Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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ant's pecuniary circumstances is competent in an action for breach of promise
of marriage; Chellis v. Chapman, 125 N. Y. 214, 11 L.RJL 784, 26 N. E. 308,
holding evidence of general reputation, as to wealth, is competent upon the qnes-
tion of damages; Vierling v. Binder, 113 Iowa, 337, 85 N. W. 621; Stratton v.
Dole, 45 Neb. 472, 63 N. W. 875, — ^holding such evidence admissible as tending
to show the condition in life which the plaintiff would have secured by a con-
summation of the marriage contract; Leavell v. Leavell, 114 Mo. App. 24^ 89 S.

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W. 55, holding defendant's wealth may be shown as an aid to the measure of
punitive damages though such damages may not be asked.

Cited in reference note in 26 A. S. R. 924, on admissibility of evidence of
wealth of defendant in suit for breach-of -marriage-promise.

Cited in notes in 63 A. D. 545, on measure of damages for breach of promise
to marry; 63 A. D. 646, on pecuniary circumstimces of defendant as element to
4>e considered in awarding damages for breach of promise to marry.

Distinguished in Watson v. Watson, 53 Mich. 168, 51 A. R. Ill, 18 N. W. 605,
holding damages for seduction cannot be aggravated, by evidence of defendant's

'—Of seduction in aggravation of damages.

Cited in Harrison v. Carlson, 45 Colo. 55, 101 Pac. 76; Anderson v. Kirby,
125 Ga. 62, 114 A. S. R. 186, 54 S. E. 197, 6 A. & E. Ann. Cas. 103; Geiger v.
Payne, 102 Iowa, 581, 69 N. W. 554, — ^holding seduction may be pleaded in an
action for breach of promise of marriage in aggravation of damages; Kennedy
v. Rodgers, 2 Kan. App. 764, 44 Pac. 47, holding a recovery may be had for in-
jury to feelings and affections, mortification which plaintiff has been made to
imdergo, and the harm that may have been done to her prospects in life.

Cited in reference note in 26 A. S. R. 924, on admissibility of evidence of plain
tiff's seduction in breach-of-marriage-promise suit.

Cited in note in 44 A. D. 178, on evidence of seduction in action for breach
of promise.

Disapproved in Wrynn v. Downey, 27 R. I. 454, 114 A. S. R. 63, 4 L.R.A.
(N.S.) 615, 63 Atl. 401, 8 A. & E. Ann. Cas. 912, holding evidence of seduction
is not admissible in aggravation of damages in such action.

Damages for seduction.

Cited in reference note in 35 A. S. R. 132, on damages for seduction.

Variance between declaration and proof.

Cited in Sax v. Detroit^ G. H. & M. R. Co. 125 Mich. 252, 84 A. S. R. 572,
84 N. W. 314, holding a variance between the declaration and proof relating to
a recital of a former occupation in this case unsubstantial matter, and therefore

■86 AM. REP. 446, MORRISON T. BERRT, 42 MICH. 889, 4 N. W. 781.
liiability of wife to a third party for improvements made under con-
tract witli hnstmnd.

Cited in Holmes v. Bronson, 43 Mich. 562, 6 N. W. 89, holding she is not liable
for cost of improvements put into her house where done by contract with and in
reliance on the responsibility of her husband; Luebe v. Thorpe, 94 Mich. 268,
54 N. W. 41, holding where services were rendered to one whose husband acted
as principal there can be no recovery from the wife.

Distinguished in Popp v. Connery, 138 Mich. 84, 110 A, S. R. 304, 101 N. W.
54, holding where building is erected on land* of a married woman with her
consent and of materials selected by her she is liable for such material though
Jler husband contracted for same.
CSharacter of annexation necessary to convert article into realty.

Cited in Cook r. Condon, 6 Kan. App. 574, 51 Pac. 587, holding where per-
manent annexation is intended, the article becomes a part of the realty; Stevens
T. Rose, 69 Mich. 259, 37 N. W. 205, holding where it was the intention of par-

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ties when a building was erected that it be made part of realty it could not
be moved or conveyed; Lansing Iron k Engine Works v. Walker, 91 Mich. 409,
30 A. S. R. 488, 51 N. W. 1061, holding a portable sawmill does not become a
fixture by being fitted in place upon land on which vendee owns an undivided
interest where sale was conditional — the title remaining in vendor until full pay-
ment; Stevens v. Barfoot, 13 Ont. App. 366, holding that boiler and engine placed
in building by mortgagor passes with realty.

Cited in reference note in 40 A. R, 107, on right to chattels affixed by default-
ing purchaser of land as between lessor of chattels and owner of land.

Distinguished in Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899, holding
where articles on being removed from mill are equally capable of being used else-
where they may be either real or personal property, according to the intent of
the parties; Michigan Mut. L. Ins. Co. v. Cronk, 93 Mich. 49, 52 N. W. 1035,
holding a house moved upon adjoining land six months before action is brought
cannot be replevied.

Right to maintain trover for property which by annexation has become

Cited in Detroit & B. C. R. Co. v. Busch, 43 Mich. 571, 6 N. W. 90, holding
the owner of ties used by subcontractor for construction of railway, cannot after
same has become realty being trover for their conversion.
Estoppel from acceptance of thing done.

Cited in Bond v. Pontiac, O. & P. A. R. Co. 62 Mich. 643, 4 A. S. R. 885, 29
N. W. 482, holding the appropriation of what one has a right to suppose was
properly done creates no estoppel.

Presumption of agency where husband acts for his wife.

Cited in Fechheimer v. Peirce, 70 Mich. 440, 38 N. W. 325, holding there can
be no presiunption of a husband's authority to act for his wife.


4 N. W. 267.
Compensatory or punitive damages for torts partaking of malice.

Cited in Ross v. Leggett, 61 Mich. 445, 1 A. S. R. 608, 28 N. W. 695, holding
where an arrest is made without authority, a charge that all the circumstances
of the act are to be taken into consideration to determine questions of punitive
damages correctly states the law; Childers v. San Jose Mercury Printing Pub.
Co. 106 Cal. 284, 45 A. S. R. 40, 38 Pac. 903, holding exemplary damages may be
based alone upon a publication libelous per se.

Cited in reference notes in 12 A. S. R. 698, on necessity of showing special
damages where words are not libelous per se; 47 A. 8. R. 348, on damages re-
coverable in actions for libel.

Cited in notes in 72 A. D. 431, on actual loss and injury as element of damages
in slander or libel; 15 A. S. R. 339, on elements increasing or mitigating damages
for newspaper libel.
Presumption of law from fact of publishing of libel.

Cited in Morse v. Times-Republican Printing Co. 124 Iowa, 707, 100 N. W.
867, holding both malice and injury are implied in the publishing of words libel-
ous per se, and good faith is not avoidable as a defense; Wheaton v. Beecher, 66
Mich. 307, 33 N. W. 503, holding the publishing of a falsehood concerning a can-
didate for public ofiQce, without justification and with intent to injure is libel-

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ous; Davis v. Marxhausen, 103 Mich. 315, 61 N. W. 504, holding the law pre-
sumes a published article done purposely, knowingly and for no justifiable end,
to be malicious; Paxton v. Woodward, 31 Mont. 195, 107 A. S. R. 416, 78 Pac.
215, 3 A. & E. Ann. Cas. 546, holding malice is an inference of fact which the
jury may draw from the libelous publication alone.

Admissibility of retraction of slander or libel.

Cited in Constitution Pub. Co. v. Way, 94 Ga. 120, 21 S. E. 139, holding the
retraction must be made or offered before the person libeled has sought redress
in the courts to be available in reducing the damages.

Distinguished in Turton v. New York Recorder Co. 144 N. Y. 144, 38 N. E.
1009, holding evidence of a fair and honest retraction of the charges made sub-
sequent to the commencement of the action ought to be permitted in mitigation.

36 AM. REP. 452, W£BST£R v. ANDERSON, 42 MICH. 554, 4 N. W.

Sufficiency of delivery to support sale.

Cited in Shaul v. Harrington, 54 Ark. 305, 15 S. W. 835, holding where a com-
pleted contract of sale appears and vendor is to hold as bailee for the vendee in
lieu of actual delivery the sale is complete against creditors, if not otherwise
fraudulent; Cunningham v. O'Connor, 136 Mich. 293, 99 N. W. 25, holding where
parties indebted agree to turn over a field of beans to apply on their debt and
creditor takes possession and harvests the same a complete sale is ahown; Lathrop
V. Clayton, 45 Minn. 124, 47 N. W. 544, holding the law relating to delivery and
possession accommodates itself to its nature and situation as well as to the cir-
cumstances about each case; Rail v. Little Falls Lumber Co. 47 Minn. 422, 50
N. W. 471, on principles governing passing of title without delivery; Godkin v.
Weber, 154 Mich. 207, 20 L.R.A.(N.S.) 498, 114 N. W. 924, holding that ac-
cepted offer to buy lumber in party's possession does not amount to sale where
former thereafter performed no act indicating acceptance as required by stat-
ute; Stearns v. Grand Trunk R. Co. 156 Mich. 145, 120 N. W. 672, to point that
where something is to be done by seller to ascertain identity, quantity or qual-
ity of thing sold title does not pass; Barber v. Andrews, 29 R. I. 51, 26 L.R.A.
(N.S.) 1, 69 Atl. 1, holding title to hay passed where certain quantity was to be
taken from larger quantity stored in barn and where method of measuring was
agreed upon.

Cited in reference notes in 40 A. R. 167, on effect of sale of chattel where vendor
retains possession; 60 A. S. R. 237, on retention of possession by vendor of per-
sonalty; 98 A. S. R. 977, on sufficiency of delivery or change of possession of
property sold as against creditors and subsequent purchasers.

Cited in notes in 97 A. D. 342, on change of possession sufficient as against cred-
itors and subsequent purchasers; 37 A. R. 21, on delivery satisfying statute of
frauds; 26 L.R.A. (N.S.) 47, on siifficiency of selection or designation of goods
sold out of larger lot.

36 AM. REP. 454, PORTER v. HANNIBAL A ST. J. R. CO. 71 MO. 60.
Mental suffering as an element of damages.

Cited in Chase v. Western U. Teleg. Co. 10 L.R.A. 464, 44 Fed. 554, holding
mental suffering alone is no ground for recovery of damages for delay in delivering
a telegraphic message; Breen v. St. Louis Transit Co. 102 Mo. App. 479, 77 S. W.
78, holding such mental suffering as natural resuult from the assault and bat*

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tery committed apon plaintiff by street car conductor ia properly admitted m
estimating damages; Milledge y. Kansas City, 100 Mo. App. 490, 74 S. W. 892,
holding the pain already suffered and that which must continue to be endured
for the future should be considered where injuries were caused by wrong doer;
Hyatt V. Hannibal & St. J. R. Co. 19 Mo. App. 287, holding mental suffering and
pain an element of damage for breach of contract.

Cited in reference note in 6 A. S. R. 48, on injury to feelings as element of

Cited in notes in 7 A. S. R.'535, on mental anguish as element of damages;
8 L.R.A. 765, on mental anguish as element uf damages for personal injury;
12 L.R.A 699, on pain and suffering as element of damages for personal injury.

Distinguished in Connell v. Western U. Teleg. Co. 116 Mo. 34, 38 A. 8. R. 575,
20 L.R.A. 172, 22 S. W. 345, holding damages cannot be recovered for mental
suffering and pain caused by a telegraph company's failure to deliver a social

Diligence required of servant In ascertaining existence of danger.

Cited in Stoeckman v. Terre Haute & I. R. Co. 15 Mo. App. 503; Banks v. Wa-
bash Western R, Co. 40 Mo. App. 458; Flynn v. Union Bridge Co. 42 Mo. App.
529, — holding he is chargeable with knowledge of the defective condition where
patent or such as would be discovered by a servwit ordinarily observant; Hous-
ton & T. C. R. Co. V. McNamara, 69 Tex. 255, holding the law does not charge
servants with knowledge of facts which they could have known only by exercise
of extraordinary diligence; Lee v. St. Louis, M. k S. E. R. Co. 112 Mo. App. 372*
87 S. W. 12, holding it is not incumbent upon the servant to search for latent
defects in the machinery and appliances furnished him; Devlin v. Wabash, St. L.
& P. R. Co. 87 Mo. 546, holding he is not bound to investigate for himself a
department of work with which he has nothing to do; Aldridge v. Midland Blast
Furnace Co. 78 Mo. 559, holding while the servant is not required to search for
latent defects, he is presumed to have knowledge of those so patent that an
ordinarily observant man would have observed; Kansas City Southern R, Co. v.
Prunty, 66 C. C. A. 163, 133 Fed. 13, holding the act of coupling or uncoupling
cars by going between them while in motion has been held under the circumstances
of the particular case not to constitute negligence as a matter of law; Hollenbeck
V. Missouri P. R. Co. 141 Mo. 97, 38 S. W. 723, holding a brakeman, unless he
knew or may be presumed to have had knowledge of a ditch into which he fell
he cannot be held to have assiuned the risk.

Cited in notes in 4 L.R.A. 797, on right of servant to presiune that master has
performed his duty; 41 L.R.A. 127, on comparison of obligations of master and
servant as to inspection; 41 L.R.A. 130, on relation of obligations of master and
servant as to inspection where servant has equal or superior knowledge or means
of knowledge.
Assumption of risk where danger Is known or obvious.

Cited in Southern R. Co. v. Wiley, 88 Miss. 826, 41 So. 611; Zellars v. Missouri
Water & Light Co. 92 Mo. App. 107, — ^holding he assumes only such risks in
respect to the place as are obvious or known to him ; Rigsby v. Oil Well Supply
Co. 116 Mo. App. 297, 91 S. W. 460, holding the servant by continuing to work
knowing that a pile of lumber was liable to topple over, assumed the risk of
being injured; Dean v. St. Louis Woodenware Works, 106 Mo. App. 167, 80 S. W.
292, holding an agreement that employee shall work with certain tools, thereby
taking the responsibility on himself, is not inconsistent with doctrine that the

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master cannot contract against his own negligence; Kleine v. S. E. Freunds Sons
Suoe & Clothing Co. 91 Mo. App. 102, holding a servant assumed the risk of
injury to his hands by using a rope where the risk was not only known to him
but obvious; Junior v. Missouri Electric Light & P. Co. 127 Mo. 79, 29 S. W.
988, holding same where servant by n^lect of the means furnished, brought bis
hands in contact with electric wires; Marshall v. Kansas C^ty Hay Press Co.
69 Mo. App. 256, holding a servant by the continued use of a defective and dan-
gerous privy voluntarily assunred the risk incident to its use; Watson v. Kansas
& T. Coal Co. 52 Mo. App. 366, holding where the defect in the machinery or im-
plement is known to the employee, and he still enters the service, he takes upon
himself the risks incident to such defect; Goins v. Chicago, R. I. & P. R. Co. 37
. Mo. App. 221, holding if the risk is such as is obvious to any one, using his
senses, then it will be presumed, ordinarily, that the servant took notice there-
of; Dowling v. Gerard B. Allen k Co. 74 Mo. 13, 41 A. R. 298; Czemicke v. Ehr-
lich, 212 Mo. 386, 111 S. W. 14, — holding one takes upon himself the ordinary
risks of the employment; Roddy v. Missouri P. R. Co. 104 Mo. 234, 24 A. 8. R.
333, 12 L.R.A. 746, 15 S. W. 1112; Sykes v. St. Louis k S. F. R. Co. 178 Mo. 693,
77 S. W. 723, — ^holding where servant continued in service knowing of defective
condition of cars and without promise that they would be repaired he assumed
the risk; Gleeson v. Excelsior Mfg. Co. 94 Mo. 201, 7 S. W. 188, holding where
one entered employment knowing hatchways were unguarded and as part of his
undertaking was to close them when left open, he assiuned all risks due to
them; Price v. Hannibal & St. J. R. Co. 77 Mo. 508, holding servant assumes the
risk incident to sleeping in a round house, knowing as well as the company the
danger incident thereto; Griffin v. Ohio & M. R. Co. 124 Ind. 326, 24 N. E.
888, holding where servant is employed to dig out gravel frcmi under a stratum
of clay he cannot recover as he assumed the risk incident to the work; Louis-
ville, N. A. & C. R. Co. V. Frawley, 110 Ind. 18, 9 N. E. 594, holding where the
defect is equally known to both employer and employee there can be no recovery ;
Obermeyer v. Logeman Chair Mfg. Co. 120 Mo. App. 59, 96 S. W. 673 (dissent-
ing opinion), on assumption of risk by servant.

Cited in notes in 77 A. D. 224, as to when servant assumes risk of dangerous
machinery and appliances; 4 L.R.A. 53, as to what risks are not assumed by
servant; 17 L.R.A.(N.S.) 77, 78, on servant's assumption of risk from latent
danger or defect.
Duty of master in furnishing safe tools, machinery or appliances.

Cited in Williams v. St. Louis & S. F. R. Co. 119 Mo. 316, 24 S. W. 782;
Zellars v. Missouri Water & Light Co. 92 Mo. App. 107 ; Depuy v. Chicago, R. I.
A, P. R. Co. 110 Mo. App. 110, 84 S. W. 103, — ^holding the master is required as
a general rule to furnish his servant with a reasonably safe place in which to
work; Steinhauser v. Spraul, 114 Mo. 551, 21 S. W. 515; Bennett v. Himmelber-
ger-Harrison Lumber Co. 116 Mo. App. 699, — holding the master is required to use
reasonable care and precaution to furnish reasonably safe tools but he is not an
insurer of their safety; Waldhier v. Hannibal & St. J. R. Co. 71 Mo. 514; Wald-
hier v. Hannibal & St. J. R. Co. 87 Mo. 37, — ^holding the servant has a right to
assume that the master has performed his duty in keeping machinery in repairs
until the contrary appears to him; Tabler v. Hannibal & St. J. R. Co. 93 Mo. 79,
5 S. W. 810, holding he must keep them in good order and repair; Kieholds v.
Crystal Plate Glass Co. 126 Mo. 55, 27 S. W. 516; Epperson v. Postal Teleg.
Cable Co. 155 Mo. 346, 55 S. W. 1050; Reber v. Tower, 11 Mo. App. 199,—
Am. Rep. Vol. XVn.— 71.

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holding the master chargeable with knowledge which he might hare acquired bj
the exercise of due care, the same as though he actually possessed it; Bartler t.
Trorlicht, 49 Mo. App. 214, holding the duties required for the safety and pro-
tection of his servants cannot be cast off either upon an independent contractor
or other servants; O'Donnell v. Baum, 38 Mo. App. 245, holding the law requires
the master to inspect the machinery in the first instance, and to oontinoe
the inspection during its use; Muirhead v. Hannibal & St. J. R. Co. 19 Mo. App.
634, holding the degree of care to be exercised must be proportionate to the dan-
gerous nature of the means, instruments and machinery used; Garaci v. Hill
O'Meara Constr. Co. 124 Mo. App. 709, 102 S. W. 594, holding where a defect,
discoverable by that degree of care imposed by law upon the master, is shown it
is not an ordinary risk incident to the employment; Bowen v. Chicago, B. & K.
C. R. Co. 95 Mo. 268, 8 S. W. 230, holding if the agent is shown to be negligoit
in performing duties of the master, this negligence is imputed to the master;
Covey V. Hannibal & St. J. R. Co. 86 Mo. 636, holding knowledge of agent of
master of defective machinery is to be attributed to the master; Coontz v. Mis-
souri P. R. Co. 121 Mo. 652, 26 S. W. 661, holding he cannot relieve himself by
delegating it upon a servant; Condon v. Missouri P. R. Co. 78 Mo. 667, holding
mere fact that injury resulted from a defect in the hand-hold is not itself suffi-
cient without showing master knew of the defect, or by reasonable diligence might
have known it; Hester v. Jacob Dold Packing Co. 84 Mo. App. 451; Glasscock v.
Swafford Bros. Dry Goods Co. 106 Mo. App. 657, 80 S. W. 364,— holding it no*
enough to show a defect in the place or appliance but it must be shown it was
known to master or could have been known by exercise of ordinary care; Smith
v. St.- Louis, K. C. k N. R. Co. 69 Mo. 32, 33 A. R. 484; Siela v. Hannibal k St
J. R. Co. 82 Mo. 430; Clowers v. Wabash, St. L. It P. R. Co. 21 Mo. App. 213,—
holding he is bound to provide such instruments with which to carry on his
business as are reasonably safe, secure and sufficient for the purpose; Current
V. Missouri P. R. Co. 86 Mo. 62, holding a petition fatally defective in not al-
leging defendant knew of defective machine plaintiff worked with, or by exercise
of due care might have known of it; Solomon R. Co. ▼. Jones, 30 Kan. 601, 2
Pac. 657, holding the duty extends to the keeping of machinery in repair and to
this end all reasonable and necessary inspections must be made; 0*Neil ▼. St
Louis, I. M. & S. R, Co. 3 McCrary, 423, 9 Fed. 337, holding the master liable
where he introduces new and unusual machinery without notice to the employee,
who while exercising the required diligence meets with injury; McEee v. Chi-
cago, R. I. & P. R. Co. 83 Iowa, 616, 13 L.R.A. 817, 60 N. W. 209 (diasenting
opinion), on duty of master to provide suitable appliances.

Cited in reference note in 77 A. D. 221, on amount of care required of master
in regard to machinery and appliances furnished to servant

Cited in notes in 41 L.R.A. 134, on imputing the master's knowledge of serv-
ants charged with duty of seeing that place of work is safe; 6 L.R.A. 75, •n duty
of railroad company to exercise care to prevent injury to track men by moving
Negligence of fellow servant.

Cited in Tierney v. Minneapolis & St L. R. Co. 33 Minn. 311, 63 A. R. 35,
23 N. W. 229, holding negligence of employees of a corporation in keeping safe
instrumentalities for use of servants is attributable to a corporation; Hall v.
Missouri P. R. Co. 74 Mo. 298, holding the carelessness of the section foreman
and his knowledge of the obstruction are imputable to the railway ccnnpany.

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Cited in note in 2 L.R.A. 102, on liability of master for injury to senraat from
negligence of vice principal.

Distinguished in Corbett v. St. Louis, I. M. & S. R. Co. 26 Mo. App. 621, hold-
ing a track repairer not entitled to recover for negligence of trainmen <m
ground that he was not a fellow-servant of trainmen.
Reversal of verdict on ground of Us being excessive.

Cited in Pry v. Hannibal k St. J. R. Co. 73 Mo. 123, holding a judgment will
be set aside as excessive only where verdict was the result of passion or preju-
dice, or the damages palpably excessive; Dougherty v. Missouri R. R. Co. 97 Mo.
647, 8 S. W. 900, holding where verdict is not so large as to unmistakably evince
prejudice and passion on part of jury it will be allowed to stand; Furnish v.
Missouri P. R. Co. 102 Mo. 438, 22 A. jS. R. 781, 13 S. W. 1044, declaring the
serious nature and extent of plaintiff's injuries forbade pronouncing excessive
a verdict of $16,000; Burdict v. Missouri P. R. Co. 123 Mo. 221, 45 A. S. R. 528,
26 L.R.A. 384, 27 S. W. 453 (dissenting opinion), on right of appellate court
to reverse for excessive damages; Gratiot v. Missouri P. R. Co. 116 Mo. 450, 21
S. W. 1094 (re-affirming in banc [Mo.] 16 L.R.A. 189, 16 S. W. 384), holding
court will not disturb a verdict for $10,000 as excessive where a physician was
permanently disabled and his practice lost.

Cited in notes in 14 L.R.A. 680, on excessive verdicts in suits for damages for
personal injuries; 26 L.R.A. 395, on granting of new trial by appellate court for
excessive damages.

— Repeated verdicts to same effect.

Cited in Baker v. Independence, 93 Mo. App. 165, holding a verdict for injuries
caused by a wrongdoer will not be set aside as excessive where there has been
two verdicts in the case, the second greater than the first; Loker v. Southwestern
Missouri Electric R. Co. 94 Mo. App. 481, 68 S. W. 373, holding repeated ver-
dicts should not be disturbed.
Extent of recovery under the statute for wrongful death.

Cited in Rains v. St. Louis, I. M. & S. R. Co. 71 Mo. 164, 36 A. R. 459, hold-
ing loss of services during minority, cost of nursing, surgical and medical at-
tendance and funeral expenses may be included as damages in action by parent
for the death of child.

Distinguished in Gray v. McDonald, 104 Mo. 303, 16 S. W. 398, holding ex-
emplary as well as actual damages may be recovered in an action by the widow

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