Sidor som bilder
PDF
ePub

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 won't have to. Please let me hear from you at once and oblige." Payne returned to Milan, and was informed by the agent that he could not find the policy at the Sullivan County Bank. Payne replied that the policy certainly was at the bank. The agent suggested that it might be at Payne's house, and Payne then promised to search for it, and the agent agreed to change the insurance to another company. This conversation occurred on or about March 23d, and in its course the agent stated that the old policy "stands till we can get it changed, if any loss." Payne did not find the policy, and nothing further was said by the parties on the subject of cancellation until after the loss. Defendant did not offer to return the unearned premium.

[2] But counsel for defendant urge that plaintiffs ratified and consented to the cancellation, and thereby waived performance by defendant of the conditions we have been discussing. The letter written in answer to the alleged notice certainly does not disclose any thought of the writer of terminating the contract by mutual consent. Manifestly the writer construed the alleged notice as we have construed it, viz., as being not a formal and legal notice of rescission but as an expression of an intention to act in the future, and, treating the subject as still open to argument or negotiation, attempts to dissuade defendant from carrying out its expressed purpose. The sentence, "Now if the company won't carry it any longer, and you can place it in another good company for the unexpired time without any further expense to me, you can do so," instead of suggesting the idea of an immediate cancellation by mutual consent, conveys the opposite meaning that the writer is not accepting the notice for more than its legal worth, is not regarding it as a finality, and is not renouncing his right to a restoration of the status quo. In effect, he was saying to the agent: "If you do conclude to rescind the contract I will accept a policy in another company for the unexpired term in lieu of a tender of the unearned premium." This letter left the parties in their old relation of insurer and insured and the subsequent conversation at Milan between plaintiff and the agent who was defendant's alter ego, instead of changing that relation continued it by express agreement to such time as an exchange of policies could be effected.

To effect a cancellation of the policy before the end of the term for which it was issued, defendant was required by the contract to give plaintiff "five days' notice of cancellation." Such notice to be valid necessarily should have expressed a clear and unequivocal action of defendant on the subject of cancellation, and not a mere purpose or intention to take such action at some future time. As we said in Banking Co. v. Ins. Co., 75 Mo. App. 314: "The effect of a cancellation being an option of one party to bring to an end a contract for the protection of another, the action taken to that end must be unequivocal, and not such as may be a subject of misinterpretation. It must not depend upon a future event, but must be a present purpose carried out, so that the policy is canceled at the time the cancellation 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 in the case of Van Buskirk v. Railroad, 131 Mo. App. 357, 111 S. W. 832.

The judgment is affirmed. All concur.

HAUBER v. HAUBER.

(Kansas City Court of Appeals. Missouri. April 21, 1913.)

1. DIVORCE (§ 130*) - SUFFICIENCY OF EVIDENCE-CRUEL TREATMENT.

In a wife's action for divorce on the ground of cruelty, evidence held to support a decree for plaintiff.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 442-445; Dec. Dig. § 130.*] 2. DIVORCE (§ 298*)-CUSTODY OF CHILDREN. In a wife's action for divorce on the ground of cruelty, where the husband filed a cross-bill for a divorce, and the evidence strongly preponderated in favor of the wife, the court properly gave her the custody of an infant child, a boy about three years old. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 781-787; Dec. Dig. § 298.*] 3. DIVORCE (§ 240*)-ALIMONY-AMOUNT. In a wife's action for divorce, where it appeared that the husband was worth about $7,500, and that he was indebted to the wife for $400 received from her, an allowance of $2,500 alimony would, with the consent of the wife, be modified so as to permit the payment thereof to liquidate the husband's indebtedness to

the wife.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 675-678, 680; Dec. Dig. § 240.* Appeal from Circuit Court, Buchanan County; W. D. Rusk, Judge.

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

K. B. Randolph and B. R. Martin, both of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

ELLISON, P. J. Plaintiff brought this action against defendant in the Buchanan county circuit court for a divorce. He denied the allegations of the petition and himself asked a divorce for her fault. The trial court denied his cross-bill and entered a decree for plaintiff, together with the custody of their only child, a boy about three years old, and also $2,500 alimony.

Plaintiff alleged in her petition that defendant had made her condition intolerable by a course of indignities, beginning soon after their marriage, consisting of barbarous treatment; that he cursed and abused her without stint and more than once assaulted and beat her, whereby she at times had to flee to her neighbors; that he assaulted her with a butcher knife and at other times threatened her with an axe and a razor.

Defendant, by his cross-bill, charged that plaintiff frequently assaulted and that she also abused him with vile language; that she would purloin his money; that she had committed adultery and had sat in the lap of a roomer at their house.

[1] The evidence balanced largely in plaintiff's favor. One or more neighbors saw him pursuing her with a butcher knife; another saw him choking her. The police were called in at least twice by persons who thought it necessary to her protection.

On his part he disclaimed charging her with adultery, but testified he saw her sitting in the lap of a man who had a room at that she was cleaning the room as usual their house. She denied this and explained when the man happened in, and defendant, who was watching, came to the door. He likewise testified that she abused him with vile language.

[2] We think the evidence so strongly preponderated with the plaintiff that the trial court could not have done otherwise than give her the decree with the custody of the infant child.

[3] The only question of the least doubt is the amount of alimony. Defendant was shown to be worth about $7,500, and it appears that he owes plaintiff $400, money received from her. We will permit the payment of the full amount of alimony, to liquidate (she consenting thereto) the $400 owing to her. The judgment for divorce and custody of the child will be affirmed. But the judgment for alimony will be reversed and the cause remanded that a provision may be incorporated therein to the effect that the full payment of the alimony shall discharge plaintiff's claim of $400. All con

cur.

COOLEY v. KANSAS CITY ELEVATED RY. CO. (Kansas City Court of Appeals. Missouri. April 21, 1913.)

1. DAMAGES (§ 158*)-NECESSITY OF PLEADING PERSONAL INJURIES.

In an action for personal injuries, any injury shown by the evidence to be a natural consequence of that pleaded, and, while not a necessary or inevitable consequence, a usual one that could reasonably be expected to follow from the injuries alleged, may be proved.

Cent. Dig. 88 441-444; Dec. Dig. § 158.*] [Ed. Note. For other cases, see Damages, 2. DAMAGES (§ 158*)-NECESSITY OF PLEADING-PERSONAL INJURIES.

Under a petition alleging that plaintiff suffered retroversion and falling of the womb, and that the injuries sustained caused internal walls and displacement of the pelvic organs, evhemorrhages and laceration of the abdominal idence that she subsequently became pregnant and suffered a miscarriage was competent, where the other evidence showed that a miscarriage one reasonably expected to follow if pregnancy was the usual result of the injuries alleged and existed or arose.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.*] 3. WITNESSES (§ 363*)-CREDIBILITY OF PHYSICIAN-CONSENT TO APPOINTMENT.

not be shown to affect the weight to be given In an action for personal injuries, it could 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.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. 88 1177, 1178, 1181; Dec. Dig. § 363.*]

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Ivy Cooley against the Kansas City Elevated Railway Company. Judgment for plaintiff, and defendant appeals. firmed.

Af

rule from which to determine the admissibil

ity of evidence in another case where the facts are different. For instance, these cases, as stated, frequently define the difference between general damages and special damages in such a way as to lead one to suppose that the admissibility of the evidence depends on whether the results it tends to show are, or are not, the "necessary" consequence of the wrongful act pleaded. That is to say, if the results which the offered evidence tends to show are the "natural and necessary" consequences of the act pleaded, then they are

John H. Lucas and Chas. N. Sadler, both of Kansas City, Mo., for appellant. Fyke & Snider, of Kansas City, Mo., and Anderson & Robinett, of Kansas City, Kan., for respond-general damages and the evidence is admisent.

TRIMBLE, J. Plaintiff, while a passenger on a street car, received injuries caused by a collision of her car with another. Suit was brought against the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company, but during the trial plaintiff dismissed as to the former. The contest was not over defendant's liability, but over the questions as to what injuries plaintiff received in the collision and whether it caused her condition at the time of the trial. The petition alleged that as a result of the collision she was "bruised, maimed, sprained, lacerated, and wounded; that both of her lower limbs, feet, and ankles were sprained, wrenched, and bruised; her back was wrenched; that said fall caused internal injuries; that she suffered therefrom retroversion and falling of the womb; that said injuries have caused internal hemorrhages and laceration of the abdominal walls and displacement of the pelvic organs."

Defendant's most serious complaint is that the court, over defendant's objection, admitted evidence showing that after the injury plaintiff became pregnant and suffered a miscarriage, which took place about eight or nine months after the collision. Defendant contends that, as the miscarriage was not pleaded, the evidence in regard thereto should have been excluded; that to admit it is to allow proof of special damages when the petition pleads general damages only.

sible under a general pleading; but if such results are the natural, but not necessary, consequences of the wrong pleaded, then they are special damages and the evidence is not admissible. Thompson v. Railroad, 111 Mo. App. 465, 86 S. W. 465. It would seem that the above is a safe and excellent rule to follow in order to determine whether certain evidence is admissible under a pleading of general damages. That is, if the results are the natural and necessary consequences of the wrong pleaded, then the evidence is admissible; but if they are the natural, but not necessary, consequences of such wrong, then evidence thereof is not admissible. This would work no hardship on the plaintiff, since he can either plead them, or, at the trial, amend his petition so as to include any "natural but not necessary" results, i. e., special damages, and thus give the defendant notice of what he is called upon to meet.

If that is the rule we are to follow, it would seem that in the case at bar we are required to reason thus: Many wombs are displaced that do not suffer miscarriages. Such a result cannot occur unless there comes into existence the after occurring fact of pregnancy. Hence the miscarriage was a natural but not a necessary consequence of the injuries pleaded. Hence, according to the test, the miscarriage in this case, not having been pleaded, should not have been admitted in evidence because it was a natural but not a necessary result of the injury. And many cases appear to justify the use of this test. Brown v. Railroad, 99 Mo. 310, loc. cit. 318, 12 S. W. 655; Nicholson v. Rogers, 129 Mo. 136, loc. cit. 140, 31 S. W. 260; Lesser v. Railway, 85 Mo. App. 326, loc. cit. 331; Mellor v. Railroad, 105 Mo. 455, loc. cit. 464, 16 S. W. 849, 10 L. R. A. 36; Coontz v. Railroad, 115 Mo. 669, loc. cit. 674, 22 S. W. 572. As said before, such a test is correct when applied to the facts in the cases which thus make use of it. curate to apply it to facts are dissimilar?

[1] The question of its admissibility is one of some difficulty, which is increased by reason of the fact that many cases do not state the reason for admitting or excluding the proffered evidence, but rests its admissibility or inadmissibility simply on whether or not it tends to prove general damages or special damages; and then, in distinguishing between these damages, say that general damages are such as are the natural and necessary result of the act pleaded, while special damages are those which are the natural, 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- enough to apply to other facts?

But is it entirely acother cases where the Or is it safe to follow

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 general allegations in the petition? This may be what is really meant when it is said that "general damages are such as the law implies or presumes to have occurred from the wrong complained of, and they need not be pleaded." Brown v. Railway, 99 Mo. 318, 12 S. W. 656; 2 Sutherland on Damages, 8 418; 8 Am. & Eng. Ency. of Law (2d Ed.) p. 542.

And in the recent case of Moore v. Transit Co., 226 Mo. 689, 126 S. W. 1013, the Supreme Court, in the majority opinion, say that this rule, limiting the damages provable under a general allegation to those which are the necessary result of the main injuries alleged, is too strict (226 Mo. loc. cit. 702, 703, 126 S. W. 1013). In this case the Supreme Court say that all injuries which naturally result from the main or specific injury alleged may natural result of the injuries alleged and [2] Was the miscarriage in this case a be shown without being specifically pleaded, and that such natural result does not have such a one as the defendant might reasonato be a necessary result but only a usually 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. cit. 699, 126 S. W. 1015). In the petition there testimony of the physician who said a displaced, 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. of Law, 540; Thompson v. Railroad, 111 Mo. App. 465, loc. cit. 476, 86 S. W. 465; 5 Ency. of PL. & Pr. 720.

So that if the Gurley and the Moore Cases are to be followed as the doctrine now laid down by the Supreme Court, it will not do to say that simply because the miscarriage testified to in this case is not a necessary result of the injuries alleged, therefore evidence of it is inadmissible.

er the injury and during the displacement of the organs, miscarriage will occur? Surely, if an allegation of injury to the back and spinal cord will give defendant notice of loss of sexual desire sufficient to admit evidence thereof, as in the Moore Case, then evidence of a single miscarriage, occurring while the effects of the injuries are still in existence, could be reasonably apprehended or expected by the defendant under an allegation that the back was wrenched and she was internally injured, the womb retroverted and injured, and all the pelvic organs

But the test as set up by these two cases is that, if the miscarriage can be connected with the injury pleaded by other evidence displaced. Personally the writer agrees with showing it was a natural consequence of such injury, and is a usual one, not a necessary or inevitable one, but one that could reasonably be expected to follow from the injuries inflicted and alleged, then the evidence thereof is admissible. In such case the miscarriage is a general damage and can be proved without being specifically pleaded. The reason underlying the rule that special damages cannot be proved under general allegations is that the defendant must have notice of what he is called upon to meet. And if the two cases above mentioned, the Gurley and Moore Cases, can be reconciled with the others, it is because the court thought the evidence offered and admitted was within the scope of that which the defendant might reasonably ex

the views of Graves, J., expressed in his dissenting opinion in the case of Moore, supra, 226 Mo. loc. cit. 709, 710, 711, 126 S. W. 1013. But the majority of the Supreme Court hold otherwise, and it is our duty to follow their ruling. It may be well to state that in this case the evidence objected to was not offered in an attempt to show a diseased bodily condition, or that the womb had been rendered forever incapable of bearing children. The evidence went merely to the extent of the injury, showing but one single miscarriage resulting directly from the womb and pelvic injuries alleged. Hence it does not come under the head of conditions and diseases resulting from bodily injuries, as distinguished from bodily injuries as noted in Price v. Metropolitan Street Ry.

OB WILLFULNESS.

Co., 220 Mo. 435, loc. cit. 466, 119 S. W. 932, | 2. PLEADING (§ 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 withdrawsing on the sufficiency of the pleading. paragraph 5 of the original opinion of Judge Valiant, which reversed and remanded the case because evidence of the disease of insomnia and impaired eyesight was admitted under a general allegation which did not plead these (183 Mo. loc. cit. 133, 81 S. W. 1158).

As stated in the opening part of this opinion, the contest was not over the question of liability, but over the extent of plaintiff's injuries, and whether the collision caused her condition at the time of the trial. If the miscarriage was a direct result of the collision and of the injuries sustained, then it would enter into and form a part of such injuries and the physical pain and suffering endured, all having their cause or rise in the collision. And it was in describing her present physical condition that plaintiff's evidence as to the miscarriage came out.

According to disinterested testimony, plaintiff's injuries were severe and painful and said to be permanent. The jury awarded $1,000, which is not excessive, and we do not feel authorized to reduce it, as was done in the Moore Case by the Supreme Court. [3] The objection that the court refused to allow defendant to show that Dr. Portér was appointed by the court to examine the plaintiff is without merit. Plaintiff's attorney admitted that the doctor was appointed by the court. Defendant's offer was an attempt to show that plaintiff agreed to Dr. Porter, not that the court appointed him. If he was appointed by the court, it would seem to be immaterial whether the parties agreed to the selection or not. There would have to be something more shown than mere acquiescence in his appointment to be material as affecting the weight to be given his testimony.

Affirmed. All concur.

HURLEY v. MISSOURI, K. & T. RY. CO.
(Kansas City Court of Appeals. Missouri.
April 7, 1913. Rehearing Denied
May 5, 1913.)

1. RAILROADS (§ 222*)-INTERFERENCE WITH
EXTINGUISHMENT OF FIRE
"DELIBERATELY."

PETITION

In an action against a railroad company for interfering with a fire hose laid across its tracks, a petition, alleging that its acts were done "deliberately," sufficiently charged willfulness, since that word used in that connection connoted an intentional purpose to do a wrongful thing.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*

For other definitions, see Words and Phrases, vol. 2, pp. 1951-1955; vol. 8, p. 7632.]

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 29; Dec. Dig. § 9.*]

3. PLEADING (§ 418*) — DEMURRER - WAIVER

BY ANSWER.

Where a petition was sufficient after verdict to support the judgment, a demurrer thereto was waived by answering over.

[Ed. Note. For other cases, see Pleading, Cent. Dig. 88 1399, 1403-1406; Dec. Dig. § 418.*]

4. TORTS (§ 11*)—ExtingUISHMENT OF FIRES

-INTERFERENCE-LIABILITY.

of those engaged in putting out a fire, and thus One knowingly interfering with the efforts causing greater loss by the fire than would have been otherwise sustained or negligently or willfully conducting himself with knowledge of the facts and situation so as to cause an interference directly resulting in loss, is liable.

[Ed. Note.-For other cases. see Torts, Cent. Dig. §§ 11, 12; Dec. Dig. § 11.*]

5. RAILROADS (§ 222*)-EXTINGUISHMENT OF FIRES INTERFERENCE BY RAILROAD — LIABILITY.

notice of the situation and its exigencies either A railroad company, whose trainmen after carelessly or willfully interfered with those engaged in extinguishing a fire by means of a hose laid across its tracks, was liable for the loss occurring as a direct result of such inter

ference.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*] 6. RAILROADS (§ 222*)-EXTINGUISHMENT OF FIRE-INTERFERENCE-SUFFICIENCY OF EVI

DENCE.

In an action against a railroad company for interfering with a fire hose laid across its tracks, evidence held sufficient to support a finding that the engineer of defendant's train was notified, warned, and requested to stop at a time when the train could have been stopped in safety.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*] 7. RAILROADS (§ 222*)-EXTINGUISHMENT OF FIRE-INTERFERENCE-QUESTIONS FOR JURY.

Where there was substantial evidence to support plaintiff's contention that those in charge of defendant's train interfered with a 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 proximate cause, the amount of the delay caused by their act, and whether damages resulted therefrom, were all questions for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 720-724; Dec. Dig. § 222.*] 8. TRIAL (§§ 139, 140*)-QUESTIONS FOR JURY. The weight of the evidence and the credibility of witnesses are for the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 332-335, 338-341, 365; Dec. Dig. §§ 139, 140.*]

9. APPEAL AND ERROR (§ 1005*) - REVIEW — QUESTIONS OF FACT.

When there is conflicting evidence substantial in character to support both sides of a disputed issue, the verdict approved by the trial judge is conclusive on appeal unless the evidence supporting it is wholly incredible by

« FöregåendeFortsätt »