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tions with the bank concerning the payment, ant's behalf tending to show that on Janof Ed's debt, the further testimony in de- uary 20, 1912, defendant was on a drunkfendant's favor that plaintiff was assisting en spree, and had been for several days his brother Ed in inducing defendant to go perhaps weeks; that he "ranted around over to Mississippi and look at said lands; and the house;" that he was "raving around," that he assisted his brother in making land not knowing what he was saying. His fam- , deals, is sufficient to make it a question for ily physician testified that, at that time, he the jury to decide whether plaintiff was a was in no condition to attend to any ordibona fide purchaser of the note in suit, or nary business of any kind whatever. On the merely acted for his brother in canceling the 21st, the physican took him to St. Louis to latter's debt.

a sanitarium and left him there; that the [4-6] But, as held on the former appeal, last he saw of him was on the 22d, and then the defendant must also show that the' note is he was "nervous, talking incessantly” and . invalid ; and consequently, in the case now"ranting around like an ordinary drunken before us, he, as stated above, offered evi- man would," and that in the doctor's opindence to show that Ed P. Miller, while yet ion the defendant was not "in any condition the holder of said note, consented to the re- to intrust any business to.” The physician scission of defendant's contract under which was asked, by defendant's counsel, to state the note was given and resumed possession how long, in his opinion, judging from deof said real estate. The defendant further fendant's condition at the time the doctor offered evidence as to the invalidity of the left him at the sanitarium, he would "be note based upon defendant's condition on incapacitated from properly attending to account of inebriety.

ordinary business affairs,” to which the The defendant's case was submitted upon physician replied: both of these theories as to the note's alleg- "Well, time is a most important factor in nerved invalidity; and plaintiff attacks the suf- ous troubles, and the conditions brought about ficiency of the evidence to sustain either of they were by prolonged dissipation-it takes

some time. Ordinarily people in sanitariums them. The evidence as to the alleged re- never like to accept any one until they stay the scission, and of Ed P. Miller's consent there- proper time; ordinarily they require three to, is sufficient to show such facts, if believ- weeks in the room and about the hall and after ed by the jury. With reference to the claim that a period of convalescence-it takes time. I

would say a man his age it would take several that defendant should have acted more months to be fully reconstructed.” promptly than he did, that was a matter for

The physician was unable to say whether, EA P. Miller to insist upon at the time. If if defendant left the sanitarium voluntarily Ed he waived it then, plaintiff, if acting for and went to Mississippi, bought a plantation, him, cannot insist upon it now. As to the and worked on it for six weeks, he was compoint that the evidence shows no consent on petent or incompetent. Ed P. Miller's part, but only a refusal on

Thereupon plaintiff offered testimony tendthe part of defendant to pay his note, the ing to show that defendant voluntarily left evidence is that Ed P. Miller told defendant he the sanitarium and went about over the city knew the note was worthless, and that it of St. Louis, and, after arranging to go to would never give him any trouble. More- Mississippi, met Ed Miller and perhaps three over, the evidence is clear that thereafter other men at the Union Station, where he Ed P. Miller resumed full possession of the bought his own ticket and went to that state; entire plantation, the one-half interest in that they drove from the town out to the the management and possession of which he plantation, and defendant and Ed P. Miller had theretofore turned over to defendant. went over it. There was ample evidence to justify the Odon Guitar, a lawyer of St. Louis, who jury in finding that Ed P. Miller consented, was one of the party, and not interested in and that there was a rescission. The same the case, testified that defendant and Ed P. may be inferred from the acts of the par- Miller stayed at the plantation that night ties. Chouteau v. Jupiter Iron Works, 94 (evidently January 24th), but that he and the Mo. 388, 395, 7 S. W. 467; Palais Du Costume others went back to town; that the next Co. v. Beach, 144 Mo. App. 456, 462, 129 S. morning defendant and Ed Miller came in W. 270; Creamery Package Mfg. Co. v.


with a memorandum they wanted to have Sharples Co., 98 Mo. App. 207, 71 S. W. embodied in a contract; that he saw no 1068. The evidence does not show that de- drinking on the trip; that he observed nothfendant retained anything he got under the ing wrong about the defendant's condition. contract. The money used in running the Another member of the party, a brother-infarm for the time he did was not for defend law of the plaintiff, swore that there was no ant's benefit, but for the farm, and therefore liquor used on the trip to his knowledge; that Ed P. Miller got the benefit thereof and of he saw no signs of defendant's being under the personal property on the farm when it the influence of liquor or incapacitated from was all turned back to him.

doing business or manifesting any nervousAs to the alleged invalidity of the note ness whatever. because of defendant's condition on account It was also shown by a lawyer of Yazoo

when the contract and note were drawn, and We may pause here to remark that, upon that he was not intoxicated to any extent at this branch of the case, it is not seen where the time he saw him, nor did he appear to be there was any showing of fraud perpetrated laboring under any influence, but, on the con- upon defendant or of an undue advantage trary, appeared to be a man of good judgment taken of him. For there was no evidence of and able to take care of himself in every fraudulent representations or other fraud way; that he saw defendant several times practiced upon him; nor was there any eviduring the latter's stay down there, a period dence of unfair advantage taken of him, in of perhaps 60 days, and in his conversations view of the fact that the court would allow defendant appeared perfectly satisfied with neither side to go into the question of the the trade he had made.

value of the lands sold to him, but excluded It was also shown that after defendant the evidence offered by each on that subject. made the contract and executed the note, he For this reason, as to this feature of the dewent upon the place, plowed about 100 acres fense, defendant is not entitled, under the thereof, bought seed, prepared a garden, present state of the evidence, to depend upon bought some machinery, a few plows and a anything other than drunkenness alone to vilittle harness, cut some heavy timber and dug tiate the note. Hence, even if it be true that some ditches; that he seemed well satisfied where the other party to a contract has, by with his trade, and was going ahead with his his act or connivance, brought about the inwork; that about the 12th of March, 1912, he toxication, or has taken an undue advangot a letter from Missouri and left, saying he tage of the intoxicated person and has therewas going back to attend to some business, by perpetrated a fraud upon him, a less debut would return; that he did not take his gree of intoxication may be sufficient (6 R. trunk away with him, but left it at the plan- C. L. pp. 598, 631), nevertheless, as the evitation, and about a month later had it sent to dence now exists, defendant must stand or him; that during the entire time he was at fall upon the question of whether his drunkthe plantation he was sober and satisfied enness was of the character or degree re. with his trade.

quired by law to vitiate his contract. For [7] The burden of showing incapacity on ac- it is well known that men may be partially count of a nervous drunken condition was on

intoxicated and yet have capacity to condefendant, and the evidence in his favor on tract, and therefore the courts have been that issue does not come down later than Jan compelled to define the degree of intoxicauary 22d, when the doctor left him at the tion necessary to avoid a contract. The rule sanitarium. Indeed, there is no evidence of in this regard is that, in order to set aside incapacity, at the time the note was signed, the intoxication must be such as to render

a contract on the ground of drunkenness, unless it can be said that the doctor's evi- the intoxicated person incapable, at the time dence hereinabove mentioned, along, perhaps, the contract is entered into, of knowing what with that of the alleged admission of Ed P. he is doing or of comprehending the conseMiller that he knew the note was no account, affords sufficient grounds from which an in- quences of his acts. Mere undue excitement

or intellectual limitations caused by liquor, ference, as to defendant's incapacity at that which prevent him from giving to a propostime, can be drawn. Now, the defendant's evidence does not dis- ed contract all the consideration he might

, close that his spree had brought on a derang. L. $ 18, p. 597 ; Longhead v. Combs Com. Co.,

otherwise give it, are not sufficient. 6 R. C. ed mental condition which persisted after the 64 Mo. App. 559; Rogers v. Warren, 75 Mo.

, state of intoxication had worn off. Whatever 64 Mo. App. 559; Rogers v. Warren, 75 Mo. raving and “ranting” that was going on was App. 271; Glenn v. Martin, 179 Ky. 295, 200

S. W. 456. from the effects of a present state of intoxi

· It seems clear that defendant's evidence cation. The doctor said that when he left him at the sanitarium he was “just ranting the time he executed the note he was in such

was not sufficient to make a showing that at around like an ordinary drunken man would.”

condition that he did not know what he was And, when asked to give his best doing, nor understand the consequences of judgment as to whether he was competent or his acts.

Even if he were intoxicated on incompetent after going to Mississippi, the January 20 or 22, 1912, so that he was then doctor said:

unable to understand what he was doing, "I don't know; I couldn't say. A man can go yet if he was sober on the 25th of January, ahead and carry on his business whether he was competent or not. They all feel like they can at the time he signed the note, or was in do it and want to do it."

such condition that he could comprehend the So that there was no showing made that nature of the obligation he was then enterdefendant was an insane person whose in-ing into, he would not be entitled to avoid sanity had been brought about by a former the note on the ground of drunkenness. state of prolonged intoxication; but the de- We do not say that, if there were evidence

, fense was based upon the claim that the note of fraudulent representations, unfair advanwas voidable because of drunkenness upon tage, and imposition practiced by Ed P. Mildefendant's part whereby the payee was ena- ler upon defendant, we would require de bled to perpetrate a fraud upon, and take an fendant to show that at the time the note unfair advantage of, defendant.

was executed he was wholly incapable of understanding what he was doing. For in that event the evidence would have shown UHLMER v. ST. JOSEPH GAS CO. fraud in connection with drunkenness, or

(No. 12811.) fraud ,

with drunkenness, or a condition (Kansas City Court of Appeals. Missouri. brought on by drunkenness, offered as a cir

April 29, 1918.) cumstance to show fraud or the ease with 1. GAS Omw 18 INJURY FROM ESCAPE OF which it could be perpetrated. But while NEGLIGENCE-PROXIMATE CAUSE. defendant pleaded fraud and unfair advan-juries from escaping gas, claimed to be due to

In an action against a gas company for intage in connection with drunkenness or a co - failure of company employés to shut off gas in dition brought about thereby, and submitted main before opening a service pipe, the compahis case to the jury on that theory, yet, as ny, regardless of how negligent, cannot be held the evidence stood when the case went to liable if such injuries were caused by gas leakthe jury, there was no showing of fraudu- age, not the result of such negligence.

2. Gas On 20(2) – INJURY FROM ESCAPE OF lent representation, imposition, or undue ad- -SUFFICIENCY OF EVIDENCE. vantage practiced upon defendant to induce In an action against a gas company for injuhim to sign the note. And hence the note ries caused by escaping gas claimed to be due to could not be held vitiated unless a showing shutting off gas in main upon opening a service was made that, at the time defendant signed pipe, evidence held sufficient to support a verit, he was in such a condition from drunken- dict for plaintiff. ness as to be incapable of, knowing what he 3. EVIDENCE 506 EXPERT TESTIMONY was doing; or, in other words, that he was


A question submitting the whole case to an incapable because of a lack of mental capac-expert witness for decision is improper. ity. This is true regardless of why it is that 4. EVIDENCE 508 – EXPERT TESTIMONY there is no evidence of fraudulent represen

GAS. tations, imposition, or undue advantage, or

In an action against a gas company for inof how it was that the court excluded evi-juries caused by escaping gas due to the negli

gent opening of a gas main, expert testimony as dence offered by both sides on the subject to the specific gravity of gas, and whether it will of the value of the Mississippi lands, which rise and diffuse itself in air upon leaving the would tend to show whether there were gas main, is admissible. fraudulent representations made or undue Appeal from Circuit Court, Buchanan advantage taken or not. The fact remains County; Hon. Lucius A. Vories, Judge. that, with the evidence in the state it was "Not to be officially published.” in, defendant, in order to maintain the bur- Action by Anna N. Uhlmer against the den of proving the note was vitiated, had to St. Joseph Gas Company. Judgment for make a prima facie showing that, on account plaintiff, and defendant appeals.

Affirmed. of his condition at the time the note was

William E. Stringfellow, of St. Joseph, for signed, he was incapable of understanding what he was doing. It was not sufficient appellant. Sherman & Owen, of St. Joseph,

for respondent. to merely show that possibly he was in a weak, nervous, condition, and had not fully

ELLISON, P. J. Defendant is a gas comrecovered from all the debilitating effects of a former spree. The evidence does not pany furnishing gas to the inhabitants of St. show, or tend to show, that defendant was Joseph, and plaintiff was one of its patrons. in any degree intoxicated on the day he ex

She brought this action, charging that she ecuted the note, or that he was not fully at was poisoned by gas negligently allowed to

limself when he signed the note. For this escape into her house. She recovered judgreason, defendant is not entitled to have the ment in the circuit court. judgment in his favor affirmed.

It appears for several days plaintiff had On the other hand, this does not entitle noticed an odor of gas in her house, and that the plaintiff to have the case remanded with she notified defendant, and it undertook to directions to enter judgment in his favor, find the leak and close it. It was soon assince the question still remains whether certained that the pipes and fixtures inside there was a rescission of the contract be the house were in safe condition and that tween Ed P. Miller and defendant which the gas was coming in at the point where the would vitiate the note if, as the jury has service pipe, leading from the street, entered found, the plaintiff was merely acting for the house, at least the strongest odor was in Ed when he got possession of the note. And the front hall which was over that place. defendant is also entitled to show, if he can, The defendant undertook to find the leak by that said note was vitiated either through devices know to experts in the employ of gas drunkenness alone or fraud in connection companies. Finally it dug a trench up to with drunkenness or a condition produced the foundation of the house, making a hole thereby, provided it is also shown that under the foundation, and found open places plaintiff did not in good faith purchase the in the service pipe, near the house, through note from the bank for himself, but was which gas escaped and was escaping. All merely acting for his brother in the matter. this was done without shutting off the gas

The judgment is reversed, and the cause from the main in the street; the only preremanded for a new trial. All concur. caution against the escaping gases coming

through the hole under the foundation, was , off regardless of objections, and, in fact, it
that of one of defendant's employés putting was finally shut off.
his coat over it.

[3, 4] Evidence of experts in gases was ofThe negligence charged in the petition is fered and excluded. The questions asked, as in opening up the service pipe and the hole was remarked by the trial court, submitted under the foundation without shutting off the whole case to the witness for decision. the gas from the main in the street. There They were asked if, under named conditions was abundant evidence tending to support in the trench and the service pipe, the gas this charge. It appeared that the work pro- would enter or flow into the house; but the gressed for several hours, until plaintiff had court permitted them to testify to the specific seated herself in a room to rock her child gravity of the gas in question and what was to sleep, when she was overcome by the gas its tendency of action after escaping from the and became insensible, until rescued and pipe, whether it would rise and diffuse itself her husband and physicians sent for. Her in the air, etc. No error was committed. injury was shown to be of a very serious It is not pretended that cases in point character.

have been found, but many authorities in[1] It is clear that defendant's failure to volving the principle underlying liability and shut off the gas for several hours after the nonliability, have been cited and received house was exposed was the grossest negli- our consideration. These principles are gence; but defendant insists that, however plain and well settled by the Supreme and reprehensible its conduct may have been in appellate courts of the state. But our conthat regard, plaintiff's injury did not follow clusion herein rests upon the case made by therefrom as a consequence, from the fact the evidence and the action of the jury that she was already gas poisoned when de- thereon. fendant began its work. It is, of course, a The judgment is affirmed. All concur. correct legal proposition that whatever may be one's negligence, yet if the injury charged did not result from it, there can be no recov

FISCHBACH V. DUNHAM et al. ery. In other words, the negligence charged

(No. 12696.) and relied upon must be the proximate cause.

(Kansas City Court of Appeals. Missouri. [2] There was evidence tending to support

April 1, 1918.) defendant's point. There was evidence to 1. NEGLIGENCE 119(6) PLEADING - CONshow that for several days before defendant TRIBUTORY NEGLIGENCE. began the work gas could be detected in ed by defendant it is not available as a de

Where contributory negligence is not pleadthe house when one would go in from the fense unless there is undisputed evidence thereof. fresh air outside. It was stated that plain- 2. APPEAL AND ERROR Om 1066 – HARMLESS tiff was “saturated” with the gas. But, on ERROR. the other hand, there was evidence tending Where passenger sues street railway for to support the theory that there was an in- injuries received in starting car with jerk,

an in

struction defining negligence, without confining creased flow of gas by exposing the service same to the starting of the car, is not reversible pipe in the trench leading up to the open- error, where the proof showed that the only ing defendant made under the foundation. negligence causing injury was that of starting

car with a jerk. Plaintiff had been in the house before de

3. TRIAL O251(8) INSTRUCTIONS CONfendant began work, and it was only after

FORMITY TO PLEADING. exposing the house as it was exposed that Where the only negligence alleged, in an acshe was stricken. The question, first, of de- tion against a street railway for an injury to a fendant's negligence, and next, whether such passenger, is the negligence of the employés op

erating the car an instruction as to negligence negligence was the cause of her injury, was referring to defendant's employés generally was directly and repeatedly submitted to the not error. jury in instructions for defendant. It is 4. DAMAGES 216(1)-INSTRUCTIONS. rare that instructions are more pointedly juries to a passenger, an instruction that jury

In an action against a street railway for indrawn than were these. The jury has de

The jury has de can assess damages for injuries which they "betermined the case. It was their province to lieve from the evidence she has sustained" is pass on the evidence and to draw all rea- not bad as authorizing remote and speculative

damages. sonable inferences. We think there is not 5. DAMAGES 130(1) - INJURY TO PASSEN

– the slightest ground for interference.

GER-EXCESSIVE DAMAGES. We have not overlooked the suggestion In an action against a street railway for that there was evidence given by defendant's injuries to a passenger a verdict of $1,500 is not employés that plaintiff protested against excessive, where passenger suffered a' wrenched

and sprained ankle, a dislocated jaw, and a shutting off the gas. There was testimony bruise on her head at base of brain, and where that she "hoped" that would not have to be such injuries caused extreme nervousness and done, but nothing in the sense that she for- confinement to bed for several weeks. bade its being done. And in fact defendant's Appeal from Circuit Court, Jackson Counforeman said that if he had thought the sit- ty; Harris Robinson, Judge. uation demanded it, he would have shut it "Not to be officially published.”

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

Action by Christian Fischbach against R., ants. There was no pretense that any other J. Dunham and others. Judgment for plain- negligence than that of the servants in tiff, and defendants appeal. Affirmed. charge of the car was involved. The motor

Clyde Taylor, of Kansas City, for appel- man admits in his testimony that nothing lants. Henry West, of Brookfield, and Wil- was wrong with the operation of the car, kinson & Wilkinson, of Kansas City, for re- and that if there was any sudden lurching of spondent.

the car he, and no one else, was to blame for it. The cases cited by defendant are not in

point. ELLISON, P. J. Plaintiff's action is for

[4] Criticism of instruction C is likewise personal injury resulting from being thrown not well taken. It is said that it authorizes to the street from one of defendant's street speculative and remote damages by not becars. She recovered judgment in the trial ing limited to such damage as arose directly court for $1,500.

from the injuries received. The instruction It is charged in the petition that plaintiff confines the damages to the injuries which became a passenger on one of defendant's the jury "believe from the evidence she has cars, and, desiring to get off, she signaled sustained.” Meily v. Railroad, 215 Mo. 567,

, for the car to stop; that she proceeded to 577, 596, 114 S. W. 1013. the rear platform, and, while standing there

[5] Finally defendant insists that, if it is on preparatory to alighting, the car, still mistaken in the views advanced to support moving, was negligently and suddenly start the charge of errors in the trial, the judg. ed forward whereby she was thrown full ment should nevertheless be reversed and length onto a paved street. We have exam

cause remanded on account of excessive verined the record and find no substantial error dict, unless a remittitur of $1,000 be requirin the trial. The evidence in plaintiff's be

ed. We think the amount of the verdict half tended to support the allegations of is justified by the evidence as to the nanegligence and the verdict rendered there- ture of plaintiff's injuries. Her ankle was under.

wrenched and sprained, so that her leg was [1] Contributory negligence was not plead- swollen and discolored from the knee to her

] ed by defendant, and hence cannot be in- foot. Her jaw was dislocated, and there was sisted upon as a defense unless the evidence, a bruise on her head at the base of the without dispute, shows such negligence, and brain. She was made extremely nervous, that cannot be said of this record.

and in consequence of these injuries was [2] Instruction A given for plaintiff in- confined to her bed for several weeks. formed the jury that it was the duty of de

We have not discovered any error which fendant's employés “to use the highest prac- would justify our interference, and hence ticable degree of care that can reasonably must affirm the judgment. All concur. be expected of prudent, skillful, and experienced men engaged in that kind of business to safely carry and transport plaintiff, and any failure on the part of defendant's said MITCHELL V. VIOLETTE. (No. 12529.) employés to exercise such care would be neg- (Kansas City Court of Appeals. Missouri. ligence.” The charge in the petition was of

April 1, 1918.) specific negligence in suddenly starting the 1. BAILMENT 13-CARE REQUIRED-BAILcar by a jerk, so that it suddenly lurched

MENT FOR SOLE BENEFIT OF BAILEE. forward. It was said in Davidson v. Tran- The bailee of a wagon and horses for his sit Co., 211 Mo. 320, 355, 356, 361, 109 s. w. sole benefit is bound to take great care and use 583, that the instruction should have been slight negligence in relation to the subject-mat

extraordinary diligence, and is responsible for confined to that charge. Instead it broad- ter of the bailment. ens the charge to the extent of requiring 2. ANIMALS Om27-CARE REQUIRED Evisuch care in all matters connected with the DENCE.. operation of the car, and directs that any defendant for his sole benefit, caused by his neg

In an action for damages to a horse loaned failure to exercise such care would be negligence in not properly fastening the neckyoke ligence. But, as in the case cited, this is to the tongue of a wagon to which the horse not réversible error, since all the proof was hitched, evidence held to justify a finding showed that whatever injury plaintiff receiv that defendant was negligent.

. FOR NEGLIed was from the specific negligence charged.

GENCE-QUESTION FOR JURY. [3] The criticism on instruction B is not In an action for injuries to a horse loaned well founded. The jury could not have been defendant for his sole benefit, whether plaintiff misled. The petition charged that the in- or his wife was negligent in failing to instruct

defendant as to the manner of fastening the jury was inflicted through the negligence of neckyoke to the tongue of a wagon to which defendant's servants in charge of the car, the horse was hitched, held for the jury. while the instruction submitted the negli- 4. ANIMALS 27-ACTION FOR NEGLIGENCE gence of "defendant's employés," omitting -PLEADING AND PROOF. the words "in charge of the car.” It is defendant for his sole benefit, and alleged to

In an action for injuries to a horse loaned claimed that this left the jury to consider have been injured by defendant's negligence in the negligence of any of defendant's serv- allowing the wagon to run upon the leg and

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