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(248 S.W.) The finding of the facts made by the trial jewelry company. By the evidence introduced court in this case is clearly supported by plaintiff made a prima facie case. Defendthe evidence, and the judgment is affirmed. ant was permitted to prove a conversation

one of his witnesses had with some unknown COX, P. J., and BRADLEY, J., concur. person in the office of the jewelry company

in St. Louis. This conversation occurred, as we understand, long after the jewelry company claimed to have sold the acceptances, and probably after this suit was filed.

This unknown person, according to defendAMERICAN TRUST CO. V. MOORE.

ant's witness, said that he was the secretary (No. 3235.)

and treasurer of the National Novelty Im(Springfield Court of Appeals. Missouri.

port Company, and said that they were bringMarch 16, 1923.)

ing suit against Moore, and that, “We have

sent to the lawyer $45 to prosecute the case;" Evidence 317(1)--Testimony of maker's and that this unknown person had a file of witness of conversation latter had with un- papers in his hands, and referred to these known person held inadmissible as being papers when discussing the matter. Defendhearsay.

ant's attorney, without objection, testified In an action against maker of note, in that in April, 1921 (two of the acceptances which defendant interposed defense that note

were then past due), Sidney Thorne Able, of was given to payee for worthless jewelry, and that plaintiff was not holder in due course, it counsel here for plaintiff, sent to witness

error to permit defendant's witness to these acceptances or similar trade accepttestify as to a conversation witness had with ances to the ones sued on in this case for an unknown person, claiming to be the secre-collection against Mr. Moore, the defendant. tary of the payee; such testimony being clearly And I was asked to make collection in the hearsay and incompetent.

name of the National Novelty Import Com

pany, and I returned them." This witness Appeal from Circuit Court, Stone County; further said that he had at least two of these Fred Stewart, Judge.

acceptances for collection.

Plaintiff's attorney Mr. Cook, without obAction by the American Trust Company section at the time, introduced in evidence against H. M. Moore. Judgment for defend letters he had received from his associate, ant, and plaintiff appeals. Reversed and

Mr. Able, concerning these acceptances, the remanded,

filing of the suit, Mr. Cook's fee, etc. At J. William Cook, of Crane, and Sidney the conclusion of the evidence by Mr. Cook, Thorne Able, of St. Louis, for appellant. counsel for defendant objected to the letters Rufe Scott, of Galena, for respondent.

and was sustained.

Counsel for plaintiff made sufficient obBRADLEY, J. Plaintiff sued to recover jections and exceptions to the evidence of H. on four trade acceptances for $59.60 each. B. Cox, the witness who talked with the un

Mr. Cox may was tried to a jury; plaintiff known person in St. Louis. failed to recover, and appealed.

have had the conversation concerning which Plaintiff claims to be an innocent pur

he testified, but his evidence was clearly chaser for value, before maturity, and with-hearsay and incompetent for any purpose. out notice of any infirmities or equities. De- As the defense was developed, the evidence of fendant contends that he gave the acceptanc- Mr. Scott was not competent. Neither was es to the National Novelty Import Company the evidence of Mr. Cook. Defendant may for a lot of worthless jewelry, and that be able to bring home to plaintiff the alleged plaintiff is not a holder in due course. It

fraud that he claims was perpetrated upon is not necessary to state defendant's defense him, but the rules of evidence cannot be disat length. If plaintiff is not a holder in due regarded when proper objections and excep course, then defendant may interpose such tions are made. The judgment should be redefense as he would have against the jewelry versed and the cause remanded; and it is so company. Plaintiff introduced the accept

ordered. ances and read in evidence the deposition of the president and general manager of the COX, P. J., and FARRINGTON, J., concur.

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The cause

T. D. Steele, of Monett, and M. U. Hayden, KING V, STANDARD ACC. INS. CO. OF of St. Louis, for appellant. DETROIT, MICH. (No. 3130.)

D. S. Mayhew, of Monett, for respondent.

(Springfield Court of Appeals. Missouri,

COX, P. J. Action upon an accident inMarch 16, 1923.)

surance policy. Jury waived; trial by 1. Insurance em 531—Provision as to injury court, and finding for plaintiff for the full in more hazardous occupation construed. amount of the policy, and defendant appeal

When an accident policy provides that, if ed. The injury resulted in the death of the assured should change his occupation to one assured. The policy was for $3,000 for more hazardous, and injury should occur while death, but defendant contended that by reaengaged in or doing an act pertaining to that son of the facts surrounding the accident occupation, the insurer should only be liable for which caused the death it was only liable the amount that the premium would purchase for $532, and offered to allow judgment to in that occupation, if assured is injured while go for that amount, so the only question in doing some act belonging to the more hazardous the case was the amount for which defendoccupation, the company is only liable for the ant was liable. amount the premium paid would purchase if bis occupation had been given as the one in the occupation of the deceased was given as

In the application signed by the deceased which he was injured.

"assistant yardmaster, office and supervis2. Insurance 531-If assistant yardmaster's ing.” In the policy his occupation was desduties required him to couple cars, he could ignated as "assistant yardmaster." He was do that without losing classification,

in the employ of the St. Louis & San Fran. Where application for an accident policy cisco Railroad at Monett, Mo., as assistant gave assured's occupation as "assistant yard- yardmaster. On the day of his death a master, office and supervising,” but the policy switching crew had run some cars togethdescribed him as "yardmaster” only, although er that failed to couple, and they rebounded what was meant by "supervising” was not stat

and separated. The deceased stepped in ed, the term “assistant yardmaster" would carry information that he was to supervise between the cars to adjust the knuckle, and what was being done in the yards of the rail while there the cars came together again road, and, when the policy was issued, it insur- and crushed him so badly that he died in a ed him for the full amount if injured in line of very few minutes afterward. duty, and, if that duty required him occasion The policy contained a provision that, if ally to couple or assist in coupling cars, he the assured should change his occupation to could do that without losing classification. one classified by the company as more hazar3. Evidence em 20(2)-Common knowledge that dous and an injury should occur while en

gaged in the more hazardous occupation, or coupling of cars is done in railroad yards.

while he should be doing any act or thing It is common knowledge that trains are made up and all kinds of switching done in the pertaining to the more hazardous occupation, yards, and coupling of cars is constantly being the company should only be liable for the done.

amount that the premium paid would pur.

chase in the more hazardous ocupation. It 4. Appeal and error 931(1) --Every reason is claimed by the defendant that the deceas

able presumption indulged in to uphold judged in attempting to adjust the knuckle or asment.

sist in coupling the cars was taking the Where defendant contended, in an action on place of a switchman, and was therefore inan accident policy for the death of an assist: jured while engaged in an act pertaining ant yardmaster killed while coupling cars, that assured was engaged in a bazard not contem- to the occupation of a switchman, which plated in the policy, but there was no evidence was more hazardous than that of assistant that assured did more at the time of the acci- yardmaster, and for that reason the comdent than any other assistant yardmaster would pany was only liable for the amount of inbe expected to do, and there was evidence that surance that the premium paid by the de. as such assistant assured would be expected ceased would purchase if his occupation under some circumstances to do just what he had been given as that of switchman. did when injured, the court sitting as a jury

[1] Defendant is right in its contention could properly have found that assured was in that, when a policy contains the provision inthe line of his regular work when injured, and corporated in its policy, and the injury on appeal every reasonable presumption must

occurs while the assured is doing some act be indulged to uphold the judgment.

that does not belong to his occupation, but Appeal from Circuit Court, Barry County; hazardous, the company is only liable for

does belong to an occupation that is more Charles L. Henson, Judge.

the amount the premium paid would purAction by Clara Opal King against the chase if his occupation had been given as Standard Accident Insurance Company of the one in which he was engaged when the Detroit, Mich. From a judgment for plain- injury occurred. Loesch v. Union Casualty & tiff, defendant appeals. Affirmed.

Surety Co., 176 Mo. 654, 75 S. W. 621.

(248 S.W.) [2,3] Many other cases are cited by ap-, and, if it did so find, the judgment is for pellant which sustain the same doctrine the right party. but we do not deem it necessary to discuss [4] In that state of the case, we must inthe proposition at length. It is purely a dulge every reasonable presumption in favor matter of contract, and the agreement made of upholding the judgment. No finding of by the parties must be enforced as made. facts was made and filed, and hence we must The difficulty with the defense in this case assume that the court sitting as a jury found is that the conceded facts did not bring it every fact in favor of plaintiff that could within the rule. There was no evidence that reasonably be so found from the testimony. the deceased usually coupled cars. There We think the evidence would justify a was evidence which would justify the trier finding of facts sufficient to sustain the judg. of the facts in finding that it was a part of ment, and we therefore assume that they the usual work of an assistant yardmaster were so found. The judgment will be afwhen supervising the work in the yards to firmed. occasionally couple cars and adjust knuckles, as deceased was doing at the time of the FARRINGTON and BRADLEY, JJ., coninjury, and, if that fact were found, then cur. the court, sitting as a jury, was .authorized to find that deceased was in the line of his duty as assistant yardmaster at the time of the injury, and, if so, the defendant was STATE ex Inf. BARRETT, Atty. Gen., ex rel. liable for the full amount of the policy. It

RYAN et al. v. HUFFMAN et al. may be noted that the application for the

(No. 3304.) policy signed by deceased, and which is made a part of the policy, contains the (Springfield Court of Appeals. Missouri. following questions and answers:

March 16, 1923.) "Q. What are your occupations and what are I. Quo warranto em 44-Actual signing by At. the duties thereof? A. Assistant yardmaster, torney General of applications to file prooffice and supervising.

ceedings on relation of private person in na. "Q. What is the name of your employer? A. ture of quo warranto, nor his presence in court St. Louis & San Francisco."

when presented, not prerequisite to validity.

It is the duty of the Attorney General or The defendant when it issued the policy prosecuting attorney, as the case may be, when described the deceased as assistant yardmas- : application for permission to file an informa

tion in the nature of quo warranto in his name ter, only. That was permissible, but it

at the relation of a private person is made to had asked what were the duties to be per- him, to investigate sufficiently to enable bin formed by an assistant yardmaster, and to determine whether the information should was told that the work was office work be filed, and when he does that and authorizes and supervising. What was meant by “su- the use of his name in the proceeding, it is pervising" is not stated, but the term "assist- sufficient, and the physical act of attaching bis ant yardmaster" employed by a railroad signature to the information or his actual

presence in court when the information is prewould carry with it the information that sented is not prerequisite to the validity of the he was to supervise what was being done in proceeding. the yards of the railroad. It is common knowledge that trains are made up and all 2. Quo warranto Few 47–Rules of pleading ap

plicable to civil actions govern proceedings kinds of switching done in the yards, and

in nature of quo warranto at relation of the coupling of cars is constantly being

private individuals. done. When this policy was issued to de

A proceeding in the nature of quo warranto ceased as

an assistant yardmaster for a at the relation of private individuals is, after railroad, it insured him for the full amount | being filed, in all essential particulars, a civil of the policy if injured while in the line of action, and the general rules of pleading apply his duty, and, if that duty required or per- as in any other civil action. mitted him to occasionally couple or assist | 3. Appeal and error ww169—Issues not prein coupling cars, then he could do that with

sented in trial court not considered. out losing his classification. There is no An issue of fact not presented on trial will evidence that he did any more at the time not be considered on appeal. of this accident than any other assistant yardmaster would be expected to do, and 4. Municipal corporations Cow 18—Relators in

proceedings to test validity of incorporation there is evidence that, as assistant yard

of town held not estopped by fact that they master, he would be expected, under some

voted at city election. circumstances, to do just what he was doing

In a proceeding in the nature of quo warwhen injured. Under the evidence in this ranto to test the validity of the incorporation case, the court sitting as a jury could very of a town as a city of the fourth class, the properly have found that deceased was in relators were not estopped on the ground that the line of his regular work when injured, they had voted at the city election, and that

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some of them had paid city taxes, especially , General being made, and both sides were
in view of the showing that they had been ad- beard by the Attorney General at his office
vised before voting by the attorney retained in Jefferson City, and, at his request, briefs
to contest the validity of the incorporation were filed with him by both sides. After
that they would not lose their right by vot-
ing thereat.

some consideration, the Attorney General

wired Mr. Curtis authority to proceed. The 5. Municipal согро ions a 12(3)-Petition information was then prepared by Mr. Cur

for incorporation of town as city of fourth tis and signed as above stated. We think class, not separately describing commons, or, this was a sufficient showing and is a if none, so stating, held fatally defective.

substantial compliance with the rule of A petitioner for incorporation of a town as a city of the fourth class, failing to describe law as stated in State ex inf. v. Taylor, the commons, if any, by metes and bounds, sep-208 Mo. 442, 106 S. W. 1023, 13 Ann. arately from the description of the city itself, Cas. 1058, cited by appellants. or, if there are no commons, to so state, is [1] It is the duty of the Attorney General, fatally defective.

or prosecuting attorney as the case may be,

when an application for permission to file an Appeal from Circuit Court, Wright County;í information in the nature of quo warranto in O. H. Skinker, Judge.

his name at the relation of a private person Application in the nature of quo warranto

is made to him, to investigate sufficiently to by the State, at the information of Jesse Bar- enable him to determine whether or not the rett, Attorney General, at the relation of R. information should be filed, and when he A. Ryan and others, against F. M. Huffman does that and authorizes the use of his name and others, as officers of the Town of Nor- in the proceeding, we think that is sufficient, wood. From a judgment of ouster, defend- and that the physical act of attaching his ants appeal. Affirmed.

signature to the information or his actual

presence in court when the information is C. H. Jackson, of Mountain Grove, and presented is not a prerequisite to the validFred Moon, of Springfield, for appellants.

ity of the proceeding. A. M. Curtis, of Hartville, and Harold T. [2] A proceeding of this kind brought at Lincoln, of Springfield, for respondents. the relation of private individuals is, after

being filed, in all essential particulars, a civil COX, P. J. Action by quo warranto against action, and the general rules of pleading apdefendants, as officers of the city of Norwood, ply the same as in any other civil cause. in Wright county, brought for the purpose of

[3] The defendants in their answer to the testing the validity of the incorporation of information did not deny the authority to the town of Norwood as a city of the fourth institute the proceeding or allege that the class. The trial court found for relators and signature of the Attorney General was afixrendered judgment of ouster against defended to the information without his consent, ants, and they appealed.

and for that reason no issue of fact on that Before passing to the case on its merits, question was presented to the trial court, some preliminary questions arise. Appellants and hence is not before us. State ex rel. contend that relators have no standing in Atty. Gen. v. Steers, 44 Mo. 223; State ex court because the information is not signed inf. v. Armour Packing Co., 265 Mo. 121, 151, by the Attorney General, but shows upon its 176 S. W. 382. face that the name of the Attorney General

[4] Estoppel is pleaded against relators on was signed by another. This information the ground that they had signed the petition, was not presented to the court by the Attor- for the incorporation and had recognized the ney General of his own motion and in his validity of the incorporation since by voting official character as such, but was presented at the city election in April, 1920, and by by the Attorney General at the relation of R. paying certain licenses and other taxes for A. Ryan, J. M. Ellis, Peter Barnett, and J. that year. There was no evidence that any B. Graves, taxpayers residing in the town of of relators had signed the petition for incorNorwood. The information is signed, “Jesse poration. It was admitted that they bad L'arrett, Attorney General of Missouri, by voted at the city election, and some of them A. M. Curtis." A. M. Curtis is an attorney had paid city taxes. It was also shown that at law and had been employed by relators to Mr. Curtis had been employed by thenr as bring or assist in whatever action could be counsel to attack the validity of the incorbrought to test the validity of the incorpora- poration from about the time the order of the tion of the town of Norwood as a city of the county court incorporating the city had been fourth class. The relators, aided by Mr. Cur- made, and he had advised them before they tis, made application to the Attorney Gen- voted that, in his judgment, they would not eral to have this proceeding instituted. The lose their right to contest the validity of the defendants, the officers of the city of Nor- incorporation by voting at the city election, wood, knew of this request of the Attorney we think, under this testimony, the trial

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(248 S.W.) court was warranted in finding that relators, injury, want of knowledge of the ordinance and were not estopped.

reliance thereon by the person injured should [5] The question involved in this case on not deprive him of his remedy. its merits is whether the petition for incor. 2. Railroads 308_That person injured did poration presented to the county court was

not know of ordinance requiring crossing sufficient to give that court jurisdiction to watchman did not affect defendant's negligent make the order of incorporation. The ma violation. terial parts of the petition are as follows:

That person injured at railroad crossing "That your petitioners, inhabitants of the was unaware of ordinance requiring a watchcity of Norwood, in Wright county, Mo., state man, and could not have relied thereon, did not and allege that the metes and bounds of said affect the question of negligence of defendant proposed city together with the commons there- railroad not having watchman. to attached is as follows."

3. Railroad Saw 330(2)-Knowledge of ordi. Here follows a description of certain ter nance requiring watchmen to be considered ritory by metes and bounds in which com in determining contributory negligence. mons are not mentioned. The prayer of the Knowledge of an ordinance requiring watchpetition is that the city with the boundaries man at railroad crossing, or the lack of it, and above described be incorporated as a city of reliance upon the ordinance being obeyed or the the fourth class, and a police be established lack of it, are properly considered in determinfor the local government of said city “anding the question of contributory negligence. for the preservation and regulation of any 4. Negligence Aww 122(1) Every reasonable and all commons appertaining to said city as intendment to be drawn in favor of plaintiff above described.” The relators contend that in determining his contributory negligence the failure to describe the "commons'by as matter of law, metes and bounds, if there were any com In determining the question of plaintiff's mons, or if there were no commons to allege contributory negligence as a matter of law, ev. that fact in the petition, rendered the peti-ery reasonable intendment is to be drawn in tion void and did not confer jurisdiction on his favor, and no hard and fast rule can be fixed the county court to proceed with the incor- in any case, but each case must be determined poration. Relators' contention is supported upon its own facts. by the Supreme Court of this state in State 5. Railroads Om 324(1)-Railroad track is ex inf. v. Woods, 233 Mo. 357, 377, 135 S. W.

warning of danger. 932, and we are bound by that decision, and,

A railroad track is, in and of itself, a warnupon its authority, must hold that the peti- ing of danger, and this is generally true of a tion for incorporation in this case is fatally switch track the same as a main line track. defective for the failure to describe the commons, if there were any, by metes and bounds 6. Railroads 327(8)-Duty to look and lisseparately from the description by metes and

ten before passing over railroad crossing bounds of the city itself, or, if there were no

continues until dangerous locality is passed. commons, as appears to be the fact in this

A person, before venturing to pass over a case, to so state in the petition. The St. Louis railroad crossing, should look and listen for Court of Appeals has also so held. State ex approaching trains, and this duty continues un

til the dangerous locality is passed. rel. v. Gooch, 175 Mo. App. 270, 157 S. W. 846; State ex rel. v. Buerman, 186 Mo. App. 7, Railroads 327(5)-Person passing over 691, 698, 699, 172 S. W. 454.

railroad crossing must look in both directions. On the authority of State ex inf. v. Woods, A person intending to cross a railroad supra, we are required to affirm the judg- crossing must use ordinary care to look, as he ment in this case; and it is so ordered. can, in both directions, since looking in one

direction only will not suffice, unless he has FARRINGTON and BRADLEY, JJ., concur. good reason to believe that a train will not

approach from any other direction.

8. Railroads mm 329 – Person's conduct in

crossing railroad crossing measurable by his

knowledge and surrounding circumstances. HENDERSON V. ST. LOUIS & S. F. RY. CO.

A person's conduct in going upon a rail(No. 3210.)

road crossing must be measured by what he (Springfield Court of Appeals. Missouri. knew at the time, and the circumstances which March 16, 1923.)

surrounded him. 1. Negligence Com 6–Want of knowledge of or- 9. Negligence C 66(1)-Knowledge of danger

dinance, requiring watchmen at railroad obtainable from exercise of ordinary care is crossing, should not deprive injured party of imputable to person. remedy.

A party must be held to have known that If the failure to do the thing required in an which he could have learned by the exercise of ordinance should be the proximate cause of an ordinary care.

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