Or, as stated in section 1957 of that work, we should "attach less importance to the motive with which the act was done and give more attention to the question whether or not it can be deemed to fall within the course of the servant's employment." Galves "The tendency of the modern cases is to at- gaged in and sprayed an associate with tach less importance to the motive with which air in a spirit of fun and killed him, the the act was done, and to give more attention to the question as to whose business was being master was held not to be liable. done and whose general purposes were being ton, etc., R. Co. v. Currie, 100 Tex. 136, 96 promoted." S. W. 1073, 10 L. R. A. (N. S.) 367. But there was no turning aside from his work on the part of the servant in the case at bar. The turning of the rail was the thing he was required to do, and it was the act that did the injury. The servant did that which was in the line of his duty and which was in the prosecution of the master's work. The only unusual feature in it was the presence of personal motive in the mind of the servant. But the personal motive cannot exempt the master where the act done which causes the injury was in the line of the servant's duty and in the prosecution of the master's work. As said in the Currie Case, supra, 100 Tex. at page 143, 96 S. W. at page 1074: And in section 1960, the author says: "It has been held in a great variety of cases that the master is liable for the wanton or malicious acts of his servant if they were committed while the servant was acting in the execution of his authority and within the course of his employment." "It may be further conceded that if, in directing the hose at a fire to put it out, he had either to make him get out of the way, or for also struck with it one of the other servants, some other purpose, the motive thus partly influencing his act towards such other would not deprive it of its legal character, as done in the acter supposed, where there has been a mingling master's business. It is in cases of the charof personal motive or purpose of the servant with the doing of his work for his employer, that much of the difficulty and conflict of opinion have arisen in determining whether or not the wrong committed should be ascribed to the master or be regarded as the personal tort of the servant alone. It is now settled, in this state at least, that the presence of such a motive or purpose in the servant's mind does not affect the master's liability, where that which the servant does is in the line of his duty, and in the prosecution of the master's work. But, engages in the doing of an act not in furtherance when he goes entirely aside from his work, and of the master's business, but to accomplish some purpose of his own, there is no principle which charges the master with responsibility for such actions." Now the evidence in this case shows that the injury resulted from the manner in which the rail was turned around preparatory to being placed on the machine. Manlove, the servant, was doing what he was employed to do and what he was specifically directed by the straw boss to do. The act of turning the rail was in furtherance of the master's business and within the scope of the servant's employment. In doing this, the servant did it angrily and without a due regard for the safety of his coemployés. But defendants say he was actuated by a malicious motive toward Sunner, the straw boss. True, but he did not step aside from his employment to do an act outside thereof to effectuate that motive. He did the very thing required of him, but in the method or manner of doing that act, he performed it negligently toward plaintiff and maliciously toward the boss. His duty to turn the rail about was performed, but his feeling of animosity toward the boss caused him to perform that duty in a violent and reckless manner, resulting in injury to the plaintiff. This being so, the application of the principles above mentioned constrain us to hold the master liable. It is true, if the servant turns aside from his work, for however short a time, to effect a purpose of his own, the master will not be liable. As, for instance, where the servant on a hand car concluded to put his hat on the floor, and in doing so placed his body in the way of the flying handles of the car, whereby he was catapulted against another, throwing the latter off and injuring him, it was held the master was not liable. Here the putting of the hat on the floor was no act in furtherance of the master's business. Overton v. Chicago, etc., R. Co., 111 Mo. App. 613, 86 S. W. 503. Or [6, 7] In making the foregoing observawhere a servant, leading a colt to water, in- tions, we are not unmindful of defendant's vites a boy to ride the colt and the boy is very earnest insistence that the evidence injured, the master is not liable, since the does not show that the injury was caused invitation to ride was no part of the serv- by Manlove's turning of the rail around in ant's work. Bowler v. O'Connell, 162 Mass. the service of getting it ready for placing 319, 38 N. E. 498, 27 L. R. A. 173, 44 Am. on the machine, but that he threw the rail St. Rep. 359. In the same way, a servant at Sunner intending to assault him and who, being in charge of a compressed air was not engaged in the service of turning the In Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361, it is held that in most cases it is a question of fact whether or not the act of a servant for which it is sought to hold the master responsible was done in the execution of the master's business and within the scope of the servant's employment. The act of turning the rail was in the line of the servant's duty, and it was in furtherance of the master's business. The motive of animosity the servant had toward the boss did not cause him to throw the rail, but did cause him to throw it recklessly. This was merely the manner of performance for which, as we have seen, the master is liable. of the whole evidence, however, discloses that such view is untenable, and that the act was done as we have stated. Whether the act was done as plaintiff contends or as defendants construe it was a question of fact, and was submitted in instructions to the jury; and, as there was ample evidence from which they could find that the rail was turned in the service of the master as we have stated, their finding must be respected. We do not think plaintiff's answers of "Yes, sir," to the carefully worded questions of a skillful cross-examiner should be deemed to conclusively overturn the clear, plain, and unequivocal statements of the facts as detailed by the plaintiff whenever asked to give his own version of them. Notwithstanding these artless answers of the old man to questions which required nice discrimination in order to answer them strictly, we think it was the province of the jury to look at his whole evidence and determine the effect thereof. [8] There was no variance between the petition and proof. The petition alleged the character of the act in relation to the plain tiff. In so far as he was concerned, the act was negligent, although the one doing the act may have been actuated by a wrongful intentional motive toward another. Twenty-Seventh and Lister streets. It would seem from all this that the rails were intended for use in connection with a railroad already in operation and not for one being constructed. There was no error in refusing defendants' instructions Nos. 6 and 7. They were erroneous because they told the jury, without qualification, that if the rail was intentionally thrown or swung around by Manlove for the purpose of striking Sunner, then plaintiff could not recover. But, as we have seen, the personal motive commingled with the servant's act will not have the effect of conclusively relieving the master of liability. That question "cannot always be determined merely by putting a label on the motive" of the servant. 2 Mechem on Agency (2d Ed.) § 1929. As said by the same author (section 1962): "The question is rather, as has been explained, whether the act can fairly be regarded as a natural incident to, a direct outgrowth of, a natural ingredient in, the execution of the service which the master confided to the servant. If that be the character of the act, the master is liable, though the act were done willfully or maliciously." There being no error in the record, the judgment is affirmed. All concur. TRAVIS v. CONTINENTAL INS. CO. (No. 11700.) [9] The fact that plaintiff and Manlove were fellow servants is no defense in this case. Sections 5434 and 5439, R. S. Mo. 1909. They did not have to be actually engaged in running a car in order to come within the meaning of the statutory phrase "operating 1. INSURANCE 388-PROVISIONS IN POLICY a railroad," but only that they should be engaged in doing any work for the railroad which was directly necessary for the operation thereof. Callahan v. St. Louis Merchants Bridge, etc., R. Co., 170 Mo. 473, loc. cit. 495, 71 S. W. 208, 60 L. R. A. 249, 94 Am. St. Rep. 746; Salmon v. Chicago, etc., R. Co., 181 Mo. App. 414, 168 S. W. 829: Vannest v. Missouri, K. & T. R. Co., 181 Mo. App. 373, 168 S. W. 782; Madden v. Missouri Pac. R. Co., 167 Mo. App. 143, 151 S. W. 489. It is conceded that if rails were being bent for the purpose of repairing an existing track then being operated, then the bending might be considered as incidental to the operation of the road. But it is urged that the evidence does not show whether the rails were for use in a new track or for a track already in operation, or, in other words, there is nothing to show whether this work was not in construction of a new track instead of maintenance and operation of a railroad. The evidence, however, shows that defendants admitted the operation of the railway system in Kansas City and the maintenance of the shops for the purpose of repairing the tracks. The evidence shows that the rails being bent were rails that had been in use, and at the time of the injury the rails being bent were for use at (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) -IRON-SAFE CLAUSE-WAIVER. Provisions in a fire insurance policy that the insured keep his books and. inventory either in an iron safe or in a place outside of the building insured, being in the nature of condiwork a forfeiture of the policy unless the intions subsequent, the breach of which will not surer so elects, where the adjuster of the insurance company assured the person insured that if he would obtain duplicate bills from the wholesale houses from which the amount of goods lost could be ascertained, such advice, when acted upon, constituted a waiver of forfeiture because of violation of the clause requiring the insured to keep his books in an iron safe. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. 388.] 2. TRIAL 191-ACTION ON POLICY-IN STRUCTIONS. In an action on a fire insurance policy, an instruction on the question of waiver, reciting hypothetically the taking of an inventory just before the fire, and the action of the insured in obtaining duplicate wholesale bills in accordance with the direction and request of the agent, was not objectionable as assuming the existence of disputed facts. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 420-431, 435; Dec. Dig. 191.1 Appeal from Circuit Court, Harrison County; Geo. W. Wanamaker, Judge. "Not to be officially published.' Action by William A. Travis against the Continental Insurance Company on a fire in surance policy. Judgment for plaintiff, and dence tending to show a waiver by defendant defendant appeals. Affirmed. Fyke & Snider, of Kansas City, for appellant. Barlow, Barlow & Kautz, of Bethany, for respondent. JOHNSON, J. This is a suit upon a policy of fire insurance for $1,000, issued by defendant August 27, 1913, upon a grocery, meat market, and restaurant owned and operated by plaintiff in Eagleville, Harrison county. The property was totally destroyed in the night of November 8, 1913, by a fire which originated in a business building across the street. The defense of present concern is based upon the alleged breach by plaintiff of provisions in the policy which required him: First to "take a complete itemized inventory of stock on hand at least once in each calendar year and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within thirty days of the issuance of this policy"; second, to "keep a set of books which shall clearly and plainly present a complete record of the business transacted, including purchases, sales, shipments, both for cash and credit from date of inventory"; and, third, to "keep said books and inventory, if such has been taken, securely locked in a fireproof safe at night and at all times when the building mentioned in the policy is not actually open for business, or failing in this, the assured will keep such books and inventory in some place not exposed to a fire which would destroy the aforesaid build ing." The penalty prescribed for a failure to comply with any of these requirements was that the policy should become null and void, and that "such failures shall constitute a perpetual bar to any recovery thereon." Plaintiff contends, and his evidence tends to show, that he substantially complied with the requirements prescribed in the first two clauses above quoted, and that he was in process of taking a new inventory of his stock and had almost completed it at the time of the loss. He left the incomplete inventory in the store that night, but succeeded in saving it, and produced it at the trial. He had valued the goods therein at their selling, instead of their cost, prices, and the total value of the goods inventoried, which he testified did not include all of the stock, was about $1,500. Plaintiff admitted that he had no iron safe in the store, and claims that the local agent of defendant, through whom he procured the policy, had knowledge of that fact before the policy was issued. Further, he admitted he had kept no regular books of his business, but testified that he kept files of his wholesale bills and credit slips which, with his invoices, constituted a complete record of his stock and business. Usually he kept these files at home overnight, but had suspended this practice during the taking of the inventory, and the files of papers were destroyed in the fire. To meet the contention of defendant that these facts disclose noncompliance with the iron-safe clause, plaintiff adduced evi of the requirements of that clause. In substance the evidentiary facts relied upon by plaintiff to sustain his position on that issue are as follows: The local agent notified defendant of the loss, and in two or three days Mr. Maloney, defendant's state agent and adjuster, visited Eagleville and had interviews with plaintiff in which, after being informed of all the facts relating to the nonperformance by plaintiff of the iron-safe clause and of the destruction of all the documents and papers relating to the stock and business, except the partial invoice which was exhibited to him, he stated that he could not adjust the loss on that invoice, for the reason that it did not show cost prices of the goods, but advised plaintiff to procure duplicate bills from the wholesale dealers, and assured him that with the aid of such bills the loss could and would be adjusted. Plaintiff immediately acted upon this advice, wrote to the various wholesale houses of the loss, and procured all duplicate bills, which could be procured, and made out and forwarded proofs, but defendant refused to keep the agreement of its adjuster, declined to adjust or pay the loss, and this The evidence of defendant suit followed. contradicts that of plaintiff relating to the issue of waiver; but, for the purposes of our consideration of the demurrer to the evidence, which was overruled, we must regard the case from the viewpoint of the evidence of plaintiff. At the request of plaintiff the court instructed the jury upon the issue of waiver as follows: "The court instructs the jury that although you may believe from the evidence that the inventory and books of account presenting a record of the business transacted from the date of the inventory until the time of the fire were not kept by plaintiff in accordance with the terms of the policy, or, if they were made and kept in accordance with the terms of the policy, but were left in the building and destroyed by the fire, yet, if the state agent of the defendant company visited the locality of the fire, after the occurrence of the loss, and if he was the defendant's adjuster, and as such was informed and became possessed of the knowledge that said inventory and books were not kept by plaintiff in accordance with the terms of the policy, or were destroyed by said fire, and, after becoming possessed of such knowledge, directed and instructed the plaintiff to secure duplicate invoice bills of all the goods which he had purchased from the various wholesale houses up to the time of the fire, and to use said wholesale bills in determining the cost price of the goods on the invoice, being taken just before the fire, and to make up his proofs of loss and send same to the defendant company, and, if you further find that the plaintiff did secure said duplicate invoice bills and did make up said proofs of loss in accordance with the direction and request of said state agent and adjuster and did forward same to the defendant company within 60 days from the date of said fire, as directed by said state agent, and if plaintiff incurred any expense or loss of time in securing said duplicate invoice bills, making up said proofs of loss and sending same to the defendant company, then the defendant company waived any right of forfeiture of said policy by reason of the failure of plaintiff to keep or produce | plaintiff's reliance upon it, constituted a said inventories and books of account." waiver of the ground of forfeiture. The issue of waiver is shown by the evidence to be one of fact for the jury to determine, and the court did not err in' overruling the demurrer to the evidence. The jury returned a verdict for plaintiff, and after its motion for a new trial was overruled, defendant appealed. [1] The contract evidenced by the policy imposed upon plaintiff, the insured, the performance of the alternative condition of keeping his business books and inventory, at night, either in an iron safe in the store, or "in some place not exposed to a fire which would destroy the aforesaid building." The failure of plaintiff to perform this condition is virtually conceded and is apparent, since he admits he had no iron safe, and that he left what he calls his books in the store. He did not perform a condition of the contract upon the performance of which his right of recovery depended (Crigler v. Insurance Co., 49 Mo. App. 11; Hollenbeck v. Insurance Co., 133 Mo. App. 57, 113 S. W. 217), and we would hold that defendant would have been entitled to a peremptory instruction for a verdict in its favor if plaintiff had not introduced evidence in substantial support of his claim of a waiver of the ground of forfeiture which the nonperformance of the iron-safe clause afforded to defendant. The accepted rule in this state is that such provisions in a policy are in the nature of conditions subsequent, the breach of which will not work a forfeiture unless the insurer so elects; that nonperformance of them may be waived as a ground of forfeiture, and that such waiver does not require the support of a new consideration, but will be inferred where it appears that the insurer, with knowledge of all the facts, so conducts himself that the insured is justified in believing that the right of forfeiture will not be invoked, and is led thereby into the expenditure of effort or money in presenting his demand to the insurer. Pace V. Insurance Co., 173 Mo. App. loc. cit. 503, 158 S. W. 892; Myers v. Casualty Co., 123 Mo. App. loc. cit. 687, 101 S. W. 124; Ramsey v. Insurance Co., 160 Mo. App. loc. cit. 242, 142 S. W. 763; Bolan v. Fire Association, 58 Mo. App. loc. cit. 233; Bowen v. Insurance Co., 69 Mo. App. loc. cit. 277; McCollum v. Insurance Co., 61 Mo. App. loc. cit. 355; Burgess v. Insurance Co., 114 Mo. App. loc. cit. 180, 89 S. W. 568; Hollenbeck v. Insurance Co., 133 Mo. App. loc. cit. 64, 113 S. W. 217; Weber v. Insurance Co., 35 Mo. App. loc. cit. 524. [2] We do not agree with defendant that the quoted instruction is subject to the criticism of assuming the existence of disputed facts. The expression "on the invoice being taken just before the fire" appears as a part of an hypothesis, the whole of which the jury was required to adopt as an indispensable prerequisite to finding for plaintiff on the issue of forfeiture. may be said of the objection to the expression "in accordance with the direction and request of said state agent and adjuster." The instruction must be read as a whole, and none of its parts should be made the subject of a strained or forced construction. Construed in its entirety, it cannot be said to have given the jury room for inferring that it assumed the existence of any disputed fact. Some other points are made by defendant but they are without merit and need not be mentioned. The case was tried and submitThe judgted without prejudicial error. ment is affirmed. All concur. STATE v. FLICK. (No. 11757.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) CONTINU CRIMINAL LAW 598-TRIAL ANCE-INABILITY TO OBTAIN WITNESS. Where defendant was indicted by the grand court at 11:30, and her trial was set for next jury at 11 o'clock a. m., and was brought into morning, when she moved for change of venue for prejudice of the judge in refusing a continuance to enable her to obtain the presence of a witness, and the case again came up next morn ing before another judge, who refused the same motion for a continuance, such refusal was error, where the presence of the witness could not have been obtained without continuance. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. 598.1 Appeal from Circuit Court, Cole County; D. H. Harris, Special Judge. "Not to be officially published." Nettie Flick was convicted of keeping a bawdyhouse, and she appeals. Reversed and remanded. Fenton E. Luckett, of Jefferson City, for appellant. D. W. Peters, of Jefferson City, for the State. ELLISON, P. J. Defendant was indicted for keeping a bawdyhouse in Jefferson City. She was convicted, and has appealed. If, as plaintiff insists, the adjuster assured him that the loss would be adjusted and paid notwithstanding the breach of the iron-safe clause, upon the procurement and production by plaintiff of duplicate wholesale bills, and plaintiff thereby was induced to act upon such assurance and went to the The chief complaint is that the trial court trouble of writing to the wholesale dealers erred in overruling her motion to continue for such bills and submitting the bills thus the cause. The circumstances were these: obtained to defendant, the assurance, and The indictment was returned by the grand Trial courts must necessarily be left with wide discretion in the matter of continuances, but, of course, it must not be exercised so as to cut off the right of an accused for reasonable preparation. The judgment is reversed, and the cause is remanded. All concur. jury at 11 o'clock a. m. of March 10, 1915. WESTERN AUCTION & STORAGE CO. v. (Kansas City Court of Appeals. Missouri. CHATTEL MORTGAGES 172 FOR JURY-PAYMENT. QUESTION In replevin for furniture claimed under a chattel mortgage executed to secure the purchase price, held, that whether plaintiff had accepted a subsequent note and mortgage in payment and release of the original mortgage was for the jury. It is insisted by the state that the overruling of the application for a continuance [Ed. Note.-For other cases, see Chattel Mortwas justified by a failure to disclose due dili-gages, Cent. Dig. §§ 306-308, 310-315; Dec. gence. It is said that no effort was made to Dig. 172.] subpoena the witness until the second day after the arraignment of defendant and setting the case for trial. We think, the circumstances considered, that the court machinery was operated too rapidly. So far as the application for a continuance is concerned, defendant must be regarded as innocent, and, under the law, entitled to reasonable time in which to get witnesses in her defense. Certainly she must be diligent, but we do not see where she had opportunity for the diligence which the which state's counsel says is absent. She was indicted at 11 o'clock a. m., and arrested and brought into court at 11:30, and her trial set for the next morning. That left no chance for a subpœna reaching Kansas City until that night, and would not reach the sheriff until the following morning at about the time (in ordinary mail delivery) she was to go to trial. The sheriff then must find the witness, and, if he did, she must have time to go to Jefferson City. On the morning she was indicted and her case set for trial she appeared and made known, by proper affidavit, that she had had no chance to get her witness, and asked for time. This was denied, and but for her application for a change of venue she would have been put upon trial without her witness. The change of venue being granted, the court set it for trial before the second judge on the next day. Here again the time was too short to subpoena and have present the absent witness; and when that was made known through a proper affidavit a continuance should have been granted, if not to the next term, to some certain day far enough ahead to give her reasonable time to get a subpoena in the hands of the sheriff at Kansas City and time for him to serve it, and then time for the witness to get to the place of trial. 2. NOVATION 4-SUBSTITUTED NOTE. Cent. Dig. § 4; Dec. Dig. 4.] 3. CHATTEL MORTGAGES 241-EXTINGUISH MENT-TAKING OF NEW NOTE. The taking of a new note as absolute payment of one secured by a chattel mortgage extinguishes the lien thereof, which is a mere incident to the note. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. 241.] 4. ESTOPPEL 68-CLAIM IN JUDICIAL PRO CEEDING. chattel mortgage executed to secure the pur- 68.] In such action, defendant, the real party in interest, who derived her title through the second mortgagor and was in privity with him, was not bound by his admissions after he conveyed the title to the one through whom defendant acquired title. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 835-839, 852-859; Dec. Dig. 231.] Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge. "Not to be officially published." Replevin by the Western Auction & Storage Company against Mrs. S. W. Shore and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |