2. DEFINITION: “Unanimously:” Meaning of. The term unanimously used in connection with a vote taken by an organization on some matter before it does not always mean that every one present voted for the proposition. It generally means that when a viva voce vote is taken no 'one voted in the negative.</p> <p>3. INSTRUCTIONS: Harmless Error: Criminal Law: Credibility of Witnesses. Prosecution for violation of Local Option Law. There was abundant testimony of the commission of similar crimes by the accused and the offense was clearly proven. The accused having testified for himself, an instruction to the effect that his interest and the fact that he was on trial might be considered as affecting his credibility was not reversible error, notwithstanding that a general instruction on the credibility of witnesses had been given.</p>

<p>1. HUSBAND AND WIFE: Assault and Battery.: Liability. A hus•band is not liable in a civil action for an assault and battery on the wife either at common law, or under the Married Womans Statute.</p> <p>2. MOTION TO STRIKE OUT ANSWER: Demurrer: Exception. A motion to strike out all that part of an answer setting up a special defense on the ground that it fails to state a legal defense amounts to a demurrer and if sustained, the defendant may save the point without a motion for new trial, or incorporating it in a bill of exceptions.</p> <p>3. DIVORCE: Record: Evidence. The record of a divorce proceeding instituted by the husband wherein it is alleged in the petiton that a marriage existed at a time antedating an assault and battery on the wife by the husband, which petition was adjudged confessed and a decree of divorce granted, is evidence tending to prove the parties were husband' and wife at the time of the assault.</p>

<p>Appeal from Boone Circuit Court — Hem. D. H. Harris, Judge.</p>

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

<p>1. HABEAS CORPUS: Parent and Child:- Custody and Control. This is an original proceeding by habeas corpus .begun by the father, the petitioner, against the respondents, who were the grandparents of his infant daughter, and under whose control she has been for several years. The question presented w-as whether the true welfare of the child will be promoted by taking her from her grandparents, who reared her since infancy, and the death of her mother, and to whom she is strongly attached arid give her to her father who has married a second time: Held, that the peremptory writ is denied and the infant is awarded to the custody of respondents.</p> <p>2. -: -: -. The rights of neither parent should be disregarded or overlooked yet the welfare of the child is superior to the claim of either parent</p> <p>3. -: --. As between father and grandparents of an infant, the father being the natural guardian of his child, is entitled to the custody of its person “unless it is made manifest to the court that the father for reason, is unfit or incompetent to take charge of it, or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it at the hands of the court.”</p>

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

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

<p>Appeal from Jackson Circuit Court. — Hon. James P. Aylward, Special Judge.</p>

<p>1. CONTRACTS: Recisslon: Shipment of Flour. This is an action for a breach of contract, wherein the plaintiff purchased certain flour of defendant to be shipped at a future date. The defendant shipped four cars as per contract, but plaintiff did not pay draft until a month after their arrival and storage in railroad warehouse. The defendant refused to ship any more and this action followed. Held, that the case was fairly tried and submitted to the jury.</p> <p>2. EVIDENCE: Records: Entries. An officer of a corporation who has charge and general supervision of the books in his office which are kept in the usual course of business and who has compared the entries in the books with the memoranda from which they were made is a competent witness to identify the books and testify from their contents. The original books of entry being without the jurisdiction of the court.</p> <p>S. CONTRACTS: Vendee. Insolvency of a vendee .is a sufficient justification of a refusal of the vendor to ship goods, or of stopping shipments in transitu.</p>

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

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

<p>PERSONAL INJURIES: Notice to City: Place. A notice to the Mayor required by the statute, of the place of an injury in a city in the following words, was field to be insufficient as being too indefinite, viz: “You are hereby notified and informed that the undersigned, John E. Krucker, was injured on the 5th day of January, 1915, by slipping on the ice on the sidewalk on the west side of Twenty-fourth street between Jackson street and Vories street, about six-thirty A. M. Said injury consists of a broken fibula and lacerations and ruptures of the ligaments and muscles in and about the ankle. You are further informed that the undersigned will claim damages on account of the said injury from the city of St. Joseph.’’</p>

<p>1. ELECTION: Agreed Statement of Facts: Support of Judgment. An agreed statement of facts is like a special verdict and it must contain every essential element, without any omission, to support the judgment.</p> <p>2. -: Judgment for Respondent. If in a case submitted on an agreed statement of facts judgment has been rendered against complaining party and he appeals, he must be supported by such statement clearly and unequivocally on every essential in his case; otherwise, the judgment should be for the respondent.</p> <p>3. ELECTIONS: Student Voter: Presumption. Students who have been allowed to vote by election officers will be presumed to be legal voters in a contested election.</p> <p>4. -: -: Intention: Evidence. A student attending school away from his home may by proper intention become a voter in the town or city where the school is located. Though his declaration or oath is” not conclusive as to such intention.</p> <p>5. -: Election Contest: Onus. In an election contest the onus is on the contestant to show that a student voter was not legally qualified to vote. ,</p> <p>6. -: Purpose: Intention to Leave. A person who leaves his home and resides in a town or city for the sole purpose of attending school there for three years, intending to leave at the expiration of that time and take up la residence elsewhere, is not a legal voter in such town or city.</p> <p>7. -: Gain and Loss of Residence: Evidence. Under the election law of Missouri a student neither gains nor loses a residence by attending school at some other place than his home; and while he may become a resident of such place, his intention to do so should be evidenced by something more than his mere physical stay in the place.</p>

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

<p>1. NEGLIGENCE: Automobile Collision: Demurrer to Evidence: Physical Facts. Two automobiles collided in the streets in a city, injuring a person in one of them. Each party claimed the other to have run into him. Evidence examined, together with physical facts and ruled that such evidence and facts made a question for the jury.</p> <p>2. -: Pleading: Instruction: Broadening the Issues. It was alleged in the petition in damages for injury in a collision between two automoblies that defendant saw plaintiff in front of his machine in time to have stopped and avoided a collision. The instructions ignored such allegation and submitted whether plaintiff could have been seen as he approached the point of collision. Held, to be a change of issue alleged and reversible error.</p> <p>3. -; Ordinance: Date when in Force: Verbal Evidence. An ordinance regulating speed of automobiles which shows on its face that it was passed in July, 1914, cannot be shown by the verbal testimony of a city clerk to have been in force in December, 1913.</p> <p>4 -; Objection to Evidence: Right to Question Application. Though one does not object to the admission of a city ordinance in evidence, that will not preclude him from claiming that it fails to prove anything against his defense.</p> <p>5. -: Regulation of Speed: Negligence: Presumption. A city has police power to provide a rate of speed for automobiles at certain places. And under such power it may declare an excess of such speed to be negligence absolutely, or, that it is only presumptively negligence, subject to excuse by a party sued.</p> <p>6. -: Collision: Photograph: When Taken. Photographs of an automobile which: has been in a collision may be received in evidence with the witness’ testimony explaining its condition, for the purpose of showing it was run into by the other car. And the fact of any change in the car before the picture was taken may be explained by the witness.</p> <p>7. -: Experts. When there is a question which one of the automobiles ran into the other experts may be allowed to testify from the condition of the car, which appeared to have been struck and which appeared to* have done the striking.</p>

<p>1. DIVORCE: Condonation: Definition. The term “condonation.” in divorce proceedings means a forgiveness and pardon after a full knowledge of past wrong, fault or deficiency in the express or implied condition that same will not be repeated.</p> <p>2. -: -: -. The term “condonation” as used in divorce proceedings has no different meaning than when the term is applied to any other duty or obligation, such as grows out of the relation of master and servant, lessor and lessee, etc.</p> <p>3. -: -: -: Less Strictness in Case of Wife. The doctrine of condonation is not applied to the rights of the wife with such strictness as to the rights of the husband. It rarely bars her redress.</p> <p>4. -: Condonation: Evidenced by Cohabitation. In cases of adultery the evidence of cohabitation as proof of condonation is more nearly conclusive than in cases of cruelty and indignities.</p> <p>5. -: Cross-bill and Answer. Action by husband against wife for divorce. The wife had formerly sued for divorce, but dismissing her suit because of promises made her by the husband, she had returned to him. Without any new offense on her part, the present action is begun by her husband. The wife has a right to be heard on her cross-bill and answer.</p> <p>6. -: Condonation: Conclusiveness of Evidence. Action by husband for divorce there being an answer and cross-bill by wife. Evidence of condonation on wife’s part considered not conclusive.</p>

<p>1. INSURANCE: Fire Insurance Policy: Stipulations in: Forfeiture. Action on fire insurance policy. The terms of the policy expressly stipulated that the procuring of other insurance should render void such policy. The insured shortly after the issuance of the policy procured additional insurance. The original policy was void, absent waiver on the part of the company.</p> <p>2. -: Agent of Company: Acts and Knowledge of: When Binding on Company. A soliciting agent of an insurance company without power to issue policies is the company’s agent in taking applications with full power and authority as to such applications and acts which he performs and knowledge which he receives and acts on or in connection with such applications are binding on the company.</p> <p>3. -: Town Mutual Fire Insurance Companies: Statutes. By the provisions of section 7166, R. S. 1909, no officer, agent or other employee of town mutual life insurance companies is authorized to waive any conditions of the application or policy of such . company, unless such waiver be reduced to writing upon the application and policy or attached thereto in writing and consented to by the secretary in writing.</p> <p>4. -: Breach of Conditions: Agent’s Knowledge: When Not a Waiver. Action against a town mutual fire insurance company on policy. The mere knowledge by the local agent of such company of a remark made by the insured after the issuance of the policy that the insured had taken out additional insurance in another company which remark was not communicated to the company by the agent was not a waiver by the company of the breach of the policy’s provision that additional insurance should not be taken out.</p>

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

<p>1. CARRIERS: Initial and Connecting: Interpretation of Contract: “Through Shipment.” The law favors the interpretation of contracts for shipment over connecting carriers as being for “through shipment” making the initial carrier with whom the contract is inade, liable for all damages whether caused by the intial carrier or connecting carrier.</p> <p>2. -: -: “Through Shipment:” Evidence. Action against an initial carrier for damage to a carload of apples in transit, the shipment being partly over the line of a connecting carrier. Evidence reviewed and held not to show conclusively that the shipment over the connecting line was not under a contract of through shipment.</p> <p>3. -: Interstate Shipment: Bill of Lading. In the matter of an interstate shipment, governed by the Federal law as interpreted by the Federal decisions, the manner of billing such shipment is not conclusive as to its character, whether a through one or not.</p> <p>4. -: Interstate and Intrastate Shipments: Test for Determining. Whether a shipment is a through one over both the inital and connecting carrier’s lines is to be determined by reference to the intention of the parties touching the continuity of movement from the point of shipment to destination as a single shipment. If through continuity of movement the goods are destined at the time they are started for a point in another state for a single freight charge the shipment is to be regarded as a through shipment though the bill of lading when looked at alone may suggest that it terminates with the initial carrier’s road.</p> <p>5. -: Through Shipments: Bill of Lading. Where there is evidence showing that the parties to a shipment contemplated that it should be a through one, part of which.was over a connecting carrier at a given rate covering the whole distance, whether paid to the initial carrier or connecting carrier, then the initial carrier does not, as a matter of law, destroy the character of the shipment as a through one or relieve itself from liability of a through carrier by issuing a bill of lading over its own line merely and itself reconsigning the goods to such connecting carrier under a general clause of its tariff giving reconsignment rights to all shippers.</p> <p>6. -: Interstate Commerce: Contracts: Schedule Provisions. In interstate Commerce special contracts, either verbal or written, have no validity when not covered by the schedules filed with and approved by the Interstate Commerce Commission.</p> <p>7. -: Through Shipments: Initial and Connecting Carriers: Liability. Where defendant, initial carrier, undertook in the first instance only to ship goods from a point in Missouri to a point in Arkansas and later at that point made a further agreement with the shipper to continue the shipment to another point in Arkansas at a through rate, using another railroad for that purpose, then such further shipment was intrastate, governed by the common-law or state statutes and the connecting carrier became the agent of the initial carrier to make such shipment and the initial carrier is liable for its negligence.</p>

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

<p>Appeal from Mississippi County Circuit Court. — Hon. Frank Kelly, Judge.</p>

<p>1. INSURANCE: Fire Insurance: Proof of Loss: False Affidavit in: Forfeiture. Action on a fire insurance policy which contained a provision that the policy should be void in case of any fraud or any false swearing by the insured either before or after the loss. There could be no recovery where plaintiff admitted in his testimony that the sworn proof of loss was false as to the claimed damage on a boiler which he had included in the list, plaintiff also admitting that he knew at the time he made the proof of loss that there was no damage to the boiler.</p> <p>2. -: False Affidavits: Forfeiture of Policy. False and fraudulent swearing as to any matter in an insurance policy avoids the entire policy.</p> <p>3. TRIAL PRACTICE: Verdict: Directing: When Court Should Direct Verdict. Where plaintiff’s own statement of the facts, which is uncontroverted, shows that he is entitled to no relief, it is the duty of the trial court to direct a verdict for defendant.</p>

<p>Appeal from Jasper County Circuit Court, Division Number Two. — Hon. D. E. Blair, Judge.</p>

<p>1. STREET IMPROVEMENTS: Remonstrance Against: Who May Make: Statutes. In the matter of a street improvement any resident owner of abutting property has a right to remonstrate against such improvement, it matters not whether he resides -on or off the street to be improved. [Sec. 9245, R. S. 1909, as amended by Laws 1911, p. 340.]</p> <p>2. -: ———: Remonstrance by Corporation: When Legal. A remonstrance against street improvements was signed by the President of a corporation which owned abutting property. The stock of the corporation was all owned by the president and his brother and mother. The brother desired the remonstrance signed and the mother left the conduct of the business of the corporation entirely in the hands of the two brothers. Other business of the corporation was entered into as was this remonstrance, by a sort of mutual understanding and not in a formal way. Held, that the signing of the remonstrance was the act of the corporation and that the president had a right to sign same.</p> <p>3. -: Remonstrance: Husband and Wife: Estate by the Entirety. Under sec. 9255, R. S. 1909, as amended by Laws 1911, p. 340, relating to a majority of the resident property-owners remonstrating against street improvements, where an estate is owned by the husband and wife by the entirety, they are considered for the purpose of the remonstrance as two persons instead of one.</p> <p>4. -: -: What Required. A remonstrance against a proposed street improvement requires a majority of the resident owners of land but it does not require a majority of the estates abutting the street. [Sec. 9255 R. S. 1999 as amended by Laws 1911, p. 340.]</p> <p>5. -: -: Wife Signing for Absent Husband. Where a husband was absent from the city when remonstrance against street improvement was prepared and his name was signed by his wife with his authority it should be counted under sec. 9255, R. S. 1909, as amended by Laws 1911, p. 340.</p>

<p>1. RAILROADS: Negligence: Relationship Sustained Between Parties: Care Required. Action against a railroad for injuries ococcasioned' by the manner in which defendant’s servants handled certain cars. In order to establish actionable negligence, the manner in which the cars were handled is of small consequence unless the injured party can show a relationship existing out of which a duty arose to such party not to handle the cars as they were handled.</p> <p>2. -: -: -: Who Not Trespasser. Action against a railroad for injuries, the result of a fall in a car occasioned by another car being violently pushed against it. Plaintiff’s son and wife were employed by the defendant company to cook for its bridge gang. Plaintiff was living with her son in one of the cars assisting him about his work. She was not a trespasser as regards duty of defendant for her safety merely because of not having executed a release concerning women on such cars where she did not know of such rule and the foreman of the bridge crew who had charge of the train knew that she was assisting her son at his work and had no reason to believe that she knew of such rule.</p> <p>3. -: —:-: Licensee Wi.th Interest. Where one sustains the relationship of a “licensee with interest” to a railroad company, such relationship entitles him to the exercise of ordinary care from the servants of that company.</p> <p>4. -: -: -: -: Plaintiff’s son and his wife were engaged in cooking and performing other duties on defendant’s train in which defendants’ bridge crew boarded. Plaintiff assisted the son in such work and made her home with him on the train with knowledge of defendants’ foreman in charge of the train, though she received no pay from her son or from defendants. As regards the duty of defendants to exercise reasonable care for her safety, she was a licensee with an interest.</p>

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

<p>Appeal from Dade County Circuit Court. — Hon. B. G. Thurman, Judge.</p>

<p>Appeal from New Madrid County Circuit Court. — How. Sterling H. McCarty, Judge.</p>

<p>Appeal from Pemiscot Comity Circuit Court. — Hon. Sterling II. McCarty, Judge.</p>

<p>Appeal from Randolph Circuit Court. — Eon. A. E. Waller, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Eon. Charles E. Mayer, Judge.</p>

<p>1. NEGLIGENCE: Damages: Employer’s Liability Act: Dependent Next of Kin. The Federal Employer’s Liability Act gives a right of action to the deceased employee’s next of kin only in the event that they are “dependent upon such employee.” Such dependency need not be complete or entire, but must exist either in whole or in part. Dependency is the state .of relying upon something or some one as for anything necessary or desirable. It connotes the idea- of continuity of such reliance. Hence, the sister of a deceased employee, his next of kin, who had received occasional gifts from him and who probably would have received other gifts had he lived, and who in fact suffered a possible pecuniary loss in his death, was not a “dependent.”</p> <p>2. -: -: -: -: No Evidence of Specific Negligence Charged. The facts reviewed, and held that there was no evidence disclosing the specific negligence charged against the employee’s foreman, namely, that he knew or by the exercise of ordinary care might have known, that the track on which he ordered the hand-car carrying the employees to proceed, was not clear and that a freight train was approaching thereon, in time to have avoided a collision with said hand-car.</p> <p>3. -: -: -: Present Value of Damages: Excessive Verdict. A verdict of $1500, in an action under the Federal Employer’s Liability Act, brought by the administrator of a deceased employee for the benefit of a sister as his next of kin, which even were it assumed that he gave her $37 a year amounted to twice the present value of such yearly contribution during her life expectancy, was excessive; as a dependent is only entitled to recover the present value of his loss.</p>

<p>1. LIBEL AND SLANDER: Ambiguous Article: Reference to Plaintiff: Understanding of Readers: Instructions. Where the article complained of as libelous -does not refer to plaintiff by name and is ambiguous either as to its meaning or as to the person to whom it applies, and there is no admission on the part of defendants, either in their pleading or evidence, that readers of the aticle would understand it as applying to plaintiff, the jury should be required to pass on the question whether readers understood the article as referring to plaintiff. And an instruction covering the case and directing a verdict without including such issue was er- , roneous. If readers would not understand that the article referred to plaintiff, then there was no libel as to him, the gravamen of an action for libel not being injury to the plaintiff’s feelings but damage to his reputation in the eyes of others.</p> <p>2. -: -: -: -: -■ — . Such being the gravamen of the action, it is enough to constitute libel that defendants knew of whom they were writing hut others who read the article must have reasonably understood that plaintiff was the man referred to, and some proof thereof must be made.</p> <p>3. -: -: -: -: -. Where the libelous article did not refer to plaintiff by name and did not show on its face whom it referred to, an instruction telling the jury there was but one issue, namely, ■ whether the article was true or false, was erroneous, since it omitted the issue of whether readers of the article would reasonably understand that plaintiff was the one referred to.</p> <p>4. -: -: Innuendo: Following Same. Plaintiff’s instruction was not erroneous in not requiring the jury to specifically find according to the innuendo where, from the answers of the defendants as well as from their evidence, it is manifest that there is no dispute as to the meaning of the words as fixed by the innuendo, namely, that by filing a false pedigree of swine with a registry association the crime of making false, forged and untrue pedigrees was committed (a misdemeanor under Sec. 4589, R. S. Mo. 1909.)</p> <p>5. -: Trial: Instructions: Reference to Plaintiff. In an action for libel an instruction submitting the question of libel should explicitly tell the jury the precise statement in the article claimed to be false, and, if false, libelous; and should not instruct them in such general terms that if they believed the “publication complained of” was false and libelous, they should return a verdict for plaintiff. Por the jury should not be required to refer to the pleading to ascertain what the precise statement is that they must find to be false in order to constitute libel. And, as the jury can consider the whole article in determining whether the alleged false statement relied upon is a libel, tho jury might think that if any part of the article was false the same was libelous although the part they thought was libelous might not he the particular part declared on as libelous.</p> <p>6. -: —--: -. In an action for libel against one who wrote and another who published an article charging an offense on plaintiff’s part, the jury may award* punitive damages to the same extent against both defendants where one is guilty of actual malice and the other of implied malice only. But in this case it was conceded that the paper was not guilty of actuaS malice and there was evidence that the individual defendant was guilty of actual malice. And as the jury had been told of the different kinds of malice and that if they found malice of any kind they could allow punitive damages, it was error to charge in other instructions that punitive damages are allowed where the wrongful acts of the defendant have been characterized by ill will and such damages are for punishment and to caution the defendant against repeating such acts, and that therefore, if the jury should find the publication was made maliciously as thus defined, they should allow such punitive damages as they think the defendants should be punished. This was an implied instruction to the jury to fix the amount of punitive damages to be assessed against both with reference to the actual malice of one defendant rather than with reference to the legal malice of the other. Such invitation should not be given in view of the, fact that the natural tendency is to allow greater punitive damages for actual malice than for malice that is implied in law, and there cannot be but one amount of punitive damages assessed and that against both defendants.</p> <p>7. -: Offer of Retraction: Mitigation. An offer to print any statement or explanation plaintiff cared to make, which offer was made by the paper after suit was brought, came too late to be considered in mitigation of damages as an offer of retraction, even if it were such, which it is not.</p> <p>8. --: Malice in Law: Punitive Damages. If the charge contained in communication to a newspaper is false and is such as to constitute a libel, and the newspaper publishes said communication, such paper cannot necessarily escape the charge of being guilty of malice in law merely by showing that without negligence and in .good faith it published the article believing it to be true and with good grounds for such belief. Hence defendant newspaper is not entitled to instructions stating that, under such circumstances, the jury cannot find punitive damages. For, in Missouri, in an action for libel, the jury may award punitive damages based merely on malice implied by law and need not find actual malice in order to award punitive damages.</p> <p>9. -: Evidence: Witnesses: Corroboration: Private Memoranda. In an action for libel against a newspaper and a party who wrote a letter to its public forum, the letter charging plaintiff with obtaining the registration of hogs by forging pedigrees, the notations appearing on the individual defendant’s private hog register, as to disposition of certain pigs, were properly excluded, where its only purpose was to corroborate defendant’s testimony to the facts shown by them.</p>

<p>1. APPEAL AND ERROR: Affidavit for Appeal: Jurisdiction. The right of appeal is purely statutory, and, in order to avail himself of that right, a party must conform to the requirements of the statute. Regardless of the recitals in the order of the circuit court allowing an appeal, jurisdiction is not conferred upon the appellate court in the absence of a sufficient affidavit. The affidavit need not follow the language of the statute hut it must be in substantial compliance therewith.</p> <p>2. -: -: -. Where the affidavit shows on its face an attempt to comply with the statute, then, even if an error is committed by the omission of one or more words, the error may be treated as merely clerical. But an affidavit, made by the attorney for the party,' which says it is “made in order that substantial justice may be done” does not attempt to follow the statute and affords no room for the “clerical error” rule.</p>

<p>Appeal from Bates Circuit Court. — Re». G. A. Galvird, Judge.</p>

<p>1. EQUITY: Adoption: Contract to Make Heir: Enforcement. A decedent, having no legitimate children, orally promised his natural daughter that if she would remove with her family to America he would adopt her and make her his heir. She agreed and performed her part of the contract. Such contracts, when established according to the standard of proof required and shown to have been performed on one side, are enforceable in equity.</p> <p>2. -: -: -: Evidence Required. To sustain an oral contract to adopt and make one an heir, the proof must be so clear," cogent and convincing as to leave no reasonable doubt not only that a contract of the general nature alleged was made but that the particular contract as alleged was made.</p> <p>3. -: -: -: Pleading: Petition. A petition which alleges all the constitutive facts necessary to create a cause of action in equity based upon a contract which would entitle plaintiff to be made a pretermitted, or unmentioned, heir, may be properly regarded as stating an equitable case for that purpose notwithstanding a prayer for judgment in a specific sum, since the court should treat the petition according to its legal effect and give the relief that should follow the establishment of the facts stated.</p> <p>4. -: Appellate Practice: Defect of Parties: Executors and Administrators. So far as concerns the personalty'of decedent’s estate, his administrator represents all who are interested in that. But as to the real estate, since he has nothing to do with that, the devisees are not represented and, not being made parties, the decree is not binding upon them. But since a decree can be rendered without affecting the interest of the devisees in the real estate, the judgment should not be reversed but such a decree should be rendered as can be enforced.</p> <p>5. -: -: -: Law Governing. Where a contract is made in one State to be performed in another, the essential validity of the contract is governed by the law of the place of performance.</p>

<p>Appeal from Cass Circuit Court. — Eon. B. G. Thurman, Judge.</p>

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

<p>1. NEGLIGENCE: Public Streets: Footman: Duty. It is the duty of a footman walking down the middle of a street in a city to step to one side, that a vehicle he knows is approaching from front or rear to pass.</p> <p>2. -: Sleet & Ice: Vehicles: Demurrer to Evidence. The streets of a city were covered with ,.leet. A woman, with her husband, was walking down the middle of one of these street., where it had been roughened by the travel of horses and. vehicles. A street railway repair wagon approacheI them from behind, and as . it got near, the driver rang his bell when the husba id stepped to one side on the left and she stepped a step or two tc the right when she' slipped and fell and-, hurt herself. There was no collision with the wagon. It was %eld that the tri i court properly sustained a demurrer to the evidence.</p>

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

<p>Error to Dunklin County Circuit Court. — Now. W. 8. C. Walker, Judge.</p>

<p>1. BANKS AND BANKING: Bond of Assistant Cashier: When no Liability On: Willful Acts. Action on indemnifying bond executed by one defendant, an assistant bank cashier and book keeper, and the other defendants as securities. Conditions of bond reviewed and evidence examined and it is held that said bookkeeper or assistant cashier, whose act was not willful, was not liable on his bond for appropriations of money by the cashier and other officers of the bank. That such assistant cashier had a right to assume that the directors of the bank had met, as was their duty under sec. 1099, R. S. 1909, at least once a month to pass upon the business of the bank and that a committee of stockholders had, as required by Sec. 1088, R. S. 1909, examined the affairs of the bank at least once a year.</p> <p>2. APPELLATE PRACTICE: Finding of Referee: How Considered. In an action at law the referee’s finding of facts stands as a verdict of a jury before the Court of Appeals.</p>

<p>1. INSURANCE: Fraternal Beneficial Association: Ambiguous or Conflicting Terms of Policy: Construction. Where the provisions of a policy of a fraternal beneficial association are conflicting or ambiguous they should be construed most favorably to uphold the contract and against a fortfeiture.</p> <p>2. -: -: Forfeiture: When Enforced. While forfeitures .in fraternal beneficial policies are never favored, yet if upon a reasonable construction of the policy it appears that the parties thereto contracted for a forfeiture upon certain conditions, the • court will enforce the contract as the parties have made it.</p> <p>3. -: -: Forfeiture by Act of Beneficiary: Meaning of Term, Beneficiary. In an insurance policy containing provisions forfeiting the same absolutely in case.the death of the insured is caused by the beneficiary, the term beneficiary means the person who is designated such directly or indirectly by the policy and is not limited to such persons who survive the insured.</p> <p>4. -: -: Provisions’of By-Laws: When Not Conflicting. Provisions in the by-laws of benefit societies providing for absolute forfeiture, in case the death of the member is caused by the beneficiary, are not in conflict with another provision of the bylaws dealing with policies which survive the members’ death and providing who shall receive the benefits in case of the prior death of the named beneficiary.</p> <p>5. -: -:-: By-Laws: Member Murdered By Beneficiary. The by-laws of defendant fraternal beneficial association provided that if the death of the member was cause or procured by his beneficiary the amount payable under the certificate should be forfeited to the society and not paid to the beneficiary or his heirs, assigns or personal representatives, or to the heirs, assigns or personal representatives of such member and the by-laws further provided that no benefit should be paid on the death of a member killed by any of the beneficiaries, such provisions apply where the beneficiary named murders the members, though such beneficiary committed suicide and died before the member, regardless of a provision in the by-laws that if the designated beneficiary dies before the member and the member makes no disposition of the certificate it shall be paid to the member’s representatives for the benefit of the member’s heirs.</p>

<p>Appeal from Dunklin County Circuit Court — Now. W. S. G. Walker, Judge.</p>

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

<p>1. RECEIVERS: Stockholders: Distribution. A receiver of a corporation sued a stockholder for the unpaid balance of a stock subscription and obtained judgment. Nothing was obtained by execution. Thereafter the debtor made an offer of compromise. The general creditors objected, and pending the settlement, the judgment debtor paid to some of the creditors certain sums of money to induce them to withdraw their objections to the compromise offer, which was done and the court confirmed the compromise, having no knowledge of the aforesaid private payments. Held that the procuring by said creditors of money from the judgment debtor secretly and privately gave them no lawful preference or advantage over other creditors.</p> <p>2. -:-:-. A receivership is for the benefit of all creditors and, after all parties are in court, should one or more unfairly and secretly obtain something of value from a debtor to the estate, he cannot longer participate in the receivership proceedings and enjoy the same pro rata distribution as other creditors, unless he give up the proceeds of the unfair and surreptitious advantage he has gained over them.</p>

<p>1. CORPORATIONS: Joint Stock Companies: Service of Process. A business concern was sued as a corporation, and served with summons as such. Thereafter it appeared specially and averred that it was a joint stock company, and then the petition and sheriffs return were amended to show service on it as a joint stock company. Held, that it must be treated as a corporation having powers and privileges not possessed by individuals and partnerships, and, as such can sue and be sued, complain and defend in any court of law or equity, as a legal entity.</p> <p>2. -: -: -. A contrary view was expressed in Adams Express Company v. Metropolitan Street Railway Co., 126 Mo. App. 471, and Metropolitan Street Railway Co. V. Adams Express Company, 145 Mo. App. 371, but the Statutes, sections 2963, 2990 and 1760, were not considered in those cases and are therefore not followed.</p> <p>3. -:: Joint Stock Companies: Service of Process. The term “corporation” includes all joint stock companies or associations having any powers and privileges not possessed by the individuals or partnerships (Section 2963, R. S. 1909).</p>

<p>1. MANDAMUS, -WRIT OF: City Employee: Discharge. One who is employed as a public servant in a department of municipal corporation, whose duty it is to see that certain regulations of the city are carried out in a proper and efficient manner, should not be engaged in a private business that-requires the regulation at his hands, as an officer of the city, or involved in the doing of things which are supervised by the office in which he is employed, and of which he and his fellow employees of such office are required to regulate.</p> <p>2. -: Removal for Cause. Where an employee of a municipal corporation is discharged for sufficient cause, he cannot effect his reinstatement by the assistance of a writ of mandamus, and this is especially the rule when the cause for removal was such that it would be the duty of his superior officers to immediately remove him if he were reinstated.</p>

<p>1. INDEMNITY INSURANCE POLICY: Premiums: Cost of Building & Employees. Three policies of indemnity insurance provided that on a certain basis of cost for employees and for cost of building to he estimated by the insured, the premiums were fixed at certain sums which the insured paid. But it was further provided in the policies that at the end of the insurance period, the insured and the company should audit the former’s boohs and if the cost was found to have been more than the insured’s estimate, additional premiums should be paid. Such auditing was made and the cost found to be more, and the insured refused to pay. It was held that he was liable.</p> <p>2. -: Consideration: Contract: Evidence. Parol evidence cannot be received to vary the premiums to be paid on an insurance policy on the ground of inquiring into the consideration where the face of the policy shows that such premiums have been made a matter of contract between the parties.</p> <p>3. -: Policy: Unilateral Contract. Though an insurance policy is signed by the insurer only, yet if it shows upon its face that the terms obligatory upon the insured are to be performed by him and that such was the intention of the parties, it will bind him as effectually as if he had signed. And the fact that the insured accepts the policy and retains it in his possession concludes him on his intention to be hound.</p>

<p>1. BULK SALES LAW: Limitation: Execution. A vendor sold his stock of merchandise in bulk, and the vendee did not comply with the statute concerning “Bulk Sales” (Laws 1913, page 163). A judgment creditor of the vendor had an execution issued and levied on the stock about eight months after the sale. The vendee made claim of property to the sheriff. That officer then demanded'and received an indemnity bond from the plaintiff in the execution, and then sold the goods to a stranger. It was held, that the execution having been issued and levied more than ninety days after the sale, the proceeding was barred by the Statute of Limitations in the Bulk Sales Law.</p> <p>2. -: Limitation: Sale. The ninety days Statute of Limitations in the Bulk Sale Law, applies to any proceeding to invalidate the sale, whether under the first or second section of the statute.</p> <p>3. -: Proceeding: Levy: Claim. The expression in the limitation section of the bulb, sale statute, “no proceeding at law or in equity,” covers a proceeding by the, sheriff in levying an execution on the property sold where the vendee makes claim for the property.</p> <p>4. - — : Judgment: Vendee: Proceeding. Though the proceeding is based on a judgment against the vendor who has sold his goods in violation of the Bulk Sales Law, yet when an execution is issued and levied upon the goods claimed by the vendee, it bcomes a proceeding against the vendee in the statutory sense.</p>

<p>1. FIRE INSURANCE: Damages: Repairs. Where fire insurance is placed on a building,, which is afterwards vacated and the owner determines to alter the building, and places materials on the ground thereof, and the building is destroyed by fire, the owner can recover the amount of the insurance, where permission is granted in the policy to make additions, alterations and repairs. The words “permission granted to complete” in the defendants’ insurance policy refers to the completion of the alterations of the building, and not to the completition of a building in course of construction.</p> <p>2. -: -: -. Materials such as boilers, brick and timbers, when assembled on the premises for the purpose and intention of being incorporated into the building, as in this case should be treated as a part of the realty in case they are burned while so assembled.</p>

<p>1. JUDGMENTS: Exemptions: To be claimed when. Where a judgment debtor was not notified by the constable of his exemption rights as required by section 2184, R. S. 1909, he may claim such exemptions the first time he becomes aware of his exemption rights, provided the fund levied on is still in the custody of the court.</p> <p>2. -: Exemption Rights Fixed as of Time of Levy. A judgment debtor’s exemption rights are fixed as of the time of the levy of the execution and any change in his status between that time and the time when he asserts such rights, does not give him any additional or other rights.</p>

<p>Appeal from Jackson Circuit Court — Hon. A. W. Brewster, Special Judge.</p>

<p>Appeal from Jacks on. Circuit. — Hon. Frank G. Johnson, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Stewart Taylor, Special Judge.</p>

<p>1. DIVORCE SAND ALIMONY: Contracts of Separation and Settlement. Post nuptial contracts of separation are not unlawful, and such contracts may lawfully provide that, in the event suit for divorce is filed, no alimony may be recovered.</p> <p>2. -: -. A contract of separation which provides that all property rights are settled therein and in addition provides for settlement of all matters of indebtedness between the parties and the cancelling of all such indebtedness from the- wife to the husband, not only severs all marital relations but all property and business matters are adjusted by it, and shows that there is no probability of the parties ever living together again and separates them as effectually as it is possible for them to be separated short of an absolute divorce, and shows that neither contemplate a future claim on the other. A contract such as this while it does not expressly bar alimony, must be construed as so doing.</p> <p>3. -: -. A wife, who sues for divorce and alimony after a contract of separation has been entered and executed and in which all property rights are settled by the payment of a lump sum of money, may set this agreement aside on the ground of duress and fraud, and when such an agreement is pleaded in haec verba in the answer and the reply alleges that it was obtained by fraud and duress, then issue is joined, and if it be shown that the agreement' was not obtained by fraud or duress, it will bar recovery of alimony.</p>

<p>1. MECHANICS LIENS: Bin of Lading: Shipper’s Order: Express C. O. D. S was the oviginal contractor to install electrical equipment in a theatre building. He sublet part of the contract to A, in a distant city, to furnish a switchboard. He already owed A on an old account and the latter would not furnish the switchboard unless he would pay the old account. So it was agreed between them that A would ship part of the material to shipper’s order with draft attached, and part by express C. O. D., the. aggregate being for the amount of the old account. When the material arrived, S could not make payments and he procured the manager of the theatre to pay them and take up the bill of lading and get the material from the express company. The managei knew nothing of the agreement between S and A. It was held, that the manager paid for the material and took title to the material, and that A could not enforce a mechanic’s lien for it.</p> <p>2. -: Bill of Ladi" Symbolical Delivery. A bill of lading represents the property, and a delivery of the bill is a symbolical delivery of the property passing title thereto.</p> <p>3. -: Express Company: Shipment C. O. D.: Mechanic’s Lien. An express compány is a common carrier and if a vendor consigns freight by express “C. O. D.” to his vendee who is under contract to put it in a building he is constructing, and who is unable to pay for it and procures the owner of the building to make payment and take the property, the owner obtains the title and the vendor cannot enforce a mechanic’s lien against the building.</p>

<p>Appeal from Jackson. Circuit -Court. — Hon. C'. W. German, Special Judge.</p>

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

<p>1. ASSUMPTION OF RISK: Manufacturing Candy: Breaking Chocolate. In manufacturing chocolate candy, the manufacturer used a large kettle three feet in diameter, in the center of which was a shaft rising above the rim of the kettle, the top of which was pyramid shape. An employee took up slabs of chocolate and broke them over-the pyramid top of the shaft, the pieces falling into the kettle where they were melted. Plaintiff with several other women, took pans and drew from the faucet, at the bottom of the kettle, the melted chocolate as it was needed. In doing so, she would be in a stooping position, the side of her head being above the rim-of the kettle. On the occasion of her injury she was in that position when a piece of broken chocolate flew over the rim of the kettle and struck her on the neck. She had been engaged in the work in the same way for two years. She saw that occasionally pieces of chocolate went over the rim of the kettle. No one was ever hurt before and no complaint was made. It was held that she assumed the risk and could not recover.</p> <p>2. NEGLIGENCE: Duty: Assuming Risk: Service: No Complaint. Negligence is a breach of duty and when no duty is owing there is no negligence. An employee who knows the method in which the master conducts his business and enters into and continues in his employment, without complaint, assumes the risk of, injury from that mode and the master is not negligent.</p>

<p>1. LANDLORD AND TENANT: Contract: Burglary: Tort. A landlord is under ns obligation to the tenant to protect the latter’s property, placed in the building, from burglary, unless he contracts to do so; and no contract is'implied from the relation of landlord and tenant. If the landlord does so contract, and breaches it, the tenant’s action is on the contract and not in tort</p> <p>2. --: -: -: Duty Implied: 'Action: Tort. There Is no duty implied from the relation of landlord and tenant for the former to protect the latter’s goods placed in the rented building, from burglary. Therefore an action in tort does not lie in such case against the landlord.</p> <p>3. --: Repair: Contract: Action: Tort. A landlord is under no obligation to repair the rented premises unless he contracts to do so. If he does so contract and breaches it, the tenant’s action is on the contract and not in tort.</p> <p>4. NAME: "Junior:” Motion for New Trial: Affidavit. The word "Junior” appended to a man’s name signifies the younger but is no part of a man’s name and if left off in a motion for new trial or affidavit in appeal has no effect on the party’s right.</p>

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

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

<p>Appeal from Jackson Circuit Court. — Son. Elijah Robinson, Special Judge.</p>

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

<p>1. TAX BILLS: Condemnation: Damages: City’s Liability: Lien. The holder of a tax bill, issued by a city for public work has a lien on the land therein described; and if the city condemns such land for a park, the lien continues against the money in the hands of the city assessed as damages to the owner. If the city with knowledge of the lien pays the money to the owner without notice to the tax bill holder it becomes liable to the tax bill holder for damages measured by the loss of the-money which should have been applied in discharge of the lien.</p> <p>2. -: Interpleader: Condemnation Money: Liability of City. M was the owner of tax bills which were a lien upon certain real ■ estate in Kansas City,' Missouri. The city condemned these lands with others, for a public park, and after the damages arising on the condemnation were ascertained and held by the city, it filed a bill of interpleader making the owners, mortgagees, and other lien holders, except M, parties and asking that they be required to interplead for their interests in the money arising from the land on which they had liens. The city knew of M’s tax bill lien, and after paying to all lienors except M, it paid the remainder of the money to the owners of the land and M was thus left out. It was held, that the city was liable to M for the amount of the tax bills, they being less than the sum paid to the owners.</p> <p>3. -: -: -: -: Estoppel. The .fact that M. six months after the money had been paid to the owners filed an ’ intervening petition in the interpleader action, setting up a claim on four tax bills against other property arising for different work under difference ordinance, did not estop him in his claim against the city.</p>

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

<p>1. NEGLIGENCE: Railroads: Baggage Racks. The plaintiff, while ministering to a friend who was ill in the hospital room of the Union Station in Kansas City, was injured when a suit case fell from a rack, or ledge above the back of the seat on which she was sitting and struck her. The seats in this room were placed back to back and the tops fastened together with a horizontal board ■ thirteen (13) inches in width having a molding on each side an inch in height, leaving a space between of about twelve (12) inches. This space, for many years, was used by travelers as a temporary depository of luggage. The hospital room was separated from the remainder of rthe waiting room by curtains dropped down to the top of a row of seats so that the luggage placed on the rack would not ’ordinarily be seen by one in the hospital room. Held, that the negligence in providing an improper place for the temporary (storage of luggage was the proximate cause of the injury.</p> <p>2. -: -: -. Where the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, the latter may recover damages from either or both, and neither can interpose the defense that the prior or concurrrent negligence of the other contributed to the injury.</p> <p>3. EVIDENCE: Similar Acts. Evidence that no one else had been injured by the falling of grips from such racks, is inadmissible, as the danger was obvious and should have been reasonably anticipated and there was no showing that the rack was constructed in the usual, customary and approved way.</p> <p>4. INSTRUCTIONS: Variance: Pleading and Proof. Where there is a variance between the pleading and proof, and such variance is not taken advantage of by the’required affidavit of surprise, the point is waived.</p>

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

<p>Appeal from Jackson Circuit Court. — How. Clarence A. Burney, Judge.</p>

<p>INSTRUCTIONS: Automobiles: Additional Instructions: Abandoned: Issues: Submission to Jury. Where the issue of last chance doctrine is made by the pleading and evidence, and the plaintiff abandons, or ignores, his right to have an instruction on that issue, and argues and submits the case to the jury without instructions except the measure of damages, he cannot convict the trial court of error in refusing an instruction on such i^sue after the jury has had the case under consideration.</p>

<p>Appeal from Clinton Circuit Court. — Hon. A. D. Burns, Judge.</p>

<p>SCHOOL DISTRICTS, CONSOLIDATED: Quo Warranto. The act of the Legislature of March 14, 191r8v providing for the consolidation of School Districts and the establishment of high schools, does not make the maintenance of such high schools optional with such districts, but clearly provides that high schools must be established and conducted.</p>

<p>Appeal from Polk County Circuit Court. — Hon. C. H. Hkinker, Judge.</p>

<p>1. INSTRUCTIONS: Action for Cleaning Ore on Custom Mill: Counterclaim. Action by custom mill operator to recover for cleaning ore bearing dirt and rock under a contract with defendants who owned and operated a mine. Defendants set up by way of counterclaim that plaintiff in cleaning the ore had wasted a great >part thereof and allowed it to run into the tailing pile and sludge pond. Evidence reviewed and held to make a clear conflict and that an instruction for defendant was justified which told the jury that if the defendant employed plaintiff to mill the dirt and plaintiff unnecessarily wasted and lost quantities of the ore, the jury should find for defendants on their counterclaim.</p> <p>2. EVIDENCE: Matters Collateral: When Improper. Action by a custom mill operator against mine operators for cleaning ore bearing dirt and rock. Defendant mine operators counterclaimed 'for waste of ore in cleaning. Defendants offered to show that they took some dirt from the same pile to another mill immediately after stopping the milling of their ore by plaintiff and that thei recovery was about two per cent, more than at plaintiff’s mill. This was properly excluded because a substantial similiarity in the conditions covering the amount of ore recovered at other mills was not shown.</p> <p>3. -: Collateral Matters: Discretion of Trial Court. The admission or exclusion of testimony concerning a collateral matter or acts between strangers is left to a large extent to the discretion of the trial court.</p> <p>4. -: -: When Relevant. It is the duty of the party offering such evidence to convince the trial court that the conditions are in all essential respects the same before it will be deemed relevant.</p>

<p>Appeal from Jasper County Circuit Court, Division Number Two. — Ho». David E. Blair, Judge.</p>

<p>1. CONVERSION: Petition: When Allegations Insufficient. Petition’s allegations with prayer for actual and exemplary damages examined and held not sufficient to state cause of action in conversion.</p> <p>2. PLEADING: Petition:' Prayer: Relation. Though the prayer is no part of a petition since the petition may state a cause of action although the plaintiff may have mistaken his remedy in the prayer, yet in arriving at the character of plaintiff’s cause of action it is often helpful to notice the prayer.</p> <p>3. -: Uniting Causes of Action: Pleaded Separately: Statute. Under section 1795, R. S. 1909; certain causes of action may be united in the same petition but they must be separately stated, with the relief sought for each, in such manner that they may be intelligibly distinguished.</p> <p>4. CRIMINAL LAW: Libel: What Constitutes Publication. One who delivers libellous matter to the party libelled is guilty of criminal libel and punishable as for a misdemeanor. (Sec. 4820, R. S. 1909).</p> <p>5. LIBEL AND SLANDER: What Constitutes Publication in Civil Action. But sec. 4820, R. S. 1909, does not change the rule as to libel in civil actions and it is necessary to constitute a publication of libellous matter in a civil action that such matter must come to the attention of some one other than the principals.</p> <p>6. -: Basis for Civil Action. Injury to one’s reputation is the foundation on which civil actions for libel are based and where the perpetrator of the wrong from a moral or ethical standpoint fails to injure that reputation by not publishing the libel, it is damnum absque injuria.</p> <p>7. -: Petition: Sufficiency Under Statute. In action for libel it is not necessary to state in the petition any extrinsic facts but it is sufficient to state generally that the same were published concerning the plaintiff. (Citing Sec. 1837, R. S. 1909.)</p> <p>8. -: -: Examination of. Petition in an action for libel examined and considered sufficient as against a demurrer. (Citing Sec. 1837, R. S. 1909.)</p>

<p>Original Proceeding for Prohibition.</p>

<p>1. AGENCY: Deposit as Security: Forfeiture: Contracts: Termination: Sale of Patented Article. A retail dealer had a contract with the manufacturer of a patented article to sell only in a certain territory, and had made a deposit with the manufacturer to secure compliance with such restriction, and was to forfeit the deposit if that provision was violated either during the continuation of the contract or after its termination. The contract provided that it could be terminated at any time by either party. After the contract of agency was terminated the dealer sold one of the patented articles, which he had received under the agency, outside of the territory. HeZd, that the contract providing for forfeiture for violation of restriction after the termination of said contract is valid.</p> <p>2. -:-: . — :-:-:-. The subject-matter with which the contract dealt was the right to sell a patented article which right is in the hands of the patentee during the life of the patent. So that the right of the retail dealer to sell wherever he chose was not the same right which he would have to sell any other ordinary chattel which he had bought and paid for.</p>

<p>1. EQUITY: Interpleader: Bill in the Nature of a Bill of Interpleader: Insurance: Payment of Assessments by Local Lodge: Lien:' Enforcement. After a beneficiary bas recovered judgment on a benefit certificate on which the local lodge claimed a lien for the amount ' of dues it had paid, it was stipulated that the Supreme Lodge would pay the amount on which a lien was claimed into court and bring interpleader to compel the beneficiary and the local lodge to litigate their respective rights to the fund. When it was ascrtained, however, that the Supreme Lodge could not bring interpleader after it had parted with the fund, the local lodge filed a petition in •equity asserting its right to the fund. To this the beneficiary filed an answer and counterclaim wherein she asked judgment for the attorney fees she had been compelled to pay in the suit against the Supreme Lodge. Held, 1. That the fund had already been created and placed in custodia legis by virtue of the stipulation, and the plaintiff’s petition could therefore be treated as a bill in the nature of a hill of interpleader. 2. That the suit was unquestionably, brought pursuant to the stipulation and by reason of it, and the counterclaim was wholly outside of its provisions and foreign to the nature, scope and extent of the suit and the agreement by which the fund was deposited, and hence the law affords no basis or warrant for the counterclaim. 3. That since the local lodge did-nothing to justify the Supreme Lodge in refusing to pay, and such refusal was wrongful on the part of the Supreme Lodge, the lien of the local lodge for the payments it made, which enabled the beneficiary to recover what she did recover, should not be. defeated. 4. That every equitable consideration forbade allowing the beneficiary to recover both the insurance and the premiums.</p> <p>2. INSURANCE: Measure of Damages: Attorneys Fee. The measure of damages in a suit on an insurance policy is the amount thereof without interest and does not include attorneys fees and costs' of preparation for trial unless so provided by statute.</p>

<p>Appeal from Jackson Circuit Court. — Eon. Thomas B. Buchner, Judge.</p>

<p>1. SPECIAL TAX BILLS: Validity: Grading Street: Assessment of Entire Cost on One Side of Street; Adherence to Prescribed Methods. Where the City Charter, and the ordinance specially authorizing the grading of a street, required the cost to be assessed against the lots on both sides of the street and made no mention of the fact that the land on one side was beyond the city’s jurisdiction, and, because it was, the city officers assessed the cost all on one side, this rendered the tax bills invalid so far as the proceedings in invitum are concerned since such assessments was wholly without legislative warrant. The rule is well settled that the validity of tax bills depend upon a substantial adherence to the method and procedure prescribed by the legislation authorizing the particular work. This does not mean that if the legislation authorizing the work had, in view of the particular situation, recognized it and made provision therefor by directing the cost to be assessed all on one side, the tax bills would be invalid.</p> <p>2. -: -: -: -. Although tax bills may not be valid on account of some defect in the procedure by which they are created, yet if the contractor was induced to undertake the work relying upon the agreement of the property-owners not to contest their validity, then such property owners are estopped to take advantage of such defect.</p>

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

<p>1. GRAND JUEY: Indictment: Court: Adjournment: Waiver. A judge ordered a grand jury for an adjourned term. Court convened at the time appointed, organized the grand jury and adjourned to the court in course without discharging the jury, which continued its investigations and at the regular term reported an indictment against B. A trial was had and B convicted. It was held that the authority of the grand jury expired at the adjournment of the term to the court in course. But as the defendant made no objection to the authority of the grand jury, or attack upon the indictment, until after he was convicted, it was then too late and his conviction was sustained.</p> <p>2. -: De Facto: Query. Whether a grand jury which continues its investigations and finding of indictments after the term for which it was summoned is a jury de facto and its acts valid, quaere.</p>

<p>Appeal from Carrol- Circuit Court. — Hon. Frank P. Divelbiss, Judge.</p>

Louis City Circuit Court. — Hon. Leo. S. Rassieur, Judge. (1) Policies of accident insurance are, with policies of life insurance, exceptions to the rule that contracts of insurance are contracts of indemnity. 1 Cooley’s Briefs on Insurance, 89. (2) Where there are two inconsistent stipulations covering the same subject-matter, the one general and the other separate and distinct, the latter stipulation will govern, because specific. Northwestern Mut. Life Ins.

Louis City Circuit- Court. — Hon. Leo 8. BassieurJudge. (1) The court erred in refusing to strike out plaintiff’s third amended statement. Sec. 7585, R. S. 1909; Wehringer v. Ahlmeyer, 23 Mo. App. 280; Brennan v. McMenamy, 78 Mo. App. 130. (2) Defendant’s instruction No. 4 should have been given. The shipment was an interstate one, and the contract contained in the bill of lading as to the measure of damages was valid. Hamilton v. Railroad, 177 Mo.

<p>Appeal from Scotland Circuit Court. — Eon. N. M. Pettingill, Judge. -</p> <p>(1) The information was fatally defective and stated no offense. Sec. 5786, R. S. 1909; State v. Rinkard, 150 Mo. App. 570; State v. Crenshaw, 41 Mo. App. 24; State v. Haden, 15 Mo. 447; State v. Runyan, 26 Mo. 167; Kelley’s Criminal Law (3 Ed.), sec. 193. (2) The court should have set aside the verdict of the jury, and granted defendant a new trial on the grounds of prejudice and passion. State v. Castor, 93 Mo. 242; State v. Primm, 98 Mo. 368; State v. Jaeger, 66 Mo. 173; sec. 2688, R. S. 1899. (3) Because the verdict of the jury was against the law and the evidence. State v. Huff, 161 Mo. 487; State v. Prendill, 165 Mo. 329. (4) This court ought to set aside the judgment because the evidence was overwhelmingly in favor of defendant. State v. Jaeger, 66 Mo. 179; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Brosius, 39 Mo. 634; State v. McNamara, 100 Mo. 117.</p>

— Hon. B. G. Bcrnney, Judge. (1) Equity will not aid one to obtain relief from a position in which he is placed by his own negligence. Thompson v. Lindsay, 142 Mo. 53.

<p>Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. /'</p> <p>(1) Although in the absence of special directions, general legacies abate before specific legacies, yet when the testator in his will indicates that certain legacies are to be given priority over others in case of a deficiency in the estate, his wishes will be enforced. The intention of the testator is the pole star in the construction of wills in this as in all else. 2 Woerner on Admin. (2 Ed.), see. 451; Moore v. Moore, 50 N. J. Eq., 554; Brant’s Will, 40 Mo. 266; Richardson v. Hall, 124 Mass. 233; Roper on Legacies, 292; Emery v. Batchelder, 78 Me. 233; Thurber v. Battey, 105 Mich. 718; Carter’s Admr. v. Reynolds, 162 Ky. 39; Morse v. Tilden, 74 App. Div. (N. Y.) 132; Lee v. Smith, 84 Va. 288;-O’Day v. O’Day, 193 Mo. 62. (2) Specific legacies abate in favor of general legacies when the general legacy is directed to be paid “out of all the personal estate.” Page on Wills, sec. 771; 1 Underhill on Wills, sec. 390; Schouler on Wills, (5 Ed.), sec. 1490; Rood on Wills, see. 7'55; Moore v. Moore, 50 N. J. Eq. 554; 40 Cyc, 1910, n. 73; 1 Am. & Eng. Ency. Law, 51, n. 6; Biddle v. Carraway, 6 Jones Eq. 95; 2 Williams on Executors (7 Am. Ed.), p. 662; White v. Mass. Inst., 171 Mass. 84.</p> <p>(1) “Respecting the duty of the courts as to the interpretation and. construction of language used in last wills, section 4650, R. S. 1899 (Ann. St. 1906, p. 2518), furnishes the rule. That section requires that ‘all courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, .in all matters brought before them.’ ”</p> <p>At the very inception of the discussion -of the proposition now confronting us it is well to recall some of the cardinal rules in the interpretation of instruments of this character: First, the intention of the testator must be ascertained from the whole instrument; second, the words used are to be understood in the sense indicated by the whole instrument; third, that it is the duty of the courts in the interpretation of last wills to give effect, if possible, to all the clauses of the instrument. Armour v. Frey, 126 S. W. 483; O’Day v. O’Day, 193 Mo. 62; Small v. Field, 102 Mo. 104; 11 L. R. A. (N. S.) 71, note. (2) The fact that testatrix made a disposition of her residuary estate, shows that she believed her estate would be ample to discharge all of the legacies in her will. Matter of "Williams, 27 N. T. Misc. 717. (3) By making a legacy specific, the testator gives the strongest expression of his intention to exempt it from reduction or abatement. Towle v. Swasey, 106 Mass. 106. (4) The presumption of intended equality prevails between general legatees as a class, and between specific legatees as a class, where such legatees are mere beneficiaries, and that equality and respect to the share to be borne in all deficiencies of assets will not be disturbed without clear evidence in the will of a different intention. Richardson v. Hall, 124 Mass. 233. (5) To permit executors to take one specific legacy and omit to take the others, would require clear and ■ conclusive proof of such an intention on the part of testatrix. Appeal of the Trustees of the University of Pa., 97 Pa. State, 200. (6) If the words “personal estate” as used in this will, included the specific legacies as executor contends, then a slight deficiency in cash for item 1 would necessitate a sale of some property specifically disposed of (as for example, “mementoes”) rather than a sale of realty which was to pass under the residuary clause. By the words “personal estate” testatrix did not mean to give the general legacy preference over the specific legacies as appellant contends and she did not mean to give the residuary clause preference over specific legacies. Such an interpretation would well-nigh make the specific legacies mockeries. She meant personal estate other than specific legacies, and the words “personal estate” must be read in the light of the entire instrument. Allison v. Chaney, 63 Mo. 279; Nichols v. Boswell, 103 Mo. 151. (7) It is only where “all of the testator’s estate is specifically bequeathed” that specific legacies abate in favor of a general legacy "directed to be paid “out of all the personal estate,” the reason being that “otherwise the words of the bequest to the pecuniary legatee would be nugatory.” Furthermore, the words “out of all the personal estate” must in the light of the whole instrument clearly include specific legacies. In the case at bar testatrix left real estate, cash and personal property other than the specific legacies. 40 Cyc. 1910, Note, page 73; 7 Williams on Executors (7 Am. Ed.), p. 662.</p>

- — Hon. N. M. Pettingill, Judge. (1) When the commissioners returned their report to the board of supervisors, under Sec. 8365, R. S. 1899, without making the allowance herein sued for, the plaintiff was not at fault;'. that is to say, he was not a party to that act. Wilson v. King’s Lake District, 176 Mo. App. 470. (2) Plaintiff had no cause .of action against the commissioners for. ref using to make his allowance, nor the supervisors for not doing their duty.

Louis City Circuit Court. — Hon. James E. Withroio, Judge. Even if Brunswick died because lie intentionally took cyanide of potassium, yet, under the law, such intentional taking constituted an accident. Applegate v. Travelers Ins. Co., 153 Mo. App. 63; Harms v. Fidelity & Casualty Co., 172 Mo. App. 241; Whitfield v. Aetna Life Ins.

<p>1. EVIDENCE: Character of Parties: Admissibility. In an action for assault, evidence as to plaintiff’s good character is inadmissible, where his character is not attacked.</p> <p>2. TRIAL FRACTICE: Sufficiency of Objection to Evidence: Leading Questions. In an action for assault, after plaintiff had introduced evidence in chief tending to' prove his good character, defendant called a witness as an adverse character witness, who, contrary to previous statements made to defendant’s claim agent, testified that plaintiff’s reputation for sobriety and peacefulness was ali right. Counsel for defendant then asked him whether he had not made contrary statements to defendant’s claim agent, and plaintiff’s counsel objected on the ground that defendant should not be permitted to impeach its own witness. Defendant’s counsel claimed surprise and counsel for plaintiff no longer urged his objection, and the witness was interrogated at length concerning his previous statements. Subsequently, another witness for defendant was interrogated as to whether the first witness had said anything about plaintiff being a disturber, and plaintiff’s counsel stated that he wished to object on the ground that the question was leading. Held, that the first objection, concerning defendant’s right to impeach its own witness, was not renewed by the second objection, and that the second objection was not sufficient to raise this question. Held, further, that if the question to which objection was made, was leading, it was-within the power of the trial court to permit it to be asked in that form.</p> <p>3. WITNESSES: Modes of Impeachment. There are various modes of impeaching a witness, the principal ones being by cross-examination, by disproving the facts stated by him, by the testimony of other witnesses, by evidence of bad character, of reputation, conviction of an infamous crime, bias for or against a party, or former statements contradictory of his testimony.</p> <p>4. -: Impeachment of Own Witness: Surprise. In an action for assault, where, after plaintiff had introduced evidence in chief tending to prove his good character, defendant called a witness as an adverse character witness, who, contrary to previous statements made to defendant’s claim agent, which defendant relied upon, testified -that plaintiff’s reputation for sobriety and peacefulness was all right, defendant had the right, on the ground of surprise, to interrogate him concerning his previous contrary statements and also to interrogate other witnesses concerning such statements.</p> <p>5. INSTRUCTIONS: Cautionary Instructions: Credibility of Witnesses. Where defendant was surprised by evidence given by one of its witnesses, which was at variance with his previous statements, and introduced evidence tending to prove that he had made such variant statements, it was proper to' give an instruction touching the credibility of witnesses.</p>

<p>1. LIBEL AND SLANDER: Qualified Privilege. In an action for libel, the defense of qualified privilege is not available to defendant, who published a libelous affidavit defending his father’s character, although the latter had been assailed by plaintiff.</p> <p>2. -: Evidence: Admissibility of Entire Publication. Where an action for libel is based upon part of an affidavit, defendant may introduce its remaining portions, to explain the paragraphs directly involved, to show the motive and intent of publication, and to mitigate the damages.</p> <p>3. APPELLATE PRACTICE: Libel and Slander: Failure to Introduce Entire Publication: Harmless Error. In an action for libel, based upon a part of an affidavit, the failure of the court to require plaintiff to introduce the entire affidavit, or the pamphlet in which it was published, was not reversible error, under sec. 2082, R. S. 1909, forbidding reversals except for material errors, where the remaining matter was immaterial and defendant did not offer it.</p> <p>4. VERDICT: Trial by Eleven Jurors: Verdict Signed by Foreman. Sec. 7280, R. S. 1909, requiring all agreeing jurors to sign the verdict, unless it be rendered by the entire panel, when the foreman alone may sign it, refers to a three-fourths verdict authorized by the Constitution, and is inapplicable to a verdict returned by eleven jurors under a stipulation that the case should proceed as though there were twelve jurors, and hence, under such circumstances, where the eleven jurors concur, a verdict signed by one of their number as foreman is valid.</p> <p>5. LIBEL AND SLANDER: Instructions. In an action for libel, held that the court did not err in giving instructions for plaintiff nor in refusing instructions requested by defendant.</p>

-1 — Hon. N. M. Pettingill, Judge. (1) The statute, see. 337, R. S. 1909, expressly requires that if there are advancements they shall be brought into hotchpot with the estate descended, in partition suits. In re Estate of Elliott, 98 Mo. 379; Ademan v. Manning, 44 Mo. App. 4.

Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge. (1) It is the duty of a pedestrian on a public highway to watch for the approach of automobiles, and the failure ,to do so is negligence. Brewster v. Baker, 129 App. Div. 724; Kauffman v. Nelson, 225 Pa. St. 174; Hannegan v. Wright, 5 Penn. 537; Ginter v. O’Donoghue, 179 S. W. 732; Cotton v. Wood, 8 Comm.