(218 S. W.) pany family of St. Louis, whereupon one of the jurors said that he had worked for the Peper Estate. Afterwards counsel for plaintiff told the panel while under examination that defendant was a widow of one of the Pepers, who had died a year before, and asked the panel generally whether they knew this defendant. Counsel for defendant objected to the mentioning of other members of the Peper family, on the ground that the defendant was entitled to have the case tried against this defendant alone without taking into consideration any one else, and moved the court to discharge the jury. Counsel for plaintiff thereupon withdrew the question. Counsel for defendant renewed the motion to discharge the jury, on the ground of prejudice created in the minds of the jury, the Peper family being well known in the city of St. Louis as people of means and wealth and the minds of the jurors having been turned toward the wealth or supposed wealth of the defendant, an issue outside of the case. The court overruled the motion, defendant excepting. This is all that appears in the abstract as to that matter. During the trial of the case, which was before the court and a jury, it was adınitted that the injuries which the boy had received from the accident had caused his death. It was also admitted that the defendant was the owner of the automobile at the time of the accident. It was further agreed that the life expectancy of the boy would be at least 40 years under any mortality table and that the fair and reasonable expense of his last illness, funeral and burial due to the accident and incurred by the plaintiff was $285.75, and it was also admitted that the boy was not married. and too late to stop. The testimony on the part of plaintiffs contradicted this statement as to a wagon being in the vicinity at the time and was to the effect that the street at that point was clear of any obstructions. A witness, Dr. Ball, testified that he was familiar with the neighborhood, passing along there a dozen times a day. He was asked this question: "There has been some testimony here about a telephone pole near the curb line about the south line of this laundry. Did you see that as you came up the street?" Witness answered, "Yes." He was asked to state to the jury "what obstruction that was, if any, of your view of the northwest corner of that laundry as you proceeded up the street?" This was objected to by counsel for the defendant "as calling for a conclusion of the witness and as being too indefinite. I think it is perfectly plain and the jury can tell what obstruction there was." To which the court said: "I do not think it makes any particular difference whether he answers it or not." Counsel for plaintiff said: "He makes a scientific answer here." The court said: "Let me see what he says. Let me see what a scientific answer is (testimony handed to the court). He just simply says what are the obvious facts. I do not think he helps the jury in any way to determine that. They have heard the testimony as to the location of the poles and where the automobile was." (Counsel, by agreement, were using the testimony of the witness given at the former trial.) With that before him counsel for plaintiff read: "Well, say a distance of 75 feet south from the pole, what obstruction, if any, would that Whereupon counsel for plaintiff said: For in obstruction of the view of anything you have There was testimony on behalf of plain-pole be with reference to the view of the opentiffs to the effect that at the time of the ac-ing of that little alley?" cident and death the boy was between 7 and 8 years of age-a strong, healthy, lively boy; that he and his mother were walking along Newstead avenue on the afternoon of April 20, 1913, and the boy having occasion to cross the street to attend to a "call of nature," left his mother on the west side of Newstead avenue and ran across and into an alley on the east side of that street. While returning to join his mother and while in the roadway of Newstead avenue, he was knocked down and run over by the defendant's automobile, remained unconscious from that time until he died dying about three days after as the result of these injuries. There was testimony for plaintiffs to the effect that the machine was going at the rate of between 25 and 30 miles an hour and had not slowed down before it struck the boy. The driver of the automobile testified that he was going at the rate of not exceeding 15 miles an hour and that his view was obstructed by a wagon on the side of the street and that he did not see the boy until he was right on him 218 S.W.-28 Defendant excepted to this ruling of the court. Counsel for plaintiff, reading from the testimony of the doctor, taken at a prior trial, read this: "Q. Well, say a distance of seventy-five feet south from the pole, what obstruction, if any, would that pole be with reference to the view of the opening of that little alley? A. None [ and ordinary earnings of a boy of that age." at all." Defendant introduced a witness, an agent of the Board of Children's Guardians of the City of St. Louis, who testified that it is the duty of the city to provide funds and the duty of the Board to supervise the care of children and board them out in foster homes and in their home when the mother is a widow. As agent of the Board he had been doing that; knew what it cost to rear children in a family in various circumstances in life and at various ages in the city of St. Louis. Food, lodging and clothing would cost about $7 a month for a healthy boy seven years old in a family of father, mother, boy and younger sister, living in the north part of the city and the father earning fifteen or sixteen dollars a week in the packing department of a furniture company; that would include all reasonable expense in rearing the child. Witness said, "about fifteen or sixteen dol- Counsel for defendant: "I am only offering testimony, Your Honor, as to what the ordinary earnings of a boy in ordinary circumstances are, under ordinary conditions in the city of St. Louis, and this witness has already testified that he knows that." He then asked the witness this question: "Have you investigated the working conditions of boys earn? A. I have." This was objected to by of various ages, Mr. Fairbanks, what they Witness was asked by counsel for defendant what the boy would earn in that when counsel for plaintiff interposed an objection, which the court sustained, defendant except ing, and counsel for defendant then said: "Of course, the law presumes a boy will go to school until his fourteenth year." This was objected to by counsel for plaintiff, the objection sustained and defendant excepting. Asked what it would cost to sup-counsel for plaintiff for the reason that the port a boy in his eighth year, witness stated he would think that amount of $7 would carry a boy from his seventh to his ninth years; in his tenth and eleventh years about $8; in his twelfth year about $10; in his thirteenth year and from his twelfth to his fourteenth year about $12 a month. Asked what it would cost in his fifteenth year, witness said: "It would depend on whether the boy went to High School or went to work." The Court: "Well we are getting in realms of too much speculation now." Counsel for plaintiff objected and moved that all these answers be stricken out as absolutely speculative. The court overruled this, saying: "We will not go any further into it." Counsel for defendant: "Well, we will offer the same kind of testimony up to and including the boy's twentieth year." The Court: "What I said was we cannot speculate, if he goes to High School, so much, and if he doesn't go to High School, so much, and if he doesn't work, so much." witness "is not qualified to know what boys are earning or anything of the kind." To which the court said: "There is no use arguing any further; I have already ruled. * * I sustained the objection." There was no exception here. Counsel for defendant said that he offered to prove the qualifications of the witness and then prove what boys would earn from the ages of fourteen on and including the twentieth year. That was objected to, objection sustained and exception saved. On cross-examination, the witness stated he had a wife and daughter but had raised no boys and did not know what it would cost to raise a boy in his own family. While counsel for appellant make numerous assignments of error, only three points are briefed and argued. [1-3] The first point made is that where no claim is made for punitive damages in an action for wrongful death, it is error to refer to the pecuniary condition or relative position of defendant in the community, and the court erred in refusing to sustain appellant's motion to discharge the jury when her finanWitness under further questioning testified cial condition was referred to on voir dire. that if a boy did not go to High School but We dispose of this proposition by saying that went to work in his fifteenth year the reason- while the proposition is true that the social able cost of his keep would be about $14; in or pecuniary condition of defendant in an achis sixteenth year $15; in his seventeenth tion such as this is not involved, the rest of year, witness said, it "makes it a little diffi- the proposition is not here applicable. We cult about answering, because it depends al- have set out what occurred when the jury together on the boy's earning power and the was being impanelled and find no error in it position he is in." Counsel for defendant of which counsel for defendant can avail said: "Well take a boy earning the usual themselves. Counsel for plaintiff was mere (218 S.W.) ly endeavoring to ascertain the relation or becomes of age. This is a correct proposition connection, if any, between the prospective as far as it goes. "Probable money value of jurors and the parties. They had a perfect the child's services," however, is not solely right to do this. We are not to assume that tested by what he might earn if put to outthe mere mention of the name of the family side labor. to which defendant belonged conveyed to the jurors any idea as to the pecuniary standing or wealth or social position of that family. The jurors, as a body, could no more take notice of such matters than can we as a court. Moreover, as far as appears by the abstract furnished by appellant's counsel, when counsel moved the court to discharge the jury it appears that he stated that he did so on the ground "of prejudice created in the minds of the jury, the Peper family being well known in this city as people of means and wealth, and the minds of the jurors having been turned toward the wealth, or supposed wealth of the defendant, which is an issue outside of the case." As that appears to have been stated in the presence of the jury, counsel for defendant himself was the one who brought before them the fact of the financial condition of the Peper family. There was no error in the action of the court in refusing to discharge the jury on the ground stated. Whether a question asked in the examination of the jurors on their voir dire is prejudicial, is largely within the discretion of the trial court. Mahaney v. St. Louis & Hannibal Ry. Co., 108 Mo. 191, loc. cit. 199, 18 S. W. 895. Counsel have a right to probe a proposed juror to the bottom for the purpose of ascertaining whether or not his social or business relations, etc., are such as would probably prejudice him in the consideration of the case to be tried. Saller v. Friedman Bros. Shoe Co., 130 Mo. App. 712, loc. cit. 720, 109 S. W. 794; Boten v. Sheffield Ice Co., 180 Mơ. App. 96, loc. cit. 107, and following, and cases there cited (166 S. W. 993). [4] The second point argued is that it was error to permit the witness, Dr. Ball, to state his conclusions from an experiment, because all the conditions necessary to reach a prop er conclusion were not shown to exist and were not shown to have been the same as at the time of the original event, nor should an expert, it is argued, have been permitted to give his opinion on matters of common knowledge. This point is not well taken. It was open, as the court indicated to counsel for defendant, to test the conclusion stated by this witness which really was his state ment of a fact. We see no error in this. [5] The third proposition, referring to the first subdivision of that proposition, is that in an action by parents for the death of their minor child, the measure of damage is the actual expense of the accident, placing the difference between the probable money value of the child's services and the probable expense of his education, support and maintenance from the time of the accident until he [6, 7] The second subdivision of this point three is, that in an action of this kind, evidence is admissible to show the probable earnings of the child from the time of his death until he would have reached his majority, and it is urged that the exclusion of the evidence of witness Fairbanks on this point was error. Counsel for defendant asked the witness what would be the probable earnings of a boy of the kind in question in his fourteenth year. That was objected to, objection sustained and exception saved. No foundation had been laid for the question. The witness was then asked if he had investigated the working conditions of boys of various ages as to what they earn. He answered that he had. That was objected to for the reason that the witness was not qualified to know what boys are earning, to which the court said: "There is no use arguing any further; I have already ruled," and sustained the objection. Then followed this, by counsel for the defendant: "I offer to prove the qualifications of the witness, and then prove what boys would earn from the ages of fourteen on to and including the twentieth year." That was objected to, the ground not stated, but objections to like questions had previously been made and sustained on the ground that they were speculative and the qualifications of the witness to answer has not been shown. The trouble with this offer is, that it was too general. In City of Kirkwood v. Cronin et al., 259 Mo. 207, loc. cit. 214, 168 S. W. 674, 676, it is said: "Appellants' offer to prove does not set forth what the testimony would be if the witnesses were permitted to testify on this point and we are therefore unable to say whether the evidence which appellants desired to offer was admissible, or whether, if admissible, its materiality was such as that its exclusion would work a reversal of the case. An offer to prove should be specific and definite. Copper & Iron Mfg. Co. v. Manufacturers' Railway Co., 230 Mo. 59, loc. cit. 77 [130 S. W. 288]." We may add that, notwithstanding the exclusion of testimony under this general offer, it appears that the witness was permitted to testify what would be the expense of maintaining a boy from the age of eight years until his twenty-first year. We are enjoined not to reverse unless for error materially affecting the merits. Even if the offer to prove the earnings of a boy from his seventh to his twenty-first year had been acceded to and evidence admitted, we are unable to see how it could have affected the merits of this case or been prejudicial to the defendant. No complaint is made of the size of the verdict. We are unable to see | 3. JUSTICES OF THE PEACE 86(3)—AFFIDAany prejudicial error in the exclusion of this testimony. VIT IN ATTACHMENT NECESSARY BUT THAT While an affidavit is absolutely necessary to 213 INSTRUCTION ON FRAUDULENT INTENT OF DEFENDANT TO DE LAY SUFFICIENT. the alleged fraudulent purpose of defendant to An instruction, in an attachment action on hinder and delay his creditors, etc., held sufficient. Counsel admit that the courts of our state have never passed on the precise question here involved, that is testimony of competent parties as to the probable earnings and expense of supporting a boy, but have cited authority to show that it has been held admissible when properly offered, by courts of other states, notably by the Supreme Court of Michigan in Rajnowski v. Detroit, Bay City & Alpena R. Co., 74 Mich. 20, 41 N. W. 847, and in Sceba v. Manistee Ry. Co., 189 Mich. 308, 155 N. W. 414, L. R. A. 1918C, 1090. But there the question of earnings expected was developed under proper testimony; here, as we have stated, there was a mere offer to produce testimony as to what the earnings of the boy would be. What that testimony in fendant intended to convey or assign his proppoint of fact would be, and whether developerty for purpose of hindering or delaying his ed by proper questions and from a competent witness, was not covered by the offer. For that reason, and on the authority before stated, the offer was properly rejected. These are the only points covered by the learned counsel for defendant in their argument. Finding them untenable, and finding no error to the prejudice of defendant in the trial and conduct of the case, the judgment of the circuit court is affirmed. ALLEN, J., concurs. EAST SIDE PACKING CO. v. MERITZ. (No. 15471.) 5. ATTACHMENT 47(4) - EVIDENCE OF IN TENTION TO DELAY CREDITORS. Evidence held to warrant finding that de creditors. Appeal from St. Louis Circuit Court; William M. Kinsey, Judge. "Not to be officially published." Action by the East Side Packing Company, a corporation, against Zachra Meritz, begun in justice court and appealed to the circuit court. From a judgment there for plaintiff, defendant appeals. Affirmed. Henderson & Henderson and Wendell Berry, all of St. Louis, for appellant. Grodzki & Grodzki, Wm. C. Lochmoeller, and William Kohn, all of St. Louis, for respondent. NIPPER, C. This action originated in a justice of the peace court, in the city of St. Louis, by the plaintiff-respondent filing a statement of open account, for a balance of $110.16, for merchandise sold and delivered (St. Louis Court of Appeals. Missouri. Jan. 6, to defendant-appellant. A writ of attach 1920.) 1. JUSTICES OF THE PEACE 86(3)-AFFIDAVIT FOR ATTACHMENT SUFFICIENT, THOUGH SIGNED IN CORPORATE NAME BY AGENT. An affidavit for a writ of attachment in justice court, signed by the East Side Packing Company, a corporation, by G. agent, is sufficient, where the body of the affidavit showed that it was made by the agent of the corpora tion. 2. JUSTICES OF THE PEACE 86(3)—AFFIDA- FAILING TO STATE IN WHAT CAPACITY AFFI- Requirements of an affidavit for attachment in justice court are governed by Rev. St. 1909, § 7637, instead of section 2299; hence an affidavit for a writ of attachment, filed in justice court, made by one as agent for a corporation, is not defective because it failed to state by what authority and in what capacity the affiant was acting. ment was issued and levied upon certain personal property of the appellant. Respondent gave attachment bond, which was approved by the justice. This suit was instituted on the 9th of October, 1913, and the writ of attachment was executed on the day following; the property sold on order of sale on the eleventh, and the appellant summoned to appear before the justice on the 25th of the same month. At the trial in the justice court, the defendant filed no answer to the merits, but filed a plea in abatement. The justice rendered judgment, sustaining the attachment in favor of respondent, in the sum of $110.16, and overruled appellant's plea in abatement. Appellant gave bond, and took the case to the circuit court. At the trial in the circuit court, the jury rendered a verdict in favor of respondent and against appellant, on the plea in abatement. Appellant duly saved his exceptions thereto, and afterwards the case was tried on its merits before the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) At the close of plaintiff's evidence, the defendant offered an instruction in the nature of a demurrer, which was overruled by the court, and at the close of all the evidence the plaintiff again renewed his offer of instruction in the nature of a demurrer. court, a jury having been waived by stipula- [ point, and the requirements of the affidavit in tion, and judgment was rendered in favor of this case are governed by section 7637, R. S. respondent, and against appellant and surety, 1909, and not section 2299. The last-named for $110.16. From this judgment appellant section refers to the form of affidavits in atperfected his appeal to this court. tachment proceedings instituted in the circuit court, and states that the "affidavit shall be made by the plaintiff, or some person for him." Section 7654, R. S. 1909, provides that the law governing attachments in courts of record shall apply to attachments before justices of the peace, so far as the same may not be inconsistent with the provisions which are specially applicable to the latter. Therefore it is not necessary, in attachments before a justice of the peace, that the affidavit recite that the affiant is acting for the plaintiff. This is a requirement of the statutes in attachments instituted in a court of It is urged by appellant that the affidavit upon which the attachment was issued was fatally defective. In order that we may be properly understood in our discussion of this point in the case, we will here set out the affidavit upon which the attachment was is sued: "This day, personally appeared before me, C. S. Luce, a justice of the peace within and for the Fourth district of said city of St. Louis, W. L. Gooding, and says that the East Side Packing Company, a corporation, the plaintiff, has a just demand against Z. Meritz, the defendant, and that the amount which the affiant believes the plaintiff ought to recover, after allowing all just credits and offsets, is $110.16, now due plaintiff, and that he has good reason to believe, and does believe, that the defendant is about fraudulently to conceal, remove, or dispose of his property or effects, so as to hinder or delay his creditors; that the defendant is about fraudulently to convey, or assign his property or effects, so as to hinder or delay his creditors; that the defendant is about to remove his property out of this state with the intent to defraud, hinder, or delay his creditors; also, that the debt sued for was fraudulently contracted for by the said debtor. East Side Packing Company, a Corporation, (Per) W. L. Gooding, Agent. Address: 1409 Liggett Bldg. "Sworn to and subscribed before me this 9th [here appears the name 'Frank M. Slater' in ink] day of October, 1913. "My term expires February 19, 1916. "[Signed] Henry A. Kersting. "Justice of the Peace for the Fourth District, City of St. Louis, Mo. "Notary Public. "[Seal] Henry A. Kersting, [1-3] Appellant urges that the affidavit set out above is fatally defective, and that by reason of such defects the court acquired no jurisdiction over appellant's property. It is urged that the affidavit, being signed "East Side Packing Company, a Corporation, (Per) W. L. Gooding, Agent," is defective because a corporation cannot make an affidavit. The body of the affidavit shows that it was made by W. L. Gooding, who also signed the same as the agent of the East Side Packing Company. Appellant further urges that the affidavit is defective because it fails to state by what authority and in what capacity affiant is acting, and cites the case of Orchard v. Smith (Sup,) 193 S. W. 574, in support of his contention. This case, however, is not in record, but does not apply to attachments in- [4] It is next contended that the court erred in giving instruction No. 1, on the motion of plaintiff, which told the jury that if they found from the evidence that the defendant had formed a fraudulent purpose, in his own mind, to convey or assign his property, with intent to prevent the plaintiff, or any of the other creditors, of the defendant from reaching it or applying it to their just claims and such purpose was about to be carried out, the jury will find for the plaintiff. This instruction undertakes to follow the language of the statute, and is almost an identical copy of an instruction set out in Bowles Live Stock Commission Co. v. Guy Hunter, 91 Mo. App. loc. cit. 338, which the court held should have been given. [5] The testimony of respondent's salesman was that when he first spoke to appellant about paying his bill, he stated he was going to sell his ice box and some other things to help pay this bill, and that later, on the occasion of another visit, he told the salesman that he was going to Chicago and would need the money, and could not pay him anything; and that "he was going to sell his place of business out, his stock of goods, and leave town." We think this was sufficient testimony from which the jury may reasonably infer a |