Volume 201 — Missouri Appeal Reports

Louis. —Hon. James E. Withrow, Judge. (1) The amendment of the petition at the close of the plaintiffs’ evidence changed the plaintiffs’ cause of action from that originally pleaded to a different one and should therefore not have been allowed by the court.

<p>1. BONDS: Premium: Agent’s Commission. Plaintiff was employed to procure tlie bond, or a part thereof, for defendant on the contract to build the Missouri State Capitol and was to receive thirty-five per cent of the original and all renewed premiums received by defendant as long as the bond was in force. He succeeded in getting one-third of said bond which was executed by the defendant. The contractor agreed to pay the original premium for one year and a like sum annually, in advance, until the surety was released. The completion of the building was delayed for various reasons and extensions were lawfully granted. The defendant voluntarily agreed to waive the payment of premium for -the last year the bond was in force. This action was brought for the broker’s proportion of the commission for said year. It is held that under the facts as disclosed by the evidence the defendant is liable to plaintiff for his proportion of said premium, notwithstanding it was not received by defendant.</p>

<p>1. RECEIVERS: Intervening Petition: Confirmation of Sale of Assets. Where a successful bidder, at a receiver’s sale of assets, discovers that one of the accounts listed was not in reality sold, as it had in fact been paid which was unknown to the receiver until after the bidding, the latter immediately communicating such fact to the bidder and he, thereafter, permitted the confirmation of the sale, by the court, accepted the remainder of the property and paid the amount of his bid therefor, the receiver cannot be required to pay the purchaser the proceeds of said account.</p> <p>2. -: -: -. If one offering to buy property at a receiver’s sale, afterwards discovers that some portion of what he thought was sold was not in fact sold and that he is not going to get it, allows the contract to be thereafter completed and accepts the reduced quantity, he will be deemed to have agreed to the sale as it was actually and in fact made.</p>

<p>1. NEGLIGENCE: Independent Contractor: Evidence. Plaintiff was injured by the giving away of a defective stepladder constituting a part of a scaffold being used by him while painting in a building owned by defendant. Plaintiff was working under one Batty, and on the question as to whether the latter was an independent contractor of defendant or its foreman, it was held that the contract, between Batty and defendant under which the former worked, headed “Painting Contract,” and providing that it was agreed that Batty was to do all the painting, both inside and outside, on •the properties either owned or managed “by the defendant’s agent” in Kansas City, Missouri, as ordered by “said agent,” during the spring and summer of the year 1917 on the following basis, “defendant’s agent to pay the actual cost of all painting materials used in the work,” Batty to be paid fifty cents per hour for all time actually put in by him on the work and the actual cost of all additional labor employed by him, Batty to furnish at his own expense all brushes, ladders, scaffolding, drop cloths and equipment necessary to safely and economically carry on the work, is ambiguous as to whether Batty was a foreman or an independent contractor. This because it was not made certain in the contract whether on the one hand defendant, through it agent, had a right to order Batty not only as to what jobs that were to be done but in reference to the details and method of accomplishing the work, and, on the other, whether Batty was to do the various jobs of work as ordered by the agent in accordance with his (Batty’s) methods, defendant to have control only of the result of the work. On account of this ambiguity in the contract it was held that the acts of the parties to the contract, showing their construction of it in carrying out the provisions, should be taken into consideration in determining what was the intention of the parties. Under the facts of this case it was held that it was for the jury to say what was meant by the parties to the contract and the finding of the jury that Batty was a foreman and not an independent contractor is upheld.</p> <p>2. -: -:-. While the mode of payment and the question as to who is to furnish the materials under a contract for painting is not a decisive test by which to determine as to whether the party employed is an independent contractor or an employee, these matters may be taken into consideration with other facts and circumstances throwing light on the question, including the matter as to whether the proprietor has control over the person employed.</p> <p>3. -: -: -. Where one engaged an independent contractor to do work and to employ others to assist in doing such work and the relation of independent contractor is established, if the parties thereafter abandon the contract and the person so engaged continues to employ persons and to work with them, exercising the authority of a foreman, the jury may find that such person exercising such authority had become the servant or foreman of the employer and that the relation of independent contractor has ceased.</p>

<p>1. ADMINISTRATION: Gifts: Presumption. Property delivered by a husband to bis wife, even after the making of a will by the former, is presumed to be a gift.</p> <p>2. -: Evidence: Book Entries. An entry in a book which purports on its face not to have been made contemporaneously with the transactions recited therein, is incompetent. Such entries are admissible only when there are made at or near the time of the transactions recorded.</p> <p>3. -: -: -. Books of account kept by a person who has since died are, when accompanied by proof that they are his books and in his handwriting, admissible in evidence on behalf of his estate, it being presumed that they regularly kept, but this is not the case when the entry on its face shows that it was not made at the time of the transactions which it recorded.</p>

<p>1. GUARANTY: Pleading: Demurrer to Petition. Defendant, as president of a corporation, executed a note payable to plaintiff’s assignor and at the same time, as an individual, made a written guaranty to pay the note addressed to the payee thereof, which, being a special guaranty was not assignable until a cause of action had arisen thereon and therefore a petition filed by the as-signee of said guaranty, which fails to allege that a cause of action had arisen on the guaranty at the time it was assigned, does not state a caRse of action.</p> <p>2. -: Definition: Special Guaranty. A guaranty is a separate independent contract, by which the guarantor undertakes, for valuable consideration, to be answerable for the payment of some particular debt, or future debts, or the performance of some duty, in the case of the failure of another person primarily liable to pay or perform. A special guaranty is limited to the person to whom it is addressed.</p>

<p>1. LIFE INSURANCE: False Representations: Colorado "Statutes. Plaintiff’s husband, while a resident of Colorado, applied for and was issued an insurance policy providing for monthly payments to his wife after his death. In his application he made statements which the evidence conclusively shows were false. It was held that the policy was a Colorado contract, not affected by the provisions of section 6937, Revised Statutes 1909, to the effect that misrepresentations in obtaining a policy shall not render it void unless they contributed to the event on which the policy is due and as the evidence discloses conclusively that the insured failed to make full, complete and true answers concerning his previous health and the physicians consulted, the defendant had a right to rescind the contract.</p> <p>2. -:-: Specific Inquiry: Laws of Colorado. A misrepresentation, in a contract of life insurance, material to the risk, made in response to a specific inquiry, upon which an obligor relies to his injury, voids the policy at the option of the latter, under the laws of Colorado.</p>

<p>1. GUARANTOR: Fictitious Party: Knowledge! A party contracted in writing that he would print and furnish to the “New Empress Advertising Company” a certain number of “program covers” for a certain price. A third person guaranteed in writing that the “New Empress Advertising Company” would perform its contract. In an action against the guarantor the evidence showed that there was no “New Empress Advertising Company” and that the real party was the “New Empress Company.” It was held that if the guarantor knew when he executed the guaranty that the former was a fictitious name used by the latter he was liable, but if he did not know it, he was not liable.</p> <p>2. -: -: -. If one contracts with a real person, the latter using a fictitious narr\e, and a third party, without knowledge of that fact, guarantees in writing that the fictitious person will perform the contract, he will not be liable on such guaranty for the failure of the real party to perform.</p> <p>3. -: -: -. If one contracts with a real person who uses a fictitious name, and a third person, knowing the real person is using a fictitious name, guarantees in writing that the fictitious person will perform the contract, he is liable for the failure of the real party, since he must 'have intended to be so ' bound.</p> <p>4. STATUTE OF FRAUDS: Guaranty: Fictitious Party. There is high authority for the proposition that if a guarantor who guarantees in writing that A will perform his contract, he cannot, under the Statute of Frauds, he held for the failure of B to perform, though it be offered to show that A and B are one and the same person. This is put upon the ground that by the Statute of Frauds the contract must be in writing and when such writing is unambiguous, its terms cannot be varied by parol evidence. But the better rule seems to be that the real person may-be shown not as varying the contract, but merely showing that an additional undisclosed person is a party to it.</p> <p>5. GUARANTOR: Payment on Delivery: Discharge. A plaintiff con-' tracted with, a certain company that he would print and furnish to it a certain number of “program covers” at a certain price to be paid on delivery by plaintiff. A third person guaranteed that the company would perform its contract. The plaintiff delivered a part of the covers without collecting the price, and it was held that the guarantor’ was discharged to that extent.</p>

<p>1. APPEAL AND ERROR: Docketing Cause: Notice not Required. The beginning of each term of the Appellate Court is fixed by law and parties taking an appeal must take notice thereof and if the appeal is taken sixty days before the beginning of a term the appellant must take notice that the appeal is returnable to and is likely to be docketed for hearing at that term and perfect his appeal accordingly.</p> <p>2. -: -: Printing Docket. Though an appellant may under section 2048 Revised Statutes 1909, file his appeal in the appellate court not later than fifteen days before the first day of the return term, at which time the docket for such term may be already printed as provided by section 2079, but such fact does not prevent such cause from being set for hearing at such term and appellant must, without waiting for notice, comply with the rules of court in printing and serving his abstracts and briefs.</p> <p>3. -:• Continuance: Grounds: Failure-to Perfect Appeal. Where cause on appeal in short form is set for hearing at term to which it is properly returnable, under Revised Statutes 1909, section 2047, motion for continuance on ground that docket for that term had. been printed prior to filing of certified copy of judgment and order granting appeal, as authorized by section 2079, and that appellant was given no notice in time to perfect bis appeal, will not be granted.</p> <p>4. -: Docketing Cause: Dismissal: Failure to Perfect Appeal. Where appeal hy short form is not filed until near fifteen days before first day of term to which returnable, as authorized by Revised Statutes 1909, section 2048, at which time docket for that term had been printed, as authorized by section 2079, and no notice of setting cause for hearing was given appellant, appeal will nevertheless be dismissed for failure to perfect appeal at time of hearing.</p>

<p>1. BILLS AND NOTES: Payments by Maker: Notice of Ownership: Constructive Notice. The maker of a negotiable promissory note must take notice that the note is likely to pass into the hands of a third party.</p> <p>2. -: Authority to Collect: Duty of Maker. The maker of a negotiable note in making payments thereon must ascertain that the person to whom payment is made is the owner or has possession thereof for collection and if not, the burden is on him to show the agents authority to collect. .</p> <p>3. PRINCIPAL AND AGENT: Collection of Notes: Extent of Authority. Where the purchaser of a note sent interest coupons to the payee for collection, the payee had no authority to collect coupon notes not sent in for collection, nor to collect any part of the principal note not yet due and never in agent’s hands.</p> <p>4. -: -•: -. If the holder of a note merely sent the interest coupon notes to a third person after he had collected and paid her the amount thereof, he was not her general collection agent.</p> <p>5. -: Place of Collection: Presumption of Authority. No inference of agency on the part of the proprietor of an office to collect a note arises from the fact that the note is payable at that -office.</p> <p>6. -: Payments 'to Agent: Care Required. One paying note not yet due must ascertain that owner has deposited note with agent for collection, since authority of agent to receive payment does not confer authority to collect before maturity.</p>

<p>1. ANIMALS: Stock Law Districts: Enlargement. The provisions of section 787, Revised Statutes 1909, as to enlarging a body of five or more townships having theretofore adopted the stock law by adding one or more townships adjoining thereto in the same or an adjoining county, have reference to the time when such addition is to be made and the body to be enlarged need not be the original body adopting such law nor be composed of townships all of which are in one county.</p> <p>2. -: -: -. Under section 787, Revised Statutes 1909, county lines are not a barrier to enlarging stock law districts of five or more townships and since several townships in another county, joining each other and adjacent to an existing stock law district in any county, may collectively join such existing district at one election, such township may join seriatum at different elections.</p> <p>3. --: -: Organization. Under Revised Statutes 1909, section 787, providing for enlarging stock law districts of five or more townships in one body in any county, all townships to be affected by any one election must be in the same .county, whether voting as the orginal unit of five townships or as additions.</p> <p>4. STATUTES: Construction: Legislative Intent. Any construction of a statute which makes it unreasonable and leads to absurdities is to be avoided.</p>

<p>1. NAVIGABLE WATERS: Riparian Rights: Rafts. A natural stream, capable of floating rafts of logs and timber, is navigable, in the sense that even a riparian owner has no right to obstruct it, and the rights of riparian owners of adjacent soil are subject to the easement of the public in floating rafts without injury to the soil.</p> <p>2. LOGS AND LOGGING: “Navigable Stream:” Offenses: Rafts: Cutting Adrift. A riparian owner who in violation of Revised Statutes 1909, section 4620, cuts adrift a raft of plank, lumber and railroad ties moored by á rope to an island to which defendant had title, situated in a stream “navigable” in the sense that it is a public highway for the floating of lumber and ties, is not entitled to a direction of acquittal.</p> <p>3. INDICTMENT AND INFORMATION: Verification 'of Information. That an information for cutting adrift a raft of plank, lumber, and railroad ties in violation of Revised Statutes 1909, section 4620, verified by the prosecuting attorney on information and belief, is also defectively verified by a third party, does not make it bad, within sections 5057, 5058, relating to verification of information.</p> <p>4. -: -. In prosecution for cutting adrift a raft of lumber and railroad ties in violation of Revised Statutes 1909, section 4620, an owner of the raft, who saw it after it was cut adrift, was competent to verify the information under sections 5057, 5058, although he did not see defendant cut the raft loose.</p> <p>5. LOGS AND LOGGING: Offenses: Cutting Adrift Rafts: Doctrine of Bjusdem Generis. Under Revised Statutes 1909, section 4620, denouncing the cutting adrift of a “raft of wood, plank, boards or other lumber,” conviction may be had for setting adrift a raft of railroad crossties and switch ties, under the doctrine of ejusclem generis.</p>

<p>1. MASTER, AND SERVANT: Unguarded Machinery: Danger to Employees. In an. action under section 7828, Revised Statutes 1909, where the alleged dangerous machinery was exhibited to the jury and plaintiff demonstrated in the jury’s presence where she stood when her dress was caught by a revolving shaft and she testified that the place where she stood was her usual place of work, it cannot he said as a matter of law that the shaft was not so placed as to he dangerous to employees engaged in their ordinary duties.</p> <p>2.'-: Duty of Master: Guarding Machinery.' Revised Statutes 1909, section 7828, requiring belting, shafting, etc., to be guarded when dangerous to employees, is designed not only to protect workman in doing the main task assigned hut also in doing those things naturally connected with or incidental to the regular task.</p> <p>3. -: Guarding Machinery: Plaintiff’s Negligence not Proximate Cause. That plaintiff was negligent in the manner of shifting a belt is not material where such shifting of the belt was not the proximate cause of her injury.</p> <p>4. -: Constributory Negligence: Proximate Cause. Where plaintiff, an employee in a laundry, was hurt when caught in an unguarded revolving power shaft in attempting to start a machine by shifting the belt, but she was not caught by the belt, held it was no defense that she shifted the belt with a stick instead of using the lever.</p> <p>5. -: Injuries to Servant: Unguarded Shafting. In an action by an employee in a laundry who was caught by an unguarded revolving power shaft, evidence held to show that the shaft could have been guarded as required by Revised Statutes 1909, section 7828.</p> <p>6. -: -: Evidence: Subsequent Repairs. In an action based on Revised Statutes 1909, section 7828, by an employee in a laundry caught by an unguarded revolving power shaft, evidence that the shaft was covered soon after the accident is admissible to show that the shaft could have been guarded, despite the rule against proof of repair after the accident in order to show negligence.</p> <p>7.-: Contributory Negligence: Guarding of Machinery. Revised Statutes 1909, section 7828, requiring the guarding of machinery, recognizes the fact that reasonably careful workmen may become absorbed in their work and become unmindful of the ever-present dangers from revolving shafts and moving machinery, and the court should proceed on that theory in determining whether an employee injured by an unguarded shaft was guilty of contributory negligence.</p> <p>8. -: -: Injuries to Servants. In an action based on Revised Statutes 1909, section 7828, by a laundry employee caught by an unguarded revolving power shaft, evidence held insufficient to establish her contributory negligence.</p> <p>9. -: Guarding of Machinery: “Mechanical or Manufacturing Establishments.” Revised Statutes' 1909, section 7828, declaring that the belting, etc., in all “manufacturing, mechanical and other establishments” shall be guarded, applies to a laundry.</p> <p>10. NEW TRIAL: Granting New Trial: Discretion. The granting of a new trial on account of newly discovered evidence rests largely in the discretion of the trial court.</p> <p>11. DAMAGES: Loss of Arm. An award of $7500 in favor of a young, robust woman, dependent on manual labor for her support, for the loss of an arm, is not excessive, where physical pain and mental anguish are considered.</p>

<p>1. PLEADING: Negligence: Specific Allegations. Since negligence is a violation of some duty owed by defendant to plaintiff, the petition should specify what duty or obligation was violated and a petition is defective which fails to disclose whether plaintiff relies on the duty of a carrier to a passenger or of a master to a servant.</p> <p>2. INTRUCTIONS: Negligence on Two Theories. An instruction which predicates negligence both on the relation of passenger, and carrier and master and servant is confusing and misleading.</p> <p>3. -: Essential Pacts. An instruction based on the relation of master and servant, when such relation is in issue, should not omit facts essential to create that relation.</p> <p>4. CARRIERS: Injury to Passenger After Leaving Train: Instruction. In passenger’s action for injuries while aiding brakeman in unloading freight at brakeman’s request made while passenger was on station platform, instruction as to railroad’s duty in management and operation of train with highest degree of care was misleading; the negligent act causing injury having no connection with operation and management of train.</p> <p>5. -: Injury to Passenger While on Platform: Assisting Brakeman in Unloading Freight. Where passenger, after le.aving train and while on platform, was requested by brakeman to help in unloading a heavy barrel from car, railroad was not liable, by reason of the relation of carrier and passenger, for injuries sustained while giving such assistance.</p> <p>6. -: -: -. Where passenger, after leaving train and while on platform, helped brakeman to lift a heavy barrel, railroad was not liable for injuries received while so doing, on ground of an emergency in that passageway on platform was obstructed, where another brakeman and conductor were near by to render help if needed, and it would have been but a short time until obstructions were removed.</p> <p>7. -: -: Assisting Brakeman: Duty of Conductor. Where passenger on platform was requested by brakeman to help in lifting a barrel, conductor was not required to forbid passenger to give such help where there was no inherent danger in the work and no reason to anticipate danger.</p> <p>8. -: Assisting Brakeman: Relation of Parties: Volunteer. Where brakeman requested passenger on platform to help him in lifting barrel, passenger, in rendering such help, was not an employee, though conductor, having authority in cases of emergency to employ extra help, might have heard request without objecting, but was mere volunteer, and could not recover against railroad for injuries received through brakeman’s negligence while lifting barrel.</p>

Louis. —Hon. Glendy B. Arnold, Judge. The term “improvement” as used in section 8212, R. S. 1909, is synonymous with “building” and does not include engines and boilers. Held: “Here there was no labor performed for erecting anything on which a lien conld attach. Nothing was pnt on — no improvements were made. The work was for tearing down an old building, a thing for which the statute gives no lien. ...

<p>1. COMFKOMISE AND SETTLEMENT: Substitution of Cause of Action: Contracts: Incompleted Contract: Evidence. In an action by an administratrix wherein a recovery was sought on the ground of a valid and binding oral contract between plaintiff’s intestate and defendant, acting by counsel, in compromise and settlement of intestate’s action for libel, evidence held insufficient to establish a completed contract whereby defendant’s alleged promise to pay plaintiff’s intestate a fixed sum of money became substituted for its contingent and unliquidated liability in the action for libel, and into which intestate’s orginal cause of action became merged and extinguished.</p> <p>2. -: -: Accord: Satisfaction: Common-law Buie: Consideration. In such case, the common-law rule to the effect that an accord without satisfaction does not constitute a bar to a suit on the original obligation or demand, must be applied with the qualification or concept that there may be satisfaction, or what is tantamount thereto in law, without actual payment or the performance by the debtor, or the party against whom the original cause of action proceeded, of his promise made by way of accord; provided the evidence clearly shows that this promise itself was accepted, upon sufficient consideration, in full satisfaction of the original demand, becoming thereby substituted for the latter by virtue of that agreement.</p> <p>3. -: -: -: -: Valid Contract: Consideration. Where a valid compromise has been effected, by means of an agreement resting upon consideration and which was intended to take the place of the original cause of action, the latter is extinguished, and recourse must be had alone upon the agreement; the accord, under such circumstances, being regarded as executed.</p> <p>4. -: -: Contracts: Incompleted Contract: Evidence. Where the evidence discloses that defendant’s counsel declined to pay the money in settlement of intestate’s action for libel without receiving for his client a release signed, not only by the intestate, but by his attorneys, and the arrangement made was to the effect that, if such release were executed and delivered, the amount named therein would be paid, held, that until this condition had been complied with there was no legal obligation resting upon defendant to make payment; and where intestate before he had complied with this condition committed suicide, whereby his cause of action for libel became extinguished, thus destroying the entire subject-matter of the proposed compromise or settlement, before the conditional agreement or undertaking of defendant’s counsel had ripened into an obligation binding defendant to make payment, hence, defendant not having become legally obligated to pay the sum mentioned, or any sum, prior to the death of intestate, and the subject-matter of the transaction having been destroyed by his death, no liability attached to defendant growing out of such conditional agreement.</p>

Louis. —Hon. William T. Jones, Judge. (1) The court erred in not giving to the jury either the peremptory instruction in the nature of a demurrer offered by him at the close of appellees’ testimony or at the close of all the testimony, (a) It is the duty of the court to direct a verdict for defendant when plaintiff fails to prove his case. Ferris & Roskopf on Instructions to Jury, section 37; Warner v. Modern Woodmen, 119 Mo. App. 222 ; Nolan v. Schickle, 3 Mo.

<p>ACCORD AND SATISFACTION: Judgment of Court of Appeals Quashed by Supreme Court on Certiorari: Action of Court of Appeals. Where the Supreme Court on certiorari (205 S. W. 1) has ordered the judgment of the Court of Appeals (198 Mo. App. 399) to be quashed, on the ground that under the facts the trial judge should have declared that as a matter of law there was an accord and satisfaction and directed a verdict for the defendant, it only remains for the Court of Appeals to order the judgment reversed, in accordance with the opinion of the Supreme Court.</p>

Louis —Hon. Eugene McQuillin, Judge. (1.) The title to Ordinance No. 18680 limits the subject matter thereof to underground wiring, and section 13, article 3, of the charter of St. Louis concerning titles to ordinances, restricts the provisions of such ordinance to such subject-matter.

—Hon. John A. Snider, Judge. (1) ' Defendant’s age, when the materials were ordered, being over eighteen years, rendered him sui juris so far as .the Mechanics’ Lien Act is concerned. De'Witt v.- Smith, 63 Mo. 263; Dngan, etc., Co. v. Gray, 114 Mo. 497; Sec. 402, R. S. of Mo. for 1909; Sec. 8234, R. S. of Mo. for 1909.

Appeal, from the Circuit Court of St. Francois County. —Hon. Peter II. Pluck, Judge. (1) The injury complained of did not give a cause of action under the statutes of Missouri, imposing liability upon railroads for failure to fence; for the animal was not struck by a moving train, nor was' it frightened. Hughes v. Railway, 66 Mo. 325; Poster v. Railroad, 90 Mo. 116; Lafferty v. Railroad, 44 Mo. 290; Hesse v. Railroad, 36 Mo. App. 163; Lindsay v. Railroad, 36 Mo.

Louis. —Hon. William T. Jones, Judge. (1) The plea of non est factum in defendant’s verified answer cast the burden on plaintiff of establishing the authority of the persons who executed the note in defendant’s name, in order to hold defendant liable thereon. Proof that one of the persons who signed the note held the office claimed by him on the paper, was not sufficient, and the note should not have been admitted in evidence.

— Hon. Robert G. Romney, Judge. (1) The evidence in this ease is not sufficient to support the verdict of the jury and the court siiould have sustained the demurrer to the testimony offered by the defendant at the close of the plaintiff’s case and again at the close of the whole case. Manning v. Eail-way Co., 137 Mo. App. 631; Fritz v. Eailway, 243 Mo, 62; Bowden et al. v. St. Louis-San Francisco Ey., 175 S. W. 252, 189 Mo. App. 148; Gibbs v. Eailway, 104 Mo.

Louis County.— Hon. John W. McElhinney and Hon. Gustave A. Wurdeman, Judges. (1) The insured, George C. and Martha L. Shanks, having sold to J. R. Kennon' the property covered by the policies in question and no notice of such change of ownership having been given to the insurance companies, the insurance as to the said Shanks and Kennon is void. Marcus v. Insurance Co., 187 Mo. App. 134.

<p>Appeal from Schuyler Circuit Court. — Hon. N. M. Pettingill, Judge.</p>

<p>SLANDER AND LIBEL: Privileged Communications. In the trial of an action involving the liability of the executors of a will for not collecting the rent of a farm, or making it out of the crop raised thereon, and the extent of that liability, the tenant testifying as a witness on cross-examination was asked “Did you get all the corn grown on the place (the farm in question) except what Wichman got” to which he replied “Yes, all but what George Groves stole.” Held, that the answer was not only fairly responsive to the question but also pertinent and material to the inquiry and was privileged as a matter of law.</p>

<p>1.PROCESS: Sheriff’s Return: Interpretation.. The return of the sheriff endorsed on a writ of summons should receive a reasonable and natural interpretation and must be fairly construed and effect given to its plain intent and meaning, under section 1766, R. S. 1909.</p> <p>2. -: Service on Corporation: Business Office. Where the return of a sheriff on a summons, sent to him from another county in his State for service on a business corporation, shows that process was served upon defendant’s agent at defendant’s office in said county, it will be upheld notwithstanding the word “business” is not used, as a fair construction of such return shows that it was served at the business office of the company.</p> <p>3. -: Courts: Prsumption: Valid Service. Circuit courts are courts of general jurisdiction and having heard the evidence and rendered judgment in a cause it will be presumed that it ascertained sufficient facts to sustain service in another county so as to give it jurisdiction to render a personal judgment.</p>

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

Louis. —Hon. K. Ko-erner, Judge. (1) An abutting owner has the right to construct and maintain a cellar opening in the sidewalk and is not liable for injuries resulting to a passerby or to a visitor of the tenant or to anyone not connected with the property. If the premises become dangerous by the manner of its use by the tenant in possession the landlord is not liable for injuries resulting from such use.

<p>Appeal from Jackson Circuit Court. — lion. O. J. Lucas, Judge.</p> <p>On Appellant’s Motion to set aside submission and dismiss Respondent’s cause of action.</p>

Louis. —Hon. J. Hugo Grimm, Judge. (1) An attorney, seeking to recover under either section of the attorneys’ lien statute (R. S. 1909, sections 964 and 965) must prove that there was in existence a valid contract of employment between him and his client whereby he was retained to represent the client, and he must also show the terms of such contract. R. S. 1909, sections 964 and 965; Young v. Renshaw, 102 Mo. App. 173; Yonge v. Transit Company, 109 Mo.

Louis. — Hon. Leo. 8. Rassieu-r, Judge. (1) Plaintiff failed to prove any of the several specifications of negligence. Held: that the company was not negligent under the Federal Employers’ Liability Act for maintaining a defective place to work where the conductor was familiar with the surroundings and the manner of performance of service. Miller v. Mich. Cen. R. Co., 152 N. W. 235; Randall v. Baltimore & Ohio R. Co., 109 U. S. 479; Southern Ry.

— Hon. John A. Snider, Judge. (1) The Supreme Court in banc in the case of State ex inf.

Louis. —Hon. Wilson A. Taylor, Judge. (1) A master is liable for the negligent act of the servant only when the negligent act itself is within the scope of the employment, and the'fact that the servant acted voluntarily for the supposed benefit' of the master does not render the master liable. Farber v. Railroad, 32 Mo. App. 378; Snyder v. Railroad, 60 Mo. 413; Walker v. Railroad, 121 Mo. 575; Hartman v. Muehle-bacb, 64 Mo.

Louis County.— Ron. John W. McElhinney, Judge. The purchaser of goods sold in violation of the provisions of the “Bulk Sales” law is a trustee for the creditors who may hold the fraudulent purchaser in garnishment for the value of the goods or the proceeds coming into his hand in case he has disposed of the goods. Eiley Penn. Oil Co. v. Symmonds (Tritsch, Garnishee), 195 Mo. App.

Mandamus. Original Proceeding. A proceeding in the juvenile court must be instituted by an information, pleading the facts with all the particularity of a common law information charging crimes or misdemeanors, and under the oath of a probation officer, city, prosecuting attorney or circuit attorney. Sess. Acts 1911, page 181, see. 7; State v. Hayward, 83 Mo. 299; Ex parte Lucy See, 241 Mo. 292; State ex rel. Tincher, 258 Mo. 21.

Louis. —Hon. Kent K. Koerner, Judge. (1) The notes and deed of trust in controversy were executed by the Jessie Morris Realty &• Investment Company for the specific purpose of erecting a dwelling on the lot on Eads Avenue. Dearth, the payee, was a straw man. He endorsed the notes and delivered them to Frederick, the president of the company. Frederick sold the notes and deed of trust to respondents to pay his (Frederick’s) debt to respondent.

<p>1. TROVER AND CONVERSION: Conversion: Money CoUected on Checks or Drafts: Conversion Does Not Lie. The action for conversion for the conversion of the money charged to have been collected on checks or drafts does not lie.</p> <p>2. -: -: -: -. Trover lies only for specific chattels wrongfully converted, and not for money had and received for payment of debts,, money being the subject of conversion only when it can be described or identified as a specific chattel.</p> <p>3. APPELLATE PRACTICE: Petition Failing to State a Cause of Action: Review. The point that the petition fails to state a cause of action can be raised for the first time on appeal.</p> <p>4. TROVER AND CONVERSION: Conversion of Money Collected on Checks or Drafts: Petition States no Cause of Action. Where the cause of action attempted to be set up in the petition is tort for conversion, and it does not set up facts necessary to show conversion, nor does it pretend to be for money had and received, the petition states no cause of action.</p>

<p>1. ARMY AND NAVY. Soldiers’ and Sailors’ Civil Relief Act: Stay of Proceedings: Discretion of Court. Section 201 of tlie Soldiers’ and Sailors’ Civil Relief Act of Congress of March. 8, 1918 (section 307.8^0, U. S. Comp. Stat. 1918) leaves the granting of a motion to stay proceedings within the sound discretion of the court.</p> <p>2. -: -: -: -: -. Where relator, already in the service of the United States Army, voluntarily filed suit for divorce, etc., and upon an ex parte hearing was granted an absolute decree of divorce, and within the same term at which the decree was rendered defendant filed her motion to set the decree aside, alleging fraud, etc., and relator asked for a leave of absence, etc., which was denied, held that the trial judge in refusing to stay proceedings has not in any wise, in so far as he has proceeded, exceeded that sound discretion which is vested in him under the Soldiers’ and Sailors’ Civil Relief Act, Section 201 (U. S. Comp. Stat. 1918, section 3078%c.)</p> <p>3. PROHIBITION: Nature and Scope of Remedy: Discretion of Inferior Court. The judicial exercise of discretion by an inferior court having jurisdiction will not he interfered with by the writ of prohibition.</p> <p>4.-: -: Discretion of Court as to Grant of Writ. Discretion of the court as to grant of a writ of prohibition should be applied with judicial circumspection, and applied to the facts as presented by each individual case, nor should it be granted unless the usurpation of jurisdiction by the inferior tribunal is clear.</p>

<p>Appeal from Jackson Circuit Court. — Hon. T. J. See-horn, 'Judge.</p>

<p>1. ATTORNEYS’ LIENS: Attachments: Following Proceeds. . An attorney who institutes and successfully prosecutes a cause of action for his client whereby he recovers land which had been taken away from her, has a lien not only on the cause of action, hut also on the proceeds of that cause of action and his right thereto cannot he affected by an attachment thereon subsequent to the time his lien became complete.</p> <p>2. CAUSE OF ACTION: Definition: Essential Elements. A cause of action has at least two essential elements: (1) the wrongful invasion of a right and (2) the privilege or power which law or equity gives to the injured person to seek and obtain redress.</p>

<p>1. MUNICIPAL CORPORATIONS: Negligence: Governmental Capacity. A city has a right in its governmental capacity to adopt a general plan of street improvement and if an injury results from a danger inherent in the adopted plan the city is not liable, but it is equally well established that if the danger has ''risen from the negligent construction or maintenance of the plan the city is liable.</p> <p>2. NEGLIGENCE: Streets and Highways: Smooth and Slippery Surface. Where a city constructs or permits the surface of a much used street to become so slick as to be dangerous to persons using the same, it is liable for damages to one injured while lawfully thereon.</p>

<p>1. DEEDS: Breach of Covenant: Undisclosed Principal. As a result of Section 2773, R. S. 1909, abolishing the use of seals, an undisclosed principal may he held liable for a breach of warranty made by the agent in a deed executed in the latter’s own name.</p> <p>2. -: -: Measure of Damages. In such a case the suit to recover is based not strictly on the covenant but on the facts of the case and the measure of damages is the extent to which the undisclosed principal is enriched at the expense of the purchaser who bought from him through his agent.</p> <p>3. PLEADINGS: Damages. In an action for loss sustained by breach of covenant of warranty against an .undisclosed principal the petition should state the amount plaintiff paid for the land, the value thereof and the value of the land lost compared with the rest, as that is the measure of plaintiff’s damages.</p>

<p>' 1. NEGLIGENCE: Release: Fraud: Tender. In an action for damages for personal injuries the defendant pleaded a release which plaintiff in his reply alleged was procured hy fraud. The consideration for the release was paid by an insurance company, although it recited that the consideration was paid by the defendant and it recited that the defendant thereby was discharged from liability. There was no evidence ■■of the relation between the defendant and the insurance company. Held, defendant by it answer adopted the release and if the plaintiff desired to disown because of fraud it was his duty to tender the consideration after he became aware of the fact that defendant had adopted the release.</p> <p>2. TENDER: Sufficiency. In a law case it is not sufficient that an offer of the money was made in the pleading.</p> <p>3. -: Time. A tender made six months’ or more after the institution of the suit will not avail.</p> <p>4. -: Parties. Though a release could not be set aside as to an insurance company not a party to the suit because it had an additional pecuniary interest the plaintiff is not excused from tendering the consideration before suit, and, until he has, the defendant may assert that plaintiff is in no position to disavow the release.</p>

<p>DIVORCE: Husband and Wife: Separation Settlement: Trustee. Husband and wife may make a valid contract of separation and settlement between tbemselv.es without the intervention of a trustee.</p> <p>2. -: Rconciliation: Annulment of Agreement. Where' husband and wife make an agreement for separation and settlement and there is a reconciliation and resumption^ of the marital relation it annuls the agreement.</p> <p>3. -: Public Policy: Separation in Future. It is against pub-lie policy to allow validity to a contract based upon a separation for causes which may happen in the future, or which are after-wards to be brought about.</p> <p>4. - Settlement Without Separation: Validity. There may be a valid contract of settlement of property between husband and wife, made without reference to, or intention to, separate.</p> <p>5. -: Return of Property: Reconciliation: Second Abandonment: Tender. Where a contract of separation and settlement is made between husband and wife and she receives money or property under the contract; and afterwards he returns to her and lives with her as her husband if afterwards he refuses to support her, or she is compelled to secure a divorce for his fault, she may demand alimony without returning to him the property she received.</p> <p>6. -: Wife’s Use of Property Settled upon Her: Voluntary Settlement: G-ift. Where a wife received property from the husband under a contract of separation and settlement, and he afterwards returned to her, and they thereafter resumed marital relations, he acquiesing in her use of the property and its proceeds for a course of years, when again wrongfully left her, the property became a voluntary settlement or gift from him..</p>

<p>1. SURETY: Co-Surety: Indemnity Taken Before Relationship Exists. 'A surety on a bond who takes an indemnity from the principal before the obligation is executed, may use such indemnity to protect himself alone and it does not inure to the benefit of those who subsequently became co-sureties.</p> <p>2. -: Indemnity Taken After Relationship Ceases. If one of several co-sureties receives indemnity from the principal after his rights and obligations have been adjusted with his co-sureties, he may use such indemnity to reimburse himself and the co-sureties are not entitled to share it.</p>

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

<p>1. DAMAGES: Jurisdiction: Title to Real Estate: Constitution. An action for damages in trespass against a railroad company for burning a barn on plaintiff’s land, does not involve the title to r.eal estate as contemplated by the Constitution and appellate jurisdiction is in the Court of Appeals.</p> <p>2. -: Trespass: Setting Fire: Circumstantial Evidence. In an action to recover damages for burning a barn by a passing railway locomotive, it is not necessary that direet and affirmative evidence be had to show that the engine set the fire; circumstantial evidence will suffice.</p> <p>3. -: Possession: Title: Wrongdoer. In an action in trespass against a railroad company for burning a barn on land adjoining the track, possession in plaintiff, .without title, will support the action as against a wrongdoer who has no authority from the true owner.</p> <p>4. -: Landlord: Tenant: Possession: Freehold: Action. An action in trespass against a railroad company for injury to the freehold as by burning a barn on lands adjoining the track may be maintained by a landlord, claiming title, though the actual possession be in the tenant, and though the real title is in a third person.</p>

<p>1. NEGLIGENCE: Personal Injury: Evidence. Evidence examined and found to sustain a verdict for the injured party.</p> <p>2. -: Pleading: Instruction. Petition and instruction examined and found that the latter is justified hy the former.</p> <p>3. ■-: Humanitarian Rule: Motorman: Lookout. Motorman must he on lookout in running a street car on streets in a populous city, and in a case on the humanitarian doctrine, he will he held. to see what he might have seen if he had been looking.</p> <p>4. -: Expert: Hypothetical Question: Objection. Objection to a hypothetical question propounded to an dxpert must be accompanied by a suggestion of the omission which renders it improper.</p> <p>5. -: Impeachment: Bribery: Witness. For the purpose of discrediting a witness for one party he may be asked on cross-examination by the other party if he had not attempted to bribe a juror on a former trial of the same case.</p> <p>6. »-: Bribery: Witness: Evidence: Fabricated Story. Evidence that one of defendant’s claim agents who assisted in the trial of personal injury cases offered a bribe to a prospective witness for the plaintiff to fabricate a story known to be false is properly received as tending to show that defendant had no just or legal defense on the truth of the case.</p> <p>7. -: Claim Agent: Bribery: Witness. For a claim agent of a corporation-defendant to say to a witness for plaintiff whom he is endeavoring to have change his testimony that it is “Worth fifty to us,’’ is an attempt at bribery with money.</p> <p>8. -: .Bribery: Counsel: Argument. Where there has been evidence of an attempt to bribe one of plaintiff’s witnesses, his counsel has a right to refer to it in argument to the jury.</p> <p>9. -: Personal Injury: Mental Derangement: Excessive Judgment. A. boy, 15 years old, was badly injured through the negligence of a street railway company. He was earning substantial wages. His bodily injury was severe and permanent, and caused a mental derangement so that he was helpless and his mother (a widow) had to care for him and wait upon him as though a child. It was. held that a judgment in her favor for $7500 was not excessive.</p>

<p>1. INDEMNITY INSURANCE: Insolvency of Insured: Payment of Judgment. A corporation, which pays a judgment obtained against it by an employee injured through its negligence, may recover on a policy of insurance indemnifying it for loss from any liability that might he imposed upon it hy law on account of injuries sustained hy an employee, even though at the time the judgment was paid the corporation was insolvent.</p> <p>2. -: Issues. The only issue in a suit on such a policy is the question’ of whether or not plaintiff actually paid the judgment, the motive of the plaintiff being of no consequence.</p> <p>3. -: Vexatious Delay. Where the defendant repeatedly refused to satisfy the judgment obtained against the plaintiff, failed to give bond on appeal and counseled the plaintiff to turn over its business to a stockholder in order to frustrate collection of the judgment there was sufficient evidence to support a finding that defendant’s refusal to pay was vexatious.</p> <p>4. ACTIONS: Real Party or Interest. Plaintiff gave a note for money obtained to pay a judgment against it and pledged the policy sued on in this suit as security therefor. Held, plaintiff is the real party in interest.</p>

<p>NEGLIGENCE: Proximate Cause: Excessive Speed. Unless tbe negligence complained of is the proximate cause of tbe injury there can be no recovery. Where the negligence alleged is the operation of a street car at an excessive rate of speed and the evidence shows that plaintiff was injured by being knocked under a moving car by persons in a crowd surging towards the car, no causal connection between tbe excessive speed and tbe injury is proved, where all tbe evidence shows that plaintiff would have been injured if tbe car bad been going at any rate of speed.</p>

<p>1. NEGLIGENCE: Pleading: Failure of Proof. In an action based on the negligence of an interurban company, tbe petition alleged that defendant’s servant negligently failed to protect tbe plaintiff from an assault by a fellow passenger. Tbe evidence showed that at tbe time of the assault tbe car was being operated on tbe tracks of a street railroad company; that plaintiff paid a separate fare for that part of tbe transportation; that tbe street railroad company paid tbe interurban company for tbe services rendered by tbe employees while tbe car was on tbe latter’s tracks and that during such time tbe employees were not under tbe control of tbe interurban company. Held, that there was a failure of proof.</p> <p>2. MASTER AND SERVANT: Particular Service., An employee in the general service of an interurban company who during tbe time tbe interurban car is operated along tbe tracks of a street railroad company is under tbe latter’s control and is paid by tbe latter, under an agreement between tbe two companies following out an ordinance, which compels tbe street railroad company to place its own crew in charge of cars operating on its tracks, is the servant of tbe street railroad company during that stage of tbe transportation and the interurban company is not liable for his negligence occurring at that time.</p> <p>3. PLEADING: Surplusage. The rule is that only those allegations necessary to a recovery must be supported by proof while those not necessary to that' end may be eliminated as surplusage.</p>

<p>MUNICIPAL CORPORATION: Violation or Ordinance: Defective Information. Where an ordinance requires a circus to secure a license before an exhibition is authorized and imposes a fine' for a violation thereof, an information based on such ordinance charging that defendant exhibited his circus “without first having fully paid the license fee” is defective, as the gist of the action is the failure to procure a license, not the failure to fully pay for one.</p>

<p>1. MASTER AND SERVANT: Factory Act: Unguarded Machine: Evidence. In an action by a servant against his master based upon the latter’s failure to comply with Section 7828, Revised Statutes 1909, which provides that the master should guard' all machinery in the factory when so placed as to be dangerous to persons employed therein or thereabout, while engaged in their ordinary duties, where the evidence shows that plaintiff was working within nine and a half inches of the machine. Held, it was error to rule as a matter of law that the machine was so placed as not to be dangerous to the plaintiff.</p> <p>2. -: -: -: Ordinary Duties. Where defendant’s foreman testified that it was part of plaintiff’s duties to open and close the window in front of which the machine in question was placed and there was evidence showing that plaintiff in the presence of the foreman opened and closed the windows at various times, held, the opening and closing of the windows was one of plaintiff’s ordinary duties within the meaning of Section 7828. Revised Statutes 1909.</p> <p>3. -: -: -: Contributory Negligence. Where there are two ways of performing a duty, one more dangerous than the other, as a matter of law it cannot be ruled that because the plaintiff chose the former he was guilty of contributory negligent:^</p>

<p>' 1. MASTER AND SERVANT: Mines: Safe Place to Work. It is the well settled law of this State that it is the duty of the miner to keep his working place safe, and the duty of the master to keep the entries (the places generally used by many miners) in a condition of reasonable safety.</p> <p>2. -: Jury Question. When the place of the injury is at the same time the miner’s working place and one of the entries of the mine, it is a question of fact to' be determined under the evidence as to whose duty it is to maintain such place in a reasonably safe condition.</p> <p>3. -: Instructions. An instruction which submits the case to the jury on the theory that plaintiff was not injured at his working place where the evidence clearly shows he was, is erroneous.</p> <p>4. -: Conflicting Instructions. Where one of the defendant’s instructions conflicts with a proper instruction given for the plaintiff, the defendant may not complain.</p>

<p>1. BANKRUPTCY: Creditors: Local State Law. The federal courts in administering and applying the Bankruptcy Act recognize' the rights of creditors as they are established by the Local 'State Law.</p> <p>2. -: Creditor: State Law. The rights and remedies of a trustee in bankruptcy are measured by the rights of the creditor under the State Law, and the right of such trustee begins at the filing of the petition in bankruptcy.</p> <p>3. MORTGAGES: Recording: Possession: Lien. In Missouri a mortgagee creditor must either take possession of the property, or record his mortgage, in order to make it valid against creditors. If he fails at first to record the mortgage or to take possession of the property, but does either before a creditor fastens a lien on the property, the mortgage is validated as against such creditors.</p> <p>4. MORTGAGES OF PERSONALTY: Possession. A mortgagor gives a mortgage on a stock of merchandise in Missouri. The mortgagee recorded the mortgage but left the property in possession of the mortgagor with right to sell in the usual course without' accounting for the proceeds. It was held that the mortgage was invalid as to creditors. But afterwards, the mortgagee took possession of the property before any creditor secured a lien on it, and it was held that 'that act validated the mortgage as to creditors.</p> <p>5. BANKRUPTCY: Mortgage: Trustee: Creditor: Conversion. A debtor on June 30, 1914, mortgaged his stock of merchandise to ' a mortgagee who had then made advances to him. The mortgage was recorded, but the mortgagor was allowed to remain in possession and sell in the usual course without accounting, for the' proceeds. On June 24, 1915, wbicb was about six months after the debt became due, the mortgagee took possession of the stock and sold it on July 15, 1915. The day before this sale and about three weeeks after possession was taken by the mortgagee a petition in bankruptcy was filed against the mortgagor and he was afterwards adjudged a bankrupt. The trustee then brought an action for conversion against the mortgagee. It was held that the trustee occupying the status of a creditor of the bankrupt without a lien on the property, had no cause of action.</p>

<p>1. FOREIGN CORPORATIONS: Doing Business in State Without License: Suit to Recover Purchase Price. A foreign corporation doing business in this State without a license may not epforce its contracts with reference to that business done in the State.</p> <p>2. -: Interstate Commerce: Right to Sue. A foreign corporation may maintain a suit with reference to a transaction which is interstate in character without having a license, even though as gards other transactions it is doing business in the State without the required license.</p>

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

<p>1. NOTARY PUBLIC: Pees: Contracts. Where a notary public, in the employ of a city, enters into a contract, express or implied, by whicli, in consideration of his employment at a fixed salary, he was to turn the fees for services as a notary public over to the city, he cannot thereafter recover such notarial fees from the city.</p> <p>2. MUNICIPAL CORPORATIONS: Notary Public: Fees. An employee of the treasurer of a city, as a notary public, took the acknowledgments of the city treasurer to purchase certificates of properties sold for taxes, the purchaser of such properties paying the notarial fees which went into the City Treasurer under an arrangement whereby the employee accepted a monthly salary from the city in lieu of such fees. It was heló, that under the circumstances as shown by the evidence the notary, having voluntarily agreed to waive his notary fees and to accept in lieu thereof money for which he gave no equivalent whatever except the fees he waived, he is not now in a position to turn around, after his relations with the city have been terminated, and recover such fees from the city.</p>

<p>1. TRIAL PRACTICE: Excavations: Instructions: Assumption of Facts: Question for the Jury. In an action for personal injuries sustained by falling into an unguarded excavation dug by defendant in the street, etc., an instruction which assumed as a fact that, if the jury found that a foot bridge had been placed and maintained over the excavation, such foot bridge measured up to the requirements of the ordinance with reference to fencing in such excavation, held, erroneous; such question was one for the jury to determine under all the evidence in the case.</p> <p>2. EXCAVATIONS: Excavations in Street: Injury to Pedestrian: Signal Lights: Instructions. In an action for personal injuries sustained by falling into an unguarded excavation dug by defendant in the street, etc., an instruction for defendant that if the jury find that the defendant put and maintained a red signal light near the foot bridge, and that subsequently some one removed the foot bridge and signal light, and before defendant had a reasonable time, under the circumstances, to restore the same the plaintiff was injured, then they must find for defendant, held erroneous, in that the instruction as requested would have made it possible for the jury to have found for the defendant even though the defendant or one of its agents or employees had removed the foot bridge and signal light.</p> <p>3.-: -: -: Failure to Fence: Ordinances: Instructions: New Trial. In such action, an instruction for defendant, which did not require the jury to find that defendant had a fence, as required by ordinance, guarding the excavation up to either side of the bridge, held erroneous; and that it was error on the part of the trial court to sustain defendant’s motion for a new trial on the ground that he had so refused to give such instruction.</p> <p>4. -:-: -: Evidence: Question for the Jury. In an action for personal injuries sustained by falling into an unguarded excavation dug by defendant in the street, etc., evidence reviewed and held plaintiff made out a case for the jury.</p> <p>5. -: -: -: Failure to Fence or Place Lights: Ordinances: Instructions. In such action, an instruction for plaintiff, telling the jury that if the defendant failed to cause the excavation to be fenced in or failed to cause lights to be posted and kept burning, etc., held not erroneous when the ordinance clearly puts the duty upon defendant, not alone to fence in the excavation, but in addition thereto to cause lights to be placed and kept burning during the entire night.</p> <p>6. APPELLATE PRACTICE: Excavations: Injury to Pedestrian: Review: Instructions: Harmless Error. In an action for personal injuries sustained by falling into an unguarded excavation dug by defendant in the street, etc., an instruction as to defendant’s duty to keep the lights burning all night, while somewhat too broad, it must be regarded as harmless error where all the evidence in the case shows that the defendant had not complied with the ordinance requiring the excavation to be fenced:</p> <p>7. TRIAL PRACTICE: Excavations: Injury to Pedestrian: Instructions: Assumptiqn of Facts. In'such action an instruction on the measure of damages held not erroneous, on the ground that it assumed that plaintiff 'had sustained injuries.</p> <p>8. DAMAGES: Excessive Damages: Personal Injuries: Verdi9t. A verdict of $7500 held not excessive, where plaintiff, a man 53 years old, in good health, earning from $4000 to $5000 a year, was injured by falling into an unguarded excavation, whereby his lungs and heart were injured, the left shoulder shrunken flat, with a hardening and wastening of the muscles in that region, etc., which conditions were permanent, and where his earning capacity had dropped to almost nothing.</p>

<p>1. INSTTRANTCE: Accident Insurance: Premiums: Waiver of Time of Payment: Evidence. In an action on an accident insurance policy, held, under the evidence in tbe case as to the time in which the premium had been paid, it was proper for the court, as a matter of law, to hold that there had been such a waiver of the time of payment on the first of the month' and ithe continuance of the policy in force, as to warrant the court in instructing the jury, that on that issue defendant had failed in its defense.</p> <p>2. -: -: -: - — . It is a settled rule that the doctrine of waiver by acts is applicable to societies as well as to regular insurance companies, and is applicable to all conditions in contracts which may be assumed to have been waived by a long continued course of conduct between the parties themselves.</p> <p>3. -: -: Suicide by Insane Person: Suicide no Defense. Where the party who committed suicide was at the time insane, then under an accident insurance policy recovery can be had and section 6945 of the Revised Statutes of 1909 applies and it shuts off the defense of suicide, even in an accident insurance policy.</p> <p>4. -:-: Suicide by Sane Person: Suicide a Defense. Where the party who committed suicide was at the time sane, then section 6945 of the Revised Statutes of 1909 does not apply, and in case of suicide committed by a sane man, there can be no recovery on an accident policy.</p> <p>5. -: -■ — : Sanity: Question for the Jury. In an action on an accident insurance policy where the insured committed suicide, the mere fact that the party.committed suicide is no evidence one way or the other of sanity or insanity, and that is a question that must be submitted and determined by the jury even if not raised at the t,rial.</p> <p>6. TRIAL PRACTICE: Questions Raised in Trial Court: Demurrer to the Evidence: Instructions. By the demurrer to the evidence interposed at the close of plaintiff’s case and again at the close of all the evidence in the case, and in an instruction asked by defendant and refused, the matter of the suicide of the insured was raised in the lower court and that point was in the case.</p> <p>7. INSURANCE: Accident Insurance: Sanity: Suicide as a Defense: Instructions. In an action on an accident insurance policy, where insured committed suicide, an instruction which left out of consideration the question as to the sanity or insanity of deceased at the time when he inflicted the mortal wound was error, and the instruction which the court gave, to find for plaintiff, as far as it may he said to cover this part of the case, was improper.</p>

Louis. —Hon. George H. Shields, Judge. (1) Ordinarily, until the mortgagee enters for breach of condition, and in many respects even until final foreclosure, the mortgagor continues to be the owner of the estate, and entitled to possession of same, and has a right to lease the estate and in every way deal with it as owner. Kennett v. Plummer, 28 Mo. 142; Masterson v. West End Narrow Gauge E. Co., 72 Mo. 342; Dickerson v. Bridges, 147 Mo. 235, 243.

Louis. —lion. Thomas G. Hennings, Judge. (1) The special oral agreement alleged in plaintiff’s petition “immediately divert or reconsign hy wire’’ on July 11, 1914, is void as a violation of the Interstate Commerce Act. C. & A. v. Kirby, 225 U. S. 155, 56 L. Ed. 1033.

Louis. — Hon. Glendy B. Arnold, Judge. (1) The court erred under the law and the evidence in this case in sustaining the bill of interpleader. Free-land v. Wilson, 18 Mo. 380; Railways Co. v. O’Connor, 153 Mo. App. 128; Bland v. Robinson, 148 Mo. App. 168-169.

Francois County. —Hon. Peter H. HucJc, Judge. (1) The court erred in referring this motion to R. C. Tucker as referee of the juvenile division of the circuit court of St. Francois county because this motion was hut a continuance of the original divorce proceeding and the statutes of this State provide that such proceedings must he heard and decided hy the court. R. S. 1909, sec. 2371; Mangels v. Mangels, 6 Mo. App. 481; Cole v. Cole, 89 Mo. App. 228.

Louis. —Ron. George H. Shields, Judge. (I) This being an equitable suit, this court will, under the .well-established procedure in equity, try the case de novo. (2) • The court erred in admitting testimony as to the use to which one of the defendants, a physician, put the porte-cochere. If the building, as it stands, constitutes a violation of the covenant, or, on the other hand, does not constitute such a violation, it continues to be such regardless of its occupancy.

Louis. — Ron. Rhodes E. Gave., Judge. (1) The court erred in refusing* to give the instruction in the nature of a demurrer to the evidence, for the reason that the place where plaintiff attempted to board the car was not a usual or customary stopping place and there was no showing that the operatives actually saw her attempting to board the car. A showing of either one of. these conditions is a prerequisite to a recovery in a boarding case. McCarty v. Eailway Company, 105 Mo.

Louis. —Hon. Rhodes E. Gave, Judge. The court erred in refusing to give the instruction in the nature of a demurrer to the evidence as requested by the defendant, (a) Because the plaintiff failed to prove that her decedent was, at the time he was injured, engaged in interstate commerce. Ill. C. Railroad Co. v. Behrens, 233 U. S. 473; Erie R. Co. v. Welsh, 242 U. S. 303.

Louis. —Hon. Thos. L. Anderson, Judge. (1) There is no duty on the part of a motorman to keep a lookout for hoys coasting over the street car tracks, unless he sees or knows that they are doing so. It appears from plaintiffs’ own case that these boys came out of a side street, Camelia avenue, behind the motorman, and followed the car down the hill, and the uncontradicted testimony of the motorman is that he never saw any boys coasting on the hill on this occasion.

Louis. —Hon. George H. Shields, Judge. (1) An agent or trustee is bound to keep the property of his principal separate from his own.