Sidor som bilder

as it is all paid up for a year from the time was limited to the expression of a mere inof insuring it. Now if the company won't tention to act in the future on the subject carry it any longer and you can place it in of cancellation, and since no tender of, nor any other good company for the unexpired offer to return the unearned premium was time without any further expense to me you made at any time before the loss, defendant can do so. The policy is in charge of the has failed to establish its claim of a performSullivan Co. Bank. You can see Nova Payne ance of the conditions essential to the proper and he will show you the policy. I don't see exercise of its right to rescind. any need of changing policies and hope you [2] But counsel for defendant urge that won't have to. Please let me hear from you plaintiffs ratified and consented to the canat once and oblige." Payne returned to Miscellation, and thereby waived performance by lan, and was informed by the agent that he defendant of the conditions we have been could not find the policy at the Sullivan discussing. The letter written in answer to County Bank. Payne replied that the policy the alleged notice certainly does not disclose certainly was at the bank. The agent sug- any thought of the writer of terminating the gested that it might be at Payne's house, and contract by mutual consent. Manifestly the Payne then promised to search for it, and writer construed the alleged notice as we the agent agreed to change the insurance to have construed it, viz., as being not a formal another company. This conversation OC- and legal notice of rescission but as an excurred on or about March 23d, and in its pression of an intention to act in the future, course the agent stated that the old policy and, treating the subject as still open to "stands till we can get it changed, if any argument or negotiation, attempts to disloss." Payne did not find the policy, and suade defendant from carrying out its exnothing further was said by the parties on pressed purpose. The sentence, "Now if the the subject of cancellation until after the company won't carry it any longer, and you loss. Defendant did not offer to return the can place it in another good company for unearned premium.

the unexpired time without any further exTo effect a cancellation of the policy be- pense to me, you can do so," instead of sugfore the end of the term for which it was gesting the idea of an immediate cancellaissued, defendant was required by the con- tion by mutual consent, conveys the opposite tract to give plaintiff "five days' notice of meaning that the writer is not accepting the cancellation." Such notice to be valid nec- notice for more than its legal worth, is not essarily should have expressed a clear and regarding it as a finality, and is not renouncunequivocal action of defendant on the sub- ing his right to a restoration of the status ject of cancellation, and not a mere purpose quo. In effect, he was saying to the agent: or intention to take such action at some “If you do conclude to rescind the contract future time. As we said in Banking Co. v. I will accept a policy in another company Ins. Co., 75 Mo. App. 314: “The effect of a for the unexpired term in lieu of a tender of cancellation being an option of one party to the unearned premium." This letter left the bring to an end a contract for the protection parties in their old relation of insurer and of another, the action taken to that end must insured and the subsequent conversation at be unequivocal, and not such as may be a Milan between plaintiff and the agent who subject of misinterpretation. It must not was defendant's alter ego, instead of changdepend upon a future event, but must be a ing that relation continued it by express present purpose carried out, so that the poli- agreement to such time as an exchange of cy is canceled at the time the cancellation policies could be effected. could become effective under the contract." [3] The argument that the agent became See, also, Gardner v. Ins. Co., 58 Mo. App. the agent of plaintiffs for the procurement 611; Iron Co. v. Ins. Co., 127 N. Y. 608, 28 of a new policy, and therefore should be N. E. 653, 14 L. R. A. 147; Elliott on Insur- considered as holding the unearned premium ance, $ 300. But defendant, to accomplish a in such capacity and for the benefit of plaincancellation of the policy—a rescission of the tiffs, is untenable. The agent did not act in contract—at the end of the five days period, a dual capacity, but throughout the entire could not stop with the giving of a notice of transaction was the agent only of defendant. the character described. "In the rescission As we have stated, the substance of plainof a contract by one party, it is a necessary tiff's alternative offer to defendant was to condition precedent to such rescission to accept a policy in another company in place place the other party in statu quo, to restore of the old policy should defendant conclude to him whatever may belong to him by rea- to assert its right to rescind. In such case son of bringing the contract to an end." defendant would have had the option of proBanking Co. v. Ins. Co., supra. This rule curing the new policy or of tendering the applied to the cancellation of an insurance unearned premium in money and the acts policy by the insurer calls for a tender to performed by the agent in giving effect to the insured of the unearned premium he either course could not have been regarded has paid as a condition precedent to the re- in any other light than as acts performed in scission of the contract. The application of defendant's service. The defense of cancelthese rules to the facts in evidence leads to lation finds no support in the evidence.


tion given the jury finds conclusive answer [1] The evidence balanced largely in plainin the case of Van Buskirk v. Railroad, 131 tiff's favor. One or more neighbors saw him Mo. App. 357, 111 S. W. 832.

pursuing her with a butcher knife; another The judgment is affirmed. All concur. saw him choking her. The police were call:

ed in at least twice by persons who thought it necessary to her protection.

On his part he disclaimed charging her HAUBER V. HAUBER.

with adultery, but testified he saw her sit(Kansas City Court of Appeals. Missouri.

ting in the lap of a man who had a room at April 21, 1913.)

their house. She denied this and explained 1. DIVORCE ( 130*) – SUFFICIENCY OF Evio that she was cleaning the room as usual DENCE-CRUEL TREATMENT.

In a wife's action for divorce on the when the man happened in, and defendant, ground of cruelty, evidence held to support a who was watching, came to the door. He decree for plaintiff.

likewise testified that she abused him with [Ed. Note. For other cases, see Divorce, vile language. Cent. Dig. SS 442-445; Dec. Dig. § 130.*] 2. DIVORCE ($ 298*)--CUSTODY OF CHILDREN. ponderated with the plaintiff that the trial

[2] We think the evidence so strongly preIn a wife's action for divorce the ground of cruelty, where the husband filed a

court could not have done otherwise than cross-bill for a divorce, and the evidence give her the decree with the custody of the strongly preponderated in favor of the wife, infant child. the court properly gave her the custody of an infant child, a boy about three years old.

[3] The only question of the least doubt is

Defendant was [Ed. Note.-For other cases, see Divorce, the amount of alimony. Cent. Dig. $$ 781-787; Dec. Dig. § 298.*]

shown to be worth about $7,500, and it ap3. DIVORCE (8240*)-ALIMONY-AMOUNT.

pears that he owes plaintiff $400, money reIn a wife's action for divorce, where it ap-ceived from her. We will permit the paypeared that the husband was worth about $7,- ment of the full amount of alimony, to liq500, and that he was indebted to the wife for uidate (she consenting thereto) the $400 ow. $400 received from her, an allowance of $2,500 alimony would, with the consent of the wife, ing to her. The judgment for divorce and be modified so as to permit the payment there custody of the child will be affirmed. But of to liquidate the husband's indebtedness to the judgment for alimony will be reversed the wife. (Ed. Note.-For other cases, see Divorce,

and the cause remanded that a provision Cent. Dig. 88 675-678, 680; Dec. Dig. $ 240.*j may be incorporated therein to the effect

that the full payment of the alimony shall Appeal from Circuit Court, Buchanan discharge plaintiff's claim of $400. All conCounty; W. D. Rusk, Judge.

cur. Action by Katherine Hauber against Joseph M. Hauber. From a decree for plaintiff, defendant appeals. Reversed and remanded.

COOLEY v. KANSAS CITY ELEVATED K. B. Randolph and B. R. Martin, both of

RY. CO. St. Joseph, for appellant. Mytton & Parkin

Missouri. son, of St. Joseph, for respondent.

(Kansas City Court of Appeals.

April 21, 1913.) ELLISON, P. J. Plaintiff brought this ac- 1. DAMAGES (8 158*)—NECESSITY OF PLEADtion against defendant in the Buchanan


In an action for personal injuries, any incounty circuit court for a divorce. He de

jury shown by the evidence to be a natural connied the allegations of the petition and him-sequence of that pleaded, and, while not a necself asked a divorce for her fault. The trial essary or inevitable consequence, a usual one court denied his cross-bill and entered a de- that could reasonably be expected to follow from

the injuries alleged, may be proved. cree for plaintiff, together with the custody

[Ed. Note.-For other cases, see Damages, of their only child, a boy about three years Cent. Dig. 88 441-444; Dec. Dig. $ 158.*] old, and also $2,500 alimony.

2. DAMAGES (8 158*)-NECESSITY OF PLEADPlaintiff alleged in her petition that de

ING-PERSONAL INJURIES. fendant had made her condition intolerable Under a petition alleging that plaintiff sufby a course of indignities, beginning soon fered retroversion and falling of the womb, and after their marriage, consisting of barbarous that the injuries sustained caused internal

hemorrhages and laceration of the abdominal treatment; that he cursed and abused her walls and displacement of the pelvic organs, evwithout stint and more than once assaulted idence that she subsequently became pregnant and beat her, whereby she at times had to and suffered a miscarriage was competent, where flee to her neighbors; that he assaulted her the other evidence showed that a miscarriage

was the usual result of the injuries alleged and with a butcher knife and at other times one reasonably expected to follow if pregnancy Threatened her with an axe and a razor.

existed or arose. Defendant, by his cross-bill, charged that

(Ed. Note.-For other cases, see Damages, plaintiff frequently assaulted and that she Cent. Dig. $8 441-444; Dec. Dig. & 158.*] also abused him with vile language; that 3. WITNESSES ($ 363*)-CREDIBILITY OF Physhe would purloin his money; that she had

SICIAN-CONSENT TO APPOINTMENT. committed adultery and had sat in the lap not be shown to affect the weight to be given

In an action for personal injuries, it could of a roomer at their house.

the testimony of a physician appointed by the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

court to examine plaintiff, that his appointment | tions may not furnish an accurate or safe was agreed to by plaintiff.

rule from which to determine the admissibil[Ed. Note-For other cases, see Witnesses, ity of evidence in another case where the facts Cent. Dig. 88 1177, 1178, 1181; Dec. Dig. 363.*]

are different. For instance, these cases, as

stated, frequently define the difference beAppeal from Circuit Court, Jackson Coun-tween general damages and special damages ty; William 0. Thomas, Judge.

in such a way as to lead one to suppose that Action by Ivy Cooley against the Kansas the admissibility of the evidence depends on City Elevated Railway Company. Judgment whether the results it tends to show are, or for plaintiff, and defendant appeals. AL

are not, the “necessary” consequence of the firmed.

wrongful act pleaded. That is to say, if John H. Lucas and Chas. N. Sadler, both the results which the offered evidence tends of Kansas City, Mo., for appellant. Fyke & to show are the “natural and necessary" conSnider, of Kansas City, Mo., and Anderson & sequences of the act pleaded, then they are Robinett, of Kansas City, Kan., for respond general damages and the evidence is admisent.

sible under a general pleading; but if such

results are the natural, but not necessary, TRIMBLE, J. Plaintiff, while a passenger consequences of the wrong pleaded, then they on a street car, received injuries caused by are special damages and the evidence is not a collision of her car with another. Suit admissible. Thompson v. Railroad, 111 Mo. was brought against the Metropolitan Street App. 465, 86 S. W. 465. It would seem that Railway Company and the Kansas City Ele- the above is a safe and excellent rule to vated Railway Company, but during the trial follow in order to determine whether certain plaintiff dismissed as to the former. The evidence is admissible under a pleading of contest was not over defendant's liability, general damages. That is, if the results are but over the questions as to what injuries the natural and necessary consequences of plaintiff received in the collision and wheth- the wrong pleaded, then the evidence is ader it caused her condition at the time of the missible; but if they are the natural, but not trial. The petition alleged that as a result necessary, consequences of such wrong, then of the collision she was "bruised, maimed, evidence thereof is not admissible. This sprained, lacerated, and wounded; that both would work no hardship on the plaintiff, of her lower limbs, feet, and ankles were since he can either plead them, or, at the sprained, wrenched, and bruised; her back trial, amend his petition so as to include was wrenched; that said fall caused internal any "natural but not necessary” results, i. injuries; that she suffered therefrom retro- e., special damages, and thus give the defendversion and falling of the womb; that said ant notice of what he is called upon to meet. injuries have caused internal hemorrhages If that is the rule we are to follow, it and laceration of the abdominal walls and would seem that in the case at bar we are displacement of the pelvic organs.”

required to reason thus: Many wombs Defendant's most serious complaint is that displaced that do not suffer miscarriages. the court, over defendant's objection, admit. Such a result cannot occur unless there ted evidence showing that after the injury comes into existence the after occurring fact plaintiff became pregnant and suffered a mis- of pregnancy. Hence the miscarriage was a carriage, which took place about eight or natural but not a necessary consequence of nine months after the collision. Defendant the injuries pleaded. Hence, according to contends that, as the miscarriage was not the test, the miscarriage in this case, not pleaded, the evidence in regard thereto should having been pleaded, should not have been have been excluded; that to admit it is to admitted in evidence because it was a naturallow proof of special damages when the pe-al but not a necessary result of the injury. tition pleads general damages only.

And many cases appear to justify the use of [1] The question of its admissibility is one this test. Brown v. Railroad, 99 Mo. 310, of some difficulty, which is increased by rea- loc. cit. 318, 12 S. W. 655; Nicholson v. Rog. son of the fact that many cases do not state ers, 129 Mo. 136, loc. cit. 140, 31 S. W. 260; the reason for admitting or excluding the Lesser v. Railway, 85 Mo. App. 326, loc. cit. proffered evidence, but rests its admissibility 331; Mellor v. Railroad, 105 Mo. 455, loc. cit. or inadmissibility simply on whether or not 464, 16 S. W. 849, 10 L. R. A. 36; Coontz v. it tends to prove general damages or special Railroad, 115 Mo. 669, loc. cit. 674, 22 S. W. damages; and then, in distinguishing be- 572. As said before, such a test is correct tween these damages, say that general dam- when applied to the facts in the cases which ages are such as are the natural and neces- thus make use of it. But is it entirely acsary result of the act pleaded, while special curate to apply it to other cases where the damages are those which are the natural, facts are dissimilar? Or is it safe to follow though not the necessary, result thereof. a definition which, however correct it may This may define them correctly in the light be when used with reference to the facts of the facts of the particular case in which in that particular case, may not be broad such definitions are used. But these defini- I enough to apply to other facts?


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In the case of Gurley v. Railroad, 122 Mo. pect from the nature, character, and extent 141, 26 S. W. 953, the injury pleaded was a of the injury alleged. In other words, the crushed leg causing permanent and irrepara- correct test for determining the admissibility ble bodily injuries, and evidence showing a of the evidence is, not whether the damages paralyzed arm was held admissible. This sought to be shown thereby are the natural may have been a natural result of the injury and necessary results of the injury pleaded, alleged, but certainly it was not a necessary but are they such as the defendant may rearesult thereof.

sonably take notice of and expect from the

And in the recent case of Moore v. Transit general allegations in the petition?
Co., 226 Mo. 689, 126 S. W. 1013, the Supreme may be what is really meant when it is
Court, in the majority opinion, say that this said that “general damages are such as the
rule, limiting the damages provable under a

law implies or presumes to have occurred general allegation to those which are the from the wrong complained of, and they need necessary result of the main injuries alleged, not be pleaded.” Brown v. Railway, 99 Mo. is too strict (226 Mo. loc. cit. 702, 703, 126 s. 318, 12 S. W. 656; 2 Sutherland on DamW. 1013). In this case the Supreme Court ages, & 418; 8 Am. & Eng. Ency. of Law say that all injuries which naturally result (2d Ed.) p. 542.

[2] Was the miscarriage in this case a from the main or specific injury alleged may be shown without being specifically pleaded, such a one as the defendant might reasona

natural result of the injuries alleged and and that such natural result does not have to be a necessary result but only a usual bly expect to follow from the nature, charone reasonably expected to follow from the It was shown to be a natural result by the

acter, and extent of the injuries alleged ? injuries inflicted and alleged (226 Mo. loc. testimony of the physician who said a discit. 699, 126 S. W. 1015). In the petition there

placed, retroverted, and fallen womb was was a general allegation of "serious injuries one of the most common causes of miscarto the back, legs, kidneys, and nervous sys- riages and would cause a miscarriage “nine tem,” and the court held that, under it, evi- times out of ten.” Which testimony also dence could be offered of impotence and loss shows that miscarriage is the usual result of sexual desire. The loss of sexual desire and one reasonably expected to follow if was a natural but certainly not a necessary pregnancy exists or arises. Plaintiff was a result of the injuries pleaded in that case. healthy, vigorous married woman at the And it would seem that this would have time of the collision. When it is alleged made it inadmissible as being special dam- that the womb is thus injured and all the ages, as this is the definition frequently giv- pelvic organs displaced, is not this notice en of such damages. Roberts v. Graham, 6 to defendant that if pregnancy occurs, aftWall. 578, 18 L. Ed. 791; 8 Am. & Eng. Ency. er the injury and during the displacement of of Law, 540; Thompson v. Railroad, 111 the organs, miscarriage will occur? Surely, Mo. App. 465, loc. cit. 476, 86 S. W. 465; 5 if an allegation of injury to the back and Ency. of Pl. & Pr. 720.

spinal cord will give defendant notice of So that if the Gurley and the Moore Cas- loss of sexual desire sufficient to admit evies are to be followed as the doctrine now dence thereof, as in the Moore Case, then laid down by the Supreme Court, it will not evidence of a single miscarriage, occurring do to say that simply because the miscar- while the effects of the injuries are still in riage testified to in this case is not a nec-existence, could be reasonably apprehended essary result of the injuries alleged, there or expected by the defendant under an allefore evidence of it is inadmissible.

gation that the back was wrenched and she But the test as set up by these two cases was internally injured, the womb retrovertis that, if the miscarriage can be connected ed and injured, and all the pelvic organs with the injury pleaded by other evidence displaced. Personally the writer agrees with showing it was a natural consequence of the views of Graves, J., expressed in his such injury, and is a usual one, not a nec- dissenting opinion in the case of Moore, suessary or inevitable one, but one that could pra, 226 Mo. loc. cit. 709, 710, 711, 126 S. W. reasonably be expected to follow from the 1013. But the majority of the Supreme injuries inflicted and alleged, then the evi- Court hold otherwise, and it is our duty to dence thereof is admissible. In such case follow their ruling. It may be well to state the miscarriage is a general damage and that in this case the evidence objected to can be proved without being specifically was not offered in an attempt to show a pleaded. The reason underlying the rule discased bodily condition, or that the womb that special damages cannot be proved un- had been rendered forever incapable of bearder general allegations is that the defending children. The evidence went merely to ant must have notice of what he is called the extent of the injury, showing but one upon to meet. And if the two cases above single miscarriage resulting directly from mentioned, the Gurley and Moore Cases, the womb and pelvic injuries alleged. Hence can be reconciled with the others, it is be- it does not come under the head of condicause the court thought the evidence offered tions and diseases resulting from bodily inand admitted was within the scope of that juries, as distinguished from bodily injuries which the defendant might reasonably ex as noted in Price v. Metropolitan Street Ry.


Co., 220 Mo. 435, loc. cit. 466, 119 S. W. 932, 2. PLEADING (8 9*)-ALLEGING NEGLIGENCE 132 Am. St. Rep. 588. But if it does, the


When on the facts pleaded the law raises Supreme Court has refused to follow this

an inference of negligence or willfulness, it distinction in the Moore Case, supra, and is unnecessary to formally charge negligence also in the per curiam opinion rendered in or willfulness, although it is advisable to do the case of Margrane v. Railway, 183 Mo. so to save time and labor in the courts in pass137, 81 S. W. 1158, wherein it withdraws ing on the sufficiency of the pleading.

(Ed. Note.-For other cases, see Pleading, paragraph 5 of the original opinion of Judge Cent. Dig. & 29; Dec. Dig. & 9.*] Valiant, which reversed and remanded the 3. PLEADING (8 418*) — DEMUBRER — WAIVER case because evidence of the disease of in. BY ANSWER. somnia and impaired eyesight was admitted Where a petition was sufficient after verunder a general allegation which did not dict to support the judgment, a demurrer there

to was waived by answering over. plead these (183 Mo. loc. cit. 133, 81 S. W.

[Ed. Note.-For other cases, see Pleading, 1158).

Cent. Dig. 88 1399, 1403–1406; Dec. Dig. $ As stated in the opening part of this opin- | 418.*] lon, the contest was not over the question 4. TORTS (8 116)–EXTINGUISHMENT OF FIRES of liability, but over the extent of plaintiff's -INTERFERENCE-LIABILITY. injuries, and whether the collision caused of those engaged in putting out a fire, and thus

One knowingly interfering with the efforts her condition at the time of the trial. If the causing greater loss by the fire than would miscarriage was a direct result of the colli. have been otherwise sustained or negligently or sion and of the injuries sustained, then it willfully conducting himself with knowledge of would enter into and form a part of such the facts and situation so as to cause an inter

ference directly resulting in loss, is liable. injuries and the physical pain and suffering

[Ed. Note.-For other cases. see Torts, Cent. endured, all having their cause or rise in Dig. 88 11, 12; Dec. Dig. $ 11.*) the collision. And it was in describing her 5. RAILROADS ($ 222*)–EXTINGUISHMENT OF present physical condition that plaintiff's FIRES - INTERFERENCE BY RAILROAD - LIAevidence as to the miscarriage came out. According to disinterested testimony, plain. notice of the situation and its exigencies either

A railroad company, whose trainmen after tiff's injuries were severe and painful and carelessly or willfully interfered with those ensaid to be permanent. The jury awarded gaged in extinguishing a fire by means of a $1,000, which is not excessive, and we do hose laid across its tracks, was liable for the not feel authorized to reduce it, as was done loss occurring as a direct result of such inter

ference. in the Moore Case by the Supreme Court.

[Ed. Note.-For other cases, see Railroads, (3] The objection that the court refused to Cent. Dig. 88 720_724; Dec. Dig. $ 222.*] allow defendant to show that Dr. Portér was 6. RAILROADS (8 222*)-EXTINGUISHMENT OF appointed by the court to examine the plain- FIRE-INTERFERENCE-SUFFICIENCY OF EVItiff is without merit. Plaintiff's attorney

DENCE. admitted that the doctor was appointed by for interfering with a fire hose laid across its

In an action against a railroad company the court. Defendant's offer was an attempt tracks, evidence held sufficient to support a to show that plaintiff agreed to Dr. Porter, finding that the engineer of defendant's train not that the court appointed him. If he was

was notified, warned, and requested to stop at

a time when the train could have been stopped appointed by the court, it would seem to be in safety. immaterial whether the parties agreed to [Ed. Note.-For other cases, see Railroads, the selection or not. There would have to Cent. Dig. $$720_724; Dec. Dig. $ 222.*] be something more shown than mere ac- 7. RAILROADS ($ 222*)-EXTINGUISHMENT OF quiescence in his appointment to be material FIRE-INTERFERENCE-QUESTIONS FOR JURY. as affecting the weight to be given his tes support plaintiff's contention that those in

Where there was substantial evidence to timony.

charge of defendant's train interfered with a Affirmed. All concur.

fire hose laid across its tracks by means of which a fire on plaintiff's premises was being extinguished, the character of the trainmen's act, the existence or nonexistence of notice and

warning, of the situation, the question of proxHURLEY v. MISSOURI, K. & T. RY. CO. imate cause, the amount of the delay caused by (Kansas City Court of Appeals. Missouri.

their act, and whether damages resulted thereApril 7, 1913. Rehearing Denied

from, were all questions for the jury. May 5, 1913.)

[Ed. Note.-For other cases, see Railroads,



The weight of the evidence and the crediIn an action against a railroad company bility of witnesses are for the jury. for interfering with a fire hose laid across its [Ed. Note.-For other cases, see Trial, Cent. tracks, a petition, alleging, that its acts were Dig. $$ 332-335, 338-341, 365; Dec. Dig. $8 done "deliberately," sufficiently charged will- 139, 140.*] fulness, since that word used in that connec- 9. APPEAL AND ERROR (8 1005*) — REVIEW tion connoted an intentional purpose to do a

QUESTIONS OF FACT. wrongful thing.

When there is conflicting evidence sub(Ed. Note.-For other cases, see Railroads, stantial in character to support both sides of (ent. Dig. 88 720-724; Dec. Dig. $ 222.*

a disputed issue, the verdict approved by the For other definitions, see Words and Phrases, trial judge is conclusive on appeal unless the rol. 2, pp. 1951-1955; vol. 8, p. 7632.]

evidence supporting it is wholly incredible by

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