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what he thus fraudulently obtained, she is seeking to appropriate the fruits of his fraud.
Had she bought the articles from her husband, and paid for them, the husband^s vendors
might now be estopped from claiming them ; but the elements of estoppel are wholly want-
ing. It appears to me to be a plain case in which the defrauded parties demand their prop,
erty, and no one is claiming any adverse right to It except such as the fraud itself can

Evening News Association v. Tryon,

(42 Mich. 649.)
Libel — damages — retraction after suit.

In an action for libel, if St appears that a libel was published with no intent to
injure, and that all proper precautions were observed in publishing it, actual
damages only are recoverable.

A retraction of a libel, published after the suit, cannot be oonsideied in mitiga
tion of damages.

Digitized by


JANUARY TERM, 1880. 451

EvoDing News Association v. Tryon.

ACTION for libel. The opinion states the case. The plaintiff
had judgment below.

C, L Walker, for plaintiff in error.
Maybury <& Conely, for defendant ni error.

Marstok, C. J. This was an action brought to recover damages
suffered by reason of the publication of a libellous article by the
plaintiff in error.

We arc of opinion that the court correctly instructed the jury
upon the subject of exemplary damages. In cases like the present
the publication is considered a voluntary act, and is presumed to
have proceeded from malicious motives, thus entitling the plaintiff
to recover exemplary damages. If it appears upon the trial that
there was no intention in fact to injure the plaintiff, and that all
proper precaution was observed in the publication of the article
complained of, such facts will not prevent a recovery of such dama-
ges, but will reduce the amount thereof to such sums as must
inevitably have resulted from the wrong. Scripps v. Reilly^ 38
Mich. 23.

The next question is whether a retraction of the article, published
after the commencement of the action, could be considered in miti-
gation of damages. No direct authority in support of such a posi-
tion has been cited on the argument, and the cases referred to do
not, we think, sustain such a doctrine. If such a retraction may
be so considered, then there can be no limitation well fixed as to the
time within which it should be made, or beyond which it ought not
to be 80 considered. The action may not be commenced until long
after the publication complained of, and the trial may be still lon-
ger delayed. Besides, there may bo more than one trial, so that
after the libellous article has run its course, a retraction could in no
sense mitigate the injury sustained. Indeed, at such a late day, a
retraction would but revive the scandal and might be an aggrava^
tion rather than othei'wise.

We discover no error, and the judgment mnst be affirmed with

JudgmmU afirmmL

The other justices conourred.

Digitized by



Webster v. Anderson.

Wabstek V, Anderson.

(48 Mich. 564.)

Sale — constructive delivery.

It was orallj agreed between a farmer and his laborer that the latter should
accept certain hogs in payment for his services. They were pointed out,
but were to remain in the pasture with other hogs, until an opportunity
should be found for selling them. Held, a valid delivery as against the
seller's creditors.

rilROYER. The opinion states the case. The plaintiff had judg-
X ment below.

John R. Parsons, for plaintiff in error.
John H, Palmer, for defendant in error.

GooLETy J. The only question in this case is whether a sale of
certain hogs by one Hooper to Anderson was effectual to transfer
the title as against a subsequent levy upon them made by Webster
by virtue of an execution against Hooper.

The facts as found by the Circuit judge are that in October, 1877,
Anderson was at work in Hooper's employ on a farm ; that Hooper
then owed him 1100 ; that Anderson requested Hooper to pay him,
and it was agreed between them that the latter should transfer to
him 20 hogs then on his place, with others, at the price of $96, and
that Anderson should receive them at that price ; that the parties
went where the hogs were, and those to be taken by Anderson were
pointed out and specified, and Hooper charged Anderson the pur-
chase price on account ; that it was a part of the arrangement that
the hogs should remain in the same pasture as before with the other
hogs, and be fed and cared for by Anderson with the others until
an opportunity should be found for selling them. The whole agree-
ment between the parties was oral.

The Circuit judge was of opinion that there was a sufficient trans-
fer of possession of the property to constitute a delivery under the
circumstances. We agree in this view. It was all the delivery that
could well have been made under the circumstances, without requir-
ing Anderson to remove the hogs from the farm where he was em-

Digitized by


JANUARY TERM, 1880. 453

Webster v. Anderson.

ployed, to some other place where they would have been less in his
possession than where they were ; and for this there could haye been
no sufficient reason. The case is within the reason of Adams Min-
ing Co. V. SenteTy 26 Mich. 73.
The judgment must be affirmed with costs.

Judgtnmi affifjned.

Digitized by





PoRTEB V. HAinnBAL & St, Joseph Railroad Ookpakt.

(71 Mo. 66.)

Damage* — thegligence — mental pain.

In an action brought by a person for a personal injury, sustained hj him
through the negligence of another, his mental suffering is a projper element
of damage.*

ACTION of damages for personal injury. The opinion states
the point. The plaintiff had judgment below.

Oeo, W. Barley y for appellant.

Allen H, Vories, for respondent.

HENRr, J. This suit was instituted in the Buchanan Circuit
Court by plaintiff, an employee of the defendant, to recover dam-
ages for an injury sustained by him while engaged as a brakeman,
m consequence of a defective track which, it is alleged in the peti-
tion, was on the fifth day of March, 1873, and for a long time prior
thereto, had been entirely unsafe and extremely dangerous to de-

*See Wyman v. LeavUt, ante, p. 808.

Digitized by


OCTOBER TERM, 1879. 455

Porter v. Hannibal and St. Joseph Railroad Company.

fendant's employees, of which defendant had notice and plaintiff
was ignorant.

[Omitting other matters.]

It is contended by the counsel for defendant that ''mental pain
and angnish are not proper elements of the damages,** no wanton-
ness or malice being charged, citing Qreenl. Ev. 267 ; Flemington
V. Smith, 2 C. & P. 292; Blahe v. Midland Ihj. Cb., 10 E. L. & Eq.
437. Professor Greenleaf so states the law and refers to the above
cases, and that of Canning v. Inhabitants of Williamsburg, 1
Cush. 451. These cases do not sustain the learned author. Flem-
ington V. Smith was an action by a father for an injury to his son,
and the court held that the damages should be such a sum as would
compensate plaintiff for his loss in being deprived of the assistance
of his son, and the expenses he was put to by his being out of his
place, also some small compensation for his mother going to visit
him, as she did, but not for injury to parental feelings. This does
not sustain the doctrine, that in a suit by the party directly injured
(the son), he shall not recover for his mental suffering. Blake v.
^fidland Ry, Co,, 10 Eng. L. & Eq. 437, was an action by a widow
under chapter 93 of 9 and 10 Vic. for the death of her husband,
which was caused by the negligence of defendant Coleridge, J.,
held that no damages should be allowed for the mental suffering of
the plaintiff, observing that *' the legislature would not have thrown
upon the jury such great diflBcult in calculating the solatium to the
different members of the family without some rule for their guid-
ance. When an action is brovght by an individual for a perso7ial
wrong, the jury in assessing the da?nages can, with little difficulty,
atoard him a solatium for his mental suffering along with an Didem-
nity for his pecuniary loss" We have italicized that portion of the
above quotation which shows that the learned judge clearly distin-
guished between such an action, under special statutes, and one
by the party himself, who is directly injured. His whole opinion,
as will be seen by a careful perusal, is based upon the difficulty in-
dicated in the first paragraph of the above quotation.

By a statute of Massachusetts it was provided, that if any person
should receive any injury in his person, by reason of any defect or
want of repair in a road, he might recover of the party obliged by
law to repair the road, the amount of damages sustained by «5uch
injury. Canning v. Inhabitants of Williamsburg, 1 Cush. 451,
was an action by plaintiff under that statute, and the court, Mbt^

Digitized by



Nof singer v. Ring.

CALF« J,y distinctly held that, '^ though that bodily in juiy may have
been yery small, yet if it was a ground of action within the statute,
and caused mental suffering to the plaintiff, that suffering was a
part of the injury for which he was entitled to damages." Fajf v.
Parker, 63 N. H. 359; s. c, 16 Am. Rep, 270, cited by defendant's
counsel, has not a word on the subject, but is in regard to exem-
plary or yindictive damages.

In actions under statutes giying a right of action to husband, or
wife, or parent, brothers and sisters, for the death of a husband
or wife, or parent, or son or brother, or sister, it seems well settled
that the damages proyided for and recoverable under them are only
such as are pecuniary and actual, or fixed in amount by the stat-
utes, and not exemplary, and not on account of the mental suffer-
ing of the deceased or for the sorrow, grief or suffering of the
surviving relatives who may be entitled to recover. Field on
Dam. 498. Instructions substantially the same as the one under
consideration have been expressly approved by this court, Whalen
y. St. i., K a i£ JV. i?y. Co., 60 Mo. 323. The authorities cited
by Professor Greenleaf do not support him, but clearly recognize
the law as heretofore declared by this court, and therefore, with the
highest regard for the distinguished author, whose opinion on any
legal question is an authority of great weight, we cannot in this
instance adopt the rule to which he has given the sanction of his
name. In fact, we are inclined to believe from the utter contradic-
tion it meets in the authority relied upon by him, that the state-
ment of the law, as it appears in his work, is the result of a
typographical error.

[Omitting other matters.]
' The judgment is affirmed.

Judgment affirmed.

NoFsiNQBR V. Ring. '

(71 Mo. 149.)

8aU — eonditian — decUion of tJiWd person as to quaXUy,

On an agreement for the sale of meat, the purchaser agreed to accept snch as
had been inspected and pronounced fit by a certain person. Hdd, that in
the absence of fraud he was bound hy the decision of such person.

Digitized by


OCTOBER TERM, 1870. 457

Nofsinger v. Ring.

ACTION for breach of contract of purchase of meat. The opin-
ion states the case. The plaintiff had judgment at the trial,
which was reversed by the Court of Appeals.

John K, Cravens, for appellants.

James 0. Broadhead and Valle Reybum, for respondent.

Hough, J. This was a suit to recover the difference between
the contract price and market price, at the time and place of deliv-
ery, of sundry boxes of meat packed by the plaintiffs for the
defendant, and delivered to him under a certain contract of sale,
which meat the defendant failed and refused to accept The
defendant admitted the contract of sale and his refusal to accept
the meat delivered, and alleged as a reason for his refusal that the
meat tendered did not conform to the requirements of the con-
tract. The contract, which was entered into on the 22d day of
August, 1872, called for 500 boxes long boneless (long clear) mid-
dles, to average not less than 52 pounds each middle, and 500
boxes short boneless (short clear) middles, to average not less than
42 pounds each middle, both lots at six and three-quarter cents per
net pound of meat, delivery to be made at Kansas City, Mo., on
board cars, at the option of the sellers, during the month of Decem-
ber, 1872, and to be paid for in cash on delivery; the above meat to
be cured, cut, trimmed and packed according to the requirements of
the New York standard for long and short boneless (clear) middles.

On the 20th day of December, 1872, the plaintiffs notified the
defendant that they were ready to begin delivering the meat under
their contract. Thereupon it was arranged between the parties
that the meat should be inspected before it was delivered on board
the cars, and one James McCullough, a professional inspector of
uiei.t, was employed by the defendant to see that the meat offered
by the plaintiff under his contract was properly cut, cured, trim-
med, boxed and weighed. The plaintiffs were notified of his
selection as inspector, and were directed to ship the middles to
John H. Pool, New York City, whenever they received McOul-
longh's certificate that they were according to contract. McCul-
lough inspected the meat, gave the required certificate to the
plaintiffs, and the meat was put upon the cars. Upon receiving
from McCullough a description of the meat inspected by him and
shipped by the plaintiffs, the defendant Ring wrote the plaint-
Vol. XXXVI— 58

Digitized by



Nofsinger v. Ring.

iffs^ declining to accept the same, for the reason that it did not
come up to the requirements of the contract. The plaintiffs re-
tained the meat and sold it, and brought this action to recover the
difference between the contract price and the market price at the
time and place of delivery. The plaintiffs had judgment in the
Circuit Court, which was reversed by the Court of Appeals.

The facts sUited appeared in evidence at the trial, and the in-
spector also testified that the meat was according to contract. Tlio
tlefendant offered to prove that the meat was not according to con-
tract, but this testimony was rejected by the court. The cause
was tried witliout the aid of a jury. At the instance of the plaint-
iffs, the court gave the following declaration of law : If the court,
sitting as a jury, believed that tho meat, described in the contract
offered in evidence and admitted in the pleadings, was tendered to
defendant by plaintiffs, and deNvered on board the cars at Kansas
.City, within the time required by the contract, and that said meat,
prior to said tender on said cars, had been inspected by the agent
of defendant, and accepted by him, to be of tlie kind, quality and
quantity called for in said contract; and when said meat was so
tendered by plaintiffs, defendant failed and refused to receive and
pay for the same, then the finding shouM be for the plaintiffs.

No question is made as to the measure of damages, and wo
therefore omit the instruction on that subject The substance of
the agreement between the parties was that the defendant would
accept such meat when delivered, as had been inspected by McCul-
lough, and pronounced by him to conform to the requirements of
the contract. There is no allegation, nor is there any evidence of
collusion between the inspector and the plaintiffs; and in the
absence of any such collusion, the purchaser was as much bound
to receive the meat as if he had inspected it in person. And there
can be no question, that if Ring had himself inspected the meat
and pronounced it according to contract, before it wjis packed and
delivered, in the absence of any fi-aud or imposition on the part of
the plaintiffs, he could not afterward have refused to accept it on
the ground that it did not come up to the contract. No fraud or
unfairness on the part of the plaintiffs was attempted to be shown.
We think the testimony offered was properly rejected, and that the
declaration of law given by the court was correct The judgment
of the Court of Appeals must therefore be reversed, and that of
the Circuit Court affirmed.

All concur. JudgmerU accordingly.

Digitized by


OCTOBER TERM, 1879: 459

Raioa v. St. Loais, etc., Railway Company.

Rains v, St. Louis, etc., Railway Company.

(71 Mo. 164.)

Master arul neroant — tiegligence — contributory negligenee — railfDay low bridge.

A ailway compauj is not bound to see that a foot bridge crossing the line is
at a height safflcient to enable brakemen to pass under it safely while stand-
ing upright on the top of freight cars ; and if a brakeman is thus killed
while in this position, being familiar with the situation and the danger, his
own negligence contributes to hia death, and there can be no recovery.*

ACTION of damages for negligent killing. The opinion states
the ease. The plaintiff had judgment below.

Wm, A*. Donaldson y for appellant.
B. B. Cahoony for respondent.

Hough, J. This was a suit under the third section of the
Damage Act, to recover damages for the death of the plaintiff's
minor son, who was killed at the town of Belmont, on a side track
of the defendant's road, by coming in contact with a foot bridge
extending across said side track from the upper story of an elevator
on the east side thereof to the upper story of a freight house on the
west side thereof.

This bridge was not high enough to permit persons of ordinary
height to pass safely under it, while standing erect on the top of
the box cars of a freight train. For about one month before the
deceased was killed, ho had passed under the bridge in question at
least three times daily, while rendering service as brakeman on the
freight trains of defendant. At the time he was killed, he was on
the top of a freight train, with his back to the bridge and the
engine, running or walking rapidly toward the rear end of the train,
while it was passing under the bridge, and as he did not move as
rapidly in the direction he was going as the train was moving in the
opposite direction, he was borne backward against the bridge, which
struck him in the head and killed him. There was testimony tend-
ing to show that the deceased was not in his proper position on the

• To same effect Baylor v. Delaware^ etc.^ R. Co. (llVroom, S3), 29 Am. Rep. 308;
Salt. ^ Oh4o R. Co. v. Strieker (51 Md. 47), 84 Am . Rep. 291.

Digitized by



R&iDB y. St. Louia, etc., Railwaj Company.

train, and that he was warned of the danger he was in, immediately
before he came in contact with the bridge. The deceased was
twenty years and six months old when killed. The jury rendered
a verdict for the plaintiff for $2,000, and the defendant has ap-

Among other instructions given for the plaintiff was the follow-
ing: " Although William Rains may have failed to exercise ordi-
nary care and prudence at the time he was killed, and may have
been guilty of negligence or carelessness which contributed to the
injury complained of, yet if the defendant might, by differen tly erect-
ing or maintaining the bridge spoken of by the witnesses, or by the ex-
ercise of ordinary care and caution, have avoided the injury, the jury
will find for the plaintiff." This instruction is not the law. The cases
cited by the plaintiff, in which instructions similarly worded received
the qualified approval of this court, were wholly unlike the present
They were not cases in which the acts of the defendant occasion-
ing the injury consisted in the ei*ection of insufficient or dangerous
structures, obvious to the senses long before the accident, and
therefore long before the concurring negligence of the plaintiff, but
they were cases in which negligent acts of the defendant, contribut-
ing to produce the injury, occurred after the contributory negli-
gence of the plaintiff, and without which the plaintiff would not
have been injured, notwithstanding his own want of reasonable and
ordinary care. And in a case of the latter class, an instruction
like the one under consideration was condemned. Maker v. A, £ P,
R. i?., 64 Mo. 276. It is the settled law of this State, that although
the defendant may have been guilty of negligence contributing to
produce the injury complained of, still, if the plaintiff was also
guilty of negligence proximately contributing thereto, he cannot
recover, unless the negligent acts of the defendant occasioning the
injury occurred after he became aware of the danger to which the
plaintiff, by his own negligence, had exposed himself. Karh v.
K. C.y St J. & C. B. R. R., 55 Mo. 484 ; Isabel v. Han. <6 Si. Jo. R.
R., 60 id. 482; Maker v. A. & P. R. R., 64 id., 276; Nelson v. A. d
P. R. R.y 68 id. 593. The instruction under consideration, which,
in effect, told the jury that the plaintiff was entitled to recover, if
the defendant could have so constructed the bridge as to have pre-
vented the injury complained of, even though the deceased failed to
exercise ordinary care and prudence at the time he was killed, and
was thereby guilty of negligence contributing to his death, is in

Digitized by


OCTOBER TERM, 1879. 461

Rains v. St. Louis, etc. , Railway Company.

direct conflict with the foregoing authorities, and indeed with all
the authorities everywhere on this subject We cannot say that an
instruction so fundamentally wrong was not calculated to mislead
the jury in a case like the present, no matter how correctly the law
may have been declared in other instructions. Instructions B and
C, given- by the court of its own motion, contain the same error,
and are therefore in conflict with the views here expressed.

[Omitting a minor point.]

Instructions numbered 6 and II asked by the defendant should
have been given. They are as follows: "G. If the deceased knew
of the exposure to danger in serving as brakeman for the defendant
upon a train having to pass a foot-bridge insuf&ciently high to per-
mit him to pass under it while standing at full height on the top
of a box-car, and with such knowledge consented to and did con-
tinue in the service of defendant as such brakeman, and was there-
after killed by coming in contact with said foot-bridge, then the
plaintiff cannot recover from the defendant for any negligence in
the construction of the said foot-bridge.*^

**1I. If the deceased, while in the discharge of his duty as brake-
man, passed under the foot-bridge in question frequently for the
space of two or three weeks, and knew the danger of coming in
contact with the top of said foot-bridge, and his attention had been
called to the danger of injury from the lowness of the foot-bridge,
and with this knowledge he stood or walked erect on the top of the
box-car, and while so standing or walking erect there was in pass-
ing struck by the foot-bridge and killed, then the jury are
instructed that this was contributory negligence on the part of
the deceased, and that plaintiff cannot recover." These instruc-
tions are precisely like two instructions which received the approval
of this court in Devitf- v. P. R. R., 50 Mo. 302, the facts in which
case very closely resemble the controlling facts in the case at bar.

[Omitting minor points.]

The judgment will be reversed and the cause remanded.

Reversed and remanded.

All cononr.

Digitized by



State V. Redemeier.

State v. Rbdkmkikr.

(7t Mo. ITH.i

Oriminal law — midenee — insanity — burden of proof.

Where insanity is set up as a defense in a criminal case, tlie defendant ia
boond to satisfy the jury of the insanity by a preponderance of evidence.
(5iJtf ;k?<€,p. 467.)

nONVIOTIONof murder. The opinion states the foots.

A, N, Merricky for appellant.

/. L, Smith, attorney-general, for the State.

Norton, J. The defendant was indicted at the July term, 1878,
of the St. Loais Criminal Court for murder in the first degree, for
killing one Franz Vosz. The cause was tried at the November
term, 1878, of Siiid court, and defendant was found guilty and
sentenced to be hanged. An appeal was taken to the St Louis
Court of Appeals, where the judgment of the Criminal Court was
affirmed, and from which defendant has appealed to this court.
The fact that deceased was killed by the defendant in the most
brutal manner, without cause or excuse, is not disputed, but it is
claimed that no criminality attaches to defendant because it is

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