Volume 200 — Missouri Appeal Reports

Louis County.— Hon. G. A. Wurdeman, Judge. (1) In an action for damages, or other action at law, under the laws of Missouri, a court cannot render judgment for costs 'against a litigant, unless such judgment be authorized by statute. State ex rel. Buckingham Hotel Co. v. Kimmel, Judge, 183 S. W., 651.

—Hon. William T. Ragland, Judge. (1) The remarks of counsel for plaintiff in their argument to the jury went far beyond conventional limits and amounted to misconduct on their part and unquestionably aroused and inflamed the jury into a hitter hostility against defendant.

<p>1. HABEAS CORPUS: Jurisdiction of Court of Appeals to Issue Writ. Whenever a proper application for a writ of habeas corpus is filed in the Court of Appeals, the court or any judge thereof, is clothed with the power to and charged with the duty of issuing a writ of habeas corpus in the first instance; the mere filing of the application necessitates. that the judge or court to whom such • application is made shall examine into the same at least to an extent sufficient to determine whether or not such judge or court has jurisdiction thereof.</p> <p>2. COURTS: Jurisdiction of Court of Appeals: Constitutional Questions: Appellate Practice. On habeas corpus by a person refused a release on bail because of his failure to pay the fee provided by Revised Statutes of Mo. 1909, section 3459, as amended by Session Acts 1913, p. 192, which provides a fee of 50 cents for the benefit of the police relief fund for every bond taken by any police officer for the appearance of any person charged with violating any city ordinance, where the constitutionality of such statute is involved on the record and the jurisdiction of the Court of Appeals is in doubt, the doubt will be resolved in favor of the jurisdiction of the Supreme Court.</p> <p>3. -: -: -:-: Transfer of Causes to Supreme Court. A habeas corpus proceeding involving a question as to the constitutionality of a statute will not be dismissed by the Court of Appeals, but will be transferred to the Supreme Court.</p>

Louis. — Hon. Wilson A. Taylor, Judge. (1) The provision in the general contract for payment of $100 for each day’s delay in finishing the various sections of the building must he construed as a penalty and not as liquidated damages, because: (a) In view of the character and cost of the building the $100 per day for each section is an unreasonable and extortionate snm and cannot be treated as a fair measure of actual damages, (b) Tbe damages for delay* in completing a…

Mahdamus. Original Proceeding. (1) The effect of the approval of Bond No. 1 (that is the bond approved July 9,1917), by the circuit court, whether it was a valid statutory bond or not, was to stay execution until the Court of Appeals shall, on proper motion of plaintiff Reifsnider, order the approval set aside, and said bond has at all times operated and does now operate as a stay of execution. Forsee v. Gates, 89 Mo.

— Hon. Frank Kelly, Judge. (1) (a) In equity eases the appellate court will not he hound hy the chancellor’s finding of facts, hut will review the whole evidence and pronounce the proper judgment. Fitzpatrick v. Weber, 168 Mo. 562-572. (2) (a) A highway may he established either: (1) By prescription, user or recognition; (2) By statute or statutory proceedings in the exercise of the right of eminent domain; or (3) By dedication. 37 Cyc. 17.

— Eon. Edgar B. Woolfollt; Judge. (1) Section 5 of the benefit certificate sued on is valid and prevents a recovery in this case. Cases wherein recovery is allowed where death of the insured is caused by the beneficiary are decided upon construction of the contracts. Sharpless v. G-rand Lodge A. O. TJ. W., 159 N. W. 1086; Schmidt v. Northern Life Assn., 112 Iowa, 41 51 L. R. A. 141; Knights of Honor v. Menkhausen, 209 Ill. 277, 65 L. E. A. 508.

<p>1. INTERSTATE COMMERCE: Quarantine of Live Stock: Common Carriers. The matter of quarantine of live stock and regulating tkeir transportation between the states is interstate commerce and when acted upon by Congress so as to impose its own rules and regulations, state quarantine regulations are superseded; and a conviction of a transportation company for violating a State statute is without legal support.</p> <p>2. -: State Law: Congressional Action. Where the state law does not unduly hinder or embarrass interstate commerce it may lawfully prescribe regulations incidentally affecting such commerce, until Congress speaks on the same subject, in which event the state law is superseded.</p> <p>3. -: Federal Statute: Limited Regulation: Later Statute. The federal statute (23 Ü. S. Stat. 31) was but a partial and limited regulation of quarantine of live stock. The act of March 3, 1905, (33 U. S. Stat., p. 1264, Chap. 1496), is much more comprehensive. It deals in detail, with the same subject and phases of quarantine that the Missouri Statute does (Sec. 717, R. S. 1909) and it is held to supersede the latter statute.</p> <p>4. -: Federal and State Statute: Conflict. Where the federal Secretary of Agriculture is directed by a federal statute’ to establish quarantine in the several States and Territories which he may find containing live stock affected with contagious diseases, and to make rules and regulations for interstate shipment of stock from such sections. And at the same time, State authorities under a State law, are given the same authority, the two authorities are in conflict and the federal law must supercede that of the State.</p> <p>5. COURTS: Concurrent Jurisdiction: Quiescence: Superior and Inferior. While two concurrent jurisdictions may exist together when one is quiescent, yet when both are directed to lay hold of the same matter at the same time, the one inferior in authority must give way to the Superior.</p>

— Eon. Sterling E. McCarty, Judge. StatemeNt. On March 6, 1917, the public administrator of Pemiscot County- filed in the probate court an information ashing that inquiry he made as to the soundness of mind and the capacity of Sam Pollard of that county to manage his affairs.

<p>Appeal from Greene Circuit Court. — Hon. Guy 1). Kirby, Judge.</p>

<p>1. COMMON LAW: Statutes: Statutes and Decisions of Other States: Pleading and Proof. Statutes and decisions of the courts of other states must be pleaded and proved in each case.</p> <p>2. EVIDENCE: Presumptions: Laws of Other States. Nebraska never having been an English possession it cannot be presumed that the common law is in force, but it will be presumed that the law is the same as the statute and constructive law of the forum.</p> <p>3. -: -: -: Limitations. In an action on a Nebraska note, where only the five-year Statute of Limitations of such State was shown in evidence, and that maker left such State soon after executing the note, Revised Statute 1909, section 1897, providing that limitations does not run in favor of one absent from the State, will be presumed to be the law of Nebraska.</p> <p>4. -: Judicial Notice. Courts of Missouri will take judicial notice of statutes of the territory of Louisiana before the State was carved out of it, because such were acts of an antecedent government of the State.</p> <p>5. -: Laws of Other States: Presumptions. When Nebraska was carved from Louisiana Territory and made Indian country, the laws of the territory became inoperative, and cannot be presumed to still be the law of Nebraska.</p> <p>6. BILLS AND NOTES: Interest. Where note contained promise to pay interest, but amount was left vacant, six per cent should be allowed.</p>

<p>1. HIGHWAYS: Obstruction: Eight of Action: Special Injury. Even if the road, rendered practically impassible by the flow of refuse from defendant’s mine, were not a private road owned by plaintiff and other adjoining landowners, but a public road, the fact that her passage to and from her property was shut off by such wrongful act of defendant operated as a special injury to her, allowing action therefor.</p> <p>2. -: -: Punitive Damages: Willful Acts. Evidence that defendant’s agents and managers knew that by the flow of refuse from its mine they were damaging plaintiff’s property, and, though several times notified and asked to quit, make no attempt to avert the injury, till suit brought, is evidence of injuring plaintiff’s property and her rights therein willfully and in reckless disregard of such rights, to her discomfiture and annoyance, justifying awarding of punitive damages.</p> <p>3. APPEAL AND ÉBBOB: Harmless Error: Instructions: Effect of Verdict. Any question as to error in an instruction authorizing punitive damages, though actual damages be not found, is eliminated by the jury finding compensatory damages.</p> <p>4. TBIAL: Instruction: Cure by Others: “Authorized.” While the word “authorized,” having the double meaning of permitted and required, ought not to be used in an instruction on punitive damages, where only the first meaning is permitted to be used, it is not reversible error, where in view of other instructions there was no chance for men of ordinary intelligence to derive the opinion that they had been instructed that they must award punitive damages if they found for plaintiff.</p> <p>5. DAMAGES: Punitive Damages: Instructions. Instruction permitting punitive damages if the casting of mine water on plaintiff’s land was done willfully or recklessly, “or to the discomfiture and annoyance of plaintiff,” is erroneous; the latter condition going only to actual damages.</p> <p>6. -: -: - “Willful.” Instruction permitting punitive damages if the act was willful, that is, without lawful excuse,” is erroneous; “willful” implying an act intentionally done. » while injuring a person “without lawful excuse” is mere basis for compensatory damages.</p>

<p>JUDGMENT: Conclusiveness: Mortgagee and Mortgagor. Where a I wife for an indebtedness pledged or mortgaged certain live stock as security for payment thereof, and later the husband, who knew of existence of the pledge, brought suit for divorce, in which suit title to the property pledged was tried and adjudicated in favor of the husband, plaintiff pledgee or mortgagee, not made a party to divorce suit, would not be bound by judgment therein in a subsequent suit against defendant purchaser of property under divorce judgment.</p>

<p>1. CONTRACTS: Public Policy: Validity. A contract by a mining company lessee, to indemnify lessor of machinery for damages by reason of injuries to employees, although caused by the negligence of the lessor, is valid.</p> <p>2. INSURANCE: Indemnity Insurance: Liability on Policy. Where a mining company carrying liability insurance had contracted to hold the lessor of machinery free from loss from injuries to employees, and the attorney for the insurance company and the lessor settled actions against the mining company and the lessor, each paying half, the insurer was liable to the mining company for money which it was compelled to pay to the lessor under its contract.</p> <p>3. -: -: Test of Liability. An indemnity insurance company, whose policy provides that it shall have the right to defend against all claims for damages and be liable only in case of judgment in a court of last resort, actually paid by the insured, cannot be held liable for any settlement of a claim or judgment not yet final unless it was accorded the right to contest such claim or judgment to such a final judgment.</p> <p>4. -: -: Settlement of Claim: Waiver. 'Evidence held to sustain a finding that insurer against employer’s liability for injuries to employees consented to a settlement, and waived its right to continue the defense to a judgment in the court of last resort.</p>

<p>1. EXECUTORS AND ADMINISTRATORS: Creditors: Equitable Action. Where a $4000 interest in real estate owned by intestate at the time of death was diverted from the estate by administratrix and heirs, equity will entertain action by creditors to compel heirs and administratrix individually to pay such amount to ad-ministratrix in her official capacity; creditors having no adequate remedy in probate court.</p> <p>2. COURTS: Opinions: Precedents: Issues Involved. Where an issue is not specifically called to court’s attention, the court’s opinion is no authority thereon.</p> <p>3. EXECUTORS AND ADMINISTRATORS: Sale of Land: Notice to Creditors. Revised Statutes 1909, section 152, requiring notice to “all persons interested in the estate” of a decedent when, the personal estate being insufficient to pay debts and legacies, the probate court is petitioned for an order directing sale of land, requires notice to creditors as well as heirs.</p> <p>4. -: Order of Relinquishment: Notice to Creditors. Probate court’s order of relinquishment of the interest of intestate in a land contract was void, where no notice of application therefor was given creditors of the estate.</p> <p>5.-: Relinquishment: Land in Other States. An order of relinquishment of the interest of intestate in land situated in another State is void, the administratrix having no power to inventoiy or administer such land in a State in which it was' not situated.</p> <p>6. -: Foreign Administration. Where intestate has interest in land situated in a State other than that in which his administratrix is appointed, the only means whereby such land can he disposed of in administration is hy an ancillary administration in that State according to the law thereof.</p> <p>7. -: Action: Land in Other States: Creditors. Where intestate had interest in land in State other than that in which adminis-tratrix was appointed, administratrix having no power as admin-istratrix over such land cannot he sued hy creditors of the estate for value of such interest diverted from the estate.</p> <p>8. -: -: Evidence: Sufficiency. In an action against ad-ministratrix and heirs for diverting from an estate decedent’s interest in land under a contract, evidence held insufficient to show that decedent’s interest was of any value.</p>

<p>1. BANKS AND BANKING-: Payment of Forged Checks: Liability as to Depositor. Where a hank, for ten cents on $100, honored checks of a corporation’s branch manager, receiving credit daily by its correspondent in another city for checks so drawn, law of liability as between depositor and banker for payment of forged checks regulated liability of bank to corporation.</p> <p>2. -:.-: Liability: Statute. Under Negotiable Instruments Law (Rev. St. 1909, Sec. 10032), a bank is prima-facie liable to its customer for moneys paid on - a forged check, and the customer need not charge negligence on the part of the bank.</p> <p>3. -:-: NegUgence of Customer. A bank, sued by customer for moneys paid on forged check, may plead negligence of customer in defense.</p> <p>4.-:-: Action: Instructions. In corporation’s action against bank to recover moneys paid out on forged checks, parties standing in relation of banker and depositor, instruction as to corporation’s negligence being a defense, held all bank was entitled to, in view of facts and circumstances.</p> <p>5. -: -: Negligence. To be defense to bank, which has paid forged check, negligence of customer should be proximate cause of forgery or payment, and not mere possible cause of forger’s getting possession of blank cheek.</p> <p>6. -: Forgeries of Checks: Negligence. Where a bank’s customer is directly connected with forgeries of checks paid by the bank, or his negligence is directly connected therewith, he cannot recover from the bank.</p> <p>7. TRIAL: Instructions: Neglect of Defense Not in Evidence. In corporation’s action against bank to recover payment on forged checks, parties standing in relation of banker and depositor, in view of absence of evidence tending to show negligence of corporation, giving its instructions, ignoring bank’s defense of negligence contributing to forgeries, was not error.</p> <p>8. BANKS AND BANKING-: Forgeries: Negligence. Where St. Louis gin company had branch at Micola, and authorized manager to draw checks on nearby bank, checks being forwarded to correspondent in St. Louis that bank might be reimbursed, it was not negligence by ginning company, in relation to forgery of checks, not to inspect them when forwarded to St. Louis office.</p>

<p>Ippeal from Dunklin County Circuit Court. — Eon. W. S. C. Waller, Judge.</p>

<p>Error to tlie Cedar Connty Circuit Court. — Hon. Berry G. Thurman, Judge.</p>

<p>CORPORATIONS: Stock Subscriptions: Collateral Agreement to Repurchase. Agreement of a business corporation to repurchase stock subscribed for at option of owner is ultra-vires and not enforceable.</p>

<p>1. CONTRACTS: Pleading: Verdict. The law has been definitely written that in an action on an express contract the issue raised by the answer denying the contract is whether there was a contract, so that plaintiff, if entitled to recover, is entitled to recover the. specified sum and that a verdict for less than the specified sum would be set aside on appeal, because it does not respond to the issue which was made on the trial of the cause.</p> <p>2. COMMON COUNTS: Quantum Meruit. Proof of a special contract will support an action based upon one of-the common counts for a sum not in excess of that named in the contract, but under no circumstances or conditions have the courts permitted a recovery on the quantum meruit where the sole cause of action is based on express contract.</p> <p>3. VERDICTS. Where the evidence is uncontradicted as to the amount plaintiff ought to recover, if entitled to recover at all, a verdict for a different sum, or amount, will be set aside on appeal.</p> <p>4. PRESUMPTIONS. Presumptions control only in the absence of facts.</p> <p>5. VERDICTS. A verdict out of accord with the pleadings and evidence will be set aside on appeal.</p> <p>6. MOTION POR NEW TRIAL. Objection to a verdict, in a motion for a new trial, on the ground that it was not responsive to the instructions is sufficient to raise the point for review that the verdict was against the issues tendered by the pleadings and against the evidence.</p>

<p>1. CHATTEL MORTGAGES: Conversion by Mortgagee. Although first chattel mortgage was voidable, mortgagor could not recover against first mortgagee for conversion of the property where at time of the conversion the first mortgage had not been declared void, and the property was turned over to the first mortgagee by a second mortgagee in possession thereof under a valid mortgage after condition broken and while a balance was due on the second mortgage, under belief that first mortgagee had prior lien; for, since such surrender was not waiver of the second mortgagee’s lien, the second mortgagee was the only one entitled to possession at that time.</p> <p>2. -: Action by Mortgagor After Condition Broken. Mortgagor of chattels after condition broken is deprived of action of conversion if mortgagee has possession under valid mortgage.</p> <p>3. TROVER AND CONVERSION: Action: Who May Maintain. For one to maintain conversion he must have possession or have been entitled to possession at the time of conversion.</p> <p>4. COURTS: Court of Appeals Following Decision of Supreme Court. Courts of Appeals must follow decisions of Supreme Court that, where no other construction can be placed on cause of action than that, it is for wrongful conversion, plaintiff must show at least that he was entitled to immediate possession at time of conversion. Bradley, J., dissenting.</p>

<p>1. PROPERTY: Right of Alienation: Trade Name. One of the vital elements of title and ownership is the right to transfer and convey unimpaired to another and the purchaser of property used and known as a hotel toy a particular name acquires the same right to the use of such name as his vendor had.</p> <p>2. TRADE-MARKS AND TRADE-NAMES: Name of Hotel. The right in a city to call a hotel toy a certain name should be'exclusive, so that the public will not toe confused.</p> <p>3. -: -: Transfer. Name of hotel remains with location, rather than with proprietor, and passes with premises to successive proprietors, where building is designed to be used permanently as a hotel, and name is impersonal and has been applied exclusively to the one place.</p> <p>4. -: Hotel: Name. That no owner of a building used as a hotel has ever personally conducted a hotel therein is not a controlling factor in determining whether the name has become localized to the building, in an action toy an owner to enjoin use of the name toy another.</p>

<p>1. MUNICIPAL CORPORATIONS: Sewage Disposal: Nuisance: Right to Injunction. Property owners, damaged by discharge of sewage in close proximity to their land, and overflowing thereon, had adequate remedy at law by suit for damages, and, in view of probably material injury to entire population of city, could not have such disposal of sewage restrained.</p> <p>2. COURTS: Jurisdiction: Missouri Appellate Courts. Where property owners sued to restrain disposal of sewage and the sewer company claimed prescriptive right to discharge of sewage, but irrespective of limitations plaintiffs were not entitled to injunction, their remedy at law being adequate, the issue of title was not involved.</p>

<p>FRAUDULENT CONVEYANCES: Bulk Sales Law: Billiard and Pool Business. The sale of a billiard and pool hall business, including tables, cues, racks, and other usual equipment, is not within the Bulk Sales Law, requiring notice to creditors, etc.; the act being intended to protect creditors selling merchandise for resale.</p>

<p>1. BANKS AND BANKING: Forfeiture of Interest: National Bank: Application of Payment. Under U. S. Comp. St. 1916, Sec. 9759, providing national bank’s knowingly taking, receiving, etc., greater rate of interest than allowed shall be deemed forfeiture of entire interest, though usurious,-is not so forfeited that debtor may not direct payment to be applied on interest, or that bank may not, with his knowledge and consent, apply payment on interest.</p> <p>2. PRINCIPAL AND AGENT: Ratification: Application of Payment. Where one partner paid usurious interest on other partner’s note to a national bank, and such other, for three years before he sued the bank under U. S. Comp. St. 1916, Sec. 9759, to recover double the usurious interest, knew of application of payment to interest, part of which was usurious, but acquiesced, his conduct was a ratification and adoption of his partner’s application of payment.</p> <p>3. JUDGMENT: Res Adjudicata: Application of Payment to Interest. Mortgagor having appeared to mortgagee bank’s suit to foreclose, in which application of payment to interest in part usurious, was in effect adjudged a payment on interest, in his suit under U. S. Comp. St. 1916, Sec. 9759, to recover double usurious interest paid, mortgagor cannot reopen question.</p> <p>4. PRINCIPAL AND AGENT: Ratification: Burdens and Benefits. A principal cannot adopt in part and reject in part the act of his agent, and must take the burdens with the benefits.</p> <p>5. BANKS AND BANKING: Action to Recover Double Usurious Interest: Statute. Limitations on plaintiff’s cause of action against a national bank, under U. S. Comp. St. 1916, Sec. 9759, to recover double usurious interest paid, ran from date of payment.</p>

<p>1. EVIDENCE: Deeds: Consideration: Parol Evidence. Except as to defeating it as a conveyance or destroying its operative effect, the recited consideration of a deed or bill of sale may be shown to be different in amount, kind, or character.</p> <p>2. SALES: Bill of Sale: Delivery. To make a bill of sale valid, delivery is essential.</p> <p>3. -: -: -. Delivery of a bill of sale involves intent as well as physical control, and there is no delivery, such as makes the instrument a present conveyance, unless the grantor sb intended. For a bill of sale to pass title, the grantor must deliver it for that purpose, and not for some other purpose.</p> <p>4. EVIDENCE: Delivery: Parol Evidence. Admission of parol evidence to show that, although manual possession of conveyance has' been given to grantee, yet there is no legal delivery, so as to pass title, is not precluded by the general rule that delivery to grantee cannot operate as an escrow.</p> <p>5. -: Conditional Delivery: Parol Evidence. Parol evidence is admissible to show that consummation of a deed as a conveyance was to take effect or be conditioned on some future event, and that it was put in the grantee’s possession for another purpose than as a present conveyance.</p> <p>6. REPLEVIN: Conditions Precedent: Bill of Sale: Suit in Equity: “Muniment of Title.” A bill of sale of personalty is not such a muniment of title as requires a suit in equity to have it declared void before the seller can recover the property on the ground that such bill of sale was never delivered.</p> <p>7. EVIDENCE: Parol Evidence: Bill of Sale. Parol evidence is admissible, in a suit at law involving personal property, to show the purpose of giving a bill of sale and the real character of such conveyance, and whether a claimed transfer of personalty is void or voidable is generally determinable in an action at law, without resorting to equity, and the fact that the transfer is evidenced by a bill of sale does not change the rule. In replevin for an automobile, plaintiff’s title being based upon a bill of sale signed by defendant, it was competent for defendant to prove that the bill of sale, though given to plaintiff, was not given as a conveyance m praesenti, or as vesting title absolutely, but was conditional upon delivery of a deed and abstract.</p> <p>8. PLEADING: Requisites in General. Stating the facts is all that is required in a pleading, and the law gives it the proper name and effect.</p> <p>9. SALES: Title of Plaintiff: Evidence. In replevin for an automobile, plaintiff’s title being based upon a bill of sale signed by defendant, the question of the actual or constructive delivery of the property covered by the bill of sale at the time of the manual delivery of bill of sale by defendant to plaintiff, while not vital, had a bearing on the issue whether delivery of bill of sale was conditional.</p> <p>10. REPLEVIN: Title of Plaintiff: Evidence. Plaintiff could maintain replevin on the bill of sale as a symbolic delivery, provided the intent was to have the bill vest title at once unconditionally, or provided plaintiff had complied with the conditions necessary to vest title in him before suit was instituted.</p> <p>11. EXCHANGE OP PROPERTY: Title: Examination of Abstract. Although, under contract for exchange of an automobile for realty, plaintiff was to furnish an abstract showing not only a good merchantable title, but one pronounced such by defendant’s attorney, it must be carried out in good faith by both parties, and defendant could not select an attorney who arbitrarily called plaintiff’s title defective, and the bill of sale, given in pursuance of a contract for exchange of automobile for land, would not bo & “written memorandum” satisfying the Statute of Frauds.</p> <p>12. FRAUDS, STATUTE OF: Exchange of Property. A contract for the sale' and exchange of an automobile for land is within the Statute of Frauds, so far as the same is executory, hut if a hill of sale was delivered to plaintiff as a present conveyance, with actual or constructive possession, and he in turn conveyed the land to defendant, the contract was fully executed, and the Statute of Frauds would not apply.</p> <p>13. -: Written Memorandum: Undelivered Bill of Sale. A bill of sale, though manuel possession of same was given to the grantee, is not a sufficient written memorandum to satisfy the Statute of Frauds, where such hill of sale was not delivered as a conveyance hut for a different purpose.</p>

<p>1. DEEDS OF TRUST: Priority of Liens: Equity. Where a creditor has a lien on two parcels of property, and another creditor has a lien upon but one of them, the former creditor will, in equity, be required to seek satisfaction out of that fund or parcel upon which the other creditor has no lien.</p> <p>2. -: -: -. A person having a' right or interest in property, which he is obliged to protect by paying a mortgage thereon, will, if he is not primarily responsible for such mortgage debt, be subrogated to the rights of the mortgagee to the extent necessary for his own protection.</p> <p>3. -: Principal and Surety: Assumption of Encumbrance. The relationship of principal and- surety between a' grantor and a grantee, created by the latter agreeing and assuming to pay a morr-■gage on the property, does not affect the relation between.the mortgagor and the mortgagee. The mortgagee cannot be compelled to treat the grantee as the principal debtor because the latter assumed the payment of the mortgage when he purchased the property.</p>

<p>Appeal from Grundy Circuit Court. — Hon. G. W. Wanamaker, Judge.</p>

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

Louis County.— Hon. G. A. Wurdeman, Judge. (1) Plaintiff’s petition wholly fails to state a cause of action. It does not aver any damages as having been sustained by the plaintiff, nor does it disclose the names of those for whom the' plaintiff sues as trustee, neither does it aver that it was filed within the statutory period. Abstract, pp. 2-5; Marques v. Koch & Kost, 176 Mo. App. 154; Troll v. Gas Light Co., 182 Mo.

Louis. — Ron. J. Hugo Grimm, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence requested by defendant. Plaintiff did not become a passenger for the reason that he did not accept the contract of carriage tendered by defendant. His tender of fare was not good because it was not unconditional.

Louis. —Hon. Kent K. Koerner, Judge. . (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence requested by defendant, for the reason the chauffeur was guilty of contributory negligence as a matter of law in driving upon the track immediately in front of a moving car without looking. Stotler v. C. & A. Ry. Co., 204 Mo. 619, 639; Laun v. St. L. & S. ,F. R.. Co., 216 Mo. 563.

Mandamus. Original Proceeding. (1) Where-there is an answer on file responsive to a new petition it is not necessary to re-file the answer on file and such answer on file is considered by the law as the answer to whatever it is by its term responsive. Campbell v. Boyers, 241 Mo. 430; James v. Railroad, 69 App. 436; The Bremen Bank, v. Umrath, 55 App. 50. (2). Taking time to plead on any pleading is not a withdrawal of an answer already on file.

Louis. ■ — lion. Wm. M. Kinsey> Judge. (1)The referee erred in allowing to plaintiff half only of a twenty-five per cent fee on the amount collected by the defendant in the Davis ease. Cromwell v. County of Sac, 94 IT. S. 351; Nesbit v. District, 144 IF. S. 610; 17 Am. & Eng. Ency. of Law (2 Ed.), p. 480.-(2) The referee erred in allowing the defendant to record or set off the several items of expense, aggregating the sum of $3313.26, and each of said items.

(1) That portion of section' 3459 is issue here is ■unconstitutional, null and void in this:' (a) It is violative of article 4, section 53, clause 26, of the Constitution of Missouri, 1875, in this: that it is a special law, and attempts to grant to private corporation, and its members a special and exclusive right and privilege, which is denied to other persons in the same class, (b) It is violative of article 4, section 46, of the Constitution of Missouri, 1875, in that it…

Louis. —Son. George H. Shields, Judge. (1) The demurrer to the evidence should have been sustained, and the peremptory instruction reguest-ed by defendants at the close of all the evidence should have been given. On the undisputed facts disclosed by the record, deceased, at the time and place of the accident, was guilty of negligence directly contributing to his death.

<p>1. LIFE INSURANCE: Active Service in Army: Permission to Enter Service. Because an application for an insurance policy provides that active service in the army in time of war shall invalidate the contract unless a permit be given, and the policy provides that death in service in war without permission the full reserve only shall be paid, does not bar full recovery on such policy in the event of the death of the insured while in a military training camp thousands of miles from the scene of hostilities, for the reason that the insured while thus engaged was not in “active service” in the army;/</p> <p>2. -: -: Definition of. “Active service” in a military sense means the performance of duty against an enemy or operations carried on in his presence in time of war and one in a training .camp in this country during the war in Europe was not engaged in “active service” as thus defined.</p> <p>3. -: Application for. An application for a policy of life insurance must be construed most favorably to the insured.</p>

<p>.1. FRATERNAL BENEFICIARY ASSOCIATIONS: Medical Examiner: Waiver of Warranties. Where the constitution and by-laws of a Fraternal Beneficiary Association disclose that the local or subordinate lodges have not jurisdiction over the local medical examiners in the matter of taking and filling out applications for insurance and no power to appoint or to discharge them, such examiners are not subordinate officers of subordinate lodges, but are agents of the Supreme bodies and as such could waive warranties contained in applications for insurance, notwithstanding section 22, Laws 1911, page 292.</p> <p>2. -: Warranties: Waiver ef. Where the medical examiner of a fraternal beneficiary association is an agent of the Supreme body and also, for many years, the family physician of an applicant for insurance, and knew as much about the applicant’s physical condition as she did herself, a warranty ,in the application that she never had bronchitis, when in fact she had been afflicted with such ailment for a number of years, was waived.</p>

<p>1. CARRIER OF LIVE STOCK: Public Service Commission: Reduced Rates. The well established rule in this State that a carrier may not limit its common-law liability unless the contract is supported by the consideration of a reduced rate or other consideration, has not been changed or abrogated by the provisions of the Public Service Commission Act requiring carriers to file schedules of tariffs with such commission.</p> <p>2. -: Limitation of Liability: Consideration. Where a carrier has but one regular rate applicable to a given class of property and that rate' is not a reduced or special one, it cannot escape liability for negligence by reason of such a rate.</p>

<p>Appeal from Ray Circuit Court. — Hon. Frank P. Div&l-biss, Judge.</p>

<p>1. PUBLIC ADMINISTRATORS: Guardians and Curators: Liability on Bond. A public administrator was made guardian of the estate of some minors and kept the money of their estate all in one fund and converted part of the fund to his own use. Thereafter, before the conversion was discovered, at the termination of his term of office, he gave a new bond as guardian in his private capacity. Held, that the sureties on the last bond cannot be held liable for the amount converted while the principal was public administrator and before they executed the bond.</p> <p>2. GUARDIAN AND WARD: Evidence: Conversion. Where the guardian of a number of estates kept the money of the estates all in one fund and -converted part of it to his own use prior to the execution of a new guardianship bond, the guardian in an action against the sureties on the new bond, will not he allowed to testify that the conversion was from the money of any -certain estate.</p> <p>3. -: Principal and Surety: Final Settlement: Sureties. A final settlement of a guardian, showing certain sums due the ward is not binding on the sureties on his bond, where they can show that the default causing the loss was committed under a prior bond before their bond was given.</p>

<p>1. TAXBILLS: Levee Districts: Constructing Levee Before Organization of District. A voluntary association of private individuals made a contract for the construction of a levee according to their own plans and specifications, without- seeking bids and letting it to the lowest bidder, had the levee constructed and paid the contract price therefor, and then, at the price they paid, turned it over to the levee district that was incorporated while the work was being done and that agreed, before the levee was finished, to take it at the contract price. Held, that under such circumstances an objecting landowner cannot be compelled to contribute to such an enterprise nor can his land be sold under the taxbills . issued by the District if he refuses.</p> <p>2. -: -: Statutes LiberaUy Construed. The rule that statutes authorizing levees should.be liberally construed, as they are for beneficient and reclamation purposes, applies only to matters of irrgularity not affecting the substantial rights of the parties and not to steps which are in their nature conditions precedent to the levying of the assessment.</p> <p>3. LEVEE DISTRICTS: Powers of: Statutes. Levee districts- have only those powers that are conferred upon them by statute, and such powers - can be exercised only in the manner prescribed by the statute.</p>

<p>1. ENCUMBRANCE: Tender: Ownership: Payment. A creditor whose claim was allowed in the probate court sought to have his judgment made a lien against land encumbered by two deeds of trust, and he offered in his petition to pay the notes secured by these deeds, but he did not deposit his tender. The court rendered judgment for him conditioned that he pay the notes and interest “as of the day’’ he instituted his action. He did not pay these notes for about six years. It was held, that he did not become the owner of the notes until the day he paid them, and that he was not entitled to interest except from that day.</p> <p>2. TENDER: Deposit in Court: Interest. A tender of the sum due on indebtedness secured by a deed of trust, unaccompanied by a deposit in court, will have the effect of stopping the interest only.</p> <p>3. TENDER: Deposit in Court: Discharge: Debt: Security. A tender in a pleading of the sum due on an encumbrance without keeping it good by a deposit in court will not discharge either the debt or the security.</p>

<p>NEGLIGENCE: Pleading: Specific Negligence. Where the specific negligence charged in a petition for personal injury consists of several combined, or concurrent acts, without either of which the injury would not have happened, it is error to submit to the jury less than all of such acts and direct a verdict on those submitted.</p>

<p>1. NEGLIGENCE: Personal Injuries: Independent Contracts. The statute imposes on the railroad the duty to keep down the undergrowth along its right of way, and it cannot escape liability for injuries to persons caused by the negligence of one who had a contract to do such work.</p> <p>2. -: Independent Contractor: Power of Corporation. Notwithstanding a person, who causes an injury, is an independent contractor, he will be regarded as the servant or agent of the corporation for whom he is doing, the work where it is shown that the independent contractor in doing the work was exercising some charter privilege or power of the corporation, or is performing some duty imposed by statute upon the corporation. '</p> <p>3. -: Instructions. While a person may have a reasonable length of time to use the untraveled portion of a highway for temporary storage of articles necessary to be put there to carry on the work, nevertheless what would constitute a reasonable time under the circumstances in this case is a question for the jury, and the court therefore properly refused to give an instruction to the effect that as a matter of law defendant had not overreached its right to use the highway for the storage of a grindstone for a reasonable length of time where it was shown that the grindstone has been in place for six hours.</p> <p>i. -: Evidence. Evidence that other horses had been frightened the day after at the same grindstone which caused plaintiff’s horse to become frightened, run away and injure her, after the grindstone had been removed to another place, was properly admitted.</p>

<p>1. CONTRACTS: Unilateral Contracts: Mutuality: Consideration. To make a contract unilateral and void it is essential that only one party be obligated. If the contract imposes obligations on both parties it is not unilateral, although the obligation on one may be more onerous than on the other.</p> <p>2. -: Character of Contract: Damages. If the contract requires one party to use his best effort to make sales of coal for the ' other, it is an obligation on such party and the fact that he may try to make a sale and fail, or that he may not try at all, will not affect the character of the contract. The contract is valid, though there may be an action of damages for such failure.</p> <p>3. -: Breach of Contract to Furnish Coal: Equitable Relief: Mandatory Injunction. Where a party is engaged to contract and sell coal for another which coal is of a "peculiar character which cannot be readily supplied from other fields, and after such party makes contracts, the other refuses to furnish him with the coal to meet his sales, thereby subjecting him to suits for damages and destroying his reputation, he may have equitable relief by mandatory injunction.</p> <p>4. -: Breach of Contract: Personal Service. A contract with a broker to sell coal in certain mines is not so far personal as to prevent such broker from employing assistants in running the business. The fact that such broker is taken into the army is not an abandonment of the contract, so long as he still conducts the business;</p>

<p>COMMON CARRIERS: Ex Delicto: Proximate Cause: Freight Charges: Cause of Action. Plaintiff, for the purpose of shipment, deposited a large grading machine on defendant’s right of way in Jackson County, Missouri. After a length of time, plaintiff sold the machine to Hoy & Co. of Vincennes, Indiana, and it was shipped over defendant’s road as far as East St. Louis and then delivered to a connecting carrier which refused to deliver to Hoy & Co., until defendant’s charges for storage were paid. Hoy paid them under protest. No authority was alleged from plaintiff to pay them. When Hoy & Co. came to pay plaintiff the price of the machine it kept out the amount oí these charges and plaintiff allowed it to retain or deduct that sum. Plaintiff then sued defendant to recover such charges. It was alleged that the charges were illegal and wrongful. It was held that there was no cause of action against defendant.</p>

<p>1. DIVORCE: Grounds: Evidence; Sufficiency. In a divorce suit charging numerous indignities, rendering plaintiff’s condition intolerable, evidence examined and held, that plaintiff made out a case entitling him to a divorce. Aixest, J., dissents, not thinking plaintiff has shown himself to be the injured and innocent party.</p> <p>2. -: -: Injured. Party: Recrimination. Where the indignities of defendant were such as to render plaintiff’s condition intolerable, he would, although he was not blameless, be the “injured party,” within section 2370, Revised Statutes 1909, and entitled to a divorce, where his conduct was not such, had defendant complained against the plaintiff, she seeking the divorce, either by direct suit, or by cross-bill, as would have entitled her to a divorce.-</p> <p>3. -: Appellate Practice: Review: Province of Appellate Court. While, in a divorce suit, the appellate court on appeal, will defer largely to the conclusion arrived at by the trial judge, it is not freed from the duty and the obligation of forming its own conclusion as to where the truth lies and where the merits of the particular controversy are to be found.</p>

<p>INSURANCE: Accident Insurance: Death: Double Indemnity: Burning of Building. In an action on a policy of accident insurance by the beneficiency where the provisions of the policy obligated the insurer to pay the beneficiary double indemnity in the event > the injuries causing the loss were sustained by the insured “by reason and in consequence of the burning of a building while the insured is therein,” and the evidence shows that the insured, an electrician, was fatally burned, as a result of a single flash shown to have been emitted by the electric current at a switch board installed inside of the building, caused by a short circuit, which communicated the fire to insured’s clothing, proximately causing his injuries, held, that the insured did not sustain his fatal injuries in consequence of the burning of a building, and, hence the beneficiary could not recover double indemnity.</p>

Louis. —Hon. Wilson A. Taylor, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action, because no facts are alleged therein which show a breach of the condition of defendant Owens’ bond. State ex rel. Zimmerman v. Schaper. 152 Mo. App. 538'; State ex rel. Hamilton v. May, 117 Mo. App. 717. (2) The circuit court rrecl in overruling appellants’ motion to strike out the petition. Each breach is a distinct cause of action.

Louis. —Hon. Thos. G. Hennings, Judge. (1) The plaintiff shall he allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or. to the court sitting… Held: that neither the discontinuance nor the dismissal “without prejudice” precluded the plaintiff .from a new action. “A dismissal ‘without prejudice’ leaves the parties as if no action had been instituted.”

Louis. —Hon. Leo 8. Rassieur, Judge. (1) The justice never acquired any jurisdiction over defendant or his property because there was no valid process. No provision is made whereby one justice can issue a writ returnable before another justice, and such a writ is void. Secs. 7420 7640, R. S. 1909.

Louis. —Hon. William T. Jones-, Judge. (1) Having found a verdict for plaintiff, it remained the duty of the jury, under the instructions of the court, to ascertain the extent of plaintiff’s injuries and to award him adequate compensatory damages. No conscientious person can say that one dollar is adequate compensation for the injuries received and the pain and suffering endured by plaintiff, as shown by the uncontroverted evidence.

Louis. —Hon. James E. Withrow, Judge. (1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the testimony. (a) Because the respondent is conclusively hound, by the allegations of his petition and cannot recover -upon a theory different from that embodied in his petition and directly contrary to the allegations of his petition.

Appeal form the Circuit Court of the City of St. Louis. —Hon. Kent K. Koerner, Judge. One rendering valuable services for another, at the other’s request, in the absence of an express contract, under circumstances which do not point to the fact that the services were to be rendered gratuitously, is entitled to a fair compensation for the services. Crain v. Miles, 154 Mo. App. 544-5; Swift v. Johnson, 175 Mo. App. 616; Yoerster y. Kunkel, 86 Mo.

Louis. —Hon. J. Hugo Grimm, Judge. (1) Defendant’s request for peremptory instructions 1 and 2 should have been granted, because: 1. Plaintiff failed to prove the value of his services. Van Zandt v. St. Louis Wholesale t Grocery Co., - Mo.. App.-, 190 S. W. 1050; Bradner v. Rockdale Power Co., 115 Mo. App. 102, 91 S. W. 997; Woodward v. Donnell, 146 Mo. App.. 119, 123 S. W. 1004; Dobbin v. Dobbin, -M'o. App.-, 204 S. W. 918; Bishop & C. Co. v. Kloss, 177 Mo.

Louis. —Hon Kent K. Koerner, Judge. (1) The money advanced by the plaintiff was a loan to the defendant and was to be repaid as soon as the bank was in a condition' to do so. The evidence showed that the bank later was able to pay after the crisis had passed which required the loan of the money. (2) The Jefferson Bank received from the plaintiff $2500 which in equity and good conscience- the defendant should pay over to plaintiff.

Louis. —Hon. J. Hugo Grimm, Judge. (1) St. Louis Police Relief Association, by its charter and by-laws, restricted its benefits to the families of police officers,, etc. It is a creature of the statutes, and an attempt to pay benefits to a class not within, its charter and-by-laws is ultra vires. Wagner v. Benefit Association, 70 Mo, App. 161; Masonic Ben. Assn. v. Bunch, 109 Mo. 578; G-rand Lodge v. Eisner, 2.6 Mo. App.. 108; Keener v. Brand Lodge, 38 Mo.

Louis. —Hon. Thomas G. Hennings, Judge. The petition does not state a cause of action. The death is alleged to have occurred on January 25, 1913, and this suit was filed November 20, 1914, one year and ten months later.

<p>1. NEGLIGENCE: Position of Peril: Duty of Employees. Plaintiff, a boy seven years old, was ordered off a street car, while it was in motion, by the agents of the company, when they knew he was in a position of peril, and while attempting to alight he fell and one of his legs was cut off. It wa* held,, that, considering all the evidence, the employees of the company knew the boy was upon' the steps in a position of peril, and having failed to take the means to prevent his injury they were guilty of negligence and the company is liable.</p> <p>2. -: -: -: An instruction which not only detailed what facts were necessary to be shown by plaintiff to entitle him to recover but required the jury to find that these constituted negligence on defendant’s part and concluded by telling the jury that if they found while plaintiff was trying'to alight he fell "as a direct result of the negligence of the defendant” plaintiff was entitled to recover, is not erroneous.</p> <p>3. -: -: Extent of Duty. Instructions to the effect that the employees of defendant owed the boy no duty other than to refrain from wilfully, wantonly and recklessly injuring him were properly refused as they would have a tendency to mislead the jury, it being the duty of such servants to use ordinary care in removing the boy from the car.</p> <p>4. -: Jurors: Grounds of Challenge. The trail court committed no error in excusing a juryman, without challenge, when it was disclosed that he was employed by a corporation which was for- . merly connected with, and a part of, the defendant company.</p>

<p>1. NEGLIGENCE: Humanitarian Doctrine. Plaintiff’s son, seven years of age, was on tke front steps of a street car in a position of peril which was known to the defendant’s servants and they failed to stop the car. In attempting to alight while the car was moving, the hoy fell and was injured. Held, that it was not necessary for plaintiff to show more than that his son was upon the steps, that he was a hoy of tender years, that the car was moving from seven to ten miles per hour, to entitle him to go-to the jury on the question that the boy was in a position of peril such as upon discovery by defendant’s servants required them to stop the car or tó take the hoy back on the car out of danger.</p> <p>2. -: Pleadings: Statute of Limitations. An amendment to a petition alleging a new item of damages is not barred, by the Statute of Limitations as the gist of a cause of action for damages for personal injuries is negligence, or breach of duty, and not the consequent injury resulting therefrom.</p> <p>3. -: Amended Pleading: Affidavit of Surprise. It was not error for the trial court to refuse a’ continuance because of the amending of the petition during the trial asking for loss of services of plaintiff’s son under the circumstances in this case notwithstanding the filing of an affidavit of surprise.</p>

<p>1. REAL ESTATE AGENT: Commission: Authority. Evidence discussed relating to the employment of a real estate agent to sell land, and of his compliance with the authority given him as to terms</p> <p>2. EQUITY: Finding of Facts l>y Court: Law: Finding of Facts by Jury. Though an appellate court finds certain facts from evidence in an equity case, it does not follow that a jury must find the same facts from like evidence in action at law. Though the law prounounced on the facts found by the appellate court will determine the character of instructions given to the jury.</p>

<p>Appeal from Linn Circuit Court. — Eon. Fred Lamb, Judge.</p>

<p>Appeal from Boone Circuit Court. — -How. D. E. Harris, Judge.</p>

<p>LANDLORD AND TENANT: Holding over Terra: Leases. Where a lessee holds over after the expiration of the term of his lease without giving notice of his desire to renew as required by the lease, and continues to pay rent and the landlord accepts it, his tenancy is upon the same terms, conditions and covenants as in the original lease and for a new term the same as the one provided in said lease.</p>

<p>1. NEGLIGENCE: Personal Injuries: Piling Lumber on Sidewalk. Defendant piled latli and lumber upon the sidewalk space of a public street adjacent to the paved portion of the walk on uneven and muddy ground so that said pile was in a loose and top heavy condition. The lumber fell upon a little girl, who was playing nearby, injuring her severely. Held, that defendant should have anticipated that persons would use said sidewalk along and upon which said lumber was piled and should have put it in a stable and reasonably safe position sufficient to prevent it from falling when pedestrian, using the sidewalk in the ordináry way, coming in contact therewith.</p> <p>2. -: Piling Lumber on Sidewalk: Liability not Transferable, Because some person, who was building a house nearby, had receipted for said lumber does not relieve defendant, as it was his duty not to make a public street dangerous to pedestrians, by placing material thereon that might fall on persons lawfully using the street or sidewalk, this duty not being transferable.</p> <p>3. -: -. Evidence. The fact that the lumber remained piled in the same situation for two days without falling is not conclusive evidence under the facts that it was originally properly piled and that some external agency caused it to fall.</p> <p>4. NEW TRIAL: Assignment of Error: Insufficient. An assignment of error in a motion for a new trial which states that: “Because the court erred in refusing instructions numbered- asked by defendant” is not sufficient to raise any question in connection with the refusal of these instructions.</p>

<p>1.BOARD OB TRADE: Sales: Intention of Parties: Contracts. In contracts for sales of commodities in.the future there must he an actual intention to deliver or receive the commodity and not an intention simply to settle the differences according to the fluctuation in the market prices of such commodities, and although the transaction may have been carried on under the guise of legitimate trade, it may, nevertheless he shown to have been a gambling contract.</p> <p>2. -: Gambling Contracts: Intent of Parties: Statutes. Under sections 4780 and 4781, Revised Statutes 1909, the intent of either one of the parties to the buying and selling of commodities for future delivery to gamble on such transactions or to speculate on the rise of fall of the market, is sufficient to and does render the contracts therefor absolutely void, even so as to defeat the commission of the broker, who was ignorant of the gambling intention of his principal, notwithstanding the other party may be entirely innocent and unaware of the first party’s intention to gamble.</p> <p>3. -: Instructions: Withdrawing Evidence from Jury. It was error to refuse an instruction withdrawing from the consideration of the jury evidence on an issue not pleaded in the answer. When it is intended to rest a defense upon any fact not included in the allegations necessary to the support of plaintiff’s case, it must be set out specifically.</p>

<p>.1. NEGLIGENCE: Personal'Injury: City: Primary Wrongdoer: Ad--versary Parties: Adjudicata. When a city and the' primary wrongdoer are sued for personal injuriés, the city, and such wrongdoer are adversary parties and a judgment in favor of the wrongdoer is res adjudicata in an action.by the city over against" him'for the sum it has been compelled to pay.</p> <p>2. -: Petition: Cause of Action: Res Adjudicata. ’ Where a petition fails to state a cause of action against a defendant, primarily liable, the judgment rendered in his favor is not-res adjudi-cata in an action against him by his co-defendant.</p> <p>3. -: Parties Defendant: Facts in Motion: Cause of Action Res Adjudicata. The statute (Sec. 9801, R. S. 1909) provides- that where a city is sued for personal injury for which a property .owner or contractor is primarily liable, such city may by.motion setting out the facts mating him liable, require the plaintiff to make such person a party defendant. If the plaintiff thereupon makes him a party by referring to the motion as containing the facts, it was ruled that a cause of action was thereby stated against the defendant so brought in and that a judgment in his favor was res adjudicata.</p>

<p>1. NEGLIGENCE: Oil Broker: Kerosene: Ultimate Consumer: Expío-. Sion: Proximate Cause. An oil broker in Missouri sold to an oil company in that State a car of kerosene. The oil company sold a large quantity of it to a retail merchant and the latter sold one gallon to a customer who undertook to star a fire by pouring some of it over kindling. The oil was not all kerosene but was largely gasoline and an explosion killed the purchaser. It was held that the negligence of the original vendor (the oil broker) was the proximate cause of the explosion.</p> <p>2. -: Oil Inherently Dangerous: Vendor: Remote Purchaser: Proximate Cause. Where an original vendor, or manufacturer, sells an article inherently dangerous which' he knows is to be used by the public, without proper label, or other mode of warning, and his vendee sells to another and the latter distributes among consumers, such consumers may maintain an action in tort against the original vendor.</p> <p>3. OIL: Statutory Inspection: Ultimate Consumer. Where a statute requires inflamable oils to be inspected when sold in this State, such statute is intended to protect, among others, the ultimate consumer and he may hold liable the original vendor of such oil who fails to inspect, for personal injuries resulting from an explosion.</p>

<p>1. MORTALITY TABLES: Evidence: Damages. Mortality tables are properly received in- evidence in an action for wrongful death of a husband, to show the deceased’s probable length of life if he had not been killed and thereby ascertain the value of his earnings if he bad lived.</p> <p>2. -: Judicial Notice: Evidence. Courts will take judicial notice of mortality tables; and therefore instructions may be given to the jury concerning them though they have not been introduced in evidence.</p> <p>3.- -: Evidence: Health and Habits: Caution. While mortality tables may be submitted to the.jury, in case of death from wrongful act, yet the court should instruct them that they are not bound by such tables and that they should consider in connection with them the deceased’s health, vocation, habits, etc.</p> <p>4. INSTRUCTION: Expectancy of Life of the Plaintiff. An instruction for plaintiff concerning mortality tables in an action for damages for wrongful death of a husband should not confine the consideration of the jury to the expectancy of life of the deceased alone, but should also submit the expectancy of the plaintiff, to the end that the jury ought not to allow damages reaching beyond her life. ,</p>

<p>1. INTERSTATE COMMERCE: Initial Carrier: Original Shipment: Freight Diverted. Plaintiff shipped a car of vegetables from Ingle-side, Texas, to Dallas in the same State. When the car arrived in Dallas he had it diverted over another railroad to Kansas City, Missouri, under a new bill of lading, where it arrived with the vegetables in bad condition. He brought an action for damages against the initial carrier under the Carmack Amendment to the Interstate Commerce Law. When- the shipment was made to Dallas, it was for the purpose of selling at that place and he had no intention of them going elsewhere, but for some reason changed his mind. It was held that the shipment was intrastate and that there was no cause of action against the initial carrier.</p> <p>2. -: Billing: Intention: Intrastate. While the billing of freight is not controlling on the question of whether it is an interstate or intrastate shipment, yet the question whether it is one or the other is one of intention, and if in the initial shipment, the point of shipment and point of destination are in the same State and no intention exists when the shipment is made for the freight to go beyond the State, it is an intrastate shipment, notwithstanding it is subsequently diverted to another State.</p>

Louis.— Hon. Thomas L. Anderson, Judge. (1) The judgment was not responsive to the pleadings; nor did it dispose of the issues made by the pleadings. Ervin v. Chiles, 28 Mo. 576; Black v. Early, 208 Mo. 313; Kansas. City v. Woershoeffer, 249 Mo. 26. The court’s judgment in favor of defendant is at variance with the defendant’s own theory, as pleaded in the answer. The judgment cannot stand because issues of fact raised by the pleadings are not disposed of.

Louis. —lion. Wm. M. Kinsey, Judge. (1) The construction of documents or writings in evidence is a question of law, and it is the duty of the court to construe them and state to the jury their terms and legal effect. 38 Cyc. 1522; Liggett v. Bank, 233 Mo. 529; Milstead v. Equitable Mortgage Co., 49 Mo. App. 191; Mounty, Rec., v. Neighbors Imp. & Y. Co., 195 Mo. App. 21..

— Hon. James D. Barnett, Judge. (1) The trial court erred in not sustaining defendants’ peremptory instructions to find for the defendants for the reasons, (a) that the evidence disclosed no negligence on the part of either defendant, causing the death of Briscoe, (b) that deceased Briscoe’s negligence was the proximate cause of his death, and (c) that the manner of his death was mere conjecture. Harris v. Railroad, 180 Mo.