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But it does not follow from that that the pol-, of the statute. Laun v. Pac. Mutual Life Ins. icy of insurance is void.

Co., 131 Wis. 555, 111 N. W, 660, 9 L. R. A. It will be noted that the statute places a | Atl. 794; Rideout_v. Mars, 99 Miss. 199, 54

(N. S.) 1204; Quigg v. Coffy, 18 R. I. 757, 30 penalty upon the insurance company or its South. 801 [35 L. R. A. (N. S.) 485, Ann. Cas. agent or representative who violates this 1913D, 770]; Security Life & Annuity Co. v. statute, but provides no penalty for the in- Costner: 149 N. C. 293, 63 S. E. 304; Inter

state Life Assurance Co. v. Dalton, 165 Fed. sured. To hold the policies of insurance il- 176, 91 C. C. A. 210, 23 L. R. A. (N. S.) 722.” legal and void, as contended for by appellant, American National Insurance Co. v. Brown, would result in invalidating many contracts 179 Ky. 711, 201 S. W. 326. of life insurance aggregating perhaps thou a regulation of a traffic or business, and not

“When the purpose of a statute is sands of dollars on which the insured have to prohibit it altogether, whether a contract paid many years' premiums, and this be- which violates the statute shall be treated as cause an agent of the company which issued wholly void will depend on an intention exthe policies had, with or without the knowl- contrary intention is manifest, the contract

pressed in the particular statute. Unless the edge of the officers of the company, granted a will be valid.”. Sutherland, Statutory Construcrebate out of the agent's commission of part tion (2d Ed.) § 503. or all of the first or other premiums.

It is plain that the purpose of our statute We are unwilling to hold the Legislature is to regulate contracts of insurance, and not intended that an insurance company, where to prohibit them. It is equally clear that the a policy has been issued and some part of statute does prohibit and render void all the premium returned or rebated, should be rebating agreements. Had the Legislature permitted to proceed for years thereafter to so intended, the statute could have provided accept the premiums called for under the that the policy or contract of insurance be policy, and then upon the demise of the in- void or nonenforceable. The statute is silent sured be permitted to deny any liability un- as to what effect the violation of the statute der the policy on the ground that it was void shall have upon any policy of insurance that ab initio because a rebate had been allowed may have fully executed and delivered. It the insured upon his original or other premi- would thus seem that the insured can be reum in violation of the statute. Nor can we quired to pay the full amount of the premiconceive that it was intended that an insur- ums, whilst the agent or company guilty of ed who had received a rebate should be per- the rebating can be punished under the statmitted at any time within the period limited ute. Under such a construction of the statby law for the commencement of such action ute the full purpose of the law is carried out to recover all premiums which the insured and the ends of justice subserved without may have paid upon the policy because of his invalidating the policy of insurance itself. having received such rebate, to the disad

We therefore hold that, considering the obvantage of the others insured in such com- ject of this legislation, its effect upon nonpany who had conformed to the law and paid offending policy holders and beneficiaries, the full amount of the prescribed premiums. and having in mind the particular penalties To hold otherwise would be to reward the very provided therein for any violation thereof, violators of this statute, and that, too, at the the contract of insurance itself is neither ilexpense of those who strictly adhered to the legal nor void. Plaintiff received in considlaw.

eration of his premiums paid valid policies "Insurance companies are engaged in a public of insurance, and consequently he cannot rebusiness, and upon grounds of public policy in- cover the premiums or any part thereof. It surance contracts that may, in preliminary verbal arrangements between the soliciting follows that plaintiff's petition fails to state agent and the insured, have been tainted with a cause of action, and the court properly susthe vice of rebating, should, when fully executed tained the separate demurrers of each of the and reduced to writing, be held valid as be- i defendants. tween the insured and the insurance company; neither of them being allowed to defeat the

The judgment is accordingly affirmed. contract in any part upon the ground that it was secured in the manner stated in violation REYNOLDS, P. J., and ALLEN, J., concur.

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MCDONALD v. FINLEY et al. (No. 15117.), filed for rent from December 1, 1913, to May (St. Louis Court of Appeals. Missouri. June 4, 1, 1914, aggregating $125. The attachment 1918.)

feature of the case need not be noticed. It 1. LANDLORD AND TENANT 207(1), 209-IM- appears that the trial in the justice court rePLIED TENANCY - SUBLETTING - LIABILITY sulted in a judgment in favor of plaintiff FOR RENT.

Where lessee of an apartment disappeared, against all of the defendants in the sum of leaving wife and adult daughter in possession $12.50. From this judgment defendant Finthereof, the daughter does not, by paying lessor ley did not appeal, but his codefendants, Mrs. some rent after disappearance of father, make Finley and Mrs. Kennedy, prosecuted an apherself liable under Rev. St. 1909, $$ 7900, 7901, peal to the circuit court. In the latter court as a subtenant or otherwise, for unpaid rent under lease, after leaving premises before expira- the plaintiff filed an amended petition, allegtion of term, the lessor treating lease as if in ing that prior to November 29, 1913, Mrs. force and bringing action thereon.

Kennedy entered into possessign of the prem2. JUSTICES OF THE PEACE 174(8)-APPEAL ises as a subtenant of the defendant Finley, -AMENDMENT-STATUTE.

Where, on appeal from justice to circuit alleging that $12.50 was due plaintiff as court, a petition in action for rent is amended rent, and that in violation of the terms of so as to recover for damage to property and the lease the defendants damaged the propremoval of fixtures, such amendment is in violation of Rev. St. 1909, § 7585, providing that erty in the sum of $15, and removed certain same cause of action that was tried before jus- fixtures therefrom of the value of $10. Judgtice court must be tried on appeal therefrom in ment was prayed for $37.50. The cause was the appellate court.

tried in the circuit court before the court Appeal from St. Louis

without a jury, a jury having been waived, Circuit Court;

and at the conclusion of plaintiff's evidence Karl Kimmel, Judge.

the court gave a peremptory instruction of "Not to be officially published."

Action by W. J. McDonald against Mrs. fered by the defendants, Mrs. Finley and H. T. Finley, Mrs. Kennedy, and another. Mrs. Kennedy, and entered judgment for

. Judgment for plaintiff in justice court, and them accordingly. From this judgment the defendants named appealed to circuit court,

plaintiff prosecutes the appeal before us. and from judgment there rendered for de- that under sections 7900 and 7901, Revised

[1, 2] Learned counsel for appellant argue fendants named plaintiff appeals. Affirmed.

Statutes 1909, Mrs. Kennedy, as a subtenant Frumberg & Russell, of St. Louis, for appel- of Finley, the lessee, became liable to plainlant. H. W. Femmer, of St. Louis, for re- tiff for the rent accruing under the lease spondents.

from December 1, 1913, to May 1, 1914.

But the record contains nothing to show that ALLEN, J. On April 25, 1913, plaintiff, be- Mrs. Kennedy, who was merely a member of ing the owner of a certain "five-room lower the lessee's household, ever became a subflat known as No. 1321 N. Euclid avenue," tenant of the lessee;, and consequently this in the city of St. Louis, leased the same to argument avails appellant nothing. one H. T. Finley, by written lease of that It is said, however, that Mrs. Kennedy redate, for a term of one year beginning May mained in possession of the premises after 1, 1913, at a rental of $25 per month. Fin- the lessee left the city of St. Louis, and atley with his wife and daughter, a Mrs. Ken- torned to plaintiff as the landlord, whereby nedy, entered into possession of the prem- she became liable for rent under the coveises, and occupied the same for some months. nants of the lessee. When Finley left the The testimony of plaintiff's agent, one Gil- premises, or where he went, does not appear. dersleeve, is that Finley, his wife and Mrs. The affidavit for attachment sets up that he Kennedy, remained in possession of the prem- had absented himself from his usual place ises seven months; that they moved the 29th of abode in this state, so that the ordinary day of November, 1913, having paid the rent process of law could not be served upon him. "to the time of their removal." There is And the evidence merely tends to show that testimony, however, that some time prior to he went away from the premises some time November 29, 1913, Finley "went away," and prior to November 29, 1913, and that some that after he left Mrs. Kennedy paid certain rent was paid to plaintiff's agent by Mrs. rents. Plaintiff's agent testified that when Kennedy. At that time the lease was still he went to the premises to collect the rent in force, and plaintiff continued to treat it in September or October Mrs. Kennedy told as in force, and instituted this action upon him that she was paying the rent, and that it before the justice of the peace. The mere she declined to pay rent until some minor fact that while the lease was in effect some repairs were made. According to the tes- rent came to plaintiff from the hands of timony for plaintiff the premises were relet Mrs. Kennedy, a member of the tenant's to another tenant on December 15, 1913. family, did not make her liable upon the This suit was begun, by attachment, before a covenants of the lease to pay future rents. justice of the peace, against Finley, Mrs. See Sickel v. Davis, 200 S. W. 127. It apFinley, and Mrs. Kennedy, upon an account pears that the alleged damage to the prem

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

ises and the removal of fixtures appeared for, and counterclaim. The court by its instructhe first time in the amended petition in the the first time in the amended petition in the tions submitted to the jury the causes of accircuit court in violation of section 7585, Re- tion contained in both the plaintiff's petition vised Statutes 1909. But in any event there and the defendant's counterclaim. The jury is nothing to make it appear that either of returned the following verdict: these respondents was in any wise liable “We, the jury in the above-entitled cause,

do find the issues joined in favor of plaintiff for such damage or loss, if any. It follows that the judgment should be his damages at the sum of $150.00.

on the first count of his petition and assess

We furaffirmed; and it is so ordered.

ther find in favor of plaintiff on the second

count of plaintiff's petition and assess his REYNOLDS, P. J., and BECKER, J., con- damages at the sum of $12.50 (total $162.50)."

The verdict is thus silent with reference cur.

to the defendant's counterclaim. Judgment,

however, was entered in accordance with said GAWK v. MILLOVICH. (No. 15140.)

verdict against the defendant and in favor

of plaintiff in the sum of $162.50. Defend(St. Louis Court of Appeals. Missouri. June ant filed a timely motion in arrest of judg4, 1918. Rehearing Denied June 19, 1918.)

ment. One of the grounds assigned therein 1. APPEAL AND ERROR 704(1)-RECORD- for setting aside the verdict rendered in the CONTENTS-VERDICT.

A verdict is part of the record proper, and case is because the verdict of the jury is inas such is subject to review on appeal.

complete, in that it fails to make any finding 2. TRIAL Om 329-VERDICT-RESPONSIVENESS on either of the counts of defendant's counTO ISSUES.

terclaim. Upon the court overruling the moA verdict must be so responsive to the is- tion in arrest of judgment the defendant sues as to afford the parties protection against same claim in another action.

brings this appeal. 3. TRIAL 329_VERDICT NOT RESPONSIVE. [1, 2] It needs no citation of authorities

Where jury found for plaintiff, but made no that it is the well-settled rule in this state counterclaim interposed by defendant, although that if the verdict is not responsive to the is

, causes of action therein had been submitted to sues or is uncertain or indefinite it is open it, the verdict was not responsive to the issues. for review on appeal or writ of error as a Appeal from St. Louis Circuit

St. Louis Circuit Court; part of the record proper; also that the verKarl Kimmel, Judge.

dict must be so responsive to the issues as to "Not to be officially published.”

afford the parties protection against the same Action by George Gawk against B. M. Mil- claim in another action. "If the jury find lovich. Judgment for plaintiff, and defend-only part of the issues, judgment must not be

entered on the verdict. It is void for the ant appeals. Reversed and remanded.

whole, and a venire de novo will be awardJohn A. Nolan, of St. Louis, for appellant. ed.” 1 Graham & Waterman on New Trials, William Zachritz, of St. Louis, for respond

140. ent.

[3] The verdict before us is incomplete, in

that it contains no finding on two of the isBECKER, J. Plaintiff filed his cause of sues submitted to the jury, namely, the two action in the justice court, and in the first counts set up in defendant's counterclaim. count of his petition claims the sum of $150 | Wle hold the defendant was entitled to a disfor personal services rendered the defendant, tinct verdict thereon. The jury having failed and in the second count claims a balance due to return affirmative findings as to these him from defendant of $12.50 out of a fund counterclaims, the court should have sustainwhich he had deposited with defendant's ed defendant's motion in arrest of judgment wife for safe-keeping. Defendant's answer is and awarded a new trial. Erdbruegger v. a general denial to each of the counts and a Meier, 14 Mo. App. 258; Henderson v. Davis, separate answer and counterclaim in two 74 Mo. App. 1; Marshall v. Armstrong, 105 counts. In the first count defendant claims Mo. App. 234, 79 S. W. 1161; Advance that plaintiff is indebted to him in the sum of Thresher Co. v. Speak, 167 Mo. App. 470, 151 $154.98, being a balance due the defendant s. W. 235. The judgment is accordingly refor moneys which came into the hands of the versed and the cause remanded. plaintiff while the plaintiff was in charge of defendant's business, and which plaintiff REYNOLDS, P. J., and ALLEN, J., concur. failed to turn over to the defendant. In the second count defendant claims that plaintiff is indebted to him for moneys advanced in a

(199 Mo. App. 550)

NORTON v. EAST ST. L. RY. CO. sum aggregating $81.95. Plaintiff's reply is a

(No. 15166.) general denial. There was substantial evi

June dence introduced by plaintiff in support of (St. Louis Court of Appeals. Missouri. the allegations contained in both counts of

4, 1918.) his petition, and there was likewise sub-1. MUNICIPAL CORPORATIONS O120 - ORDI

NANCES-CONSTRUCTION. stantial evidence introduced by the defend

Ordinances like statutes are construed in ant in support of both counts of his answer accordance with legislative intent, and where the language of an ordinance is clear and con- allegations of his amended petition failed to cise, and admits of only one interpretation, the make out a case, unless the ordinance recourt will not impute to the legislators an in- lied upon can be construed to limit the speed tention inconsistent therewith.

of cars to 12 miles per hour. But we do 2. STREET RAILROADS On 74 – REGULATION SPEED-CONSTRUCTION OF ORDINANCE.

not think that the ordinance is subject to Revised Ordinances, City of East St. Louis this construction. 1908, § 1240, subsec. 1, providing that street [1, 2] While it is true that the legislative cars shall not run "at a greater average speed intent is the cardinal rule of the construcbetween terminals than twelve miles an hour," does not limit street cars to a maximum speed tion of ordinances as well as of statutes, yet of twelve miles an hour but merely restricts that does not authorize or warrant a court in average speed between terminals.

speculating as to what might have been in

tended by such ordinance or statute. There Appeal from St. Louis Circuit Court; J.

is nothing whatever before us excepting the Hugo Grimm, Judge.

ordinance itself; it prohibits any street car Action by Howard Norton, by his next from being run along the streets of the city friend, Walter R. Norton, against the East of East St. Louis, 111., “at a greater average

Ill St. Louis Railway Company, a corporation.

speed between terminals than twelve miles. Judgment for plaintiff, and defendant ap

per hour.” (Italics ours.) The language of peals. Reversed and remanded.

the ordinance is clear and concise, and adHolland, Rutledge & Lashly, of St. Louis, mits of but one interpretation.

Learned for appellant. John C. Robertson, of St. counsel for respondent contends the ordiLouis, for respondent.

nance contains a "joker,” and that the ordi

nance was really intended to limit the speed BECKER, J. This is an action for dam- of cars to a maximum speed of 12 miles per ages on account of personal injuries sus- hour. Even though we were convinced that tained by reason of a collision between the such were the case, concerning which, howplaintiff while riding a motorcycle, and one ever, we do not express an opinion, we would of the defendant's street cars. The collision still be without authority to emasculate the occurred at the intersection of Seventh street statute in keeping with such view in light. and Illinois avenue in the city of East St. of the record before us. While it is within Louis, Ill. The case was heard in the cir- the jurisdiction and the duty of the court to cuit court of the city of St. Louis resulting construe any legislative enactment because in a judgment in favor of plaintiff and of indefiniteness and uncertainty, and while against defendant in the sum of $450. De- the courts will endeavor to adopt a confendant in due course brings this appeal. struction which will make the statute opera

Plaintiff's amended petition was based up- tive when possible to do so consistent with on an alleged ordinance of the city of East reason, yet it is not a function of the judiSt. Louis limiting the speed of street cars to ciary either directly or indirectly to enact ten miles per hour, and the alleged negli- legislation nor read into any such enactment gence of the defendant in operating a street that which is not either expressed in the car at a rate of speed in excess thereof. The statute itself or appears to have been inanswer was a general denial and a plea oftended thereby. We therefore are constraincontributory negligence. At the trial of the ed to hold that the ordinance relied upon by case it developed that the ordinance pleaded plaintiff cannot be construed as limiting in the petition had been amended, whereupon street cars to a maximum speed of 12 miles plaintiff amended his petition by leave. The per hour, as contended for by appellant, but ordinance as amended is section 1 of section that said ordinance merely restricts the op1240 of the Revised Ordinances of the City erating of street cars "at a greater average of East St. Louis, Ill., of 1908, which reads speed between terminals than twelve miles as follows:

per hour." "No street railway or interurban railway In view of what we have said above, we company shall by itself, agent or employés, run hold the court committed prejudicial error any street car upon, on or along any of the streets of the city at a greater average speed in reading the following instruction to the between terminals than twelve miles per hour. jury: Any person or corporation violating the provisions of this section shall be fined not less

“You are instructed that the lawful rate of than ten dollars nor more than two hundred speed for street cars in the city of East St.

Louis at the time of the collision referred to dollars for each offense.”

in this case was twelve miles per hour, and Plaintiff tried his case upon the theory you are further instructed that operating a that the said ordinance limited the speed of at the place of the collision was negligence.”

street car in excess of twelve miles per hour street cars to 12 miles per hour, and an instruction given by the court at the request The judgment is accordingly reversed, and of plaintiff was predicated upon a like in the cause remanded. terpretation. A careful reading of the record before us shows that plaintiff under the REYNOLDS, P. J., and ALLEN, J., concur.

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

(134 Ark. 358)

and misrepresentation, or unless they ex. HENDRIX et al. v. MORRIS et al. (No. 5.) pressly contract to assume personal liability.”

( (Supreme Court of Arkansas. May 27, 1918.) As is said by the Supreme Court of Minne

sota: 1. SCHOOLS AND SCHOOL DISTRICTS. On 62 DIRECTORS–LIABILITY FOR UNAUTHORIZED

"Were the rule otherwise, few persons of reEXPENDITURES.

sponsibility would be found willing to serve the Directors of a school district are not per- public in that large capacity of offices, which sonally liable to the district for money paid out requires a sacrifice of time and perhaps money, on warrants drawn for purchasing, maintain but affords neither honor nor profit to the ining, and operating an automobile truck and cor- cumbent." Sanborn v. Neal et al., 4 Minn. 140 veying children to and from school, which was (Gil. 83) 77 Am. Dec. 502. unauthorized, in the absence of wilíful or

malicious action in such matter, since under Kirby's

The statute prescribes that the directors Dig. 88 7613, 7614, the directors act in a quasi shall have charge of the school ffairs and of judicial capacity.

the school educational interests of their 2. SCHOOLS AND SCHOOL DISTRICTS m 63(3) district, etc.; that they shall make provisions

-TREASURERS-LIABILITY FOR UNAUTHORIZ- for establishing separate schools for white ED EXPENDITURES.

Since under Kirby's Dig. '88 7627, 7628, and colored children and youths, and adopt 7665, the school treasurer can honor only war- such other means as they may judge expedient paid out on warrants for unauthorized expendi- tual and uniform operation throughout the rants properly drawn, he is liable for moneys for carrying the free school system into effectures, though drawn by the directors.

state, and providing as nearly as possible for Appeal from Circuit Court, Lonoke County; the education of every youth. Sections 7613, Thos. C. Trimble, Judge.

7614, Kirby's Digest. These and other duties

. Action by S. C. Hendrix and others against prescribed, and other statutory requirements G. W. Morris and others. From the judg- found in chapter 142, Kirby's Digest, show ment dismissing the complaint, plaintiffs that the directors in many instances must act appeal. Affirmed in part, and in part revers in a quasi judicial capacity and exercise their ed and remanded.

discretion and best judgment in the manageJas. A. Comer, of Little Rock, for appel- ment of the school affairs intrusted to them. lants. Jas. B. Gray, of England, Ark., for Hence the reason for the rule that, for a mere appellees.

mistake or error of judgment on their part,

they shall not be held personally liable. Such WOOD, J. [1] The question on this appeal is the doctrine of our decisions and of the is whether or not the appellees, school di- authorities generally. First National Bank rectors of England special school district and of Waldron v. Whisenhunt, 94 Ark. 583, 127 the treasurer of Lonoke county are individ- S. W. 968, and cases there cited. See, also, ually liable to the district for money, which McCormick v. Burt, 95 Ill. 263, 35 Am. Rep. the treasurer paid out of funds belonging to 163, and other cases cited in appellee's brief. the district, on warrants drawn by the di- The court was therefore correct in holding rectors to pay for the purchasing, maintain that the appellees, school directors, were not ing, and operating an automobile truck in liable. conveying school children to and from the [2] 2. A different rule, however, applies to public schools at England, Lonoke county, the treasurer. He is only authorized to pay Ark.

out money on the orders or warrants of the In Hendrix v. Morris, 127 Ark. 222, 225, 191 board of directors of the school district S. W. 919, we held that the directors of this "properly drawn." The law requires that the district and the treasurer had no authority to directors shall draw orders on the treasurer expend the money of the district for such for the påyment of the wages due teachers purposes, but it does not follow that the or for any lawful purpose, and they shall directors are individually liable for the money state in every such order the services or thus expended. While it is alleged and ad- consideration for which the order is drawn, mitted that the directors had no authority and that when the warrants are properly to issue the warrants for the purposes men- drawn he shall honor the same out of the tioned, there is no allegation that they acted funds, in his hands for that purpose, belongwillfully or maliciously. This is essential ing to the district. Sections 7627, 7628, 7665, in order to make the directors personally Kirby's Digest. When a warrant, therefore, liable, Where school directors act in good is presented to the treasurer for payment for faith, believing at the time that they have an unauthorized purpose, the treasurer pays authority under the statute to expend the the same at his peril, and is personally and money for the purposes for which they issue individually liable to the district for the warrants, they will not be held individually moneys unlawfully expended. liable to the district for moneys so expended, The judgment of the trial court, dismissing even though they have no such authority. appellants' complaint against the appellees, "The general rule,” says 35 Cyc. p. 910, "is lirectors, is therefore affirmed. The judgthat the officers of a school district cannot be ment dismissing the complaint against the held personally liable on a contract made on treasurer is erroneous, and is therefore retheir part as such officers, and solely for the versed, and the cause as to him is remanded benefits of the district, unless guilty of fraud for a new trial.

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