Volume 209 — Missouri Appeal Reports

— Eon. . Sterling II. McCarty, Judge. (1) An attachment cannot- issue on a demand not yet due on the ground of the defendant being a nonresident of the State of Missouri. Section 1726, R. S. 1919 ; Mastín et al. v. The First National Bank of Kansas City, 65 Mo. 16.

— Hon. Charles L. Henson, Judge. (1) The petition states no cause of action. Section 4217, R. S. 1919, the Missouri death statute, under which this action is brought, is entirely penal and not compensatory in any amount. Grier v. Railroad, 228 S. W. 454. No action ‘can be maintained against the Director General of Railroads or the United States Railroad Administration under a state penal statute such as the so-called railroad death statute of Missouri.

<p>1. TRUSTS: Contracts Between Trustee and Beneficiary as to Compensation Recognized. Contract between a trustee and cestui que trust fixing the amount of the compensation of the trustee for services is permissible,. and when honestly entered into will be recognized by the courts.</p> <p>2. -: Trustee Bound by Instrument Fixing Compensation. When a trust instrument fixes the compensation to be paid to the trustee, he may, by accepting the trust, bind himself by the provisions therein made for him, and prevent his collecting a larger sum.</p> <p>3. -: Compensation to be Reasonable for Work Done. A trustee cannot'be allowed to profit from the trust estate, but the guide in fixing the amount of his compensation by the court is always reasonable compensation for the work done.</p> <p>4. -: Trustee Held not Bound by Agreement of Testator as to Compensation. A letter to testator from trust company in regard to compensation charged for handling property could be considered a contract fixing compensation of such trust company and an individual co-trustee nominated by the will to act with the trust company, applying to the trust company glone.</p> <p>5. -: Courts Should See that Reasonable Care is Exercised by a Trustee to Keep Expenses within Bounds. The court should scrutinize with care all items in the account of a trustee under a will, and, while the allowances should always be fair and reasonable, it should see that reasonable care is used by the trustee to keep expenses within proper bounds.</p> <p>6. -: Trustee of Estate Held Entitled to Certain Attorney’s Fees. A trust company, as trustee under a will, was not entitled to an attorney’s fee in partition proceedings by widow of testator, where it was appointed guardian ad litem of the beneficiaries, who were minors, and the attorney acted as attorney for it in both capacities, such guardian ad litem being allowed a compensation of $750 which of necessity included legal advice and services of an attorney; there being no controversy between the minors and trust company.</p>

Circuit Court of Wayne County. — Hon. E. M. Bearing, Judge. (1) The petition alleges as the grounds of negligence that appellant negligently failed to thoroughly cleanse the tank of gasoline and gasoline vapor, but that it only pretended to cleanse the same of all gasoline and gasoline vapor, and carelessly and negligently left sufficient gasdline therein to form an explosive vapor or gas.

<p>1. BAILBOADS: Negligence in Maintaining Crossing Held for Jury. evidence that at a highway crossing, which had been maintained for years, a railroad company tore out the boards on either side of rails and raised the track several inches, and did not replace the boards or raise the ground between the rails to the level of the ties, warranted a finding that it failed in its duty to maintain the the crossing in a proper condition as required by statute, and authorized the submission of the issue of the. company’s negligence to the jury.</p> <p>2. -: Contributory Negligence of Driver of Automobile Stalled, Held for Jury. Where an automobile driver at a crossing where gates were maintained and the rails had been raised above the level of the ground stopped between the gate and the track and he and those with him looked both ways before starting to cross, but his engine stalled when the wheels dropped over the rail and he was struck by a train, which because of a curve could have been seen for only about-32 seconds before the collision, a demurrer to the evidence on the ground of contributory negligence was properly overruled.</p> <p>3. DEATH: Instruction on Damages Held Erroneous, Because not Qualified. Under Revised Statutes 1919, Section 4219, providing that in actions for death under section 4218, the jury may give such damages not exceeding $10,000 as they may deem fair, an instruction to assess a minor son’s damages for the death of his father at a sum not more than $10,000 as the jury might see proper, without further qualification, was erroneous, as the jury might well think that they had a right to take into consideration elements of loss for which there can be no recovery. .</p> <p>4. -: Damages to Surviving Child Limited to Pecuniary Loss. In a minor child’s action for the death of his father under Revised Statutes 1919, sections 4218, 4219, he could recover only the pecuniary value of what would have flown to him from his father had he not been killed.</p> <p>5. ' -: Action for Death at Defective Crossing not Maintainable Under Statute Relative to Negligent Management. An action for the death of one struck by a train at a crossing in which liability was not predicated on the negligent management of the train, but on the failure to properly construct and maintain the crossing, could only be maintained under Revised Statutes 1919, sections 4218, 4219, and not under section 4217, relative to death resulting from negligence, etc., in running, conducting or managing any locomotive, car, etc.</p> <p>6. RAILROADS: Instruction on Negligence Held Defective. In an action for death at a railway crossing, an instruction for plaintiff, which merely declared the law concerning crossings, should have ended with the statement that, “if the jury found defendant had failed in its duty, it would be guilty of negligence.”</p> <p>7. -: Instruction on Duty of Traveler Necessary. In an action for the death of a person struct, by a train at a railway crossing, an instruction as to the duty of one approaching a railroad track should have been given.</p>

<p>1. JUSTICES OF THE PEACE: Complaint Against Railroad For Double Damages for Killing Animals Must Show Place of Injury. The requirement of Revised Statutes 1919, section 2722, that cases brought before a justice of the peace for the killing of animals on a railroad track shall be brought before a justice of the peace in the township where the injury occurred, or in an adjoining township in the county, is jurisdictional and must be pleaded and proven in a suit under section 9948 for double damages.</p> <p>2. RAILROADS: Evidence Held Insufficient to Show Killing of Mule by Train. Testimony in action for double damages under Revised Statutes 1919, section 9948, held insufficient to show that plaintiff’s mule was killed by defendant’s train.</p>

— Hon. 0. 8. Barton, Special Judge. (1) The provision to pay $1000 if the Vogy lease was extended, was, and is a true precedent condition, and the acceptance by the corporation of a lease on the Vogy chats, after refusal of the American Lead & Zinc Company to extend the lease containing different rentals, and for shorter time (in the absence of a new contract of waiver on sufficient consideration) is not the happening of the uncertain event, which conditions plaintiff’s…

— Eon. W. 8. C. Walker, Judge. (1) (a) It was admitted, and it was plaintiff’s theory undenied, that, the deceased (1) habitually used opiates, and (2) had come to his death by accident but by his own hand or act. Such being the case the certificate was forfeited by virtue of provision 4 on the back of the certificate and the fourth division of section sixty of- the Constitution and Laws of the order. Castens v. Knights & Ladies of Honor, 190 Mo.

<p>1. APPEALS: Appeal Without Bond: Supersedeas: Funds in Hands of Clerk: Appeal did not Operate as Supersedeas. An appeal by an interpleader without bond did not operate as a supersedeas, though the funds were in the hands of the clerk as custodia leáis, in view of section 1473, Revised Statutes 1919; the judgment being that one of the defendants was entitled to the fund theretofore paid into the registry of the court, and that the other defendants take nothing by their respective interpleas, and that the successful defendant recover of the other defendants the costs of the proceeding.</p> <p>2. INTERPLEADER: Costs: Judgments: Valid Against Interpleader. In an interpleader’s suit by an insurance company against the claimants of the proceeds of a policy judgment having been rendered in favor of one of the defendants, the. judgment for costs was properly rendered against the other defendants rather than against the deposited fund, the rule being that the successful claimant to a fund which has been placed into court on a bill of interpleader shall not suffer the costs of the litigation in the end. v</p> <p>3. APPEALS: Appeal Bonds: Must be Given in Time: Authority of Trial Court to Approve. Where an insufficient or informal bond has been seasonably given, same may be supplied or corrected in the appellate court, but neither the appellate court nor the circuit court in which the judgment was rendered has authority to take and approve an appeal bond when none was given in time in the trial court, and where no appeal bond was given in time, no supersedeas can operate, because section 1473, Revised Statutes 1919, does not except this class of cases from its compelling language that a supersedeas will not lie unless a bond is given, as therein provided.</p> <p>4. -: Ri|ght of Appeal: Statutory. The right of appeal is purely statutory.</p> <p>5. - — : -■: Order Striking Motion in Arrest From Files: Not Appealable. An order of the circuit court striking from the files a motion made after an appeal had been perfected seeking to arrest a prior term judgment and vacating and setting aside its approval of an appeal bond given and approved out of time, was not such an order or judgment that may be appealed from, as enumerated in section 1469, Revised Statutes 1919, not being such a special order after final judgment as is contemplated by the statute.</p> <p>6. -: Jurisdiction: Appeal Granted: Jurisdiction Transferred to Appellate Court. When the circuit court grants an appeal, its jurisdiction in that case is transferred to the appellate court, and the exercise of all other judicial functions is arrested, in so far as the trial court is concerned, whether a bond be filed or not.</p> <p>7. -: Right of Appeal: Motions: No Appeal Ides from Rulings on Motions in Absence of Statute. In the absence of an express ■ statute, no appeal lies from the ruling of courts on motions.</p>

Louis. —Hon. Moses Hartman, Judge. (1) Where it does not appear either from the pleadings or evidence that the agent stands in the position of assignee or successor to the insurance company, or stands subrogated to it, an agent cannot recover from the insured for any pr.emiums advanced by him.

— Eon. Edgar B. Woolf oik, Judge. (1) The trial court erred in refusing defendant’s peremptory instructions offered at the close of plantiff’s evidence, and at the close.of all the evidence, for the reason that plaintiff made out no case of actionable negligence against defendant. Reeves v. Railroad, 251 Mo. 169-176; American Brewing Ass’n v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 620; Stone v. Railroad, 171 Mass. 536; Starkey v. Greenville, 189 Mo. App. 352.

<p>1. CORPORATIONS: Private: Sale of Original Capital Stock: Agreement to Repurchase Void. A business corporation cannot make a valid agreement on the sale of and subscription to its original capital stock to repurchase such stock at any time such original purchaser desires to have it do so.</p> <p>2. -: -: Power to Buy and Sell its own Stock; Exceptions. Where a corporation buys in its stock for the purpose of saving a debt and with a view of reissuing the same, or under circumstances where the transaction is fair on its face, is not tainted with fraud, and is clearly to the interest of the corporation, the transaction will be upheld, unless prohibited by its charter.</p> <p>3. -: -: -: -: Agreement to Repurchase from Employee: Substitution of Stock by Officers: Cannot Recover as for Money Had and Received. • Where plaintiff entered into a contract with a corporation whereby he was employed upon his purchasing certain shares of stock of the corporation, with the right reserved in plaintiff within six months after the date of his entering such employment to resign and return the stock, whereupon the corporation would repay him the purchase money, and was told by an officer of the corporation to make checks in payment for such stock to him, which he did, and accepted a receipt therefor signed by such officer as an individual and not signed by the corporation, and the certificates he received were in the name of officers indorsed in blank, he was put upon inquiry as to whether or not he was in fact dealing with the corporation and buying treasury stock from it, and held in view of the fact that the treasury • of the corporation did not receive any of the purchase price paid by plaintiff for the stock the plaintiff could not recover in an action against the corporation as for money had and received, because to permit such recovery would but in effect, be doing by indirection that which cannot be done directly, namely, permit the defendant corporation to purchase its own stock when, as a result of such purchase, the capital stock of the corporation would be diminished in the amount that the corporation paid therefor.</p>

<p>Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.</p>

<p>1. SLANDER: Corporations: Petition Against Corporation and Its President for Slander, Held to State a Cause of Action. In an action for slander against a corporation and its president, a petition which., alleged that one uttering slander was employed by defendant to confront and accuse plaintiff of theft, that in making the statement he acted within the scope of his employment, and that defendants ratified his acts in so doing stated a cause of action against defendants, although petition did not make such person a party to the suit.</p> <p>2. -: -: Parties: A Corporation May Slander. It is now well established there may be slander by a corporation.</p> <p>3. -: -- — : Master and Servant: Employee Uttering Slander, as Such, Cannot be Made Party in an Action Against His Employer, the Employee Being Liable for His Own Slander. Where one was. employed to confront and accuse plaintiff of stealing goods from defendants, he cannot be made a party in an action against his employer, the defendant, for slander, as he would not be liable for employer’s slander, but only for his own.</p> <p>4. -: Publication: Slanderous Words May be Spoken to and Not of Plaintiff When Other Persons are Present and Hear Words Spoken. There is sufficient publication of a slander, where the slanderous words are overheard solely by the defendant, and his agents, in the slander, in the face of the defendants’ contention that under plaintiff’s petition the defendant and his agents are-one.</p> <p>5. -: Slander Per Se: Where Words Used Charge Another With Being a Thief They Are Slanderous Per Se. Where the plaintiff is accused by the defendant and his agents of being a thief, the words used are slanderous per se.</p> <p>6. -: Pleading: Not Necessary to Allege in Petition That Defendant Knew Words to be False and Untrue. A petition in slander need not state that the person speaking the slanderous words knew them to be false and untrue, as an honest belief in the truth of the charges is no defense to an action of this kind.</p> <p>7. -: Agency: Sufficient Evidence to Support Allegation That Defendant Employed Agent to “Confront and Accuse Plaintiff’’ of Being a Thief. Where the plaintiff’s evidence showed that the defendant called plaintiff into a room where he was confronted by two agents of the defendant, who accused plaintiff of being a thief, and when plaintiff appealed to defendant, the defendant himself, continued the accusation, held, there was sufficient evidence to support an allegation in petition that the agents were employed to confront and accuse plaintiff of being a thief.</p> <p>8. -: Parties: Joinder: Slander by Agent: Publication Can be the Joint Act of Two or more Persons in Slander Only When There is Agency Between Them. Although publication in slander cannot be the joint act of two or more persons, yet where a person commits a slander acting as the agent of two persons, they are both liable for the utterances of their agents.</p> <p>9. -: Instructions: An Instruction Which Assumes an Unnecessary Burden is Not Erroneous. An instruction which varies from the petition, in that the former uses the language, “confront and interview,” and the latter, “confront and accuse,” is not erroneous because the jury is asked in the remainder thereof to find facts which show that the defendants ratified the acts of their agents, and, therefore, the statement in the instruction that the defendants employed another to confront and interview plaintiff was an unnecessary burden assumed by the plaintiff.</p> <p>10. -: -: Malice: Instruction Defining Elements of Malice, Held Proper. An instruction defining malice is not erroneous which says that malice may be inferred from the fact that the words uttered were false and untrue, and were uttered knowingly and intentionally, and without legal justification and excuse.</p> <p>11. -: -: Instruction Authorizing Jury to Disregard Statement if Given Under Coercion or Duress Was Not Erroneous as Being a Comment on Evidence. An instruction for plaintiff telling jury to disregard signed statement of plaintiff, if-they find it was given under coercion and duress is not a comment on the evidence where an instruction given for the defendant is the converse of the instruction complained of, and if there is any error in plaintiff’s instruction, it was joined in by defendants’ instruction.</p> <p>12. -: -: An Instruction Which Requires Plaintiff to Prove Substantially the Words Charged is Not Erroneous Even if Court ' Adds Other Words Which do Not Change Meaning of Instruction. There is no error in an instruction which reads that plaintiff is required to prove substantially the words charged, and that proving words of similar import to those charged is not sufficient, • even though the court adds a few words which do not substantially change the meaning of the instruction.</p> <p>13. -: -: An Instruction Which Places the Burden on Plaintiff of Proving Justification or the Truth of the Words Charged to Have Been Slanderous is Misleading as Such Burden is on the Defendant. The burden of proving justification or truth of the words charged in an action for slander is on the defendant.</p> <p>14. —--: Trial: Weight of the Evidence: Weight of the Evidence for Jury and Trial Court. The weight of the evidence is for the jury and the trial court and not for the appellate court.</p>

<p>1. ACTION'S: Insurance: Injunction: Civil Courts Will Not Require an Unreasonable or Useless Act to be Done Before Reviewing Finding of Judicatory, of Benefit Society. Under the Constitution and by-laws of the Brotherhood of American Yeomen, a fraternal benefit society, a judicatory is created to hear altercations between members, and which has the power to discipline members for infraction of rules or misconduct, and where the contention of the defendant' is that the plaintiff must exhaust this form of procedure in determining the question of member’^ misconduct before a court of equity will take jurisdiction, it is held, that the rule is not an iron clad one, and that the courts will not require an’ unreasonable or useless act to be done before hearing case.</p> <p>2. MUTUAL BENEFIT SOCIETIES: Constitution and By-Laws: Effect: Proceedings by Judicature of Mutual Benefit Societies, in Good Faith, Pursuant to Its Own Laws and Not in Violation of the Laws of the Land, Conclusive. The decisions of a judicature of a voluntary society in disciplining members will not be interfered with by courts, except to determine whether proceedings were in good faith, pursuant to the laws and rules of the society, and not in contravention of the laws of the land.</p> <p>3. -: Courts: Courts Have no Jurisdiction Over Voluntary Associations Except to Protect Property Rights. Courts will not interpose between voluntary associations and members except to protect a property right of the member.</p> <p>4. -: Injunction: Evidence: Must be an Actual or Threatened Interference With the Property Right of the Member Before an Injunction Will be Granted. Where there is no positive proof of record that the board of directors of the mutual benefit society were acting in other than a fair and impartial manner in investigating the charges against the plaintiff, an injunction will not be granted, as the member has an adequate remedy at law under the by-laws of the society.</p> <p>5. -: Actions: Res Adjudicata: Dismissal by Plaintiff of Temporary Injunction, Not Res Adjudicata to Suit on Same Facts Later. Where plaintiff upon filing petition obtained issuance of temporary restraining order, and defendant filed an answer and motion to dissolve restraining order, and thereupon plaintiff dismissed his cause and a judgment is so entered, held, not res adjudicata to a suit brought later in another county, on the same statement of facts as those on which the first injunction was asked.</p>

<p>1. PLEADING: Actions: Demurrer: Misjoinder: Wlietlxer Joinder oí Cause of Action on a Contract and One on Quantum Meruit is Improper Depends on Particular Circumstances. Where a petition sets out two causes of action, one count on an express contract and one on quantum meruit, whether there is misjoinder will depend on the elements of each individual case.</p> <p>2. -: -: -: -: Action for Breach of Uncompleted Contract, May be Joined With One on Quantum Meruit. Where a petition sets out two causes of action, one count alleging a failure to perform a contract on the part of the defendant, and the second count asking for a return of money paid to the defendant, held,, not inconsistent with each other and that such counts could be joined.</p> <p>3. DAMAGES: Measure: Contracts: Measure of Damages for Breach of Contract is Loss Sustained. The measure of damages for the breach of a covenant is the loss sustained by the injured party.</p> <p>4. CONTRACTS: Performance: Pleading: Cause of Action: Under an Agreement to Convey Land, Tender of Performance not Necessary Where There is Readiness, Willingness and Ability to Perform. Where in a contract to convey realty, there are mutual covenants, before the vendor can declare the vendee in default, he must be ready, able and willing to perform, himself, and where it is pleaded by the vendee, that he was ready, able and willing to perform, and actual performance has been prevented or expressly waived by the vendor, a good cause of action is stated.</p> <p>5. TRIAL: Instruction: Instruction for Plaintiff Held not Inconsistent with Instructions for Defendant. Where the covenants were mutual, an instruction for plaintiff which told the jury that they should find for plaintiff, if under the evidence, the plaintiff was ready, able and willing to pay cash balance, provided defendant had delivered to plaintiff the abstract of title, and'a warranty deed to the property, is not inconsistent with an instruction for the de< fendant telling the jury, that the defendant was under no obligation to furnish an abstract of title, until the plaintiff was ready, able and willing to pay the balance of the purchase price.</p> <p>6. -: -: Instruction as to Waiver of Date of Performance not Inconsistent with Plaintiff’s Instructions. An instruction, leaving the matter of waiver of the date of performance to the jury, is not inconsistent with an instruction telling the jury to find for the plaintiff, if at the time of performance he was ready, able and willing’to pay the balance of the purchase price, provided defendant deliver to plaintiff abstract of title and warranty deed, as the question of waiver of date of performance is solely a matter for the jury’s determination.</p> <p>7..-: Words and Phrases: “Merchantable Title’’ not a Technical Phrase and It is not Error to Fail to Define Same for Jury. The term “merchantable title” is not a technical phrase and it is not error to fail to define the term to the jury.</p> <p>8. -: -: Where the Question as to Whether Title was Merchantable was not an Issue Before the Jury, There Was no Error in Failing to Define Phrase “Merchantable Title.’’ Where it was admitted that there were two deeds of trust against the property-in question, it may be concluded that a merchantable title was not-tendered, and the question as to whether title was merchantable was not an issue before the jury, and there was no error in failing to define the phrase.</p> <p>9. -: Argument to Jury: Argument of Plaintiff’s Attorney to Jury Held not Objectionable Under His Theory of the Case. Where the plaintiff tried his case on the theory that there has been a failure to perform a contract to convey realty on the part of the defendant, there was no error in refusing to sustain defendant’s objection to the argument of plaintiff’s attorney that there had been a default on the part of the defendant, as plaintiff’s theory was supported by substantial evidence.</p> <p>10. VERDICTS: Actions: A General Verdict on One Count and Failure to Return Verdict on Other Count is Not Error, Where Two Counts Arose Out of Same Transaction. Where a petition is in two counts, both growing out of the same transaction, one on express contract and one on quantum meruit, and the jury returns a verdict on one count only, it is equivalent to a verdict for the opposing litigant on the other count, and the failure of jury to return a verdict on the other count is not error, though such general verdict would have been erroneous, if the causes of action were different.</p>

<p>1. APPEAL AND ERROR: New Trial: Motion for New Trial, Granted Without Reasons Stated, Assumed to he on Ground Verdict was Against Weight of Evidence. Where one of the grounds for new trial set forth in the motion was that verdict was against weight of evidence, that will be assumed to be the reason for the granting of the motion, the court having failed to assign a reason for granting the new trial.</p> <p>2. -: -: Trial Court May Grant One New Trial to Each Party: Appellate Court Will Not Disturb, Unless Clearly Contrary to the Evidence. The granting oí a new trial By the trial court will in no case be disturbed by the appellate court unless the evidence is such that no verdict in favor of the party to whom a new trial is granted would be allowed to stand.</p> <p>S. -: Weight of Evidence: Weight of Evidence Exclusively for Trial Court. Weight of the evidence is exclusively within the province of the trial court.</p> <p>4. Chattel Mortgage: Usury: Liens: Chattel Mortgage, Securing Usurious Loan, Void. A chattel mortgage given to secure,a loan for which a usurious rate of interest is charged is void under section 6496, Revised Statutes 1919.</p> <p>5. USURY: Promissory Note: Loan: Whether Transaction is Usurious, Question for Jury. Where a note for $18 was given at the same time a loan was procured for a larger amount, and the $18 if it were interest would have constituted the loan a usurious one, the question as to whether the $18 note was a part of the transaction is a question for the jury.</p> <p>6. -: -: -: Note Given for Separate Service Does not Make Loan Made at Same Time Usurious. An $18 note given as collateral, to secure a loan for which the full legal rate of interest was exacted, does not make the loan usurious if the $18 note was given for a separate service, and not for making loan.</p> <p>7. PAWNBROKERS: Statutes: Construction: No License Required UnCasey Act Where Money Loaned, Secured by Liens on Chattel, is at Legal Rate of Interest. The Casey Act, (Sec. 8811, R. S. 1919), requiring a license, in cities of a certain size, and declaring that any person who, either as principal or agent, engages in the business of lending money and taking as security a lien upon personal chattels, is engaged in the chattel loan business, is modified • by section 8810, Revised Statutes 1919, and applies only to persons or agents lending money for more than legal rate of interest.</p> <p>8 USURY: Statutes: Usurious Rate of Interest Does Not Invalidate Promissory Note. A rate of interest which is usurious does not invalidate a promissory note, it being valid under section 6496, Revised Statutes 1919, for the principal and legal rate of interest, although the security is void.</p> <p>9. EVIDENCE: Appeal and Error: Trial Court to Determine Whether Undisputed Evidence Should be Believed. Where the evidence is undisputed, the belief to be given it, is for the jury, not for the appellate court.</p> <p>10. APPEAL AND ERROR: New Trial: Failure to Specify Reasons for Granting New Trial Not Reversible Error. Where the trial court grants p new trial without specifying reasons, as required by section 1454, Revised Statutes 1919, while a violation of duty, does not constitute reversible error.</p> <p>11. REPLEVIN: Possession: Possession by Defendant Essential in Replevin and Determined by Reference to Time Action is Instituted. Possession by the defendant is a necessary requisite to the commencement of a replevin suit and is determined by reference to the time the action is instituted, not by reference to the time the writ is served.</p> <p>12. PROCESS: Pleading: Sheriff’s Return Showing Possession and Defendant’s Answer Admitting Same,- Conclusive as to Defendant on Question of Possession. Where the sheriff’s return showed, and the defendant’s answer admitted possession, the proof is conclusive on defendant.</p> <p>13. CHATTEL MORTGAGES: Replevin: Chattel Mortgagee, Condition Having Been Broken, can Take Possession or Replevin the Mortgaged Property Wherever he May Find it. The owner of a chattel mortgage after condition broken may replevin the mortgaged property or take possession of it wherever he may find it as his own property.</p> <p>14. REPLEVIN: Inconsistent Defense: A Defense on the Theory that Defendant Did Not Have Possession of Property is Inconsistent With a Demand by Defendant for Judgment for Return of Property or Its Value. It would be inconsistent for defendant, after demanding a judgment for the return of mortgaged property, or value thereof, to predicate a defense upon want of possession of the property in him at the time of the commencement of suit, as the mortgagee, after condition broken, was entitled to take possession or replevin mortgaged property wherever found.</p>

<p>1. MUNICIPAL CORPORATIONS: Eminent Domain: Charter: Benefit District: Under Charter of City, it is Unnecessary to Particularly Describe Property Not Taken, but Damaged. Where the Charter of the City of Kansas City, Required condemnation ordinance to separately describe the property to be purchased, taken or damaged, and there was no description in the ordinance of certain lands which were not actually taken, but which were damaged by the taking of part of what had formerly been their whole, the. city was not required to describe the part not taken, for the damage thereto was a mere incident to the damage to the part taken, and such damage should be assessed by the jury; hence a property owner against whom benefits are assessed cannot attack judgment assessing such damage on the theory that there was an insufficient description of the property damaged.</p> <p>2. -: -- — : Condemnation Proceedings: Injunction: Plaintiffs Barred by Judgment in Condemnation Proceeding Against CoUection of Assessment. Where plaintiffs were served with publication in condemnation proceedings, and stood by and made no objection until after the property had been taken, damaged and paid for, they cannot later escape the burden imposed on them, for the benefits accruing to them therefrom, on the ground that the property damaged, but not actually taken, was not sufficiently described.</p>

<p>DRAINAGE DISTRICTS: Quasi Public Corporations: Negligence: Drainage Districts are not Private Corporations, but QuasLPublic Corporations, Classified with Counties, and are out Only Liable for Negligence in Construction of Public Bridges Where Made so by Statute. Drainage districts incorporated under Laws of 1918 are not private corporations, but gitasi-public corporations and governmental agencies, constituting political subdivisions of the state, and are to be classified with counties and road and school districts, hence an action for damages for injuries sustained by plaintiff on account of defective condition of a temporary bridge erected by defendant across a road, as required by Section 4406, Revised Statutes 1919, providing that the district shall construct bridges, cannot be maintained as no cause of action is given by such section, or under general statutes, for damages for the negligent failure to so construct, or its negligence in maintaining a defective bridge constructed by others.</p>

<p>1 SALES: Damages: For Refusal of Buyer to Accept Flour, Measure of Damages Difference Between Contract Price and. Price Realized by Sale to Others. Where seller ground all wheat to which it was entitled under government war-time regulations, and sold the same to others, and buyer refused to accept flour for manufacture, the measure of damages was not the difference between contract price and what it would cost to manufacture and deliver the flour, but the difference between contract price and the price at which the seller sold flour to others.</p> <p>2. Damages: Where Plaintiff Failed to Show What its Damages Were under Proper Measure of Damages it Was Entitled to Recover Only Nominal Damages. In an action for damages for refusal of buyer to accept goods sold, the plaintiff not having shown what its damages were, under the proper measure of damages, was entitled to nominal damages.</p>

<p>1 INSURANCE: “Paid up” and “Extended Insurance” as Provided by Section 6154, Revised Statutes 1919, defined. Section 6154, Revised Statutes 1919, providing that where three annual premiums have been paid on a policy of life insurance, the holder shall be entitled to “paid-up or extended insurance,” contemplates two different classes of insurance; “paid-up insurance” refers to insurance for the life of the insured upon which all premiums have been paid, and “extended insurance” defined as insurance for the full amount of the policy for the period contemplated by nonforfeiture table. ,</p> <p>2. -: Forfeiture: Courts are Careful to Prevent Avoidance of Statutory Provisions Relative to Nonforfeiture. The courts maintain watchful care over policies of life insurance to prevent avoidance of the statutory provisions relative to nonforfeiture.</p> <p>3. -: A Clause in a Policy of Life Insurance Modifying and Limiting the Eight of Policy-Holder in Selection of Options is in Contravention of Statute. A policy of life insurance which provided that upon default after three annual premiums, the insured should have the choice of a cash surrender value, paid-up insurance or extended insurance, but required certain acts on the part of the insured as conditions precedent to the granting of either option, and further that if no choice was made, the option of continuing the policy for the stipulated amount of paid-up insurance should become effective without action on the part of the insured, was in contravention of the intent of sections 6151 and 6153, Revised Statutes 1919, relative to non-forfeiture after payment of three annual premiums and providing for temporary insurance for the full amount of the policy; Section 6154, Revised Statutes 1919, excepting policies providing for an unconditional surrender value, at least equal to the net single premium, for temporary insurance provided for in the preceding sections or for unconditional commutation of the policy for nonforfeitable paid-up insurance, does not apply as it is well settled that a provision that a policy will automatically become “paid-up” under any contingency or limitation is not in any sense the same as a provision for an unconditional commutation into a non-forfeitable paid-up policy.</p> <p>4. -: Upon Default of Insurer to Fay Installments as Prescribed in Policy the Full Amount Thereof Becomes Due and Payable. Where a life insurance policy is payable in monthly installments, and the insurer makes default in payment thereof as prescribed in the contract, the insurer is liable for full amount regardless of time and terms on which contract, if kept and observed, would have entitled it to make payment, as the law frowns upon a multiplicity of cases where one action will suffice.</p>

<p>1. Injunctions: Damages: Counsel Fees Recoverable on Injunction Bond, as Damages Incident to Restraint Occasioned by Issuance of Injunction. Counsel fees incurred in procuring the dissolution of an injunction improperly or wrongfully issued are recoverable on an injunction bond as part of the damages incident to the restraint imposed, if occasioned by reason of issuance of injunction, but where injunction is merely ancillary to the principal relief sought by the bill, and its dissolution is only incidental to the defense made, and the counsel fees are incurred in defending suit generally, they cannot be assessed as damages.</p> <p>2. -: -: Attorneys Fees Should be Assessed on Bond, Whether Trial was Held on Motion to Dissolve or on Answer, as it Was Necessary to go Into the Whole Case Before Dissolution Could, be Had. Where the object of the suit was to enjoin enforcement of libel judgment and to ájmul same, attorney’s fees sh'ould be assessed as damages on the bond, and whether trial was had on a motion to dissolve, or on the answer, made no difference for in either event the whole case would have had to be gone into before injunction could be gotten rid of.</p> <p>3. -: -: Judgment Creditor Entitled to Recover Attorneys Fees on Bond as Damages Incident to Restraint Imposed by Injunction. Where attorneys had been employed on a contingent basis to prosecute suit. for damages against a corporation for libel and obtained a judgment, the judgment creditor’s contract • with his attorneys in the libel suit did not cover the contingency of some other entity attacking the validity of the judgment after it was obtained and had become final, and he was entitled to recover on the injunction bond, as damages incident to the restraint imposed, fees paid such attorneys in protecting the judgment in an injunction suit brought by another corporation to restrain enforcement of the judgment though the attorneys were also protecting their own interest in the judgment under their contingent contract.</p> <p>4. -: -: Where Defendant had Legally Obligated Himself to Pay Attorneys Fees he Was Entitled to Recover Same as Damages on an Injunction Bond, Though He Had Not Actually Paid the Same. Actual payment by defendant of attorney’s fees in injunction suit is not absolutely essential to a recovery thereof as damages on injunction bond; it being sufficient if there is a legal liability to pay them.</p> <p>5. APPEAL AND ERROR: No Allowance of Attorney’s Pees as Damages on Injunction Bond Can be Made in Trial Court for Services on Appeal, and in the Absence of Anything Showing Trial Court Included Improper Damages, the Presumption is That Such Damages Were Not Included in the Allowance. In a proceeding upon an injunction bond for the assessment of damages, where no claim was made that an allowance of attorney’s fees were excessive or unreasonable and there was evidence to support the allowance for services rendered in the circuit court, the record not showing that an allowance was made for services to be rendered on appeal in the injunction suit, it will be presumed on appeal, in the absence of anything to indicate the contrary, that the trial court did not include fees for services on appeal, which were not properly allowable, though there was some evidence as to the value of attorney's services to be rendered on appeal.</p>

<p>Appeal from the Circuit Court of Jackson County.— Hon. Allen C. Southern, Judge.</p>

<p>1. CORPORATIONS: Officers: Misapplication of Corporate Funds: Statute: Retroactive Operation. Section 996, Revised Statutes 1919, defining liability of persons collecting checks in payment of debts, etc., does not affect a case wherein the facts occurred prior to the passage of the act.</p> <p>2. BANKRUPTCY: Suits by Trustees: Following Misapplied Corporate Funds: Conversion of Deposits: Evidence: Bank Without Knowledge: No Liability. In an action by a trustee of a bankrupt corporation against a bank, seeking to recover 'money alleged to have been received by the bank at various times in various amounts, which money consisted of checks drawn on the funds of the corporation by its president and deposited in the bank in his individual name, facts and circumstances held to justify the referee in holding that the bank had neither actual nor constructive knowledge of the conversion or misappropriation of the deposits so made.</p> <p>3. BANKS AND BANKING: Corporations: Officers: Drawing Checks on Corporate Funds: Deposits in Individual Account: Conversion: Liability of Bank. A bank, in the ordinary course of business. without any actual knowledge of conversion or without any further constructive or implied knowledge than the mere fact that a check drawn by an officer of a corporation on its funds is deposited in his individual account, does not become liable if it turns out that such deposit is a step in the conversion of the corporation’s funds.</p> <p>4. -: -: -: -: -: Bank Without Notice: Not Required to Determine How Proceeds are Applied. Where the president of a corporation drew checks on its funds and deposited them with a bank to his individual account, while the bank could not receive and keep any of such funds in payment of a personal debt of the president to the bank without becoming liable, yet, where the bank had no notice, either actual or implied, that such deposits were a step in the conversion of the corporate funds by its president, it is not liable if it fails to determine that the proceeds of such cheeks deposited are properly applied to the affairs of the corporation.</p>

<p>1. JUSTICES OF THE PEACE: Statement: Negligence: Common Law Liability: Sufficiency. In an action against a railroad company to recover damages alleged to have been sustained on a shipment of tomatoes, statement filed in the justice court that damages were suffered “as a , result of defendant’s negligence in shipping,” held not to preclude plaintiff from recovering upon the common-law liability of the carrier as an insurer, inasmuch as the statement does not plead a specific act of negligence; the words “as a result of defendants negligence” merely stating a conclusion of the pleader.</p> <p>2. -: -: Pleading: Technical Rules not Applicable. Technical rules of pleading are wholly inapplicable in a justice court.</p> <p>3 EVIDENCE: Execution of Bill of Lading: Proof Sufficient. In an action against a railroad company to recover damages alleged to have been sustained on a shipment of tomatoes, evidence held sufficient to show the execution of a bill of lading so as to warrant its admission in evidence.</p> <p>4. COMMON CARRIERS: Freight: Delivery: Presumptions: Burden of Proof. In an action against a terminal carrier to recover damages alleged to have been sustained on a shipment of tomatoes, the burden was on the plaintiff to show that the tomatoes, when delivered to the initial carrier, were in good condition, in order that the presumption of injury in the hands of defendant, the terminal carrier, should attach by proof of delivery in damaged condition.</p> <p>5. -:-:-: Recitals in Bill of Lading: Prima-facie Evidence Against Carrier Issuing it: Not Against Terminal Carrier. The recital in the bill of lading which receipted for tomatoes “in apparent good order (contents, inward condition, and value unknown),” was an acknowledgement of the good order of the external apparent condition of the goods and prima-facie evidence against the carrier who issued it, but such recitals were not binding upon the terminal carrier not a party to the bill of lading, hence such terminal carrier having accepted the shipment for transportation under said bill of lading, was bound by it only so far as it was a contract for carrying; the statement of the condition of the tomatoes in the bill of lading constituted no part of the contract.</p>

Louis. —lion. Benj. J. Klene, Judge. (1) When a contract creating a relation between the parties thereto, terminating at a fixed time, contains a provision giving one of the parties an option to renew the relation for a further period, such option expires with the time fixed by the contract for that relation in the first instance and cannot be exercised thereafter.

Louis. —Hon. J. Hugo Grimm, Judge. (1) The demurrer to the evidence should have been sustained for the reason that there was such a breach of warranty as materially affected the risk. As a matter of law, such a warranty voids a policy. Earner v. American Central Ins. Co., 70 Mo. App. 47; Hollenbeck v. Insurance Co., 133 Mo. App. 57; Cagle v. Insurance Co., 78 Mo. App. 215; Batchelor v. Insurance Co., 65 Mo. 255.

— Hon. E. 8. Gantt, Judge. (1) Plaintiffs declare on an express contract and cannot recover on an implied contract. Lewis v. Slack, 27 Mo. App. 119; Egerman v. Mt. Sini, 61 Mo. 489. (2) A request is essential in all cases of contract.. Plaintiffs cannot recover for voluntary services. Heimenz v. G-oerger, 51 Mo. App. 586; Ballentine & Boone v. Mercer, 130 Mo. App. 605; Allen’s Admx. v. Richmond College, 41 Mo. 309.

<p>1. RAILROADS: Suburban Electric: Work Car: Automobiles: Collision: Obstructed View: Contributory Negligence: Recovery Barred. Plaintiff, familiar with the location of a dangerous highway-crossing over the tracks of an electric railway company, and knew of the location and proximity of obstructions near the track, yet drove along at 10 miles an hour until she came into the open view of the track 17 feet from the rail, or within 15 feet of the danger zone, without having the automobile put in such gear or under such control with reference to speed that same could have been stopped before reaching the rail, where the machine was struck by a projection on the side of a work car, held plaintiff was guilty of such contributory negligence, as a matter of law, as to preclude her right to recover on any of her charges as for primary negligence.</p> <p>2. -: -: -: -: -: Negligence: Humanitarian Doctrine: Evidence: Sufficiency. In an action for damages for personal injuries against a suburban electric railway company caused by a work car of defendant striking an automobile which plaintiff was driving at a country highway crossing, evidence as to the speed of the car at the time the motorman began applying the brakes or putting on the reverse lever, and the distance in wbicb tbe car could bave been stopped and tbe collision avoided, re. viewed and held under sucb state of facts tbe court properly submitted tbe case to tbe jury under tbe humanitarian or last clear cbance doctrine.</p> <p>3. NEGLIGENCE: Work Car Striking' Automobile: Humanitarian Doctrine: Case for the Jury. In an action for damages for personal injuries against a suburban electric railway company caused by a work car striking an automobile, plaintiff’s evidence held to establish tbe fact that tbe automobile bad stopped and that defendant’s car struck tbe automobile causing tbe injury.</p>

Louis. —Hon. M. Hartmann, Judge. The action of the trial court in setting aside the verdict of a jury was erroneous, because the testimony introduced showed that plaintiff was’ not entitled to recover as‘a matter of law.

Louis. —Hon. Victor H. Falkenhainer, Judge. (1) The court erred in giving’ plaintiff’s Instruction No. 2 for the reason it narrowed the .issues, in that plaintiff’s petition counted upon the theory that defendant’s duty to plaintiff was created by a contract between plaintiff and defendant to carry plaintiff as a passenger, and that this duty was violated by the act of the conductor in striking at plaintiff with a metal conductor’s punch while plaintiff was in a position of…

Louis County.— Hon. G. A. Wurcleman, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence, for the reason that the plaintiff Marie Flach was herself guilty of contributory negligence • as a matter of law. Keele v. Railroad, 258 Mo. 62; Lowry v. Smith, 199 S. W. 437; Ginter v. O’Donoghue, 179 S. W. 732. (2) The court erred in giving plaintiff’s instruction No. 1 authorizing a finding against the defendant.

<p>1. DIVORCE: Alimony Allowance: Decree Entered by Stipulation: Court Can Modify. Whilst an agreement between the parties for alimony and a division of their property will, in the absence of fraud or imposition, generally be adopted by the court, yet the embodying in the decree for divorce such provisions for alimony is just as much the judicial finding and judgment of the court as the granting of the divorce, and, under sections 1806 and 1812, Revised Statutes 1919, any order which provides for monthly alimony is subject to review, and from time to time, on proper motion filed in the original action, the court has full jurisdiction to make such alterations as to the allowance of such alimony and maintenance as the then circumstances and conditions in its judgment warrant.</p> <p>2. ALIMONY: Increase of Monthly Allowance: Not Excessive. Where a wife was originally allowed $75 per month as alimony in accordance with a stipulation between the parties, at which time the husband was earning $4000 per year, an increase allowed the wife from $75 to $140 per month, when it was conceded that the husband was" earning a salary of $500 per month and the cost of living had materially increased, was not excessive.</p>

Louis.— Ron. Frank Landwehr, Judge. (1) The agreement for appraisement entered into after the fire, appointing the appraisers, was a practical carrying into effect of the stipulations of the policy. It was not a submission to arbitration in the legal sense, but a just and reasonable mode of fixing the value of tbe injured goods before and after the fire. The persons selected acted as appraisers, and not as arbitrators.

— H'on. James A. Cooley, Judge.. (1) The instruction in the nature of a demurrer offered at the close of all the evidence in the case should have been given. Charles v. Patch, 87 Mo. 450; Hyde v. Mo. Pac. Ry. Co., 110 Mo. 272; Knapp v. Hanley, 108 Mo. App. 353.

Louis. —Eon. Charles B. Davis, Judge. (1) The City Hospital Record offered in evidence by the defendant (made three years prior to the accident in question) was incompetent before the passage of the statute relied on by the defendant (R. S. 1919, Section 5812), and is incompetent since the statute was passed and under the statute. Connor v. Ins. Co., 78 Mo. App. 131; Ohmeyer v. Woodmen Circle, 91 Mo. App. 201; Reynolds v. Ins. Co.,' 88 Mo. App. 679; Finer v. Nichols, 122 Mo.

<p>1. MASTER AND SERVANT: Assault and Battery: Assault hy Servant: Master’ Liability: Evidence: Case for the Jury. In an action by a waitress against a hotel company and its manager for damages for assault and battery, evidence that the manager committed the assault and battery within the scope of his employment, held sufficient to take the question of the liability of the hotel company to the jury.</p> <p>2. -: -: -: Servant’s Acts Within Scope of Employment: Master’s Liability. While the master is not responsible foían act unauthorized and not done in the furtherance of the general purposes of the master, but on the servant’s own account and from external, independent, and personal motives, the master is liable for the improper manner in which the servant executes an authorized act or one done within the general scope of his employment and in the furtherance of the master’s general purposes.</p> <p>3. INSTRUCTIONS: Credibility of Witnesses: Proper Instructions Given: Refusal of Others not Prejudicial Error. Where the court gave a proper instruction on the credibility of the witnesses and the weight to be given to their testimony, the refusal of an instruction by which it was sought to tell the jury that, if they believed that any witness had sworn falsely to any material fact in issue, they were at liberty to reject or disregard the whole or any part of the testimony of such witness, was not prejudicial error.</p> <p>4. EVIDENCE: Questions Calling for Conclusion of Law: Objectionable. In an action by a waitress against a hotel company and its manager for damages for assault and battery alleged to nave been committed in trying to get from plaintiff money paid her by mistake, the trial court did not err in sustaining an objection to a question asked the manager as to whose money he was trying to get from plaintiff, as the question called for a conclusion of law and was clearly objectionable.</p> <p>5. DAMAGES: Excessive Damages: Assault and Battery: $500 Actual and $700 Exemplary not Excessive. In an action for damages for assault and battery where plaintiff was assaulted and her arm injured, and called vile names, and as a result was confined to her bed for three days, a verdict of $500 actual damages and $700 exemplary damages was not excessive.</p>

Louis. —Hon. Victor H. Falhenhainer, Judge. (1) When the evidence furnishes no substantial support for the allegations of the petition then it is the duty of the court to instruct the jury to find for the defendant.

Louis.— Eon. Robert W. Sail, Judge. (1) Where a contract of insurance is ambiguous, doubtful, or at least of two meanings, it will be construed in favor of the insured. Mathews v. M. W. A., 236 Mo. 326; Wertheimer v. Casualty Co., 172 Mo. 135; O’Malley v. Ins. Co., 232 S. W. 199; Corbin v. Mystic Workers, 226 S. W. 64; Am. Products Co. v. Ins. Co., 225 S. W.,1029; Burns v. Ins.

<p>1. INSURANCE: Vested Right: Beneficiary has no Vested Interest In Benefit Certificate before Death of Insured. In view of section 6422, Revised Statutes 1919, the beneficiary in a benefit certificate has no vested interest therein before the death of the member on whose account it was issued, even though the beneficiary paid the member’s dues, but has only an expectancy which may be defeated by the member changing the beneficiary.</p> <p>2. -: Insurer not Permitted to Commute Benefit Certificate by, Contract with insured in Violation of its Own By-laws and Laws Under Which it is Doing Business. Where the benefit certificate was not a disability policy, and contained a provision for a withdrawal, but was a contract of straight life insurance to be paid only upon the death of the insured, and the eldest daughter of insured was keeping up the payments on the certificate in consideration of being sole beneficiary, insured had no interest in the fund, for the payment of the certificate and could only designate a beneficiary, and section 6406, Revised Statutes 1919, as to surrender in case of disability insurance did not authorize insurer to pay half the face of the benefit certificate to the insured for surrender and release of certificate.</p> <p>3. -: Fraternal Benefit Society Commuting Insurance Certificate into Cash, cannot Claim Benefit of Statute. Where a fraternal • benefit society, in consideration of the release of its liability to insured paid her one-half the amount of her life insurance certificate, the transaction was a commutation of the policy to cash so that the society could not claim the benefit of section 6433, Revised Satutes 1919, declaring that no contract between the member and beneficiary shall give the latter a vested right in the insurance or deprive the member of the right to change the beneficiary or revoke the certificate.</p> <p>4. -: Statute Declaring no Contract Between Member and Beneficiary, Shall give Latter Vested Right in Insurance, or Deprive Member of Right to Change Beneficiary, or Revoke Certificate, Held, Inapplicable to Commutation of Policy. Section 6433, Revised Statutes 1919, declaring that no contract between the member and beneficiary shall give the latter a vested right in the insurance or deprive the member of the right to change the beneficiary, or revoke the certificate, is inapplicable; where the member in consideration of a cash payment, executed a release of the society’s liability, as such commutation of the policy into cash, did not change the beneficiary nor revoke the certificate.</p> <p>5. -: Although Beneficiary had no Vested Interest in Insurance which was Revoked was Entitled to Recover Amount Expended in Payment of Insured’s Dues. Where a beneficiary under a fraternal benefit certificate paid the dues of the insured, until her death, but the certificate was revoked and the society released by the insured, from liability, in consideration of a cash payment made shortly prior to insured’s death, beneficiary is entitled to equitable relief, at least to the extent of being reimbursed for the money she expended, even though beneficiary, under section 6433, Revised Statutes 1919, had no vested interest in the insurance, she had an expectancy, and the society’s act in voluntarily, unlawfully and knowingly defeating plaintiff’s expectancy was malum per se.</p> <p>6. APPEAL AND ERROR: Pleading: Departure from Cause of Action Alleged in Petition Considered Waived on Appeal Where no Demurrer or Motion to Strike Petition was Filed. That the case, as it finally developed, could not arise on plaintiff’s reply cannot be raised for first time in appellate court, where no demurrer to or motion to. strike the petition was filed, the issue being joined on the pleadings as they stood and the ca.se submitted so that if there was any departure it was thus waived.</p> <p>7. PLEADINGS: In a Suit on Insurance Certificate, the Right of Beneficiary to Recover Dues Paid by Her May be Raised by Reply. Under sections 1233 and 1235, Revised Statutes 1919, the issue as to whether beneficial-y under a fraternal benefit certificate, who paid the dues of the insured could recover the amount so paid, though the certificate had been revoked by insured, and the society released from liability may be raised in the reply to the society’s answer setting up such facts, though full recovery of the amount of the certificate was prayed in the petition; the whole controversy being thereby simplified and settled in one action.</p>

<p>Appeal from Callaway County Circuit Court. — Hon. David H. Harris, Judge.</p>

<p>1. NEGLIGENCE: Imputed Negligence: Negligence, of Driver of Car Held Imputed to Owner Hiding in Car. The negligence of one driving a motor car at deceased’s request, and upon errand of deceased, is imputed to the deceased.</p> <p>2. -: Contributory Negligence: Driver’s TJnfamiliarity with Automobile which he was Driving at Time of Collision is not Sufficient to Hold Him Negligent as a Matter of Law. Where driver of automobile was experienced, had been driving for seven years, had owned and driven four makes of cars and experienced no sense of unfamiliarity whatever in driving a car purchased by deceased the day before collision, he was not guilty of negligence as a matter of law.</p> <p>3. -: -: Municipal Corporations: Driver of Automobile and Deceased Biding with Him, in Failing to Look More than Once at Intersecting Street, not Negligent as a Matter of Law. Where an automobile driver, running at a speed of twelve (12) miles per hour, approaching an intersecting street, ninety (90) feet wide between the property lines, looked for automobiles in said intersecting street when he could see a distance of two hundred (200) feet, and there was an ordinance prohibiting a greater rate of speed than twenty (20) miles an hour, held, neither driver nor deceased riding with him were guilty of contributory negligence, as a matter of law, in proceeding to cross without looking again when they would have been able to see a greater distance as they would have passed entirely out of sphere of danger before any car traveling at a lawful rate of speed would cover the distance to the intersection.</p> <p>4. -: -: -: Even if Statute Bequired Driver to Look at Intersecting Street After Passing Obstructions, held, under evidence to Have Been Complied with. Even if section 7593, Revised Statutes 1919, providing that any person driving a motor vehicle, “approaching an intersecting highway or curve or corner, in the highway where the operator’s view is obstructed, shall slow down to such speed that the motor vehicle can be readily stopped,” required driver after passing obstruction to look to see if there is anything with which he may come into collision, it was complied with, as the automobile being driven was under control and driver looked for approaching cars when he was far enough past obstruction to see no automobile coming within area of danger had conditions been as he had a right to expect.</p> <p>5. WITNESSES: Impeachment: Surprise: Testimony Given at Coroner’s Inquest Contrary to that Given at Trial Does not Entitle Party Calling Witness to Impeach Him. Where a witness testified at coroner’s inquest, concerning death of person killed in an automobile collision, that he did not imagine defendant was going more, than eighteen (18) or twenty (20),miles per hour, and defendant did not talk to witness until case came to trial a year later, the testimony of the witness that defendant’s car was being run at a speed of thirty (30) or thirty-five (35) miles per hour did not constitute such surprise as that term is used as entitled defendant to impeach the witness by proof of prior contradictory statements.</p> <p>6. -: -: -: Buie Stated as to When Party Calling Witness May Impeach by Showing Contradictory Statements. The general rule is that a party is not permitted to impeach his own witness, but when the latter has made contradictory statements to those given on the trial and the witness, or the adverse party to the cause, has entrapped or misled the party calling the witness by some artifice, and by so doing has induced the party to call him as a witness and thereby' have gained an advantage in the case over the party calling him, which the adverse party would not have had, had he not called witness, then under such circumstances the party calling the witness may impeach him by showing contradictory statements.</p> <p>7. -: -: - — : Admissibility of Impeaching Testimony Largely in Discretion of Trial Judge. Whether impeaching testimony should be admitted is a matter largely in the discretion of trial judge.</p> <p>8. NEGLIGENCE: Instructions: Driver Approaching Intersection Where View is Obstructed and Automobiles were Likely to Cross at Any Time, Required to Keep Vigilant Lookout Ahead, and an Instruction Requiring Such Lookout Did not Require More than Ordinary Care. Where an automobile driver approaches a street intersection where he knew that automobiles were likely to cross at any time, was thoroughly acquainted with the situation, having passed point of collision at least twice a day for a long time, and knew of an obstruction preventing drivers from seeing approaching automobiles, ordinary care required him to keep a vigilant lookout ahead for vehicles, and an instruction requiring such lookout did not require a higher degree of care than ordinary care.</p> <p>9 -: --■: An Instruction Requiring Automobile Driver to Slacken Speed or Turn Car Aside Could not Have Been Misunderstood, as Matter Submitted Did not Tell Jury when Driver Should have Turned his Car Aside, but Expressly Required the Jury to Bind that Failure to Turn Car Aside was Cause of Collision. In an action for death where defendants failure to turn his automobile aside was pleaded in the petition, an instruction that if defendant “failed to use reasonable care to slacken the speed of his automobile or to turn the same aside, and that by reason of said conduct, his automobile was caused to collide with the automobile in which the deceased was riding, the verdict should be for plaintiff,” could not have been misunderstood by the jury because the matter submitted did not tell the jury when defendant should have turned his car aside, but expressly required the jury to find that the failure to turn aside was the cause of the collision.</p> <p>10. -: -: The Question as to Whether Defendant Could have Avoided Collision by Turning his Automobile Aside Held for Jury. Where the evidence showed that defendant traveling forty-five (45) miles an hour did nothing to avoid the injury but thought that the other driver would turn to the right and pass behind him, the question as to whether defendant could have avoided collision by turning his automobile aside held for the jury.</p> <p>11. INSTRUCTIONS: Where Correct Instructions are Given Covering a Certain Point, the Defendant Desiring Jury to be Instructed more Fully Thereon Should Have Requested an Instruction Covering the Same. In an action for death in collision at street intersection, where automobiles were likely to cross at any time and the view was obstructed, an instruction requiring defendant to keep a vigilant lookout ahead and an instruction requiring the driver of deceased’s car to use only ordinary care were both correct, and. if defendant desired the jury to be instructed any more fully upon what constituted ordinary care’ on the part of the other driver, he should have asked such an instruction.</p> <p>12. -: Instruction Properly Amended so as to Impose Duty of Ordinary Care Instead of Absolute Duty. In an action for death the court properly amended an instruction requested by defendant so as . to provide that driver of deceased’s car was required to use ordinary care in handling his car, and in looking for automobiles on an intersecting street, as the instruction as requested made these' duties absolute and amounted to an instruction in the nature of a demurrer to the evidence.</p> <p>IS. -: Instruction as to Duty to Exercise Care by Driver Held not Misleading When Read in Connection With all of the Other Instructions. Where an instruction required the driver of deceased’s car to look and listen for automobiles on an intersecting street, and as to his right to presume that vehicles thereon would be driven with reasonable care and at a reasonably careful rate of speed, it was not misleading because of its faliure to say anything of the duty of deceased, when read in connection with the other instructions that the driver’s negligence, if any, was imputed to deceased, and that it was the duty of the deceased, and the driver as well, to exercise ordinary care.</p> <p>14. -: An Instruction in Action for Damages Sustained in Automobile Collision Held not to be too Broad, Comment on Evidence or Erroneous, when Read in Connection with All of the Other Instructions. An instruction that it was the duty of defendant approaching a crossing to run his automobile at a reasonably careful rate of speed and that if he ran the same at such place at a dan-gerous rate of speed and greater than that at which an automobile would have been driven by an ordinary prudent person, he was guilty of negligence, is not a comment on the. evidence, did not attempt to cover the entire case, nor to direct a verdict and is only one of a long series of instructions, when read together contains a complete exposition of the law, and under such circumstances was not erroneous as being too broad, capable of being understood or as calling attention to plaintiff’s rights in the abstract without mentioning his corresponding duties.</p> <p>15. --: Defendant Held to Have Joined in Error Contained in Instruction Which is the Converse of One Given for Defendant. Where an instruction is the converse of one given for defendant, if there is any error in it, the error was joined in by the defendant.</p> <p>16. -: Instruction Held to Sufficiently Require Jury to Find That Deceased’s Automobile Entered upon Intersection before Defendant’s. An instruction that if deceased’s “automobile was upon the street intersection and while there defendant drove his automobile toward and across the street intersection,” etc., required the jury to find that deceased’s automobile entered upon the intersection before defendant’s automobile.</p> <p>17. -: Instruction Defining Term “Intersection” Properly Refused as Unnecessary. The court did not err in refusing to give an instruction which defined the term “intersection,” as the word “intersection” is not a technical term, but one of common meaning and needed no definition.</p> <p>IS. -: Instruction Defining Term “Intersection” Properly Refused as Misleading. In an'action for death in collision at street intersection, an instruction defining the term “intersection” to mean the intersection of the curb line on the south side of a certain street with the curb line on the west side of another street was properly refused as being misleading.</p>

<p>1. EVIDENCE: Judicial Notice: Court Judicially Knows Telegraph is Necessary to Operation of Railroad. The court judicially knows that the telegraph is necessary for the operation of a railroad and usually consists of wires strung on holes along the side of the tracks.</p> <p>2. -: Judicial Notice is Taken by Court of the Assumption by Government of the Management and Operation of Railroads of Country. The court judicially notices the assumption by the government of the management and operation of all the railroads of the country.</p> <p>3. MASTER AND SERVANT: Evidence Held to Show Employment of Deceased by Director General. Evidence of employee of Director General of Railroads that deceased' worked in same gang with witness in accordance with the foreman’s directions, on telegraph poles along right of way, at time railroads were being operated by Director General, field, sufficient to make a prima-facie case that deceased was employed by the Director General.</p> <p>4. INTERSTATE COMMERCE: Employee on Telegraph Line Used in Interstate Commerce by Railroad, Held Engaged as Such in Interstate Commerce. Evidence that deceased was employed by defendant to repair a telegraph line and poles that were being used by defendant in the operation of a railroad engaged in interstate commerce, field deceased was an employee in such commerce within employer’s Liability Act, (U. S. Comp. St., secs. 8657-8665).</p> <p>5. MASTER AND SERVANT: Employee Killed Going to Breakfast Held to be on Mission for Employer and Engaged Within Scope of Employment at Time. Where an employee of interstate railroad was engaged by month, receiving as compensation for his services certain wages and his board and lodging in addition, and at the time of his death under the direction of his foreman was proceeding to. the place where his employer had provided breakfast for him, after which, he would work upon the railroad, field, to be on a mission of his employer and within the scope of his duties as an employee at the time he was killed.</p> <p>6. DAMAGES: Death: Rule Stated, as to Measure of Recovery under Federal Employes’ Liability Act. Under the Federal Employers’ Liability Act, (U. S. Comp. St., secs.• 8657-8665), an'instruction that plaintiff was entitled to recover the loss the deceased would, with reasonable certainty, have contributed to her had he lived was erroneous, as it was "not a sum of money equal to what deceased would have given plaintiff had he lived, but the present value thereof that plaintiff was entitled to recover.</p> <p>7. APPEAL AND ERROR: Instructions: Measure of Damages: Where Instruction Includes Damages not Recoverable Defendant not Required to Request Instruction with Reference Thereto. The rule that an instruction on measure of damages is correct where a statement general in its scope as to what plaintiff is entitled to recover is made and if defendant desires to direct jury more particularly to the elements they should consider in estimating the damage, it is duty of defendant to ask such an instruction, will not prevent a reversal where the instruction specified what elements jury should consider, which were not proper elements upon which to base their verdict, the matter submitted constituting a positive mis-direction.</p> <p>8. EXECUTORS AND ADMINISTRATORS: Jurisdiction: Suits for Damages for Wrongful Death not Required to be Brought in County of Appointment of Administratrix. Section 5, Revised Statutes 1919, relates to the administration of estates in the probate court, and has nothing to do with suits for damages for wrongful death which are properly brought under section 1180, Revised Statutes 1919, 'and not required to be brought in the county where the administratrix was appointed.</p> <p>9. INSTRUCTIONS: Assuming Facts: Instruction Requiring Jury to Find Facts not Erroneous as Assuming Issuable Facts. An instruction which first required jury to “find and believe,” various matters therein set forth is not erroneous as assuming issuable facts.</p> <p>10. -: Instructions Should not Refer to Matters not Supported by the Evidence. Matters not supported by evidence should be eliminated from instructions.</p> <p>11. -: Appeal and Error: Appellant’s Statement of Questions Involved in Case Held to be Sufficient Compliance with Rules. Although defendants’ statement on appeal did not show that only one witness testified for plaintiff on issue of negligence, but contained the testimony of that witness on damages complies in spirit with rule 16, (169 S. W. XIV), requiring statement without repetition of testimony of witnesses, as the same gives a fair view of the questions involved in the case.</p>

<p>1. NEGLIGENCE: Master and Servant: Negligence as to Employee Falling while Obeying Order to Stand upon Ladder and Door While Cleaning Machinery, Held Question for Jury. In an action for injuries received by employee of milling establishment who slipped and fell while complying with an order to stand upon a ladder and door of a roll machine while cleaning machinery, overhead with an ordinary broom, held, a question for jury as to negligence either in failing to furnish plaintiff a reasonably safe place in which to work- and reasonably safe instrumentalities with which to work in performing work she* was directed to do, or in ordering plaintiff to stand upon door, but that she voluntarily chose to do so herself,</p> <p>2. -- — : -: Assumption of Risk and Contributory Negligence of Injured Employee Held Question for Jury. Plaintiff was not chargeable with assumption of risk or contributory negligence, as a matter of law, for to so hold would be to say conclusively the master was not negligent, and that plaintiff was not ordered to stand upon door, but that she voluntarily choose to do so herself.</p> <p>3. APPEAL AND ERROR: Appellate Court May Consider Merits of Question Whether Plaintiff is Entitled to go to Jury Where Only Missing Evidence is Photographs, Which Did not Conclusively Show Plaintiff Had no Case. In an action by mill employee for personal injuries the general rule that the appellate court cannot pass upon merits of the question whether plaintiff is entitled to go to jury when the record does not contain entire evidence offered does not apply where the missing evidence consists of two photographs, one of the machine, the door of which plaintiff stood upon, and the other of a row of machines, and also a short ladder, all three of which were introduced in evidence as exhibits, where none of them could show conclusively that plaintiff had no case.</p> <p>4. -: Photographs Introduced as Exhibits Should not be Omitted from Record Because Stenographer Deemed it Impracticable to. Include Them. Whether photographs were mounted on cardboard or flexible cloth, it would be a dangerous precedent to allow exhibits to be omitted from bill of exceptions because the stenographer deemed it impracticable to include them.</p> <p>5. --: Where There, is no Formal Call for Exhibits in Bill of Exceptions, a Motion too Compel Their Production Cannot be Sustained. Where there is no formal call for exhibits in the Bill of Exceptions, the motion of plaintiff to compel defendant to produce them cannot be sustained, and the motion to require the production of said exhibits, as originals, in appellate court, is overruled.</p> <p>6. -: Plaintiff Will not be Turned Out of Court for Failure to Incorporate in Record Certain Evidence Which Could not Conclusively Prevent a Recovery. Where it is manifest there could be nothing appearing in exhibits omitted from record which could settle the foreclosure of plaintiff’s right to go to jury, the plaintiff will not be turned out of court on the theory that she failed to bring all of the evidence before the appellate court. '</p> <p>7. -: Nonsuit Held Involuntary from Which an Appeal Will lie. Where the record shows that at the conclusion of all the evidence the defendant offered a peremptory instruction in the nature of a demurrer to the evidence which the court marked “Given,” and before final submission of case and the reading of said instruction to jury, plaintiff, by leave of court, suffered an involuntary non-suit with leave to move to set the same aside, held, that upon the record an involuntary nonsuit wa? taken from which an appeal will lie.</p> <p>8. -: Bill of Exceptions: Record Proper Derives no Force or Validity by Any Recital in Bill of Exceptions. The record proper derives no force or validity by any recital in the Bill of Exceptions.</p>

<p>1. JURISDICTION: Venue: Pleading: Question of Venue May be Raised in Answer to Merits. Where circuit court bad jurisdiction of subject-matter, but bad no jurisdiction over tbe person of defendant, unless be cboose to voluntarily submit to jurisdiction, and lack of venue did not appear on face of petition, defendant bad tbe right to raise tbe question of venue in bis answer and include it with a defense on the merits.</p> <p>2. -: Appearance: Voluntary Appearance of Defendant Substituted for Another and Adoption of Former Defendant’s Answer Waived Objection in Answer to Venue. Where suit was originally brought against tbe Director General of Railroads in a county where it could not be maintained under bis General Order 18-A, and after tbe pleadings were made up in case before trial, defendant’s predecessor resigned as Director General, and defendant, his successor, was substituted for Director General by consent of the Agent under Transportation Act 1920, who adopted the answer on file excepting to the venue, held, that defendant’s entry of appearance was not conditioned upon his being allowed to adopt answer of his predecessor, and by voluntarily appearing he waived objection to the jurisdiction, though if he had been brought into court by regular summons he could have filed an answer containing a plea to the juris-diction and joined such plea with one to the merits, or have adopted the answer theretofore filed by his predecessor.</p> <p>3. -:-: Special Appearance Must Appear on Pace of Motion. In order for an appearance to be special the order, plea or motion must expressly state that the appearance is only for the purpose of excepting to the jurisdiction, or at least, the order, plea or motion on its face must appear to be a special appearance for that purpose.</p> <p>4. -: -: Waiver: Appearance of Substituted Defendant Held General Appearance, Waiving Jurisdiction Over Person. Where the agent under the Transportation Act against whom an action was pending- resigned, and his successor, by agreement of the parties, was substituted therein as defendant, held his appearance was a general appearance waiving question of jurisdiction over his person which had been raised by the answer on file.</p> <p>5. APPEAL AND ERROR: Constitutional Question: Constitutional Question not Raised in Trial Court Cannot be Presented in Appellate Court. The point made in defendant’s brief that trial court in refusing to give peremptory instruction in the nature of a demurrer to evidence, violated section 1 of the Fourteenth Amendment to the Constitution of the United States, does not raise a constitutional question when no attempt was made to present point in trial court.</p> <p>6. -: Where Ruling or Motion to Strike out Amendment was not Preserved in Bill of Exceptions the Same Could not be Considered an Appeal. Where a motion filed to strike out amendment was overruled and the exception taken, but same was not contained in Bill of Exceptions, the ruling thereon cannot be considered by appellate court as a matter of exception.</p> <p>7. COMPROMISE: Release: Claim of Settlement and Release of Liability Must be Pleaded in Answer. Where after filing petition for removal plaintiff’s petition having prayed judgment for fifteen Thousand Dollars ($15,000), it was stipulated between parties that plaintiff would reduce the prayer to Three Thousand Dollars ($3,000) and defendant would withdraw his petition and bond for removal, and that after same was done it was ruled that cases of this kind were not removable and thereupon plaintiff, amended petition again asking for Fifteen Thousand Dollars ($15,000) damages, whereupon it was contended by defendant that the Stipulation was a complete compromise and release of any liability which might have existed above Three Thousand Dollars ($3,000), held that the contention must be ruled against defendant because not pleaded in the answer.</p> <p>8. APPEAL AND ERROR.: Ruling on Motion for Physical Examination Cannot be Reviewed, on Appeal When Same Does not Appear in Bill of Exceptions. Where ruling on application for physical examination was not preserved in Bill of Exceptions, but appeared in abstract of record proper, the same could not be considered on appeal.</p> <p>9. MEDICAL EXAMINATION: Abuse of Discretion: The Court in Refusing Third Physical Examination of Plaintiff Did not Abuse its Discretion.. Where plaintiff had been twice examined by defendant’s physician and when last examined the petition alleged his left ear, left side of his face and head were lacerated_ bruised and inflamed and he has and will suffer from deafness, the defendant having had full knowledge of plaintiff’s claim in reference to injuries and diseases of ear at time its physician examined plaintiff, it was not an abuse of the court’s discretion to refuse to allow a third examination by an expert in treatment of injuries and diseases of the ear.</p> <p>10. DAMAGES: Excessive Verdict: A Verdict of Five Thousand Dollars ($5,000) for Injuries to Head, Back, Hip, Leg, Impairment of Kidneys and of Hearing, Held not Excessive. Where plaintiff, a passenger in a railroad wreck- received cuts and bruises on his head, back, hip and leg, which resulted in frequent dizzy spells, lameness, temporary impairment of kidneys, loss .of twenty-five per cent (25%) of hearing of left ear, inability to lift heavy objects, and his ills were of a permanent nature, a verdict of Five Thousand Dollars ($5,000) is held to be not excessive.</p>

<p>1. NEGLIGENCE: Obstruction of Street and Sidewalk: Contractor and City Could Have Reasonably Anticipated that Pedestrian Would Use Street Where Sidewalk was Obstructed. Where a pedestrian was prevented from using a sidewalk by obstructions placed by a building contractor thereon, and was compelled to use the street, where she was struck by an automobile, held, that contractor and * city could have reasonably anticipated that persons would have walked where plaintiff did.</p> <p>2. -: Evidence Held to Show that Automobile Driven at Rapid Rate of Speed, Striking Pedestrian Walking Alongside Obstruction was Guided in, a Way that Was not Unusual. In a suit against a city and building contractor by a pedestrian injured by being struck by an automobile while walking in the street alongside an obstruction placed upon sidewalk and portion of street, held, there was evidence showing that the automobile was guided in a way that was not unusual for automobiles driven at a rapid rate of speed.</p> <p>3. MUNICIPAL CORPORATIONS: Ordinances: Evidence Held to Show Violation of Ordinance Prohibiting Unreasonable Occupation of Street with Building Material. Under an ordinance of Kansas City (No. 5763, sec. 596), providing that not more than one-third of roadway, nor more than one-half of sidewalk space or alley should be used for piling or storing building material, where the roadway was seventy-six (76) feet wide and the building material was piled to within eleven and one-hálf (114) feet of center of roadway, the ordinance was violated.</p> <p>4. -: Notice: In Action for Personal Injuries Against City it Was not Necessary to Plead in Petition that Notice Thereof Had Been Given. Under section 8904, Revised Statutes 1919, providing that “no action shall be maintained” against the city unless notice be giving, “stating the place where, the time when such injury was received,” etc., a cause of action was not created thereby as the same was given by the common law, and in an action by a pedestrian for damages against the city, it was not necessary to plead in the petition that notice was given, the giving of notice not constituting an element of the cause of action but being merely a matter of evidence.</p> <p>5. -: Evidence: Admission in Evidence of Permit Issued after Injury Allowing Placing of Building Material in Street not Injurious in View of Evidence and Instructions. The court did not err in admitting in evidence a permit allowing contractor to place building materials in street, which was issued after happening of injury, the same not being injurious to defendant city, in view of evidence and instructions offered by it.</p> <p>6. -: -: Instructions: Word Customarily Defined: An Instruction Requiring Jury to Find that Automobile “Customarily” Ran at High Rate of Speed on Street at Place of Injury Justified by Evidence. In an action for damages to pedestrian injured by automobile while walking alongside of obstruction caused by building material placed in street, an instruction requiring jury to find that at the place and time of injury “automobile customarily ran at a high, reckless and dangerous rate of speed,” held, not erroneous though evidence did not show every passing automobile ran at such speed, the word “customarily” being defined as “in the customary manner, ordinarily,” and “custom” as “an ordinary or usual manner of doing or acting.”</p> <p>1. INSTRUCTIONS: An Instruction as to Permitting Obstruction in Street Held not Misleading in View of Other Instructions. An instruction requiring the jury to find the obstruction was caused by contractor, property owner and city having deposited and permitted to be deposited building materials in street and “that defendant city knew, or by the exercise of ordinary care should have known, of the location of said obstruction in time to have removed the same,” could not have been misunderstood as there was no claim that the city deposited the material on the street and the duty of city under the facts having been correctly stated later in the instruction.</p> <p>8. -: An Instruction that Obstruction Extended Almost to Center , of Street Held Warranted by Evidence. In an action for injury to pedestrian struck by automobile while walking alongside obstruction composed of building material deposited in street, an instruction that building material extended “almost to the center of street” was warranted by the evidence.</p> <p>9. MUNICIPAL CORPORATIONS: Evidence Held to Show City had Reasonable Time to Remove Obstruction After Knowledge of Its ' Existence. Where the evidence showed that a police officer had been stationed for a month at the place where the building material had been placed in street and knew of the obstruction, held, that city as a matter of law had time to remedy the situation after - it had knowledge of it.</p> <p>10. INSTRUCTIONS: Instruction not Erroneous as Submitting a Question of Law. An instruction detailing facts necessary' for jury to find in order to lay foundation of city’s negligence, and then proceeding, “and if you further find that said defendants were negligent in said respects,” was not erroneous as submitting a question of law.</p> <p>11. PLEADING: Evidence: An Instruction "Whether Unreasonable Amount of Street was Being Used for Building Material Did not Enlarge Issues Under the Pleadings. Where petition alleged defendants “negligently placed and deposited and caused and permitted to be placed ... in the street space . . . thereby greatly and unreasonably obstructing” street, the allegation that an unreasonable amount of material was deposited in the street unreasonably obstructing it was broad enough to authorize the court to submit the issue as to whether an unreasonable amount of the street was being used.</p> <p>12. MUNICIPAL CORPORATIONS: Ordinances: In Action for Injury Caused by Obstruction in Street the Giving of Peremptory Instruction in Pavor of Property Owner Held not Error. Section 67, of Ordinance No. 38919, and section 580, of Ordinance No. 8499, of Kansas City, do not place any duty on property owner with reference to the issuance of a pérmit to building contractors to use not more than one-third of street for depositing of building materials, etc., as provided by Ordinance No. 5763, section 596, and the court did not err in giving a peremptory instruction in favor of property owner in a suit against the city, contractor and property owner by pedestrian for injuries received by being struck by automobile while walking in street alongside obstruction composed of building material placed therein.</p> <p>13. INSTRUCTIONS: Not Error to Refuse Instruction Covered by Other Instructions. It is not error to refuse an instruction covered by other instructions.</p>

<p>1. CONTRACTS: Evidence: Parol Evidence Admissible to Show Meaning of “$4000 Net’’ Used in Ambiguous Contract for Sale of Real Estate. In an action to recover the balance claimed to be due under a contract for sale of certain real estate owned by plaintiffs, the price being “$4000 net,” defendant to retain from proceeds “no per cent commission on above price and 100 per cent of all of the consideration . . . above price specified,” the contract being ambiguous on its face, parol evidence was admissible to show that plaintiffs were to convey only on receipt of Four Thous- and Dollars ($4000) in cash above amount of a mortgage on the property and expenses, the word “price” mentioned in contract meaning “net price” defined to be that which remains after deduction of all charges and outlay.</p> <p>2. -: Construction: Doubtful Language Construed Strongly against Party Using It. Doubtful language used in a contract should be construed'strongly against party using it.</p> <p>S. PRINCIPAL AND AGENT: Brokers: Agent Selling Property Owned by Aged and Inexperienced Principals Must Treat Them Fairly, Disclose All Information and Not Misrepresent Facts. Where the evidence showed plaintiffs were old people and inexperienced in business affairs, it was the duty of an agent in the sale of their property to treat them fairly, disclose all information and not misrepresent facts, as a relationship of trust and confidence existed between the parties arising from the relation of principal and agent.</p> <p>4. -: -: Evidence Held to Show Principals Acted Prudently in Signing, Without Beading a Contract Fraudulently Modified, so that the Buie that Parties are not Permitted to go Behind Writing Did not Obtain. In an action by real estate agent to recover balance due under contract of sale where modified contract was brought to plaintiffs in the evening, their eyesight being poor, they were unable to read fine print in which document was written, held sufficient to show that plaintiffs acted with ordinary care and prudence in signing without reading the contract fraudulently represented as an extension contract so that the rule that parties to a contract are not permitted to go behind the writing did not obtain.</p> <p>5. -: -: Evidence Held to Show Fraud Practiced upon Principals in Procurement of Contract. In an action to recover balance due under contract of sale of principals real estate by agent, evidence held to show that fraud was practiced upon principals in the procurement of extension contract.</p> <p>6. -: -: Whether Check was Accepted in Full Payment of All Demands by Principals Against Agent, Question for Jury. Although a check written by agent to principals, which they cashed, contained the words “full payment,” etc., held from evidence principals could not be held as a matter of law, to have accepted check in full payment of all demands against agent in connection with sale.</p> <p>7. -: -: Fraud: Instruction Erroneous in Omitting to Eecjuire Finding that Principals Were Free From Negligence in Signing, Without Beading, Contract Alleged to Have Been Procured by Fraud.- In an action against agent, by principals for balance due under contract of sale of real estate, where principals alleged fraud in the procurement of an extension contract signed by principals without reading it, an instruction to find for principals if agent made representations claimed, with knowledge of their falsity, and with the fraudulent intent claimed and principals relied altogether thereon, held to be erroneous as omitting reference to the acts and situation of principals which it is claimed freed them from negli- ■ gence in signing new agreement, as it was not only necessary for jury to find agent misrepresented the facts but that principals did read the instrument and that there was such an excuse for their not reading it as amounted to an absence of negligence on their part.</p>

<p>1. BANKRUPTCY: Evidence Held to Show Bankrupt Charged with Knowledge of Creditor’s Address More Definitely Than Stated, Where the evidence showed that a bankrupt scheduled a claim as that of “Charles B” Kansas City and that he had been intimately acquainted with plaintiff, knew his full name as Charles W. Bartlett, and had frequently addressed mail to plaintiff at his post-office box, held, bankrupt charged with knowledge of plaintiff’s address more definitely than appears in the bankruptcy proceedings.</p> <p>2. -: Whether Address of Creditor Must be Given by Street and Number Depends upon Circumstances in Each Case. Under Bankruptcy Act, section 1, Subd. 8, (U. S. Comp. St., sec. 9591), the requirement that schedule of creditors must state the street and number of the residence of creditor, if known to bankrupt, is not governed by any fixed rule, but by circumstances in each case.</p> <p>3. -: Burden on Bankrupt tó Show Substantial Compliance with Statutory Requirements as to Proper Listing of Claims and Creditors. Under Bankruptcy Act all claims must be properly listed and failure to comply with statutory requirement to file list of creditors, showing their residence if known, will render discharge of bankrupt inoperative as against any'who did not receive actual notice of bankruptcy proceeding in time to have their claims allowed, and if a discharge is to have effect of cancelling debt of creditor who had no notice of proceedings, the burden is upon the bankrupt to show substantial compliance with the Act.</p> <p>4. -: Requirements for Scheduling Names of Creditors is > for Benefit of Creditors so as to Give Them an Opportunity of Having Their Day in Court. The requirement for duly scheduling the names of creditors is for the benefit of the creditors and in compliance with the generally recognized principle that one cannot be barred of his claim without the opportunity of having his day in court.</p> <p>5. -: Scheduling of Creditor’s Name and Address Held not to Show Due Diligence and was Insufficient to Make Discharge a Bar to Claim of Creditor. Where a bankrupt listed a creditor’s claim and omitted to state the middle initial of creditor and gave his residence address as Kansas City, though bankrupt knew the middle initial and the post office box number of creditor, he did not exercise due diligence and was not entitled to his discharge from the item of indebtedness under dispute so as to bar creditor’s claim who received no notice of bankruptcy proceedings until after bankruptcy discharge.</p>

<p>1. MASTER AND SERVANT: Under a Statute Governing the Use of Scaffolds the Word Building Includes a Model Repair Shop. Under section 6802, Revised Statutes 1919, regulating the use of scaffolds in the erection or talcing down of a building, the. word “building” which is defined to be an edifice, designed to stand more or less permanently and covering a space of-land for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose, includes a model repair shop, a -structure intended for some useful purpose and in this respect it was a building, within the meaning of the statute.</p> <p>2. -: Scaffold Used in Removing Pulley from Shaft Held to be Within Statute. A scaffold used by employees in removing a pulley from a shaft held to be a scaffold or structure within meaning of section 6802, Revised Statutes 1919.</p> <p>3. -: — : Negligence: Issue as to Whether. Employee Participated in Construction of Scaffold Held for Jury. In an action for injuries sustained by employee falling as result of breaking of scaffold issue as to whether employee participated in the construction thereof was one of fact for jury’s determination and was properly included in the instructions.</p> <p>4. NEGLIGENCE: Evidence Showing that a Scaffold, Within Meaning of Statute, Broke and Injured Plaintiff Made a Prima-facie Case for Jury. The obvious purpose of scaffold which broke and caused the injury was for the use of employees and it being a scaffold or structure within meaning of section 6802, Revised Statutes 1919, evidence showing breaking of same and injury to plaintiff made a prima-facie case for jury.</p> <p>5. INSTRUCTIONS: Omission of Necessary Element Requisite to Plaintiff’s Right of Recovery from Instruction Directing a Verdict, Cannot be Cured by Instruction for Defendant. An instruction for plaintiff purporting to cover entire case and directing a verdict for him must contain every necessary element requisite to his right #to recover, and'the omission of a necessary element therefrom cannot be cured by an instruction given for defendant.</p> <p>6. MASTER AND SERVANT: Negligence: Negligence of Fellow Servant Need not be Negatived in Instruction for Plaintiff Covering Entire Case and Directing a Verdict. Negligence of fellow workman is an affirmative defense and before it can defeat plaintiff’s recovery must be specially pleaded and proved, and it was not necessary for such issue to be included in plaintiff’s instruction, purporting to cover the entire case and directing a verdict, because it was not an essential element of plaintiff’s right of recovery.</p> <p>7. -: An Instruction Unnecessarily Negativing Two Defenses Did • not Make the Same Erroneous for Failure to Negative a Third. Where contributory negligence, assumption of risk and negligence of fellow servant were pleaded by defendant, an instruction directing a verdict for plaintiff unnecessarily negativing contributory negligence and assumption of risk did not make instruction erroneous for failure to negative negligence of fellow servant.</p> <p>8. MASTER AND SERVANT: Fellow-Servant Rule: Where Negligence is Failure to Furnish Safe Appliance Fellow Servant Rule Does not Apply. Where the negligence relied on is failure of defendant to furnish a safe appliance with which to work the fellow-servant rule does not apply.</p> <p>9. -: Defenses of Contributory Negligence and Negligence of Fellow-Servant Question of Law and not of Fact. The defenses of contributory negligence and negligence of fellow servant are questions of law and not of fact.</p> <p>10. -: Instructions: Whether Method of Work Used was Negligent, Question for Jury. Where the evidence showed that work could have been done by another method than one adopted, the question of whether the method used was negligent was properly for the jury, and the court did not err in refusing to give an instruction that there was no evidence defendants adopted an unsafe method.</p> <p>11. TRIAL PRACTICE: Reference to Treatment of Plaintiff by Insurance Company’s Doctor Will not Require Reversal in View of Action of Court and Amount of Verdict. Where plaintiff testified that he was treated by insurance company’s doctor, and the answer, upon objection being made, was immediately stricken out by the court with instructions to jury to disregard it, the judgment will not be reversed where there was no claim that the verdict was excessive except an argument that the amount of verdict showed that jury should have been discharged because of the answer made by plaintiff.</p>

<p>1. MOOT CASE: Defined: Mere Fact that Suit is Friendly Will not Prevent Determination Where Object is not to Determine a Question of Abstract Eight not Besting on Existing Facts. A moot case is one which seeks to determine an abstract question which does not ' rest upon existing facts or rights, and the mere fact that a suit is a friendly one will not prevent a determination thereof where the object is not to determine a question of abstract right not resting on existing facts or rights.</p> <p>2. WOEDS AND PHEASES: Word “Collusion” Defined. Collusion is a secret concert of action between two or more for the promotion of some fraudulent purpose.</p> <p>3. JUDGMENT: Collusion: Annulment: To Warrant Annulment of Judgment at Instance of Stranger Incidentally Affected Proof of Collusion Should be Very Clear. Even in a ease of strict collusion the proof should be very clear to induce the court to annul a judgment at the instance of strangers incidentally affected by decision of the question involved.</p> <p>4. -: Fraud: To Vacate a Judgment for Fraud the Fraud Must Exist in the Procurement Thereof. Equity will not vacate a judgment for fraud, unless the fraud is extrinsic or collateral to the matter involved and existed in the procurement of the judgment.</p> <p>5. -: Temporary Injunction Will not be Set Aside on Ground of Collusion as Against Innocent Third Persons. Where paving contractor dubious as to validity of ordinance under which his contract had been executed, upon advice of his counsel intended to abandon same and forfeit bond to secure performance, but on suggestion of city official, instituted suit against himself and city to test validity of ordinance, and the court in upholding validity of ordinance issued a temporary injunction excusing contractor’s delay in completion of work within time required by contract, held the temporary injunction will not be set aside on an action in equity on ground of collusion for purpose of defeating payment of tax bills in hands of strangers to suit and who had no knowledge that contractor instigated the same.</p>

<p>Appeal from the Circuit Court of Jackson County. — Hon. Charles B. Pence, Judge.</p>

<p>1. TRADEMARKS AND TRADE-NAMES: Processes: Formulas: Unfair Competition: Sale of Poultry Food Prepared According to Same Formula, Having Different Name and Appearance does not Constitute Unfair Competition in Strict Sense. Where a poultry food or medicinal compound manufactured and sold by defendant, though prepared according to plaintiff’s secret formula, is sold by defendant under a different name, to same trade sold by plaintiff, and to be used for same purpose, but which is mixed with buttermilk giving the same a different color so that neither in name nor appearance can it be palmed off on buyers as plaintiffs poultry compound, its sale is not unfair competition in the strict, usual and ordinary sense.</p> <p>2. -: -: - — : -Adding Further Ingredients or Making Minor Changes in Secret Formula Thereby Improving Product Does not Affect Right to be Protected in Enjoyment Thereof. Where a company, the owner of secret formula in the process of time, and as a result of experience, adds further ingredients or makes minor changes to improve its product, it is entitled to be protected in the enjoyment thereof against any one manufacturing an article having the same essential ingredients.</p> <p>3. -: -: -: -: Corporation and Subsequent StockHolders not Charged With Knowledge of Incorporators that Formula was not a Trade Secret. Where partners, the owners of a formula for the manufacture of a poultry compound, upon organizing a corporation to take over the business of the partnership put the formula into the corporation as a valuable trade secret for !he greater part of its capital stock, treated it and guarded it as such, built up a business thereon and put the fact that it was a secret into the corporate records whereby they were enabled to dispose of their stock at a large price, the corporation and the subsequent stockholders were not charged with the duty or obligation of knowing that it was not a trade secret.</p> <p>4. -: -: -: -: Former Owners of Formula Who Sold Same to Corporation as a Trade Secret, Held Estopped to Deny that the Same was a Secret and are not Entitled to be Protected from Interference. Where partners, the owners of a formula for a poultry remedy brought the same into a partnership as a secret and then sold it as such to a corporation organized by them, placing the fact that it was a secret upon its corporate records whereby succeeding stockholders could be induced to buy, and did buy stock, paying a great price therefor, such former owners of the formula and their associates using the same in competition with the corporation, were estopped to deny that it was a secret or entitled to be protected from any interference or competition on their part, the corporation being entitled to have said formula protected against encroachments by former owners and associates.</p> <p>5. -:-:-:-: Owner of Secret Unpatented Process or Formula Entitled to Protection Against Those Using the Same Through Breach of Trust or Violated Confidence. One who has a secret process or formula, even though unpatented, has a property right therein, which, though subject to be lost should one honestly discover or rightfully come, into the possession of a knowledge of the same, nevertheless, will be protected as against those who, through breach of trust or violated confidence, attempt to apply the secr.et to their own use or to impart it to others.</p> <p>6. -: -: -: ———: Placing Names of Constituent Elements of Secret Formula on Label Did not Deprive Plaintiff of Belief Against Those Attempting to Use Same Through Breach of Trust or Violated Confidence. Where plaintiff the owner of a secret formula in order to comply with the laws of a State placed the names of the constituent-elements thereof upon the label and while the publication o'f the elements composing it might endanger the disclosure of the formula to one who could rightfully discover and appropriate it, the same did not deprive plaintiff of relief against defendants using the formula through breach of trust or violated confidence since the label did not disclose in what proportions to mix the ingredients so as to produce a healthful remedy and appetizer instead of a dangerous poison.</p> <p>7. - — : -: -: -: Defense of Abandonment not Favored, Especially in Behalf of Wrongdoer. In an action" by owner of secret formula to prevent its use by another, the charge that owner is not entitled to relief because it placed constituent-elements thereof upon a label, is a defense of abandonment, and such defense is not favored especially in behalf of a wrongdoer.</p> <p>8. -: -: •-: -: Boastful Claims in Puffing Advertisements as to Matter not Involved in Controversy Have no Bearing Thereon, and Cannot Defeat Plaintiffs Bight to Belief on Ground That Advertisement Made Greater Claims Than Plaintiff was Entitled to. Boastful claims in a puffing advertisement as to a matter or right not involved in the controversy should have no bearing thereon, as in equity the maxim of “clean hands” refers only to the matter to be litigated.</p> <p>9. -: -: -: —■-: Equity Will Grant Belief Against Eival Business Wrongfully Using Formula of Corporation, Purchased by it as Valuable Trade Secret. Where the evidence shows that a formula, for the maufacture of a poultry compound, was brought into a partnership as a private secret formula, owned and controlled by the partners, and it was sold as such by them to a corporation organized by them, and the fact that it was a secret stated in its corporate records, and afterwards emphasized by the manner in which its business was conducted, and its stock was subsequently sold at a large price, which could never have been obtained except upon the ground that the corporation owned and controlled a valuable trade secret, equity will grant the corporation relief against another competing partnership and rival business organized by defendant to manufacture and sell substantially the same compound under another name.</p> <p>10. -:-:-:-: Estoppel: Pleading: Estoppel Should be Given Effect Although not Specifically Pleaded Until in the Beply. Where the facts creating estoppel are fully pleaded in the petition, though the word itself is not used until in the reply and then it is stated not as an element of plaintiff’s cause of action but as a shield against the defense raised that a formula was not secret, held, the plea of estoppel should be given effect although not specifically pleaded until in the reply.</p>

<p>1. SALES: Where Buyer Refused to Accept Delivery, Seller had Right to Resell at Auction or Private Sale and Recover Difference Between Price Realised and Contract Price. Where buyer of corn refused to accept delivery thereof the seller had a right to resell the same at auction or private sale at best price he could command and sue to recover the difference between the price realized and contract price.</p> <p>2. APPEAL AND ERROR: Finding of Court, Sitting as a Jury, on Conflicting Evidence Cannot be Reviewed. Where there was conflicting evidence on the question as to whether contract contained a certain provision when it was executed by the parties, the finding of the court sitting as a jury that the contract contained said provision cannot be reviewed on the ground that it was against the weight of the evidence.</p> <p>3. -: Appellant Cannot on Appeal Change Theory Upon Which Case was Tried in Lower Court. Where the record disclosed that the only issues at the trial was as to whether the award of the arbitrators was a valid and binding one, and whether a certain provision was contained in a contract when executed, defendant cannot change theory upon which case was tried hy attempting on appeal to raise objection that the property tendered did not conform to requirements of contract.</p> <p>4. ARBITRATION AND AWARD: Failure of Arbitrators and Witnesses to be Sworn as Required by Statute Renders Award Void. Where arbitrators and witnesses were not sworn as required hy sections 598 and 599, Revised Statutes 1919, the award was void.</p> <p>5. -: Waiver: Swearing of Arbitrators and Witnesses not Waived by Plaintiff Who Had no Knowledge that Officer Administering Oath. Had no Authoroity to do so. While swearing of the arbitrators and witnesses may be waived by the parties making no objection to absence of such swearing, in order for there to be a waiver the party who it is claimed has waived the matter must have knowledge of the facts out of which the waiver grew, held, that as plaintiff had no such knowledge there was no waiver.</p> <p>6. OFFICERS: De Facto: Authority: Secretary of Grain Exchange Held. Not to be De Facto Officer Authorized to Administer Oaths. The secretary of a grain exchange was not a de facto officer authorized to swear arbitrators and witnesses, as there was no such office as secretary of such exchange with power to administer oaths, and the only exceptions to the rule that there can be a de facto incumbent of an office that does not exist are where he exercises the duties of the office under color of an election or appointment by or persuant to a public constitutional law, before same is adjudged to be such, and in certain cases where there has been a legal office but the same no longer exists that persons who assume to exercise the authority of the incumbent of such an office is declared to be a de facto officer where if he were not held to be such it would result in great public injury.</p>

<p>1. LIBEL AND SLANDER: Where it Was Charged Defendant Painted Plaintiff’s Name With the Words “The Slacker” and “The Draft Evader” on Certain Buildings, the Evidence on Demurrer Held Sufficient for Submission to Jury. In an action for libel where it was alleged that defendant painted plaintiff’s name with the words “the slacker” and “the draft evader” on certain buildings in plaintiff’s neighborhood, evidence held to raise a strong inference defendant did the painting and the demurrer to the evidence was properly overruled.</p> <p>2. -: Instructions: Assuming Facts: Defamatory Words Question for Jury: Instructions Assuming Truth of Disputed Facts Held Erroneous. In an action for libel where defendant was charged with painting plaintiff’s name with the words “the slacker” and “the draft evader” on certain buildings the question as to whether the words were defamatory was a disputed issue, and instructions which assumed that the words were actually published by defendant and that the same were defamatory, are erroneous as the court should not assume in the instructions the truth of disputed facts.</p> <p>3. -: -: An Instruction Erroneous as Assuming a Disputed-Fact Not Cured by Other instructions Requiring Jury to Find Such Fact to be True. In an action for libel where defendant was charged with painting plaintiff’s name with the words “the slacker” and “the draft evader,” on certain buildings, and the evidence showed that defendant denied the charge, the assumption in an instruction on the measure of damages that the words were actually published by defendant, held, not cured by other instructions requiring jury to find such facts to be true.</p> <p>4. -: -: Instruction Authorizing Jury to Find for Plaintiff if Defendant Painted Words Alleged in Petition Held Erroneous as There Was No Evidence Defendant Painted Some of the Words Alleged. Where the petition alleged defendant painted certain libelous words upon certain buildings, fences and bridge banisters and there was evidence sufficient to submit the question to the jury as to whether defendant painted the libelous words upon the buildings, but no evidence that defendant had anything to do with the painting on the fences and bridge banisters, an instruction directing the jury to find for plaintiff if defendant painted of and concerning plaintiff the words alleged in plaintiff’s petition was erroneous in that it permitted the jury to find for plaintiff if they believed that defendant painted the fences and bridge banisters when there was no evidence thereof.</p> <p>5. -: -: An Instruction Authorizing Jury to Find Defendant Liable For Publication of Words When There Was no Evidence Thereof is Erroneous. Where the petition complained of painting, with some of which there is no evidence that defendant had any connection, an instruction covering the question of malice and actual and punitive damages authorizing jury to find defendant painted “the words herein complained of” and that said words were libelous and false and to infer they were maliciously published, was erroneous, in that it did not confine the jury to the places where the words were shown to have been painted by defendant hut permitted them to find defendant liable for words painted on fences and bridge banisters for which there was no evidence that defendant was responsible.</p> <p>6. -: -: Instruction Permitting Jury to Award Damages Without Requiring a Finding That Words Spoken Were Defamatory is Erroneous. In an action for libel an instruction which charges the jury that they should allow plaintiff damages without having them find that the words spoken were defamatory is erroneous.</p>

<p>1. APPEAL AND EEEOE: Where Petition States a Cause of Action and Timely Objection to Allegations Thereof Was not Made in Trial Court the Same Cannot be Considered on Appeal. Where petition states a cause of action, and timely objection was not made in trial court against allegations contained therein, objections or observations directed against -the same on appeal cannot be considered.</p> <p>2. CAEEIEES: Evidence Held to Show Agent of Carrier Was Correctly Informed as to Name of Consignee and the Transaction Contained All the Elements Necessary for a Binding Verbal Contract. In an action for damages for negligent failure to deliver a shipment of cattle to the consignee as per contract, evidence held to justify court in finding that defendant’s agent was correctly informed as to-name of the consignee and that the facts and circumstances relating to the transaction contained all the elements necessary for a binding verbal contract.</p> <p>3. -: Carrier Held not Justified in Assuming that Person in Charge of Shipment of Livestock Was Authorized to Sign Name of Owner to Written Contract Where Oral Contract Had Already Been Made With Owner. The fact that owner’s brother was in immediate charge at the time the stock were delivered to the carrier, while they were in transit, is not conclusive evidence that he was authorized to sign the owner’s name to a contract of shipment, or authorized to have carrier’s agent sign owner’s name to written contract, nor is the carrier justified in assuming that he had such authority where an oral contract had already been made with the owner.</p> <p>4. APPEAL AND EEEOE: In Absence of Findings of Law and Fact, Where Findings Were for Plaintiff, Question Whether Brother of Plaintiff Had Authority to Sign Contract as His Agent Held Presumed That Trial Court Considered the Question in View of Conclusion Beached. In the absence of special findings of law and fact( where the findings were for plaintiff, it must be presumed that the trial court considered the question of whether the brother of plaintiff was his agent for the purpose of executing a written contract, and that the court reached the conclusion that he was not such agent.</p> <p>5. -: Carrier Receiving Livestock for Shipment Advised of Name of Consignee, Under Duty to Transport and Deliver to Designated Consignee. Carrier having received the livestock for shipment and having been advised of the name of consignee was under duty of transporting and delivering said stock to designated consignee.</p> <p>6. PRINCIPAL AND AGENT: Authority: Carrier Acting upon Advice and Instruction of Shipper’s Agent Bound to Ascertain and Determine Extent of His Authority. The question of the negligence of the plaintiff’s brother does not enter into the case, inasmuch as the testamony shows and the trial court held that he was the agent of the shipper only for the purpose of taking care of the cattle en route, and if carrier acted upon the advice and instruction of plaintiff's brother, it was the duty of carrier to ascertain and determine how far his authority extended. 1</p> <p>7. -: Evidence Held to Show Shipper’s Brother Merely Agent for Purpose of Taking Care of Livestock While En Route. In an action by shipper against carrier for failure to deliver shipment of cattle to consignee, evidence held to show brother of shipper was his agent merely for purpose of taking care of livestock while en route.</p> <p>8. WAIVER: Where Shipper’s Caretaker Had no Knowledge of Wrongful Delivery of Cattle Until After Sale, Held There Was no Waiver of Shipper’s Rights and Even if Caretaker Had been Clothed with Authority Therefor There Was Nothing in His Contract That Could be Construed as a Waiver of Defendant’s Liability. Where plaintiff’s caretaker did not learn of wrongful delivery of cattle until after they had been sold, and some of them delivered, held, there was no waiver of plaintiff’s rights relative thereto and there was nothing in the contract oi the caretaker, even if he had been clothed with authority therefor, that could be construed as a waiver of defendant’s liability, since waiver is an intentional abandonment of a known right and there can be no waiver unless so intended by one party and so understood by the other.</p> <p>9. CARRIERS: Waiver: Damages: Shippers Acceptance of Amount of Sale of Cattle to ¶ Wrong Consignee Does not Constitute a Waiver’ or Ratification of Diversion of Cattle as the Amount so Received is to be Held in Mitigation of Damages. The diversion of the cattle was not waived and ratified by plaintiff by his acceptance of the fruits of the sale thereof after he had been fully notified of the facts by his caretaker on the day the sale occurred, as the rule is that where goods are delivered to the wrong person and sold and the shipper receives anything in payment therefor, the amount so received is to be held in mitigation of damages.</p> <p>10. -: Where Plaintiff’s Agent was Merely Caretaker of Livestock While En Route, the Court Did not Err in Excluding Evidence as to Plaintiff’s Experience as Stock Shipper and His Knowledge of the Requirements of Livestock Shipping Contracts. Where plaintiff’s brother was not his agent, except to accompany shipment of cattle as caretaker, the trial court did not err in excluding evidence showing plaintiffs experience as a stock shipper and his acquaintance with the customary requirements with respect to . livestock shipping contracts, on the theory that these facts tended further to establish that plaintiff intended that his brother, while acting as caretaker, should execute a shipping contract.</p>