then the jury will, on the first count of the petition, return their verdict in favor of the plaintiff, and assess his damages in such sum as the jury believe from the evidence will reasonably and fairly compensate the plaintiff for any damage he has sustained thereby.

"(3) The court instructs the jury that by the use of the word 'malice' in these instructions is meant ill will, or a desire to be revenged; and in passing upon the question of malice, and the other matters referred to in the instructions, the jury should take into consideration all the facts and circumstances, as detailed by the witnesses."

Defendant asked the following instructions, which were refused:

"(1) The court instructs the jury that the plaintiff is not entitled to recover under the first count of his petition.

"(2) The court instructs the jury that, under the pleadings and the evidence in this case, the plaintiff is not entitled to recover upon the second count of his petition.

"(3) The court instructs the jury that the plaintiff is not entitled to recover exemplary damages under the second count of his petition.

"(4) The court instructs the jury that the plaintiff is not entitled to recover any compensatory damages under the second count of his petition."

The jury returned the following verdict: "We, the jury, find the issues herein joined in favor of the plaintiff upon the first count of the petition herein, and assess the plaintiff's damages on said first count at the sum of $175. And we further find for the plaintiff upon the second count of the petition, and we assess plaintiff's actual damages on said second count at the sum of $1,450. And we further assess in favor of plaintiff as punitive damages the sum of $375; making a total finding for plaintiff in the sum of $2,000."

Timely motions for new trial and in arrest of judgment were filed, which the court overruled, and defendant appealed.

Boyle, Priest & Lehmann, for appellant. R. D. Ellis and Smith P. Galt, for respondent.

BLAND, P. J. (after stating the facts). 1. The objection made to the introduction of any evidence on either count of the petition was in the nature of a demurrer to the petition on the ground that it failed to state any cause of action. The first count would authorize a recovery of damages, in an action other than slander, for mental anguish or shame caused by words addressed to the plaintiff, unaccompanied by any bodily pain or suffering. In Farber v. Mo. Pac. Ry. Co., 116 Mo. loc. cit. 91, 22 S. W. 631, 20 L. R. A. 350, it is said the relation of a carrier and passenger "places the carrier under the

obligation to carry the passenger safely and properly and treat him respectfully, and holds him responsible for the conduct of his servants to whom he intrusts the performance of his duty. He is bound to protect his passengers from violence and insults by strangers and co-passengers, and a fortiori against the violence and insults of his own servants." The action in the Farber Case was for personal injuries to the plaintiff caused by his being forcibly ejected from a train by a brakeman. In Eads v. The Metropolitan Ry. Co. (K. C.) 43 Mo. App. 536, in an action for damages caused by the forcible ejectment of plaintiff from a street car by the conductor, substantially the same language is used as in the Farber Case. Numerous authorities might be cited in support of the doctrine that a carrier of passengers is bound to treat its passengers with decorum and respect, and to protect them from the insults and assaults of strangers and copassengers, if it is necessary, but this duty is so obvious and necessary that it needs no judicial authority to sanction it. It is a general rule of law that, if damages ensue for a violation of duty, the party injured may have an action to recover his damages; but the law does not give damages for every injury, nor does every wrong subject the wrongdoer to a pecuniary penalty. In Trigg v. The St. L., K. C. & N. Ry. Co., 74 Mo., loc. cit. 153, 41 Am. Rep. 305, the court said, "The general rule is that 'pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity;'" that is, pain of mind will be the subject of damages when caused by the bodily injury itself, and also when the bodily injury does not in itself cause pain of mind, but was inflicted under circumstances which manifested malice or inhumanity or was accompanied by insult. We have been cited to no case in this state, nor have we been able to find one, where it has been held that mere words, unaccompanied by any bodily injury, not incident to such injury, was held the subject of damages, except in actions of libel and slander. On the contrary, it has been repeatedly held that a recovery of damages in such circumstances cannot be had. Spohn v. Mo. Pac. Ry. Co., 116 Mo., loc. cit. 632, 633, 22 S. W. 690; Connell v. The Western Union Tel. Co., 116 Mo., loc. cit. 46, 47, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575; Deming v. C., R. I. & P. Ry. Co. (K. C.) 80 Mo. App. 152; State v. Workman (St. L.) 75 Mo. App. 454. We conclude that the first count of the petition does not state a cause of action, and the objection to the introduction of any testimony on that count should have been sustained.

2. The second count of the petition is defective, in that it fails to allege that the con

ductor had authority from defendant, as its agent, to cause the arrest of the plaintiff, but we do not think that it is fatally defective for this reason. The conductor had charge of the car, and full control of it, for the time, and represented the defendant, in the fullest sense, as to any and every matter connected with its management and control; and, it being his duty to protect passengers from insult and injury, it cannot be said, as a matter of law, that in the discharge of this duty he has no authority to call an officer and cause the arrest of a passenger, when necessary to preserve the peace on board the car, and to protect his passengers from insult and injury. On the contrary, it seems to us that if a passenger should be guilty of a flagrant breach of the peace, to the annoyance and disturbance of his co-passengers, the conductor would have the right, and that it would be his duty, to cause his arrest by an officer, if one was by to make it. It is true, he is not a conservator of the peace, yet it is his bounden duty to preserve the peace on his car, and to prevent insult and injury to the passengers; and if, to discharge this duty, it should become necessary to call a policeman, we are satisfied that he should do so, and that to do so is within the scope of his employment, and conclude that the second count is sufficient after verdict. The evidence is that, under a rule of the company, the conductor did have authority to call a policeman-to call a policeman generally signifies that an arrest is to be made-and we think that, both from necessity and under the company's rules, it was within the scope of his authority to cause the arrest of any passenger when necessary to preserve the peace and to protect other passengers. After the relation of passenger ceased, of course, the authority of the conductor to cause his arrest ceased, and an arrest caused by him after the passenger had left the car would not be the act of the company, but the act of the conductor, for which he, and not the company, would be liable. The evidence, further, is that, while plaintiff was in the act of descending from the car for the purpose of taking another car on Laclede avenue, he was pushed off by the conductor, who at the same moment said to the policeman standing by, "Arrest that man," and that plaintiff was followed by the policeman, and arrested in the street. A police officer of the city of St. Louis, who has reasonable and probable cause to suspect the person arrested guilty of the commission of an offense, may lawfully arrest the offender without warrant (State v. Hancock [St. L.] 73 Mo. App. 19), and may therefore arrest upon the information of a third party, if the information is such as to furnish reasonable grounds and probable cause to believe that the person accused has committed an offense. While the evidence shows that the conductor made no formal charge against plaintiff upon which

the officer made the arrest, it does show that the officer was present when the altercation took place between the plaintiff and the conductor on the rear platform of the car, and that he followed the plaintiff into the street and made the arrest at the request of the conductor. The plaintiff had not quit the car when the conductor ordered his arrest. but was in the act of alighting from the car, and his testimony is that the order for his arrest was simultaneous with his being pushed from the car by the conductor. The order for his arrest was before he quit the car, and while he was yet under the protection of the conductor, and at a time when it was the duty of that employé to treat him with respect and to protect him from injury and insult. The order for the arrest was therefore given by the conductor while he was about the business of the company, and was within the scope of his authority, though in abuse of it. After his arrest the plaintiff was taken as a prisoner to a police station by the officer who made the arrest. To regain his liberty, he was compelled to enter into a recognizance for his appearance on the following day before a police justice to answer the charge of having disturbed the peace. In obedience to his recognizance, he did appear, but no one appeared to prosecute him. After hearing his statement, and the evidence of the police officer who arrested him, the justice discharged him, and here the chapter of humiliation ended. The evidence tends to show the commission of a malicious tort against the plaintiff by the appellant, through its agent, the conductor, acting within the scope of his employment. For such an act a corporation is liable to the same extent as an individual. Travers v. Kansas Pacific Ry., 63 Mo. 421; Hicks v. The Hannibal & St. J. R. R. Co., 68 Mo. 329; Haehl v. The Wabash Ry. Co., 119 Mo., loc. cit. 342, 24 S. W. 737; Canfield v. The C., R. I. & P. Ry. Co., 59 Mo. App. 354; McGinnis v. Mo. Pac. Ry. Co., 21 Mo. App. 399; Atlanta & West Point R. R. v. Condor, 75 Ga. 51; Quinn v. South Carolina R. Co. (S. C.) 7 S. E. 614, 1 L. R. A. 682; L. & N. R. R. v. Whitman, 79 Ala. 328; Sachrowitz v. A., T. & S. F. R. R. Co., 37 Kan. 212, 15 Pac. 242; Forsee v. Ala. G. S. R. R. Co., 63 Miss. 66, 56 Am. Rep. 801.

3. For the reason that the first count of the petition fails to state any cause of action, the judgment on that count is reversed.

4. The recovery of $1,450 as actual damages on the second count is, in the opinion of the court, excessive. Five hundred dollars would be adequate compensation for all the injury sustained. Wherefore it is considered that unless the plaintiff, within 10 days, files with the clerk of this court his remittitur of $950, the judgment will be reversed, and the cause remanded. If the remittitur be filed within the time herein allowed, the judgment on the second count will

PRINCIPAL AND AGENT-COMMISSION-SECURING TENANT-EVIDENCE.

1. Defendant agreed to pay plaintiff a certain commission if she obtained a tenant for a building which defendant was erecting. She showed the plans to one who wished to rent, and twice visited the building with him, but he refused to rent on the terms offered. After a portion of the building had been rented to other tenants, another real estate agent influenced the one whom plaintiff had solicited to rent the remainder of the building, and on different terms from those offered through plaintiff. Plaintiff took no part in the contract finally made. Held, that plaintiff was not entitled to a commission.

Appeal from St. Louis circuit court; O'Neill Ryan, Judge.

Action by Elizabeth. Henkel against Thomas Dunn. From a judgment for defendant, plaintiff appeals. Affirmed.

A. J. B. Garesche, for appellant. A. R. Taylor, for respondent.

An appeal was had to the circuit court of the city of St. Louis, where, a jury being waived, the case was tried before the court. The testimony showed: That in May, 1900, Lipshitz was desirous of obtaining new business quarters, and had suggested to Mrs. Dwyer to find him a location, and the latter, learning that Dunn was about to erect a five-story building at 1009 Lucas avenue, called upon him; and he promised that, if she obtained a tenant for him, he would pay her a commission of 1 per cent. upon the rental of the leasehold term. That thereupon she received the plans and specifications of the proposed building, and submitted them to Lipshitz, and twice visited the building with him while it was in course of erection. Lipshitz stated that the building was not finished, criticised its plan, and found fault with the location, and further told Mrs. Dwyer to wait, that the rental demanded

*Rehearing denied February 3, 1903.

1 See Brokers, vol. 8, Cent. Dig. § 82.

($3,500 per annum) was too high, and that Dunn would take less. Until the latter part of October, when the building was approaching completion, Mrs. Dwyer continued her efforts to prevail on Lipshitz to become Dunn's tenant; but she never prevailed on him to accept the rate demanded by Dunn, or to offer Dunn a rate acceptable to him. In the meantime the four upper floors, and, later, part of the second floor, through a real estate agent, had been rented to other tenants. About the 1st of November the same real estate agent, who had been negotiating with Lipshitz for a year prior, in an attempt to locate the latter in new business quarters, called upon him, and finally influenced him to again look at the remaining unoccupied portions of the Dunn building, namely, the basement, first floor, and part of second floor, and closed a lease therefor at the rate of $3,000 per annum. The testimony clearly showed that Lipshitz steadfastly refused to make any proposition approved by defendant through Mrs. Dwyer, or to accept any proposition made by her on behalf of the owner of the building to him. At the close of the testimony the court, at request of plaintiff, gave the following instruction: "The court declares the law to be that if the defendant authorized the plaintiff to rent the premises of the defendant, on Lucas avenue, and that in pursuance of such authority that plaintiff did make efforts to rent said premises, and did disclose and introduce to the defendant Morris Lipshitz, and thereupon negotiations were begun between the plaintiff, on behalf of said defendant, and said Morris Lipshitz, and through the exertions of the plaintiff the premises of the defendant were leased to said Morris Lipshitz, then the plaintiff is entitled to recover, even though the final negotiations were at a rental less than that authorized by the defendant, and even though said final negotiations were conducted by another agent of the defendant." And further gave the following instructions: "The court declares the law to be that, under the pleadings and evidence, that plaintiff is not entitled to recover." "The court instructs that there is no evidence in this case that the leasing of the premises of the defendant to Morris Lipshitz was induced by the plaintiff, and she is not entitled to recover."

From the foregoing statement of the testimony, which presents no issue of facts, it is manifest that plaintiff's assignor failed in her diligent efforts to accomplish a lease of the premises between defendant and Lipshitz, and that the latter, after the negotiations theretofore conducted by Mrs. Dwyer had terminated, finding he was compelled to obtain new quarters, finally accepted the tenancy of a portion of the building, which portion was considerably smaller than those parts he originally desired, and at a price higher than he was at first willing to pay for the whole of the portions of the building he deemed he required, but that this tenancy

was secured through the independent agency of Bowman, wholly without the instrumentality of Mrs. Dwyer. Pollard v. Banks, 67 Mo. App. 187. This case is not within the principle of Bass v. Jacobs, 63 Mo. App. 393; Wright v. Brown, 68 Mo. App. 577; and like authorities cited.

The judgment of the court below was therefore correct, and is affirmed.

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

RICHMOND v. SUPREME LODGE, ORDER OF MUTUAL PROTECTION

et al.*

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

PARTIES-ORDER TO INTERPLEAD-FAILURE TO OBJECT IN TIME-REVIEW-MUTUAL BENEFIT INSURANCE-ALTERATION OF BENEFIT CERTIFICATE-SUBSEQUENT BY-LAW-PRO

PRIETY.

1. Three days after a finding against plaintiff in a suit against a mutual benefit insurance association an order to interplead was made, and he filed a motion for a new trial, in which he failed to complain of the order, and only complained in another motion for a new trial, filed 10 days after the first. Held, that the propriety of the order cannot be reviewed.

2. A mutual benefit certificate provided that on the death of the assured the association would pay to his beneficiary the amount of one assessment, not exceeding $2,000, if the insured had complied with the charter, constitution, etc. It also provided that the express condition upon which it was issued was that the beneficiary's rights should be determined by the charter, constitution, laws, rules, and regulations of the order in force at the time the sum thereunder was payable. Afterwards the association adopted a by-law providing that a sum equal to one-fourth of the certificate must be paid by the member in assessments, failing which the deficit would be deducted from the face value of the certificate. Held that, as the certificate contemplated the modification of the parties' rights by subsequent by-laws, the change was within the power of the association, though the insured's consent was not obtained.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by William C. Richmond against the Supreme Lodge, Order of Mutual Protection, and others, in which Augusta Delano, as executrix of Rufus J. Delano, was made a party, and ordered to interplead. From the order to interplead, and from a judgment granting insufficient relief, plaintiff appeals. Affirmed.

Respondent the Supreme Lodge, Order of Mutual Protection, is a fraternal beneficial association incorporated under the laws of Missouri. It does business on the lodge plan. Franciska Richmond was a member of lodge No. 20, located in the city of St. Louis. She first became a member of the association August 18, 1888, and received a beneficial certificate insuring her life for a sum not to exceed $2,000. Subsequently she married the *Rehearing denied February 3, 1903.

appellant, and on March 28, 1892, surrendered her certificate, and received a new one, in which appellant was named as beneficiary. On July 11, 1901, she died. At the time of her death her certificate was in full force, and she was in good standing with the association, and had paid all the dues and assessments against her. The suit is to recover the amount of the certificate. The respondent filed an answer, in which it pleaded certain by-laws that, if enforced, reduced the amount due on the certificate to $1,816.80. It also pleaded that Augusta W. Delano, executrix of Rufus J. Delano, claimed the fund, setting out at length the merits and nature of the claim, and asked that she be made a party to the suit, offering to pay the amount found to be due on the certificate into court, and asking the court to require the appel lant and Augusta Delano, executrix of Rufus J. Delano, to interplead for the fund. A demurrer to this portion of the answer was filed, and by the court overruled, whereupon the plaintiff and respondent submitted the issues as to the amount due on the certificate to the court upon the following agreed statement of facts:

"It is stipulated and agreed between the plaintiff and defendant for all purposes of litigation arising out of a certificate issued at the request of Franciska Richmond to her for the benefit of her husband, William Richmond, dated March 28, 1892, as to the following facts: That this certificate was a reissue of one formerly issued to her by the defendant on the 22d day of August, 1888; that the application filed of the lastly mentioned date was the one signed by her at the time the first certificate named was issued to her; that section 164, cls. 2 and 3, of the by-laws of the defendant, were adopted by it after the 28th day of March, 1892, and were the by-laws of the defendant at the time of the death of Franciska Richmond; that the number of the members of the defendant were so numerous that an assessment according to the by-laws would exceed $2,000 in the event that the order should be required to pay such sum at the time of her death; that the said deceased, Franciska Richmond, had paid into the order, as assessments, since August 22, 1888, to the date of her death, the sum of $316.80. Should defendant, as it claims, be entitled to retain the difference to make up the 25 per cent. of the $2,000, according to the by-laws of the order, at the death of Franciska Richmond, then the court will find that the amount tendered into court by its amended answer is the sum of $1,816.80, and the correct sum owed on the benefit certificate recited in plaintiff's petition; otherwise the amount owed is $2,000. All by-laws of the order in existence at the date of the death of Franciska Richmond, her application, certificate, and charter and by-laws are as follows: * *

"The only part of the application referred

to by the parties in this agreed statement of facts made by the deceased, dated on the 18th day of August, 1888, which the parties deem necessary in this suit, is as follows: "That the express conditions upon which my beneficiary or beneficiaries herein named shall be entitled to participate in the widows' and orphans' protection fund are that every statement made by me in regard to my qualifications for admission into the order are true, and that I have heretofore, and shall continue, to comply in good faith with the charter, constitution, and by-laws of the order as now in force or as may hereafter be enacted.' This was signed by deceased.

"The benefit certificate issued by the defendant, made payable to the plaintiff, referred to in this agreed statement of facts, and referred to in plaintiff's petition, and filed as an exhibit thereto, is in words and figures as follows, to wit:

“Organized under the Laws of the State of Missouri. Supreme Lodge, Order of Mutual Protection. This certificate, issued by the Supreme Lodge, Order of Mutual Protection, witnesseth: That Franciska Richmond (formerly Kaysing), of St. Louis, Missouri, has been accepted as a member of the Order of Mutual Protection upon the faith of the representations contained in her application to the order and medical examination, and that the supreme lodge will, upon her death, provided she has, while a member, complied with the charter, constitution, laws, rules, and regulations of the order, pay from the widows' and orphans' fund the amount of one assessment, not to exceed, however, the sum of two thousand dollars ($2,000) to her husband Wm. Richmond, unless this certificate should be by her revoked. This express condition upon which this certificate is issued is that the rights of the above-named beneficiary or beneficiaries shall be determined by the charter, constitution, laws, rules, and regulations of the order in force at the time that the sum due hereunder is payable. In witness whereof the Supreme Lodge, Order of Mutual Protection, has caused this certificate to be signed by the supreme president, and its seal to be hereto affixed and attested by the supreme secretary. Accepted as a beneficiary member on March 28, 1892. Reissued. Original dated August 22nd, 1888. Done Bergham, Supreme President. chio, Supreme Secretary. [Seal: Lodge, Order of Mutual Protection. Organized 1878.]'

* J. F. G. Del VecSupreme

"The parts of the by-laws which the plaintiff and this defendant have agreed that are necessary to a determination of this case are as follows:

"'Sec. 138. Members to Have Control of.A contributing member to the widows' and orphans' protection fund shall have full control of his interest therein so long as he shall remain a member thereof, and he shall be entitled to draw upon the same in case of 71 S.W.-47

his total permanent disability, as hereinafter provided, notwithstanding the designation by him of some other person or persons to receive said benefit in case of his death.'

"Sec. 164. All beneficiary members of the order, regardless of the date of their benefit certificate or date of their enrollment as such members, shall pay into the widows' and orphans' protection fund, in assessments, in the manner provided by law, at least twenty-five per cent. (25 per cent.) of the amount named in their benefit certificates, before their beneficiaries or legal representatives shall be entitled to receive the death benefit; provided, that in the case of the death of a member before he had paid in assessments into the widows' and orphans' protection fund the full amount of the said twenty-five per cent., then there shall be deducted from the amount called for by his benefit certificate a sum equal to the unpaid portion of the said twenty-five per cent., and his beneficiary or beneficiaries shall receive the amount called for by the benefit certificate, less the amount so deducted, and no more. Whenever a claim is paid by the order on account of the death of a member who had not paid in assessments the required twenty-five per cent, of the amount of his certificate, the difference between the sum paid to the beneficiary and the amount of the benefit certificate canceled shall at once be withdrawn from the widows' and orphans' protection fund, and placed in the reserve fund.'

"Rights of Members and Beneficiaries.

"Sec. 67. The rights of a member, as well as the rights of his beneficiary or beneficiaries, shall be determined by the constitution and by-laws in force at the time a claim is made by him, or them, though the laws existing at the time such a claim is made may be in conflict with the laws in force at the time such member was enrolled as a beneficiary member.'

"Sec. 176. Authority to Draw from the Reserve Fund.-The reserve fund shall not be drawn upon unless it shall appear at any time that the amount contributed by the members to the W. O. P. fund is not sufficient to meet the liability of said fund on account of the death or total disability of the members, nor then unless the supreme lodge in session, or its executive committee between meetings, shall have authorized the action. It shall not, however, be in the power of the supreme lodge, or of the executive committee, to authorize the withdrawal of a greater sum from the reserve fund than is necessary to meet the actual existing liability.'

"Benefit Certificates.

""Sec. 190. Benefit certificates shall be issued by the supreme secretary, and shall be executed by the supreme president and the