The State Times from Jefferson City, Missouri • Page 7

The Otate Journal. FRIDAY. JULY 81, 1874. Important Supreme Court Decision Harrimpn tt at, respondent, ts. Stow, appellant- 1.

When a suit hroueht bra wife jointly With her husband, for Injuries sustained by I ho wife In consequence or the negligence or un-skillfulneM of defendant, the wife In comm tent witness, she being the substantial party In Interest. t. The (lerlaratloti of iiersoii suffering from Injuries recently received as to the eimse of the made to a physlelan called In to nee the lain red party, are admissible a part of the res gestae, it appearing that the physician wu cautioned bv the court not to reveal anything prohibited by the Statute. 8. While, by the maxim respondeat superior, the principal la alone responsible for the mere nonfeasance or omission of dutv of an agent, the agent Is also responsible for hit own misfeasance, negligence or positive wrong.

Karnea and Ess for appellant, Johnson and Botsford for respondents. Wagner, Judge, delivered the opinion oj the Court: Tho plaintiff, a married woman, in conjunction with her husband, brought this action for damages against the defendant for injuries sustained by her in falling through a hatchway which it I alleged was constructed by defendant, and by him negligently, carelessly and wrongfully left insecure and unprotected. The answer denied the, allegation ol negligence, and as a furl her deiense set up that the house where the hatchway was built was the property of defendant's wile and that defendant in doing the work was acting as her agent. There was a repli cation as to negligence and carelessness, but it was admitted that tho property belonged to defendant's wife. The verdict and judgment were for plaintiff, and defendant appealed.

Upon the trial the plaintiff. Mrs, I la mm an. was offered as a witness and excluded by the Court. As she was the substantial party in the case) under the statute, she was a competent witness, and the ruling of the Court was erroneous. (Tinglev.

Cow-gill, 48 291 Fugatc. 40. 441.) But the plaintiff is lure as a complainant, ana it the judgment is affirmed the error not injnve her. On the trial, E. W.

Schnuffler was sworn as'a witness for the plaintiff, niiJ aluted that he was a practicing physician and as such attended on the plaintiff. The defendant objected to his giving any testimony be cause under tne statute ne was incompetent. This objection was overruled The. witness was then asked to state in what condition he found the plaintiff when he was called in. This question was objected to by, the defendant for the same reason as above-given.

The Court sustained the objection, but permitted the witness to answer under the following re-strictioti "In answering the question you will not reveal any information you may have received from the plaintiff while attending her in your professional character, which information was necessary to enable you to prescribe for her as a patient in ur opacity as physician or surgeon." The witness then gave testimony tending Jo show that plaintiff was injured about noon, what her injuries were, that he was her physician before that time and that he was called to see her between one and four o'clock of that day. At the same time she stated to him that tile trap door in the kitchen had been left in an insecure condition, and that she stopped on it and fell through. The statute says that a "physician or surgeon" shall be incompetent to testily, "concerning any information which he may have acquired from any patient while attending him in a professional character and which information was necessary to enable him to prescribe tor such patient as a physician or do any act for him as a surgeou." (2 Wag. p. 1374.

8.) As the Court restricted the witrfess from giving any information forbidden by the statute, the only inquiry is 'whether the evidence was admissible on any other principle. The general rule is that evidence in order to become a part of the res gestae should consist of declarations made contemporaneously nearly so with tho main event by which it is alleged that the principal transaction occurred 'Hwiwnnll. va Piieifin R. It. 47 239.) But in the Insurance vs Mosely (8 397) where tho question was carefully and ably considered, it was declared that though generally the dec'arations must be contemporaneous with the event, yet where there are any connecting circumstances they may even when made some time afterward form a part of the whole res qestae.

So in the Commonwealth, vs MoPike (3 lolj ine lnuiumiuiii was lor 1 Jnfnniliinl nma fi nr ml with killing his wife. It appeared that the deceased ran up stairs from her own room in the night, bleeding and crying "murder." Another woman, into whose room she was admitted. at her request tor a physician. A third person, who heard her cries, went lor a watchman, and on his return proceeded to. the room where she was.

He found her on tho floor bleeding. She said the defendant had stabbed ber. The defendant's counsel objected. to the admission of this declaration in evidence. The ob jection was overruled.

The Court docid-ed that the evidence was properly admit- .1 t.nfr UHl, was aaiu blinv ly yyiiv til uio untuic of res qestae. It will be observed that tho declarations were not contemporaneogs, but that considerable time must have elapsed between cue time ins act was OUIUIUIIWU mill ii.viiiiiivniiu made but the screams of tho injured woman, her. running into another room, her being found bleeding upon the return of the person who wens lor me wacenman, all formed connecting links and ren dered the declarations equauy as iusiac-tory as if they had been made at the time the wounds were given. In the present ease the witness came within a short time after the plaintiff received the injuries, he found tier suffering, and she told him how she was hurt, namely, by falling through the trap door. Tho accident and tho declarations formed connecting circumstances, and in Jlie ordinary affairs of Hie no one would doubt the truth of these declarations or hesitate to credit them as evidence.

I can perceive no valid objection to their admissibility. The Instructions given by the Court submitted the case with unquestionable fairness. For the defendant tho Court declared the law First. Belore the jury can find for the plaintiffs It devolves on the plaintiffs to prove that the defendant constructed tho trap-door and hatchway mentioned 1 in plaintiffs' petition, caiclcssly, negligently and unskiltullv, or so left it and that Maggie M. llarriman, the plnitftiff, fell through the trap-door and hatchway, and that such falling was occasioned bv the careless, negligent and nnskillul construction of said trap-door and hatchway by the defendant, or in so leaving it.

Second. If the jury believe from the evidence that tho defendant, in the construction of said hatchway and trap-door and in leaving it, exercised such care as an ordinary prudent man would exercise doing similar work to prevent injuries to persons passing over the same, then they will find lor the defendant, and it devolves on tho plaintiffs to prove that defendant failed to exercise such care. These instructions were sufficiently favorable to the defendant, and there is nothing in those given by the Court on the part of the plaintiff wliich in anywise conflicts with or militates against them. But it is urged with great pertinacity here that the defendant, in doing the work, was acting as the agent of another, and that, therefore, he is responsible to his principal only and not to the plaintiff. The well settled principle of law is that where an ngent is to perform or superintend work, the principal is resoon-ailile to third persons for injuries caused by the neglect or nonfeasance ol the agent in doing tho work.

(Morgan vs Bowman 22 538). And this principle obtains though the agent exceeds his powers or disobeys his instructions, provided he does the act in the course of his employment (Douglas vs Stephens, 18 302; Min-ter vs Pacific Railroad, 41 503; Gar-ritzen vs Duenckle, 50 104.) In such cases the doctrine of respondent supcrirr appleas, ni.d the liability is cast upon the master who employed the agent and caused the work to be done. (Barrv vs St. Louis, 17 121; Clark vs II. St.

Jo U. 30 202. Judge Storv says the distinction ordin arily taken, is between acts of misfeasance or positive wrongs and on feasance or mere omissions of duty by private agents. The law on this subject as to principals and agents is founded upon the same analogies as exist in the case of masters and servants. The master is always liable to third persons for the misfeasances and negligences and omissions of duty of his servant in all cases within the scope of his eowloyment.

So the principal in like mannVr is liable to third persons for the ike misfeasances, negligences, and omissions of duty of his rgent leaving him to his remedy oyer ngainst the agent in all cases where tho tort is of such a nature that he is entitled to compensation. The agent is personally liable to third persons for his own misfeasances and positive wrongs, but he is not in general liable to third persons for his own nonfeasances or omissions of duty in the course of his employment. His liability in those latter cases is solely to his principal there being no privity between him and such third persons and tho privity exists only between him and his principal. Therefore the general maxim as to all such negligences and omissions of duty is in cases of private agency respondent superior, (Story on Agency 308) and such is the general doctrine, (2 Kent Com. 10 Ed.

878 note; Pars Countr 6th Ed. 66; Calvin vs Holbrook 2 Const. 126 Denny vs Manhattan Co. 2 Denio 118 1 Bl. Com.

413.) The true distinction ns stated by Story is between acts of misteasance or positive wrongs and nonfeasances or mere omissions of duty, in the latter case the master or principal is alone liable to third persons whilst in the former the responsibility rests upon both the principal and agent. Thus in Wright vs Wilcox (19 Wend 343), Cowen, speaking for the court, says: "In a' case of strict negligence by a servant while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both, guilty of the same negligence, at the same time and under the same circumstances the servant in fact and the master constructively by the servant his agent." Lord Holt in his celebrated judgment in Lane vs Cotton, (12 Mod. 488; S. Ld.

Raymond says thut for the neglect of the servant third persons can have no remedy against him, but that the master is alone chargable. But for a misfeasance or tactual tort an action will lie against the servant becauso he is a wrong-doer. The same views are confirmed in numerous adjudge cases, (Cary vs Webster, 1 Strange, 480 Mbnt-tord vs Hughes 3, E. I). Smith Snidam vs Moore 8 358 Phelps vs Wait 30 N.

78.) The present case seems to be one, not of more nonfeasance or omission, but, of itrict negligenco orwrong. The agent undertook and proceeded to build the trapdoor, butdid it so negligently as to cause the injury under such circumstances the action would be maintainable against the agent and the principal also. The answer states and the pleadings admit that the house, upon which the work was done, was (he property of defendant's wile and that lie was acting as her agent. But it is not averred nor does the case anywhere show that it was her separate estate. If she simply owned the fee, simple as is inferred from the pleading, then the defendant in constructing the trap-door, was aoiing for himself as well as for his wilt for the uses, rents, and profits of the wife's really belong to the husband dur ing coverture.

Unilrr any view that we cap take of the case we think that the action was propel ly brought, that the judgment was right and should be affirmed I he other judges concur. AN UNPROVOKED MUKDEK. A Man Shot Down at Ills Own Door. It becomes our painful duty this week to chronicle the lamentable circumstances connected with the shooting of W. O.

Crcason, one ol the most deplorable and shocking affairs that lias ever startled our community. Mr. Creason resided upon Long Branch, some fifteen miles south west of this place. He hired a couple of young men last spring to work tor him during the working season, when the harvest approached these men informed him that thev desired to leave, as they could get better wages by the day, in tho harvest held than they were getting by the month. Creason protested against their leaving him before their time was up.

but to no purpose, they left Creason owing one of them, Joseph Kribs, a part of a months wages which he refused to pay miles Kill is would work his timo 'ait. There was some words between them when Kribs lelt. which was about three weeks since. On last Monday evening, having armed himself with a revolver, Kribs returned to called him out to the lencc, and told him he wanted him when Creason replied that ho had hot complied whilh his contract and that he had no settlement to make with him, whereupon Kribs flew into a passion and commenced cursing Creason, who orderad him off hi, premises ('reason got over the lenco ns he ordered Kribs to leave, who was sitting upon his horse on the outside of the yard. Kribs fired upon him ah he got upon the ground, tho ball cntcrllig the right side, just tinder the nrm and penetrating into the breast, killing him instantly.

After the shooting Kribs leit- in a gallop. Wes. Johnson and Henry Johnson, fvo ol tho. neighbors, came down lind informed the sheriff of the terrible affair. Sheriff Pitts procured a writ immediately Ironi Esq.

Armstrong of this place, and in com- Itatiy with James Curtright and Thalus locker, repaired to the scene of the tragedy, and from thence up to the home of the Young man in Audrain county, where having procured the assistance of several others he surrounded the liquse and captured him about daylight on Tuesday morning, and returned with him to Paris, where hie has been lodged in jail until today, and is now undergoing his preliminary examination. He is a young man about twenty-two years old, well made and muscular. I Wm. O. Creason was one of the most promising and highly esteemed young men of the county.

He was about thirty-two years of age, fuli of vitality and energy, and exalted, noble aspirations, possessing a bold and fearless, though warm and generous temperament, he endeared himself to all who knew him. He was a soldier in the First Missouri Confederate Brigade had fought upon many hard contested battlefields, and lost an nrm at Corinth in the chargo upon the. breast woi ks there on the 4th clay of October 1803. Coining back from the army without a dollar after tho war was over, he settled with his aged father and mother in this county, where he has been raising stock, and at the time of his death was prominent among our live stock men, being largely identified in this, business as a member of the firm of McCunn Creason. He was earnest in his convictions, resolute in purpose, intelligent, refined and cultivated in manners, and, all the attributes that tend to make up tho social, moral and christian gentleman, were harmonized and blendid in his character.

His funeral obsequies occurred at Bee Creek Church on Wednesday. He was buried with the rights and ceremonies of the Order of Patrons of Husbandry, there being about three hundred grangers pre cut in regalia, besides a large concourse of friends, who were present to pay the last tribute of respect to all that was mortal of that noble young man whose spirit is wafted yonder, where there is a place for the true, the good, and the brave. He leaves a gray-haired father and mother, of whom ho was the idol, a doting sister and brother, and a large circle of relatives and friends to lame.it his and untimely donnrture. Monroe Appeal, 24. News Notes Fred Olds was last Tuesday sentenced to the penitentiary for life.

In pronouncing the sentence, Judge Morton dwelt at some length upon the premedited part of tho crime cutting the threat of Ferris and it is presumable that the sentence was made tor life on account of that act. Passongers arriving at New Orleans, report a serious accident on the Mobile and New Orloans Railroad, near Mobile, caused by a switch being left open. The engineer and fireman were killed. As the railroad controls tho local wire, nothing is obtainable by telegraph Brenham, special, July 25th, to the Galveston News; "Mr. J.

E. Latham, master carpenter ojt the western branch of the Texas Central Railroad, was run over and killed by the down train this nnrning before daylight. He was walking on the track, and neither tho engineer nor fironian saw him." Where is C. A. Bentley The Kansas City News thus narrates his disappearance Mr.

A. Bentloy, living on Eighth, near McGee, started from St. Louis on the 16th to return to his home here. lie uas not yet made his appearance, and grave fears are entertained by his family tiul friends on his account. The police (apartment at St.

Louis has been notified of Mr. Berkley's, strange disappearance, and will if possible ferret out the mystery. iiTitan-ii LEGAL NOTICES. In Bankruptcy. In the Dislrtct Court of Ihe United Utah's for tho Western District of Missouri: In the matter of Karl W.

Parsons, sin Bankruptcy. Bankrupt. To Ihe Creditor of the above named bankrupt: TAKE NOTICK thnt the Sd meeting of the creditor of the above named bankrupt will be held before Charles Hess, llegister in Bankruptcy, at bis office In the City of Jefferson. In said instriet at 10 o'clock on Die Nth day of July. A.

I. 1874. in nccordimce with the nro visions of the twentv-sevenlh section of the Bankrupt Art of March Sd. 1K0T. AM KM V.

BABBITT. Assignee. Jefferson City, June 34, 1874. 26w2t-dlt In Bankruptcy. ASSKiNKK'S MOTH'K OK HIS 41'POIXTMKNT.

Western District of Missouri ss. THE undersigurtl hereby gives notico of his appointment as assignee of Stephen K. Lay and '1 liomtiM W. Buundsvco-piirtners, under the ttrm nunie and style ot Lav Bounds, doing business in mariton county, Missouri, who linve been adjudged bankrupts on creditors petition by me jMxmci conn oi saai uistrter. OKO.

W. CLAKK. Assignee. julv8dltw3t. In Bankruptcy.

ASSIOXKE'8 NOTICK 1H HIS AI'POIXTMKXT. Nter District of Missouri ss: THE undersigned hereby gives notice of his appointment us nsig'no ot Thomas It. Johnson, of the county of Chariton, und State of Missouri, within said District, who has been adjudged a bankrupt upon his creditors' petition by the United Status District Court tor said District. JAMES C.BAnmrr. Assignee.

Jefferson City, Mav 21. 1874. w3t-dlt In Bankrtiitcy. District Court of thk Umtku States, For the ll'evtern District of Missouri. In the matter of UcliQcca K.

Hell, lit Bankruptcy. Bankrupt. To the creditors of the nhnve named bankrupt' rilAKE notice that said bankrupt has filed In A said District Court, his petition for a discharge from all his debts, and tlmt said Court has appointed the 29th day of July, 1M74, at 10 o'clock A. M. of said day, 'before the lion.

Arnold Krckel, Judge of saiil Court, at chambers in tho City of Jetlcrson. in said Diotrict, as the lime and place when ami where you may attend and show cause, it any you have, why the prayer of said petition should not be granted. And you are also notified, thut the third meetings of the creditors of suid bankrupt will be held before Charles Hess, Register, at his office, in tho Citv of Jefferson, in the county ol Cole, in said District, at 10 o'clock A'M. on the 27th day of July. 1874, und thut on said day I shall tile final account as assignee of said.bankrupt,and shall then annlv to said Court for settlement of my said account and for a discharge from all liaimiiv as assignee ot sum estativm sccomanee with the provisions of the 381 li section of the Bankrupt Act of March 2d.

1807. JAMES C. BABBITT, Assignee. Iii bankruptcy. In the District Coart of the United States, for tne western uisirtcioj Missouri: In the matter of Thos.

It. Johnson. In Bankruptcy. Bankrupt. At Court.

City of Jkfff.rhoii. in said Dis trict, on the loth day of July. A. D. 1874.

Western District of Missouri On motion of creditors to set nsiiie the udiudi- dismiss proceedings in the cause in bankruptcy. It is ordered by the Court thut publication be made, for tea days, in the Daily Statu Journal, a newspaper published at the City of Jefferson, Colo county, Missouri, notifying all whom ft may concern, that unless cause be shown before tlie Judge, at the Chamber, in the Citv of Jefferson, district aforesaid, on Monday, July 27, 1874. at 10 o'clock, a. against grant-inir the nraver of petitioners to set aside the ad judication and dismiss all proceeding in bank ruptcy in ims cause, an orucr wui, on sum oav, lie entered of record, setting aside the adjudication of bankruptcy nguinst suid Thomas K. Johnson, und dismissing ull proceedings in this cause.

s.l Witness, the lion. Arnold Krekcl, Judge of the said Court, and the seal thereof, at the Citv of Jefferson, in sifid District, on the 15th day of July, A. D. 1874. ALrurai Clerk of District Court for sold District.

Bv Caas. E. Uksh, Deputy. July 15-dlOt. Order of ublieation.

Statu of Missouri, i County of Colo. At a resular term of the Cole County Court, begun and held at tho Coart House, in the City of Jefferson, on Monduy. May 4, 1874, aud on the sixth day of said term among other proceedings bud was the following, to wit In the mutter of the) estate of Jacob Order or Publication. Isele, deceased. NOW at this day comes K.

A. Clarenbach, administrator of the estate of Jacob Isele, deceased, and presents his petition representing that the personal property of said deceased is insufficient to pay tho debts duo by said estate, and prays the Court to grant an order for tho sale of the follow ine described real estate, to wit: West half of the south-west quarter of section thirty-four (34,) township forty-three (43,) range twelve (12.) Colo county, containing eighty acres; and, thereupon, after due examination, the Court doth order that all persons intt rested in the estate of said deceased, be notified thut unless good and sufficient reason to the contrary be shown on or before the next term of ibis Court, to be held on the first Monday in August, 1874. an order will be made for the sale of all or so much of said real estate as will be sufficient for the payment of said debts. And it is further ordered that this notice be fiublished In some newspaper printed and punished in Cole county, for the term of four woeka before the next term of this Court. L.

True copy attest with seal. WM. II. LU8K, Clerk. By II.

J. DlRCKX, D. C. iuay2Uw4w Final Settlement. ALL CREDITORS and others Interrestcd In the estate of John Hert, deceased, are hereby notified that the undersigned Administrator of said estate, intends to make a final settlement of aald estate at the next term of the Probate Court of Cole County, Missouri, to be holden at the Court House in said couuty, on the first Monday in August, 1874.

F. A. CLABEXBACU, nne ST, dAw-4w. Administrator. Tot Bant.

A dwelling bouse eligibly yard good cistern, etc. For dsrtleulsrs apply at ibis office. JuneSS lwd THK co-pnrtnershlp heretofore existing between Philip II. White and Thomas O. Janvier, under the firm name or White tt Janvier.

Is this day dissolved bv mutual consent, H. White will conduct the business hereafter tit tlte old stand, and will eollect all billa due the late Ann, and settle all Indebtedness. PHILIP H. WHITE. THOMAS 6.

JANTIER. Jefferson City, June 1, 1874. or Mtolen I From the premises of Nelson Cmghead, near (fray's Creek, Colo connty, a sorrell mare, iihbnt six years old, anil about fit-teen hands high, with a blasts face and a broken crupper Lone. The animal is a good pacer. A fair rewind will be paid for her return to the owner.

3KLSOX CKAGIICAI). d3w. Jefferson City Bait. HIGH 8TUKET, Jefferaon Cltj, Missouri CHARLES K. HKS8, President.

O. II. DULI.K, Virt-l'rtsident. W. C.

Boon, Danikl Boon. Cashier. Ass't THIS Bunk is now fully organized and ofioa. for the transaction of a general Banking business. Authorized capital, 100,000.

a ma-(ority of which Is now sinWribed, tmbraclng-over fifty names, composed of tho best business men of the city. The management and business of tlie Bunk Is In the hands of un able and efficient Board, who have selected from their number a President. Vice-President. Cashier and Assistant, all of whom have larsre exnen- ence und enjoy the full confidence of the com munity, centrally located, anil amply provided' with vault, safe and fixtures, both tire and bur glar proof, aud with the assurance that all business given us will receive th most prompt, careful und satisfactory attention, your deposits anil an outer nuMiicss is most respectfully solicited. WM.

C. BOON. marchl8-74-wlv Cashier. Proposals for-Beef. Senlcd proposals will be received at the office of the St.

Louis Msiiufactneing Company, at Jefferson City, up to noon AUGUST 5, 1874, for furnishing beef to the Miasouri Penitentiary for tho balance of the year ending December 81. 1874. Bids to be for 75,000 POUNDS rgross weight per month. Only one month's supply received at a tune, wo will want Good, Fat, Butchers'' delivered on foot, and weighed at Jefferson City. CASH PAID OX II.

L. FOX, Trcusurer. Jly.23-w2t-12w PROPOSALS I WJLXTTED I The St. Louis Manufacturing Company will pay tho highest cash, price for F0TAT0SS, C0S2T, BACON, SSOUZtDEBS, XJLXL2, BUTT3EB, "STOOL, BIDES, BEEP, CATTLE. Call at Missouri State Penitentiary.

HUGH L. FOX, Treasurer, J. T.WELLS, MANUFACTURER AND DEALER IN HARNESS, SADDLES COLLARS, BRIDLES, WHIPS. BLANKETS, FLY NETS, ETC. No.

219, East High Street, Jefferson City, Missouri REPAIRING NEATLY DONE AND Work Warranted. doc.i7.73-tt.