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and particularly when committed by different balanced he might incline through sympathy to persons."

favor plaintiff is not sufficient to render him inSections 8315 and 8320, R. S. 1909, relate competent on a challenge for cause. to the same subject and are parcel of the Dig. ss 431-433, 435-437; Dec. Dig. Om97.)

[Ed. Note. For other cases, see Jury, Cent. same act. Section 8315 denounces as an of

3. TRIAL 256—WRONGFUL DEATH-ACTION fense the act of practicing medicine without

-INSTRUCTION. license from the state board of health, as In action for the wrongful death of plaintherein contemplated, and section 8320 de- tiff's two year old daughter under Rev. St. 1909, nounces the practice of midwifery in this less than $2,000 and not exceeding $10,000 for

§ 5425, authorizing recovery for an amount not state by one not licensed to do so. Section

every such death contemplated therein, where 8315, concerning the practice of medicine the court charged that the jury might return a without a license, prescribes the punishment to verdict, if for the plaintiff, in a sum not less

than $2,000 and not to exceed $10,000, such inbe assessed in such cases at a fine of not less struction was not erroneous as omitting to inthan $50 nor more than $500, or by imprison- form the jury that plaintiff was not entitled to ment in the county jail for a period of not recover anything for loss of society or loss of less than 30 days or more than 1 year, or by the child, where no more definite charge was

services, except during the years of minority of both such fine and imprisonment. Section asked. 8320 provides that one practicing midwifery [Ed. Note. For other cases, see Trial, Cent. without license may be punished by a fine Dig. 88 628–641; Dec. Dig. 256.] of not less than $10 nor more than $50, or by 4. DEATH O 99-DAMAGES. imprisonment in the county jail not more for death of plaintiff's two year old daughter,

In suit under the wrongful death statute than 2 months nor less than 10 days. The a verdict exclusive of the $2,000 penalty, of motion in arrest of judgment, and also that $5,420 could not be declared excessive, since it to quash, questions the constitutionality of could not be said that in no event might such the enactment because of the discrepancies in child have yielded so much to her parents dur

ing the period of her minority, less the expense the penalties provided in the two sections of care and education to them, while, with reabove referred to. An argument is directed spect to an infant's death, the jury may fix in the briefs against the statute on the the amount of recovery, utilizing their own

knowledge and experience in the absence of diground above referred to, and it appears a rect evidence. constitutional question is raised and pressed [Ed. Note.--For other cases, see Death, Cent. in the case.

Dig. $$ 125-130; Dec. Dig. Om 99.] As this court is without jurisdiction where

Appeal from St. Louis Circuit Court; the constitutionality of an act of the Legislature is called into question, the case should Rhodes E. Cave, Judge.

Suit by Mary Albert against the St. Louis be transferred to the Supreme Court for final

Electric Terminal Railway Company. Judgdetermination. It is so ordered.

ment for plaintiff, and defendant appeals. REYNOLDS, P. J., and ALLEN, J., concur. Affirmed.

Jones, Hocker, Hawes & Angert and Anderson, Gilbert & Levi, all of St. Louis, for

appellant. S. P. Bond, of St. Louis, for reALBERT V. ST. LOUIS ELECTRIC TER

spondent. MINAL RY. CO. (No. 14124.) (St. Louis Court of Appeals. Missouri. Nov.

NORTONI, J. This is a suit for damages 2, 1915. Rehearing Denied Nov. 23, 1915.)

under the wrongful death statute. Plaintiff 1. NEGLIGENCE 96-INJURY ON TRACKS-recovered, and defendant prosecutes the apIMPUTED NEGLIGENCE.

peal. Where the father of a two year old girl

Plaintiff's little girl, two years of age, was was sitting on his front steps with the child, and, when he became engrossed in his news-run upon and killed by one of defendant's paper, she left him and ran into the street, a street cars. The child was at play for the neighbor calling to the father to look out for moment in Twelfth street in the city of St. her just as a street car approached, whereupon he ran into the street, but too late to save the Louis between Biddle and Carr streets, child, which was struck by the car, the father where defendant operates its car line. The was 'not negligent, since an ordinarily prudent evidence tends to prove that by due care deperson might suffer such a lapse of attention under the circumstances for such an interval.

fendant's motorman could have averted the [Ed. Note.-For other cases, see Negligence, catastrophe, but failed to do so. The petiCent. Dig. 88 157-161; Dec. Dig. Om 96.] tion counts upon the Vigilant Watch Ordi2. JURY Ow97-BIAS OF JUROR-CHALLENGE nance. FOR CAUSE.

[1] It is argued the court should have diIn action for death of a two year old girl, rected a verdict for defendant because of where a juror stated that his sympathy for the death of the child would probably influence him plaintiff's negligence in that Joseph Albert, in favor of the plaintiff, if the evidence were the father of the child, permitted it to run evenly balanced, unless the court instructed upon defendant's tracks at the time, but we otherwise, the court's action in declining to sus- are not so persuaded. It appears that plaintain defendant's challenge for cause to such juror was proper, since the mere fact that a tiff's residence abutted closely upon Twelfth juror answers that if the evidence were evenly street, immediately adjacent to the point of

the s

collision, and Joseph Albert, the father, was This court has given expression to the sitting on the third from the bottom of the same views heretofore, as will appear by reffront steps while the little girl was playing erence to McManama v. United Rys. Co., 175 about him. But a moment before she was Mo. App. 43, 49, 158 S. W. 442; Billmeyer v. sitting beside her father on the step. The St. Louis Transit Co., 108 Mo. App. 6, 82 S. father was reading a newspaper, and it w. 536. Obviously the sympathies which one seems became engrossed in it when the little entertains for the loss of a child in such cirone, unnoticed by him, ran into the street cumstances do not constitute a strong and near the car track. A neighbor called to deep impression which will close the mind him to look out for the baby just as the car against the testimony so as to resist its force approached. Thereupon Mr. Albert ran into and combat its effect. On the contrary, such the street, but the car had run upon the sympathies are to be regarded in the catechild before he reached it. We are unable gory of light impressions which may fairly to say, in these circumstances, that the neg. be supposed to yield to the testimony given ligence of the father should be declared as in a case. The examination of the juror a matter of law. It seems that the father here discloses that his mind was open so as was exercising due care for the safety of the to enable him to return a proper verdict unchild, but it toddled into the street only a der the instructions of the court notwithmoment before, while his attention was en- standing his natural sympathy. It is congrossed in reading. It cannot be said that clusively settled by the Supreme Court dean ordinarily prudent person would not suf- cisions that the mere fact that a juror answers fer a lapse of attention, under the circum- that if the evidence were evenly balanced stances, for so short an interval.

he might incline through sympathy to favor [2] It is argued that the court erred in de plaintiff is not sufficient to render him inclining to sustain defendant's challenge to competent on a challenge for cause. If there Juror Byrne, for it is said that his exam is nothing more to indicate bias or prejudice, ination revealed a bias against defendant. the juror is competent, for the law will not On the examination of this juror no admis- put him aside because, forsooth, he honestsion appears tending to show that he was ly answers concerning the sympathies which prejudiced or biased in any wise. It is true lie in every human heart. See Keegan v. he stated that his sympathy for the death of Kavanaugh, 62 Mo. 230; Hudson v. St. Louis, the child would probably influence him in etc., Ry. Co., 53 Mo. 525, 537. favor of plaintiff, if the evidence were even- Plaintiff's principal instruction is criticis. ly balanced, unless the court instructed oth-ed, but it is well enough, as will appear by erwise. Touching this matter, the following reference to numerous cases cited in the questions and answers appear:

brief which support and approve the lan"Q. If the evidence in this case in your mind guage employed. was evenly balanced, and the court had instructed you that it was the duty of the plaintiffs to

[3] The suit proceeds as for the wrongful make out their case by a greater weight of evi- death, under section 5425, R. S. 1909; i. e., dence, and in weighing the evidence in your own the penal section. The statute authorizes a on both sides, would your sympathies influence recovery for an amount not less than $2,000 you in deciding that case for the plaintiffs, in and not exceeding $10,000 for every such view of the instructions as given you by the death as therein contemplated. The court court? A. No, sir. Q. Which way would you gave, at the instance of plaintiff, the folfind if the evidence was about the same, or was lowing instruction on the measure of damthe same on the part of the plaintiffs and the defendant, for whom could you find ? A. Well, ages: if I wasn't instructed otherwise, I would find

"The court instructs the jury that, if under in favor of the plaintiffs. Q. You would find the evidence and the other instructions given in in favor of the plaintiffs, if the evidence was this case, you decide to find a verdict for the equal on each side? A. If I wasn't instructed plaintiffs, then you may return a verdict in a otherwise, I would. Q. This sympathy that you sum not' less than $2,000 and not to exceed have expressed, would it tend or lead you to $10,000.” give more credence to the evidence offered by the plaintiffs than that offered by the defend- It is urged the court erred in this because ant? A. No, sir; it would not."

the instruction omits to inform the jury There is, as above stated, no suggestion of plaintiff was not entitled to recover anything bias or prejudice on the part of the juror. for the loss of society, nor on account of the At most the question pertains to the sym- loss of services, except during the years of pathies which well from every human heart. minority, but the argument is not convincing, It is said by Chief Justice Marshall in Burr's in view of the rule, which is now well esCase:

tablished, concerning a general charge on the “That light impressions which may fairly be measure of damages. Generally speaking, an supposed to yield to the testimony that may be instruction on the measure of damages, in offered, which may leave the mind open to a fair

statute, consideration of that testimony, constitute no cases under the wrongful death sufficient objection to a juror; 'but that those which is proper in its general scope and constrong and deep impressions which will close the tains no element of misdirection, is regarded mind against the testimony that may be offered well enough in the view that mere nondirecin opposition to them, which will combat that testimony and resist its force, do constitute a tion is not reversible error. It is said that the amount of the recovery to be more clear-, comes in question with respect to the death ly defined and limited, the duty devolves up- of an infant, the jury may fix the amount on it to ask an instruction accordingly. See of the recovery, without evidence thereon, Browning v. Wabash, etc., Ry. Co., 124 Mo. through utilizing their own knowledge and 55, 27 S. W. 644. See, also, for an applica-experience, presumptively possessed by them tion of the same rule in other cases, King in common with mankind in general. This v. St. Louis, 250 Mo. 501, 157 S. W. 498; Smith is the rule announced under the third section v. Fordyce, 190 Mo. 1, 30, 31, 88 S. W. 679; of the damage act; i. e., the compensatory State ex rel. v. Reynolds et al., 257 Mo. 19, section. See Nagel v. Mo. Pac. R. Co., 75 165 S. W. 729; Nelson v. United Rys. Co., Mo. 653, 42 Am. Rep. 418. When, therefore, 176 Mo. App. 423, 158 S. W. 446; Powell v. it is remembered that this is a question which U. P. R. Co., 255 Mo. 420, 454-457, 164 S. W. our law remits to the jury to be disposed of 628. The mere facts that the recovery in without evidence by resorting to their knowlthe instant case pertains to the death of a edge and experience as men, the argument minor on which no compensation is to be advanced suggests the plain proposition that made for the loss of society and none given the appellate court should declare, as a maton account of the loss of service beyond the ter of law, no child may yield the amount of age of maturity are of no avail to change the $5,420 to the parents during the years of its rule, for that the principle remains the same minority. This we are unable to declare, for at all events. In either case the question it is beyond the ken of man. Under this presents one of nondirection only. And it same section of the statute, our Supreme is certain that such is not error. The point Court approved a verdict of $8,000 given on of the matter is that a general instruction account of the death of a 15 year old boy in of the character of that above copied will Ellis v. Metropolitan St. R. Co., 234 Mo. 657, suffice if no element of misdirection concern- 138 S. W. 23, but it may be in the view that ing the element of damage is incorporated the entire sum was penalty, for such appears therein. Omitting the misdirection, the sub- to be the view of the court at that time ject-matter is remitted to be disposed of as touching this statute. See Young V. St. are other similar questions on the grounds of Louis, etc., R. Co., 227 Mo. 307, 127 S. W. 19. nondirection. Touching this the principle is But be this as it may, the proposition rethe same in either case. See Dudley v. Wa- mains that we are urged to declare, as a bash R. Co., 167 Mo. App. 647, 673, 150 S. W. matter of law without evidence thereon, a 737.

recovery of $5,420 compensatory damages is [4] It is argued the verdict is excessive, excessive for the loss of an infant daughter and that this we should declare as a matter two years old, and this involves the notion of law. The amount of the verdict as ap- that no infant female child of that age may proved by the trial court is $7,420. The suit yield so much to the parents during her proceeds, as above stated, under section 5425, minority. We are not prepared to so say. R. S. 1909, which authorizes a recovery of The judgment should be affirmed. It is so

. not less than $2,000 nor exceeding $10,000 ordered. for every such death. According to the construction placed upon this statute by the Su

REYNOLDS, P. J., and ALLEN, J., concur. preme Court in Boyd v. Mo. Pac. R. Co., 249 Mo. 110, 155 S. W. 13, Ann. Cas. 1914D, 37, $2,000 of the recovery authorized is penalty

ASSMAN V. ASSMAN. (No. 13805.) while the amount above that is to be regard-(St. Louis Court of Appeals. Missouri. Nov. ed as compensatory damages. This being

2, 1915.) true, of course, the amount of $2,000 is to be

1. PARENT AND CHILD Om3_SUPPORT OF set aside as a penal sum, and therefore not CHILD-FATHER'S DUTY. considered in connection with the argument Where a father is at fault in abandoning that the verdict is excessive. In this view, his home, his wife may recover from him for the recovery as compensatory damages is to necessaries which she has furnished the minor

children during his absence, even though such be treated as if for $5,420; that is to say, husband be divorced from the wife in a foreign after deducting the amount of the penalty. state, and the decree does not purport to award This amount, $5,420, we are urged to peremp- the custody of the children to either party, since

primarily the obligation to support minor chiltorily declare, is an excessive recovery for dren rests upon the father, and on his failure to the loss of a female child because it is said furnish necessaries to the child, according. to in no event may she yield this much during his station in life, one who has done so may the period of her minority, less the expense recover therefor from him. of care and education to the parents. But, Child, Cent. Dig. 88 33–62; Dec. Dig. Om3.]

[Ed. Note. For other cases, see Parent and how are we to ascertain this to be true?


AND CHILD Own 3—SUPPORT There is no evidence in the record, either pro

CHILD- LIABILITY OF FATHER. or con, tending to throw light upon the prob- Where a wife left her husband, who was able earning capacity of this infant in after without fault, and went to New York state, years. Of course, the law requires none in where she remained five years, returning tem

porarily and inducing her minor child to return such cases.

Indeed, it is the accepted rule to New York with her, without the knowledge of decision that where this subject-matter I or consent of the husband, he was not liable at


such wife's suit for the support of the child by father, the amount expended in his care, her, in the absence of any showing that the keep, and education. child would suffer otherwise; for unless a father is at fault in some way he is entitled to

[1] The court directed a verdict for dethe care and custody of minor children at his fendant in the view that, though the obligahome, and a parent who is willing to support tion to support the son devolved upon dehis children at home is not bound to provide fendant, the father, in the first instance, it for them elsewhere, except where he has wrongfully driven them away, or at least assented to was not enforceable in the circumstances of another's taking or keeping them.

the case at the suit of the mother who was [Ed. Note. For other cases, see Parent and undivorced, for that she had voluntarily takChild, Cent. Dig. SS 33-62; Dec. Dig. Om3.] en the child into her custody and removed 3. PARENT AND CHILD Omm 3–SUPPORT

CHILD 3–SUPPORT OF him to a foreign state without the knowledge CHILD—LIABILITY FOR NECESSITIES.

Where a mother abandoned her husband or consent of the husband, and we are perwithout cause, and after several years returned suaded that the ruling was a proper one on and carried off their son to another state with the facts. There can be no doubt that priout its father's knowledge or consent, the mere marily the obligation to support the minor fact that the father shortly thereafter sent the child rests upon the father, and, on his fail

, a ing him to be good to his mother, did not show ure or neglect to furnish necessaries for the that he consented to withholding the buy from support of the child according to the station him, since he was not bound to go into a for- in life, one who has done so may recover eign jurisdiction to assert his rights. [Ed. Note. For other cases, see Parent_and where the father is at fault as by abandon

from the father accordingly. So it is that, Child, Cent. Dig. $8 33–62; Dec. Dig. Om3.]

ing the home, the wife may recover from him Appeal from St. Louis Circuit Court; W. for such necessities as she has furnished the B. Homer, Judge.

minor children during his absence, and this Suit by Matilda Assman against William S. is true though he be divorced from her in a Assman. Judgment for defendant on direct- foreign state, even though the decree does ed verdict, and plaintiff appeals. Affirmed. .

not purport to award the custody of the chilCharles Fensky and Grant Gillespie, both dren to either party. See Rankin v. Rankin, of St. Louis, for appellant. Campbell Alli- | 83 Mo. App. 335; McCloskey v. McCloskey, son, H. S. Caulfield and Jesse McDonald, all 93 Mo. App. 393, 67 S. W. 669. of St. Louis, for respondent.

[2] But here it does not appear that de

fendant father was at fault in the matter NORTONI, J. This is a suit to recover the at all, and, indeed, no decree of divorce has amount expended for the care, keep, and ed- been given either party. Presumptively, the ucation of defendant's minor son. At the defendant furnished a good home and all conclusion of the evidence the court directed necessaries to the minor son. The parties a verdict for defendant, and plaintiff prose- stand as husband and wife, and while the cutes the appeal.

primary duty of support rests upon the husThe parties are husband and wife. It ap-band, as a corollary thereto, he is entitled pears they were married August 14, 1890, to the custody and earnings of the minor and separated May 15, 1900. They resided children as well at common law. Moreover, as husband and wife in St. Louis, Mo., prior under our statute (section 403, R. S. 1909) to their separation. It does not appear what then in force, the father was the natural occasioned the separation, but, at any rate, guardian of the child and entitled to its care plaintiff removed to the state of New York and custody and to direct its education, May 27, 1901, where she has since resided. though it may be otherwise now under the At that time the minor son, Harry Robert, amendment. See Laws of Missouri 1913, p. was about seven years of age. He resided 92. It is therefore clear enough that, unless at all times with defendant, his father, and the father is at fault in some way, he is enin his home in the city of St. Louis. Al titled to the care and custody of the minor though plaintiff and her husband remained children at his home, and a parent who is separate, no divorce was ever granted either willing to support his children at home is party. About Feb

About February, 1906, when the mi- not bound to provide for them elsewhere, exnor son was aged 13 years, plaintiff returned cept where he has wrongfully driven them to St. Louis from New York and induced away or at least assented to the mother's him to accompany her to that state. It ap- taking or keeping them. See Spencer's Do pears that defendant was not consulted con- mestic Relations, $ 493; 29 Cyc. 1610. Here cerning this matter, and plaintiff admits in it appears the father was furnishing the her testimony that she took the minor son support to his minor son at his home in St. into her custody without the knowledge or Louis—i. e., was performing the full measconsent of defendant, his father, although a ure of his obligation with respect to this week later defendant sent the clothing of the child when the plaintiff mother, after an abboy to him to Brooklyn, N. Y., and wrote a sence of about five years, came on the scene letter urging him to be good to his mother. unexpectedly and spirited the child away to After having supported the minor son for a foreign state without the knowledge and several years in New York, plaintiff institut- against the consent of the father. In such ed this suit to recover from defendant, the circumstances she must be deemed to have

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voluntarily assumed the burden of its sup-, plaintiff, except for the actual number of hours port, for defendant was in no wise at fault. employed, as and when defendant might direct. Glynn v. Glynn, 94 Me. 465, 48 Atl. 105; Fit-Servant, Cent. Dig. 62; Dec.'Dig. Eww48.]

[Ed. Note.

For other cases, see Master and ler v. Fitler, 33 Pa. 50. [3] The mere fact that defendant sent for-2. CONTRACTS m169–CONSTRUCTION-SUR

ROUNDING CIRCUMSTANCES. ward the clothing of his child a week after he

A contract is to be read in the light of the was taken to New York by the mother and surrounding circumstances in order, if neceswrote him a letter containing good advice is sary, to more perfectly arrive at the underof no avail to show that he consented to the standing and intention of the parties.

. child's being withheld from him, for, while Cent. Dig. $ 752; Dec. Dig. Om 169.]

[Ed. Note. For other cases, see Contracts, the law presumes the father will assert his

3. MASTER AND SERVANT 31-SERVICESright to the custody of his child in the

DISCHARGE-LIABILITY. courts, it does not require that he shall pur- Plaintiff, employed under a contract as insue it into a foreign jurisdiction for that structor in the vocal department of defendant's purpose. Neither does the fact that the conservatories, and entitled 'thereunder to em

ployment to some extent on approximately four father saw the child and talked to him on days per week during the term of one year, but the street in Brooklyn, N. Y., avail anything who, after demands upon defendant not justified here on that score. There is no evidence by the contract, told defendant that she would tending to show that the boy's necessities not continue teaching until she had a written

answer to her letter refusing to continue in her were not supplied by his mother, and there employment unless such unwarranted demands is nothing to indicate that the child would were met, and who, after notice to appear the suffer if the father were not required to following day intentionally, and without any

excuse absented herself for several days, during compensate this claim. Although the father which her pupils were given to another instrucis frequently required to compensate the wife tor, could not recover damages as for a wrongfor the support of the child while in her ful discharge. custody rather than his, an implied assent

[Ed. Note.-For other cases, see Master and to the mother's withholding the child is usu- Servant, Cent. Dig. $ 37; Dec. Dig. Cw31.] ally found and asserted on the ground that 4. Costs Ow42 - OFFER OF JUDGMENT - EF

FECT. the father might invoke his remedy in the

Under the statute, offer of judgment in an courts and obtain the custody of the child if action for breach of a contract for services in he is a proper person to have it. Mc- an amount equal to that recovered stopped the Closkey v. McCloskey, 93 Mo. App. 393, 67 running of costs against defendant from the

time of the offer. S. W. 669. But manifestly this doctrine is

[Ed. Note. For other cases, see Costs, Cent. beside the instant case, for here, after an Dig. 88 137-164; Dec. Dig. 42.] absence of about five years, the mother re

Appeal from St. Louis Circuit Court; Wm. turned and took the child without the fa

T. Jones, Judge. ther's knowledge or consent and bore it away to a distant' state beyond the jurisdiction in

"Not to be officially published.” which he resided and whose courts were im

Action by Agnes W. Lemaire against the mediately available to him. To permit the

Strassberger Conservatories of Music Comrecover in such circumstances pany. Judgment for plaintiff, and defendant without at least showing some special ground appeals. Reversed and remanded, with di-i. e., as if the child were in want or likely

rections. to suffer for necessities in the future would Kortjohn & Kortjohn and Kurt Von Repbe awarding an advantage to her which ac- pert, all of St. Louis, for appellant. Marshall crued because of her own wrongful act. & Henderson, of St. Louis, for respondent.

The judgment should be affirmed. It is so ordered.

ALLEN, J. This is an action for damages


for the alleged breach by defendant of a REYNOLDS, P. J., and ALLEN, J., concur. contract of employment. The trial below, be

fore the court and a jury, resulted in a verdict and judgment for plaintiff, and the case

is here on defendant's appeal, LEMAIRE v. STRASSBERGER CONSER

The petition is in four counts. The first VATORIES OF MUSIC CO.

count charges that on April 7, 1910, the de(No. 14087.)

fendant corporation entered into a written (St. Louis Court of Appeals. Missouri. Nov. contract with plaintiff, whereby defendant 2, 1915.)

employed plaintiff for a term of one year be1. MASTER AND SERVANT 48—SERVICES — ginning August 15, 1910, and ending August CONSTRUCTION OF CONTRACT.

15, 1911, in the capacity of instructor in the Under a contract of employment as in- vocal department of certain conservatories structor in the vocal department of defendant's conservatories, by which plaintiff agreed to serve conducted by the defendant; that the conon "about" four days each week, "as and when tract provided that plaintiff should receive required,” and defendant agreed to pay her at $2 per hour for actual services perforined by the rate of $2 per hour "for actual services her, and that such contract should in all parperformed," defendant was not bound to assign to plaintiff any particular number of pu- ticulars be a continuance of a previous conpils or hours of instruction, nor to compensate tract, dated August 1, 1909, except as to the

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