tions with the bank concerning the payment ant's behalf tending to show that on Janof Ed's debt, the further testimony in de- uary 20, 1912, defendant was on a drunkfendant's favor that plaintiff was assisting en spree, and had been for several days his brother Ed in inducing defendant to go perhaps weeks; that he "ranted around over to Mississippi and look at said lands; and the house;" that he was "raving around," that he assisted his brother in making land not knowing what he was saying. His fam-. deals, is sufficient to make it a question for ily physician testified that, at that time, he the jury to decide whether plaintiff was a was in no condition to attend to any ordibona fide purchaser of the note in suit, or nary business of any kind whatever. On the merely acted for his brother in canceling the 21st, the physican took him to St. Louis to latter's debt. a sanitarium and left him there; that the last he saw of him was on the 22d, and then he was "nervous, talking incessantly" and "ranting around like an ordinary drunken man would," and that in the doctor's opinion the defendant was not "in any condition to intrust any business to." The physician was asked, by defendant's counsel, to state how long, in his opinion, judging from defendant's condition at the time the doctor left him at the sanitarium, he would "be incapacitated from properly attending to ordinary business affairs," to which the physician replied: [4-6] But, as held on the former appeal, the defendant must also show that the' note is .invalid; and consequently, in the case now before us, he, as stated above, offered evidence to show that Ed P. Miller, while yet the holder of said note, consented to the rescission of defendant's contract under which the note was given and resumed possession of said real estate. The defendant further offered evidence as to the invalidity of the note based upon defendant's condition on account of inebriety. The defendant's case was submitted upon both of these theories as to the note's alleged invalidity; and plaintiff attacks the sufficiency of the evidence to sustain either of them. The evidence as to the alleged rescission, and of Ed P. Miller's consent thereto, is sufficient to show such facts, if believed by the jury. With reference to the claim that defendant should have acted more promptly than he did, that was a matter for Ed P. Miller to insist upon at the time. If he waived it then, plaintiff, if acting for him, cannot insist upon it now. As to the point that the evidence shows no consent on Ed P. Miller's part, but only a refusal on the part of defendant to pay his note, the evidence is that Ed P. Miller told defendant he knew the note was worthless, and that it would never give him any trouble. Moreover, the evidence is clear that thereafter Ed P. Miller resumed full possession of the entire plantation, the one-half interest in the management and possession of which he had theretofore turned over to defendant. There was ample evidence to justify the jury in finding that Ed P. Miller consented, and that there was a rescission. The same may be inferred from the acts of the parties. Chouteau v. Jupiter Iron Works, 94 Mo. 388, 395, 7 S. W. 467; Palais Du Costume Co. v. Beach, 144 Mo. App. 456, 462, 129 S. W. 270; Creamery Package Mfg. Co. v. Sharples Co., 98 Mo. App. 207, 71 S. W. 1068. The evidence does not show that defendant retained anything he got under the contract. The money used in running the farm for the time he did was not for defendant's benefit, but for the farm, and therefore Ed P. Miller got the benefit thereof and of the personal property on the farm when it was all turned back to him. As to the alleged invalidity of the note because of defendant's condition on account "Well, time is a most important factor in nervous troubles, and the conditions brought about they were by prolonged dissipation-it takes some time. Ordinarily people in sanitariums never like to accept any one until they stay the proper time; ordinarily they require three weeks in the room and about the hall and after that a period of convalescence-it takes time. I would say a man his age it would take several months to be fully reconstructed." The physician was unable to say whether, if defendant left the sanitarium voluntarily and went to Mississippi, bought a plantation, and worked on it for six weeks, he was competent or incompetent. Thereupon plaintiff offered testimony tending to show that defendant voluntarily left the sanitarium and went about over the city of St. Louis, and, after arranging to go to Mississippi, met Ed Miller and perhaps three other men at the Union Station, where he bought his own ticket and went to that state; that they drove from the town out to the plantation, and defendant and Ed P. Miller went over it. Odon Guitar, a lawyer of St. Louis, who was one of the party, and not interested in the case, testified that defendant and Ed P. Miller stayed at the plantation that night (evidently January 24th), but that he and the others went back to town; that the next morning defendant and Ed Miller came in with a memorandum they wanted to have embodied in a contract; that he saw drinking on the trip; that he observed nothing wrong about the defendant's condition. Another member of the party, a brother-inlaw of the plaintiff, swore that there was no liquor used on the trip to his knowledge; that he saw no signs of defendant's being under the influence of liquor or incapacitated from doing business or manifesting any nervousness whatever. It was also shown by a lawyer of Yazoo when the contract and note were drawn, and that he was not intoxicated to any extent at the time he saw him, nor did he appear to be laboring under any influence, but, on the contrary, appeared to be a man of good judgment and able to take care of himself in every way; that he saw defendant several times during the latter's stay down there, a period of perhaps 60 days, and in his conversations defendant appeared perfectly satisfied with the trade he had made. It was also shown that after defendant made the contract and executed the note, he went upon the place, plowed about 100 acres thereof, bought seed, prepared a garden, bought some machinery, a few plows and a little harness, cut some heavy timber and dug some ditches; that he seemed well satisfied with his trade, and was going ahead with his work; that about the 12th of March, 1912, he got a letter from Missouri and left, saying he was going back to attend to some business, but would return; that he did not take his trunk away with him, but left it at the plantation, and about a month later had it sent to him; that during the entire time he was at the plantation he was sober and satisfied with his trade. [7] The burden of showing incapacity on account of a nervous drunken condition was on defendant, and the evidence in his favor on that issue does not come down later than January 22d, when the doctor left him at the sanitarium. Indeed, there is no evidence of incapacity, at the time the note was signed, unless it can be said that the doctor's evidence hereinabove mentioned, along, perhaps, with that of the alleged admission of Ed P. Miller that he knew the note was no account, affords sufficient grounds from which an inference, as to defendant's incapacity at that time, can be drawn. We may pause here to remark that, upon this branch of the case, it is not seen where there was any showing of fraud perpetrated upon defendant or of an undue advantage taken of him. For there was no evidence of fraudulent representations or other fraud practiced upon him; nor was there any evidence of unfair advantage taken of him, in view of the fact that the court would allow neither side to go into the question of the value of the lands sold to him, but excluded the evidence offered by each on that subject. For this reason, as to this feature of the defense, defendant is not entitled, under the present state of the evidence, to depend upon anything other than drunkenness alone to vitiate the note. Hence, even if it be true that where the other party to a contract has, by his act or connivance, brought about the intoxication, or has taken an undue advantage of the intoxicated person and has thereby perpetrated a fraud upon him, a less degree of intoxication may be sufficient (6 R. C. L. pp. 598, 631), nevertheless, as the evidence now exists, defendant must stand or fall upon the question of whether his drunkenness was of the character or degree required by law to vitiate his contract. For it is well known that men may be partially intoxicated and yet have capacity to contract, and therefore the courts have been compelled to define the degree of intoxication necessary to avoid a contract. The vule in this regard is that, in order to set aside the intoxication must be such as to render a contract on the ground of drunkenness, the intoxicated person incapable, at the time the contract is entered into, of knowing what he is doing or of comprehending the consequences of his acts. Mere undue excitement or intellectual limitations caused by liquor, which prevent him from giving to a proposed contract all the consideration he might Now, the defendant's evidence does not dis- otherwise give it, are not sufficient. 6 R. C. close that his spree had brought on a derang-L. § 18, p. 597; Longhead v. Combs Com. Co., ed mental condition which persisted after the 64 Mo. App. 559; Rogers v. Warren, 75 Mo. App. 271; Glenn v. Martin, 179 Ky. 295, 200 state of intoxication had worn off. Whatever raving and “ranting" that was going on was from the effects of a present state of intoxication. The doctor said that when he left him at the sanitarium he was "just ranting around like an ordinary drunken man would." And, when asked to give his best judgment as to whether he was competent or incompetent after going to Mississippi, the doctor said: "I don't know; I couldn't say. A man can go ahead and carry on his business whether he was competent or not. They all feel like they can do it and want to do it." So that there was no showing made that defendant was an insane person whose insanity had been brought about by a former state of prolonged intoxication; but the defense was based upon the claim that the note was voidable because of drunkenness upon defendant's part whereby the payee was enabled to perpetrate a fraud upon, and take an unfair advantage of, defendant. S. W. 456. It seems clear that defendant's evidence was not sufficient to make a showing that at the time he executed the note he was in such condition that he did not know what he was doing, nor understand the consequences of his acts. Even if he were intoxicated on January 20 or 22, 1912, so that he was then unable to understand what he was doing, yet if he was sober on the 25th of January, at the time he signed the note, or was in such condition that he could comprehend the nature of the obligation he was then entering into, he would not be entitled to avoid the note on the ground of drunkenness. We do not say that, if there were evidence of fraudulent representations, unfair advantage, and imposition practiced by Ed P. Miller upon defendant, we would require defendant to show that at the time the note was executed he was wholly incapable of UHLMER v. ST. JOSEPH GAS CO. (No. 12811.) (Kansas City Court of Appeals. Missouri. April 29, 1918.) 1. GAS 18 INJURY FROM ESCAPE OF NEGLIGENCE-PROXIMATE CAUSE. In an action against a gas company for infailure of company employés to shut off gas in juries from escaping gas, claimed to be due to main before opening a service pipe, the company, regardless of how negligent, cannot be held liable if such injuries were caused by gas leakGAS 20(2) INJURY FROM ESCAPE OF -SUFFICIENCY OF EVIDENCE. In an action against a gas company for injuries caused by escaping gas claimed to be due to the negligence of the company employés in not shutting off gas in main upon opening a service pipe, evidence held sufficient to support a verdict for plaintiff. 3. EVIDENCE 506 EXPERT TESTIMONY ISSUES FOR JURY. A question submitting the whole case to an expert witness for decision is improper. 4. EVIDENCE 508 - EXPERT TESTIMONY GAS. - understanding what he was doing. For in that event the evidence would have shown fraud in connection with drunkenness, or fraud with drunkenness, or a a condition brought on by drunkenness, offered as a circumstance to show fraud or the ease with which it could be perpetrated. But while defendant pleaded fraud and unfair advantage in connection with drunkenness or a codition brought about thereby, and submitted his case to the jury on that theory, yet, as the evidence stood when the case went to the jury, there was no showing of fraudu-age, not the result of such negligence. lent representation, imposition, or undue advantage practiced upon defendant to induce him to sign the note. And hence the note could not be held vitiated unless a showing was made that, at the time defendant signed it, he was in such a condition from drunkenness as to be incapable of, knowing what he was doing; or, in other words, that he was incapable because of a lack of mental capacity. This is true regardless of why it is that there is no evidence of fraudulent representations, imposition, or undue advantage, or In an action against a gas company for inof how it was that the court excluded evi-juries caused by escaping gas due to the negligent opening of a gas main, expert testimony as dence offered by both sides on the subject to the specific gravity of gas, and whether it will of the value of the Mississippi lands, which rise and diffuse itself in air upon leaving the would tend to show whether there were gas main, is admissible. fraudulent representations made or undue advantage taken or not. The fact remains that, with the evidence in the state it was in, defendant, in order to maintain the burden of proving the note was vitiated, had to make a prima facie showing that, on account of his condition at the time the note was signed, he was incapable of understanding what he was doing. It was not sufficient to merely show that possibly he was in a weak, nervous, condition, and had not fully recovered from all the debilitating effects of a former spree. The evidence does not show, or tend to show, that defendant was in any degree intoxicated on the day he executed the note, or that he was not fully at himself when he signed the note. For this reason, defendant is not entitled to have the judgment in his favor affirmed. On the other hand, this does not entitle the plaintiff to have the case remanded with directions to enter judgment in his favor, since the question still remains whether there was a rescission of the contract between Ed P. Miller and defendant which would vitiate the note if, as the jury has found, the plaintiff was merely acting for Ed when he got possession of the note. And defendant is also entitled to show, if he can, that said note was vitiated either through drunkenness alone or fraud in connection with drunkenness or a condition produced thereby, provided it is also shown that plaintiff did not in good faith purchase the note from the bank for himself, but was merely acting for his brother in the matter. The judgment is reversed, and the cause remanded for a new trial. All concur. Appeal from Circuit Court, Buchanan County; Hon. Lucius A. Vories, Judge. "Not to be officially published." Action by Anna N. Uhlmer against the St. Joseph Gas Company. Judgment for plaintiff, and defendant appeals. Affirmed. William E. Stringfellow, of St. Joseph, for appellant. Sherman & Owen, of St. Joseph, for respondent. ELLISON, P. J. Defendant is a gas company furnishing gas to the inhabitants of St. Joseph, and plaintiff was one of its patrons. She brought this action, charging that she was poisoned by gas negligently allowed to escape into her house. She recovered judgment in the circuit court. It appears for several days plaintiff had noticed an odor of gas in her house, and that she notified defendant, and it undertook to find the leak and close it. It was soon ascertained that the pipes and fixtures inside the house were in safe condition and that the gas was coming in at the point where the service pipe, leading from the street, entered the house, at least the strongest odor was in the front hall which was over that place. The defendant undertook to find the leak by devices know to experts in the employ of gas companies. Finally it dug a trench up to the foundation of the house, making a hole under the foundation, and found open places in the service pipe, near the house, through which gas escaped and was escaping. All this was done without shutting off the gas from the main in the street; the only precaution against the escaping gases coming through the hole under the foundation, was off regardless of objections, and, in fact, it that of one of defendant's employés putting was finally shut off. his coat over it. The negligence charged in the petition is in opening up the service pipe and the hole under the foundation without shutting off the gas from the main in the street. There was abundant evidence tending to support this charge. It appeared that the work progressed for several hours, until plaintiff had seated herself in a room to rock her child to sleep, when she was overcome by the gas and became insensible, until rescued and her husband and physicians sent for. Her injury was shown to be of a very serious character. [1] It is clear that defendant's failure to shut off the gas for several hours after the house was exposed was the grossest negligence; but defendant insists that, however reprehensible its conduct may have been in that regard, plaintiff's injury did not follow therefrom as a consequence, from the fact that she was already gas poisoned when defendant began its work. It is, of course, a correct legal proposition that whatever may be one's negligence, yet if the injury charged did not result from it, there can be no recovery. In other words, the negligence charged and relied upon must be the proximate cause. [2] There was evidence tending to support defendant's point. There was evidence to show that for several days before defendant began the work gas could be detected in the house when one would go in from the fresh air outside. It was stated that plaintiff was "saturated" with the gas. But, on the other hand, there was evidence tending to support the theory that there was an increased flow of gas by exposing the service pipe in the trench leading up to the opening defendant made under the foundation. Plaintiff had been in the house before defendant began work, and it was only after exposing the house as it was exposed that she was stricken. The question, first, of defendant's negligence, and next, whether such negligence was the cause of her injury, was directly and repeatedly submitted to the jury in instructions for defendant. It is rare that instructions are more pointedly more pointedly drawn than were these. The jury has determined the case. It was their province to pass on the evidence and to draw all reasonable inferences. We think there is not the slightest ground for interference. We have not overlooked the suggestion that there was evidence given by defendant's employés that plaintiff protested against shutting off the gas. There was testimony that she "hoped" that would not have to be done, but nothing in the sense that she forbade its being done. And in fact defendant's foreman said that if he had thought the situation demanded it, he would have shut it [3, 4] Evidence of experts in gases was offered and excluded. The questions asked, as was remarked by the trial court, submitted the whole case to the witness for decision. They were asked if, under named conditions in the trench and the service pipe, the gas would enter or flow into the house; but the court permitted them to testify to the specific gravity of the gas in question and what was its tendency of action after escaping from the pipe, whether it would rise and diffuse itself in the air, etc. No error was committed. It is not pretended that cases in point have been found, but many authorities involving the principle underlying liability and nonliability, have been cited and received our consideration. These principles are plain and well settled by the Supreme and appellate courts of the state. But our conclusion herein rests upon the case made by the evidence and the action of the jury thereon. The judgment is affirmed. All concur. FISCHBACH v. DUNHAM et al. (Kansas City Court of Appeals. Missouri. April 1, 1918.) 1. NEGLIGENCE 119(6) PLEADING-CONTRIBUTORY NEGLIGENCE. ed by defendant it is not available as a deWhere contributory negligence is not pleadfense unless there is undisputed evidence thereof. 2. APPEAL AND ERROR 1066 HARMLESS ERROR. Where passenger sues street railway for injuries received in starting car with jerk, an instruction defining negligence, without confining same to the starting of the car, is not reversible error, where the proof showed that the only negligence causing injury was that of starting car with a jerk. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Christian Fischbach against R. | ants. There was no pretense that any other J. Dunham and others. Judgment for plain- negligence than that of the servants in tiff, and defendants appeal. Affirmed. Clyde Taylor, of Kansas City, for appellants. Henry West, of Brookfield, and Wilkinson & Wilkinson, of Kansas City, for respondent. ELLISON, P. J. Plaintiff's action is for personal injury resulting from being thrown to the street from one of defendant's street She recovered judgment in the trial court for $1,500. charge of the car was involved. The motorman admits in his testimony that nothing was wrong with the operation of the car, and that if there was any sudden lurching of the car he, and no one else, was to blame for it. The cases cited by defendant are not in point. [4] Criticism of instruction C is likewise not well taken. It is said that it authorizes speculative and remote damages by not being limited to such damage as arose directly from the injuries received. The instruction confines the damages to the injuries which the jury "believe from the evidence she has sustained." Meily v. Railroad, 215 Mo. 567, 577, 596, 114 S. W. 1013. [5] Finally defendant insists that, if it is mistaken in the views advanced to support the charge of errors in the trial, the judg ment should nevertheless be reversed and cause remanded on account of excessive ver It is charged in the petition that plaintiff became a passenger on one of defendant's cars, and, desiring to get off, she signaled for the car to stop; that she proceeded to the rear platform, and, while standing thereon preparatory to alighting, the car, still moving, was negligently and suddenly started forward whereby she was thrown full length onto a paved street. We have examined the record and find no substantial error dict, unless a remittitur of $1,000 be requirin the trial. The evidence in plaintiff's be-ed. We think the amount of the verdict half tended to support the allegations of is justified by the evidence as to the nanegligence and the verdict rendered there- ture of plaintiff's injuries. Her ankle was wrenched and sprained, so that her leg was [1] Contributory negligence was not plead-swollen and discolored from the knee to her ed by defendant, and hence cannot be in- foot. Her jaw was dislocated, and there was sisted upon as a defense unless the evidence, a bruise on her head at the base of the without dispute, shows such negligence, and that cannot be said of this record. under. brain. She was made extremely nervous, and in consequence of these injuries was confined to her bed for several weeks. We have not discovered any error which would justify our interference, and hence must affirm the judgment. All concur. MITCHELL v. VIOLETTE. (No. 12529.) Missouri. 1. BAILMENT 13-CARE REQUIRED-BAILMENT FOR SOLE BENEFIT OF BAILEE. [2] Instruction A given for plaintiff informed the jury that it was the duty of defendant's employés "to use the highest practicable degree of care that can reasonably be expected of prudent, skillful, and experienced men engaged in that kind of business to safely carry and transport plaintiff, and any failure on the part of defendant's said employés to exercise such care would be negligence." The charge in the petition was of specific negligence in suddenly starting the car by a jerk, so that it suddenly lurched forward. It was said in Davidson v. Transit Co., 211 Mo. 320, 355, 356, 361, 109 S. W. 583, that the instruction should have been confined to that charge. Instead it broadens the charge to the extent of requiring such care in all matters connected with the DENCE.. In an action for damages to a horse loaned operation of the car, and directs that any defendant for his sole benefit, caused by his negfailure to exercise such care would be negligence in not properly fastening the neckyoke ligence. But, as in the case cited, this is to the tongue of a wagon to which the horse not reversible error, since all the proof was hitched, evidence held to justify a finding that defendant was negligent. showed that whatever injury plaintiff received was from the specific negligence charged. [3] The criticism on instruction B is not well founded. The jury could not have been misled. The petition charged that the injury was inflicted through the negligence of defendant's servants in charge of the car, while the instruction submitted the negligence of "defendant's employés," omitting the words "in charge of the car." It is claimed that this left the jury to consider the negligence of any of defendant's serv The bailee of a wagon and horses for his sole benefit is bound to take great care and use extraordinary diligence, and is responsible for slight negligence in relation to the subject-matter of the bailment. 2. ANIMALS 27-CARE REQUIRED 3. ANIMALS 27 ACTIONS FOR NEGLI GENCE QUESTION FOR JURY. In an action for injuries to a horse loaned defendant for his sole benefit, whether plaintiff or his wife was negligent in failing to instruct defendant as to the manner of fastening the neckyoke to the tongue of a wagon to which the horse was hitched, held for the jury. 4. ANIMALS 27-ACTION FOR NEGLIGENCE -PLEADING AND PROOF. defendant for his sole benefit, and alleged to In an action for injuries to a horse loaned have been injured by defendant's negligence in allowing the wagon to run upon the leg and |