source: Caselaw Access Project

author:
LAMM, J.
      Woodson, J.,

license: Public Domain

text:
    ORA W. STID v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    April 2, 1908.
    1. MOTION IN ARREST. In certain .phases the precise, technical office of a motion in arrest has become somewhat obscure. But speaking with precision, it is not a motion for a rehearing. If granted it does not necessarily result in a new trial. It is no essential element in an appeal. It is not infrequent practice to appeal without one. The most to be said of a motion in arrest is that, if one be not filed, the appellate court . will not consider matters of error to which the trial court’s attention could only be called by a motion in arrest.
    2. -: Final Judgment. A final judgment can be entered in a cause while a motion in arrest is pending.
    3. -: Overruled at Subsequent Term. The overruling of a motion in arrest, at a subsequent term, without a continuance, without the presence of the necessary conditions authorizing a nunc pro tunc entry, is a nullity, and a recital on the record at such subsequent term that it was then overruled is also a nullity.
    4. -: Premature Appeal. After judgment, appellant filed motions for a new trial and in arrest. Neither of them being disposed of, the cause was continued to the next term, at which the motion for a new trial was overruled, and appellant filed its affidavit and bond for appeal, and the bond was approved, the appeal allowed, and time given to file a bill of exceptions, and within proper time a certified copy of the judgment and order of appeal was filed in this court. At the next term after the motion for a new trial was overruled, the record shows the motion in arrest was. overruled. Later in the same term and within the time extended, the bill of exceptions was allowed, signed, filed, and made a part of the record, and it recites that at the preceding term the court overruled appellant’s “motion for a new trial and motion in arrest - of judgment,” to which exceptions were saved. EelcL, that, there was a final judgment, and the appeal was not premature,, and will not be dismissed.
    5. -: -: Recitals in Bill of Exceptions. The bill of' exceptions having been allowed, signed, filed and made a part of the record, and reciting that the. motions for new trial and in arrest were overruled and exceptions saved, must for some purposes be reckoned with, although the record entry shows no entry of the overruling of ' the motion in arrest until a. subsequent term after the motion for a new trial was overruled and appeal taken. Where there is no record entry pertaining to the motion in arrest at the term when the motion for ,a new trial was overruled and an appeal was taken, it cannot be said that there is any conflict in the recitals in the bill and the record, the true record proper being silent as to the motion in arrest.
    6. -: Abandonment: What Points Considered. Where motions for a new trial and in arrest were timely filed and the record shows no ruling on the motion in arrest, but does show the motion for new trial was overruled and an appeal taken and allowed, it will be held on appeal that the motion in arrest was abandoned, and the case will be heard on the points raised by the motion for a new trial.
    7. APPEALS: Liberal Construction. An appeal is the creature of the statutes, and the object to be subserved is to get at the right of the cause, and statutes pertaining to appellate procedure are entitled to a liberal construction.
    On Motion to Dismiss-Appeal.
    Motton overruled.
   LAMM, J.

— Defendant appealed from a judgment of $16,000, rendered June 19, 1906-, at the June term of the Jackson Circuit Court. "Within four days thereafter defendant filed a motion for a new trial and a motion in arrest of judgment. Neither of them was disposed of at the trial term. At the ensuing term, to-wit, the September term, 1906, on the 6th day of October, the motion for a new trial was overruled and .an entry to that effect made. On the heels of that entry ;at the same term, to-wit, on October 22d, defendant filed its affidavit and bond for appeal. Its bond was approved, its appeal allowed and time given to file its bill of exceptions. In dne time, the time for filing the bill was extended. Following that entry and at the December term, to-wit, on December 20, 1906, an entry spread of record shows the motion in arrest was overruled as of that date. Eleven days later, at the same term, in apt time, the bill of exceptions was allowed, signed, filed and made a part of the record. That bill contains the following statement: ‘ ‘ On Saturday, October 6, 1906, the court overruled defendant’s motion for a new trial and motion in arrest of judgment. To which action of the court in overruling said 'motions and each of them the defendant at the time duly excepted.”

Attending to the dates, it appears the appeal was taken at the September term and. the motion in arrest was not overruled until the December term. If, however, force be given to that part of the record preserved in the bill of exceptions the motion in arrest was overruled at the same time as the motion for a new trial, and exceptions were saved to overruling both.

On the theory there is no final judgment from which an appeal lies until the motion in arrest be overruled, plaintiff files a motion here to dismiss the appeal as premature.

Defendant presents suggestions against that motion duly served on respondent’s counsel. In those suggestions, verified by affidavit, it appears it had. been the custom and practice in the circuit court of Jackson county to hear and determine the motion in arrest at the same time the motion for a new trial is heard and determined unless particular reason exists for separating the hearing and determination of such motions, which particular reason did not exist in this case. That defendant’s counsel had always supposed the motion in arrest had been passed upon at the same time the motion- for a new trial was overruled, according to custom, and he knew no better until served with a notice of the filing of the motion to dismiss the appeal. That the belated entry of December 20, 1906, overruling the motion in arrest, was made without notice to him and without his knowledge. Counsel does not know whether it was made under the direction of the court or by the clerk of his own motion and has been unable to ascertain how or why it happened to be made.

It further appears that the transcript was lodged in this court on November 22, 1906, and that when counsel was served with notice of the motion to dismiss the appeal, the time had passed in which a writ of error could be sued out, so that if the appeal be dismissed, defendant, if not without all remedy, at least is placed in a situation of extreme peril in its right to review.

The point made by plaintiff’s learned counsel is novel and, bespeaking careful consideration, it has been deemed best to hand down our views in writing.

Under our practice the precise, technical office of a motion in arrest has become somewhat obscure in certain phases. For example, cases might be cited where matter quite properly covered by a motion in arrest has been considered on appeal when no such motion was in the case but appellant had rested on a motion for a new trial alone. Again, there are cases in which matter proper in arrest of judgment has been considered and determined where there was no bill of exceptions and only the record proper was here; for example, where the petition states no cause of action. The office of a motion in arrest, is said to be to call the court’s attention to error patent of record. The error must be intrinsic to the record, and not dehors the record, and must be matter of substance as distinguished from matter of form. One or the other of the foregoing propositions may be found sustained in one or the other of the following authorities: Funkhouser v. Mallen, 62 Mo. l. c. 558; Jaccard v. Anderson, 32 Mo. 188; Welch v. Bryan, 28 Mo. 30; Pickering v. Telegraph Co., 47 Mo. l. c. 460; State v. Larew, 191 Mo. l. c. 196; Childs v. Railroad, 117 Mo. 427; State to use of St. Louis County v. Bonner, 5 Mo. App. l. c. 16; White v. Caldwell, 17 Mo. App: 691; 2 Ency. Pl. & Pr., pp. 794-6.

Speaking with precision, a motion in arrest is not a motion for a rehearing. If granted, it does not necessarily result in a new trial. If an amendment be allowed, the cause by statutory command proceeds “according to the practice of the court.” [R. S. 1899, sec. 804.] When we consider the limited and humble office of a motion in arrest in the light of the authorities cited, it can be seen to be no essential element in an appeal. It is a not infrequent practice to appeal without one. The most to be said of such motion is that, if one be not filed and passed upon by the trial court, an appellate court will not consider matter of error to which the trial court’s attention could only be called by a motion in arrest. In. the case at bar it is urged there could be no final judgment while the motion in arrest was pending. It is pointed out that the record entries show that while one was filed it was not passed upon until after the court below had lost jurisdiction by the appeal and, therefore (it is argued), the appeal was taken from a judgment not final. [R. S. 1899, sec. 806.] But we are all of the opinion this contention is without substantial merit.

In coming to this conclusion we lay no stress on the overruling of the motion in arrest at a term subsequent to the taking of the appeal. At the time of that ruling the court had lost jurisdiction of the case although it had not lost jurisdiction of the record. It had left to it power only to amend its record by a nunc pro tunc entry so as to tell the truth and not a falsehood — keeping in mind the limitations on the right to make nunc pro tunc entries. [Jones v. Ins. Co., 55 Mo. l, c. 344; Exchange National Bank v. Allen, 68 Mo. 474; DeKalb County v. Hixon, 44 Mo. 342; State v. Logan, 125 Mo. l. c. 25.]

The belated entry in hand does not purport to be a nunc pro tunc entry to amend the record and we can assign it no known use. It was a nullity. The ease from the view point of the record entries stands, then, as though there was no overruling of the motion in arrest. However, when we come to consider the bill of exceptions we are confronted with another situation. The bill having been settled, signed and filed in due time, became a part of the record of the case and for some purposes must be reckoned with. It shows the motion in arrest was in fact overruled and that defendant saved an exception to that ruling. It is familiar doctrine that such exception could appear nowhere else than in the bill of exceptions. Now, in order to preserve an intelligent exception, the ruling of the court on the motion should appear in the bill, as it does in connection with the exception. [State ex rel. v. Gaither, 77 Mo. 304; In re Pound’s Estate v. Cassity, 91 Mo. App. 424.] When the whole record is considered, including the bill of exceptions, we see preserved properly in the bill a ruling on the motion and an exception to that ruling, but when we turn to the record entries there is (barring the abortive entry of December 20th) an absence of any ruling whatever. If the bill of exceptions contradict the entries in the record proper in particulars of fact, which should only appear in the record proper, then it might very well be said that the recitals in the.bill could not be ■allowed to establish the fact. [Ricketts v. Hart, 150 Mo. l. c. 68; York v. Stigall, 204 Mo. 407.] But in this case there is no conflict. True the record proper is silent, but the bill of exceptions speaks saying that the trial court ruled a certain way on the motion and the defendant excepted to that ruling. A bill of exceptions, in the first instance, is usually settled by counsel on both sides. Presumably, this bill took the usual course and was agreed to by counsel and became a part of the record by consent. Plaintiff made no objection to the filing of the bill. There is nothing here to show that plaintiff objected to the order granting an appeal because of the pendency of a motion in arrest. We ' do not say the absence of such objections is fatal to respondent’s motion to dismiss. We only say that omissions of like character have been the subject of comment. [State ex rel. Title Guaranty & Trust Co. v. Broaddus, 210 Mo. 1; Reinauer v. Railroad, 210 Mo. 109.] We say, further, that, the premises all considered, we could with good; show of reason hold there was sufficient record here to show that the motion in arrest had been overruled in apt time and that defendant had excepted precisely as indicated in the bill of exceptions. But there are cases taking another view (Harding v. Bedoll, 202 Mo. l. c. 635, and cases cited), and we need not allow our ruling to stand on that basis.

We hold the judgment, with the motion pending, was a final judgment from which an appeal lies. We put our holding on the ground that it seems consonant with the good sense of the thing. If, for instance, there had been a motion for a new trial pending it would not ■operate per se to stay the issuance of an execution. [Ex parte Craig, 130 Mo. l. c. 595.] By analogy, a motion in arrest should have had no more efficacy in that line than a motion for a new trial. A judgment that is final enough to he enforced by execution (barring a supersedeas bond) ought to be held a final judgment for the purpose of appeal. It is true this court had construed our code of appellate procedure to mean that the term at which the motion for a new trial is determined should be considered the judgment, or trial term for the purposes of appeal. That is a convenient rule in the administration of justice. [State v. Larew, supra, and cases cited; Childs v. Railroad, 117 Mo. 414.] But it was also held in the Larew case that a motion in arrest fills no' such office.

An appeal being the creature of the statute, the object to be subserved being to get at the very right of the-cause, statutes pertaining to procedure are entitled to a liberal construction and courts should not be prone to plant thorns in the path of appeal. Hence, we are of opinion that defendant should be heard on points raised by its motion for a new trial. It will be sufficient to deny it the right to be heard on questions raised by and peculiar to the motion in arrest because it does not present here a record entry overruling that motion in form. In effect, the situation is the same as if the motion had not seen the light, or was abandoned and out of the 'case.. This is as far as we are willing to go, and it is far enough.'

The motion to dismiss the appeal is, accordingly, overruled.

All concur.

Woodson, J.,

concurs in what is said but is also of the opinion that the motion should be overruled for the reason that the bill of exceptions contains sufficient memoranda upon which to base a motion for a nunc pro tunc entry overruling the motion in arrest and that under the facts of this case that privilege should be extended to the appellant before the motion is passed upon.


author: CRAVES, J.

text:
    IDA PHILLIPS, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    April 13, 1908.
    1. RAILROAD HOSPITAL: Public Charity: Liability. A hospital association, organized by a railroad company, having for its incorporators and officers chief officers of the railroad, who make its rules and regulations, having for its , object to provide medical and surgical treatment and care for the employees of the railroad exclusively, and maintained by a monthly deduction from the wages of said employees without their consent thereto, and requiring notice to the railroad company’s chief surgeon and claim agent whenever an employee is removed to its hospital, and making the chief surgeon and the other surgeons of the association the chief surgeon and division surgeons of the railroad company, is not a public charity or a charitable institution.
    2. -: Alter Ego of Railroad. Such an association, though having a separate corporate charter, is the railroad company itself, its alter 'ego. At least it is its agent, and the negligence of the agent is the negligence of the railroad company.
    3. -: -: Negligence: Evidence: Letter from Chief Surgeon. Plaintiff’s husband had been an employee in defendant railroad’s auditor’s department, and from his monthly wages defendant had taken out a small fee which entitled him to be received at a hospital maintained by defendant for the care and treatment of its employees. The hospital was owned and managed by a separate corporation, which was defendant’s alter ■ego, at least its agent. He lived in St. Louis, and on a round-trip ticket went to the hospital at Springfield, and was treated for a time, and then on the return part' of the ticket returned to St. Louis, arriving there about seven o’clock in the evening, and left the train unattended, and about nine . o’clock a man partly dressed in a condition to retire for the night, was lying across one of the street car tracks and was run over and killed by a passing car, and it was afterwards shown that the man was plaintiff’s husband. One of the rules of the defendant company, promulgated for the government of the hospital, forbade treatment for insane employees, and another required the chief surgeon of the hospital, who was also the defendant’s chief surgeon, to notify the auditor’s department that plaintiff’s husband could no longer be kept. Held, that a letter written by the chief surgeon to the assistant auditor two days after the death of deceased, but at a time when neither knew he had been killed, in which it was stated that deceased “was in the asylum and is mentally unbalanced,” was erroneously excluded from evidence. Being an admission made by defendant’s agent pertaining to things occurring and being done by the agent in the course of the performance of his duties, it was an admission of defendant that it had knowledge that plaintiff’s husband was mentally unbalanced.
    4. '■-: -: -: -: -: Res Gestae. Said letter was in the nature of a report made by one official to another, contemplated by defendant’s rules, and is not in the same line as a statement made, after an accident, but too late to he recognized as a part of the res gestae.

    5. -: Negligence: Placing Insane Patient On Train: Proximate Cause. Where defendant’s chief surgeon had knowledge that plaintiff’s husband, who had been treated in its hospital, of which he had charge, was insane, and permitted him to be placed on a train, unattended and without notice to his family, knowing that he would have to find his home in St. Louis to which he was going, it was for the jury to say, under properly guarded instructions, whether or not the chief surgeon, and therefore defendant, might have reasonably expected that when the man reached St. Louis he i would place his practically undressed body across a street railway track and be killed by an oncoming car. If the injuries are the natural, though not the necessary and inevitable result, of the negligent fault — such injuries as,are likely, in ordinary circumstances, to ensue from the omitted care — the defendant is liable. The jury must find that the deceased was insane, that defendant knew that fact, and that his placing of his practically undressed body across the street railway track in front of the car was occasioned by reason of his insane condition.
    Appeal from St. Louis City Circuit Court. — Now. Moses N. Sale, Judge.
    Reversed and remanded.

      Joseph A. Wright for appellant.
    (1) Neither negligence nor contributory negligence can be imputed to an insane person. Williams v. Hays, 157 N. Y. 541, 143 N. Y. 442, 2 App. Div. (N. Y.) 183; Jackson v. Railroad, 157 Mo. 621; Washington v. Railroad, 17 W. Ya. 190; Railroad v. Gregory, 58 111. 226; Wharton on Negligence (2 Ed.), secs. 87, 88; Campbell v. Railroad, 175 Mo. 161; Anderson v. Railroad, 161 Mo. 411; Stern v. Bensieck, 161 Mo. 146. (2) The evidence did not justify the court in declaring as a matter of law that the deceased committed suicide. Laessig v. Travelers’ Protective Association, 169 Mo. 272; Royal Arcanum v. Brashears, 89 Md. 624; Stotler v. Railroad, 200 Mo. 107,146; Home Benefit Association v. Sargent, 142 U. S. 691; Ins. Co. v. Wiswell, 56 Kan. 765; Ins. Co. v. Pogue, 105 Fed. 172. (3) Suicide, if the deceased was insane, is no defense in an action charging breach of duty to an insane person. Wells v. Railroad, 49 N. Y. Supp. 510; Railroad v. Parry, 67 Kan. 515; Worthington v. Mencer, 96 Ala. 310; Thompson on Negligence, par. 338; Simpson v. Rhode Island Co., 26 R. I. 200. (4) The injury in the precise form in which it in fact occurred need not have been foreseen; it is sufficient if it now appears to have been a natural and probable consequence. Hoepper v. Southern Hotel Co., 142 Mo. 378; Harrison v. Kansas City Electric Light Co., 195 Mo. 606; Graney v. Railroad, 140 Mo. 89; Miller v. Railroad, 90 Mo. 389; City of Dixon v. Scott, 181 111. 116; Hill v. Windsor, 118 Mass. 251; 1 Thompson on Negligence, par. 59. (5) Defendant was negligent as a common carrier of passengers for hire, in not extending to the deceased that degree of care and protection demanded on account of his known and apparent insane condition. Railroad v. Parry, 67 Kan. 515; Wells v. Railroad, 49 N. Y. Supp. 510; Eidson v. Railroad, 23 So. 369; Foss v. Railroad, 66 N. H. 256; Croom v. Railroad, 52 Minn. 296; Railroad v. Gilmer, 18 Tex. Civ. App. 680; Hutchinson on Carriers (3 Ed.), 992; 3 Thompson on Negligence, par. 2934. (6) Defendant failed and omitted to give deceased the care and protection contracted for. Ward v. St. Vincent’s Hospital, 57 N. Y. Supp. 784; Hewett v.'Woman’s Hospital, 73 N. H. 556; Texas & Pacific Coal Co. v. Connaugliton, 20 Tex. Civ. App. 642; Brown v. LaSocieté Francaise, 138 Cal. 475; Grlavin v. Rhode Island Hospital, 12 R. I. 411. (7) The hospital association is the general agent of defendant in caring for its sick employees, supported by their contributions, and has none of the essential elements of a charity. Haggerty v. Railroad, 100 Mo. App. 424; Coe v. Washington Mills, 149 Mass. 543; Brown v. LaSociete Francaise, 138 Cal. 475 ; Miller v. Railroad, 65 Fed. 305; Texas & Pacific Coal Co. v. Connaughton, 20 Tex. Civ. App. 642. (8) The use made by defendant of the hospital association is not within the provisions of article 2, chapter 12, Revised Statutes 1899, and defendant is liable in the same manner as if operating through a relief department of the company’s regular business. Hiatt v. Fraternal Union, 99 Mo. App. 105; In re St. Louis Institute, 27 Mo. App. 633; Franta v. Bohemian Union, 164 Mo. 304; Re Globe Mutual Benefit Association, 135 N. Y. 280, 17 L. R. A. 547; State v. Ohio Central Relief Assn., 29 Ohio St. 399; Bacon on Benefit Societies and Life Insurance (3 Ed.), par. 62; Angelí and. Ames on Corporations, par. 126. (9) The letter from George W. Cale, Jr., chief surgeon, to W. P. Newton, is admissible in evidence. McDermott v. Railroad, 87 Mo. ’287; State ex inf. v. Packing Co., 173 Mo. 356; Mekell v. Ins. Co., 144 Mo. 420; Malecek v. Railroad, 57 Mo. 17; Hill Bros, v. Bank of Seneca, 100 Mo. App. 250; Sisk v. Ins. Co., 95 Mo. App. 710; Kirkstall v. Railroad, L. R. 9 Q. B. 468; MeGenness v. Adriatic Mills, 116 Mass. 177; Hall v. Ins. Co., 23 Wash. 610; Railroad v. Closser, 126 Ind. 348; Ins. Co. v. Monarch, 99 Ky. 578; Trust Co. v. Ins. Co., 71 Fed. 81; 2 Wharton on Evidence, par. 1177.

      W. F. Evans and J. G. Egan for respondent.
    (1) Defendant is not liable for negligence, if any, of the physicians of the hospital association. Railroad v. Artist, 9 C. C. A. 14, 60 Fed. 365; Pierce v. Railroad, 66 Fed. 44; 15 Am. and Eng. Ency. Law (2 Ed.), 763. (2) One who employs a physician to attend another is hound only to exercise ordinary care in selecting the physician, and where such care is used, is not liable for the negligence of the physician. Railroad v. Artist, 9 C. C. A. 14, 60 Fed. 365; Pierce v. Railroad (C. C. A.), 66 Fed. 44; Quinn v. Railroad, 94 Tenn. 713, 28 L. R. A. 552; Haggerty y. Railroad, 100 Mo. App. 451'; Railroad v. Sullivan, 141 Ind. 83; Railroad v. Zeiler, 54 Kan. 340; Richardson v. Coal Co., 10 Wash. 648; Railroad v. Price, 32 Fla. 46; Eighmy v. Railroad, 93 Iowa 538; Railroad v.- Hanway, 57 S. W. 695; Secord v. Railroad, 18 Fed. 221; 3 Elliott on Railroads, sec. 1388; Iron Co. v. Ketron, 102 Va. 23; Pearl v. Railroad, 176 Mass. 177. (3) An insane person is liable for his torts. McIntyre v. Sholty, 121 HI. 600; Krom v. Schoonmaker, 3 Barb. 647; Cross v. Kent, 32 Md. 581; Jewell v. Colby, 66 N. H. 399; Morse v. Crawford, 17 Vt. 499; Ward v. Conatser, 63 Tenn. 64; Morain v. Devlin, 132 Mass. 87; 1 Cooley on Torts (3 Ed.), pp. 171-177; Buswell on Insanity, sec. 355; note 26 L. R. A. 153. (4) Upon the theory oh which the plaintiff charges the defendant was negligent, the plaintiff was contributorily negligent, and has no right to recover. Wiese v. Remme, 140 Mo. 289; Bamberger v. Railroad, 95 Tenn. 18; City of Pekin v. McMahon, 159 111. 141; Smith v. Railroad, 92 Pa. St. 450. (5) The duty of the defendant was performed when it discharged James B. Phillips safely at his destination. Hendrick v. Railroad, 136 Mo. 548. (6) The burden is upon the plaintiff to prove that some negligence of the defendant was the proximate cause of the death of Phillips. Harper v. Term. Co., 187 Mo. 586; Warner v. Railroad, 178 Mo. 134. (7) The facts as to the death were clear and undisputed, and the question of proximate cause was for the court to determine. Henry v. Railroad, 76 Mo. 288. (8) The liability of a party for his negligence is limited to injuries which he could-have foreseen as a probable consequence, and which are the direct consequence of his negligence. Haley v. Railroad, 179' Mo. 30; Henry v. Railroad, 76 Mo. 288; Saxton v. Railroad, 98 Mo. Ap-p-. 501; Scheffer v. Railroad, 105 U. S. 249; Daniels v. Railroad, 183 Mass. 393; Korn v. Railroad, 125 Fed. 897; Nash v. Railroad, 136 Ala. 177; Caukler v. Railroad, 130 Mich. 666; Brown’s Admr. v. Railroad, 19 Ky. Law R. 1873 ; Railroad v. Valleley, 32 Ohio St. 345; Hamilton v. Railroad, 183 Pa. St. 638; Hullinger v. Worrell, 83 111. 220; Adkins v. Ins. Co., 70 Mo. 27; Streeter v. Accident Society, 65 Mich. 204. (9) Defendant is not liable for the suicide of Phillips. Scheffer v. Railroad, 105- U. S. 249; Daniels v. Railroad, 183 Mass. 393. (10) The letter from Dr. Cale to Mr. Newton was not authorized by the defendant, was not a part of the res gestae in any transaction by Dr. Cale for the defendant, and was not admissible. Koenig v. Union Depot Co., 173 Mo. 721; Redmon v. Railroad, 185 Mo. 11; Devlin v. Railroad, 87 Mo. 549; Aldridge’s Adm. v. Furnace Co., 78 Mo. 559; Rogers v. McCune, 19 Mo. 569.
   CRAVES, J.

— This is an action by the widow to recover the sum of $5,000; for the alleged negligent killing of her husband, James B. Phillips, who died April 11, 1904. The trial court having given a peremptory instruction to find for the defendant, the plaintiff took an involuntary nonsuit, with leave, and after unsuccessful motion to set aside the nonsuit so taken, perfected her appeal to this court.

Phillips, the deceased, was an employee of defendant in its Auditor’s department. As such employee there had been taken ont of his wages a small monthly hospital fee, which entitled him to be admitted and treated in a certain hospital system alleged upon the one hand to be maintained by the defendant for that purpose, and upon the other hand to be a separate and distinct corporation from the defendant, and maintained by certain employees of defendant, and not by the defendant itself. Shortly prior to his death Phillips had been furnished a pass by the defendant over its line from St. Louis to Springfield and return, and using such employee’s pass he went from St. Louis to Springfield to take treatment for his ailments in the hospital there, which was a part of the hospital system above mentioned. For a time he was treated and on a certain morning took passage upon one of defendant’s trains at Springfield bound for St. Louis, his home. This train arrived about seven o’clock that evening and deceased left the train unharmed. About nine o’clock of the same evening a man, partially undressed and in condition to retire for the night, was lying across one of the many street car lines of the city and was run over and killed by a passing car. Some two weeks later the body was exhumed and identified as that of James B. Phillips. Plaintiff had no knowledge of the peculiar and untimely death until about the latter date. The claim is that Phillips was mentally unbalanced, which fact was known to defendant, and that defendant was remiss in duty in not notifying his family of his departure from the Springfield hospital before Ms arrival in St. Louis, and further in turning loose upon the streets of said city, unattended, a man in that known mental and helpless condition.

There are several peculiarly interesting questions, which, together with the incident facts, will be duly noted.

I. Plaintiff having been cast npon her proof rather than npon the pleadings, the legal questions involved must be entwined with all pertinent facts shown. In such case the facts proven by her are established facts for the purposes of this review. At the threshold of the inquiry is the relationship between defendant and “The Employees’ Hospital Association of the Frisco Line,” a corporation, separately incorporated by the leading officials of defendant. The hospital at which plaintiff’s husband was treated, was part and parcel of the hospital system managed by the association above named. Defendant contends that it is in no sense responsible for the negligent acts, if such there were, of “The Employees’ Hospital Association of the Frisco Line;” that it is a- distinct corporate entity, not under control of defendant, and that it is responsible for its own acts of negligence. This relationship between the defendant and the Hospital Association is important on the question of excluding certain evidence, in additon to the point now in review. The charter of this association was in evidence. By article one thereof the corporation is named. Articles two, three and four read thus:

“Article II. The purpose for which this association is formed is the support of a benevolent and charitable undertaking in this: To provide medical and surgical treatment and care for the employees of the St. Louis & San Francisco Railroad Company, and of its associated companies, who may be injured or disabled by accident or sickness while in such employ, ' and in the line of duty, to such extent only and under such rules and regulations as may be prescribed from time to time by the trustees hereinafter provided for; and to furnish such employees with additional privileges and benefits, not inconsistent or interfering with the main object of the association as may from time to time be directed by the said trustees; and to that end may purchase, acquire, erect and maintain, suitable buildings, with necessary land and appurtenances for hospital and other purposes within the purview of these articles; and to sell, convey, encumber and transfer any such property whenever said trustees shall direct.

Article III. All the powers of the association ■and of any corporation into which it may be merged, shall be vested in and exercised by five trustees, who shall manage and conduct the business and control all its property; the names and residences of those who shall be trustees until their successors shall be chosen as hereinafter provided, are as follows:

B. F. Yoakum, of St. Louis, State of Missouri.

L. F. Parker, of St. Louis, State of Missouri.

A. J. Davidson, of St. Louis, State of Missouri.

C. C. Mills, of Monett, State of Missouri.

Chas. Huffschmitt, of St. Louis, State of Missouri.

“Their successors shall be chosen at such time and in such manner as may be provided by the bylaws, which the trustees shall adopt for the government of the affairs of the association, and which they shall make for the government of the affairs of the association and which they may amend as shall seem best to them.

“Article IY. The association shall not engage in business for pecuniary profit in any form, and shall not have any capital stock; the funds necessary for carrying out its purpose shall be raised in such manner as may be provided by the by-laws.”

Article five provides the place of business for the corporation and article six provides the term of fifty years as the life of the corporation. By the rules adopted and promulgated by B. F. Yoakum, president of the board of trustees, it is provided, among other •things, as follows:

“Rules and Regulations. It being contemplated that, for the consideration of the contribution paid monthly by the members of the Employees’ Hospital Association of the Frisco Line, a home and medical attention for the sick and injured of said association will be provided, in accordance with the following rules and regulations, it is directed:

“1. Medical relief will only be furnished at the hospital of the association, except as hereinafter designated.

“2. Only those who have become sick or injured while in the employ of the St. Louis and San Francisco Railroad System, and in the line of their duty, will be entitled to gratuitous treatment. Those suffering from any complaint which existed, or the cause of which existed, before the party last entered the employ of the railroad company, will not be entitled to treatment.

“3. Employees of the railroad system taken sick or injured while at any point on the line of the St. Louis & San Francisco Railroad, on temporary lay-off, are entitled to treatment; provided, said sickness was contracted while in course of his employment prior to such lay-off, and provided further, that they have become liable for dues for the month during which their sickness originated or injury occurred. . . .

“5. Any member who may be too seriously ill or injured to be removed with safety to his life, may receive temporary aid along the line of the railroad, when authorized by the chief surgeon. . . .

“11. Any member of the association who desires medical treatment must take to his physician a written or printed notice from his employer that he is entitled to such treatment, and no employer will be allowed to furnish such notice unless he is fully satisfied that the patient is entitled to same. All such printed or written notices are good only for the months in which they are issued, or for a single spell of sickness. . . .

‘ ‘ 16. When a patient is too seriously ill or injured to be promptly sent to the association hospital the attending physician or surgeon shall at once wire a full report to the chief surgeon and must act under instructions of rule No. 5 until further advised. However, at the earliest possible moment consistent with the patient’s safety, he must be sent to the hospital.”

Upon the organization of the hospital association or shortly thereafter, the defendant in this case sent out rules to employees as follows:

' “The Employees Hospital Association of the ‘Frisco Line,’ having agreed to furnish necessary medical, surgical and hospital treatment to such employees of the St. Louis & San Francisco Railroad System as may become sick or injured while in the service of said companies, and to erect and maintain a hospital for the use of such sick and injured, and the employees of said system having agreed to contribute to a fund to be paid, to said Hospital Association, to be used and expended by the association for such purpose, the following rules for the guidance of employees are hereby promulgated:

“1. Mail carriers at stations where carrying the mail is the only duty performed by them for the company, are exempt from assessment, and are not entitled to the services and benefits of the Hospital Association. '

“2. The sick and injured employees above mentioned are entitled to hospital care and treatment free of charge so long as they require surgical or medical attention and obey the rules established for their protection, but not for a term longer than one year continuously unless by permission of the board of trustees of said Hospital Association.

“3. Heads of departments and foremen will be furnished with blank certificates, and will issue them properly signed to such employees as are entitled to the benefit of the Hospital Association and every employee receiving snch certificate will be entitled to receive from the head of his department free transportation over the companies’ lines to the hospital, which, in case of emergency, when delay may be dangerous, will be provided by telegraph on application-to the proper officer. These certificates are good only in the month for which they are issued.

‘ ‘ 4. The company hereby donates to- the Hospital Association the use of its telegraph lines to facilitate the care and treatment of sick-or injured employees, and therefore all persons in the service of said companies, and all others are hereby notified that no bills for medical or surgical services, nursing, drugs or funeral expenses, will be paid by these companies unless first authorized by the general claim agent.

“5. In every case of personal injury to an employee, the conductor or foreman of the department in which the party is employed must report particulars as soon as possible by wire to division superintendent or head of department in which the accident occurs. State whether a surgeon has been summoned to attend, and if so, give such surgeon’s name, and state further whether the injured man will be transported to General Hospital. It will be the duty of the above officers to see that such telegraphic advice is promptly given them, and they will at once telegraph full particulars to superintendent, chief surgeon, and general claim agent.

If such injured employee can be moved, send him to General Hospital by first train and notify chief surgeon and general claim agent. If the injured employee cannot be moved, place him in care of the nearest local agent and summons the most available local surgeon to attend him. If possible, he should be taken to the nearest emergency hospital, to be transported to General Hospital when able. In case of absolute necessity when life or limb is involved, secure the nearest competent surgeon to give attention to the injured person until the local surgeon can reach the spot, or the injured person can be transported to General Hospital or to one of the emergency hospitals. Be particular to notify such surgeon that his services are required for first attention only, and that any differences in the amount to be paid him by the Hospital Association for such service shall be decided by the chief surgeon or the Hospital Association as final arbiter. Notify the chief surgeon by wire at once of such employment, and also as to whether amputation or surgical operations are immediately necessary.

“7. Stretchers for use of injured men will be placed at each station where division of local surgeons are located, and in cabooses and train baggage cars.

“8. The conductor in charge of train having patients for General Hospital will at once report that fact by wire to chief surgeon and to general claim agent, and state whether ambulance is required. In case such patients are for emergency hospitals, the division surgeon at the point where the emergency hospital is located must be similarly notified by wire.

“9. In cases of wrecks or accidents when a number of persons, either passengers or employees, are injured and require immediate attention, summon at once the nearest competent surgeon, summon at the same time the nearest division or local surgeon who can reach the scene of the accident most quickly, and in addition to the notice to be given division surgeon, superintendent, or head of department, notify by wire, promptly, the chief surgeon, superintendent, and general claim agent, giving full particulars as to the name and whereabouts of the injured persons, name of surgeons in attendance, and state what further attention is required for the relief of the injured. . . .

“13. The persons who have been, or may hereafter be, appointed by the Hospital Association chief surgeons, assistants, hospital dispensary, division and local surgeons and physicians, are hereby appointed chief surgeon, assistants, division and local surgeons and physicians, as the case may be, of the St. Louis and San Francisco Railroad Company, and its leased and operated lines (while they hold such positions in connection with said Hospital Association), for the care and treatment under the rules above established of all passengers, citizens and non-employees who may be injured on the line of this company, and as such will be respected and assisted in the discharge of their professional duties when called upon.

“B. F. Yoakum,

“Vice-President and General Manager.”

The defendant likewise sent out an official circular of date June 29', 1899, as follows:

“A large majority of the employees of this company have requested the establishment of a railway hospital system on the line of the St. Louis & San Francisco Road, similar to the system in vogue and successfully carried on by many railroad companies and their employees, with which the employees of this company are generally familiar, and have agreed to contribute to a fund for the proper care of such of their number as may become sick or be injured while in the service of the company.

“The benefits and advantages secured under this system by employees who unfortunately become disabled through illness or injury from following their usual avocation and thereby sustain consequent loss, have been conclusively demonstrated. The further fact that the employees secure hospital benefits, including medical and surgical attention, at a much less cost yearly than by any other assessment or insurance plan for that object, will commend to all concerned the establishment of the system on this company’s lines.

“In pursuance to above, tbe Employees’ Hospital Association of the Frisco Line has been duly organized and incorporated, and a suitable building for the general hospital, for the treatment of sick and injured employees, erected at Springfield, Missouri, which is ■owned by the association, and will be in charge of its chief surgeon. This building will be ready for occupancy August 1, 1899. Arrangements will be made with hospitals at St. Louis, Missouri, Ft. Smith, Arkansas, Paris, Texas, Joplin, Missouri, Pittsburg, Kansas and Wichita, Kansas, for treatment in cases of emergency, until the patient can be safely removed to Springfield. Supply stations for dispensing purposes will be established at such convenient points on the line as shall be found necessary.

“Patients received at the hospital will be provided, free of charge, with everything necessary for their careful and comfortable treatment, including the services of the hospital surgeons or physicians, so long as they require surgical or medical attention and obey the rules established for their protection, but not longer than one year, without special authority from the trustees.

“For the purpose of carrying into effect the above system, and to enable all the employees to become members of and entitled to all the benefits and privileges of said association, notice is hereby given- to all concerned that, commencing with the wages for month of •July, 1899, which are payable in August, an assessment will be made on the pay rolls (including salary vouchers), as follows:

“Thirty-five cents per month from the pay of each employee whose monthly wages amount to less than $50 per month;,fifty cents per month from the pay of each employee whose monthly wages amount to :$50 and less than $100; seventy-five cents per month from the pay of each employee whose monthly wages amount to $100 and less than $125; -one dollar per month from the pay of each employee whose monthly wages amount to $125 and more. Deductions to apply to time checks as well as pay rolls. No deduction will be made from the earnings of an employee whose month’s earnings do not amount to five dollars. No deduction will be made from the wages of any employee who is discharged or quits the service of this company on or before the 31st day of July, 1899. After that date no exception will be made.

“Heads of departments, foremen and all others who issue time checks, will see that the'proper deduction is made on the first time check issued in the month, designated ‘Hospital.’ In case an employee returns to service in the same month and after having drawn pay by time checks, and receives another time check in the same month, the person issuing the time check will note on the second check, ‘Hospital fees paid on previous check.’

• “This company will pay to said hospital fund as an assessment the sum of five hundred dollars annually, in monthly installments.

“All employees of the St. Louis & San Francisco Railroad System are entitled to hospital benefits under such rules and regulations as may be established for the government of the hospital.

“Rules and regulations governing the disposition and treatment of ill and injured employees will be issued and all employees should become familiar with those regulations, as they are established for the benefit of all.

“The surgeons and physicians of the St. Louis and San Francisco Railroad Company, will, on and after August 1, 1899; be under the control and direction of the chief surgeon of the Hospital Association and all ill or injured employees will, on and after that date, be under tbe care and' treatment of tbe Hospital Association. B. F. Yoakum,

“Vice-President and General Manager.”

From this circular it appears that no option is left an employee, but, on the other hand, defendant appropriates a certain amount of his wages and furnishes him medical treatment. From oral evidence it appears that the officers.of this Hospital Association were officers of the defendant; the treasurer was the same; the employees made no formal application for admission as members, but only signed pay-rolls with the deductions made as provided for in the foregoing documents.

We have set out this evidence perhaps in more detail than should have been done, but the relationship between these two corporations is an important one, and not confined to this case alone. To our mind it is immaterial as to the true character of the Hospital Association as indicated by its charter provisions. It has, however, but few, if any, of the ear-marks of a voluntary benevolent association. Nor are there any ear-marks of a public charity. What is received is paid for by the recipients. Under the weight of authority it cannot be held to be a charitable institution. [Haggerty v. Railroad, 100 Mo. App. 424; Coe v. Washington Mills, 149 Mass. 543; Brown v. La Societe Francaise, 138 Cal. 475; Miller v. Railroad, 65 Fed. 305; Texas & Pac. Coal Co. v. Connaughten, 20 Tex. Civ. App. 642.]

So that the rule that exempts such institutions from liability as announced in Murtaugh v. St. Louis, 44 Mo. 480, does not apply. Nor are institutions of the character of the one disclosed by this record exempted from liability by the mere employment of competent servants. They must go further and competently treat the patients received. In such case they occupy the position of ordinary physicians and surgeons and are bound by the same rules, which are too familiar for repetition here. If they undertake to furnish the treatment, not as a charity, they stand in no different light from the ordinary physician.

But this question is really beside the issues in this ease. No one can read this record without concluding that if the thin corporate shell of the Hospital Association is broken, the yelk therein contained is the defendant. By rule one above quoted defendant exempts certain mail carriers from assessment and excludes them from benefits. By rule three, the heads of the departments and the foremen of the defendant are furnished with blank certificates which they fill and issue to employees entitled to receive benefits, and such heads of departments and foremen, the alter ego of defendant, thus decide who shall be treated by the Hospital Association. By rule five, the defendant’s chief surgeon and general claim agent must be notified, and by rule six if the employee injured can be moved to the hospital, the chief surgeon and general claim agent must be notified. Why notify the general claim agent of defendant if the two corporations were separate and distinct entities, in fact? That the Hospital Association is operated for' the benefit of defendant as much or more than for the benefit of the employees is too apparent from this record. Rule eight, above, breathes the same thought, as also do rules nine and ten. But beyond all is rule thirteen, which makes the chief surgeon and other surgeons of the Hospital Association, the chief surgeon and the local and division surgeons of the defendant. Eliminating all other matters this rule thirteen makes the chief surgeon and other surgeons the agent and employees of the defendant. But further showing that the hospital association, or its several surgeons, is but the alter ego of defendant, we have Circular No. 35, supra, by which defendant says to all employees that they will be assessed to pay for this medical attention. No option is given an employee. By force of this rule, defendant says to an employee, We will take so much of your monthly earnings and in the event you are hurt or become sick, and in the judgment of the heads of the departments and the foremen in our employ you are entitled to medical treatment, we will furnish it to you through the Hospital Association.

So that it becomes unnecessary in this case to break the extremely thin and attenuated corporate shell of the Hospital Association, and expose to open view the yelk therein contained. The Hospital Association, whether it in fact be a separate corporate entity, or in fact the defendant itself masquerading under an assumed name, is at least the agent and employee of the defendant to perform these particular services. The defendant pays its said agent $500' annually and in addition it requires of its employees that they pay to it the remainder, and by it such sum is paid to the agent for these services. To say the least, this Hospital Association together with all its surgeons and physicians are but agents of defendant, and made so by express words in rule thirteen, supra. The negligence of these agents is the negligence of the defendant. As said in the case of Orcutt v. Century Bldg. Co., 201 Mo. 424, the defendant holds the purse strings of the Hospital Association. Not a dollar does it get save through defendant. Defendant pays for itself $500', and the remainder is paid by the tribute which defendant levies upon its employees, which is collected and paid through defendant. The hospital system is a worthy one and a well-taken advance step, but under the record in this case such Hospital Association is but the agent of the defendant.

II. We come now to the competency of the following letter:

“St. Louis and San Peanoisoo Railroad Company.

“G. W. Gale, Jr., Chief Surgeon.

“Springfield, Mo-., Apr. 13, 1904.

“Mr. W. P. Newton,

Assistant- General Auditor,

St. Louis, Mo.

“Dear Sir: Mr. J. B. Phillips, who was in the hospital, is mentally unbalanced and, should be sent to an asylum for treatment. Won’t you please advise his family or friends so that necessary steps can be taken to protect him? Tours truly,

“G. W. Cale, Jr.”

Stamped on back:

“Vice Pres’t & Gen’l Auditor, Apr. 14, 1904.

“St. L. & S. P. R. R. Co.”

The writer of this letter was the chief surgeon of the Hospital Association, and by rule thirteen hereinabove discussed was the chief surgeon of the defendant. He was therefore the agent of defendant having in charge the treatment of the deceased. Under rule thirteen, supra, defendant seems to have had a chief surgeon, division surgeons and local surgeons, and Dr. Cale was the head of this line of medical agents under the appointment of defendant by force of this rule. The letter was written to the assistant of the head of another department. -It conveyed the facts which Dr. Cale had learned in the course of his official duties as the chief surgeon of defendant, under rule thirteen, supra.

It was at least partly for the information of a coordinate department of the defendant railway company’s service. This letter was written two days after the death of plaintiff’s husband, but at a time when neither the plaintiff, the defendant nor the writer knew of such fact. The letter was excluded by the learned trial judge. Was his action in this respect correct? We think not. Rule four of the Hospital Association reads:

“The association will not furnish treatment for contagious, chronic, incurable, or venereal diseases, nor cases of insanity, nor injuries or diseases the result of intemperance, vicious habits, personal difficulties.”

By rule three of the defendant hereinabove fully set out, the deceased, being at work in the auditor’s' department of defendant, could not even gain admission to the hospital without a certificate from the head of that department, nor could he get transportation to which he was entitled, save through that department. Under these rules, when taken and considered together, it became and was the duty of the chief surgeon, or what we might term the head of the medical department of defendant, to inform the head of the department issuing the certificate to deceased, under rule three of the defendant, that such party was insane, and that under rule four, quoted last above, he was not such a person as to whom medical attention was due.

This letter therefore is but one written by the chief surgeon of defendant in the line of his duty, as such -duty appears from the uncontradicted record evidence. It in effect notified the auditor’s department that the man was insane, and should be sent to a proper asylum. That he was not entitled to further treatment in the hospital under the rules thereof, and that no further certificates should be given him. If Dr. Cale was the agent of the defendant, as we have seen that he is, then such an admission made pertaining to things occurring and being done by him in the course of the performance of his duty, is an admission of the defendant. The letter-head upon which the letter was written shows him to be defendant’s chief surgeon, .as well as the chief surgeon of the hospital. This was the third time that the deceased had been under the treatment of the hospital force, and if he was insane, it was the duty of defendant’s chief surgeon, who was also chief surgeon of the hospital, to make known that fact under the rules above mentioned. His duties had not yet terminated, and when he wrote the letter he was simply in the performance of such duties. Under such circumstances this letter is in the nature of a report made by one official to another, and is not in the same line as a statement made, áfter an accident, but too late to be recognized as a part of the res gestae. The cases usually applying the res gestae doctrine have no application here.

We think that this letter is in the nature of an official report from one of the chief officials of defendant to another of such officials and a report which was contemplated by the rule. It stands in the nature of an admission by an agent, whilst acting in the line of duty, and as such is an admission of defendant. [Malecek v. Railroad, 57 Mo. l. c. 21; McGenness v. Adriatic Mills, 116 Mass. l. c. 180; 2 Wharton’s Law of Evidence (3 Ed.), sec. 1177.]

In the Missouri case cited, it was said: The evidence of the admissions of Buell, the company’s superintendent, was certainly admissible to prove that it recognized the assault, etc., of its driver, and justified it upon the ground of the nonpayment of fare. Corporations can only act and speak through their authorized agents. The acts and admissions of Buell, in this regard, were those of the corporation.”

The Massachusetts court in the case cited, speaks tersely in this language: ‘ ‘ The remaining question is in reference to the admission in evidence of the statement of the superintendent. The defendant is a corporation, and can only act through agents, and, in the absence of any evidence to the contrary, the superintendent in charge of the mill must he deemed the proper person to whom to make complaint and to have authority to give information and direction in regard to the drainage from it. His recognition that it was a matter that required to he attended to and should he, was therefore properly put in evidence. [Morse v. Railroad, 6 Gray 450.] The expression used by him, that he ‘would not have it around his place as it was around there for $500,’ was a mere mode of stating that the nuisance existed, and could not have been considered as an admission that this sum was the amount of the damages, nor do we understand that it was put in evidence as such.”

And Dr. "Wharton, in his most excellent work, couches the rule thus: “As has been already incidentally seen, a party who commits the management of his whole business, or of a particular line of his business, to an agent, is bound by the admissions of the agent, as to his entire business committed to him; nor, when the agent is a general agent, representing his principal continuously, is it necessary for the admission of such declarations that they should either have been part of the res gestae, or should have been specially authorized. Eminently is this the case with corporations.” [2 Whart. Law of Ev. (3 Ed.), sec. 1177.]

Other cases are cited in the briefs and others not cited could have been cited, but these suffice to illustrate the rule.

Said letter is at least admissible to show that Dr. Cale, defendant’s chief surgeon and agent, had knowledge of the fact that deceased was unbalanced in mind, when he permitted him to be placed upon the train unattended. [McDermott v. Railroad, 87 Mo. 285.] To what was said by Henry, C. J., in that case, we can add nothing, for the proposition is fully discussed -and the cases reviewed. There was error in refusing to admit this letter.

III. It is next contended that defendant is liable only for such injuries as could have been reasonably expected to have been foreseen. That is .to say, if it be granted that defendant was negligent, yet it is only liable for such injuries as would reasonably be expected to follow from such negligence and not for mere remote contingencies. In this we think the defendant is correct. But apply the rule to this case. In the view we have just expressed the defendant, by and through' its agent, had assumed the duty of treating the deceased. The evidence tended to show that the patient was insane, and that defendant had knowledge of that fact. Now, if the patient was insane and the defendant had knowledge of that fact, then might it not have reasonably presumed that accident might befall a man in that condition? The freaks of a wandering .mind are varied, it is true, but none knew them better than the skilled chief surgeon, who represented the defendant, when he had the deceased conveyed to the train. We are not saying that the act of placing his practically undressed body across a street railway track was the result of his insane condition, but there are sufficient circumstances to authorize the submission of the question, under properly guarded instructions, to a jury- for its decision. It cannot be said that such an act was not one that could not have been reasonably anticipated by defendant’s surgeon when he placed an insane man aboard of a train, unattended and without notice to his family, knowing that he would have to find his home in a populous city, filled with a network of street railway lines. The rule is properly stated by Thompson in his work on the Law of Negligence, sec. 59, thus: “ ‘It is not,necessary,’ said the Supreme Court of Minnesota, following the Supreme Judicial Court of Massachusetts, ‘that the injury in the precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. ’ In other words, it is not necessary to a defendant ’s liability, after his negligence has been established, to show, in addition thereto, that the consequences of his negligence could have been foreseen by him; it is sufficient that the injuries are the natural, though not the necessary and inevitable, result of the negligent fault — such injuries as are likely, in ordinary circumstances, to ensue from the act or omission in question. ’ ’ This rule has found full recognition in this State. [Miller v. Railroad, 90 Mo. l. c. 394.]

A case very much in point is the case of Railroad v. Parry, 67 Kan. 515. In'the Parry case, the passenger became mentally Unbalanced whilst on the train and was by the conductor placed in charge of the depot-master after being taken from the train. The depot-master permitted him to leave the. depot and his custody while in that condition. He wandered some five miles and placing himself across the track was killed. The case before us is much stronger. Here the deceased occupied a double relationship^ to the defendant. He was not only a passenger but he was likewise a patient being treated by defendant’s agent. Defendant’s agent had full knowledge, if the evidence be true, that deceased was insane. Defendant through its agent had that knowledge when deceased was placed on the train, and this exclusive of the evidence tending to show the condition and actions of deceased whilst on the train.

Of course, if the deceased was not insane, it matters not what means he used to end his life. If he was not insane there can be no liability upon the part of defendant. Defendant’s liability must be bottomed on the facts that deceased was insane; that defendant knew such fact; and that his death was occasioned by reason of such fact.

It must be found that the act of lying down upon the railroad track was the result of his mental condition aforesaid. In his unfortunate death there are some circumstances tending to show that a perverted mind might have been attempting to place a tired body to rest for the night. For instance, the taking off of the outer garments.

Under proper instructions this cause should have been submitted to the jury and the.trial court erred in giving the peremptory instruction for the defendant. The cause is reversed and remanded to be proceeded with in accordance with these views.

All concur.


author: VALLIANT, P. J.

text:
    F. O. YOUNGER v. BARAK L. HOGE, OLIVER D. KESTER, MARCUS L. HEARD and A. R. MORGAN; A. R. MORGAN, Appellant.
    Division One,
    April 13, 1908.
    1. MISREPRESENTATIONS: Of Existing Fact: Purchase of Corporate Stock: Rescission: Promise of Position. A promise, though made without intention to fulfill it, is not a misrepresentation of an existing fact. A promise by stockholders of a corporation, ábout to sell their stock to plaintiff, that if he would, purchase it he would be given the position of secretary and treasurer of the company, will not justify a rescission of his contract of purchase of the stock. Besides, if they did not own a majority of the stock, and so stated to him, the position was not theirs to give and he was not deceived thereby.
    2. -: -: -: Promise of Position: Evidence of Fraudulent Scheme. An allegation in the petition that plaintiff was promised the position of secretary and treasurer of a corporation if he would purchase a part of the capital stock of the company, if relied upon, not as the basis of the action, but as evidence of the fraudulent scheme, is not sustained, if the most that was told him by the sellers was that they could not give him the place without the consent of the other stockholders but would use their best endeavors to induce them to give him the position, which promise the evidence shows they kept.
    3. FALSE REPRESENSATIONS: Purchase of Corporate Stock: Rescission of Contract. False representations to justify the cancellation of a contract must have been relied upon by the party complaining. So that where plaintiff testified that, in trading his farm for defendant’s stock in a corporation, he relied to a great extent on the report of a commercial agency and was deceived thereby into believing that $83,000 of the one hundred and fifty thousand dollars of capital stock of the company was fully paid up, $57,000 in money and $26,000 in property at a fair value — the testimony showing that the information on which this report was based was furnished to the agency by the bookkeeper of the company under the direction of its president and was therefore in effect the representation of the defendants themselves — the contract of purchase cannot be rescinded if the testimony also shows that the books of the company showed exactly how the stock was paid, that plaintiff and his friend at his request examined the books before the trade was niade, and plaintiff’s witness who was the company’s president testified as to the value and character of the property turned in to the company and that it was worth what it was turned in for, for by plaintiff’s own statement , he relied neither on the statements of defendants nor on the report of the commercial agency.

      4. FRAUD: Relationship. Relationship is often an important fact to be considered with other facts and circumstances from which an inference of fraud is sought to be drawn, but alone it is not evidence of fraud, and sometimes it goes to negative an inference of fraud.
    Appeal from St. Louis City Circuit Court. — Rom. Warwick Hough, Judge.
    Reversed and remanded (with directions).

      Rassieur, Schnurmacher S Rassienr for appellant.
    (1) A representation, to authorize the rescission 'of a contract; must be shown: 1, to have been false, :and known to be false, when made; 2, to have related to some past or existing fact; 3, to have been relied on by the complainant; 4, to have been material; and, 5, to have been made with the intent to deceive. Hamlin v. Abell, 120 Mo. 188; Edwards v. Noel, 88 Mo. App. 434; 14 Am. and Eng. Ency. Law, 63. (2) A representation of a future event or a promise cannot be a misrepresentation which will vitiate a contract. Estes v. Desnoyers Shoe Co., 155 Mo. 577; Wade v. Ringo, 122 Mo. 326; Milliken v. Thorndyke, 108 Mass. 382; Atwood v. Chapman, 68 Me. 38. The promise, therefore, to make plaintiff an officer of the Cris-Po Purity Mills was not a misrepresentation in law, and may be disregarded in the consideration of this cause. (3) Fraud is an affirmative fact to be proven, not presumed ; and while fraud may be deduced from circumstances, they must be such as to* exclude* any reasonable hypothesis' of fair dealing; and if the circumstances are as consistent with honesty as with fraud, the transaction should be upheld. Hoeller v. Haffner, 155* Mo. 589. So, while fraud need not .be established by direct •and affirmative proof, circumstances frequently justifying such charge, yet the mere conjecture of fraud will not be sufficient to take the place of proof. Priest v. Way, 87 Mo. 16; Bank v. Kingsbury, 84 Mo. App. 82. (4) While relationship between the parties may be taken into consideration with other facts, yet it should be constantly borne in mind that this relationship makes it quite natural that one should aid and advise the other in any bona fide transaction. Christian v. Smith, 85 Mo. App. 177. (5) In dealing with matters of ordinary life, traders must look out for themselves, and a party may exalt the value of his own property to the highest point his antagonist’s .credulity will bear, without being guilty of deceit rendering him liable before the law. Cornwall v. McFarland R. E, Co., 150 Mo. 377; Anderson v. McPike, 86 Mo. 293; Black v. Epstein, 98 Mo. App. 459; Chase v. Rusk, 90 Mo. Ap*p. 25. (6) Courts do not undertake to protect parties from their own folly and cupidity. Harrison v. Waldon, 89 Mo. App. 164. Even a court of equity will do nothing for a man who will not try to take care of himself; and it will not listen to one who complains of having been misled, if it appears that he has deliberately refused or grossly neglected to use his own senses. Cornwall v. McFarland R. E. Co., 150 Mo. 377; Jones v. Rush, 156 Mo. 364.
    c Frank Y. Gladney for respondent; F. O. Posten of counsel.
    (1) Appellant’s point 1 is undoubtedly a sound proposition of law. (2) The petition does not set out the promise to make respondent secretary and treasurer as a basis for actionable fraud, in itself. It is merely alleged to have been a part of the fraudulent scheme; a sham, make-weight inducement. Appellant’s misinterpretation of this allegation is a pure gratuity. (3) Evidence of fraud is rarely of a direct and positive character. Very slight circumstances, when combined together, may afford irrefragible proof of fraud. Hopkins v. Sievert, 58 Mo. 201. Anything which satisfies the mind and conscience of its existence is sufficient. Massey v. Voung, 73 Mo. 273; State ex rel. v. Standard Oil Co., 194 Mo. 155. (4) One who buys stock of a corporation is entitled to rely upon assurances of an officer as to its financial condition, and, even if a stockholder, is not bound to avail himself of his right of examining the books of the corporation. Wannell' v. Kern, 57 Mo. 492; Bank v. Hunt, 76 Mo. 439; Cottrill v. Krum, 100 Mo. 397; Tinker v. Kier, 195 Mo. 200; Brolaski v. Carr, 105 S. W. 284. (5) Appellant Morgan does not occupy the attitude of an innocent purchaser for value without notice, and he cannot avail himself of that defense. His answer does not warrant such a contention. Halsa v. Halsa, 8 Mo. 308; Holdsworth v. Shannon, 113 Mo. 525; Ins.- Co. v. Smith, 117 Mo. 293; Young v. Schofield, 132 Mo. 660; Stephenson v. Kilpatrick, 166 Mo. 268. And appellant cannot take advantage of the fact that respondent did not file a motion in the trial court to have the answer made more definite and certain. It is the primary duty of a party to make Ms claim or defense clear and unequivocal ; this onus he cannot cast on his adversary. Huston v. Tyler, 140 Mo. 264; Leete v. Bank, 141 Mo. 581.
   VALLIANT, P. J.

— This is a suit in .equity, in which the plaintiff seeks to annul a transaction in which he conveyed to defendant Heard a 200-acre farm in Illinois, and to require the defendant Morgan, to whom Heard afterwards conveyed it, to re-convey it to the plaintiff. The petition charges that the defendants Kester and Heard made certain false representations to Mm by which he was deceived and thereby induced to make the deed conveying the land to Heard, and that defendant Morgan took the deed from Heard with knowledge of the fraud and to aid the fraudulent scheme. The transaction consisted in the conveying of the land to Heard for the consideration of stock in a manufacturing corporation in St. Louis. Defendants Kester, Heard and Hoge were at the time of this transaction, the chief stockholders in the corporation, they were directors and active participants in its business, defendant Morgan held five shares of the stock and about a month after the transaction in question was made secretary. The false representations alleged in the petition to have been made by Kester and Heard were that the capital stock of the corporation, $150,000, was all subscribed and $83,000 fully paid; that of the $83,000, $57,000 was paid in cash and $26,000 in property at a just and reasonable valuation; that the corporation was in a prosperous condition earning sufficient to pay all expenses and a large dividend on its total capital, and in addition to the representations it was promised the plaintiff that if he would make the trade they would have him elected secretary and treasurer of the corporation at a salary of $100 a month; whereas, the petition averred, there was only $4,100.12 of the capital stock paid in cash and the remaining $145,899.88 was paid in property at a fabulous valuation. The petition alleges that Morgan was not an innocent purchaser, but that he had conspired with his co-defendants to defraud the plaintiff out of his farm.

Defendants Kester, Hoge and Morgan filed an answer to the petition which was a general denial and a plea that plaintiff did not rely on any representations made by them or Heard, but that he investigated the subject for himself and acted on his own judgment. They denied that Heard had ever made any such representations and averred that, if he did, he was not authorized by them to do so. Morgan especially denied that he had engaged in any collusion or conspiracy with his co-defendants to defraud the plaintiff and averred that he was an innocent purchaser of the property for value. There was no service of the summons on Heard and no appearance for him, the suit was, as to him dismissed.

At the trial the testimony in behalf of the plaintiff in reference to the alleged misrepresentations was chiefly that of the plaintiff himself and was to the following effect: Plaintiff is a merchant living in Murphysboro, Illinois. The corporation in question was a concern engaged in the manufacture of a breakfast food called Cris-Po. Plaintiff’s attention was first attracted to this matter by an advertisement in a St. Louis newspaper; it led to a correspondence by mail and then to the plaintiff’s coming to St. Louis and meeting defendants Kester and Hoge at the mills of the corporation. They went over the mills together. In the course of their conversation at that time Kester and Hoge said to plaintiff that they were very anxious to get an active business man to be secretary and treasurer of the concern, that they were more anxious to get a good man for that place than they were to sell the stock, that the man who then had the position, Heard, was sick and out of the city, but while they were talking Heard came in and was introduced to plaintiff and said he had unexpectedly returned. After talking the matter over at the mills no result was reached; they parted with an agreement to meet at a certain hotel that evening for further conference. At the meeting in the evening only Hester and Heard met the plaintiff and they had further discussion. Plaintiff made a proposition in writing which was not accepted and plaintiff returned to his home in Hlinois. That proposition contained the condition that plaintiff was to be secretary and treasurer of the' company, but Hester and Heard said they could not promise that without consulting Mr. Hoge and for that reason refused to accept it. “Q. You went home with the understanding that they would not promise you the position of secretary and treasurer without seeing Hoge? A. Yes, sir. In the meantime I think I telephoned Hoge to find out whether he was willing to make me secretary and treasurer and over the ’phone he gave his assent that he was.” That was sometime in October, 1903. After returning home plaintiff obtained through a friend in St. Louis a report from the Dun Commercial Agency of the condition of the corporation and on the strength of that report he had a deed to the farm made out and signed and acknowledged by himself and wife and came with it to St. Louis. The substance of the Dun report was the authorized capital stock was $150,000 of which the amount paid in cash was $57,000 and paid otherwise $26,645.36; that the machinery and plant were worth $64,248.11; stock on hand, raw and finished, $6,441.30 ; bills receivable of the value of $6,653.55; cash on hand and- in bank, $6,312.39'; total liabilities, $900; assets over liabilities, $82,745.36; refer to St. Louis Union Trust Company and Live Stock Remedy Company. That report was dated February 20, 1903, and there was evidence tending to show that it was made on information given the Dun Company by the corporation book-keeper by direction of the president. On arriving in St. Louis and going to the factory plaintiff learned that there had been a fire, the day before; therefore it was mutually agreed that nothing could be done in furtherance of their trade until the fire loss and insurance could be adjusted. In fact Heard had telegraphed plaintiff not to come because the fire had occurred, but plaintiff had left home before the telegram was delivered. Plaintiff then returned home. After some days Heard went to the plaintiff’s home to renew negotiations and told him that the insurance had been adjusted and the business had been resumed practically as it had before been. But plaintiff testified that he was not satisfied to take Heard’s word for it, but communicated by telephone with Mr. Zeche, a friend of plaintiff’s in St. Louis, and requested him to go to the factory and make an examination and report, which he did, and on the strength of the report he offered Mr. Heard the farm for $20,000 worth of stock, provided they would make him secretary and treasurer at a salary of $100 a month. Plaintiff had had some intimation that Hoge had some claim on Heard’s stock, therefore he telephoned Hoge about it and Hoge replied that the claim had been settled and that Heard’s stock was clear; thereupon Heard agreed to give plaintiff $20,000 in stock for the farm and to use his efforts to make plaintiff secretary and treasurer at $100' a month. November 13th, 1903, plaintiff made the deed conveying the farm to Heard and received $20,000 in stock, of which $12,000 was Heard’s stock and $8,000 belonged to Kester. But it turned out that Heard and Kester did not own the majority of the stock, and they could not elect the plaintiff to the position he desired without the sanction of Hoge, and Hoge refused; this was on November 16th, three days after the deed had been delivered. - Hoge’s reason for refusing was, as plaintiff testified, that it was the understanding that part of his stock was to be given for the farm and he was to have an interest in the trade. Then there was some unpleasant discussion between Kester, Heard and Hoge (“fuming and fussing,” to quote plaintiff’s words), in the course of which it was suggested that Kester should give Hoge $1,000, or that some property was to be transferred to him, and Hoge said to plaintiff that they were drawing up a paper for him (plaintiff) to sign agreeing that he would not try to recover the farm and if he would sign it they would make him secretary and treasurer. Just what the terms of this proposed paper were does not appear, but to quote the plaintiff’s language: “Finally the thing collapsed right there, and the paper wasn’t signed; nothing was signed.” Plaintiff testified that they told him, before mairing the trade ‘ ‘ that while they were not making big money at the present time it was just getting into shape to make nice money; that they had a good plant.” He testified that making him secretary and treasurer with the salary named was part of the consideration of the trade, and when he demanded of Kester after the trade that he fulfill that promise, Kester replied, “You see the position I am in, I can’t do it by myself.” He said he would do all he could to get Hoge in line. ‘ ‘ Q. Was that before you made the trade or afterwards? A. That was afterwards. Q. What did he say before? A. He said he would help to make me secretary and treasurer of the concern;.led me to believe he could -do it. Q. Did you ascertain how much stock he had —whether he could do it — he and Heard? A. I did not know how much stock they owned. ’ ’

The deed conveyed the farm to Heard subject to two mortgages, one for $850', the other for $100'.

In a letter from Hester to the plaintiff, dated October 1, 1903, the writer enclosed a “statement showing business in detail.”

In a letter dated October 9, 1903, Hester said that the stock had “an actual market value of 75 cents,, while there has been some little of the stock changed hands at a little above par. Should we arrange a satisfactory deal and you would care to become identified with the company, we can arrange you a nice salaried position.” October 13th, he wrote again giving something of the history of the concern and its business prospects, and asking information about the farm, and concluded by saying: “I would want yon to visit St. Louis and thoroughly familiarize yourself with the workings of the business here and everything of interest. We refer you for outside reference to- Dun Merc. Agency or any banking house in the city.” In the correspondence Hester gave the plaintiff to understand that the stock he was proposing to give for the farm was not his own but a friend’s, which was true, it was Heard’s stock. Before coming to St. Louis plaintiff got his friend Zeche to go to the mills of the corporation and examine its books, and Zeche’s report corresponded with the statement sent in the letter of October 1st.

Defendant Hoge was called as a witness for plaintiff; his testimony was to the following effect: He was the president of the corporation. The capital stock was $150,000, 1500 shares of $100 each. Witness subscribed for 900 shares, Hester and Heard each 300*. “Prom the hooks which are here, the opening statement or record was made that the stock was subscribed and paid up by property, $145,899.88, and cash $4,001.-12. The entries are in Mr. Heard’s handwriting. He was at the time an officer of the company. . . . The property that was pnt in consisted of an equipped mill, running, and a good bit of wheat and manufactured goods, cartons, special processes, appliances, etc.” The valuation was made by witness, Hester and Heard, at what they considered was its value. The Dun statement was made by the bookkeeper under direction of witness; it was not made at the date of the organization and does not refer to that time. The corporation was the successor to a Michigan corporation called the Michigan Cereal Company, which was removed from that State to St.. Louis and a new incorporation effected here, buying out the good will, plant, trade secrets, etc., of the Michigan company. Witness enumerated the principal items of property or assets and their valuation which were put into the concern here in payment of the stock, aggregating about $140,000. After the concern was in operation, witness, Heard and Hester put into it $14,000; they also turned into the treasury $67,000 of stock, about $30,000 of which was sold and the proceeds put into the business. Witness testified that he never saw the plaintiff but once before the trade was made and that was at the mills. He never told the plaintiff that the stock was full paid or that $83,000 was paid in money and machinery. Never promised plaintiff to give him the position of secretary or treasurer, never heard of such demand until after the trade had been made, or that such representations had been made. Witness bought the farm from Heard, and at Heard’s request paid the consideration to Hester, $650 cash and $6,000 in stock in the company. Hester was a brother-in-law of witness and so also was Morgan. Witness sold the farm to Morgan for $3,000', and requested Heard to make the deed to him which was done.

In December following the trade, plaintiff had an expert bookkeeper to examine tbe books of the concern and he testified that from the books he examined, which were the journal, cash book and ledger, it appeared that from the middle of May, 1902, to the last of August, 1903, there appeared a loss of $9,000; but he said he took no account of the stock in trade or the goods on hand, raw or manufactured, and he did not mean to say that there was an actual loss.

On the part of defendants the testimony was that neither of them ever stated to the plaintiff that $83,000 of the stock had been fully paid, or that the concern was at the time earning money enough to pay expenses and a dividend on the stock, and they never agreed to give him the position of secretary and treasurer; that at the meeting at the hotel referred to, the plaintiff made a written proposition to convey the farm for $18,000' of stock and the position of secretary and treasurer at the salary of $100'-a month, which they refused, because they told him the position was not in their power to give. After the plaintiff went home and returned again to St. Louis he offered to deed the farm for $20,000 of stock, the offer was accepted and. the trade closed.

There was no evidence that plaintiff offered to return the stock and rescind the trade before this suit was brought; at the trial plaintiff tendered the stock. The trial court found the issues in favor of the plaintiff and rendered a decree requiring defendant Morgan to reconvey the farm to plaintiff; from that judgment defendant Morgan has appealed.

I. One reading the plaintiff’s testimony is impressed with the idea that his main grievance is that he was not given the position of secretary and treasurer at a salary of $100 a month. Assuming that the ■evidence proved that such promise was made, it would not justify a rescission of the contract on the theory of misrepresentation. A promise, though made without intention to fulfill, is not a misrepresentation of an existing fact. [Wade v. Ringo, 122 Mo. 322; Estes v. Desnoyers Shoe Co., 155 Mo. 577.] The learned counsel for respondent in their brief say that the petition does not set out the promise as a basis for the alleged actionable fraud, but only as evidence of a fraudulent scheme. Considering it even in that light it can avail the plaintiff nothing, because his evidence does not sustain it. True in one of his letters Kester said, ‘ ‘ Should we arrange a satisfactory deal and you would care to become identified with the company, we can arrange you a nice salaried office.” What office and at what salary is not mentioned. Besides, that was before the negotiations in personal interviews had taken place. In those interviews, as the plaintiff’s own evidence shows, the defendants refused to make the promise or bind themselves to it, because, as they told the plaintiff, they did not own a majority of the stock and could not give him the place without Hoge agreed to it-Plaintiff in his testimony did not claim that Kester or Heard promised anything more than that they would use their best endeavors to secure the place for him; he said, ‘ They told me they could not promise it without consulting Mr. Hoge,” and so far as the evidence goes it tends to show that they did try to get the place for him, but Hoge would not agree; there is nothing: to the contrary. The evidence shows that the position of secretary and treasurer had been held by Heard, at what salary was not shown, but that on account of ill' health he could not attend to it, and that in December, after the trade, defendant Morgan, .who owned five shares of the stock, was elected secretary and treasurer at $50 a month and was holding the place in January, 1904, when plaintiff came to St. Louis and again urged that the place be given to him and on being refused brought this suit.

II. On the question of false representations the most that can he said for the plaintiff’s side is that there was some evidence tending to prove the charge, bnt it was entirely overcome hy the preponderance of the evidence contra. Even the plaintiff’s own testimony fell far short of the allegations in his petition. In the petition he said that defendants represented to him that the corporation was in a “prosperous condition and its earnings were sufficient to pay all expenses and in addition to pay large dividends on its total capital;” in his testimony he said they told him “that while they were not making big money at the present time, it was just getting in shape to make nice money; that they had a good plant.” That statement relates rather to prospects than to- past or present success. But even to that extent the weight of the testimony is to the contrary.

Plaintiff testified that he relied to a great extent on the Dun report and hy that was deceived into believing that $83,000 of the stock was fully paid in money and money’s worth, that of that sum $57,000 was in money and $26,000 in property at a fair value, and the testimony showing that the information on which that report was made was furnished by the bookkeeper under the direction of the president, it was in effect the representation of the defendants themselves. But the testimony shows that the books of the concern showed exactly how the stock was paid, and it shows that the plaintiff and his friend Zeche examined the books before making the trade and he is chargeable with knowledge of their contents. Besides, the plaintiff’s witness Hoge testified to the character and value of the property and assets turned in to the company in payment of the stock and according to that testimony it was worth what it was turned in for. True, Hoge was one of the defendants and although a witness for plaintiff he may be considered unfriendly to plaintiff’s cause in so far as his feeling is liable to influence his judgment as to values, but that fact is not to be considered as affecting his veracity. There was no other evidence offered on that point.

False representations to justify the cancellation of a contract must have been relied on by the party complaining. Plaintiff himself testified that he did not rely on the statements that the defendants made to him, but that he and his friend Mr. Zeche examined the mills and examined the books and on that and the Dun report he made the trade.

It is significant that the plaintiff offered no proof as to the value of his farm or the value of the stock. He claims in his petition that he made the trade, being misled by defendants ’ false representations into believing that the stock was fully paid in money or money’s worth and the business was then earning enough to pay all expenses and large dividends on the total capital. The total capital was $150,000. If it is true that the plaintiff so believed then he must have believed that the stock was worth at least par and that he was getting stock worth fully $20,000 for his farm; that would be $100 an acre. But the only evidence in the record as to the value of the farm was that of defendant Morgan who said it was worth $20 to $25 an acre, which would amount to $4,000 or $5,000, less the two mortgages, $950. From those figures we must'conclude either that the plaintiff knew he was trading his farm for stock far below its face value or else that he was getting four or five times as much as it was worth. The evidence does not sustain the plaintiff’s charge of fraud.

III. Since the plaintiff’s charge of fraud and conspiracy is unsupported by the evidence there is really no necessity for going further to discuss the connection of defendant Morgan with the alleged fraudulent acts, but since he has been charged with fraud we will look at the evidence as it relates to him. He was not connected with the management of the affairs of the corporation at the time of the transaction complained of, although he then owned five shares of stock, but in December following he became the secretary and treasurer at a salary of $50 a month. We infer that the duties of the office were not very exacting, since the salary was small, and also because the evidence shows that he was at the time holding another position which would occupy nearly all his time. The only facts pointed to by the plaintiff as connecting Morgan with the trade that was made between the plaintiff and Heard are that he is a brother-in-law of Hoge’s and that he bought the farm from Hoge three days after Hoge had bought it from Heard, and that he had bought it without making a personal examination. He testified that he bought it on representations of Mr. Hoge and from his own knowledge of the value of land in that vicinity, he having been raised near there; he paid Hoge $3,000 for it; he knew nothing of the transaction between the plaintiff and Hester and Heard. There was no evidence to the contrary. Relationship is often an important fact to be considered with other facts and circumstances from which an inference of fraud is sought to be drawn, but alone it is no evidénce of. fraud, and sometimes it even goes to negative an inference of fraud, as in this case, for example; the relationship bringing the two men into intimate association may result in confidence and may serve to explain why Morgan would buy the farm without a personal inspection as he would probably have made in buying from a stranger. Hoge and Morgan both testified that it was a sale in good faith and there is no evidence to the contrary.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment for defendants, dismissing plaintiff’s bill.

All concur.