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We are persuaded the learned trial judge 18, 1911, aggregating $564.62 and enforced took a proper view of the case.

The judgment is affirmed. All concur.

the lien on the house and lot described in the petition, subject however to the deed of trust aforesaid. Three days later and at the same term, to wit, on October 11, 1912,

BADGER LUMBER CO. v. BOSWELL et al. defendants Boswell filed a motion to set aside the judgment against them. With said motion they filed a joint and several answer. On October 17, 1912, at the same term, they filed an amended motion to set aside the judgment against them, which motion was verified by the affidavit of J. W. Boswell for himself and as agent for Lela Boswell. On the 19th of October, 1912, plaintiff filed a number of affidavits in opposition to the motion, and the matter went over until the December, 1912, term, to wit, January 25, 1913. By this time the term of Judge Powell, who rendered the judgment, had expired and he had been succeeded on the bench by Judge Stone.

When the motion came on to be heard, plaintiff objected to the consideration of the motion on the ground that the motion did not set up good or sufficient cause for setting aside the judgment nor did it show

that defendants had a meritorious defense. This objection was overruled, and the court sustained the motion and set the judgment aside. Plaintiff has appealed.

Under the ruling announced by the Supreme Court in the case of Bussiere's Adm'r v. Sayman, 165 S. W. 796, no appeal lies from an order vacating a final default judgment. This appeal is therefore dismissed. The other Judges concur.

(No. 10985.)

(Kansas City Court of Appeals. Missouri.
May 18, 1914.)
APPEAL AND Error (§ 82*)-ORDERS APPEAL
ABLE- - VACATING FINAL DEFAULT JUDG-

MENT.

No appeal lies from an order vacating a final default judgment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 379-385, 414, 416, 478, 479, 482, 483, 517-522; Dec. Dig. § 82.*]

Appeal from Circuit Court, Jackson County; W. A. Powell, Judge.

Action by the Badger Lumber Company, a corporation, against Lela Boswell and others. From an order vacating a default judgment, plaintiff appeals. Appeal dismissed.

Botsford, Deatherage & Creason, of Kansas City, for appellant. Moore & Creel, of Kansas City, for respondents.

TRIMBLE, J. Plaintiff appeals from an order of the circuit court setting aside a Judgment rendered after hearing the plaintiff's evidence, but in which defendants Boswell made default. The suit was instituted February 3, 1912, to enforce a mechanic's lien against a house and lot alleged to be owned by defendants Lela Boswell and J. W. Boswell, for lumber sold by plaintiff and used in the erection of the house. Summons was issued returnable to the March term,

1912, and the same was duly served upon BADGER LUMBER CO. v. BOSWELL et al.

defendants in time to require them to plead at that term. The suit was against Lela Boswell, J. W. Boswell, her husband, Redlon Land Company, and A. N. Gossett, trustee. The two last-named defendants were respectively beneficiary and trustee in a deed of trust given by the Boswells on the land in question. As the judgment which was set aside found that this deed of trust was su

1912.

perior to plaintiff's lien, the rights of said trustee and beneficiary are not involved and they are not complaining. The Boswells were in default at the March term, 1912, and remained so throughout the June term, At the September term, to wit, on October 8, 1912, the defendants Boswell being still in default, plaintiff appeared and announced ready. Neither of the defendants Boswell appeared, though the trustee and beneficiary in the deed of trust did. They had previously filed an answer consisting of a general denial and allegations setting up the superiority of their deed of trust. Plaintiff waived a jury and submitted its evidence in support of its lien, and the court rendered a personal judgment against Lela Boswell and J. W. Boswell for a balance of $518 due on said account with interest from October

TRIMBLE, J. This case is between the same parties, arises under the same facts, and is in every way similar to case No. 10985 (167 S. W. 1141), having the same title. The lien sought to be enforced on this suit was on another house built on a lot adjoining the one in the other case. A final judgment by default having been rendered against the de

(No. 10983.) (Kansas City Court of Appeals. Missouri. May 18, 1914.) APPEAL AND ERROR (§ 82*)-ORDERS APPEALABLE- - VACATING FINAL DEFAULT JUDG

MENT.

No appeal lies from an order vacating a final judgment by default.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 379-385, 414, 416, 478,

479, 482, 483, 517-522; Dec. Dig. § 82.*1'

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by the Badger Lumber Company, a corporation, against Lela Boswell and others. From an order vacating a default judgment, plaintiff appeals. Appeal dismissed.

Botsford, Deatherage & Creason, of Kansas City, for appellant. Moore & Creel, of Kansas City, for respondents.

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EISENMAN v. GRIFFITH. (No. 11144.)
(Kansas City Court of Appeals. Missouri.
May 18, 1914. Rehearing Denied
June 13, 1914.)

1. APPEAL AND ERROR (§ 1078*)-BRIEFS—
CONTENTS-POINTS AND AUTHORITIES.

Instructions not complained of in appellant's points of error will not be reviewed, particularly where appellant did not include them in his abstract, and they were supplied by respondent.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. 8 1078.*]

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2. MUNICIPAL CORPORATIONS (8 705*)-INJURIES TO PERSONS ON STREETS-DUTY OF

DRIVER OF AUTOMOBILE.

It is the duty of the driver of a motor car to keep a lookout in the direction his car is going and turning, so as to avoid others on the street.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517 Dec. Dig. § 705.*]

3. MUNICIPAL CORPORATIONS (§ 705*) STREETS INJURIES TO PERSONS ON STREET. Where the driver of an automobile sees a pedestrian in peril, he must take all reasonable measures to avoid running him down.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]

4. APPEAL AND ERROR (§ 1106*)-NEW TRIAL (§ 26*)-PLEADING AND PROOF-VARIANCE FAILURE TO OBJECT.

Where the petition stated plaintiff's name as "Gerard," and the evidence showed it to be "Gerald," the variance, when not complained of before motion for new trial, is not fatal, and, even after appeal by defendant, the judgment will not be reversed therefor, but the case will be remanded for amendment in accordance with Rev. St. 1909, § 1848, providing that the court may at any time, in the furtherance of justice, allow the amendment of pleadings to correct mistakes in the names of the parties.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4386-4398, 4585; Dec. Dig. § 1106;* New Trial, Cent. Dig. §§ 37-39; Dec. Dig. § 26.*]

5. INFANTS (§ 80*)-ACTIONS-APPLICATION FOR NEXT FRIEND.

Where an infant's grandfather had had entire custody of him from birth, the fact that the grandfather's application for appointment as next friend, in an action for personal injuries received by the infant, stated he was the infant's father is immaterial.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 210-221; Dec. Dig. § 80.*]

fered to compromise, while erroneous, will not warrant reversal, where defendant had no defense, and the question was not answered.

[Ed. Note.-For other cases, see Appeal and 4160; Dec. Dig. § 1048.*] Error, Cent. Dig. 88 4140-4145, 4151, 4158

6. APPEAL AND ERROR (§ 1048*)-REVIEWHARMLESS ERROR.

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ELLISON, P. J. Plaintiff is a minor, and this action is brought through his next friend for personal injury received by being run over by defendant's automobile. The judgment was for the plaintiff.

The action is based on the humanitarian doctrine, thereby conceding plaintiff's negligence, notwithstanding he was a small newsboy 12 years old. The place where the injury occurred was in the street at Eighteenth and Troost avenue, Kansas City. The latter street runs north and south, and the former east and west, and each have street car tracks. Plaintiff was standing on the southwest corner of the streets, and defendant's automobile, driven by a negro chauffeur in his employ, was coming along Troost avenue approaching Eighteenth street from the south at a speed of from 15 to 20 miles an hour, intending to turn west into Eighteenth street. Plaintiff saw a west-bound street car approaching on Eighteenth from the east. He was selling papers, and wished to get aboard that car, and started in a walk diagonally across to the northeast corner. When he reached the crossing of the street railway tracks, slightly north of the Eighteenth street track, he was struck by the automobile with such force as to carry him along 10 or 12 feet, permanently injuring him. The immediate cause of being struck was the chauffeur suddenly turning diagonally to the west to go into Eighteenth street just as he was crossing the Eighteenth street track. He gave no warning of his approach, and did not stop the machine until he had struck plaintiff, when it was brought to a standstill with a front wheel on plaintiff's breast. There was a clear view, nothing to prevent plaintiff's position being seen by any one attending to his duty, and the only reasonable way to account for striking the boy is that the chauffeur had his head turned looking at something to the east while his machine was entering Eighteenth street and making the turn to the west.

[1] Defendant offered no evidence in his own behalf, and what we have stated is what the evidence in plaintiff's favor tends to

In a personal injury action by one run down by defendant's automobile, the propounding of a question whether defendant had of- and that was not objected to in the motion

show. Plaintiff asked but one instruction,

for new trial. Defendant asked for four,, would feel justified in reversing the judg but these are not contained in his abstract. ment. But, as the question was not answerPlaintiff has been liberal enough to supply ed, and as, in this case, it has not worked them by an additional abstract, but since any injury, we think it would not be proper defendant does not complain in his points of to do so. In this view we have the support error, we pass them by. of the Springfield Court of Appeals in Tuck v. Traction Co., 140 Mo. App. 335, 342, 124 S. W. 1079.

So, while we think the cause was well tried, and while we affirm the action of the trial court, we will remand the cause that the Christian name may be changed by amendment. Sections 1848, 1851, R. S. 1909 All concur.

[2, 3] The demurrer to the evidence could not have been sustained by the court with the slightest degree of propriety. If the testimony in plaintiff's behalf be admitted to be true, undoubtedly a case was made for the jury. It was the duty of the driver of the car to keep a lookout in the direction his car was going and turning. He then would have seen the boy, and it would have been his duty to immediately take all reasonable measures to avoid him. Kinlen v. Ry. Co., 216 Mo. 145, 160, 115 S. W. 523. If he had been looking he could have stopped in time; for the evidence shows he actually did stop within the space of a few feet, in this respect fully answering defendant's objection that it was not shown in what space the machine could have been stopped.

But it is insisted that it was not shown the chauffeur was in defendant's employ, and, if in his employ, that it was not shown he was acting in the service of defendant, or in the scope of his employment. We recently discussed the latter question in Whimster v. Holmes, 164 S. W. 236 (not yet officially reported). In this case there was sufficient evidence, with reasonable inferences, to justi-County; Arch B. Davis, Judge.

fy a finding that he was in the scope of his service to defendant.

[4] It is insisted that the judgment should be reversed, because the petition states plaintiff's Christian name as "Gerard," when it appeared in evidence as "Gerald." When this appeared incidentally in the course of the testimony of plaintiff himself, no objection was made; nor was any attention paid to the discrepancy until the motion for new trial was filed. We think defendant's authorities on this point as to the fatal character of such objection on orders of publication are not applicable. It is a matter which can be cured by amendment.

[5] It seems that the application for appointment of next friend for plaintiff was made by his grandfather, but the application states he is the father. Whether this was an inadvertence or clerical error need not be answered. The grandfather had acted as his father, had had entire care and custody of him from birth, and we cannot see where the discrepancy could work any possible harm to defendant. The objection on this head is without merit.

STOCKTON v. JOHN AINSFIELD CO.
(No. 11120.)
(Kansas City Court of Appeals. Missouri.
May 18, 1914.)

MASTER AND SERVANT (§ 30*)-CONTRACT OF
EMPLOYMENT-BREACH OF DUTY.

Where plaintiff was employed as defendant's traveling salesman, the fact that in his travels he also sold another line of goods for other persons in competition with defendant did not constitute a breach of duty; it being shown that the two lines were not of the same class, and that one of defendant's officials recommended one or more houses which plaintiff might serve

that way.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*] Appeal from Circuit Court, Livingston

[6] We find no objection to the petition available after verdict. We come to the only objection made in the case which given

Action by A. F. Stockton against the John Ainsfield Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Scott J. Miller, of Chillicothe, for appellant. Frank Sheetz and S. L. Sheetz, both of Chillicothe, for respondent.

ELLISON, P. J. This action is to recover $300 alleged to be due plaintiff, on account of employment as a salesman for defendant. The case was tried without a jury, and the finding and judgment were for the plaintiff.

We do not see how we can heed defendant's request to reverse this judgment. The whole case turns on the belief of the testimony of the witnesses. We must accept plaintiff's testimony as the facts in the case. From that it appears he was employed by defendant, who resides in Ohio, as a traveling salesman to sell its goods to merchants in Missouri. He acted under that employment for several years, at first for $1,500, and afterwards for $1,800, per year and expenses, payable monthly. The chief defense is that while engaged in defendant's service he carried and sold other goods for other persons in competition with defendants. That, standing alone, would be a breach of his duty as defendant's employé which would debar him of a right to recover his present claim. But, if the testimony which he gave for himself is true, the apparent wrong is clearly explained away. It seems to be recognized that a

us any concern, and that is plaintiff's counsel was guilty of misconduct in asking a witness if the defendant had talked to him about compromising the case. If we could see that defendant's defense had the least merit, we

BILITY-NEGLIGENCE.

traveling salesman for a better class of | 3. BAILMENT (§ 31*)-Loss OF PROPERTY-LIAgoods will be more successful if he can supply his trade with a cheaper class. The merchant to whom he sells will thus be enabled to meet the tastes and necessities of the purchasing consumers. Plaintiff, with other salesmen, made this known to defendant, and it was with its knowledge and consent that he sometimes carried other lines. He testified that one of defendant's officials recommended one or more houses whom he should serve in that way. The hypothesis of defendant's knowledge and consent was submitted in three declarations of law asked by it and given by the court, and we consider the finding determined the fact in plaintiff's

favor.

Defendant sought by declaration No. 8, refused by the court, to make of plaintiff's petition an action on quantum meruit. No objection was made to the petition before or at the trial, and it should not be taken by way of an instruction. But, considering the declaration as it was perhaps intended, it required plaintiff to show that "he did perform labor" and "did travel" during all of the two months for which he sues, and did sell or attempt to sell goods. This was in the face of plaintiff's testimony that he did not, and was not expected to, in the months mentioned. To have given it would have been to cut out a part of plaintiff's case.

Defendant asked a declaration at the close of the testimony, in the nature of a demurrer to the evidence, and this will cover an additional point made in avoidance of the judgment, viz., that plaintiff was discharged during the course of the first of the two months in dispute, and that he accepted or acquiesced in that act of defendants. We have ex

amined the evidence on that head, and find it does not establish defendant's claim as a matter of law.

We have no right to interfere with the judgment, and it is affirmed. All concur.

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of the property satisfies the burden of proving A bailor suing a bailee for hire for the loss the bailee's negligence when he proves the fact of the bailment and the failure or refusal of the bailee to return the property on timely demand, and the bailee, to escape liability, must excuse his failure to deliver by proving that the loss was due to a cause consistent with the exercise of reasonable care.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31.*] 4. BAILMENT (§ 33*)-LosS OF PROPERTY— NEGLIGENCE-QUESTION FOR JURY.

Whether a bailee for hire excused a loss of the property by proving that the loss was due to burglary and theft held, under the evidence, for the jury.

[Ed. Note. For other cases, see Bailment, Cent. Dig. § 56; Dec. Dig. § 33.*]

Appeal from

Circuit Court, Jackson County; James H. Slover, Judge.

Action by W. D. Corbin against the Gentry & Forsythe Cleaning & Dyeing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Langsdale & Howell, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

JOHNSON, J. This suit originated in a justice court upon a statement which alleged that:

"Plaintiff delivered to defendant a suit of clothes, the property of this plaintiff, of the value of eighty-five dollars ($85.00), for the purpose of being cleaned and pressed by defendant, which said suit defendant agreed to return to plaintiff when said work was completed; that defendant received said suit upon the agreement and for the purpose aforesaid, but has failed to perform said agreement on its part, and so carelessly and negligently kept said suit that while it was in the possession of defendant for the purpose as aforesaid it was lost, destroyed or stolen, to plaintiff's damage in the sum of eighty-five dollars."

A trial in the circuit court resulted in a

verdict and judgment for plaintiff, and defendant appealed.

Plaintiff proved at the trial that he delivered the suit to defendant for cleaning and pressing, and that defendant failed to return it, and attempted to excuse its failure on the ground that a burglar had entered the shop and stolen the suit.

Defendant admitted the bailment and the loss of the property, and introduced evidence tending to show that a burglar had entered the shop one night through a closet window and had stolen the suit and other articles of clothing. The employé of defendant who closed the store the night of the theft testified to having locked the doors and windows. The examination of the premises which immediately followed the discovery of the loss disclosed that the lock of one of the windows was broken and that the window had been pried open.

The only instruction given at the request of plaintiff was on the measure of damages.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31.*]

On behalf of defendant the jury were in- bailee) to show that it was occasioned by some structed: act which is recognized as an exemption.' Levi v. Railroad, supra.

"That, if you find and believe from the evidence that the suit of clothes mentioned in the evidence was stolen from defendant while in the custody of defendant, your verdict must be for the defendant, unless you further find that said suit was stolen through some act or acts of negligence or carelessness on the part of the defendant or its agent or agents."

Before this instruction was asked the court refused to give a demurrer to the evidence, and this ruling is assigned as the principal error committed against defendant at the

trial.

[1-3] The duty defendant owed plaintiff was that of a bailee for hire. The gist of a cause of action inuring to a bailor for the inadvertent loss of the property during the bailment is negligence of the bailee, and in an action for such loss the burden is on the plaintiff to show that such negligence was the cause of the loss. But to satisfy this burden plaintiff was required only to plead and prove the fact of a bailment and the failure or refusal of defendant to return the property on proper and timely demand. He was not required to plead and prove specific acts of negligence in order to make out a prima facie case, and the mere allegation of negligence in his statement did not add another element to the cause he was required to prove. As is said in Freeman v. Foreman, 141 Mo. App. loc. cit. 364, 125 S. W. 524:

*

"There is one rule, however, which, in a proper case for its application, practically places the plaintiff * in a bailment case upon the same footing, as far as proof is concerned, as he who brings an ordinary action upon a bailment contract without any allegation of negligence, and that is that in all negligence cases where the charge of negligence is a general one, and the plaintiff can show that the loss or injury occurred under such circumstances that it may be reasonably inferred from the fact that injury did occur, that if ordinary care had been used by the party charged the injury would not have resulted, he thereby makes a prima facie case, and casts upon the defendant the burden of showing that he exercised that degree of care which, under the law, it was his duty to exercise in the particular case. This doctrine, known in legal parlance as res ipsa loquitur, is now a familiar rule of practice in the trial of negligence cases."

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Since the bailor is generally at a disadvantage in obtaining accurate information of the cause of the loss or damage, the law considers he makes out a case for the application of the rule of res ipsa loquitur by proof of the bailment and the failure of the bailee to deliver the property on proper demand. Levi v. Railroad, 157 Mo. App. loc. cit. 543, 138 S. W. 699, and cases cited. With the prima facie case conceded, the burden devolved on defendant to excuse its failure to deliver the property by proof that the loss was due to a cause consistent with the exercise of reasonable care.

[4] The evidence that the loss was due to burglary and theft tended to exonerate defendant, but was of no greater evidentiary force than was required to raise an issue of fact for the jury. We find the evidence as a whole supports a reasonable inference that the loss was not due to the excusatory cause assigned by defendant, and further that, if the property was stolen by a burglar, the theft was a natural consequence of negligence of defendant in conducting its business. The demurrer to the evidence was properly overruled.

The objection to the action of the court in refusing an instruction asked by defendant on the burden of proof is decided against defendant, on authority of the rule applied in Price v. Railway Co., 220 Mo. loc. cit. 463, 119 S. W. 932, 132 Am. St. Rep. 588.

The judgment is affirmed. All concur.

LEMON v. SHEPHERD et al. (No. 11042.) (Kansas City Court of Appeals. Missouri.

May 4, 1914. Rehearing Denied
June 1, 1914.)

1. MUNICIPAL CORPORATIONS (§ 330*)-ASSESSMENT FOR PUBLIC IMPROVEMENTS - ADVERTISEMENT FOR BIDS STATUTE AND ORDINANCE PROVISIONS.

Rev. St. 1909, § 9241, requires the construction of sewers on petition of dimensions and materials prescribed by ordinance. Section 9254 provides that, before the council shall contract for constructing sewers, an estimate of the cost shall be made by the city engineer, which shall be the maximum contract price therefor, and section 9255 provides that a contract for the improvement of a public street at the cost of abutting owners shall not be let without at least one week's advertisement for bids, or to other than the lowest and best bidder. An ordinance authorizing the construction of a sewer provided that the contract should be let to the lowest and best bidder as in such case provided by statute, and instructed the city clerk to advertise for bids, and, though no advertisement was made, the council ordered a journal entry that, in response to public notice for bids, it had received a bid, found it to be the lowest and best bid, and had awarded the contract to the bidder. Held that, although the statute was silent as to advertisement for bids for sewer construction, yet, as the ordinance provision therefor was within the statutory method of performing such work and a lawful exercise of award the contract to the lowest and best bidmunicipal authority, the city was bound to der, and that, on failure to do so, an assessment for construction was invalid.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 854, 855; Dec. Dig. § 330.*]

2. MUNICIPAL CORPORATIONS (§ 289*)-PUBLIC IMPROVEMENTS-STATUTORY PROVISIONS

-ORDINANCES.

A city council cannot, by ordinance or otherwise, bind itself to do more than the statute requires, and, where it proceeds as directed by statute, it is within its jurisdiction, even though it may not proceed in accordance with its own ordinance, since it was not intended that a city

"When the loss of the goods is established, the burden of proof devolves upon the carrier (the

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