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(273 S.W.) be for the defendants, and that mere proof of Chicago & St. Louis Railroad Company be delay does not of itself establish negligence." | affirmed.

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[10, 11) We agree that the burden of es

PER CURIAM. The foregoing opinion of tablishing negligence is on the party who as

DAVIS, C., is adopted as the opinion of the serts it, and that the above instruction was

court. abstractly correct. However, it was in ef

The judgment of the circuit court against fect misleading. The unwarranted and un

the Chicago, Burlington & Quincy Railroad reasonable delay at the season of the year | Company is accordingly reversed, and the the nursery stock was then being carried judgment against the New York, Chicago & constituted evidence of negligence on defend- St. Louis Railroad Company affirmed. ant's part. The facts show more than mere delay. No error occurred in refusing to give

DAUES, P. J., and BECK ER and NIPthe instruction. Fisher v. Pullman Co., 212 PER, JJ., concur. Mo. App. 280, 254 S. W. 114.

[12] VII. Defendant also charges the trial court erred in refusing to give a requested instruction reading :

MINERS' & MERCHANTS' BANK OF FLAT

RIVER v. RICHARDS et al. (No. 18943.) "By ordering a box car in which to make the shipment plaintiff assumed whatever risk there (St. Louis Court of Appeals. Missouri. June was of damage by freezing by shipping this

18, 1925.) nursery stock in a box car, and, if you believe the injury to the shipment was caused by its 1. Trial em 234(7)-Instructions held reversibeing shipped in a box car, your verdict must ble error as leading jury to believe plaintiff be for the defendants.”

could not recover, unless all parties consented

to erasure of names of certain indorsers. This instruction attempted to raise a false Instructions that burden was on plaintiff, issue. If the nursery stock was damaged by suing on note, to prove that erasure of names, the inherent nature of the goods, then de- after delivery, was with knowledge and consent fendant was not liable. The instruction im- of all whose names remained, that alteration plies that the nursery stock demanded care that, if names of indorsers were erased without

vitiated note, unless all parties consented, and and attention not contemplated by the con

consent of "defendants," jury must find for tract of shipment. We think the converse defendants,held reversible error as calculatappears from the evidence, and that plained to mislead jury to believe that plaintiff tiff was asking nothing further than the could not recover against any defendants, ungoods be transported within a reasonable less all parties consented to erasure. time, which demand was within its rights. 2. Trial 296 (2)–Erroneous clause of in. This instruction, hypothesizing facts, entire struction not cured by preceding inconsistent ly disregards the facts shown in plaintiff's clause. behalf, and brushes aside the import of its

Clause of instruction that alteration of note evidence. It is evident plaintiff did not as-sued on by erasure of names of certain indorssume whatever risk there was of damage ers vitiated it, and that plaintiff could not by freezing by shipping in a box car, for it recover, unless all parties consented thereto, did not assume the result of defendant's held not cured by preceding inconsistent clause negligence. The court properly refused the that alteration of note without consent of makinstruction as asked.

ers or indorsers vitiated it as to all parties ex[13] VIII, The Nickle Plate contends that,

cept those consenting thereto. as the verdict was set aside as to the Bur- 3. Trial Cu 296 (1)-Erroneous instructions not lington after the first trial, the court erred

cured by conflicting proper instructions. in refusing also to grant the Nickle Plate a

Erroneous instructions are not cured by new trial. The liability of the two carriers proper instructions to the contrary. was several.

4. Alteration of instruments Cm 28-Appeal In 29 Cyc. 735, it is said:

and error 1050(1)-Admission of indors. "But, since their liability is several, as well

ers' testimony that they would not have as joint, most courts now hold that a

signed if they had known that other indorstrial may be granted to part of them and the

ers' names were not to remain on note held verdict allowed to stand as to the others, when

erroneous, but probably harmless. it can be done without confusing the issues.” Admission of testimony of indorsers of note

sued on that they would not have signed it if The course pursued by the trial court was they had known that other indorsers' names, in our opinion proper and legal. Error is which were erased after delivery, were not to not made to appear.

remain thereon, held erroneous, but probably The Commissioner recommends that the

harmless. Judgment against the Chicago, Burlington & Appeal from Circuit Court, Ste. Genevieve Quincy Railroad Company be reversed, and County; Peter H. Huck, Judge. that the judgment against the New York, “Not to be officially published,"

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em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Action by the Miners' & Merchants' Bank, N. Richards, who received the money at the of Flat River against J. N. Richards and oth-time the note was delivered to the plaintiff. ers, From the judgment for certain defend. After the note was signed by the maker and ants, plaintiff appeals. Reversed and re the indorsers, the signatures of H, A. Miller manded, with directions.

and H. Goldstein were erased from the note, Jerry B. Burks and B. H. Marbury, both and they were released from liability thereof Farmington, for appellant.

on, at their request. Defendant Richards J. H. Malugen, of Bonne Terre, Thos. A. admitted that at the time of the delivery of Mathews, of Flat River, B. H. Boyer, of the note and the receipt of the money on it Farmington, and T. N. Threlkeld, of Elvin, he understood that Miller and Goldstein were for respondents.

to be released from liability thereon. On the

other hand, there was no proof that either SUTTON, C. This action is founded upon | alteration of the note. The issue at the trial

Gordon or Sachs had any knowledge of the a promissory note, as follows:

was whether or not the defendants Tucker, “$1,500.00 Flat River, Missouri, May 16, 1919. Klein, Alper, and Kabn consented to the al

“Six months after date, we, each as principal, teration. This issue was sharply contested. promise to pay to the order of the Miners' & The evidence for the plaintiff tends to show Merchants' Bank of Flat River fifteen hundred dollars for value received, payable at the Min- that these defendants consented to the alteraers' & Merchants’ Bank of Flat River, Mo., tion, whereas the evidence for defendants with interest from date at the rate of eight tends to show the contrary. Upon the cold per cent, per annum. The signers and indors- record the preponderance of the evidence ers each waive demand, notice, and protest seems to be in favor of the plaintiff. As of this note, and severally agree that the time against defendant Tucker the evidence is esmay be extended without notice. If the inter-pecially strong and convincing. It was shown est thereon be not paid annually, or when due, by several witnesses that he knew of the the same shall, when due, or annually, be added to and become a part of the principal, and bear alteration and consented thereto. He him

self admitted that he was present at the interest at the same rate.

"J. N. Richards." bank when the note was delivered and the

money paid thereon and that he knew then The note is indorsed as follows:

that Miller and Goldstein had asked to be "I A. Miller.

released from the note. “H. Tucker.

At the close of all the testimony and evi“A. Gordon. “E. Klein.

dence offered and introduced on the part of “Jacob Alper.

both plaintiff and defendants the court gave 4. Goldstein to the jury the following instruction: "R. S. Kahn. “The court instructs the jury that, under the "L. Sachs."

pleadings and the evidence in this cause, plainThe action is defended on the ground that should be for codefendant A. Gordon.”

tiff is not entitled to recover, and your verdict after the execution and delivery of the note the same was materially altered by striking At the request of the plaintiff the court from the note the signatures of H. A. Miller gave to the jury the following instruction: and H, Goldstein.

“No. 1. The court instructs the jury that, The cause was originally brought in the if you shall find from the evidence in this circuit court of St. Francois county. Upon cause that the names of H. A. Miller and H. a trial to a jury in that court there was a Goldstein were stricken from the note sued on verdict for plaintiff against all of the de- in this cause without the knowledge, consent, fendants except L. Sachs, as to whom the or acquiescence of defendants H. Tucker, E. plaintiff voluntarily dismissed its case pend- Klein, Jacob Alper, and R. S. Kahn, or either ing the trial. On motion of the defendants of them, then said note is not enforceable

against such defendant or defendants not so a new trial was granted. Afterwards the agreeing or consenting thereto. On the other venue of the cause was changed to the cir- hand, if you find that any of said defendants cuit court of Ste. Genevieve county. In that consented or agreed that said Miller and Goldcourt the cause was again tried to a jury.stein were not to remain on said note, or were Upon that trial the jury by their verdict. to be released from liability thereon, then such concurred in by ten of its members, found defendant or defendants so agreeing or conthe issues in favor of the plaintiff and senting are liable for the full amount found to against the defendant J. N. Richards, and be due on said note; said sum not to exceed assessed the amount of plaintiff's recovery

$1,500 and interest due thereon, if any, at 8 at $2,077.38, and further found the issues in per cent, from February 16, 1920." favor of the defendants H. Tucker, Abe Gor At the request of the defendants the court don, E. Klein, Jacob Alper, and R. S. Kahn. gave to the jury the following instructions: Judgment was given accordingly. Plaintiff

"No. 2. The court further instructs the jury appeals.

that, if you find and believe from the evidence The note in suit was given for a loan of that after the execution and delivery of the $1,500 made by the plaintiff to defendant J. note mentioned in the petition that one or more

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(273 S.W.) of the names appearing thereon, as makers or / unless all consented to the alteration of the indorsers, had been erased, then the burden is note. on the plaintiff to prove by a preponderance or

(1) Reduced to its final analysis, instrucgreater weight of evidence that such erasure or erasures was done or made with the knowl- tion No. 2 tells the jury that, unless all the edge and consent of all the persons, whose parties consented to the alteration, except names remain thereon, except such of them such of them as consented thereto, plaintiff as may have consented thereto, and, unless you cannot recover, and the verdict must be for find plaintiff has by such preponderance of the defendants. Taken literally, the instrucevidence shown to your reasonable satisfaction tion means that the plaintiff must show by a that such knowledge was had and consent given, preponderance of the evidence that all the then plaintiff is not entitled to recover, and parties consented to the alteration to entitle your verdict should be for defendants," "No. 4. The court instructs the jury that, it can be made to mean anything else with

plaintiff to recover, and we do not see how if you shall find from the evidence in the cause that the names of H. A. Miller and H. Gold-out rewriting it. We cannot say that it did stein were stricken from the note without the not mislead the jury. knowledge, consent, or acquiescence of de [2] The first clause of instruction No. 5 fendants H. Tucker, E. Klein, A. Gordon, Ja- tells the jury that the alteration of a promcob Alper, and R. S. Kahn, or either of them, issory note without the consent of the makthen said note is not enforceable against such ers or indorsers vitiates the note as to all defendant or defendants not so agreeing or consenting. On the other hand, if you find that consented thereto, but the second clause tells

the parties, except sich of them as may have any of said defendants consented or agreed that said Miller and Goldstein were not to re

them that in this case the alteration vitiates main on said note or were to be released from the note, and the plaintiff cannot recover, liability thereon, then said defendant or de- unless all the parties consented to the alterafendants so agreeing are liable for the full tion. The first clause of the instruction does amount found to be due on said note, said sum not cure the fault of the second clause, for not to exceed $1,500, and interest, if any, the two clauses are inconsistent, and will not due thereon. "No. 5. The court instructs the jury that,

harmonize, unless, maybe, the first clause
where a negotiable promissory note is executed would yield to the second.
by any person or persons for the payment of The faults of instructions Nos. 2 and 5
money, and, after the delivery thereof to the persist also in instruction No. 6, for the lat-
payee therein named, his or its assigns, and the ter tells the jury that, if the note was al-
payee, his or its assigns, makes any alteration tered by erasing the names of any of the
or change in the same, such as the erasure of indorsers without the consent of “the de-
the name of one or more of the makers or in- fendants,” then they must find for “the de-
dorsers thereof, whose names appeared there-

fendants."
on at the time of its delivery, without the con-
sent of the other makers or indorsers thereof

[3] But the defendants contend that the
first had and obtained, vitiates such note as to faults of instructions Nos. 2, 5, and 6 are
all the persons whose names appear thereon, cured by instructions Nos. 1 and 4, which
except such of them as may have consented correctly declare the law of the case. This
thereto. Therefore you are instructed that, contention cannot be sustained. Erroneous
if you shall find and believe from the evidence
in this case that after the execution and deliv instructions are not cured by opposing them

State ex rel. Cenery of the note sued on herein the plaintiff, with proper instructions. without the knowledge and consent of all the tral Coal & Coke Co. v. Ellison, 270 Mo. 615, parties whose names appeared thereon, either 195 S. W. 722; Mansur-Tebbetts Implement as makers or indorsers, erased therefrom the Co. v. Ritchie, 143 Mo. 587, loc. cit. 612, 45 names of the two parties, then and in that cases. W, 634; John O'Brien Boiler Works Co. such erasure constitutes a material alteration

v. Sievert (Mo. App.) 256 S. W. 555, loc. cit. and vitiates such note, and plaintiff cannot re

557. "No. 6. The court instructs the jury that, if

The instructions in this case, read together you find and believe from the evidence that the and as a whole, were at best calculated to note sued on was altered or changed in any confuse and mislead the jury. We are conmaterial part by the erasing of the names of strained to hold that the giving of the inany of the indorsers after the defendants or structions complained of amounts to reversiany of them had signed it, without the knowl- ble error. edge or consent of the defendants, they must [4] Over the objection of the plaintiff, the find for the defendants."

defendants Klein and Kahn were permitted

to testify that they would not have signed It is conceded that instruction No. 1, giv- the note if they had known that the names en for the plaintiff, and instruction No. 4, of Miller and Goldstein were not to remain given for the defendants, correctly declare on the note, and plaintiff assigns this ruling the law of the case. But the plaintiff as

as reversible error. This testimony was imsigns reversible error upon the giving of in- material, and should not have been admitstructions Nos. 2, 5, and 6. Plaintiff insists ted, but its admission was probably harmthat under these instructions he was not en less. titled to recover against any of the parties,

Following McMahon v. Joseph Greenspon's 273 S.W.-27

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Sons Iron & Steel Co. (Mo. App.) 267 S. W., den of proof, and hence not reversible error, 83, the Commissioner recommends that the though rule against referring jury to pleadings judgment of the circuit court be reversed for issues involved could have been better avoidand the cause remanded for a new trial as ed, especially where plaintiff was allowed other

instructions fully defining issues. between plaintiff and defendants H. Tucker, E. Klein, Jacob Alper, and R. S. Kahn, and 5. Negligence Cams 121(2)-Rule of res ipsa lothat the verdict be retained and judgment

quitur inapplicable on proof of specific acts. held in abeyance as to defendants J. N. Where plaintiff offers proof of, and asks Richards and Abe Gordon until the contro- instructions on, specific acts of negligence, rule versy is determined between the plaintiff and of res ipsa loquitur does not apply, though pe

tition alleges general negligence. the other defendants, and that thereupon judgment be rendered completely disposing 6. Appeal and error Om882(12) - Instruction of the cause and all the parties thereto.

that negligence is not presumed held not bad,

though petition alleged general negligence. PER CURIAM. The foregoing opinion of

Instruction that negligence cannot be preSUTTON, C., is adopted as the opinion of the sumed, but that plaintiff must prove that de

fendant was negligent in particular manner alcourt.

leged, held not bad, though petition alleged genThe judgment of the circuit court is ac- eral negligence, in view of plaintiff's offer to cordingly reversed and the cause remanded prove, and requested instruction on, specific to be proceeded with as recommended by the negligence. Commissioner.

7. Appeal and error Om882(3)-Plaintiff must

adhere to theory of his instructions on apDAUES, P. J., and BECKER and NIPPER, peal, though petition sets up different theory, JJ., concur.

Plaintiff requesting instructions on theory that defendant was required to exercise only reasonable caution and care, and making no objection to defendant's instruction requiring proof that defendant was guilty of "negligence

and carelessness," must adhere to such theory CARPENTER v. BURMEISTER.

on appeal, though petition alleged that defend(No. 18863.)

ant was required to exercise highest degree of (St. Louis Court of Appeals. Missouri. June 18, 1925.)

8. Appeal and error en 1026–Error must be

prejudicial to losing party to work reversal. 1. Master and servant em 1 16(2) Loose

To work reversal, error must be harmful sheathing boards for use of bricklayers held temporary “scaffold."

and prejudicial to losing party, and hypertech

nical objections are not to destroy substantial Sheathing boards laid on permanent joists

justice. inside building for use by bricklayers held temporary "scaffold," within Rev. St. 1919, § 6802,

Appeal from St. Louis Circuit Court; requiring that scaffolds used in erection of George A. Mix, Judge. building be such as to insure safety of persons working on or passing under them, though they Action by Richard Carpenter against Wilwere subsequently to be nailed down perma- liam A. Burmeister. Judgment for defendnently on such joists.

ant, and plaintiff appeals. Affirmed. [Ed. Note.-For other definitions; see Words

Foristel, Mudd, Hezel & Habenicht, of St. and Phrases, Second Series, Scaffold.]

Louis, for appellant. 2. Trial On 233(3)-Instruction held not er. Fordyce, Holliday & White, of St. Louis,

roneous as referring jury to petition or plead for respondent.
ings.
· Instruction that “alleged negligence cannot

DAUES, P. J. This is an action for dambe assumed or presumed," but that plaintiff must prove that "defendant was negligent in ages for personal injuries alleged to have particular manner alleged,held not erroneous been sustained by plaintiff while in the emas referring jury to petition or pleadings.

ploy of defendant because of defendant's neg

ligence. There was a verdict and judgment 3. Trial 233(3)-Rule against reference to

pleadings for issues involved inapplicable to in favor of the defendant, from which the instruction on burden of proof.

plaintiff has appealed. Rule that instruction may not refer jury

The petition relies upon the res ipsa loquito pleadings for issues involved does not apply tur doctrine, and pleads that the defendant to instruction merely on burden of proof. failed to comply with the provisions of the

statute on scaffolding (section 6802, Revised 4. Trial em 296 (7)-Instruction held not re

versible error as referring jury to pleadings, Statutes Missouri 1919), whereby plaintiff reespecially in view of other instructions.

ceived injuries. The answer is a general de. Instruction that “alleged negligence cannot

nial. be assumed or presumed,” but that plaintiff

There is little dispute on the facts. It apmust prove that "defendant was negligent in pears from the record that the defendant particular manner alleged,” held one on bur. I was a bricklaying contractor, and had a num

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(273 S.W.) ber of bricklayers engaged in erecting a cer "All scaffolds or structures used in or for tain brick building. Four walls had gone up the erection, repairing or taking down of any to a point where the bricklayers were “top- kind of building shall be well and safely supping off"; that is, they were placing the last ported, and of sufficient width, and so secured course on the top of the wall. There were thereon, or passing under or about the same,

as to insure the safety of persons working no floors or partitions within the building, against the falling thereof, or the falling of such but joists had been laid for the first and sec- materials or articles as may be used, placed or ond floors and for the third floor, or roof. deposited thereon. All persons engaged in the The joists were uncovered, except that on erection, repairing or taking down of any kind the top joists for the roof sheathing boards of building shall exercise due caution and care had been laid to serve as a scaffold for the so as to prevent injury or accident to those at bricklayers. This platform, or scaffolding, work or near by.” made with loose sheathing boards, was five This statute requires a building to have or six feet in width, and ran approximately and maintain scaffolds as to insure the safethe length of the west wall. Bricks and mor- ty of persons working upon same or passing tar were being deposited upon the boards, under it. These sheathing boards, though and the bricklayers would stand upon same subsequently to be used permanently, and to do their work. Plaintiff was a hodcarrier; though laid on permanent joists, merely conwheeling bricks from the outside through the stituted at that time a temporary scaffold door in the west wall and up to a hoist. The for the bricklayers. That such was a scafhoist would then convey the bricks up to the fold within the meaning of the statute we platform or scaffold where the bricklayers have no doubt. Forbes v. Dunnavant, 198 were working. Plaintiff adduced proof that Mo. 193, 95 S. W. 934; Deiner v. Sutermeisthe board next to the wall was left away as ter, 266 Mo. 505, 178 S. W. 757 ; Most v. Goemuch as three inches; that the boards were bel Const. Co., 199 Mo, App. 336, 203 S. W. allowed to lap, and one witness stated that 474. "it looked like there must have been a board [2] Instruction No. 4 is as follows: moved away right over the door.” At any

"This action is based upon the alleged negrate, it is undisputed that the sheathing ligence of the defendant, viz., plaintiff claims boards were not nailed down, but were used that the defendant was negligent and careless at the time solely as a platform for the brick- in certain particulars. That alleged negligence layers. These boards were the regular cannot be assumed or presumed, but the plainsheathing boards for the roof, and were to tiff, before he can recover, must prove by the be used thereafter by the carpenters as the preponderance or greater weight of the evidence boards for making the permanent roof, but ular manner alleged. If he has failed to meet

that the defendant was negligent in the particin order to save labor the boards were haul- this burden, he cannot recover. If in your judged to the roof joist and used as a platform ment the weight of the evidence is evenly balfor the bricklayers, and plaintiff, while mov- anced or preponderates in favor of the defending a wheelbarrow of bricks through the ant, then your verdict must be against the plaindoor of the west wall, was struck by a brick tiff, and in favor of the defendant." falling from above and was injured. At that

It is said that this instruction is erroneous, time the bricklayers were at work on the first, because it refers the jury to the pleadscaffold immediately above him on the third ings, and, secondly, because it requires a floor. One witness testified for plaintiff that finding of specific negligence, although plainhe saw the brick fall from above the door tiff's petition and instruction No. 1 is based and strike the plaintiff on the head.

on general negligence; that the instruction Plaintiff relies upon but one assignment of erroneously directs that “negligence cannot error, and that is that the court erred in be assumed or presumed" under the facts giving defendant's requested instruction No. and circumstances of this case. 4. The respondent insists that the defend

[3] It will be observed that the instruction ant's demurrer to the evidence should have does not refer to the “petition" nor to the been sustained, because there was no proof "pleadings,” but refers to the negligence “in of any violation of section 6802, supra, and the particular manner alleged,” etc. Howhence the propriety of defendant's instruc-ever, as we view this instruction, it is one tion No. 4 need not be considered.

upon the burden of proof. It has been held [1] The argument is made by respondent that it is not error in all cases and under all that, since the sheathing boards used by the circumstances to refer the jury to the pleadbricklayers were part of the permanent ings in an instruction, though, of course, the building, laid on the third floor joists in- rule is well settled that an instruction may side of the building where they were to be not refer the jury to the pleadings for the ultimately nailed down permanently, there issues involved. This is the general rule. fore such sheathing boards could not be con When the instruction is one merely on the sidered false work within the meaning of burden of proof, this rule has no application. the statute, and that the statute did not [4) In Williams v. Tucker (Mo. App.) 224 apply in any event. Section 6502, Revised S. W. 21, this principle is conceded in the Statutes Missouri 1919, is as follows: majority opinion, and is exhaustively dis

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