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 would wake up and jerk and scream; that she was married about five months after the accident, and has been able to do light work in the office of a laundry since; that since the accident she had been going to dances occasionally; that she went more to hear the music than anything else, as she could not play since she was hurt; there was medical testimony that plaintiff was suffering from a very severe case of womb trouble, and irregular and painful menstrual periods, and that these ailments could have been caused by the accident. There was evidence of probative force that plaintiff suffered a severe injury as a result of the collision. We do not think that the fact that the lower court reduced the verdict by half shows that the jury was governed by passion and prejudice in its rendition under the circumstances. Nor do we think a recovery of $2,500 under the circumstances was excessive.

[12] There was no error in the instructions; but from what we have said the case must be remanded as to the Interurban Company. The Railroad Company contends that, if the case is remanded as to one defendant, it must be remanded as to both, citing Miller v. Transit Co., 155 Mo. App. loc. cit. 546, 547, 548, 134 S. W. 1045. In that case it was

[13] However, in view of our statute (section 2090, R. S. 1909), there can be but one final judgment in the case, and it has been held in a case involving the same dilemma that, where it is necessary to reverse and remand a case as to one defendant, it must be remanded as to both. Plaintiff being unwilling to dismiss the case as to defendant the Missouri & Kansas Interurban Railway Company, and thus obviate any necessity of reversing the case, the judgment must be reversed and remanded as to both defendants; and it is so ordered. All concur.

(No. 12837.) Missouri.

MCKINNEY v. MCKINNEY.
(Kansas City Court of Appeals.
April, 1918.)
130-RECRIMINATION - EVI-

1. DIVORCE
DENCE.

In a suit for divorce brought by a husband, him an innocent and injured party, so as to evidence of conduct of plaintiff held not to show entitle him to a decree.

2. APPEAL AND ERROR 591-RECORD ON APPEAL-EXCEPTIONS.

defendant excepted to the overruling of a motion Where the bill of exceptions shows that for new trial, it is immaterial that the abstract of the record does not show it.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

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.

Pope & Lohman, of Jefferson City, and W. F. Zumbrum, of Kansas City, for appellant. • Irwin & Haley, of Jefferson City, for respondent.

BLAND, J. Plaintiff having recovered a judgment and decree of divorce, defendant has appealed. The divorce was granted on the ground of indignities rendering plaintiff's condition intolerable. The parties were married on October 31, 1908, and separated on August 1, 1914. Plaintiff was engaged as a motorman for the Kansas City Street Railways Company. Defendant filed no cross-bill, but resisted plaintiff's suit for divorce, testifying that she still loved her husband and was willing to be reconciled.

The burden of plaintiff's complaint against his wife is as follows: That she treated him well, and that they got along all right until about three years before the separation. About that time on account of being sick one afternoon, plaintiff came home from work, and about 8 or 9 o'clock that night an old sweetheart of his wife knocked at the door, and when plaintiff opened it the man asked for her brother. Plaintiff testified that this man had no reason to be there because he was braking out at Eldon, Mo. Defendant testified that this man was an old schoolmate of both her husband and herself, and plaintiff did not deny this. When defendant offered to put a witness on the stand as to her character, the court said that her character was not in issue, and this was acquiesced in by all the parties. We think there is nothing in this complaint of plaintiff.

Another complaint of plaintiff is that they were renting housekeeping rooms of Mr. and Mrs. Farr, at Thirty-First and Baltimore streets, in Kansas City, Mo., and that when these people moved his wife wanted to move with them, and that he objected on account of the conduct of Mrs. Farr. The evidence is not very clear as to what conduct on the part of Mrs. Farr plaintiff complained of, but we take it that he means to testify that Mrs. Farr was having men callers in the absence of her husband. Mr. Farr was a fellow motorman of plaintiff. However, plaintiff testified that he objected to moving to the new location with the Farrs, and offered to buy a home, but that defendant said, "If they did not live with them, they would not live at all"; so he and his wife went to live with the Farrs over his objection. Defendant denied that he ever in any manner complained of the Farrs or objected to them, and plaintiff's testimony in reference to this matter was not corroborated.

Another contention of plaintiff is that his wife did not treat his people well when they visited them, and did not want his relatives around, and that she stated at one time when

mother on the stand. She was an old lady, 87 years of age, and from the country. She testified that she lived a long way from plaintiff and defendant, and very seldom visited plaintiff and his wife, but that she felt that she was not being treated with proper consideration, because defendant did not get up until 8 or 8:30 in the morning, or have breakfast until 9 or 9:30, so that she had to go to a restaurant and get her breakfast. And the old lady stated that when she had company she always wanted to give them something to eat. She would not state whether or not defendant treated her all right. A lady, who was apparently plaintiff's sister, was put on the stand by plaintiff, and was asked what defendant's attitude was toward her, and she answered, "Very well."

Plaintiff further testified that his wife was always "ding-donging him for money," and wanted his money. Defendant denied this. Another of plaintiff's complaints is that the night before he left his wife took a razor and threatened to kill him with it, and that he told her that the next time he got off from dinner early he would come home and talk things over with her, and see what they should do, and he came home the next day, but she was not at home. The neighbors said that she had gone down town, and he left without having any conference in reference to the matter. Some days before plaintiff left his wife he deposited $600 in her name and with her knowledge in a bank in Kansas City, Mo. After he left he went to Jefferson City, and defendant had him arrested for wife desertion, and he testified that in order to get out of jail and have her drop the case he had to pay her $1,000, but it is apparent that this $1,000, together with some other money, was paid under a separation agreement that was executed, settling between the parties all their property rights, wherein plaintiff agreed to pay his wife $1,725 in lieu of maintenance and any dower rights in his property, and they agreed to live separate and apart.

Plaintiff claimed that after he had left his wife that she went to his lodge and tried to get him "throwed out of the lodge," but he did not know what she told his lodge fellows. Defendant admitted that she complained to the lodge about plaintiff's alleged mistreatment of her. Defendant denied that she had threatened plaintiff in any way, and she denied having mistreated his family. However, she testified that her relations with plaintiff were of the best until the May 27th prior to August 1, 1914, when plaintiff left her; that on the former day she was on a street car, and one of plaintiff's fellow motormen gave her information that plaintiff had gone to a certain hotel with a waitress. Defendant immediately repaired to this hotel and saw 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 uponthat 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 when she asked him where he had been he replied "that it was none of her business." She testified that she had seen plaintiff and the waitress together twice; once at the hotel, and another time at the end of the car line. Defendant testified that she continually requested her husband to leave the waitress alone, and would cry all night about it, and finally a few days before her husband left he signed a note addressed to the waitress confessing his relations with her. The note is as follows:

"August 3, 1914. I have confessed all to my wife, so don't keep nothing from her. And please come to me. F. A. McKinney."

Mr. Farr, whom we do not understand plaintiff attacks in any way, testified on behalf of defendant that Mrs. McKinney was a fine housekeeper, and was neat and clean in appearance, and that the relation between plaintiff and his wife was good until they had the trouble over the waitress. He stated that he heard them discussing the matter, and that he was kept awake at night by their talk. When asked if plaintiff ever admitted his connection with the waitress, witness answered, "No, he never came right out and admitted it, nor he didn't deny it." He also stated that he heard defendant tell plaintiff that if the latter would quit the 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 had his signature on it, and wrote this alleged confession above the signature. He admitted on the witness stand that his name was signed in the middle of a blank sheet of paper, and that there was no other writing on this page of the letter when the letter was placed on the dresser. He testified that he was not in the habit of signing his name on a page of a letter that had no other writing on it, but that he sometimes did it. Defendant testified that when her husband signed this alleged confession she took the note to the waitress; that she was desirous of getting her husband and the waitress together and have them both admit their guilt, and have her husband tell the waitress that

he would have nothing more to do with the latter, and in that way effect a reconciliation between her husband and herself. She testified that she took it to the waitress, and the latter said that if plaintiff and she wanted to run away together it was their busi

ness.

good woman; he knew that; but he did not say whether he would cut it out or not, I believe," and that plaintiff did not talk to the witness about his alleged relations with the other woman, and the witness did not talk to plaintiff further about it, because the witness said that plaintiff "didn't talk like that he thought it was any of my business, and I didn't talk to him any more." Mr. Farr testified that he remembered plaintiff being out all night on one occasion, as defendant was worried about it and looking for plaintiff.

Plaintiff denied having anything to do with the waitress. When asked if he was acquainted with her, he made the following

answer:

"I-I have met her husband very often. Are you acquainted with her? A. I have met Q. her on the cars; yes, sir. Q. How frequently have you met her? A. I don't know; I could not remember the times I met her."

When asked if that was the name of the woman that he and his wife had the trouble 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 that she never heard a word of trouble between plaintiff and defendant until "this 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

she would not tell him. When asked how many times his wife had talked to him about "this other woman," he answered:

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:

"Did you and your wife ever have any trouble about the woman that you were mixed up with?"

[2] There is nothing in plaintiff's contention that the abstract of the record proper should show that defendant excepted to the overruling of her motion for a new trial. And he answered: The bill of exceptions shows such an excep"Well, she might have accused me of some of tion, and it is in the latter place that all matthat things, but so far as I know I am not guilters of exceptions must appear. ty of it." (Italics ours.)

The judgment is reversed.

All concur.

RATLIFF v. MEXICO POWER CO.

(No. 12547.)

We think that regardless of the alleged confession, which we will discuss later, the preponderance of the evidence shows plaintiff's guilt. Defendant testified positively of having caught her husband and the waitress coming out of a hotel of bad repute, and of (Kansas City Court of Appeals. having found them together at the end of the car line on another occasion; that he 1. ELECTRICITY confessed his offense to her and boasted of

Farr, a witness whom plaintiff did not attack in any way, testified that he talked to plaintiff with reference to his relations with the waitress; that he overheard the quarrels between plaintiff and his wife wherein the wife accused plaintiff of having these improper relations, and that plaintiff never denied it. Plaintiff himself testified that although his wife had accused him, he never remembered of ever telling her that there was not another woman in his life. Although plaintiff at many places in his testimony denies having had anything to do with the waitress, his answer that "so far as I know I am not guilty of it" is hardly the definite denial that an innocent man would make when accused on the witness stand of such a serious charge.

The alleged confession bears some earmarks of not being genuine. It is the contention of plaintiff that defendant forged this alleged confession for the purpose of confronting the waitress with it in the hope of having her make some damaging admission in reference to the matter. The confession is dated August 3, 1914, when plaintiff left her August 1, 1914, and unless some mistake has been made in reference to the date, and there is no direct testimony as to this, it is hard to explain this discrepancy. On the other hand, it is not common for one in writing a letter to sign the letter in the middle of a blank sheet of paper, as plaintiff claims he did this alleged letter. We think the weight of the evidence shows plaintiff's guilt outside of any consideration of the "confession," but in view of all the evidence which corroborates the confession, we believe that it is established that he did write the note, and there is a strong inference that the discrepancy in the date was simply a mistake. [1] It is not necessary for us to decide whether plaintiff made out a case which would entitle him to a divorce, for the reason that it makes no difference how great defendant's guilt may have been, plaintiff did not show himself an innocent and injured

April 29, 1918.)

CARE REQUIRED.

Missouri.

14(2)-PERSONAL INJURY

One dealing with and transmitting a dangerous and deadly electric current, whenever reasonably chargeable with knowledge, or when the facts are such as to make it reasonably probable, that persons may lawfully come near its wires and be exposed to danger therefrom, must take every precaution accessible to obviate the danger of injury, and must use the utmost care to keep and maintain the wires so as to prevent injury. 2. ELECTRICITY 19(6)-PERSONAL INJURY NEGLIGENCE-QUESTION FOR JURY.

In an action by the widow of an employé in a city laundry who, while in the city's power house under permission of its superintendent, laundry employé while attempting to open the was killed when a laundry pipe held by another door of the power house came in contact with defendant's wires transmitting power to the power house and established a contact causing a fatal injury while deceased was lifting the latch to open the door, held, on the evidence, that defendant's negligence in not insulating its wires, etc., so as to prevent such contact was for the jury. 3. ELECTRICITY

-TRESPASSER.

15(1)—PERSONAL INJURY

In such case, deceased was rightfully in the power house under permission granted by the superintendent of the power house, and was not a trespasser at the time he was killed. 4. NEGLIGENCE 89(4) NEGLIGENCE OF FELLOW SERVANT-IMPUTED NEGLIGENCE. In such case, the negligence of deceased's fellow servant in establishing a contact with defendant's transmission wire could not be imputed to the deceased. 5. ELECTRICITY

16(7)-CONCURRENT NEG

LIGENCE-LIABILITY.

In such case, the negligence of deceased's fellow servant would not absolve defendant if its negligence concurred with that of the fellow servant in causing death.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Hattie L. Ratliff against the Mexico Power Company. Verdict and judgment for plaintiff, and defendant appeals. Reversed and cause remanded for a new trial.

McBaine & Clark, of Columbia, for appellant. Don. C. Carter, of Sturgeon, J. M. Johnson, of Kansas City, and Dan R. Hughes, of Macon, for respondent.