Volume 213 — Missouri Appeal Reports

<p>1. INTERSTATE COMMERCE: Carmack Amendment Does Not Deprive Shipper of Common-law Right to Sue Delivering Carrier for Loss or Damage. The Carmack Amendment to the Hepburn Act (Sec. 8604-A, U. S. Comp. Stat. 1918), providing that initial carrier shall be liable for any loss, damage or injury caused by it or occurring upon connecting lines, and provided further that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law, held not to deprive shipper of his common-law right to sue the delivering carrier and that the presumption still remains that goods which are shown to have been delivered to the initial carrier remained in the same condition until delivered to delivering carrier.</p> <p>2. EVIDENCE: Memorandum: Memorandum of Weights Made by Shipper and Compared by Him with Those of Weighmaster and Found Correct, Held Properly Admissible. In action against a railroad for damages to shipper of potatoes where evidence showed that shipment was weighed by weighmaster, while shipper who was present made notations of each load as announced by weigh-master, and later shipper compared his memoranda of weights with those of the weighmaster and found them correct, held memoranda was properly admitted in evidence.</p>

<p>Appeal from the Circuit Court of Cole County. — Hon. John G. Slate, Judge.</p>

<p>1. BANKS AND BANKING: Debtor and Creditor: Where Depositor Gave Check oh His Account to Bank for Forged Notes, His Bight to the Deposit Was Not Affected or Beduced by the Giving of the Check, But Bank Was Liable for Amount of Deposit. Where a depositor gave a. check on his account to bank for certificate of indebtedness which he did not receive but instead received notes believing them to be such certificates which were worthless, being forgeries, held that the depositor not having thereby obtained anything for the check and no property of bank having been turned over to him in exchange for reduction made in amount of his deposit, the relation of debtor and creditor between bank and depositor created by deposit, was not affected by cheek and bank was liable to depositor for amount of the deposit.</p> <p>2. -: Apparent Authority: Acquiescence; Where a Bank Permitted Its President for Many Years to Act With All powers, and Duties of an Executive Officer, it is Held Liable to Depositor for Amount of Check Given it for Forged Notes Which Depositor Was Fraudulently Induced to Purchase. Where a bank permitted its president for many years to act with all the powers and duties of an executive officer thereof, it is liable to a depositor induced by him to give a check to bank for forged notes.</p> <p>3. -: -: -: Where President of Bank, Acting Within the Apparent Scope of His Duties Induced Depositor to Purchase Forged Notes Which He Has no Authority to Sell, Bendered Bank Liable to Depositor Therefor. Although a bank president who was permitted for a long course of years to act with all the powers and duties of an executive officer thereof was not authorized by bank to sell forged notes to a depositor, but violated his trust as an officer of bank in doing so and secretly and cor ruptly acted for himself, the depositor being innocent in the matter, did not relieve bank from liability to depositor for amount of deposit.</p> <p>4. -: -: -: Fraud: Whether President of Bank Took Money Represented by Depositor’s Check Which Depositor Was Induced by Him to Give for Forged Notes, or Whether it Merely Reduced the Amount of Bank’s Apparent Liabilities or Decreased the Shortage of Cash in Bank, Held Not to Affect Right of De positor to Recover Amount of Check. Whether a bank president who fraudulently induced a depositor to buy forged notes took money represented by depositor’s cheek out of the bank, or whether the check merely served to reduce the amount of its apparent liabilities or to apparently decrease the shortage of cash- in bank, held not to affect depositor’s right to recover amount of check which president of bank was enabled to obtain only because of his position and by virtue of the powers apparently vested in him.</p> <p>5. ELECTION OF REMEDIES: Depositor Filing Demand Against .. Estate of Bank President for Amount of Check Given for Forged Notes, Held Not to Have Elected Thereby to Pursue His Estate, Absolving Bank, as Both Were Liable, Though Depositor Could Have but One Satisfaction. Where depositor filed a demand against the estate of president of a bank for amount of check given for forged notes which he induced depositor to purchase, held that the principle’ of election of remedies has no application, as the bank was and had been for years in a failing condition and both it and its president were liable, though depositor could have but one satisfaction.</p> <p>6. EVIDENCE: Account Book: Private Record: Self-serving Statement: “Blotter” of Bank and Entry of President Therein Held not Evidence Against Depositor in Action by Him to Recover Amount of Check Given for Forged Notes. The “blotter” of a bank and the statement written therein by president that certificates of indebtedness were sold in exchange for a check, which check in reality was given by depositor for forged notes, purchased by him at the solicitation of the bank’s president, held not evidence against depositor, the “blotter” not being an account book, nor a part of the account between the bank and depositor, but a private record of the bank, and the entry made thereon by its president was a mere self-serving statement not binding upon the depositor.</p> <p>7. BANKS AND BANKING: Actions: Money Had and Received: Where Basis of Cause of Action by Depositor Was Not the Fraud of President of Bank Who Sold Him Forged Notes Therefor, but the Fact That Bank Had His Money on Deposit, Part of Which it Never Paid, Held a Case Peculiarly Suited to the Action for Money Had and Received. Where a depositor who was induced by fraudulent representations of bank’s president to give check to bank for forged notes, instituted an action for money had and received, the basis of the cause of action was not the fraud of the bank’s president, but the fact that the bank had depositor’s money on deposit, part of which it has never paid.</p> <p>8. EVIDENCE: Parol Evidence: Parol Evidence Held Admissible to Show Lack of Consideration for Check Given Bank. In an action by depositor to recover amount of a check where depositor showed that he received no consideration therefor, the principle that a written instrument cannot be varied by parol has no application.</p> <p>9. APPEAL AND ERROR: Evidence: Witnesses: Admission of Evi* dence of Plaintiff as to Transaction With Decedent, Held Not Ground for Reversal Where Evidence as to Same Transaction Was Given by Competent Witnesses. Where a depositor gave check to bank for forged notes which he purchased upon fraudulent representations made by bank’s president who had died, under section 5415, Revised Statutes 1919, as reenacted Laws 1921, p. 392, depositor’s wife was a competent witness and his son was also competent to testify fully to the facts of the transaction between president of bank and depositor, there being no evidence disputing the testimony, held, even if depositor was not a competent witness on account of president of bank being dead, such error, if any, ought not to reverse the case, especially where it was tried before the court.</p>

<p>1. ELECTBICITY: Negligence: Negligence of Company Maintaining Uninsulated. Electric Wire Through Bow of Walnut Trees on Land Used as Becreation and Playground by Children and Others, Held Question for Jury. In a suit by a parent to recover damages for loss of services of minor child as result of injury received by coming in contact with an uninsulated electric wire, while in a walnut tree upon a tract of land privately owned, which had for many years been used by public as a gathering place and recreation ground and constantly in use by children as a playground where they had been accustomed to gather nuts from the walnut trees thereon, held that a power company maintaining an uninsulated electric wire running through a row of walnut trees, could have reasonably anticipated that a boy would climb one of the trees and come in contact with its wire and its demurrer to the evidence was therefore properly overruled.</p> <p>2. -: -: Trespasser: Electric Light Company Held Not Believed from Duty to Use Ordinary Care to Prevent Injury to' Boy Because He Was a Trespasser upon Land of Private Owner Over Which it Maintained Uninsulated Wire. Assuming that injured boy was a trespasser as to private owner of land upon which he was gathering walnut nuts and over which an uninsulated electric wire was maintained by an electric light company, he was not a trespasser as to the electric light company, and his trespass upon the land did not relieve light company of the duty to use ordinary care, under the circumstances shown, to prevent injury to him.</p> <p>3. -: -: Contributory Negligence: Boy Held Not Guilty of Contributory Negligence as a Matter of Law in Coming in Contact with Uninsulated Wire Which Injured Him. Where there was no „direct evidence that a, boy, injured by an uninsulated electric wire, knew that the wire was not insulated or that he purposely touched the wire, there being testimony that he did not know of its presence at the place where he came in contact with it, held that he was not guilty of contributory negligence as a matter of law.</p> <p>4. PARTIES: Misjoinder: Waiver: Failure of Mother to Join Father -in Action for Loss of Services Occasioned by Injury to Minor . Child, Held Waived by Answering and Going to Trial Without Objection. Assuming that under section 371, Revised Statutes 1919, the right to recover for loss of services occasioned by the injury of a minor child is vested jointly in the father and mother and must be prosecuted by them jointly, the failure of the mother to join amounted merely to a misjoinder and by answering and going to trial without objection, defendant waived the same, par- . ticularly where the mother, during the trial, filed a written relinquishment to the father of any claim or right that she might have to the services of the minor and waived any right she might have to recover damages by reason of injury to child.</p> <p>5. INSTRUCTION: Instruction Imposing Duty on Defendant to Insulate Wire, if Jury Found Facts With Reference to Its Location, Held Not Erroneous as Requiring Defendant to Use More Than Reasonable Care. An instruction for plaintiff which required jury to find in detail the character of the place where plaintiff’s son was injured by coming in contact with defendant’s electric wire with reference to its being a place frequented generally by children, the kind and description of the tree climbed by boy and the proximity of the live wire thereto, hold not erroneous because it directed a verdict if the jury found that the wire was uninsulated and could have been insulated and made harmless, and the instruction did not thereby impose upon defendant a greater burden than to use reasonable care.</p> <p>6. -: An Instruction Which Assumed That Electric Wire Could Have Been Insulated, Held Not Erroneous. Where there was evidence by defendant that isolation was within the term insulation, and that insulation by space was one of the best insulators known to the electrical world, and it was undisputed that defendant’s wire could have been insulated by isolation, an instruction was not erroneous as assuming that the wire could have been insulated.</p> <p>7. -: Pleading: Contributory Negligence: Where Instruction Did ' Not Have Jury Find Certain Facts Alleged in Petition Negativing Contributory Negligence, it Was Not Erroneous as the Jury Were Required to find by the Instruction, in Order to Render a Verdict for Plaintiff, That He Was Not Guilty of Contributory Negligence. Allegations in petition that injured boy did not know of danger created by uninsulated wire and that he was unable to see or know of position of'wire, constituted no part of the charge of negligence against the defendant, but were pleaded to negative contributory negligence, and an instruction was not improper because it did not require jury to find such facts, where instruction required the jury, before it could find for plaintiff, to find that he was not guilty of contributory negligence, which was defined in another instruction for plaintiff, and one of defendant’s instructions likewise submitted to the jury, the question of plaintiff's contributory negligence.</p> <p>8. -: Refusal of Instruction Precluding Recovery if Boy Could Have Discovered Dangerous Wire Which Ignored Question of Ordinary Care, Held Properly Refused. The refusal of an instruction which told the jury in effect that if boy knew or could have discovered by any means that there was a dangerous wire, with which he might come in contact, he could not recover, held not error as instruction wholly ignored the question of ordinary care.</p> <p>9. VARIANCE: Pleading-: Instruction: No Substantial Variance Between Petition and Instruction as to Remedying and Removing Dangers and Conditions With Respect to Electric Light Wire. There was no substantial variance between allegations of petition alleging public nature of place frequented by children, the situation and character of electric light wire which injured plaintiff’s son, and that such facts were known by defendant or could have been known by it by the exercise of ordinary care in time to have “remedied said condition,” and an instruction for plaintiff requiring a finding that defendant had known said conditions long enough prior to injury to have insulated said wire and “remedied and removed said dangers and conditions.”</p> <p>10. INSTRUCTIONS: Instruction Held Not to Give Roving Commission to Jury to Convict Defendant of Negligence, as it Required Jury to Find Facts Necessary to Recovery by Plaintiff. Where an instruction for plaintiff required jury to find that if electric light where “by use of ordinary care could have been insulated and made harmless” and that defendant could have knbwn of such fact long enough prior to injury to plaintiff’s son to have insulated wire and remedied and removed said dangers, etc., Held not a roving commission to convict defendant of negligence, particularly as jury was also required to- find the character of the ground, the nature and description of tree climbed by plaintiff’s son, the, situation of the wire, and that it carried a deadly current of electricity.</p> <p>11. -: An Instruction Hypothesizing Facts Necessary to a Recovery and Submitting Question as to Negligence of Defendant, Held Not to Submit a Question of Law. Where an instruction after hypothesizing the facts necessary to a recovery, concluded by having jury find that in so maintaining said power wire and in failing to insulate the .same defendant was guilty of negligence held not to submit a question of law to jury in view of other facts set forth in instruction which jury were also required to. find before rendering verdict for plaintiff.</p> <p>12. -: Where Cause of Injury Fully Known, an Instruction on Accident Had no Place in the Case. Where the cause of injury was fully known, the court properly refused an instruction on accident, as it had no place in the case, and particularly where the instruction did not define the term accident.</p> <p>13. -: Degree of Care: Contributory Negligence: An Instruction Not Erroneous in Placing Burden upon Defendant to Show Want of Care and 'Contributory Negigence on Part of Boy. In an action for loss of services of boy injured by coming in contact with uninsulated electric light wire, an instruction was not erroneous in placing upon defendant the burden of showing that boy failed to exercise such care as would “usually be exercised by ordinarily careful and prudent children of the same age, experience and capacity, and in submitting that if the boy exercised such care for his own safety he was not guilty of contributory negligence.</p> <p>14. APPEAL AND EORROR: Misconduct of Counsel: Where Both Sides Exhibited Injured Boy to Jury and Only Misconduct of Counsel Charged Was in Calling Jury’s Attention Thereto, Defendant Held in no Position to Compain. Where there was considerable exhibition of injured boy to jury by' both sides, and the only misconduct of counsel complained of is that boy’s injuries were constantly presented and attention called argumentatively to his real and supposed injury, defendant held in no position to complain.</p> <p>15. TRIAL PRACTICE: Motion to Strike Out: Direction of Court to Jury to Disregard Parts of Answer Requested to be Stricken Out, Held Not to Have Been Misunderstood by Jury. A motion to strike out answer of witness in relation to manifestations of injuries of plaintiff’s son and that he complained of his eyes, held clearly to have referred to such testimony and an instruction by court to jury to disregard the parts of the answer outlined by defendant’s counsel could not have been misunderstood.</p> <p>16. EVIDENCE: Evidence of Various Manifestations of Nervousness on Part of Injured Boy Held Admissible. In a suit to recover for loss of services of plaintiff’s son, evidence of various manifestations of nervousness on the part of injured boy, such as peculiar movements of injured arm and hand, and his crying out and jumping in his sleep, held admissible.</p> <p>17. DAMAGES: A Verdict of $4,910 Awarded Father for Loss of Services of Thirteen-Year-Old Boy, Held Hot Excessive. Where- jury could find that a child thirteen years of age was incapacitated for earning anything, and that he will be an expensive charge to father until he reaches his majority, and that father has already incurred large expenses, a verdict of $4,910 held not excessive.</p>

<p>1. NEGLIGENCE: Master and Servant: Negligence in Permitting Opening in Floor Through Which Angle-Iron Fell, Injurying Employee, Held a Question for Jury. In an action for damages for personal injuries, where plaintiff, an employee of defendant, was ordered to work upon the second floor of a building under construction, while employees of another contractor were engaged in riveting steel girders on the ninth floor, was struck by a heavy piece of iron, known as an angle iron, which was jarred off a .beam by vibrations caused by the- riveting, so that it went through a panel upon the eighth floor, negligently left open by other contractor, striking boards, bouncing off and continuing uninterruptedly down to place where plaintiff was working, held it was unnecessary to show defendant could have foreseen everything that intervened to cause the angle-iron to fall in the way it did, and the question of defendant’s negligence was sufficient to go to the jury.</p> <p>2. -: -: Concurring Negligence: Proximate Cause: Master Held Liable for Injury to Servant as Result of Concurring Negligence of Another. The fact that the negligence of the servants of contractor in placing angle-iron upon the beam and then causing it to fall off, and the negligence of contractor in leaving the panel open through which it fell and injured plaintiff, were concurring causes of the injury, does not relieve defendant, contractor, of its negligence, if that negligence contributed as one of the proximate causes of the injury.</p> <p>3. -: -: Assumption of Risk: Held Court Did Not Err in Refusing to Sustain Demurrer on Ground Plaintiff Assumed the Risk. Where plaintiff, an employee, engaged in working upon second floor of building knew steel riveters employed by another contractor, were working above him on the ninth floor, and the evidence showed he did" not know there was any opening in the planking on the eighth floor through which an angle-iron was caused to fall injuring him, held court did not err in refusing to sustain demurrer on the ground plaintiff assumed the risk.</p> <p>4. JUDGMENT: Res Adjudicata: Waiver: Estoppel: Settlement of Claim after Judgment and Pending Motion for New Trial with Joint Tort-feasor, Held Not to Constitute Res Adjudicata as to Claim Against Others. Where plaintiff recovered judgment against one of two defendants liable for injuries sustained by him, settled with such defendant while motion for new trial was pending, whereby he accepted less than amount of judgment, which it was stipulated should be set aside and case dismissed, and that plaintiff should have the right to proceed against the other defendant to recover additional money necessary to compensate him for his injury, held that although section 4223, Revised Statutes 1919, permits a settlement with and discharge of one joint tortfeasor releasing him from further liability without releasing the other, but the use oif the words “claim or cause of action,” ■ therein, in referring to what might be settled, excludes a judgment, and thereby the first action in which plaintiff recovered judgment was not res adjudicata as to his rights against the other defendant, and he did not thereby waive his claim, nor was he estopped to pursue it, as he was particular not to settle the judgment, but only the claim or cause of action against first defendant.</p> <p>5. ELECTION OP REMEDIES: Actions: Joint and Several: Joint Tort-feasors: Continuing Action After Settlement of Claim with One Joint Tort-feasor Does Not Constitute an Election of Remedies. Where plaintiff sued one joint tort-feasor after dismissal of action and settlement of claim as to another, held that there was no question of election of remedies arising therefrom, as pláintiff had a right to pursue the wrongdoers either jointly or severally.</p> <p>6. PLEADING: Evidence: Evidence as to Curvature of Spine to he Admissible Must be Pleaded. Where no injury or condition of the spine was alleged in petition, evidence as to curvature of spine resulting from injury was inadmissible because not pleaded.</p> <p>7. INSTRUCTION: Damages: Instruction Authorizing Jury to Take into Consideration Plaintiff’s Loss of Earnings, Held Erroneous Because There Was no Evidence as to the Extent Thereof. An instruction which told jury that it might take into consideration the earnings that plaintiff had lost and those he would he reasonably certain to lose in the future, was erroneous, as there was no evidence showing what plaintiff would lose in the future in the way of earnings, nor any evidence as to what he was earning at the time of the trial, although he was employed.</p> <p>8. TRIAL PRACTICE: Improper Argument: Argument That Part of Any Damages Awarded Plaintiff Would go to Attorneys in Payment of Their Fees, Held Improper. Argument of plaintiff’s counsel to jury that a part of the $7000 that plaintiff had already received in compensation for his injuries, went to attorneys to pay their fees, and to intimate to jury that a part of any sum that they might award in present action would go to attorneys for same purpose, held improper.</p>