supreme secretary, under the seal of the supreme lodge.

'Sec. 191. Each certificate shall be made payable for the benefit of such member or members of the applicant's family, or for such person or persons dependent upon him, as he may designate by name.

"Sec. 192. Should a member die without designating a beneficiary, or should his designation prove to be an unlawful one, then the claimants for the benefit shall be recognized in the following order, and no other: (1) Wife or husband; (2) children; (3) mother; (4) father; and (5) brothers and sisters.

"Sec. 193. Each application for a benefit certificate shall be accompanied by one dollar, and each application for a reissue by fifty cents.

mitted be overruled. Memorandum filed." This finding was made April 21, 1902. Mrs. Delano, as executrix, voluntarily appeared, and filed her answer, claiming the fund, setting out in extenso the facts upon which she made the claim. On April 24, 1902, appellant filed his motion for a new trial in which he assigned the following grounds therefor: "First. Because the by-laws relied upon by the defendant to reduce the amount from $2,000 to $1,816.80 were passed long after the certificate was issued to the deceased, and under which the plaintiff acquired his rights. Second. Because, if the defendant could, by any subsequent by-law, passed after the issuance of the certificate, reduce the amount of its liability 25 per cent., it might wipe out its entire liability. Third. Because the finding is against the facts and law as submitted to the court. Its finding ought to be for $2,000, instead of $1,816.80." On May 2, 1902, the following order (omitting caption) was made by the court: "Comes now the defendant the Supreme Lodge of the Order of Mutual Protection and pays into court the sum of $1,816.80, as requested by and in compliance with the order heretofore enter

"All of these by-laws were in full force from and after September 8, 1897, and at the time of the death of Franciska Richmond, and at the time proper notice and proof of her death were made to the order, and when said certificate became due and payable, which was on or about the 1st day of August, 1901."

On this agreed statement of facts the courts made the following finding: "Now at this day cause being submitted to the court on petition of plaintiff, amended answer of defendant Supreme Lodge, Order Mutual Protection, answer of Delano, executor, and agreed statement of facts, and the court, having heard the same and considered thereof, and being duly advised, doth find that said defendant the Supreme Lodge, Order Mutual Protection, owes on its benefit certificate recited in said petition and said amended answer the sum of $1,816.80, and the court doth order and direct said defendant the said Supreme Lodge, Order of Mutual Protection, to pay into court to the credit of this cause said sum of eighteen hundred and sixteen dollars and eighty cents due on said policy as aforesaid, and that upon payment of said sum into court as aforesaid said defendant be discharged from duty or obligation on account thereof, and that plaintiff and defendant Delano, executrix, do interplead for the same. It is further ordered that the demurrer to the answer of Delano herein before filed and sub

ant be discharged from further liability on account of the same; and it is further ordered that Andrew Mackay, Jr., attorney of said supreme lodge, be allowed for services $100.00, to be paid out of the fund aforesaid." On the following day appellant filed the following motion (omitting caption): "Now at this day comes the plaintiff in the above-entitled cause, and moves the court to set aside the orders heretofore granted and made in favor of the defendant, in ordering the plaintiff to interplead in said cause, and permitting defendant to pay into court only the amount of $1.816.80, and allowing its attorney, Mr. Mackay, out of said fund, the sum of one hundred ($100) dollars, and discharging it from further appearing in said cause, for the following reasons, to wit, and to grant a new hearing: First. Because said orders are not supported by the facts as they appear in the answer of said defendant and the agreed statement of facts submitted to the court prior to making said orders. Second. Because said orders are contrary to law and equity and the facts as they appear in the pleadings and records of the court. Third. Because said court ought not to have made the orders to interplead and to pay said money, $1,816.80, because said amount was disputed to be the correct amount; nor discharged the said defendant, and allowed its attorney $100 out of said fund." Both motions were overruled. Plaintiff appealed.

McKeag & Cummings, for appellant. Andrew Mackay, Jr., for respondents.

BLAND, J. (after stating the facts). 1. By the third clause of his motion filed the

3d day of May appellant sought to bring before this court for review the order of the court making Augusta Delano a party to the suit, and ordering her and plaintiff to interplead for the fund. The order to interplead was made April 21st. In his first motion for a new trial, filed April 24th, the error in making the order to interplead (if error it was) was not called to the attention of the court. The motion for new trial, filed on May 3d, by which the attention of the court was first called to the alleged error in making the order to interplead, comes too late; hence the propriety of the order is not before us for review. State v. Farmers' & Merchants' Nat. Bank, 144 Mo. 381, 46 S. W. 148; Bank v. Bennett, 138 Mo., loc. cit. 500, 40 S. W. 97; Brown v. Mays (K. C.) 80 Mo. App. 81. There is nothing before the court for review except the amount found to be due by the court on the certificate of insurance, and the propriety of the allowance of a fee of $100 to respondent's attorney.

2. The certificate of insurance provides that upon the death of the insured the association will pay to the beneficiary the amount of one assessment, not exceeding $2,000, if the insured, as a member, has complied with the charter, constitution, rules, and regulations of the order. The concluding clause of the certificate is as follows: "The 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." Section 164, adopted after the certificate of insurance had been issued, provides, in substance, that a sum equal to one-fourth of the amount of his certificate shall be paid by the member in assessments; that, if he should die before paying said amount, the deficit will be deducted from the face value of the policy, and be credited to the widows' and orphans' protection fund. In other words, to entitle a beneficiary to the face value of the certificate of insurance, the insured must have paid to the order in assessments a sum equal to one-fourth of the face value of the certificate. This bylaw makes a material change in the terms of the certificate as issued, and the change is to the detriment of the beneficiary. The question presented by the appeal is, was it within the power of the association to make this change without the express consent of the insured? of which there is no evidence. The constitution and by-laws of a mutual benefit association constitute a part of the contract of insurance with its members, and must be read into their certificates in order to see all the terms and conditions of the contract. Slater v. Supreme Lodge (St. L.) 76 Mo. App. 387; Laker v. Fraternal Union (St. L.) 95 Mo. App. 353. Neither the insured nor the beneficiary have a vested interest in a certificate of insurance issued by a mutual

benefit association during the lifetime of the insured. There being no vested interest in any one in the certificate, it is competent for the association and the insured to contract in advance that the terms of the contract may be changed by a by-law to be passed in the future. The certificate sued on expressly provides that such a change may be made. Section 164 is not harsh or unreasonable. It is in harmony with the benevolent purpose for which the association was formed, and was adopted, presumably, to more fully effectuate the benign purpose of the order, and should be upheld by the courts, as it violated no contractual relation between the assured and the beneficiary, and is for the benefit of the order. State v. Grand Lodge A. O. U. W. (K. C.) 78 Mo. App. 546; Brower v. Association (K. C.) 74 Mo. App. 490.

3. No question was raised by the appellant as to the right of the court to allow an attorney's fee in a case like this, nor is the fee allowed Andrew Mackay, Jr., attorney for the respondent, claimed to be unreasonable.

Discovering no reversible error in the record, the judgment is affirmed. All concur; GOODE, J., on the ground that the order for an interpleading was rightly made.

1. Where, in an action for conversion, it appeared that defendant purchased and paid for a stock of goods for his son (plaintiff's intestate) under an agreement that the sou should pay him by a certain date, and, if the son failed to do so, the agreement should be void, and the goods be turned over to defendant as his property, and there was evidence that the son paid nothing, and turned the goods over to defendant. an instruction that, though the defendant furnished the money, yet this gave him no right to the property, or to take possession thereof,

was error.

2. There being evidence that the son turned the goods over to defendant, and that he was in possession for several months before the son's death, an instruction which assumed as a fact that defendant took possession of the goods after his son's death was error.

3. Where, in an action for conversion of a stock of goods which defendant purchased and delivered to plaintiff's intestate under a conditional bill of sale, defendant, in his answer, construed such instrument as a chattel mortgage, he could not, without amending his pleadings, take a different position on the trial.

Appeal from circuit court, Shelby county; N. M. Shelton, Judge.

Action by Christina Bower, administratrix of the estate of William H. Bower, deceased, against Theodore L. Bower. From a judg ment in favor of plaintiff, defendant appeals. Reversed.

Drain & Williams, for appellant. Jewett & Son aud Mr. Dale, for respondent.

BLAND, P. J. Plaintiff, as administratrix of the estate of William H. Bower, deceased, brought suit against the defendant, alleging in her petition that her intestate was in the possession of a stock of furniture and undertakers' goods situated in a storehouse in the town of Bethel, Shelby county, Mo.; that, after the death of William H. Bower, defendant took possession of said goods and converted them to his own use; that the value of the goods was $3,500. The answer, omitting caption, is as follows: "Defendant, answering plaintiff's petition herein, denies each and every allegation therein contained. For another and further answer and defense, defendant says that on the 6th day of May, 1895, he loaned William H. Bower, since deceased, the sum of two thousand forty-one and 1/100 dollars; that same was invested in the purchase of a stock of furniture and undertakers' goods, the same being the stock of merchandise in controversy, except the jewelry, which was not a part of said stock, and was never at any time owned by the deceased or any of the parties to this suit, and to which none of said parties ever at any time had any interest or control over; that subsequently, on the 7th day of May, 1895, defendant and said William H. Bower entered into a contract in writing whereby it was agreed that if the note given by said William H. Bower for the purchase price aforesaid, to wit, the sum above, was not paid by the 7th day of May, 1897, that the said stock of goods should be turned over to, and become the property of, this defendant; that said purchase price was not paid defendant, nor any part thereof, and that, in accordance with said agreement, said stock of goods was turned over to defendant and became his property, unconditionally, and said note was canceled, and is now tendered plaintiff in this answer. Defendant says that at the death of said William H. Bower said stock of goods was the property of defendant, and that said Wm. H. Bower had no interest whatever therein. And having fully answered, defendant prays to be discharged, with his costs." The reply was a general denial of the new matter in the an

swer.

The evidence is that defendant purchased the goods in 1896 from his brother, and paid him for them, and put William Bower, who was his son, in possession and control of the goods under a written contract to be hereafter noticed. For plaintiff the evidence is that William Bower took charge of the store and goods, and dealt with them as his own, and tends to show that he continued in charge of them until his death, in September, 1901; that after his death defendant took charge of the store and goods, and converted the goods to his own use. Defendant paid $2,041.60 for the goods when he made the purchase, and the evidence is that there was about the same amount of goods on hand when William Bower died as when he first

took charge of them. For the defendant the evidence is that when he made the purchase of the goods the following contract was entered into between him and William Bower: "Bethel, Missouri, Shelby County, May 7th, 1895. Between T. L. Bower, party of the first part, and W. H. Bower, party of the second part. T. L. Bower, party of the first part, agrees to furnish the money to buy stock of furniture and undertakers' goods of W. C. Bower, and W. H. Bower, party of the second part, agrees to run and sell the furniture and undertaking tor party of the first part, and further agrees to pay all running expenses and rent, and pay six per cent. interest on purchase money, and party of the second part to receive all the profit after paying expenses; and it is further agreed that, the purchase money and interest not being paid by party of the second part by May 7th, 1897, then the above agreement shall be null and void, and shall then be turned over to party of the first part as his property. [Signed] T. L. Bower, Party of First Part. W. H. Bower, Party of Second Part." The evidence further shows that William Bower was the son of defendant, and was a man of dissolute habits; that plaintiff had been divorced from William Bower, and had in her divorce suit obtained a judgment of alimony against him, which had not been paid; that in May, 1897, William Bower had paid nothing on the goods to his father, and early in that month he surrendered them to his father for the reason that he was unable to pay for them, and that he intended to go West, to better his condition; that after the surrender of the goods to his father he continued to live with him, and stayed about the store part of the time, and aided in selling goods, but that the business was mostly conducted by the defendant's daughter and other members of his family in the name of and for the defendant. For the defendant the court gave correct instructions to the effect that, if defendant took possession of the goods under the written contract between himself and son before the death of the son, plaintiff could not recover. For the plaintiff the court gave the following erroneous instructions: "(2) Though the jury may find that the defendant furnished the money to pay for the property in controversy, yet this gave him no right to the property, or to take possession thereof." "(4) Though the jury may believe that defendant had a written contract with his son, Wm. H. Bower, by which it was agreed that in case said son did not pay for the property by a certain date the property was to become defendant's, still this gave defendant no legal right to take possession thereof after the death of Wm. H. Bower." No. 2 ignores the exist ence of the written contract between defendant and William Bower, and No. 4 assumes as a fact that defendant took possession of the goods after the death of William Bower, -the vital question in issue. Defendant ask

ed the following instruction, which was refused: "If you find from the evidence that Theodore L. Bower furnished the money for the purchase of the goods in controversy, and that Wm. H. Bower signed the contract read in evidence, then your verdict must be for the defendant, unless you further find that Wm. H. Bower repaid the purchase price thereof to his father." The uncontradicted evidence is that the owner refused to sell the goods to William Bower, and that he did sell them to defendant, and defendant paid him for them. If we should construe the contract between William Bower and defendant in the light of this evidence, we would hold the writing to be a conditional bill of sale, and that the goods were the absolute property of the defendant if they were not paid for as agreed in the written contract. But the defendant, by his answer, has construed the writing to be in the nature of a chattel mortgage; and he could not, without amending his pleadings, take a different position on the trial.

For error in giving instructions Nos. 2 and 4 for plaintiff, the judgment is reversed and the cause remanded.

1. Plaintiff's husband was killed by being knocked off a temporary scaffold by a moving elevator in a shaft where he was doing carpenter work upon a building. He was in the employ of an independent contractor, but the agent for the owner of the building, for whose use the work was done, had directed the manner and mode in which the particular work should be performed. Held, that the owner of the building (in the circumstances stated in the opinion) was bound to exercise reasonable care to prevent such a movement of the elevator under his control as caused the death of plaintiff's husband.

He

2. The employé of an independent contractor for the installment of an elevator, in the elevator shaft mentioned in the foregoing headnote, was working at the bottom of the shaft. requested a bystander to run the elevator out of his way, which he did, stopping the elevator at the third floor above. Afterwards the bystander was induced to run the elevator higher by a stranger, who appeared on the third floor. In consequence the elevator ran into a scaffold on which the plaintiff's husband was working. Held, that the contractor for the installment of the elevator was not liable for the act of the volunteer bystander in making the last upward movement of the elevator, in the circumstances described in the opinion.

3. Where an employé is present, so as to be able to direct in his work the action of a volunteer assistant, an inference is permissible that the former participates in the work of the assistant in the prosecution of the work in certain circumstances described.

Rehearing denied February 3, 1903.

4. The liability of an employer for negligence of his servant toward a third person depends on the principles of agency, and does not extend beyond the scope of the employment. It does not exist where the negligence is that of a substitute engaged by a servant without any authority to delegate his master's power in respect of the particular work in charge of the

servant.

5. The measure of care required of any person is marked by the circumstances of each case. It is such care as the person should have exercised in the opinion of the final judge of the event; and, if there is room for reasonable difference of opinion, then the criterion is the judgment of a jury determining the care which the rules of law require of that person. (Syllabus by the Judge.)

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by Margaretha Appel against the Eaton & Prince Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

J. F. Shepley and Percy Werner, for appellant Eaton & Prince Co. Valle Reyburn, for appellant Mississippi Valley Trust Co. Daniel Dillon, for respondent.

BARCLAY, J. We adopt the greater part of the lucid statement of the facts and of the proceedings in the trial court submitted by the learned counsel for the trust company, one of appellants, making some changes therein to conform to our views upon certain of the controverted points.

or.

This is an action under the statute (Rev. St. 1899, § 2865), brought by plaintiff, the widow of Mr. George Appel, against the Eaton & Prince Company and the Mississippi Valley Trust Company. In November, 1897, defendant the trust company was owner of a 10-story office building on Olive street, between Eighth and Ninth streets, in the city of St. Louis, commonly known as the "Burlington Building," which was undergoing a course of general repairing, each department of the work being performed by a contractMr. R. P. McClure was the general contractor for a portion of the repairs, including the carpenter work, and the deceased, Mr. Appel, was a carpenter in his employ. The codefendant, the Eaton & Prince Company, was the contractor for elevators in the building. The contract for that work, which was put in evidence by one of the defendants, recited that after the day of commencing work on the elevators the repairing contractor should have the uninterrupted use of the hatchways, and of so much of the building as might be necessary to get the machinery and the elevators in position, but he was to keep one elevator in operation for the use of tenants and material. Other classes of repairs were delegated by other separate contracts to other contractors to the number of 25 or more. Mr. A. E. Benoist had charge of the building, representing its owner, the trust company, and he occupied

an office therein. Mr. John H. Baird was the general agent in St. Louis of the Eaton & Prince Company. Mr. Jacob Hirsch was the superintendent of the work being performed by that company. Both Messrs. Baird and Hirsch were at the building daily. Mr. E. R. Van Sickle was a workman in the employ of the last-named company. He was designated by Mr. Baird as an assistant superintendent. The Eaton & Prince Company had in turn sublet part of the elevator work (including the wiring) to Mr. Charles Briner. November 24, 1897, the work upon the building was approaching completion. The elevators were nearly finished. On that day the east elevator was in operation for the convenience of the tenants of the building, but the west elevator was (and had been for a period of several days) not in common use. It was "dead," as styled by the witnesses. These were hydraulic elevators; that is, they were operated by water pumped to the roof by steam power from an engine in the cellar of the building. Mr. W. A. Savage, an engineer in the employ of the trust company, operated and managed the steam engine and boiler. To stop the elevators, it would have been necessary to turn off the steam and water entirely. On the day mentioned carpenters (including Mr. Appel) in the employ of Mr. McClure were engaged in casing the elevator shafts, to perform which work a scaffold was built across the west elevator shaft, upon which workmen stood. The work advanced from the top floors of the building downward, one shaft at a time. The work progressed at the rate of about one story each day. On the day of the accident the workmen were engaged between the seventh and eighth floors on the west elevator shaft. The higher floors had been finished. During the day some of the carpenters, inIcluding deceased as well as the general contractor, Mr. McClure, applied to Mr. Benoist to have the east elevator cease running for passenger use, so that the work of casing the shaft could be transferred to the east elevator; but Mr. Benoist declined, replying that the east elevator was required for the convenience of the tenants of the building. The west, or "dead," elevator, while not then in general use for passengers, had, on November 24th, been operated eight or ten times by workmen employed by Mr. Briner, the subcontractor of the Eaton & Prince Company, engaged in wiring the annunciators of the west elevator, and standing on the top for that purpose. These men assert that they had been cautioned against running the elevator so high or so far as to strike the scaffold of the carpenters working in this elevator shaft. About 4 o'clock p. m. the men employed in wiring the west elevator ceased work, lowered the elevator to the basement, and told Savage, the engineer, to turn off the steam; but Mr. Van Sickle told Mr. Savage that he (Mr. Van Sickle) wanted to use this elevator a while, and took charge

of it to finish the elevator pit, as he had been directed to do by both Messrs. Hirsch and Baird. At this time (about half past 4 o'clock p. m.) Mr. Israel Loewenstein, formerly, but not then, in the employ of Eaton & Prince Company, entered the building, and went to the west elevator, where he saw Mr. Van Sickle at work putting in a casing of brickwork around the shafting. When he had finished, he asked Loewenstein to take the elevator out of his way, so that he (Van Sickle) could clean out the débris beneath. Mr. Loewenstein then ran the elevator to the second floor to find a friend, as he testifies, and then continued to the third floor in the same search. At that floor he stopped the elevator. An outsider then came along, unknown to Loewenstein, and asked the latter to take him upstairs. Loewenstein replied that the elevator was not in use, but "dead," and to take the east elevator. The man said he was in a hurry. Loewenstein then took him in the elevator to the seventh floor, where the elevator struck the scaffold on which plaintiff's husband was at work, so injuring him that he died nine days afterwards.

The foregoing is a sufficient outline of the main features of the case. There was testimony tending, at least, to establish the facts recited above. Some further items of proof will be mentioned in the course of the opinion to give a complete view of the vital point of the litigation which is found in the acts of Messrs. Van Sickle and Loewenstein and their relation to the Eaton & Prince Company.

The learned trial judge refused an instruction in the nature of a demurrer to the evidence, asked by each of defendants. He gave a number of instructions, which will be touched upon later. The jury found for plaintiff against both defendants, and assessed her damages at $3,000. Both defendants moved for a new trial, without success. Then they appealed to the supreme court after saving exceptions in the usual way. The supreme court transferred the cause to this court under the provisions of the law of 1901 increasing the jurisdiction of the courts of appeals (Laws 1901, p. 107).

1. Each of the defendants insists that there is no liability on its part. As to the trust company, the facts admitted, or shown by its own testimony, make out a perfectly clear case of liability. The plaintiff's husband was in the employ of Mr. McClure, the chief contractor for the work being done upon the building. It is clear, however, that, whatever may have been the actual terms of the contract on that point, the trust company was exercising a direct supervision and control over the execution of the very work on which Mr. Appel was engaged at the time of his injury. Mr. Benoist was entirely frank in his statement of the facts. His interview with the Messrs. McClure and Appel in regard to the placing of the scaffold on which