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excessive. The verdict was for $5,000, but held that the defendants could enforce contrithe court required plaintiff to make an in- butions between themselves in a separate acvoluntary remitter of $2,500, which was com- tion brought under section 5431, R. S. 1909, plied with. There was evidence tending to for that purpose, if the circumstances allowshow that plaintiff was a young woman of ed; and this being a fact, each one was intergood health, and was engaged as a piano ested in the amount of plaintiff's recovery, player at the time of her injury; that the and each, under the circumstances of that collision was one of great force, throwing case, ought to have the privilege of defendplaintiff into the aisle of the car; that she ing plaintiff's suit throughout. In that case . lost consciousness, and came to in a little error was found to have been committed while, and again fainted; that she was tak- against only one of the tort-feasors, but the en to her home in Olathe in an automobile; ! case was remanded as to both. However, that she was unable to walk; that a doctor in the Miller Case the error was injected was sent for, and two doctors came to see into the case by plaintiff. In the case at bar her the night of the accident; that one of the error was made at the invitation and rethe doctors came to see her three times, and quest of the Railroad Company, and as plainafter that the other doctor treated her; that tiff was willing that the evidence be introshe came to Kansas City about six weeks' duced, and that the argument be made to after the accident, and the next day she saw the jury, she was in no wise accountable for another doctor, and that this doctor had the error. The defendant Railroad Company treated her three times a week until the was solely responsible for the error committrial; that she could not be moved until the ted, and it cannot now take advantage of next day after the accident, and then was its own wrong. Having brought the error moved on a stretcher; that she suffered in- | into the case, it cannot now ask that the tense pain in her back, and for a long time judgment be reversed and remanded for an “could not raise off her back”; that she had error of its own commission. Hogan v. a place as large as a saucer on her right Hinchey, 195 Mo. 527, 94 S. W. 522; Westside and a bruise on her right leg ; that the ern Tie & Timber Co. v. Naylor Drainage accident caused her to have a severe case of District Co., 226 Mo. 420, 126 S. W. 499; womb trouble, and irregular and painful Hiler v. Cox, 210 Mo. 696, 109 S. W. 679; menstrual periods, from which she suffered Price v. Breckenridge, 92 Mo. 378, 5 S. W. at the time of the trial; that she had none 20; Mitchell v. Wabash Ry. Co., 97 Mo. App. of these troubles before the accident; that 411, 76 S. W. 647; Lee v. Hassett, 39 Mo. App. she was never nervous before the accident, 67; White v. Nelson Mfg. Co., 53 Mo. App. but since had been very nervous, especially 337. at night; that she could not sleep, and [13] However, in view of our statute (secwould wake up and jerk and scream; that tion 2090, R. S. 1909), there can be but one she was married about five months after the final judgment in the case, and it has been accident, and has been able to do light work held in a case involving the same dilemma in the office of a laundry since; that since that, where it is necessary to reverse and rethe accident she had been going to dances mand a case as to one defendant, it must occasionally; that she went more to hear be remanded as to both. Plaintiff being the music than anything else, as she could unwilling to dismiss the case as to defendnot play since she was hurt; there was med ant the Missouri & Kansas Interurban Railical testimony that plaintiff was suffering way Company, and thus obviate any necessifrom a very severe case of womb trouble, ty of reversing the case, the judgment must and irregular and painful menstrual periods, be reversed and remanded as to both defendand that these ailments could have been ants; and it is so ordered. All concur. caused by the accident. There was evidence of probative force that plaintiff suffered a severe injury as a result of the colli- MCKINNEY v. MCKINNEY. (No. 12837.) ision. We do not think that the fact that the (Kansas City Court of Appeals. Missouri. lower court reduced the verdict by half

April, 1918.) shows that the jury was governed by passion 1. DIVORCE Om130 — RECRIMINATION — EVI. and prejudice in its rendition under the cir- DENCE. cumstances. Nor do we think a recovery evidence of conduct of plaintiff held not to show

In a suit for divorce brought by a husband, of $2,500 under the circumstances was ex- him an innocent and injured party, so as to cessive.

entitle him to a decree. [12] There was no error in the instruc- 2. APPEAL AND ERROR Om591 – RECORD ON tions; but from what we have said the case

APPEAL-EXCEPTIONS, must be remanded as to the Interurban Com- defendant excepted to the overruling of a motion

Where the bill of exceptions shows that pany. The Railroad Company contends that, for new trial, it is immaterial that the abstract if the case is remanded as to one defendant, of the record does not show it. it must be remanded as 'to both, citing Mill- Appeal from Circuit Court, Cole County; er v. Transit Co., 155 Mo. App. loc. cit. 546, Jack G. Slate, Judge. 547, 548, 134 S. W. 1045. In that case it was "Not to be officially published."

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

Action by F. A. McKinney, against Mayme mother would die. These matters were not

, McKinney for divorce. Judgment for plain- corroborated in any way. Plaintiff put his tiff, and defendant appeals. Reversed. mother on the stand. She was an old lady,

Pope & Lohman, of Jefferson City, and w. 87 years of age, and from the country. She F. Zumbrum, of Kansas City, for appellant. testified that she lived a long way from plain• Irwin & Haley, of Jefferson City, for re- tiff and defendant, and very seldom visited spondent.

plaintiff and his wife, but that she felt that

she was not being treated with proper conBLAND, J. Plaintiff having recovered a sideration, because defendant did not get up judgment and decree of divorce, defendant until 8 or 8:30 in the morning, or have breakhas appealed. The divorce was granted on | fast until 9 or 9:30, so that she had to go to the ground of indignities rendering plaintiff's a restaurant and get her breakfast. And the condition intolerable. The parties were mar-old lady stated that when she had company ried on October 31, 1908, and separated on Au- she always wanted to give them something to gust 1, 1914. Plaintiff was engaged as a mo- eat. She would not state whether or not torman for the Kansas City Street Railways defendant treated her all right. A lady, who Company. Defendant filed no cross-bill, but was apparently plaintiff's sister, was put on resisted plaintiff's suit for divorce, testifying the stand by plaintiff, and was asked what that she still loved her husband and was defendant's attitude was toward her, and she willing to be reconciled.

answered, “Very well." The burden of plaintiff's complaint against Plaintiff further testified that his wife was his wife is as follows: That she treated him always “ding-donging him for money,” and well, and that they got along all right until wanted his money. Defendant denied this. about three years before the separation. Another of plaintiff's complaints is that the About that time on account of being sick one night before he left his wife took a razor and afternoon, plaintiff came home from work, threatened to kill him with it, and that he and about 8 or 9 o'clock that night an old told her that the next time he got off from sweetheart of his wife knocked at the door, dinner early he would come home and talk and when plaintiff opened it the man asked things over with her, and see what they for her brother. Plaintiff testified that this should do, and he came home the next day, man had no reason to be there because he but she was not at home. The neighbors said was braking out at Eldon, Mo. Defendant that she had gone down town, and he left testified that this man was an old schoolmate without having any conference in reference of both her husband and herself, and plain to the matter. Some days before plaintiff tiff did not deny this. When defendant of- left his wife he deposited $600 in her name fered to'put a witness on the stand as to her and with her knowledge in a bank in Kansas character, the court said that her character City, Mo. After he left he went to Jefferson was not in issue, and this was acquiesced in City, and defendant had him arrested for wife by all the parties. We think there is nothing desertion, and he testified that in order to in this complaint of plaintiff.

get out of jail and have her drop the case he Another complaint of plaintiff is that they had to pay her $1,000, but it is apparent that were renting housekeeping rooms of Mr. and this $1,000, together with some other money, Mrs. Farr, at Thirty-First and Baltimore was paid under a separation agreement that streets, in Kansas City, Mo., and that when was executed, settling between the parties these people moved his wife wanted to move all their property rights, wherein plaintiff with them, and that he objected on account agreed to pay his wife $1,725 in lieu of of the conduct of Mrs. Farr. The evidence maintenance and any dower rights in his is not very clear as to what conduct on the property, and they agreed to live separate part of Mrs. Farr plaintiff complained of, and apart. but we take it that he means to testify that Plaintiff claimed that after he had left his Mrs. Farr was having men callers in the ab- wife that she went to his lodge and tried to sence of her husband. Mr. Farr was a fellow get him “throwed out of the lodge,” but he motorman of plaintiff. However, plaintiff did not know what she told his lodge fellows. testified that he objected to moving to the Defendant admitted that she complained to new location with the Farrs, and offered to the lodge about plaintiff's alleged mistreatbuy a home, but that defendant said, “If they ment of her. Defendant denied that she had

a did not live with them, they would not live threatened plaintiff in any way, and she deat all”; so he and his wife went to live with nied having mistreated his family. However, the Farrs over his objection. Defendant de- she testified that her relations with plaintiff nied that he ever in any manner complained were of the best until the May 27th prior to of the Farrs or objected to them, and plain- | August 1, 1914, when plaintiff left her; that tiff's testimony in reference to this matter on the former day she was on a street car, was not corroborated.

and one of plaintiff's fellow motormen gave Another contention of plaintiff is that his her information that plaintiff had gone to a wife did not treat his people well when they certain hotel with a waitress. Defendant visited them, and did not want his relatives immediately repaired to this hotel and saw around, and that she stated at one time when her husband and the waitress come out of it. tion. She said that when she accused him of, quarrels. Mrs. Farr testified that she was having improper relations with this waitress with defendant when the latter called upon that he first denied and then admitted it and the waitress with the note; that it was boasted of it. She testified that from that about the last part of July; that she overtime on she quite frequently talked to her heard the conversation between the defendhusband about this woman, and tried to get ant and the waitress, and when asked what him to leave her alone, and defendant agreed she heard she testified she could not repeat to continue their relations as husband and what she heard, as she did not try to rewife if this were done. Defendant stated member, but that 'the waitress talked “awthat during the month before the separation fully hateful” to Mrs. McKinney. her husband stayed out all night twice, and Mr. Farr, whom we do not understand plainwhen she asked him where he had been he tiff attacks in any way, testified on behalf of replied “that it was none of her business." defendant that Mrs. McKinney was a fine She testified that she had seen plaintiff and housekeeper, and was neat and clean in apthe waitress together twice; once at the ho- pearance, and that the relation between tel, and another time at the end of the car plaintiff and his wife was good until they had line. Defendant testified that she continually the trouble over the waitress. He stated requested her husband to leave the waitress that he heard them discussing the matter, alone, and would cry all night about it, and and that he was kept awake at night by finally a few days before her husband left their talk. When asked if plaintiff ever adhe signed a note addressed to the waitress mitted his connection with the waitress, witconfessing his relations with her. The note ness answered, "No, he never came right out is as follows:

and admitted it, nor he didn't deny it." He “August 3, 1914. I have confessed all to also stated that he heard defendant tell my wife, so don't keep nothing from her. And plaintiff that if the latter would quit the please come to me. F. A. McKinney.”

waitress that she would forgive him and go It is admitted that all but the signature ahead living together again. Mr. Farr said of this note of confession was written by de- that he remonstrated with plaintiff about fendant. Plaintiff admitted his signature, going with the waitress, and told him “that but said that he did not write the other part he ought to cut it out,” and in reference to of it. He stated that he had written a letter plaintiff's reply to this the witness said, to some of his folks and left it on the dress-Why, he said that he knew that he had a er, and his wife got it and took the sheet that good woman; he knew that; but he did not had his signature on it, and wrote this al- say whether he would cut it out or not, I beleged confession above the signature. He lieve,” and that plaintiff did not talk to the admitted on the witness stand that his name witness about his alleged relations with the was signed in the middle of a blank sheet other woman, and the witness did not talk to of paper, and that there was no other writ- plaintiff further about it, because the witing on this page of the letter when the letter ness said that plaintiff "didn't talk like that was placed on the dresser. He testified that he thought it was any of my business, and I he was not in the habit of signing his name didn't talk to him any more.” Mr. Farr teson a page of a letter that had no other writ- tified that he remembered plaintiff being out ing on it, but that he sometimes did it. all night on one occasion, as defendant was Defendant testified that when her husband worried about it and looking for plaintiff. signed this alleged confession she took the

Plaintiff denied having anything to do note to the waitress; that she was desirous with the waitress. When asked if he was of getting her husband and the waitress to- acquainted with her, he made the following gether and have them both admit their guilt,

answer: and have her husband tell the waitress that

"I-I have met her husband very often, Q. he would have nothing more to do with the Are you acquainted with her? A. I have met latter, and in that way effect a reconcilia- her on the cars; yes, sir. Q. How frequently tion between her husband and herself. She have you met her?

She have you met her? A. I don't know, I could testified that she took it to the waitress, and not remember the times I met her.” the latter said that if plaintiff and she want- When asked if that was the name of the ed to run away together it was their busi- / woman that he and his wife had the trouble ness.

about, he answered, “Not that I know anyThis testimony in reference to the alleged thing about;" but he said his wife might infidelity of her husabnd was in a measure have accused him of having improper relacorroborated by Mrs. Farr, who testified tions with her. He admitted that they had that plaintiff and his wife lived in light quarreled about some woman. He also adhousekeeping rooms with the Farrs, and mitted that his wife cried all night at times that only a curtain was between the two and kept him awake, but stated that he did families, and that she could hear plaintiff not know what she was crying about; that and his wife talking. Mrs. Farr testified she would not tell him. When asked how that she never heard a word of trouble be- many times his wife had talked to him about tween plaintiff and defendant until "this "this other woman,” he answered: woman came into their lives." She testi

“My wife very often quarreled; that was her fied that after that she often overheard their great delight. Q. Did you ever' tell her there

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was no other woman in your life? A. Not as I, party, and he was not entitled to a divorce. remember."

Barth v. Barth, 168 Mo. App. 423, 151 S. W. The following question was asked plain-769. tiff :

[2] There is nothing in plaintiff's conten"Did you and your wife ever have any trouble tion that the abstract of the record proper about the woman that you were mixed up should show that defendant excepted to the with?"

overruling of her motion for a new trial. And he answered:

The bill of exceptions shows such an excep

of of that things, but so far as I know I am not guil- tion, and it is in the latter place that all matty of it.” (Italics ours.)

ters of exceptions must appear.

The judgment is reversed. All concur. We think that regardless of the alleged confession, which we will discuss later, the preponderance of the evidence shows plain

RATLIFF v. MEXICO POWER CO. tiff's guilt. Defendant testified positively of having caught her husband and the waitress

(No. 12547.) coming out of a hotel of bad repute, and of (Kansas City Court of Appeals. Missouri. having found them together at the end of

April 29, 1918.) the car line on another occasion; that he 1. ELECTRICITY 14(2)-PERSONAL INJURYconfessed his offense to her and boasted of

CARE REQUIRED.

One dealing with and transmitting a danit Farr, a witness whom plaintiff did not gerous and deadly electric current, whenever attack in any way, testified that he talked reasonably chargeable with knowledge, or when to plaintiff with reference to his relations the facts are such as to make it reasonably with the waitress; that he overheard the probable, that persons may lawfully come near quarrels between plaintiff and his wife where- must take every precaution accessible to obvi

its wires and be exposed to danger therefrom, in the wife accused plaintiff of having these ate the danger of injury, and must use the improper relations, and that plaintiff never utmost care to keep and maintain the wires so denied it. Plaintiff himself testified that al- as to prevent injury. though his wife had accused him, he never

2. ELECTRICITY Cw19(6)–PERSONAL INJURY

NEGLIGENCE-QUESTION FOR JURY. remembered of ever telling her that there

In an action by the widow of an employé was not another woman in his life. Al- in a city laundry who, while in the city's power though plaintiff at many places in his testi- house under permission of its superintendent, mony denies having had anything to do with was killed when a laundry pipe held by another

laundry employé while attempting to open the the waitress, his answer that "so far as I door of the power house came in contact with know I am not guilty of it” is hardly the defendant's wires transmitting power to the definite denial that an innocent man would power house and established a contact causmake when accused on the witness stand of ing a fatal injury while deceased was lifting

the latch to open the door, held, on the evisuch a serious charge.

dence, that defendant's negligence in not insulatThe alleged confession bears some ear- ing its wires, etc., so as to prevent such contact marks of not being genuine. It is the con- was for the jury. tention of plaintiff that defendant forged this 3. ELECTRICITY Cm15(1)-PERSONAL INJURY

-TRESPASSER. alleged confession for the purpose of con- In such case, deceased was rightfully in the fronting the waitress with it in the hope of power house under permission granted by the having her make some damaging admission superintendent of the power house, and was not in reference to the matter. The confession a trespasser at the time he was killed. is dated August 3, 1914, when plaintiff left 4. NEGLIGENCE EXw89(4) – NEGLIGENCE OF ,

FELLOW SERVANT-IMPUTED NEGLIGENCE. her August 1, 1914, and unless some mistake In such case, the negligence of deceased's has been made in reference to the date, and fellow servant in establishing a contact with there is no direct testimony as to this, it is defendant's transmission wire could not be imhard to explain this discrepancy. On the puted to the deceased.

5. ELECTRICITY Ow16(7)–CONCURRENT NEGother hand, it is not common for one in writ

LIGENCE-LIABILITY. ing a letter to sign the letter in the middle In such case, the negligence of deceased's of a blank sheet of paper, as plaintiff claims fellow servant would not absolve defendant if he did this alleged letter. We think the its negligence concurred with that of the fel

low servant in causing death. weight of the evidence shows plaintiff's guilt outside of any consideration of the "confes

Appeal from Circuit Court, Macon County; sion,” but in view of all the evidence which Vernon L. Drain, Judge. corroborates the confession, we believe that

"Not to be officially published." it is established that he did write the note, Action by Hattie L. Ratliff against the and there is a strong inference that the dis- Mexico Power Company. Verdict and judgcrepancy in the date was simply a mistake. ment for plaintiff, and defendant appeals.

[1] It is not necessary for us to decide Reversed and cause remanded for a new whether plaintiff made out a case which trial. would entitle him to a divorce, for the reason McBaine & Clark, of Columbia, for appelthat it makes no difference how great de- lant. Don. C. Carter, of Sturgeon, J. M. fendant's guilt may have been, plaintiff did Johnson, of Kansas City, and Dan R. Hughes, not show himself an innocent and injured of Macon, for respondent.

TRIMBLE, J. Herein a wife seeks dam- , of the city electrician, gone back and forth ages for the death of her husband caused, from the laundry into the power house, so she charges, by the negligence of the de-through the entrance aforesaid, to make use of fendant with reference to the maintenance the city's tools and workbench located thereof its wires carrying high-powered and dead-in. The evidence in plaintiff's favor tends to ly currents of electricity. She obtained a show that the laundry workmen were told by verdict and judgment for $4,500, and defend the city superintendent of the power house ant has appealed.

that if they needed anything in there to: The city of Centralia owned a power house come in and use it, and Mr. Morse, lessee of and system by which electricity could be dis- the laundry building, testified that if he tributed and sold to its inhabitants. Said wanted to use any tool in the power house power house also contained the pumping plant he went in and got it with the knowledge of the city's waterworks. Instead of produc-of the men in charge thereof, and if they ing electric current, however, the city pur- needed anything in the laundry they went chased it of defendant, located at Mexico, and got it. The evidence amply tends to; Mo., under a contract running for 10 years show that frequently the workmen in the from August 15, 1915. By the terms of this laundry came into the power house and made contract, the city granted defendant the use of the tools and workbench therein, all right to set a line of poles on which the trans- with the knowledge and permission of those mission lines from Mexico could be run into in charge of the building. the power house, and therein defendant was

Plaintiff's husband was employed in the granted sufficient space to set up its meter laundry by Mr. Morse, and on the morning and equipment necessary to measure and de- of the 10th of February, 1917, a pipe in the liver to the city, in said power house, all laundry had frozen and bursted. It was current used by the city either in its pumping necessary to take it out and replace it with operations or for street lighting purposes or another. Plaintiff's husband was assisting a for the retailing of electricity to its inhabi

man named Dudley in the work. It became tants. Under said contract defendant ran

necessary to cut a piece off a 14-foot length its transmission wires, each carrying 16,500 of pipe and put a thread thereon. To make volts of electricity, into the power house and supplied the city with electricity from that use of the bench and vise in the power house, time until the 10th day of February, 1917, the they decided to take the pipe in there and do

the cutting. Plaintiff's husband went from day plaintiff's husband was killed. The transmission wires were carried on poles the door after him; it being the left door of

the laundry into the power house and closed about 30 feet above the ground until they the double doors aforesaid, and the one reached a point about 33 feet southeast of the having the latch thereon. Shortly thereafter main or east front entrance of the power Dudley followed, carrying the pipe on his house, but from the last pole, located at left shoulder and holding it with his left. said above-named point, said wires sloped hand. As he approached the power house, down to and entered the power house over door, he could not reach the latch with the the said entrance (consisting of double doors), pipe in a horizontal position, so he dropped the said entrance (consisting of double doors), door, he could not reach the latch with the at a height of 10 feet and 3 inches above the the front end thereof to the ground, holding ground or granitoid in front of the door.

the pipe in his left hand, and leaned forward A few feet east and slightly north of the to take hold of the latch. This brought the power house was a laundry building, also pipe into a more or less upright position, and owned by the city; its front door being on the pipe came in contact with the high-powthe south side thereof and a little over 26 ered wires a few feet above his head.

At feet northeast of the said main entrance to this moment, plaintiff's husband, inside of the power house, over which, as stated, the the power house, took hold of the latch to defendant's transmission wires entered. The ground on which the power house and laun-open the door, and the instant the pipe dry were located was owned by the city, down the pipe through Dudley's arm to the

touched the wire the deadly current leaped any dedicated street on the ground in front of latch, and thence from it through Ratliff's and between the entrances of these two build- body to the ground, killing Ratliff instantly

and badly shocking and burning Dudley. ings, yet it was open and uninclosed land, so

The evidence shows that, while the transthat any one coming to either building could readily approach these doors passing near the mission wires had some insulating matesaid last pole and under the transmission rial on them, yet such insulation is not suffi wires sloping down to a point above the cient to afford protection against a current power house entrance as aforesaid. This of over 600 volts, and that, where high-powlaundry building had been moved to that lo- ered currents are carried, electricians and cation about December, 1916, and the city electric wire manufacturers do not depend had leased it to one Morse. In putting in the upon insulation, but in aerial or overhead necessary plumbing and steam fitting in the construction rely for safety upon placing the laundry, Morse's employés had, with the wires in high and out of the way places. It knowledge and permission of the city super-was shown that such wires were not placed intendent of the power house, as well as that I over doors or near windows where persons

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