(213 S.W.) to the same point to which we have cited it] in this opinion, and about which we quite agree with respondents' counsel, while Prior V. Construction Co. is cited only in support of counsel's statement that joint district sewers and district sewers are different things. They are, but that fact in no wise affects the questions in issue here. For the reasons stated, the record in the case of Boatmen's Bank v. Semple Place Realty Co. et al., 213 S. W. 900, now before us, should be quashed. It is so ordered. Charles W. Bates, T. E. Francis, Alva W. Hurt, and Chauncey H. Clarke, all of St. Louis, for appellant. Arthur E. Simpson and B. J. Goldfarb, both of St. Louis, for respondent. BECKER, J. This is an action by plaintiff, a widow, for damages alleged to have been sustained by her on account of personal injuries received by her minor son, resulting from an alleged assault made upon him by a street car conductor while in the employ of the defendant. Upon a trial to a jury plaintiff obtained a verdict for $500 actual and $100 punitive damages. Thereafter plaintiff voluntarily remitted the $100 assessed as punitive damages, and defendant THOMPSON v. UNITED RYS. CO. OF ST. prosecutes this appeal from the judgment LOUIS. (No. 15835.) (St. Louis Court of Appeals. Missouri. Feb. 3, 1920.) rendered against it for the remaining $500. According to plaintiff's own testimony, she actually paid out for medicine $12 to $14, and became liable for $60 for services of a physi 1. DAMAGES 101-REASONABLE VALUE OF cian rendered the boy. Plaintiff further tes NURSING SERVICES AND NOT WAGES FOR TIME The value of the services of a husband nursing his wife, or of a father or mother, a widow, nursing his or her child, is determined solely with reference to value as nursing for recovery against the person whose negligence rendered the nursing necessary, which is the rule though other employment is relinquished by the husband, father, or mother who thus waits upon the injured party, the amount of wages that would have been earned for the period of nursing not being recoverable. tified that she devoted 10 weeks of her time to nursing her son, and that since the first 10 weeks she had been nursing the boy two or three nights of the week. There is no testimony in the record as to the reasonable value of plaintiff's services rendered to her son in the capacity of nurse, though plaintiff herself testified that prior to the date upon which her son met with his injuries she had been working as a laundress and earning $9 per week. It is assigned as error that the instruction on the measure of damages directed the jury that if they found for plaintiff they should include among the items recoverable the "reasonable value of the time, if any, necessarily spent by the plaintiff in nursing her said son during the time he was suffering, if you find he did so suffer, from said injury." It is contended that the proper measure of damage for this item is the reasonable value of the services that plaintiff rendered as and in the capacity of nurse, and that plaintiff could not recover the amount of wages that plaintiff had lost by reason of the time away from her work while acting as nurse for her son. We note at the outset that it is conceded by learned counsel for respondent, plaintiff below, that the part of the instruction on the measure of damages quoted above was intended to permit plaintiff to recover the amount of the wages that she would have earned had she remained at work as a laundress for the period of time that she devoted to nursing Appeal from St. Louis Circuit Court; Wil- her son. liam T. Jones, Judge. Action by Jennie Thompson against the United Railways Company of St. Louis. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded. [1] While a reading of the cases in this state in which the rule of law applicable to the point here in question is discussed shows that there has been a divergence of opinion with reference thereto, the rule of law which has finally been adopted is that the value of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Esque Case, supra, should not be followed. and the same is hereby overruled. See cases cited, supra, in support of the rule laid down herein. And as to the Bruce Case, supra, wherein the Esque Case is adverted to with approval on the point here under discussion, it is clear unnecessary to a decision of the point under consideration, but in so far as it may seemingly approve of the rule as laid down in the Esque Case it is hereby disapproved. the services of a husband nursing his wife, or of a father or mother (where she is a widow) nursing his or her child, is determined solely with reference to its value as nursing. In other words, the usual measure of damage for such service is the reasonable value of such nursing as by a person of ordinary and untrained skill, and this is the rule thoughly obiter dicta. The language employed was other employment is relinquished by the one who thus waits upon the injured party. Macdonald v. St. Louis Transit Co., 108 Mo. App. 374, 83 S. W. 1001; Smith v. City of St. Joseph, 55 Mo. 456, 17 Am. Rep. 660; Kirkpatrick v. St. Ry. Co., 129 Mo. App. 524, loc. cit. 527, 528, 107 S. W. 1025. See, also, Woodward Iron Co. v. Curl, 153 Ala. 205, 44 South. 974; Barnes v. Keene, 132 N. Y. 13, 29 N. E. 1090; Salida v. McKinna, 16 Colo. 523, 27 Pac. 810; Western Union Tel. Co. v. Morris, 10 Kan. App. 61, 61 Pac. 972; Walker v. City of Pennsylvania, 195 Pa. 168, 45 Atl. 657, 78 Am. St. Rep. 801; Brosnan v. Sweetser, 127 Ind. 1, 26 N. E. 555. The respondent cites the case of Esque v. United Railways Co., 174 Mo. App. 317, 157 S. W. 1061, and the case of Bruce v. United Railways Co., 175 Mo. App. 568, 158 S. W. 102, as authority for authorizing the jury to assess, as part of plaintiff's damages, the amount of the wages that she would have earned had she remained at work as a laundress for the period of time that she devoted to nursing her son. It would seem that the rule as laid down in the Esque Case, supra, would support this contention of respondent. But the question that was really before the court, and to which it was addressing itself, was that the instruction there criticized is erroneous, in that it allowed the jury to assess, as an item of damage recoverable on the part of the plaintiff, the value of the husband's services for nursing his wife, when there was no evidence adduced as to the value of such services on the part of the husband. Therefore in the Esque Case the judgment was properly reversed and the cause remanded; however, the rule as therein stated on the proposition under discussion in the instant case is not the law. If such were the law, a man whose salary is $50,000 a year could, in a case such as the one at bar, undertake and do the nursing of his son, and be entitled to recover as one of the items of his direct damage the value of his time put in while nursing his son, measured at the rate of $50,000 per year for the full period of time that he remained away from his regular vocation and devoted himself to such nursing, and this though a professional nurse could have been obtained to render the same services for a sum which in comparison would be insignificant. Such a rule would sanction a plaintiff in voluntarily enhancing his damages instead of minimizing them. The rule as stated in the So in light of the rule as we have stated it above, while plaintiff was entitled to recover for the reasonable value of her services in attending and nursing her son, the value of such services must be determined solely with reference to the value of such services as a nurse, and not for the reasonable value of the time which she may have lost from her business predicated upon the wages she would have earned in that capacity during such time. [2] For this error alone the case would have to be reversed, but there is further error to be noted, namely, that, even though the instruction had been properly framed, there was no testimony adduced on behalf of the plaintiff showing the reasonable value of her services as a nurse. And whereas it was ruled in Murray v. Railway Co., 101 Mo. 236, 13 S. W. 817, 20 Am. St. Rep. 601, that evidence was not necessary as to the value of services for nursing, in that "the jury could tell from the length of time plaintiff was in bed, and from their own knowledge as to the value of such services, what they were worth," yet in the case of Cobb v. Railway Co., 149 Mo. 609, loc. cit. 630, 50 S. W. 894, the Supreme Court ruled that the Murray Case was not well considered, and that it should not be followed, and in the course of their opinion state that they were "unable to see why evidence is any more necessary as to the value of physician's services than as to those of nurses, nor how a jury could any better, without evidence, determine the value of the latter than that of the former." [3] It is further assigned as error that the verdict is excessive. This point is well taken even if we were to accept the contention of learned counsel for respondent (which we cannot do) that the proper measure of damages for the nursing was the value of the loss of plaintiff's time as a laundress for the period of 10 weeks, in which she nursed the boy, and three nights a week after that time up to the date of the trial; for even then the aggregate sum would total but $363, whereas the verdict was for $500. For the errors above noted the judgment is hereby reversed, and the cause remanded. REYNOLDS, P. J., and ALLEN, J., concur. (218 S.W.) MCCULLAM v. MERMOD, JACCARD & the individual debt of the said S. M. Masters. The Masters Lumber Company later (St. Louis Court of Appeals. Missouri. Feb. 3, went into bankruptcy, and the respondent, as 1920.) 1. BILLS AND NOTES 341-INDORSEE OF The indorsee of a check drawn by the president of a corporation to himself as an individual is not a holder in due course, within Rev. St. 1909, § 10022; such check not being regular on its face, as required by said section. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Holder in Due Course.] Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge. "Not to be officially published." Action by Fontaine McCullam, trustee in bankruptcy of the Masters Lumber Company, against the Mermod, Jaccard & King Jewelry Company. From a judgment for plaintiff, defendant appeals. Affirmed. McLaran & Garesche and E. H. Wayman, both of St. Louis, for appellant. Frumberg & Russell, of St. Louis, for respondent. trustee, brought suit to recover of the appel- From the agreed statement of facts, in addition to what we have already set out above, it appears that, on the date that Masters gave the defendant the check of the corporation, the said corporation was not indebted to the defendant in any sum, and further that the defendant "had no actual knowledge as to the solvency or insolvency of the Masters Lumber Company, or of the state of the account between S. M. Masters and the Masters Lumber Company on the 21st day of January, 1913, and did not know the manner in which the Masters Lumber Company paid the salary of S. M. Masters, and accepted said check in payment of the individual indebtedness of said Masters, without any actual notice of the want of authority of said S. M. Masters to sign, indorse, or deliver said check, except as appeared upon the face of said check and indorsements." (Italics ours.) Appellant's sole contention is that the judgment should be reversed on the ground that it appears from the statement of facts that it was a bona fide holder in due course for value of the check in controversy, and that, short of actual notice on the part of the defendant being shown of facts which would be sufficient to impeach the validity of the paper, plaintiff is not entitled to re "the parties whose names appeared thereon had become parties thereto for value (section 9995, BECKER, J. On January 21, 1913, S. M. Revised Statutes of Missouri 1909), and the Masters, as president of the Masters Lum- when it canceled the debt of S. M. Masters in Mermod, Jaccard & King Jewelry Company, ber Company, a corporation, being indebted consideration of the indorsement of the check to to the appellant in the sum of $162, made it, gave value for the check (section 9996, Reout a check in the name of the Masters Lum-vised Statutes of Missouri 1909), and became ber Company, which check was signed by holder for value as to all parties to the check him as president of said company, and made payable to himself individually, in the sum of $162, indorsed said check individually, and tendered it in payment to the appellant of his said individual indebtedness to it. The appellant accepted the check so indorsed, and in consideration thereof canceled who became such prior to that time (section 9997, Revised Statutes of Missouri 1909)," and that, even if "there was no consideration for the only burden which the law casts upon the deissuance of this check to S. M. Masters, the fendant is to show that it became the holder in due course for value (section 10029, Revised Statutes of Missouri 1909), and this burden is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes clearly discharged by the agreement of the parties upon the facts in the case," and "having become a holder in due course for value, whether or not there was any consideration for the check between the original parties is immaterial; in fact, the door to inquiry as to consideration or lack of it is absolutely closed." In light of the authorities in this state we are unable to accede to this view of the law as contended for by appellant. Section 10022, Revised Statutes of Missouri 1909, relating to negotiable instruments, defines a holder in due course as follows: "Holder in Due Course.-A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it." (Italics ours.) [1-3] Under a long line of authorities in this state the check in question is not "regular upon its face," and the instrument itself, namely, the check, bears upon its face facts which of themselves impart notice of an infirmity therein, for the check shows on its face that it was drawn by S. M. Masters acting on behalf of the corporation to S. M. Masters as an individual. It thus appears that the execution of the check, its indorsement and delivery, were all the work of S. M. Masters who was profiting by the transaction. The check therefor shows it was Nothing short of a subsequent confirmation of them by officers properly representing the bank could give to them any force or validity whatever." And in St. Charles Sav. Bank v. Edwards, 243 Mo. 553, loc. cit. 564, 147 S. W. 978, 981, it was held that "The controlling fact in each case is the acceptance of the paper by the creditor in payment of the individual debt of the cashier. The fact that the checks were payable directly to the creditor does not distinguish the cases; nor does the difference in the form of the contract one a certificate of deposit, and the other a check-have that effect. The cases cited in the foregoing opinion [Lee v. Smith, supra] fully sustain the text and are in point here." [4] It appearing from the agreed statement of facts that the Masters Lumber Company was not indebted to the defendant and that the said S. M. Masters was paying his individual debt to the defendant by means of a check of the Masters Lumber Company, drawn by himself as its president, made payable to himself, such check carries upon its face notice of its "irregular and illegal character" (St. Louis Charcoal Co. v. Lewis, 154 Mo. App. 548, 136 S. W. 716; McCullam 199 S. W. 417), and the burden of proof was v. Buckingham Hotel Co., 198 Mo. App. 107, the check was duly authorized or that the therefore upon the defendant to show that corporation had received full value therefor (St. Louis Charcoal Co. v. Lewis, supra, and cases therein cited), which burden under the agreed statement of facts, we must rule the defendant has entirely failed to carry. In no view of the case can we hold that drawn in violation of the rules of agency. defendant is a bona fide holder for value of No authority, either general or special, is shown in said Masters to draw checks in the the check in controversy, and the fact that name of the corporation for his individual able to Masters himself as payee, and not in the instant case the check was made paybenefit, and no such authority can be pre- directly to the defendant as payee, does not sumed. And absent some specific authority, take it out of the general law applicable to said Masters could not draw a check of the this character of cases; for, as we have outsaid corporation in favor of himself, "with-lined above, the defendant knew that the out representing both sides to the transaction, thus perfecting a contract through only one consenting mind, a thing positively forbidden to agents and trustees in every de partment of agency and trust. The law will not permit an agent's private interest to come between himself and his principal. Its actual presence always disables the agent from binding his principal in the transaction." Lee v. Smith, 84 Mo. 304, loc. cit. 310 (54 Am. Rep. 101). And in the case last quoted from we find the court held: "Therefore these certificates were presumptively void upon their face, a fact which must have been apparent to Mr. Lee, or any one else, inspecting them. The plaintiff, on accepting them, could not maintain that he was a bona fide holder without notice of the cashier's want of authority to bind the bank in issuing them. No implied authority in the cashier could arise from the general course of business in the bank. said Masters was paying his individual obligation to the defendant, and that the Masit, and the defendant had the knowledge of ters Lumber Company was not indebted to the check itself, namely, that it was a corthe fact which appeared from the face of dent thereof, made payable to himself. poration check drawn by Masters as presi not showing any authority in said Masters to It follows the agreed statement of facts draw the corporation checks payable to himself individually, nor showing any ratification on the part of the corporation of such act on the part of said Masters, and it further appearing that the check was used to pay the individual debt of said Masters to said defendant, the Masters Lumber Company not being indebted to it, that the plaintiff is entitled to recover. Kitchens v. Commission Co., 105 Mo. App. 463, 79 S. W. 1177; (218 S.W.) St. Louis Charcoal Co. v. Lewis, 154 Mo. ALLEN, J. This action was begun before App. 548, 136 S. W. 716; Coleman v. Stocke, a justice of the peace to recover damages 159 Mo. App. 43, 139 S. W. 216; St. Charles alleged to have been sustained by plaintiff Sav. Bank v. Investment Co., 160 Mo. App. by reason of the alleged breach by defendant 369, 140 S. W. 921; Reynolds v. Gerdelman, of its contract to sell to plaintiff certain wire. 185 Mo. App. 176, 170 S. W. 1153; St. Char- On appeal from the judgment of the justice les Sav. Bank v. Edwards, 243 Mo. 553, 147 of the peace, the cause was tried de novo in S. W. 978; McCullam v. Buckingham Hotel the circuit court, before the court and a jury, Co., 198 Mo. App. 107, 199 S. W. 417; Mc- resulting in a verdict and judgment in favor Cullam v. Dry Goods Co., 199 S. W. 421; of plaintiff for $244.50, from which defendReynolds v. Whittemore (Sup.) 190 S. W. 594. ant has appealed. The judgment should be and is hereby affirmed. Plaintiff is a Missouri corporation, having its place of business in the city of St. Louis, and the defendant is a corporation doing busi REYNOLDS, P. J., and ALLEN, J., concur. ness in Providence, Rhode Island. PEERLESS LIGHTING CO. v. BOURN The statement filed by plaintiff before the justice of the peace alleged, in substance, that on November 5, 1915, plaintiff ordered from defendant 100,000 feet of "No. 14 single braid new code covered wire," at the price of $6 per 1,000 feet; that on November 15, 1915, (St. Louis Court of Appeals. Missouri. Feb. 3, defendant accepted said order and agreed 1920.) 1. PRINCIPAL AND AGENT ~23(1)—EVIDENCE SHOWING AGENT ACTED FOR MANUFACTURER THROUGHOUT and did NOT BECOME AGENT OF BUYER. Evidence held to show that a manufacturer's agent remained his agent throughout, and, having made a sale to plaintiff, did not become plaintiff's agent in negotiations for postponing deliveries. 2. PRINCIPAL AND AGENT 103(9) — SALES AGENT'S AUTHORITY NOT AFFECTED BY PRIN CIPAL'S RESERVATION OF APPROVAL OF OR DERS, OR BY AGENT REPRESENTING OTHER CONCERNS. A manufacturer's agent's authority was not affected as to sales by the facts that he also represented other manufacturers, and that the manufacturer reserved right to his credit department to approve orders. to deliver the wire to plaintiff, and thereafter shipped to plaintiff 25,000 feet thereof, but failed and refused to ship the remaining 75,000 feet, by reason whereof plaintiff was damaged in the sum of $250. The evidence shows that one Wood, who termed himself a "manufacturer's agent," called upon plaintiff's president, one Gossom, at plaintiff's place of business in the city of St. Louis on November 5, 1915, and, purporting to represent the defendant, offered to sell to plaintiff 100,000 feet of defendant's No. 14 new code rubber covered wire, at $6 per 1,000 feet (50 cents per hundredweight being allowed as freight); that, through Gossom, plaintiff gave said Wood an order for 100,000 feet of said wire, which order Wood telegraphed to defendant at Providence, R. I., saying: "Ship half soon as possible, balance 3. APPEAL AND ERROR 1064(1) - INSTRUC-30 days." Wood also sent a written order to at TION ON MEASURE OF DAMAGES FOR SELLER'S defendant which stated: "Ship rush." On November 13, In an action for seller's refusal to deliver, 1915, defendant wrote to Wood, accepting an instruction on damages referring to the dif- the order, and stating that it would make a ference between contract price and the "price partial shipment of the wire the following the goods could have been purchased" at date week, which letter was shown by Wood to of breach of contract, instead of at "market Gossom. It appears that in the meantime price," was not prejudicial, where the verdict plaintiff had received a quantity of similar was evidently founded on testimony as to "mar-wire, which had been ordered elsewhere, and ket value" on such date. BREACH OF CONTRACT NOT PREJUDICIAL. once * * that when Gossom was shown appellant's Appeal from St. Louis Circuit Court; Wm. letter he requested Wood to have the shipT. Jones, Judge. "Not to be officially published." Action by the Peerless Lighting Company against the Bourn Rubber Company. After trial in the justice court there was judgment for plaintiff on trial de novo in the circuit court, from which defendant appeals. Affirmed. Claude O. Pearcy and E. E. Rudolph, both of St. Louis, for appellant. ment of this wire delayed "if convenient"; that on November 16, 1915, Wood wrote a letter to defendant in which he said: "I advised the Peerless Lighting Company, ** * * and they said that this would be satisfactory, but to hold up on the shipment until they advised you to ship, which will be some time next month. * * Inasmuch as you are so far behind on No. 14 orders I trust that this will be satisfactory to you." In reply to this letter the defendant, on Karl M. Vetsburg, of St. Louis, for respond- November 18, 1915, wrote to Wood, as fol For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |