authorities doctrine in Missouri

1967Among the Missouri authorities cited were Zweigardt v. Birdseye, 57 Mo.App. 462 , and Gordon v. Livingston, 12 Mo.App. 267 .

1896Zweigardt v. Birdseye, 57 Mo. App. 462 ; Gordon v. Livingston, 12 Mo. App. 267 ; Martindale on Abstracts of Title, sec. 185; Warvelle on Abstracts [2 Ed.], sec. 29, p. 653; Bank v. Ward, 100 U. S. 195 ; Dundee, etc., Co. v. Hughes, 10 Sawyer, 145; Houseman v. Girard, etc., Ass’n, 81 Pa. St. 256; Kohl v. Love, 37 N. J.

1967Among the Missouri authorities cited were Zweigardt v. Birdseye, 57 Mo.App. 462 , and Gordon v. Livingston, 12 Mo.App. 267 .

1896Zweigardt v. Birdseye, 57 Mo. App. 462 ; Gordon v. Livingston, 12 Mo. App. 267 ; Martindale on Abstracts of Title, sec. 185; Warvelle on Abstracts [2 Ed.], sec. 29, p. 653; Bank v. Ward, 100 U. S. 195 ; Dundee, etc., Co. v. Hughes, 10 Sawyer, 145; Houseman v. Girard, etc., Ass’n, 81 Pa. St. 256; Kohl v. Love, 37 N. J.

1905So where the consideration of a contract is by law illegal, as where the cause of action arises ex turpeBut where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscion able defense, which may not be set up' to exempt from liability the party so pleading

1898But where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the'doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscionable defense, which may not be set up to exempt from liability the party so pleading it.” And to the same effect are Town Co. v. Morris, 43 Kan. 282 ; Durham v. Mining Co., 22 Kan. 169 ; Asso

1905So where the consideration of a contract is by law illegal, as where the cause of action arises ex turpeBut where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscion able defense, which may not be set up' to exempt from liability the party so pleading

1898But where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the'doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscionable defense, which may not be set up to exempt from liability the party so pleading it.” And to the same effect are Town Co. v. Morris, 43 Kan. 282 ; Durham v. Mining Co., 22 Kan. 169 ; Asso

1905So where the consideration of a contract is by law illegal, as where the cause of action arises ex turpeBut where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscion able defense, which may not be set up' to exempt from liability the party so pleading

1898But where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the'doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscionable defense, which may not be set up to exempt from liability the party so pleading it.” And to the same effect are Town Co. v. Morris, 43 Kan. 282 ; Durham v. Mining Co., 22 Kan. 169 ; Asso

1905So where the consideration of a contract is by law illegal, as where the cause of action arises ex turpeBut where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscion able defense, which may not be set up' to exempt from liability the party so pleading

1898But where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the'doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscionable defense, which may not be set up to exempt from liability the party so pleading it.” And to the same effect are Town Co. v. Morris, 43 Kan. 282 ; Durham v. Mining Co., 22 Kan. 169 ; Asso

1905So where the consideration of a contract is by law illegal, as where the cause of action arises ex turpeBut where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscion able defense, which may not be set up' to exempt from liability the party so pleading

1898But where the act is not wrong per se, where the contract is for a lawful purpose in itself, as in the present case, and has been entered into with good faith, and fairly executed by the party who seeks to enforce it, we must assent to the'doctrine of those authorities which hold that the excess of the corporate powers of the contracting party which has received the benefit of the contract is an unconscionable defense, which may not be set up to exempt from liability the party so pleading it.” And to the same effect are Town Co. v. Morris, 43 Kan. 282 ; Durham v. Mining Co., 22 Kan. 169 ; Asso

1938Instruction “C” submitted a case to the jury that was properly pleaded but not proven by any evidence other than the evidence that proved the theory of the case as contained in Instruction “B.” This court in the well-reasoned opinion of the Conduitt case, 326 Mo. 133 , 31 S. W. (2d) 21 , l. c. 25 (5) held: “The doctrine of these authorities is that, even though the plaintiff introduce evidence tending to show specifically the cause of the accident, the benefit of the rule res ipsa loquitur will not be waived or lost if by this evidence the cause is still left in doubt or is not clearly shown;

1938Instruction “C” submitted a case to the jury that was properly pleaded but not proven by any evidence other than the evidence that proved the theory of the case as contained in Instruction “B.” This court in the well-reasoned opinion of the Conduitt case, 326 Mo. 133 , 31 S. W. (2d) 21 , l. c. 25 (5) held: “The doctrine of these authorities is that, even though the plaintiff introduce evidence tending to show specifically the cause of the accident, the benefit of the rule res ipsa loquitur will not be waived or lost if by this evidence the cause is still left in doubt or is not clearly shown;

1938The plaintiff is bound by his evidence in a ' res ipsa case just as he would be in any ordinary negligence action and .cannot in effect say to the jury, ‘I have shown you exactly how the accident occurred but you. are, nevertheless, still at liberty to speculate and presume it may have happened some other way.’ ” Again this court in Sanders v. City of Carthage, 330 Mo. 844 , 51 S. W. (2d) 529 , l. c. 531, held: *484 “Neither is he permitted,-even though he has alleged general negligence, if his proof shows specifically the -cause, to submit the case-to the jury upon instructions on the theory

1938The plaintiff is bound by his evidence in a ' res ipsa case just as he would be in any ordinary negligence action and .cannot in effect say to the jury, ‘I have shown you exactly how the accident occurred but you. are, nevertheless, still at liberty to speculate and presume it may have happened some other way.’ ” Again this court in Sanders v. City of Carthage, 330 Mo. 844 , 51 S. W. (2d) 529 , l. c. 531, held: *484 “Neither is he permitted,-even though he has alleged general negligence, if his proof shows specifically the -cause, to submit the case-to the jury upon instructions on the theory

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1917Although the statute, section 476, merely says the person “must be notified” yet this means that written notice must be served upon him and such notice is a ‘jurisdictional paper’ and “corresponds to the summons in ordinary actions.” [Crow v. Meyersieck, supra.] It has the force of a summons, and, without notice, an inquiry into sanity is void. [Hunt v. Searcy, 157 Mo. 158 , 176.] Considering the notice as process the same as in civil actions, the return of service by the sheriff of Buchanan county, per his deputy, on Mrs. Finch in Jackson county, is not valid but void, since a sheriff has no

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1917If, therefore, the service, as shown 'by the roll record, amounts in law to no notice, then the recital in the final record is overthrown by the showing in the record preceding snch recital. [Cloud v. Pierce, 86 Mo. 357, 367 ; Adams v. Cowles, 95 Mo. 501 ; Laney v. Garber, 105 Mo. 355, 359 ; Williams v. Monroe, 125 Mo. 574 ; Kunzi v. Hickman, 243 Mo. 103, 118 .] Such a general finding and recital of notice in a judgment is “to be construed in connection with the whole record, and will be limited and held to refer to the particular notice, if any, shown by other parts of the record, and general

1916That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo. App. l. c. 243, 111 S. W. 641 ; Plymouth Cordage Co. v. Yeargain, 87 Mo. App: 561; Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89 ; Hackworth v. Zeitinger, 48 Mo. App. 32 ; Taylor v. Short, 38 Mo. App. 21 ; Lindsey v. Nagel, 157 Mo. App. l. c. 140, 137 S. W. 912 .

1916That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo. App. l. c. 243, 111 S. W. 641 ; Plymouth Cordage Co. v. Yeargain, 87 Mo. App: 561; Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89 ; Hackworth v. Zeitinger, 48 Mo. App. 32 ; Taylor v. Short, 38 Mo. App. 21 ; Lindsey v. Nagel, 157 Mo. App. l. c. 140, 137 S. W. 912 .

1916That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo. App. l. c. 243, 111 S. W. 641 ; Plymouth Cordage Co. v. Yeargain, 87 Mo. App: 561; Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89 ; Hackworth v. Zeitinger, 48 Mo. App. 32 ; Taylor v. Short, 38 Mo. App. 21 ; Lindsey v. Nagel, 157 Mo. App. l. c. 140, 137 S. W. 912 .

1916That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo. App. l. c. 243, 111 S. W. 641 ; Plymouth Cordage Co. v. Yeargain, 87 Mo. App: 561; Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89 ; Hackworth v. Zeitinger, 48 Mo. App. 32 ; Taylor v. Short, 38 Mo. App. 21 ; Lindsey v. Nagel, 157 Mo. App. l. c. 140, 137 S. W. 912 .

1916That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo. App. l. c. 243, 111 S. W. 641 ; Plymouth Cordage Co. v. Yeargain, 87 Mo. App: 561; Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89 ; Hackworth v. Zeitinger, 48 Mo. App. 32 ; Taylor v. Short, 38 Mo. App. 21 ; Lindsey v. Nagel, 157 Mo. App. l. c. 140, 137 S. W. 912 .

1915Co., 15 Mo. App. 215 .] The authorities rule, too, without dissent, that a mere insurance broker who is entrusted by the company with the delivery of the policy and the collection of the premium is to be regarded as the agent of the company for such purpose. [See Lycoming Fire Ins.

1915Co. v. Ward, 90 Ill. 545 ; Indiana Ins.

1913The identity of the transaction on which plaintiffs based their claim to a judgment against the defendant and the form of the action as one s'ounding in contract, was preserved in the amended petition; and this is the best and most reasonable criterion by which ■ to determine whether or not an amendment of a pleading substantially changes the cause of action so as to be obnoxious to the rule against departures.” In Ingwerson v. Railroad, 150 Mo. App. l. c. 381, 130 S. W. 411 , Noktoni, J., succinctly states the rule as follows.: “As long as the gist of the action remains the same in the propos

1913As long as the gist of the action remains the same in the proposed amendment, though the alleged incidents are different, it is regarded as the same cause of action and not the substitution of another, but the authorities rule that the proposed amendment' must not only relate to the same transaction, but must adhere as well to the con tract or injury originally declared upon, sufficient, at least, to maintain in a general way the identity of the cause of action first stated, so that the character of the proof will remain about the same. ” [See also Clothing Co. v. Railroad, 71 Mo. App. 241, 24

1913As long as the gist of the action remains the same in the proposed amendment, though the alleged incidents are different, it is regarded as the same cause of action and not the substitution of another, but the authorities rule that the proposed amendment' must not only relate to the same transaction, but must adhere as well to the con tract or injury originally declared upon, sufficient, at least, to maintain in a general way the identity of the cause of action first stated, so that the character of the proof will remain about the same. ” [See also Clothing Co. v. Railroad, 71 Mo. App. 241, 24

1913The identity of the transaction on which plaintiffs based their claim to a judgment against the defendant and the form of the action as one s'ounding in contract, was preserved in the amended petition; and this is the best and most reasonable criterion by which ■ to determine whether or not an amendment of a pleading substantially changes the cause of action so as to be obnoxious to the rule against departures.” In Ingwerson v. Railroad, 150 Mo. App. l. c. 381, 130 S. W. 411 , Noktoni, J., succinctly states the rule as follows.: “As long as the gist of the action remains the same in the propos

1913As long as the gist of the action remains the same in the proposed amendment, though the alleged incidents are different, it is regarded as the same cause of action and not the substitution of another, but the authorities rule that the proposed amendment' must not only relate to the same transaction, but must adhere as well to the con tract or injury originally declared upon, sufficient, at least, to maintain in a general way the identity of the cause of action first stated, so that the character of the proof will remain about the same. ” [See also Clothing Co. v. Railroad, 71 Mo. App. 241, 24

1913In such a case, the Supreme Court of Texas declared the relation of passenger and carrier continued to obtain and the carrier should respond thereon. [See Ormand v. Hayes, 60 Tex. 180 .

1912Co. v. McLaughlin, 76 Neb. 307 , which is not in entire accord with the doctrine of the foregoing authorities, but, as expressly stated in the opinion in that ease, the question now under consideration was not involved, and the case cannot be considered as an authority thereon, if the bond is to be construed as a private bond.

1911Co., 224 Mo. 564, 596 , et seq. 123 S. W. 807 .] It would seem that the rule of non-liability in cases circumstanced as this one should proceed, if at all, upon the theory of assumed risk, for by the reasoning of the authorities the rule exempting the master from actionable negligence in omitting to give signals is said to flow from the peculiar nature of the employment, in that the section man undertakes to look out for his own safety and that the railroad does not undertake to give warning of the approach of trains.

1911Co., 224 Mo. 564, 596 , et seq. 123 S. W. 807 .] It would seem that the rule of non-liability in cases circumstanced as this one should proceed, if at all, upon the theory of assumed risk, for by the reasoning of the authorities the rule exempting the master from actionable negligence in omitting to give signals is said to flow from the peculiar nature of the employment, in that the section man undertakes to look out for his own safety and that the railroad does not undertake to give warning of the approach of trains.