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2. INSURANCE 131(1) APPLICATION. Application stating that representations therein "concerning the property to be insured, being the basis on which the insurance is to be effected," etc., did not show on its face that policy was to be in writing, so that there could be no recovery on oral contract.

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ORAL CONTRACT- and the next day plaintiff received a letter from the agents, which was mailed at 11 a. m. on the day of the fire, stating that the company had refused to write the insurance and returning the premium which plaintiff refused to accept. A letter, dated February 21, 1917, from the company to its agents, refusing to write the insurance, was introduced in evidence by defendant. Defendant was a foreign fire insurance company, and its agents, with whom plaintiff had this transaction, had been such agents at Nevada, Mo., for some years. These agents had power to solicit and take applications, to collect premiums, and to countersign and deliver policies for defendant. Defendant

3. INSURANCE 665(3) - FIRE INSURANCEPROOF OF OWNERSHIP OF PROPERTY-SUFFI

CIENCY.

Testimony of plaintiff's wife that the property was owned by her husband and herself, and that she notified the agent of this fact, and that the agent agreed to insure the property in the name of her husband, was sufficient proof of plaintiff's ownership of the property.

4. PRINCIPAL AND AGENT 21 PROOF OF AGENCY-TESTIMONY OF AGENT ADMISSI

BILITY.

An agent may testify as to facts within his introduced a contract between it and its said knowledge that create his agency.

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5. APPEAL AND ERROR 979(3) — REVIEW DENYING MOTION FOR NEW TRIAL.

Discretion of trial court in denying motion for new trial on the ground that the verdict is against the evidence will not be interfered with on appeal.

Appeal from Circuit Court, Vernon County; B. G. Thurmond, Judge.

"Not to be officially published."

Action by Edmund K. Prichard against the Connecticut Fire Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles E. Gilbert, of Nevada, Mo., for appellant. D. A. Murphy, A. J. King, and W. M. Bowker, all of Nevada, Mo., for respondent.

BLAND, J. This is an action upon a fire insurance policy. Plaintiff having recovered a verdict and judgment, defendant has appealed. The facts show that plaintiff and his wife were the owners of a frame mercantile building in the town of Walker, Mo., and desired to insure the same. On February 14, 1917, plaintiff's wife went to the office of Ferry Bros., the agents of defendant at Nevada, Mo., and told a Mr. Ferry, the person in charge, that she wanted insurance on the property in the sum of $450, and that the insurance was to be in her husband's name, explaining that the property was owned by both of them. Mr. Ferry told her that the amount of the premium was $21.50, and plaintiff's wife paid Mr. Ferry that amount, and received a receipt for the same, signing a written application for the insurance. After this was done plaintiff's wife asked Mr. Ferry, "What about the insurance; are we insured now?" and he replied, "Yes, you are insured; rest easy; you are insured now; policy in a few days."

**

* you will get your

The insurance was from February 14, 1917, to February 14, 1918. The application was made out by Mr. Ferry, and afterwards signed by plaintiff's wife by affixing plaintiff's name thereto. About 8 a. m. on February 24, 1917, the building was destroyed by fire,

such

agents wherein it was provided that the agents should be soliciting agents, "with power to receive applications for insurance in Nevada and its vicinity, applications to be submitted to the office * of said company, at Chicago, and not to be binding upon said company until approved and policy issued by the managers of said company, at Chicago."

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[1] Defendant makes the point that the only power conferred upon its agents at Nevada was the power to solicit applications for insurance, and to submit them to the company for approval before any insurance became binding upon the company; that the agents could not bind the company by a verbal contract of insurance. This point is not well taken. It was said by this court in Sheets and Day v. Insurance Co., 153 Mo. App. loc. cit. 633, 135 S. W. 84:

"We are not saying that a foreign insurance company may not employ soliciting agents of limited powers in this state, but we are holding that countersigning resident agents are presumed to possess authority to make contracts of insurance for their principals."

And in view of section 7047, R. S. 1909, it is no longer a question but that agents of a foreign fire insurance company who have power to solicit and take applications, collect premiums, and countersign and deliver policies, may bind their principal by an oral contract of insurance. Sheets and Day v. Insurance Co., supra; Bealmer v. Insurance Co., 193 S. W. 847. The evidence in this case indisputably shows that these agents had such power. The contract had between defendant and its agents circumscribing the authority of the latter could not limit their power to make this oral contract of insurance, as it is to be assumed from the evidence that the insured had no notice of this limited authority of the agent. Sheets and Day v. Insurance Co., supra.

[2] It is urged by the defendant that because the application stated that the truth of the representations contained contained therein "concerning the property to be insured, being the basis on which the insurance is to be effected," etc., that it is shown on the face

of the application that the insurance was to be a written policy, and that all verbal understandings were merged into the written application. It is not necessary for us to say what effect, if any, such a construction of the application would have upon the status of the insurance, as there is nothing in the application indicating that it was the the application indicating that it was the understanding that there should be no insurance until a written policy of insurance was delivered. We cannot see why there could not be a written application for an oral contract of insurance as well as for a written one.

[3] There is nothing in defendant's contention that there is no proof that plaintiff owned the property. Plaintiff's wife testified, without objection, that the property was owned by her husband and herself, and that she notified the agent of this fact, and that the agent agreed to insure it in the name of her husband.

[4] Defendant's contention that there is no proof that the wife was plaintiff's agent in negotiating the insurance is not well tak

en.

She testified directly on this point to the effect that she was his agent. Defendant seems to confuse the principle of law which requires more than merely the declaration of an agent to show his agency with the principle that one may testify on the witness stand as to facts within his knowledge that create his agency.

[5] Defendant makes the point that the motion for a new trial should have been sus

tained because the verdict was against the weight of the evidence. We have reiterated over and over again that this court will not

interfere with the discretion resting in the trial court in matters of this kind.

The judgment is affirmed. All concur.

(199 Mo. App. 64)

KNOX v. MISSOURI, K. & T. RY. CO. et al. (No. 12748.)

(Kansas City Court of Appeals. Missouri. Feb. 18, 1918.)

1. RAILROADS

-WARNING.

312(11)-STREET CROSSINGS A railroad company may not start up and back its trains or "kick" them across a public street without giving warning.

2. RAILROADS 297(3)- TRIAL 121(1) · CROSSING ACCIDENTS-EVIDENCE.

In an action for injuries sustained by a passenger while in a street car struck by a railroad train, brought against both carriers, it was error to exclude evidence by the street car company that the railroad company had failed to give warning before crossing the street, and to refuse to allow such failure to be argued the object of the evidence being to show that the street car company was in the exercise of due care, to which object it could have been limited by proper instructions.

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of which struck the car upon which plaintiff was riding, defendants are not permitted to bring into the case the relative duties and obligations between themselves; the controversy involving the liability of each to plaintiff. 4. RAILROADS 297(6) - CROSSING ACCIDENTS QUESTIONS FOR JURY.

In a street car passenger's action for injuries in a collision between the car and a railroad train, evidence held to require submission to the jury of all the circumstances of the injury, including the failure of defendant railroad company to give warning before crossing the 5. RAILROADS 297(2)-CROSSING ACCIDENTS

street.

-BURDEN OF PROOF.

In an action by a street car passenger against the company and a railroad company, the train of which struck the car upon which plaintiff was riding, general negligence merely being charged against the street car company, evidence introduced by plaintiff did not show her to be in possession of all the facts, so as to place the burden on her of proving negligence; a mere attempt to prove negligence not justifying an assumption that plaintiff knows the cause of the accident.

6. NEW TRIAL 101 - NEWLY DISCOVERED EVIDENCE-PERSONAL INJURY ACTIONS.

In a street car passenger's action for damages due to collision, evidence that prior to the accident plaintiff had been riding a motorcycle and was thrown therefrom was not sufficient to warrant a new trial on the ground of newly discovered evidence, where it appeared that defendant knew such facts at the time of the trial. 7. NEW TRIAL -99 - NEWLY DISCOVERED

EVIDENCE.

Motions for a new trial on the ground of newly discovered evidence are not encouraged. 8. NEW TRIAL 99 NEWLY DISCOVERED EVIDENCE-DISCRETION.

the ground of newly discovered evidence is The allowance or refusal of a new trial on largely in the discretion of the trial court. 9. NEW TRIAL 99 - NEWLY DISCOVERED

EVIDENCE-ESSENTIALS.

That a new trial may be granted on the ground of newly discovered evidence, it must appear that defendant was diligent, that a different result would probably be produced, and the new evidence must not be merely cumulative or to impeach the character or credit of the wit

ness.

10. NEW TRIAL 102(1)-NEWLY DISCOVERED EVIDENCE-DILIGENCE.

In a street car passenger's action for personal injuries, resulting in womb trouble, caused by a collision, newly discovered evidence that plaintiff frequently had improper relations with men, was very nervous, and had ovarian trouble was not ground for a new trial, where defendant's employés had knowledge of such facts prior to the trial, and defendant by the exercise of due diligence could have discovered them. 11. DAMAGES 132(5)-PERSONAL INJURIES -EXCESSIVENESS.

where a young woman of good health, engaged A verdict for $2,500 was not excessive, as a piano player, was injured in a street car accident, was confined to her bed for weeks, sustained bruises, and became nervous, afflicted with womb trouble, and had irregular and painful menstrual periods.

12. APPEAL AND ERROR

882(1)-JOINT DE

FENDANTS-INVITED ERROR.

In a personal injury action against two defendants, where reversible error is brought about by one, such defendant cannot ask that the judgment be reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-15

13. APPEAL AND ERROR 1173(1)-JOINT DEFENDANTS-REVERSAL AND REMAND.

Where a personal injury action has been brought against two joint defendants, and a judgment returned in favor of one, but prejudicial error has occurred as to the other, the cause must be reversed and remanded as to both, under Rev. St. 1909, § 2090, providing that a judgment is the final determination of the right of the parties in the action.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Edna E. Knox against the Missouri, Kansas & Texas Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded. Hadley, Cooper, Neel & Wright, of Kansas City, for appellants. Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

BLAND, J. This is an action for personal injuries. Plaintiff recovered a verdict and judgment against both defendants, and they have appealed.

As a matter of convenience the defendant Missouri, Kansas & Texas Railway Company will hereinafter be referred to as the Railroad Company, and the defendant the Missouri & Kansas Interurban Company will be referred to as the Interurban Company. The accident happened in the city of Olathe, Kan., at about 9:55 p. m. on the 4th day of January, 1915, while plaintiff was a passenger upon one of the cars of the Interurban Company. At the point of the accident the Frisco Railroad Company maintained four tracks running northwardly and southwardly across a public street in said city. The defendant Interurban Company's track along said street and crossed said four tracks in an easterly and westerly direction. When the car in which plaintiff was seated (which was a west-bound car) reached a point with its rear trucks on one of the railroad tracks, a caboose and freight train of the defendant Railroad Company, using the tracks of the Frisco Railroad, backed into the Interurban car and injured plaintiff. The petition charges general negligence against the Interurban Company and specific negligence against the Railroad Com

pany.

standing still; that he then motioned for the motorman to proceed across the tracks; that it was in the nighttime, and there was no one on the rear of the freight train or anything there that one by looking could see and tell when the train moved; that he did not notice that the freight train had moved until its rear end had reached a point 40 to 50 feet from the Interurban Company's tracks; that he knew that it moved at that point only by reason of his hearing the jamming of the cars; and that it was then too late to avoid the accident. The motorman testified that the conductor alighted from the car and went to the place described by the Conductor, and that the conductor gave him a signal to proceed across; that he was unable to see the freight train approaching, for the reason that there was a string of cars standing on a track between him and the track upon which the freight train was standing which obscured his view until he reached a point 8 feet from the track upon which was the freight train; that at that time he first saw the train and immediately attempted to stop his car, but was unable to do so, but thought that he might beat the train across, so he speeded up, but was unable to get across before the collision. He further testified that when he reached a point where he could see the train he was going at a rate of speed that would require a distance of 20 feet in which to stop the car. There was evidence on the part of the Railroad Company that the Interurban car was late, that it made no stop, that no one alighted from it before it proceeded across the railroad tracks, and that when the Railroad Company started its train, the latter gave three whistles.

[1] At the trial the defendant Interurban Company sought to prove and argue to the jury that, when its conductor went onto the tracks and saw the stationary train, he was justified in assuming that the train would not back across the street and the Interurban's tracks without giving some warning: that the train started up and ran into

the Interurban car without giving any warning or signal whatever to show that it was going to cross the street. The court refused this Plaintiff called as her witnesses the motor- evidence and refused to permit counsel for man and conductor on the Interurban Com- the Interurban Company to argue the matpany's car upon which she was a passenger. ter before the jury and reprimanded him for The conductor testified that, when the Inter- referring to it. This evidence, and the effort urban Company's car reached a point 20 to argue the same to the jury, was refused or 30 feet from the railroad tracks, it by the court on account of objections made stopped and he alighted from the car and by the defendant Railroad Company. The went onto the tracks and looked in both basis of these objections was that there directions for trains; that a Frisco train was nothing in plaintiff's petition in referwas standing to the north and near the cross-ence to any failure of the Railroad Company ing and had an engine attached to it; that to give any warning or signal before backabout 100 or 140 feet south of the Interurban ing its train across the street in question. tracks he saw the caboose and rear end of the freight train that later backed into the car; that at that time the freight train was

On the rulings of the court in reference to this matter the Interurban Company bases a claim of error, and in support thereof

it urges that it had a right to introduce tes- [3] There is a rule that two joint defendtimony tending to show and to argue to the ants are not permitted to bring into the case jury any fact that would exculpate itself the relative duties and obligations existing from negligence. There was evidence tend- between themselves, as the controversy ining to prove that the cars were "kicked" or "shunted" across into the Interurban car; and in this connection this defendant suggests that there is a rule of law that a railroad company may not start up and back its trains or "kick" them across a public street without giving some warning. This is undoubtedly the rule. Wilkins v. St. Louis, I. M. & S. R. R. Co., 101 Mo. 93, 13 S. W. 893; Fusili v. Mo. Pac. Ry. Co., 45 Mo. App. 535; O'Connor v. Mo. Pac. Ry Co., 94 Mo. 150, 7 S. W. 106, 4 Am. St. Rep. 364; Tabor v Missouri Valley Ry. Co., 46 Mo. 353, 2 Am. Rep. 517; 2 Shearman & Redfield on Negligence, § 471 (6th Ed.).

[2] There was no mention in the pleadings of a failure on the part of the railroad company to give a signal or warning, and for this reason plaintiff, if objection had been made, could not have introduced evidence tending to show such failure. However, the offer made on the part of the Interurban Company had nothing to do with plaintiff's right to recover against the railroad company. The offer was made for the purpose of showing that the Interurban Company had used a high degree of care in the operation of its car, as it was required to do. We think that the court erred in refusing to allow the Interurban Company to introduce this evidence and to argue the matter to the jury. Had such evidence been admitted, as it should have been, the defendant Railroad Company could have been protected by asking an instruction from the court to the effect that the jury was not to consider the evidence in connection with the railroad company's lia

volves the liability of each to plaintiff, and
not their responsibilities among themselves.
Defendants are not authorized to invoke
agreements, rules, or customs made among
themselves, designed to define their rights in
their business relations to each other under
ordinary circumstances, and about which the
plaintiff has no concern; nor can one of such
defendants shift the entire responsibility, so
far as may effect plaintiff, upon the offend-
er against the agreement, rule, or custom
among themselves, when the nonoffender
could have avoided the accident by the use
of ordinary, or the highest degree of, care.
The lawmaking power and not the defend-
ants can alone promulgate the obligation and
liability of defendants to their passengers.
Taylor v. Grand Avenue Co., 137 Mo. 363, 39
s. W. 88; O'Rourke v. Lindell Rd. Co., 142 Mo.
342, 44 S. W. 254. Plaintiff attempts to in-
voke this rule as against the right of the
Interurban Company to show that it was not
guilty of negligence on account of the Rail-
road Company not giving the warning. The
duty of the railroad company to give the
warning was not based upon any rules or
customs existing between these defendants,
and the evidence was not introduced for the
purpose of bearing on any duties, rights, or
liabilities of the defendants between them-
selves. The rule was one made by the law
over which neither one of the defendants had
any control, and it was a rule that the jury
might have found the conductor of the In-
terurban Company had a right to assume
would be observed by the Railroad Company.
[4] It will not do to say that, even if the

bility to plaintiff. State v. Phillips, 24 Mo. Interurban Company was not advised of the 475; Union Savings Association v. Edwards, 47 Mo. 445; Sotebier v. St. Louis Transit Co., movement of the train by the required warn203 Mo. loc. cit. 721, 102 S. W. 651; Carle v.ing, nevertheless it was negligent in another De Soto, 63 Mo. App. 161; Phillips v. Hamil- respect; that is, that the jury might have ton Brown Shoe Co., 178 Mo. App. 196, 165 S. W. 1183. The rule as to the admissibility of evidence under circumstances as presented in this case is stated by Wigmore as follows: in this case is stated by Wigmore as follows: "It constantly happens that a fact which is inadmissible for one purpose is admissible for other purposes; while, on the other hand, a fact which is entirely admissible, so far as some rules are concerned, is excluded because it fails to satisfy some other rule. *** In other words, when an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity. ** Here the only question can be what the proper means are for avoiding the risk of misusing the evidence. It is uniformly conceded that the instruction of the court suffices for that purpose, and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise, he may be supposed to have waived it as unnecessary for his protection." Wigmore on Evidence, § 13.

found that the motorman, in discharging the burden of using the highest degree of care, was guilty of negligence in running his car when he was unable to see the approach of to within eight feet of the railroad track, trains from the south on such track, and not having his car sufficiently under control, so that when he reached a point where he could see he could have stopped the car before it reached the track. As already stated, the evidence shows that when the motorman reached the place where he could see he was 8 feet from the track, and that the car was going at such a rate of speed that he could not stop it in less than 20 feet. Unless we could say as a matter of law that this was negligence on the part of the motorman, and that upon a showing to this effect plaintiff was entitled to an instruction that the jury should find for the plaintiff, we do not think that it would make any difference in the that it would make any difference in the matter under discussion. All of the circum

ligence under the facts, and did not show that she knew all about the accident. mere attempt to prove negligence can hardly justify the assumption that plaintiff knew the cause of the accident. Kilroy v. K. C. & K. V. Ry. Co., 195 S. W. 522; Price v. Railway, 220. Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588; Loftus v. Railroad Co., 220 Mo. 470, 119 S. W. 942; Dollie C. Mining Co. v. Railroad, 194 Mo. App. loc. cit. 41, 182 S. W. 1055.

stances should have been submitted to the, tempt on the part of plaintiff to prove negjury, as it was their peculiar province to pass upon them. The motorman had received the signal from the conductor to proceed across the track, and the freight train was not the only train present to indicate danger and that required the attention of the servants of the Interurban Company. The jury might very well have found that under such circumstances it was the duty of the motorman to hurry across the track as quickly as possible to avoid new dangers that might be ushered in at any moment. On the other hand, it might have found that the motorman was under some obligation to watch the Frisco train. While the jury might have actually found that the motorman of the Interurban Company was not negligent in proceeding across the track as he did, yet they were not allowed to consider whether the conductor had discharged his full duty by relying upon the signal that should have been given by the Railroad Company. A showing by the Interurban Company that it relied upon the Railroad Company to discharge a duty imposed upon the latter by law to give some signal or warning before crossing the street, tended to exculpate the Interurban Company from fault, and this company had a right to have the jury consider this, with all other competent matters that tended to show that it had discharged its full duty. It is true that there was evidence, introduced by plaintiff without objection, that the conductor of the Interurban car relied upon the railroad company to give some such warning. Plaintiff urges that in view of this fact the court did not err in refusing the Interurban's evidence to the same effect. However this may be, the court erred in refusing to permit the Interurban Company the privilege of arguing the matter to the jury and in reprimanding counsel for so doing.

[5] A point is made that the court erred in submitting the case to the jury on the theory that the burden was upon the Interurban Company to show that it was not negligent. In this connection it is said that as against the Interurban Company the petition charges general negligence, but that plaintiff, having introduced the evidence of the conductor and motorman to explain how the accident occurred, by her evidence showed that she was in possession of all the facts in relation to the cause of the accident. This evidence of plaintiff did not show that she knew the whole cause of the accident. There was evidence in the case, not introduced by plaintiff, that the conductor did not get off of the car to watch for the approach of the train and to signal the Interurban car to cross the tracks, but that the car was late, and was seen to cross the tracks without any care on the part of any one in control of it, and that the train signaled before moving. The introduction of the evidence of the

[6] A point is made that the court erred in not awarding defendants a new trial upon the ground of newly discovered evidence. In support of their motions for new trial, defendants introduced an affidavit which stated that plaintiff had been riding on a motorcycle and had been thrown therefrom prior to the collision in question. (Plaintiff claimed that the accident sued for had resulted in womb trouble.) Evidence brought out at the trial tended to show that defendants at that time knew of the motorcycle incident. Other affidavits stated that plaintiff, before the collision, frequently had improper relations with men, was very nervous, and had ovarian trouble. The affidavits show that defendants first obtained a clue to this information after the verdict and from some of the employés of the Interurban Company.

[7-9] Motions for a new trial on the ground of newly discovered evidence are not encouraged. Grocery Co. v. Hotel Co., 183 Mo. App. 429, 166 S. W. 1125, and cases cited therein. The matter of refusing or granting such motions is largely in the discretion of the trial court. McPherson v. Harvey, 183 S. W. 653, and cases therein cited. In order that such a motion may be granted, a number of things must be present including the element of diligence, the probability of the new evidence producing a different result, the new evidence must be not merely cumulative, and not simply to impeach the character or credit of the witness. State v. Speritus, 191 Mo. 24, 90 S. W. 459.

[10] We think that the evidence claimed by defendants to have been newly discovered might well have been found by the trial court to have failed to meet the requirements of diligence and that it be not cumulative. As to the motorcycle incident, there is evidence that defendants knew the facts at the trial. As to the other matters, defendants' affidavits show that they were known to their employés. The trial court, no doubt, found that, had the defendants exercised diligence, the matters could have been discovered before or during the trial, and that the evidence was merely cumulative. Defendants put on the stand many doctors, who had examined plaintiff, and who testified as to the causes of her ailments. We do not think the trial court abused the discretion vested in him in his ruling on these matters.

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