ground can be considered as pleaded in the | 3. DAMAGES 24-PERSONAL INJURY-FUreply. As held in Meyer v. Christopher, 176 TURE SUFFERING. Mo. 580, 75 S. W. 750:

"If there is any room for doubt as to the meaning of a contract, the construction the parties themselves put upon it will remove the doubt."

The remaining defenses, namely, that Ridge failed to make reports by the 30th of each month, and that he tried to sell the agency, likewise failed of establishment. The requirement of monthly reports was waived by the method of doing the business, and there was no evidence of an attempt to peddle or hawk the agency about to others.

In a passenger's action for injury, where the evidence tended to show that his ankle was weak, and might reasonably be expected to cause him some future pain and inconvenience, the jury might consider such future pain of body and mind, if any, as in all reasonable probability he would suffer as a direct result of his injury.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 65-67; Dec. Dig. 24.] 4. DAMAGES 159 - PERSONAL INJURY PLEADINGS AND ISSUES-EMPLOYMENT." alleging that plaintiff had been and would be Under a petition in an action for damages, compelled to lose valuable time and money by reason of being unable to perform the duties [3] If plaintiff wrongfully terminated the incident to his employment, referring to the defendant's agency, then the latter could re- practice of dentistry, without specifying whethdefendant's agency, then the latter could re- er he was practicing independently or as a paid cover damages on his counterclaim. The assistant, he was entitled to show the different damages claimed were not too remote, since sources and receipts from the practice of denthere were actual data upon which a rea- tistry, which was his "employment"; that term not necessarily importing an engagement for sonable estimate could be based. When this rendering services for another, but referring eiis the case expected profits may be recover-ther to such service or to a profession practiced ed. Morrow v. Missouri Pacific R. Co., 140 independently. Mo. App. 200, loc. cit. 213-217, 123 S. W. 1034; Thayer-Moore Brokerage Co. v. Campbell, 164 Mo. App. 8, loc. cit. 20, 147 S. W. 545; Hicks v. National Surety Co., 169 Mo. App. 479, loc. cit. 491, 155 S. W. 71; Mueller, Adm'x, v. Bethesda Mineral Spring Co., 88 Mich. 390, 50 N. W. 319.

Other matters of complaint are urged, but they are not deemed of sufficient moment to require separate elucidation. The foregoing disposes of the real meat of this contro

versy.

Finding no substantial error in the case, the judgment is affirmed. All concur.

CLARK V. DUNHAM et al. (No. 11634.)
(Kansas City Court of Appeals. Missouri.
June 14, 1915. Rehearing Denied
Oct. 4, 1915.)

1. CARRIERS 321-PERSONAL INJURY-IN-
STRUCTIONS-KNOWLEDGE OF PASSENGER'S

MOVEMENTS.

In an action for personal injury from defendants' alleged negligence in starting their car without giving plaintiff sufficient time to alight, where the evidence of both parties shows that the conductor knew plaintiff was alighting, the only issue was whether the car started while plaintiff was alighting; and an instruction not requiring the jury to find that the conductor knew that plaintiff had not safely alighted when he started the car was not objectionable.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. 321.]

2. CARRIERS 321-PERSONAL INJURY-IN

STRUCTIONS-NEGLIGENCE.

Cent. Dig. §§ 429-438, 440-444, 447, 449–453; [Ed. Note.-For other cases, see Damages, Dec. Dig. 159.

For other definitions, see Words and Phrases, First and Second Series, Employment.]

Appeal from Circuit Court, Jackson County; A. C. Southern, Judge.

"Not to be officially published."

Action by James P. Clark against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal.

Affirmed.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellants. Calvin & Rea, of Kansas City, for respondent.

JOHNSON, J. This is an action against the receivers of the Metropolitan Street Railway Company to recover damages for personal injuries plaintiff alleges were caused by negligence of defendants in the operation of an electric street car on which he was a passenger. The petition alleges that the car was stopped to receive and discharge passengers, and plaintiff "was in the act of descending the steps of said car to the pavement," when the car was suddenly started forward, "before he had had sufficient time and opportunity to alight from said car, and before he had fully done so," and he was thrown to the pavement and injured. The answer is a general denial. A trial to a jury resulted in a verdict and judgment for plaintiff for $800, and defendants appealed.

The injury occurred at 7 o'clock p. m. Feb

Where the facts hypostatized in an instruc-uary 5, 1913, at the corner of Eighth and tion, if true, constituted negligence in law, it was not necessary for plaintiff's recovery to require the jury to find that the conductor's act in suddenly starting the car, while he was alighting, with full knowledge thereof, was negligence. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. 321.]

Charlotte streets, in Kansas City. Plaintiff was a passenger on an east-bound car which stopped at the regular stopping place at the corner to receive and discharge passengers. Another passenger alighted before plaintiff, who was stepping down from the platform of the rear vestibule, when the car started

forward with a jerk and threw him to the Charlotte street, a signal was given by the plainpavement. Plaintiff testified:

structions. This point must be ruled against ently or as the paid assistant of another defendants.

"Where, as in this case, there is no instruction defining 'negligence,' the question submitted to the jury should be, not whether the act was done negligently, but whether in doing it the defendant observed the degree of care required, and that degree should be stated in the instruction. 'If, however, the term 'negligence' is defined in any of the instructions, the question of whether the defendant did the act complained of 1. negligently may be put in that form to the jury, But for the same reason above given in regard to the other instructions the errors in them do not affect the merits of the case.'

"Plaintiff has been and will be compelled to lose much valuable time and money by reason of his being unable to perform the duties necessary and incident to his profession and employ-ling of the express company to contract against ment."

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 331-337; Dec. Dig. 90.] 7. CARRIERS 90-EXPRESS COMPANY-INJUNCTION-RIGHTS OF SHIPPER.

tion to that fact, and was not required to com- [express company for an injunction against plete its executory contract by a violation of the said rule, and a temporary writ was issued law and to trust to the preliminary order or to commanding the company "to accept, receive, the shipper's bond or supposed personal solvency to indemnify it from loss by reason of and transport to any point or points within violating the law. the state of Texas" where an express office was maintained any and all C. O. D. packages of intoxicating liquors tendered to it "until the further order of the court." In obedience to this temporary order, and solely because of it, the express company abandoned its rule, and received of plaintiffs 615 packages of intoxicating liquor consigned from Dallas, Tex., to various individuals throughout that state, on C. O. D. terms. Under the contract of carriage defendant was thus compelled to enter into, it agreed to carry the packages to destination, hold

A shipper of intoxicating liquors for delivery C. O. D. by an express company compelled to make such delivery under a temporary order of mandatory injunction from a United States Circuit Court acquired no vested rights under the order, as the right to have the express company collect was a right arising solely through private contract.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 331-337; Dec. Dig. 90.]

8. INTOXICATING LIQUORS 6-REGULATION the same for 30 days for delivery to the con-POLICE POWER.

The traffic in intoxicating liquors does not stand upon the same basis as other commercial occupations, but derives its authority, not from natural right, but only from statute, and a shipper's right to an express company's provisions of its contract to deliver intoxicating liquors C. O. D. is always subject to the police power of the state by regulation, restriction, or prohi

bition.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 4; Dec. Dig. 6.] Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by M. O. Danciger and another, partners doing business under the firm name and style of the Harvest King Distilling Company of Dallas, Tex., against the American Express Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

See, also, 179 S. W. 800.

I. J. Ringolsky and Harry L. Jacobs, both of Kansas City, for appellants. Ashley & Gilbert, of Kansas City, for respondent.

signees, and, upon delivery, to collect the purchase price, and remit to plaintiffs less a small charge for said service of collection and remittance. The contract further provided that:

"This company is not to be held liable for any loss or damage except as forwarders only, nor for any loss, damage, or delay by *** the restraints of government.

*

"If any sum of money besides the charges for transportation is to be collected from the consignee on delivery of the above-described property, and the same is not paid for, or if in any case the consignee cannot be found, or for any other reason it cannot be delivered, the shipper agrees that this company may return said property to him subject to the conditions of this receipt, and that he will pay all charges for transportation," etc.

The express company carried said packages to the various points of destination, but, before delivery could be effected, the Legislature of Texas enacted a statute, and put it into immediate effect, imposing on all persons and corporations carrying liquors C. O. D. an occupation tax of $5,000 a year on each C. O. D. office maintained therein, and granting to the county and city in which the office was located the right to levy an ad

tax of $10,000 on every office where liquors were delivered C. O. D., and providing enormous penalties for failure to comply therewith. Under this act, for the company to engage in the C. O. D. transportation of intoxicating liquors, it would have been required to pay an occupation tax of $1,330,000 yearly-a sum far in excess of its entire revenue from all sources in the state.

TRIMBLE, J. [1] Plaintiffs, as partners, were engaged in the mail order liquor business in the city of Dallas, Tex., under the name of the Harvest King Distilling Com-ditional $2,500 a year each, making a total pany. Their method of business was that, upon receipt through the mail of orders from individuals throughout the state of Texas, plaintiffs would ship the liquor C. O. D., which means, of course, that the purchase price of the liquor should be collected by the carrier from the consignee upon delivery. Influenced by certain legislation of the state of Texas, enacted for the purpose of regulating and restricting the shipment of intoxicating liquor into local option districts, the express company adopted a rule refusing to receive at any point in Texas C. O. D. shipments of intoxicating liquors destined to local option points in said state, by whomsoever tendered, on the ground that it was no part of its public duty as a common carrier to collect from the consignee, and remit to the consignor, the purchase price of the goods carried. Thereupon suit was instituted in the United States Circuit Court for the Northern District of Texas against the

The day said law went into effect the United States Court, in the injunction suit which was still pending therein, on motion of defendant, suspended its temporary order requiring the express company to "accept, receive, and transport" C. O. D. liquor shipments, and dissolved the temporary injunction issued in the case; and later, upon a hearing duly had, said court refused to reinstate said temporary order or to issue an injunction commanding the company to "receive, convey, and deliver" C. O. D. shipments of liquor, and thereupon dismissed said suit.

This suit is to recover damages for refusing to deliver on C. O. D. terms the 615 packages of liquor. The trial court rendered judgment for defendant, and plaintiffs have appealed.

When the United States court abrogated | Pl. & Pr. 1011. The court had inherent powthe temporary order under which the express er at any time to vacate or set aside its temcompany had been compelled by plaintiffs to porary order, and whatever rights plaintiff accept their C. O. D. shipments, the express obtained under said order were subject to company notified plaintiffs that it could no that inherent right. In fact, plaintiff was longer make delivery of C. O. D. shipments, not entitled to have the order made or to and sought to obtain permission of plaintiffs any rights thereunder, since it was a compelto deliver without collecting the purchase ling of the express company to contract price, but plaintiffs refused to grant this per- against its will in regard to matters having mission. The express company then trans- nothing to do with its duty as a common carported the packages back to Dallas, and turn- rier. Danciger v. Wells Fargo & Co. (C. C.) ed them over to plaintiffs after collecting re- 154 Fed. 379; H. Clark & Sons, Inc., v. Southturn charges thereon. ern Express Co. (D. C.) 203 Fed. 588. Hence the court very properly rescinded it. And, as the express company had been compelled to enter into contracts it did not wish to enter into, and which it was not required as a common carrier to enter into, it had the right to contest the matter at every stage of the proceeding. And the moment the Texas Legislature enacted a law making the enforced executory contract unlawful, the express company had the right to call the court's attention to this fact. It did not have to violate the law and trust to the shield of the court's preliminary order, or to the little bond of $2,000 given by plaintiffs when the preliminary order was obtained, or to plaintiffs' supposed personal solvency, however large that may be, to indemnify it from loss by reason of violating the law. If performance subsequently became unlawful without the carrier's fault, it is not required to violate the law in order to comply with its contract. Baltimore, etc., R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579. Nor was there any clash between the United States court and the Texas Legislature. Before the passage of the act the court, at plaintiffs' instance, compelled the express company to accept C. O. D. liquor shipments until further orders. But the moment the Texas act was passed the court abrogated its order, and rightly did so, since it was one plaintiff was never entitled to have, and, in its nature, was merely temporary and provisional. The many cases cited by plaintiff where legislative acts have not been allowed to interfere with the orders of courts made prior to the enactment of the legislation were cases in which final judgments had been rendered under laws then in force and rights thereunder had become fully vested.

[2] It must be kept constantly in mind that the defendant did not refuse to perform its common-law duty to receive, transport, and deliver the packages. It only refused to deliver upon C. O. D. terms, which required the company to collect the purchase price and remit to plaintiffs. The duty to do this was not imposed by law, but arose solely by virtue of private contract. Rosenberger v. Pacific Express Co., 258 Mo. 97, 167 S. W. 429. [3] The Texas law above referred to rendered a delivery of intoxicating liquor on C. O. D. terms unlawful, and excused the express company from performing that feature of its contract. Craddock v. Wells Fargo Co. (Tex. Civ. App.) 125 S. W. 59. It was a valid police regulation, and excused the defendant's refusal to so deliver. Rosenberger v. Pacific Express Co., supra, 258 Mo. loc. cit. 111, 167 S. W. 429. So far as the particular breach of contract relied on herein is concerned, the case is precisely in the same situation as where one contracts to do an act lawful at the time the contract is entered into, but before the act is performed the law declares that act illegal. In such case the executory features of the contract are thereby annulled. Church v. New York, 5 Cow. (N. Y.) 538; Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079.

But plaintiff says the passage of the Texas act did not excuse delivery of the shipments on C. O. D. terms, because the Legislature has no power to interfere with the courts. We have no desire to question the well-established rule that, where rights have become vested and established by the final judgment of a court having jurisdiction to act, those rights are beyond the power of the Legislature to annul or destroy. But that principle is not involved here, and neither is the freedom of the judiciary from encroachment on the part of the legislative branch of government.

[7, 8] But no vested rights were acquired by plaintiffs under the order of court in the case at bar. In the first place, the right to have the express company collect the purchase price of intoxicating liquors delivered within the state of Texas was a right arising solely through private contract. The right to have performance of such a contract was at all times subject to the police power of [4-6] The order made by the United States the state government to regulate, restrict, court was not a final judgment adjudicating and forbid, since the traffic in intoxicating or fixing the rights of the parties. It was a liquors does not stand upon the same basis mere temporary order in force only "until as other commercial occupations, but derives