Volume 199 — Missouri Appeal Reports

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

<p>1. LANDLORD AND TENANT: Damages: Personal Injuries. A landlord is under no obligation to make repairs to premises let, in the absence of a written agreement so to do, but if be voluntarily undertakes to make them be is bound to exercise ordinary care to see that the work is not negligently done and that they will last a reasonable length of time under the circumstances.</p> <p>2. -: -: Defective Repairs: Misfeasance. When a landlord voluntarily assumes to repair defective premises, he takes upon himself the burden to use ordinary care to make such repairs in such a manner that they will last a reasonable length of time and in discharging such duty, if he fails to remove material that should have been removed to make the place reasonably safe, he is guilty of misfeasance and not non-feasance.</p> <p>3. -: -: Question for Jury. Where a tenant from month to month had been such for a great many years and the landlord makes repairs that lasted two years, it was a question for the jury whether the landlord had discharged his duty to the tenant • in making repairs that lasted only two years.</p> <p>4. -: Independent Contractor: Damages. If a lessor undertakes to have repairs made when he has not covenanted to do so, a duty is cast upon him to see that the repairs are made so as not to injure the tenant and the rule concerning independent contractors has no application, the accident having happened long after the repairs were made and accepted by the landlord.</p> <p>5. INSTRUCTIONS: Landlord and Tenant: Repairing Premises. An instruction which told the jury that if materials .used by a landlord in making repairs to rented premises were unsuitable, insufficient and defective and that the' landlord failed to replace any weak or rotten supports and flooring with reasonably safe supports, the tenant might recover damages received when the steps and flooring of the premises gave way two years after the landlord had voluntarily made repairs, was erroneous because the landlord was only bound to use ordinary care in doing these things.</p>

<p>Appeal from Jackson Circuit Court. — Hon. 0. A. Lucas, Judge.</p>

<p>Appeal from Christian Circuit Court. — Hon. Fred Stewart, Judge.</p>

<p>Appeal from Dunklin. Circuit Court. — Hon. W. S. C, Walker, Judge.</p>

<p>Error to Jasper Circuit Court. — Hon. B. A. Bear son, Judge.</p>

<p>1. TAXATION: Poll Taxes: Demand and Refusal to Pay. Where, on being asked to pay his poll tax by the Street commissioner of the village, defendant replied: “To hell with the poll tax. He didn’t pay no poll tax in the village of Nixa” — his answer was sufficient to show that a demand had been made and was refused.</p> <p>2. APPEAL AND ERROR: Record: Matters Presented for Review. In a suit to collect' a poll tax, a contention based on the fact that the village marshal was also street commissioner and collector would not be considered, where there was no mention of such question in the record proper or bill of exceptions.</p> <p>3. MUNICIPAL CORPORATIONS: Ordinances Levying Taxes: Validity. Under Revised Statutes 1909, sec. 9447, providing that the board of trustees, of a town or village shall, from time to time, provide by ordinance for the levy and collection of poll taxes, an ordinance levying a poll tax of $3 on all male inhabitants of the village, and which, it was claimed, was merely a levy for the current year, was sufficient to justify the tax, though based on no general ordinance on the subject of poll taxes.</p> <p>4. -: Ordinances: Effect of Partial Invalidity. Where a general ordinance in section 1 provided that all able-bodied male persons between the ages of 21 and 60 should be liable for the poll tax, and in section 4 defined the duties of the street commissioner in the collection of poll taxes, the invalidity of section 1 under Revised Statutes 1909, sec. 9447, which only grants power, to levy a poll tax on citizens between 21 and 50, did not render the whole ordinance invalid.1</p>

<p>Appeal from Dunklin Circuit Court. — Eon. W. S. 0. Walker, Judge. •</p>

<p>1. MASTER AND SERVANT: Injury to Servant: Assumed Risk. A railroad section hand replacing old with new ties assumed the risk of stumbling over fence posts scattéred along the right of( way and concealed by grass and weeds.</p> <p>2. -: - — : “Assumption of Risk.” By assumption of risk is meant that the servant assumes all of those incidents and customs which ordinarily exist in the work in which he is concerned.</p> <p>3. -: -: Negligence. That section hand replacing old with new ties in defendant’s railroad track stumbled over fence posts scattered along the right of way and covered with grass did not show negligence of defendant.</p>

<p>1. COURTS: Decisions of United States Courts as Controlling. In determining the liability of a telegraph company on account of negligent delay in the transmission of an interstate message, the law must be construed as it has been construed by the federal courts touching the question.</p> <p>2. TELEGRAPHS AND TELEPHONES: Transmission: Delay: Recovery. In an action for negligent delay in the transmission of a telegram, it appeared that the message was written cn a blank, reciting on its face that the message was sent subject to the terms on the back. The back of the blank contained recitals stating that to guard against mistakes and delays the message should be repeated, and that it was agreed that the company should not be liable for mistakes or delays or for nondelivery of any unrepeated message beyond the amount received for sending the same, nor for mistakes or delays in the transmission or delivery, nor for nondelivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured. There was no averment that a special value was placed on the telegram. Held, that as the conditions placed no value on the message, the value thereof might be fixed by the jury.</p> <p>3. -: Transmission of Messages: Delay. That the receiving agent of a telegraph company not knowing the closing hours at the terminal office, and merely contracting to transmit and deliver the message according to the rules of the company, failed to notify the sender that the terminal office was closed does not make the company liable for delay in deliv ery of the message, resulting from the fact that the terminal office was closed when it was sent.</p>

<p>1. BONDS: Notary Public: Negligence in Taking Acknowledgment: Liability: Damages. A notary’s bond is purely one of indemnity, and where suit is brought thereon the relator is limited in the amount of the recovery to the actual loss sustained by the negligent act of the notary, the liability extending only to such damages as were proximately caused by such act.</p> <p>2. -:-:-: -: -. Relator lent his money on a note apparently secured by chattel mortgage on cattle, but which was worthless since there were no such cattle in existence nor did any individual of the mortgagor’s name or description exist or own any such cattle. Relator took the note and chattel mortgage without investigation, relying upon the fact that similar notes had been paid. The notary negligently certified to the identity of the mortgagor, but the relator’s loss arose from the fact that no cattle were in existence from which security could have been had if the notary’s certificate had been true. The act of the notary did not have the effect of substituting another in the place of the one who has obtained the former loans since the evidence shows that the same man made relator’s note. Consequently, the notary’s certificate did not proximately cause the loss, and, therefore, relator could not recover more than nominal damages, but, because the notary’s act was a violation of official duty which relator was entitled to have performed, relator is entitled to nominal damages.</p>

<p>1. HUSBAND AND WIFE: Domicile: Eight of Husband, to Fix: Presumption. The husband, as the head of the family, has the right to fix the domicile or matrimonial residence without the wife’s personal agreement or consent thereto, and the wife is bound to follow her husband when he changes his residence, provided the change is made by him in the tona fide exercise of his power. ' The law presumes that the domicile of the husband is the domicile of the wife and that the residence of the wife follows that of the husband.</p> <p>2. ATTACHMENT: Intent to Leave the State. Since the husband can change -his domicile without obtaining the wife’s consent, and the wife’s residence follows and coincides with that of her husband, his intention to change the domicile determines her intention to change in the absence of any showing that the wife refused to recognize or abide by the husband’s intention. Hence, in such case, in order to sustain an attachment on the ground of an intent to leave the State, the attaching creditor need only show the husband’s intention in that regard without showing similar intention on the part of the wife.</p> <p>3. -: -: Affidavit: Pleading. The fact that the pleading or statement in the affidavit ior attachment, said that defendants, who were husband and wife, were about to remove their property out of the State with intent to change their domicile, did not, in the absence of any showing that the wife refused to recognize or abide by her husband’s decision, require proof as to the formation of a personal intention on the wife’s part to change. If such was . an allegation as to the wife’s intention it was merely a pleading thereof according to its legal effect.</p>

<p>1. NEGLIGENCE: Evidence: Joint Defendants: Relative Duties and Obligations. In an action for damages for personal injuries against joint defendants the latter are not permitted to bring into the case the relative duties and obligations existing between themselves, as such a controversy involves the liability of each to the plaintiff, and not their responsibilities among themselves designed to define their rights in. their business relations to each other. The law-making power, and not the defendants, can alone promulgate their obligation and liability to plaintiff.</p> <p>2. -: Excessive Verdict: Passion and Prejudice. Where there is evidence of probative force that the plaintiff suffered a severe injury as the result of a collision, the action of the trial court in reducing the verdict by half does not show that the jury was governed by passion and prejudice.</p> <p>3. -: Judgment Against Two Defendants: Reversed as to Both. Where the appellate court finds that one of two defendants is entitled to a reversal of a judgment obtained against both, the judgment must be reversed as to both, notwithstanding the error causing the reversal was injected into the case by the other defendant and not by the plaintiff.</p> <p>4. NEW TRIAL: Newly Discovered Evidence: Discretion of Trial Court. The granting of a motion for a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court, and many things must he present, such as the element of diligence, the probability of the new evidence producing a different result, and that it is not merely cumulative or simply to impeach the character or credibility of witnesses, before such a motion should be granted.</p>

<p>PROHIBITION: Picture: Rules Circuit Court: Contempt. The circuit court of Jackson County, Missouri, is composed of several divisions, presided over by separate judges, one of which is the assignment division. A judge of a division issued a temporary restraining order against the Chief of Police restraining him from arresting an exhibitor of a picture known as “I, Mary McLane — Men Who Have Made Love to Me.” The writ was made returnable co the assignment division, where it was dissolved before return cky. The police then arrested the exhibitor and the division judge issued an order against them in contempt, and the Chiet of Police obtained a temporary writ of prohibition from the Court of Ap- . peals. It was held that the division judge was without further jurisdiction after returning the first writ to the assignment .division, and that he should be prohibited from pursuing the proceeding in contempt. •</p>

<p>1. TAXBILLS: Equity: Injunction. In,the absence of statutory provision requiring each street in a city to be treated as a single separate improvement, many streets and parts of streets may be embraced in one plan or scheme of public improvement, if in fact they can all be regarded as parts of the same improvement. The extent of such improvement and what shall be included in it, and its nature and character, are within th,e legislative discretion of the City Council, and a court of equity will only interfere to correct a clear abuse of the discretion.</p> <p>2. -: Municipal Corporations: Public Improvement of Streets: Connecting Streets. To require each street of a city to be treated as one improvement and the property fronting on that street to participate only in the cost of improving it would lead to great difficulties, often forbidding an improvement entirely, or rendering it inadvisable unless adjacent streets were similarly improved and the whole done as one improvement.</p> <p>3. -: Front Foot Rule. Under the “front foot” rule each lot abutting on public streets in a city must bear its proportionate share of the entire cost necessary to improve all the streets embraced within the plan or scheme of improvement and not the mere cost of the portion in front of it.</p> <p>4. -: Engineer’s Estimate: Lump Sum. Where the engineer’s estimate of the cost of public improvement of streets is in a lump sum and not itemized as by unit measure, but expressly refers to the plans and specifications and states that the estimate is according to them, so that taking the ordinance, the plans and specifications and the estimate together, there would be shown all the information that a detailed and itemized estimate would reveal, such estimate is sufficient.</p> <p>5. -: Ordinances: Advertising of Bids: Clerical Error. An ordinance, directing a city engineer to advertise for bids for public work and providing that the “highest” bid be accepted is not vitally defective where there is no showing that the use of the word “highest” instead of “lowest” had any effect upon the number of bidders or upon the bids made, the entire bidding being advertised and carried out on the theory that the lowest competitive bid was sought and the contract eventually let to the lowest bidder.</p> <p>6. FOREIGN CORPORATIONS: License to do Business: Contracts. A contract entered into in this State by a foreign corporation not authorized to transact business in this State is not void where the company complies with the statutes of this State, before any attempt is made to perform said contract (following Wulfing v. Armstrong Cork Co., 250 Mo. 723).</p>

<p>Appeal from Grundy Circuit Court. — Hon. O. W. Wanamaher, Judge.</p>

<p>1. CHATTEL MORTGAGES: Power of Sale: Notices. Powers of sale in chattel mortgages must be strictly followed as to places and time of posting notices, and in all other particulars.</p> <p>2. - — : Stipulations Drawn by Mortgagee. A stipulation drawn by a mortgagee regarding change of place of sale to another county will not be added to by intendment so as to allow posting of notices in such other county contrary to the mortgage provisions.</p> <p>3. -: Foreclosure: Place of Sale: Notices. Where mortgagee obtained a stipulation that a sale be held in another county, but nothing was said as to where notices should be posted, posting of notices only in the county where the sale took place, where the mortgage expressly stated notice should be posted in the other county, rendered the sale void.</p> <p>4. USURY: Sales: Discounts. . That vendor offered to sell machinery for $2100 cash or $2400 on time notes did not render a chattel mortgage for $2400 usurious.</p>

<p>Appeal from Wright Circuit Court. — Hon. C. H. Skinker, Judge.</p>

<p>1. REFORMATION OF INSTRUMENTS: Right to Remedy: Froof Required. To warrant reformation of instrument for mistake,. the mistake must be mutual, and the party asserting such mistake must prove it by evidence which leaves no reasonable doubt in the mind of the court, though the same degree of proof required in criminal cases is not necessary.</p> <p>2. INSURANCE: Evidence: Sufficiency. Evidence held to show mutual mistake in an insurance policy upon property of the wife drawn in favor of the husband which the. insurer’s agent told plaintiff was valid in spite of the variance in ownership.</p> <p>3. REFORMATION OF INSTRUMENTS: Mistake: Character of Mistake. Where the owner of property told the agent on seeing the policy that she owned the property and the policy was in the husband’s name and the agent assured her that the policy protected her against loss, there was a mutual mistake of mixed law and fact warranting reformation of the policy.</p> <p>4. INSURANCE: Fire Insurance: Instructions: “Total Loss.” In an action on fire policy, instruction that if the building could have been repaired with materials of like kind and quality, and so put in as good condition as before the fire, plaintiff could recover only the cost of repairing the building, sufficiently defined “total loss” in a negative way.</p> <p>5. AFFEAL AND ERROR: Scope of Review. In action on fire policy, where there was substantial evidence of total loss, the finding of fact that there was a total loss cannot be overturned.</p> <p>6. INSURANCE: Instructions: Total Loss. In action on policy insuring a barn consisting of a main building and several extensions/ a general instruction limiting recovery to cost of repairs if the building could have been repaired was sufficient, and it was not necessary to instruct on partial loss as to the various additions to the building.</p> <p>7. -: Fire Insurance: Total Destruction of Building: “Wholly Destroyed.” There need not be an absolute extinction of all the parts of a building in order for it to be “wholly destroyed.”</p> <p>8. FIRE INSURANCE: Total Loss. In view of R. S. 1909,“sec. 7020, as to valued policies, one whose harn was insured in several companies could recover on a valued policy the full amount of the policy regardless of other insurance.</p> <p>9. EVIDENGÉ: Admission: Testimony. Where insured testified that after a fire a new barn was built which cost $900, but there was no evidence that it was substantially the same as the old barn, there was no admission that the old barn was duplicated for $900, which was less than the face value of the policy.</p>

<p>1. APPEAL AND ERROR: Review: Findings'of Fact. A finding of fact by the trial court in an action at law is, where supported by evidence, conclusive on appeal, in the absence of a showing of passion, prejudice or willful misconduct.</p> <p>2. BANKRUPTCY: Trustee: Authority of. The trustee in bankruptcy is, under Bankruptcy Act July 1, 1898, chapter 541, sec. 67e, 30 Stat. 564 (U. S. Comp. St. 1916, sec. 9651), authorized to enforce the rights of creditors of the bankrupt to set aside liens which are void under the State law for want of recording.</p> <p>3. -: Liens: Effect. Under Bankruptcy Act July 1, 1898, sec. 67e, the effect to be given an unrecorded chattel mortgage, where possession of the article was not given the mortgagee, must be determined under the law of the State in which the case arises.</p> <p>4. -: Validity: Want of Recording. Under Revised Statutes 1909, section 2861, declaring chattel mortgages to be invalid except as between the parties unless recorded before possession is taken, and sections 2887 and 2889, requiring conditional sales to be valid against creditors, the seller of a motor car, who received as payment notes reserving title and giving him a chattel mortgage, is not, having withheld the same from record, entitled to record the same arid take possession of the car as against creditors whose claims had meantime arisen, so where the debtor became a bankrupt a few days after the seller took possession, his lien is subject to attack by the trustee in bankruptcy.</p>

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

<p>1. CONTRACTS: Merger of into Deed: Covenants. Where a deed has been executed annd accepted as performance of an executory contract -to convey real estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed. And although the deed thus accepted varies from that stipulated for in the contract, as where the vendee accepts the deed of a third party in lieu of the deed of his vendor, the law remits the party .to his covenants in his deed, and he cannot recover on the contract because of a failure of title by reason of a forged deed in the chain of title in the absence of fraud or mistake.</p> <p>2. APPEAL AND ERROR: New Trial: Reasons: Review. Where the trial court, on motion for new trial, set aside the verdict without giving any reason therefor, the appellate court will affirm the judgment if any one of the various grounds stated in the motion are sufficient.</p>

<p>1. ADMINISTRATOR: Partnership Estates: Liability of Bondsmen. A and B were partners. A died and B qualified as administrator of tbe partnership estate. Before this, estate was. settled B died and C was appointed administrator de bonis non of the partnership estate and D was appointed administrator of B’s individual estate. D sued the sureties on B’s bond for the appraised value of the partnership estate and recovered judgment for the full amount. Held that the two estates (individual and partnership) having been placed in different hands the administrator of B’s individual estate had no right to maintain such suit.</p> <p>2. PARTNERSHIP: 'Settlement of Partnership Estate: Common Law. Upon the death of one of two partners, the right to settle the partnership estate vests in the surviving partner under the common law, and such right is not dependent- upon the latter giving bond as required by section 91, Revised Statutes 1909. His failure, however, to give such bond might warrant the administrator of the deceased partner’s individual estate, should one be appointed, in taking possession of the partnership assets.</p> <p>3. -: -: -. If the surviving partner does not qualify under the statute as administrator of the partnership estate, but acts merely under his common-law authority, then upon his death the right and duty of administering upon the partnership estate . devolves upon his administrator.</p>

<p>1. PARTITION: Attorney Fees: Power of Court to Allow. In an action in partition, the trial court is empowered to allow the attorneys bringing the suit, a reasonable fee for their services to be taxed as other costs in the case, and the fact that the plaintiff sells his interest in the property to one of the defendants before final decree is entered, does not deprive the. court of such power.</p> <p>2. -: Jurisdiction of Court: Estate Unsettled. The appointment of an administrator for an estate, after the commencement of an action to partition lands belonging to such estate does not deprive the circuit court of jurisdiction to entertain such partition suit, but final decree thereon will be postponed until the estate has been fully settled or the court satisfied that there is ample property nHunde to satisfy all claims.</p>

<p>Appeal from Jasper Circuit Court. — Hon. B. A. Pearson, Judge.</p>

<p>Appeal from Circuit Court of Greene County. — Hon. Arch A. Johnson, Judge.</p>

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

<p>_ 1. EVIDENCE: Admissions by Agent. In an action against a railroad company for injuries to a shipment of lj.ve stock, testimony as to admissions made by a brakeman of the defendant company, but who was not running on the train carrying the shipment, is inadmissible; for the admissions of an agent can only be received against his principal when they are made as a part of the work or business he is doing or transacting.</p> <p>2. APPEAL AND ERROR: Review: Harmless Error. In an action against a railroad company for injuries to a shipment of live stock. The erroneous reception of evidence of admissions of the railroad company’s agent not made in the course of his employment cannot be treated as harmless because cumulative or other evidence of the company’s negligence.</p> <p>. 3. CARRIERS: Carriage of Live Stock: Action: Negligence: Averment. In an action for damages to an interstate shipment of live stock in which the carrier’s liability was governed by the Carmack Amendment (Act June 29, 1906, ch. 3591, section 7, pars. 11, 12, 34 Stat. 595) as altered by the Cummins Amendment of 1916 (Act Aug. 9, 1916, ch. 301, 39 Stat. 441 (IT. S. Comp. St. 1916, sec. 8604a), where plaintiff alleged the negligence of the railroad company instead of relying on its common-law liability as an insurer, he must, having averred the negligence, prove it as alleged, or there can be no recovery.</p> <p>4. -: Liability: Liability as Insurer. A common carrier is liable for all loss or injury not due to the act of God or the public enemy, the inherent nature or qualities of the goods, or the act or fault of the owner or shipper, although as to those excepted cases the carrier may be liable by reason of negligence.</p> <p>5. -: Carriage of Live Stock: Actions: Evidence. Where a shipper of live stock alleged that the railroad company was guilty of negligent delay in transportation, the shipper, while having the burden of proving such negligent delay, need not establish it by direct evidence.</p> <p>6. -: -: -:--. Under Acts 1913, p. 177, amending Revised Statutes 1909, sec. 3121, declaring that in any action against a railroad corporation for damages on account of its failure to transport live stock within a reasonable time, proof of the failure to transport such live stock within a reasonable time shall constitute prima-facie proof of negligent delay casting on the corporation the burden of showing that the failure was not due to its negligence, held that the question whether a railroad company was guilty of negligent delay in the transportation of a shipment of live stock was for the jury.</p> <p>7. -: -: Negiligence: Proof. Mere proof of injury to a shipment of live stock while in transit will not make a prima-facie showing of negligent operation so as to cast the burden of disproving negligence on the carrier.</p> <p>8. -: -: Actions: Evidence: Jury Question. In an action against a railroad company for injuries to a shipment of live stock, the question whether the company was guilty of negligent operation of the train transporting the stock held for the jury.</p> <p>9. -: -: -: Liability. A carrier is not liable for injuries to animals being transported where such injuries result from the propensities of the animals themselves, or from attacks of the other animals.</p>

<p>1. WRIT OF ERROR CORAM NOBIS. • This ancient writ is frequently invoked to aid our code to the end that substantial justice may ' he done. It is parcel of that procedure which came to us from the common law. It issues out of the court in which the record lies and predicates upon errors of fact and not errors of law. It would lie at common law when the court had proceeded as though a fact which was material to its right to proceed existed, when it did not exist, and when the absence of the fact assumed to exist entirely defeated the power of the court to attain a valid result in its proceeding. Where defendant dies after service of process, and before judgment, the writ of error coram nobis is the proper remedy.</p> <p>2. VACATING RECORD OF SATISFACTION OF JUDGMENT. Vacating the rqcord of satisfaction was a mere incident to the setting aside of the judgment, because the moment the judgment was set aside it ceased to exist. The purpose of the acknowledgment of satisfaction is to destroy the lien on the property of the judgment debtor. Destruction of the judgment destroys the lien thereof.</p> <p>3. ATTORNEY’S LIEN. An attorney has a lien, as between himself and his client, upon the cause of action and judgment for his fee.</p> <p>• 4. AGREED STATEMENT OF FACTS. Where an attorney, without any reservation, participated in settling an agreed statement of facts, and made no special appearance in the agreed statement, thereby elected to plead to the mertis, and will not be heard, after-wards, to say that he was not properly called into court.</p> <p>5. ERRONEOUS JUDGMENT. Where a party has been wronged by an erroneous judgment which is reversed on appeal, it is not necessary for the party seeking restitution of what he has lost to bring a separate action, but all the parties being in court, the court will right the wrong with all possible speed.</p> <p>6. VOLUNTARY PAYMENT OF JUDGMENT. Money paid upon a judgment with full knowledge of all the facts cannot be recovered. Payment of money upon an illegal and unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property of the party from. detention, or when the other party • is armed with apparent authority to seize upon either and the payment is made to prevent it. But money paid with full knowledge of- all the facts and without fraud cannot be recovered because of ignorance as to legal liability. Money Voluntarily paid to satisfy a judgment afterwards reversed cannot be recovered where it appears that the original claim was a just one. There are cases in which the right of recovery has been maintained although the judgment was voluntarily paid on the ground that although the payment was voluntary yet defendant having received it of the plaintiff to which in ex aequo et bono he was not entitled, the same was recoverable as for money had and received. On the other hand money paid in satisfaction of a judgment afterwards vacated and the party to whom it was paid was not in equity entitled thereto, may be recovered.</p> <p>7. VACATION OF JUDGMENT: Parties. Judgment of restitution should not be rendered against one who was not entitled to any part of the judgment, and who had received no-part thereof.</p> <p>8. PRESUMPTION OF DEATH. Presumption of death anises where a person has absented himself for seven years and has not been heard from.</p>

<p>Appeal from-Carter County Circuit Court. — Hon. E. P. Dorris, Judge.</p>

Louis. —Eon. Eugene McQuillin, Judge. (1) When the Supreme Court on a proper transfer has jurisdiction of a cause, it will hear and determine the entire cause and not merely dispose of the point of'' difference in the Court of Appeals. Sutton v. Cole, 155 Mo. 206; Fulkerson v. Murdock, 123 Mo. 292.

<p>Appeal from the Circuit Court of Monroe County.— Eon. William T. Ragland, Judge.</p> <p>• (1) The court erred in permitting plaintiff to testify that Dr. Laughlin told her when he treated her that her ribs were broken like a “green stick fracture” (Ab. 36, 105). This was hearsay and prejudicial. Atkinson v. American School of Osteopathy, 240 Mo. 388, 356; McDeimott v. Co., 73 Mo.. 516, 520; Fry v. Railroad, 200 Mo. 377, 406; Price v. Thorington, 10 Mo. 135, 140; O’Brien v. Kenney, 74 Mo. 125, 127. (2) The court erred in admitting alleged statements of Dr. Charley Still made after the alleged injury without instructing the jury that they could not be considered as affecting his co-defendant. (Ab. ' 98, 99.) Abbott’s Trial Evidence, page 188; 2 Wigmore on Evidence, sec. 1076, pp. 1275-6. (3) The court erred in admitting an alleged statement of Dr. A. T. Still to Dr. Laughlin (Ab. 38) to look for trouble right here. “It is sunk down on it.” It was hearsay and inadmissible for any purpose. Abbott’s Trial Evidence, page 188; 2 Wigmore on Evidence, sec. 1076, pp. 1275-6. (4) The court erred in overruling the objection, to the purported conversation between plaintiff and defendant Still, and erred in refusing to strike out the answer of the witness (Ab. 33, 35). It was a self-serving declaration, and evidently designed to, and did, prejudice the jury, and was inadmissible for any purpose. Fourth National Bank v. Nichols, 43 Mo. App. 385, 390, 394; 2 Wigmore on Evidence, page 1258; State ex rel. Tiffany v. Ellison, 182 S. W. 997. (5) The court erred in overruling defendants’ objection to the hypothetical question propounded to Dr. Mitchell (84, 85), and erred in refusing to strike out the answer of the witness, because said, question as framed, was not supported by any' proof, because the answer is not responsive to the question being limited to the mere experience of the witness with his own patients. (6) The court erred in permitting the witness Esther Campbell to testify that plaintiff, in September, 1901, had no indication or symptoms of asthma. She was a lay witness and not shown to have any knowledge, of the disease of asthma, and incompetent to answer the question. There is a sharp conflict in the testimony as to whether the plaintiff was afflicted with asthma in September, 1901, plaintiff contending that she was not, and defendant contending she, was thus afflicted. Therefore, the evidence • referred to was highly prejudicial, and given by one incompetent to answer the question. Reid v. Company, 58 Mo. 421; Sharp v. Company, 114 Mo. 94. (7) The court erred in permitting plaintiff’s mother to state her mere conclusions and opinion as to the plaintiff’s state of health. She was asked how low would the plaintiff get. Objection was made because the question necessarily calls for conclusion. The objection was overruled, and the witness stated she would get so low she could not stand anybody to move around or be in the room. She wast also permitted to state that the plaintiff suffered pain. She was not asked as to the physical indications but stated she had pain (Ab. 13, 14). This evidence was prejudicial. (8) The' conduct of the plaintiff in continually and habitually stating incompetent and prejudicial matters while on the witness stand and failing and refusing to answer questions, and instead thereof, indulging in addresses to the jury, was a palpable attempt on her part to influence and prejudice the jury, and the court should have granted a new trial on account of such conduct. Wajtylak v. Company, 188 Mo. App. 260. (9) The court erred in hot granting a new trial because plaintiff .and her witnesses Oven, Yost and Wening were guilty of palpable perjury. (10) The court erred in refusing to grant a new trial' because the evidence of defendant is overwhelming that plaintiff did not sustain the injuries or any of the injuries of which she complains. (11) The court erred in not granting a new trial because of the misconduct of the jurors as shown by the affidavits filed with motion for a new trial as well as affidavits filed by respondents (Ab. 266, 288). Tatlow v. Grantham, 66 Mo. App. 509. (12) The court erred in giving Instruction No. 1 on the part of respondent (Ab. 256). It advised the jury that plaintiff claimed in her petition that defendant Still “crushed, depressed or fractured said gladiolus, and fractured the cartilages of the second, third and fourth ribs.” Whereas the petition charged (Ab. 4) that defendant “broke and crushed plaintiff’s sternum and forced the same in and upon her lungs and bulged and forced out the cartilages of her ribs on the right side of her body into an unnatural position.” State ex rel. v. Ellison, 195 S. W. 722, 724. (13) The court also erred in giving instructions on behalf of respondent Nos. 2 and 4 for the same reason. State ex rel. v. Ellison, 176 S. W. 13. (14) The court erred in giving plaintiff Instruction No. 6 because it defines the word “negligently,” and the words “ordinary care” to mean- such care as an ordinarily prudent person would exercise, whereas this defendant is to be tested not. by conduct of an ordinary person, but by the conduct of the ordinary osteopathic physician. Atkinson v. American School of Osteopathy, 240 Mo. 338. (15) The verdict is excessive. (16) The court erred in permitting plaintiff to ask the witness Laughlin the question (178) showing what Henor had written in his book. It was hearsay. Railroad v. Tates, 73 Fed. 587; McDonald v. Railroad, 219 Mo. 468, 492; Brown v. Company, 141 Mo. App. 382, 384, 17 Cye. 421.</p> <p>(1) The court did not err in the admission of the testimony of Dr. Laughlin as contended by appellant for the reason that it stands in the nature of an admission by an agent, when in the line of duty, and as such is an admission of defendants. The authorities cited by appellants do not support their contentions. Atkinson v. American School of Osteopathy, 248 Mo. 338, 520; Phillips v. Railroad, 211 Mo. page 419, 441; Malecek v. Railroad, 57 Mo. 21. (2) The appellants are not in a position to complain of the nonaction of the court in not instructing as to the alleged statement of Dr. Charles Still as no instruction was asked by the appellant school. The court announced when the testimony was admitted that it was admitted because competent against defendants/ Still, (Abst. 98). (3) This testimony was admissible on the ground of it being in the nature of an admission because not denied when made. The language used by the plaintiff charged Still with liability for her condition and injury, and was such as called for a denial of any liability by him which was not made at the time shown by the conversation. Coffey v. Tifony & Howard, 192 Mo. App. 455, 474. (4) The testimony of Esther Campbell as to the health of plaintiff as to asthma violates no principle of law. She first gave the facts in full and then stated that she never discovered any symptoms of asthma. “A non-professional witness may give his opinion as to the physical condition of another as to health with a full statement of the facts upon which he bases his conclusion,” as was done in this case. Crowe v. Peters, 63 Mo. 429; Moore v. Moore, 67 Mo. 192; Norris v. R. R. Co., 239 Mo. 711. (5) The same is true as to the objections to the testimony of plaintiff’s mother.</p>

Louis. — Hon. Wilson A. Taylor, Judge. (1) Either under the Attachment or Garnishment Act a claimant may interplead. R. S. 1909, section 2345; R. S. section 2421. But since there seems to he some confusion as to whether or not a claimant may interplead under these sections in garnishment under execution, in the case at bar, upon motion of the plaintiff, the claimant was ordered by the court to interplead.

Louis County.— Son. G. A.- Wurdeman, Judge. (1) The circuit court erred in holding that the prohate court was without jurisdiction to hear and decide the issues raised herein.

Louis. —Eon. Kent K. Koerner, Judge. (1) Where there is any evidence of a material fact in issue, no amount of force in the rebutting testimony will authorize the court to take the question of fact from the jury. Hunt v. Missouri R. Co., 14 Mo. App. 160. If, on all the facts and circumstances, there is room for fair and sensible men to differ in their conclusions, the jury should decide. Roddy v. Mo. Pac. Ry. Co., 104 Mo. 234.

Louis. —Hon. Wilson A. Taylor, Judge. (1) The husband, the defendant in this case, should have been required to give security for the maintenance, his property consisting almost entirely of personalty, and, therefore, constituting no security for the judgment. R. S. 1909, sec. 8295; Smith v. Smith, — Mo. App. — , 180 S. W. 568.

<p>Appeal from the Circuit Court of Pike County.— Hon. Edgar B. Woolf oik, Judge.</p>

Louis.' —Hon. Karl Kimmel, Judge.- (1) The petition charged an actual agency existing between defendant and Yoder & Co. , Not only was there no evidence of this, but the evidence completely disproved this allegation. (2) The case was submitted to the jury on the theory that defendant had ratified the unauthorized acts of Yoder & Co. or was estopped to deny their agency. This was a departure from the theory of the case defined in the. petition.

Louis. —Hon. William M. Kinsey, Judge. (1) The demurrer in this case should have been sustained: (1) Because there was no evidence of defendant’s negligence. (2) Because the statute, Sec. 7843, R. S. 1909, which was the sole ground of negligence alleged in the petition, does not apply to a swinging, movable platform like the one in the instant case. It was “transitory” and “shifting” in character and its safety was necessarily committed to the workmen in charge.

Louis. — Hon. J. Hugo Grimm, Judge. (1) When those operating a street car sees or by the exercise of ordinary care could see a person on the track in front of said ear, in a position of danger, it becomes the duty of the operator to stop the car and avoid striking such person, where the same can be done by the exercise of ordinary care with safety to the car and those on it, after the operator sees the person’s danger of being hit.

Louis. — Hon. Kent K. Koerner, Judge. (1) The action of the court in sustaining plaintiff’s motion for new trial for alleged error in instruction No. 5 was equivalent to overruling the motion as to all other grounds. Bradley v. Reppell, 133 Mo. 545; Ittner v. Hughes, 133 Mo. 679. (2) Where, as here, the plaintiff was not entitled to recover at all, the order granting a new trial should be set aside and the verdict and judgment in favor of the defendants reinstated.

Louis. 1 —Hon. Wilson A. Taylor, Judge. (1) The deceased was guilty of such contributory negligence as a matter of law that the plaintiff was not entitled to recover. Wilds v. Railroad. 24 N. Y. 430; Coyle v. Railroad, 77 N. IÍ. 604; L. S.'& M. S. Ry. v. Franz, 127 Pa. St. 279; Lenix v. Railroad, 76 Mo. 86; Stepp v. C. R. I. & P. Ry.,’ 87 Mo. 229; York v. K. C, C. & S. Ry., 117 Mo. 405; Mockowik v. Railroad, 196 Mo. 550; Miller v. Railroad/4 Fed. 768.

Louis. —Eon. George E. Shields, Judge. (1) The court erred in permitting the introduction of any evidence against defendants Decker. Eckhardt, Kratz, and Caldwell, over the objection of the defendants, on the ground that the petition did not state a cause of action against them.

Louis. —Hon. George H. Shields, Judge. (1) The allegations of the petition were insufficient to admit evidence of statutory or ordinance violation. There is no act of the defendant pleaded, only (Abs., pp. 1, 2 and 3) that the defendant was in charge of the erection of a building and in exclusive control of all parts of it, and on which plaintiff was employed.

’ (1) The Complaint Board has no right to refuse the relator the right to inspect and copy the letter. It contained false charges against him. It is against public policy to make this Board a repository for libelonus letters. (2) (a) The question of privilege is for the defendants in the libel suit, not for the Board of Complaint, (b) In any event such letter is but conditionally privileged. Finley v. Steele, 159 Mo. 305; Newell Lib. and Sian.

<p>1. CRIMINAL LAW: Appellate Practice: Absence of Bin of Exceptions: Review. On appeal in a criminal case in tbe absence of a bill of exceptions, tbe appellate court is confined to an examination of the record proper.</p> <p>2. -: Indictment and Information: Lotteries: Sufficiency of Information: Following Language of Statute. An information charging that defendant willfully and unlawfully did sell, to a person whose name to the informant was unknown, a certain ticket and part of a ticket in a lottery and device in the nature of a lottery known as “country store,” contrary to the form of the statute, etc., substantially following the language of Revised Statute of Missouri, section 4771, was sufficient.</p> <p>3. -: -: Absence of Bill of Exceptions: Presumptions. On appeal in a criminal case in the absence of bill of exceptions bringing up the evidence, the appellate court is confined to the single question of whether the information will support the judgment of conviction, for it must assume that the evidence and course of trial justified the finding and judgment, if the information charged the commission of an offense.</p> <p>4. -: Appellate Practice; Sufficiency of Information: Bill of Exceptions. To enable the appellate court to consider the sufficiency of an information, it is not necessary that there be a bill of exceptions.</p>

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

<p>1. MANDATORY INJUNCTION: Equity: Submission of Issue of Fact to Jury. Plaintiff refused to pay a gas bill claiming that it was exorbitant. Defendant thereupon shut off his gas. Plaintiff then applied for and obtained a restraining order which afterward became a temporary injunction. Thereafter defendant filed an answer to the merits and the court then made an order that issues of fact be framed between plaintiff and defendant for submission to the jury. Defendant declined to do this and the court thereupon ordered the temporary injunction made permanent. It was held, that the trial court erred in rendering judgment against defendant without a hearing.</p> <p>2. -: Framing Issue of Fact for Jury: Equity. Issues of fact for submission to a jury in equity cases may be prepared by the court, or counsel under the direction of the court, or may be prepared by counsel and submitted to the court for approval and wh,ere the court directs counsel to prepare such issues it is their duty to make a bona-fide effort to comply.</p>

<p>1. VOIR DIRE: Improper Questions: Prejudice. A woman and her husband were defendants in an action for assault and battery. Plaintiff’s counsel in examining jurymen on their voir dire was permitted to ash them if they knew the woman-defendant’s father, calling him by name and designating him as “the gambler.” It was held to he error.</p> <p>2. HUSBAND AND WIFE: Torts of Wife: Statute: Common Law, The following statute was enacted in Missouri in 1915: “For all civil injuries committed by a married woman, damages may be recovered against her alone, and her husband shall not be responsible therefor, except in cases where, under the law, he wo.uld be jointly responsible with her, if the marriage did not exist." It was held, that this statute repealed the common law, as to torts of the wife and put liability on her where formerly it did not exist, and took liability from the husband where formerly it did exist.</p>

<p>1. RUNNING ACCOUNT: Intention: Limitations. Plaintiff residing in Kansas had claims against the defendant for demurrage and for freight charges. As these charges accrued plaintiff presented them to defendant, who rejected some and paid others. The evidence showed that these claims were not intended to constitute one running open account. It was held that the last item within the statute of limitations would not save the earlier items which were without the statute from the bar of limitations.</p> <p>_ 2. STATE OF LIMITATIONS: Remedy: Statute of Forum. The Statute of Limitations pertains to the remedy and the law of the forum applies except where there is a statute in the State where the remedy is sought, which applies the statute of the foreign State; such as Sec. 1895, R. S. 1909, of the Missouri statute. <</p> <p>3. FOREIGN STATE: Limitations: Statute Applying Foreign Limitations. A cause of action arose and accrued in the State of Kansas. The creditor resided in that State and the debtor resided in Missouri. The Statute of Limitations in Kansas was for three years for such claims, while that in Missouri was five. It was provided in Sec. 1895, R. S. 1909, of the Missouri statute that when a cause of action accrued in a foreign State and was barred by the limitations in that State it should likewise be barred in Missouri. It was held that the cause of action being barred in Kansas, was also barred’ in Missouri.</p> <p>4. LIMITATION: Estoppel. If a defendant verbally agrees, on valid consideration, not to plead the Statute of Limitations, he will be estopped from' pleading it. But such promise should be pleaded and proven. Mere request not to sue made by a debtor to a creditor will not sustain an estoppel. 1</p>

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

<p>1. PERSONAL INJURY: Plaintiff’s Inexperience: Pleading. In a personal injury case it is error to allow plaintiff to prove his inexperience unless it was pleaded and proven that the defendant knew he was.</p> <p>2. EVIDENCE: Control of One Party: Presumption: Exception. The rule that “all evidence is to he weighed according to the proof which it was in the power of one side to have produced and in the ,power of the other side to have contradicted,” does not apply against a party not calling- a witness where such witness is equally accessible, or under the control of the other party.</p> <p>8. RAILROAD CROSSING: Material: Character of Crossing: Duty. In constructing a railroad crossing it is required by statute to be made of gravel, macadam or planks, and that the plank outside each rail, shall be approached by gravel or macadam six inches deep substantially and properly joined up to the plank. It is also required that the crossing shall be “good and sufficient.” So where a crossing is defectively made of gravel inside the rails, if the plank would have made it good and sufficient the railway company would be negligent in not using plank. And so if gravel and macadam on the outside of the rails could not be joined up to the outside planks without the use of cement, it would be the duty of the company to use cement, though it is not mentioned in the statute.</p>

<p>1. HOMESTEAD: Incumbrance: Payment: Creditor. A man resided on his homestead upon which there was an 'incumbrance for $480. He made a voluntary conveyance of the homestead to his daughter, subject to this incumbrance, apd then, with independent means, paid off the incumbrance. She then conveyed back to him. A judgment creditor for $100 sought, by bill in equity, to charge this judgment as a lien on the homestead. It was held he could not do so.</p> <p>2. EQUITY OF REDEMPTION: Payment: Creditor: Equity. One may have a homestead in an equity of redemption, and if he pays the mortgage, he still may hold the homestead, thus relieved of the incumbrance, and creditors have no right to follow the sum paid in discharge of the incumbrance, into the land.</p> <p>3. DEBTOR: Protection: Incumbrance: Creditor. The debtor may protect his homestead by paying an incumbrance so long as he does not increase it beyond the limited value, without giving a creditor a right to follow the sum paid and apply it on his claim.</p> <p>4. FRAUD: Creditor. The fraudulent conveyance of a homestead affords no right to creditors to attack it, since they have no claim on such homestead and in consequence, cannot be defrauded by its conveyance.</p>

<p>Appeal from Johnson Circuit Court. — Hon. A. A. Whitsett, Judge.</p>

<p>Appeal from Bates Circuit Court. — Hon C. A. Galvird, Judge.</p>

<p>Appeal from Macon Circuit Court. — Hon. Vernon L. Drain, Judge.</p>

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

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

<p>1. NEGLIGENCE: Municipal Corporations. Kansas City is the owner of a pleasure ground called “Swope Park” and maintained therein, among other forms of amusement, Shetland ponies for a profit, and invited all children to ride them for their pleasure and amuse- ' ment. The agent of the city negligently put plaintiff upon the hack of one of the ponies and started him off unattended and plaintiff was thrown by the’pony and injured. It was held that the city having undertaken to provide these ponies for the amusement, recreation and pleasure of children, it was liable for negligence of its agents and servants in handling such children and ponies.</p> <p>2. -; ultra Vires: Charter of Kansas City. The provisions of the charter of Kansas City prohibiting “shows” or “exhibitions” in parks or public grounds has no application to children riding on Sheland ponies in such parks. The riding of ponies by children for pleasure, amusement and recreation in public parks is not a “show” or “exhibition.”</p>

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

<p>Appeal from Pettis Circuit Court. — Eon. E. B. Shain, Judge.</p>

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

<p>1. INSANE BEESONS: Allowance in Probate Court: Action in Circuit Court: Personal Judgment. A person was declared insane in the probate court and placed under guardianship. He was afterwards restored to his right mind and the guardian discharged. While the guardianship was pending an account, accruing against him before his insanity, was allowed to a creditor against his estate by the probate court, but it was not paid. The creditor then brought suit on the judgment in the circuit court against the former insane person praying a personal judgment against him. It was held that the action could not be maintained.</p> <p>2. JUDGMENT IN EEM: Personal: Estate. An allowance in the probate court of a claim against an insane person accruing while he was sane is in the nature of a proceeding in rem to be considered a judgment against the estate and not personal against the ward afterwards restored.</p>

<p>Appeal from Jackson Circuit Court. — Eon. William 0. Thomas, Judge.</p>

<p>Appeal from Pettis Circuit Court. — No». H. B. Shain, ■Judge.</p>

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

<p>CONTRACTS: Promise “When Able:’’ Validity: Burden of Proof. A promise to pay for property purchased “when able’’ is a valid contract and can only be enforced when the promisor has become able; and the burden is on the promisee to prove that fact.</p>

Louis, —Hon. William M. Kinsey,. Judge. (1) Where trust funds are wrongfully commingled and converted by the trustee and the general assets of the trustee are thereby benefited, equity will charge those assets with the amount of the converted fund as a preferred demand. Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Evangelical Synod v. Schoeneich, Admr., 1.43 Mo. 652.

Louis. —Hon. Wilson A. Taylor,- Judge. (1) It was misleading, prejudicial and erroneous to tell the jury, as was done in instruction No. 1, that in determining whether or not the assured’s death was caused by the excessive use of morphine, the jury should not speculate or guess. Pepperkorn v. St. Louis Transfer Co., 171 Mo. App. 709,154 S. W. 836; State ex rel. v. Ellison, 187 S. W. (Mo.) 23.

Louis. —Hon. Leo. 8. Rassieur, Judge. (1) R. H. Stevens, trustee, could not under the law delegate to his son, or any other person, power or authority to act for him under this deed of trust, or to act for him in the handling of this trust .fund. Martel v. Peck, 144 Mo. App. 701; Graham v. King, 50 Mo. 22; Bales v. Perry, 51 Mo. 449; Anderson v. Roberts, 147 Mo. 486; Pollihan v. Revelry, 181 Mo. 622; Vail v. Jacobs, 62 Mo. 133.

Louis. —Son. Wilson A. Tayior, Judge. (1) Under the statutory law of this State life insurance companies, their officers, agents, solicitors or representatives are inhibited from offering to pay, allow or give, directly or indirectly, as an inducement to insurance, any rebate or premium on the policy, and a penalty is provided for the violation of this inhibition as against the Insurance Company, its agents, solicitors or representatives. Sec. 6934, 6935 R. S. 1909.

Louis.— Hon. J. Hugo Grimm, Judge. (1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence: (a) Because there was no evidence of any negligence on the part of the appellant, (b) Because the testimony shows that the respondent was guilty of contributory negligence as a matter of law. Hamm v. United Railways Co., 184 Mo. App. 5; Cole v. Metropolitan Street Railway, 121 Mo.

Louis.. —Hon. ■William M. Kinsey, Judge. (1) The bill of sale was admissible in evidence because it is specially provided for by statute. R. S. 1909, secs. 2227 and 2230. (2) The duties of a constable are the same as the duties of a sheriff, and the. “General Code” is made applicable to justices of the peace and constables. R. S. 1909, secs. 2201, 2202, 2224, 2247, 2248, 2249; Stegall v. Pigment & Chemical Co., 150 Mo.

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

<p>1. BANKS AND BANKING: Certified Cheeks: Interpleader. Under the circumstances of this case, a hank holding a certified check on which payment is stopped has the right to have contending claimants to the fund affected hy the check, litigate and judicially determine who is rightfully entitled thereto.</p> <p>. 2. -: -: -. A hank certifying a check at the request of the drawer, does not agree that it would pay the check at all events, hut only that the amount thereof would he forthcoming if delivired and when presented hy'one lawfully entitled thereto.</p> <p>3. PLEADING: Interpleader. The fact that a bank, interposing its plea for a bill in the nature of an interpleader, did not follow the steps laid down in- section 94, Laws 1915, page 148, is not fatal since that act says: “The remedy provided in this section shall be in addition to and not in exclusion of remedies now or hereafter existing.”</p>

<p>1. COMMON CARRIERS: Damages: Meats: Shipments. Where a shipment of meat is damaged and a notice is sent by the shipper to the carrier and the notice specifies the shipment so that the carrier may readily identify it, and such notice also apprises carrier of the character of the claim and discloses that an investigation is necessary and affords opportunity for that to be done, the shipper will be held to have complied with the shipping contract, which specifies that the claim must be filed with the carrier at the point of delivery, or at the point of origin, within four months after delivery.</p> <p>2. -:-:-: Notice. A notice sent by the shipper to 1he carrier concerning damaged freight is not sufficient, to comply with the provisions of the shipping contract, which specifies that a claim therefor must be filed with the shipper within four months, where no reference is made to damages' or loss, much less any claim therefor, and gave no intimation that claim would be filed therefor.</p> <p>3. -:--:-: -. As an interstate shipping contract is controlled by considerations having' to do with its prime object and general policy of the Interstate Commerce Act, among which is the prevention of discriminations and the establishment of unity of responsibility among all the carriers, dealing with the shipment, a notice of claim for loss given, not at the point of origin or delivery as required, hut to the carrier’s,General Freight Claim Agent elsewhere, is not a substantial compliance with the terms of the shipping contracts. Bbown, X, dissenting.</p> <p>4. INSTRUCTIONS: Damages: Measure of. An instruction giving the measure of damages as the difference between the market value of meat in good condition on arrival at destination, and its reasonable value in the damaged condition is erroneous, where it is contrary to the provisions of the shipping contract regarding such damages.</p>

<p>1. TAXES: Subrogation: Mistake. The plaintiff sued to recover from the defendant taxes paid out on the wrong piece of property by-Nancy D. Monroe, now deceased. The latter during her lifetime owned an adjacent lot to that of the defendants and by mistake paid the^taxes on their lot instead of on her own. The mistake was made by the city and ,the taxpayer and the plaintiff desires to be subrogated to the rights of the city and recover back the taxes wrongfully paid. Held, that there is no power in equity to order plaintiff or her estate, subrogated to the rights of the city so as to enable the enforcement against the defendant’s property of the lien which the city had for taxes thereon.</p> <p>2. EQUITY: -: -. The payment of a debt by one not the debtor absolutely extinguishes the debt if there is no agreement that the security therefor shall be transferred and kept alive for the benefit of such payer. But equity, through the doctrine of subrogation, will effect the reimbursement of the payer by substituting him in the place of the creditor where the payer is compelled to pay in order to protect his own rights or to save his own property.</p> <p>3. -: -: -. In order that the equitable doctrine of subrogation may be invoked, the payment must have been made by one who at the time had, or in good faith, supposed he had, an interest in discharging the demand.</p>

<p>1. FIRE INSURANCE: Trustee’s Sales. The plaintiff who was the owner of a house and lot, insured the house against fire with the defendant. The defendant placed upon the policy a mortgage clause to cover a deed of trust upon the property. Two days after the sheriff, acting as substitute trustee, sold the property at auction to one Thompson, the house was destroyed by fire, but Thompson afterwards refused to pay the purchase price or accept the title, and the plaintiff sued the defendant to recover the insurance. It is held, that there was no change of interest in the property by reason of sheriff’s sale for the reason that the sale was not binding on Thompson, or the sheriff, and that in order that there be a change of interest there must be something done by the sheriff, or the bidder, at the time of trustee’s sale at least sufficient upon which to enforce an action for specific performance.</p> <p>2. -: -: Statute of Frauds. It is not necessary that the plaintiff plead the Statute of Frauds in her reply in order to make that point in a trial, for under the general denial contained in her reply to the defendant’s answer the platintiff could object to any offer to prove, by oral testimony, things that were required to be in writing.</p>

<p>Appeal from Jaclcson Circnit court. — Hon. Daniel E. Bird, Judge.</p>

<p>INSTRUCTIONS: Street Railways: Rate of Speed. Where the plaintiff’s instruction to the jury is erroneous, but such error is after-wards cured by the defendant’s instruction, which fully explained the plaintiff’s instruction so that the jury could not have been mislead, it will not constitute reversible error.</p>

<p>1. TELEGRAPH AND TELEPHONES: Damages: Interstate Commerce. The plaintiff sued to re.cover damages for the delay by the defendant in transmitting a telegram. There were two routes by which a telegram could be transmitted from Kansas City to Triplett, Missouri, one interstate and the other intrastate, but it was necessary to use a relay for both transmissions. The defendant transmitted the message through the interstate route, and the telegram was delayed several hours to the plaintiff’s damage. Held, that since the message was transmitted as an interstate message, the defendant was not subject to the penalty as provided in section 3330, Revised Statutes 1909.</p> <p>2- -: -: -. The fact that the origin and destination of a telegam was in one certain State does not make the message or telegram an intrastate one when its course or route takes it out of the State.</p>

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

<p>1. WAGES: Interstate Carrier: Overtime. The plaintiff sued to recover wages from defendant, under the Adamson eight-hour law the amount of overtime from January 1, 1917, to May 19, 1917. The case was tried on an agreed statement of facts, the defendant contending that the act did not apply to the plaintiff’s contract of employment. Held, that the plainiff was entitled to recover for the excess time figured correctly on the pro rata basis of the contract rate for regular time.</p> <p>2. -: -: -. The Adamspn Law merely substituted eight hours of labor as a day’s work for the purpose of measuring the plaintiff’s compensation as necessary for day’s wage, with further requirement that he should not receive, for said eight hours’ labor less that he had received for his specified day’s task, and if it necessarily required more'than eight hours to perform the specified task he should be paid pro rata for overtime.</p>

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

<p>Appeal from Jackson Circuit Court. — Hon. Thomas B. Buckner, Judge.</p>

<p>Appeal from Adair Circuit Court. — Hon. J. A. Cooley, Judge.</p>

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

<p>1. NEGLIGENCE: Street Railways: Newsboys. Tbe plaintiff a newsboy, while riding on the steps of the defendant street railway ■ with one hand holding on the upright iron handhold and newspapers underneath the other arm, was struck on the hand by the conductor, breaking his hold on the handhold and causing him to fall from the car so that a rear car or trailer passed over his leg. The plaintiff sues to recover damages received for injuries resulting from the fall. Held, that it is within the line of a street railway conductor’s duty to eject persons from his car and it was not error for the court at plaintiff’s request to instruct the jury assuming such to be the fact.</p> <p>2. -: Instructions: Compensatory Damages. Where an instruction on the measure of damages told the jury that “they shall take into consideration in connection with all the facts in evidence the nature and extent of his injuries,” it was not erroneous on account of the use of the words in italics, as such words do not call for punitive damages.</p> <p>3. -: Pleading and Proof: New Trial. The petition asked for punitive as well as exemplary damages and 'tke jury returned a general verdict without specifying which kind of damages they gave, whether such circumstances would constitute reversible error is not passed upon as the objection was not raised in the defendant’s motion for a new trial, or in its motion in arrest of judgment.</p> <p>4. MISCONDUCT OF COUNSEL: Objections. If the defendant objects to the conduct of plaintiff’s counsel in the trial of the case and the court does not rebuke counsel on request, it cannot be reviewed on appeal unless an exception is saved.</p>

<p>Appeal from Jackson Circuit Court. — How. William 0. Thomas, Judge.</p>

— Eon. Edgar B. Woolf oik, Judge. (1) An abandonment or an offer to abandon is an indispensable prerequisite of a claim for a constructive total loss. The first instruction given by the court at the plaintiff’s request is erroneous, for charging, in accordance with the policy provision, as to a constructive total loss without reference to the question of abandonment.