cation. Manifestly it was introduced into the defendant's charter for its benefit, and may be waived by it; for it is very well settled that a party may waive the provision of a contract or statute made for his benefit. White v. Insurance Co., 4 Dill. loc. cit. 183, Fed. Cas. No. 17,545; Shutte v. Thompson, 15 Wall. loc. cit. 159, 21 L. Ed. 123; In re Cooper, 93 N. Y. loc. cit. 512; Lee v. Tillotson, 24 Wend. 337, 35 Am. Dec. 624; Cooley, Const. Lim. 181. If it chooses to do so, a mutual insurance company may abandon its right to insist upon the protection afforded it by the statutory limitation, as, for illustration, a solicitor may write an application which he is apprised misdescribes the character of a building or its distance from another, or misstates its value or the incumbrances thereon; and if, with this knowledge of the solicitor, which is the knowledge of the company, the application is received, the policy issued, and the premium paid, it would thereby waive the right to insist upon the statutory limitation and be estopped to claim a forfeiture. It would have the right to insist upon the limitation in such case for its protection against the unauthorized acts of its soliciting agent; but, If it neglected to do so before issuing the policy and accepting the premium, it could not do so after a loss occurs. This would operate as a fraud on the assured. This statute is notice to all applicants for insurance in town mutual companies of the limitations on the power of their soliciting officers, agents and employés. Since it became operative it has been unnecessary for these companies to give notice of such limitations in any other way. But it does not disable or incapacitate such companies to waive any of the conditions of an application or policy, or to modify or abrogate the same, unless in writing. It seems clear to us that this statute in no way helps the defendant in its contention. It had knowledge of the misdescription, and with that knowledge it accepted the application, issued the policy, and took the premium; and it should not be permitted, after loss, to for the first time claim that its soliciting agent, in writing the application, exceeded the limitations placed by the statute on his authority, or, which is the same thing, to insist that the description of the building, which the agent adopted himself as proper and sufficient, is such a misdescription as avoids the policy. It would be a fraud, and upon principle it ought to be estopped to make such claim.

We think the court did not err either in the giving or refusing of instructions. The judgment must be affirmed. All concur.

On Motion for Rehearing.

(Feb. 2, 1903.)

It is insisted that, while this case is like that of Mensing v. Insurance Co., 36 Mo. App. 602, it has been decided contrary to

46

*

the way that case was decided. Are the two cases alike? In this case the plaintiff, in her written application for the policy, warranted that the building which she sought to have insured was occupied as a dwelling, and it was upon this warranty the policy issued. The policy provided that, if the insured misrepresented in writing any material fact concerning the subject of the insurance, it would be void. There was also a further provision to the effect that this policy is made and accepted subject to the foregoing stipulations and conditions: And no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of the policy may be the subject of agreement indorsed hereon or added hereto, and to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions and conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured, unless so written or attached." The policy in the Mensing Case provided that the "insurance in this company is confined to farmhouses, barns, and outbuildings, private dwellings, and private barns in towns,

and

no authority is given to any agent to take any application in any other class of property, and not upon any property exposed within 100 feet of a store, hotel, public boarding house, mill, manufacturing establishment, or other extra or special hazard." The application stated the property to be a dwelling house, when it was, in fact, a boarding house, with a saloon in the front room. In this case, as has been set out, the property was stated in the application to be a dwelling house, when it was a dwelling in one room of which was a millinery store, and this fact was known to the agent at the time he wrote the application. In the Mensing Case there was contained in the policy a limitation on the authority of the agent, of which the insured had notice, that no agent had authority to take any application for insurance on any other class of property than that specified in the limiting clause. The agent of the insurer knew, at the time he accepted the application, that the property was not a dwelling house, but a boarding house and saloon. On this state of facts it was held by us in that case that the limitation contained in the policy was notice to the insured that the agent had no authority to insure a boarding house and saloon, and that the defendant had the right, as any other principal, to limit the authority of its agents, and to allow the plaintiff to recover would be to hold defendant liable for a risk it did not take. In the present case the plaintiff had notice that any statement respecting the subject of the insurance made

by her to the agent, or by him to her, would not bind the insurer, unless in writing.

According to the rule declared in the Mensing Case, it would seem that the knowledge of the agent that the property was misdescribed in the application was of no consequence and would not validate the risk. If the insurer had the right to limit the power of its agent in the one case, it is difficult to see why it did not in the other. In principle the two cases are quite alike. If the Mensing Case had not been trenched upon or overthrown by later cases, which we are bound to follow, it would appear this case was incorrectly decided. In the later case of Shoup v. Insurance Co., 51 Mo. App. 286, the policy expressly provided that the insurer should "not be bound by act or statement made to any agent, unless inserted in the contract." In the application for the insurance it was stated that the applicant was the sole owner in fee of the land on which the subject of the proposed risk stood, while in truth the applicant only had a homestead interest therein. It was shown that the applicant informed the agent who solicited the insurance and wrote the application of the true state of the title. In the opinion in that case, after quoting what was ruled in the Mensing Case, it was held that the limitation on the agent's authority was directly in the way of the plaintiff's recovery; that the plaintiff could not be permitted to show that the agent was informed of the true condition of the title. In Jenkins v. Insurance Co., 58 Mo. App. 210, the limitation contained in the policy was that "no act or deed or promise made by any agent, not indorsed hereon, shall be construed into a waiver of the printed terms or conditions, and any changes or waivers can only be made in writing by either the secretary or the district agents at Montgomery City, Missouri." The policy also contained a stipulation that "if the assured, without written permission hereon, shall now have, or hereafter make or procure, any other contract of insurance, whether valid or not, without consent indorsed hereon, the policy shall be void." It appears that after the issue of the policy the insured, without the written consent of the insurer or its agents, procured other insurance on the same property. The insured was not permitted at the trial to prove that the agent of the insurer was apprised of the other insurance, and this refusal on the appeal was held proper. It was further held that the limitation was effective, and that a soliciting agent, in the face of such a limitation, could not waive the conditions of the policy. But in Springfield Steam Laundry Co. v. Traders' Ins. Co. of Chicago, 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521, both the Shoup and Jenkins Cases are expressly overthrown, and declared "not longer to be followed," and thereby declaring, as said by us in Welf v. Insurance Co.. 86 Mo. App. loc. cit. 583, that the soliciting agent

of an insurance company, with limitations imposed upon his authority similar to those in that case, known to the insured, may waive the conditions of the policy. The limitation in the Wolf Case, just referred to (75 Mo. App. 337; 86 Mo. App. 580), was similar to that in the Jenkins Case; but, being obliged to follow the ruling in Springfield Steam Laundry Co. v. Traders' Ins. Co. of Chicago, supra, we changed front, as will be seen by reference to the two opinions delivered on the second appeal. 86 Mo. App. 580. The Mensing Case is in no way dis tinguishable from the Shoup and Jenkins, or the first of the Wolf, Cases; and, as the two former of these have been overthrown by the supreme court and the latter by ourselves, we cannot see why it-the Mensing Casemay not, too, like its parallels referred to, be considered as overruled and "no longer to be followed."

The question has been pertinently asked whether or not, under the law of principal and agent as it has been declared in this state, in so far as applicable to insurance companies, an insurer can in any case impose a limitation upon the authority of his agent that will be efficacious, even though such limitation be in writing and brought to the notice of the insured. The only answer we can make is to cite Springfield Steam Laundry Co. v. Traders' Ins. Co. of Chicago, supra, and James v. Association, 148 Mo. 1, 49 S. W. 978. It is needless to say that, if our ruling in this case is opposed to that in the Mensing Case, it is in accord with the last of the supreme court.

The motion will accordingly be denied.

STATE. WOOD.

(Court of Appeals at St. Louis, Mo. Jan. 20, 1903.)

CRIMINAL LAW-APPEAL-RECORD-ARRAIGN

MENT-REVERSAL.

1. Where the record on appeal fails to show that the defendant was arraigned, a judgment of conviction will be reversed.

Error to circuit court, Monroe county; Reuben F. Roy, Judge.

Walter Wood was convicted of crime, and brings error. Reversed.

J. H. Whitecotton, for plaintiff in error. Frank McAlister, for the State.

PER CURIAM. Plaintiff in error made the point that there is no record that he ever was arraigned, and the state took a continuance in order to perfect the record in that regard; claiming that he had been arraigned, and that it could be shown. It has not been shown, however, and the judg ment must therefore be reversed, and the cause remanded. State v. Walker, 119 Mo. 467, 24 S. W. 1011. It is so ordered.

1. See Criminal Law, vol. 15, Cent. Dig. § 2753.

JOHNSON v. KAHN.* (Court of Appeals at St. Louis, Mo. Jan. 20, 1903.)

JUSTICE'S COURT-PLEADING-STATEMENT OF

ACCOUNT-EXPERT TESTIMONY

WEIGHT-INSTRUCTIONS.

1. Under Rev. St. 1899, § 3852, providing that no formal pleadings shall be required in a justice's court, but the plaintiff shall file with the justice the instrument sued on, or a statement of the account, a statement: "E. K., Dr. to W. J.: Making sale of saloon stock. $92.50,"-is sufficient as a complaint in a justice's court, and also in the circuit court on appeal.

2. Where, in an action for commission for selling personal property, expert testimony was received as to what was a reasonable commission for making such sales, an instruction that, if plaintiff was entitled to recover, he was entitled to the rate of commission so testified to, was error, as on the weight of the evidence.

Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by Willis Johnson against E. Kahn. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. D. Rodgers, for appellant. W. W. Fry, for respondent.

The case was appealed to the circuit court, where it was tried before a jury upon the same account. At no stage of the proceeding did defendant object to the sufficiency of the statement filed, except that at the close of the trial in the circuit court he asked an instruction that, under the statement filed and the evidence introduced, plaintiff was not entitled to recover, which instruction was refused by the court. On trial in the circuit court the evidence showed that appellant was conducting a saloon in Centralia, Mo., which he wished to sell; that he agreed to pay respondent a commission if he would find a purchaser, and on August 25, 1901, respondent went to appellant's home, and told him there was a man in town who wished to buy his saloon. Appellant, accompanied by respondent, went to his place of business, met Charles Johnson, showed him through his establishment, named the selling price, and in the course of a few weeks sold the saloon to Charles Johnson.

The first question presented is the sufficiency of the statement or account constituting the plaintiff's cause of action, originally filed with the justice, and on which the case was tried in the circuit court. Section 3852 of the Revised Statutes of 1899, provides that no formal pleadings on the part of either plaintiff or defendant shall be required in a

*Rehearing denied February 3, 1903.

1. See Justices of the Peace, vol. 31, Cent. Dig. § 311.

justice's court, but before any process shall be issued in any suit the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded. Justices' courts are inferior tribunals, established to facilitate the summary disposal of petty controversies as economically and as expeditiously as possible. Formal pleadings therein are expressly dispensed with, in order that suitors, if they see fit, without professional aid may prepare their own statements of causes of action, and conduct their own trials. A statement sufficiently specific to inform the opposite party of the foundation and character of the demand asserted, and to bar a subsequent action predicated upon the same facts, is a full and sufficient compliance with the statutory provision. The statement on which the present action was begun meets these requirements of the statute, and in, substance, if not in identical form, has received approval, and can no longer be assailed. Force v. Squier, 133 Mo. 306, 34 S. W. 574, and cases therein cited.

2. Proceeding to the consideration of the instructions under which this case was submitted to the jury, the plaintiff offered the testimony of experts to establish the value of his services in effecting the sale, who qualified by stating that they were engaged for many years in the real estate business, and that the usual and reasonable commission of an agent for selling merchandise was 5 per cent. on the first $1,000, and 21⁄2 per cent. on the remainder of the purchase price; and upon this branch of the case the court instructed as follows: "The jury is instructed that if you find for plaintiff you will return a verdict for such an amount as you believe, from the evidence, to be the usual and reasonable value of such services as plaintiff rendered; and you are further instructed that, under the evidence in this case, 5 per cent. upon the first thousand dollars, and 21⁄2 per cent. upon all sums over one thousand dollars, for which said saloon was sold, is the usual and reasonable value of such services." The testimony of experts is admitted as a matter of necessity, to be received and considered with caution. The competency of such witnesses to testify is a legal question for the court to decide, but the weight to be given to expert testimony is to be determined by the jury, and it is their province to weigh such testimony, which at best is merely advisory, and not conclusive; and the right of the jury to reject intact the opinion of an expert is as broad and as well established as its right to repudiate or reject the testimony of an ordinary witness upon a question of fact. Apart from the element present in this case, that the testimony regarding which this instruction was given is of that class denominated "expert testimony," its peremptory character alone would be sufficient to condemn it. The jury

are the sole judges of the weight of the evidence and of the credibility of witnesses, and the acceptance by the jury of evidence as true and satisfactory is as essential, before proof can be said to have been completely made upon any controverted issue, as the presentation of the testimony itself. The province of a trial court in a case before a jury is not to determine when proof has been made sufficient for a verdict, but is confined to instructing when testimony introduced tends to establish a fact in issue. Fullerton v. Fordyce, 144 Mo. 519, 44 S. W. 1053; Hoyberg v. Henske, 153 Mo. 63, 55 S. W. 83; Cosgrove v. Leonard, 134 Mo. 419, 33 S. W. 777, 35 S. W. 1137; Gannon v. Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505.

For the error in thus instructing the jury the case is reversed and remanded for a new trial.

BLAND, P. J., and GOODE, J., concur.

SANITARY DAIRY CO. OF MISSOURI v. ST. LOUIS TRANSIT CO.

(Court of Appeals at St. Louis, Mo. Jan. 20, 1903.)

STREET RAILWAY - NEGLIGENCE - CROSSING TRACK-ORDINARY CARE-INSTRUC

TIONS-EVIDENCE.

1. In an action against a street railway company for damages resulting from a collision of a car with a team crossing the track, an instruction in general terms that, if the driver was exercising ordinary care, the verdict should be for plaintiff, without specifically stating the care the driver was bound to exercise, was er

ror.

2. Where, in another instruction, the court specifically stated the care the driver was bound to exercise, the error in the first instruction was cured.

3. Where, in an action against a street railway company for damages from a collision of a car with a team crossing the track, the driver testified that as he approached the crossing he looked to see if a car was approaching, but his view was obstructed by a standing car, and as it moved away he looked again, but did not see the approaching car, and could not hear it because of the noise made by the departing car and by his wagon, and other witnesses testified that, had he looked, he could have seen the approaching car, the question as to whether he looked when he should was for the jury. Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by the Sanitary Dairy Company of Missouri against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Defendant has a double street railway track on Easton avenue, running east and west, in the city of St. Louis. Easton avenue is crossed at right angles by Euclid avenue, running north and south. On December 6, 1900, plaintiff's teamster was driving plaintiff's three-horse wagon south on Euclid avenue, the driver being seated on the wagon. When he reached Easton avenue, he turned

the lead horse in a southeasterly direction for the purpose of crossing to the south side of Easton avenue, and then proceeding east thereon. When his lead horse reached the south railway track on Easton avenue, it was struck by a car traveling east, and the horse and his harness were badly damaged. The suit is to recover this damage. The defense was contributory negligence. On the part of plaintiff the evidence tends to prove that as soon as the driver cleared the building line on Easton avenue he looked and listened for a car on the south track, but neither saw nor heard one; that his vision was partially obstructed by a west-bound car that had stopped on the northwest corner at the intersection of Euclid and Easton avenues for the purpose of discharging passengers, and that the noise of his wagon and the west-bound car interfered with his hearing; not seeing or hearing a car on the south track, he proceeded to cross the street in a southeasterly direction; that the car traveling east on the south track gave no warning signal as it approached the crossing, and was running at a high and dangerous rate of speed,-a speed of from 18 to 20 miles an hour. On the part of defendant the evidence tended to prove that the car was running on a downgrade at a moderate speed, with the power shut off; that the gong was continuously sounded as the crossing was approached; that the night was dark and rainy, but the car was brilliantly lighted; that Easton avenue is 60 feet wide, and that the space between the building lines is 80 feet; that the driver could have seen the car, after he entered the avenue and passed beyond the obstruction caused by the standing car, before his lead horse had reached the south track, if he had looked. For the plaintiff the court gave the following instructions: "If the jury find and believe from the evidence that on December 6, 1900, the defendants were operating a street railway by means of electricity along Easton avenue, in the city of St. Louis, and were running their cars along said avenue in charge of a motorman and conductor; and if the jury further find and believe from the evidence that on said date plaintiff's wagon was being driven by plaintiff's driver southwardly along Euclid avenue, and was proceeding to cross Easton avenue from the north side thereof toward the south side thereof, at its intersection with Euclid avenue; and if the jury further find and believe from the evidence that while plaintiff's said wagon was so proceeding to cross Easton avenue, an east-bound car in charge of defendants' serv ants ran into the lead horse attached to said wagon, and injured plaintiff's said horse and its harness; and if the jury further find and believe from the evidence that at the time of and immediately prior to such injury said east-bound car was permitted to run at a rate of speed which was excessive and dangerous to persons and animals crossing Easton av

enue at said point, or that the motorman failed to give any notice or warning of the approach of his car; and if the jury further find and believe from the evidence that said rate of speed or said failure to give warning was negligent under all the facts and circumstances detailed in the evidence and under these instructions, and that, but for such negligence, said injury would not have happened; and if the jury further find and believe from the evidence that plaintiff's said driver at the time of such injury was exercising ordinary care for the protection of his team in so driving across Easton avenue, -then the jury will find a verdict in favor of the plaintiff." "What constitutes 'ordinary care,' as mentioned in these instructions, depends on the facts of each particular case. It is such care as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case with reference to whom the term 'ordinary care' is used in these instructions. The omission of such care is negligence in the sense in which that word is used in these instructions." "If you find for the plaintiff, you will assess its damages at such sum, not exceeding two hundred dollars ($200.00), as will reasonably compensate plaintiff for the damage to plaintiff's horse and harness, and for plaintiff's expenses for medical services, feed, care, and attention to said horse, and for the loss to plaintiff from being deprived of the use of said horse. If your verdict is for the defendant, you will simply so state in your verdict." For the defendant the following: "(1) The court instructs the jury that plaintiff's petition charges that its servant was, on December 6, 1900, about 8 p. m., driving his stake wagon drawn by three horses, one of them being in the lead, south on Euclid avenue, and that at the intersection of Euclid and Easton, while said wagon was being driven from the north side towards the south side thereof, an east-bound car of the defendant company struck said lead horse. The negligence charged against said defendant is: First, that said car, while approaching said crossing, was being operated at an excessive and dangerous rate of speed to persons and animals crossing Easton avenue at its intersection with Euclid; second, that the motorman thereof failed to give any warning of the approach of said car on Euclid avenue. The court instructs you that in regard to those allegations of negligence the burden of proof is upon the plaintiff to show by the preponderance or greater weight of the evidence that said accident was caused by either one or both said alleged acts of negligence. By 'burden of proof' is meant that the evidence to sustain a proposition thus to be proved is greater in weight and credibility in your judgment than the evidence to the contrary. (2) The court further instructs the

jury that it was the duty of plaintiff's driver to both look and listen for an approaching car just immediately before driving across defendant's track, no matter whether defendant's servant on said car gave the signals or not, and no matter at what rate of speed said car was running. And if, from the evidence, the jury believes that said driver failed to both look and listen just before crossing said track, and thereby materially contributed to the collision between the car and the horse, then your verdict should be for the defendant. (3) The court instructs the jury that if, from the evidence, they believe that both plaintiff's driver and the servant of defendant operating defendant's car were both guilty of negligence, and that the negligence of plaintiff's driver materially contributed to the injury, then your verdict shall be for the defendant." The jury returned a verdict for plaintiff, and assessed his damages at $168.75. After an ineffectual motion for a new trial, defendant appealed.

Boyle, Priest & Lehman, for appellant. Sale & Sale, for respondent.

And

BLAND, P. J. (after stating the facts). It is the law here and elsewhere that it was the duty of plaintiff's driver, before he attempted to drive across Easton avenue, to look and listen, according to his opportunity, for an approaching car on the south track, and that this duty was continuing until he passed the track. Hayden v. Railway Co., 124 Mo. 566, 28 S. W. 74; Kelsay v. Railway Co., 129 Mo., loc. cit. 372, 30 S. W. 339. And if the car on the northwest corner obstructed his view when he first got on the street, after passing that obstruction it was his duty then to look for an approaching car before driving on the south track. Lien v. Railway Co. (K. C.) 79 Mo. App. 475. the court, in plaintiff's instruction, should have specifically stated the care plaintiff's driver was bound to exercise before driving upon the south track. Instead of doing this, the jury were instructed in general terms that, if they found the driver was exercising ordinary care, etc., to find for the plaintiff. The law has established specifically what is "ordinary care" in a traveler approaching a railway crossing before attempting to pass over it, and it is the duty of trial courts, whenever the question is to be submitted to a jury, to define in the terms the law has laid down what constitutes ordinary care, and not leave it to the jury to draw their own conclusions as to what ordinary care is in such circumstances. The failure, however, of the court to specifically define ordinary care in plaintiff's instruction was cured by the second instruction given for the defendant, and, if the jury gave due attention to that instruction,-which we assume they did, they were not misled by the instruction given for plaintiff. As a whole,