controversy. He cannot plead an express contract and be allowed to recover on proof of an implied contract. Taking defendant in its own evidentiary position, there can be no question that the employment of plaintiff was under an express contract for the definite term of the years 1906 and 1907 with plaintiff's compensation fixed at a salary of $1,320 per year and commissions on the business done in the second year in excess of $60,000. [3] The effect of the continuation of the employment after the termination of the definite period, without any new agreement, was to raise the presumption of a renewal of the contract for the following year. It is said in Bell v. Warehouse Co., 205 Mo. loc. cit. 489, 103 S. W. 1017: "While an employé's salary is fixed by contract at a certain sum per year or month, and he continues to render services after the expiration of such period, without any new agreement, the law presumes, there being no evidence to the contrary, that the continued services were rendered upon the same terms. Ewing v. Janson, 57 Ark. 240 [21 S. W. 430]; Standard Oil Co. v. Gilbert, 84 Ga. 717 [11 S. E. 491, 8 L. R. A. 4101; Crane Bros. Mfg. Co. v. Adams, 142 Ill. 125 [30 N. E. 10301; Ingalls v. Allen, 132 Ill. 170 [23 N. E. 10261; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56; Adams v. Fitzpatrick, 125 N. Y. 124 [26 N. E. 143]; Ranck v. Albright, 36 Pa. 367; Wood on Master and Servant, § 96; Home Fire Ins. Co. v. Barber, 67 Neb. 644 [93 N. W. 1024, 60 L. R. A. 927, 108 Am. St. Rep. 716]; Rose v. Carbonating Co., 60 Mo. App. 28." The rule thus is stated in Kellogg v. Insurance Co., 94 Wis. loc. cit. 557, 69 N. W. 362: "When one serves another under a contract for a year's service, and holds over, continuing in the service after the expiration of the year, there is a presumption, analogous to the presumption in the case of a yearly lease, that the parties consent to the continuance through another year of the contract of service." See, also, 1 Labatt on Master and Servant, pp. 230, 231; 26 Cyc. 976; 20 Am. & Eng. Encyc. of Law, 16. [4] The presumption, called by Labatt "a presumption of fact," does not alter, but continues, the terms of the original contract, and therefore does not have the effect of converting an express into an implied contract. It merely raises an inference as one of fact that the parties agreed to extend the operation of the old contract for another year. This view is consistent with the distinction observed by Nortoni, J., between express and implied contracts in Weinsberg v. Cordage Co., 135 Mo. App. 553, 116 S. W. 461; Stone v. Trust Co., 150 Mo. App. 331, 130 S. W. 825; and Wagner v. Illuminating Co., 141 Mo. App. 51, 121 S. W. 329. Since defendant concedes that the subject of the terms of the employment was not mentioned until it arose in the dispute in the summer of 1909 over the commissions claimed by plaintiff for 1908, it follows from what we have said that the employment for 1908 and 1909 was under the terms of an express contract which provided for the payment of commissions in addition to the agreed salary, and, since the agreement to pay a salary and a commission upon a stated contingency were divisible and in the nature of independent covenants (Marks v. Davis, 72 Mo. App. 557), the voluntary increase of the salary by defendant in the year 1908 was without effect upon the agreement respecting the commissions. If plaintiff had asked it, he would have been entitled to a peremptory instruction to the jury to allow commissions for the years 1908 and 1909. As to the remaining years of 1910 and 1911, the proof of defendant tends to show that, as a result of the dispute in 1909 between the parties over the question of defendant's liability for commissions, plaintiff acquiesced in the contention of his adversary that commissions would not be allowed. Such conduct did not affect his right to claim such compensation for the current year of 1909, but, if it occurred, did have the effect of altering the terms of the contract for the succeeding two years to exclude commissions. The only issue of fact which should have been submitted to the jury was whether defendant, in 1909, suffered the employment to continue with knowledge that plaintiff was standing on the agreement for commissions, or whether plaintiff continued in defendant's service after the expiration of that year in the face of defendant's positive declaration that he would not allow commissions. For the reasons stated, defendant's second instruction should not have been given. PARKER-GORDON CIGAR CO. v. CHICAGO, R. I. & P. RY. CO. (No. 11272.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) CARRIERS 83-DELIVERY OF GOODS-SUFFI CIENCY CONSIDERATION BY TEAMSTER. Where it was the practice of a railroad company to deliver goods only to those teamsters of a transfer company who had a freight sheet signed by certain officers of the transfer company, whose signatures were kept by the railroad company for comparison, the railroad company was not liable for goods delivered to a teamster who converted them, where he was in fact authorized to receive them, though his freight sheet was not properly signed. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 308-315; Dec. Dig. 83.] Johnson, J., dissenting. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by the Parker-Gordon Cigar Company against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. Spencer & Landis, of St. Joseph, for appellant. J. E. Dolman and O. E. Shultz, both of St. Joseph, for respondent. ELLISON, P. J. This is an action to recover the value of goods received at Chicago by defendant, a common carrier, for transportation to Kansas City and for delivery there to plaintiff, the consignee and owner. The petition states: Appeal from Circuit Court, Buchanan | called it a card, some a freight card, some County; William H. Haynes, Judge. a sheet and others an identification sheet, or card. A copy of one is in the record, and we find that it is really a blank receipt, to be signed by the consignee. It is gotten up by the transfer company and carried by its teamsters; each sheet having a blank space for the teamster's name, following the word "Teamster" at the top. Then came the words, "Received from the Kansas City Transfer Company the following articles in good order and condition." Then followed blank columns for name of railroad, consignee, articles of freight, weight, and charges. This sheet, or card, was carried by the teamster to the railroad office where, if not already done, it would be filled out with items of freight, the freight loaded by the teamster and taken to the consignee, who would verify, sign, and hand back to the teamster, who would return it to the transfer company. Now it was this sheet receipt that one of the officers above named would indorse with his name, generally in one corner, before it was handed to a teamster by the dock foreman, or his assistant when directing him to go after freight. The railroad delivery official had the signatures of these officers in his desk for comparison if he thought it nec "There was delivered to defendant for plaintiff * four cases of cigars, containing 22,500 cigars, which said cigars the defendant agreed, in consideration of certain freight charges paid it, well and safely to carry from Chicago, Ill., to Kansas City, Mo., and at the latter place to deliver the same to plaintiff, or its agent, but *** defendant, in violation of its said agreement and in total disregard of its duty as a common carrier for hire failed and neglected to deliver said cigars *** to plaintiff, or to any one for plaintiff, and that the same have been wholly lost to plaintiff." The prayer is for judgment for $1,575, the alleged value of the goods. The answer admits that defendant received the cigars for transportation and delivery to plaintiff at Kansas City, and alleges delivery to an authorized agent of plaintiff. essary. On the day when the freight in controversy was delivered by defendant, the transfer The sole issue in the case is whether there company's assistant dock foreman handed was a delivery of the goods to plaintiff, their one of these sheets to one of the transfer consignee and owner. The trial of that issue company's teamsters, with the latter's name in the circuit court resulted in a verdict and written in at the proper place, but, seejudgment for plaintiff. Defendant appealed. ing that it had not the indorsement of either It is conceded defendant delivered the goods of these officers, he, as he had sometimes at its depot in Kansas City to a negro done before, mistakenly thinking he had auteamster employed by the Kansas City thority, wrote the name of the transfer comTransfer Company, which had general au-pany's cashier on the sheet. The teamster thority from plaintiff, a wholesale grocer, to took it to defendant's freight office, and there receive all shipments of goods arriving at the proper railroad officer, without attemptKansas City for plaintiff. The teamster ing to verify the transfer officer's signature, loaded the goods in the wagon of his employ-ordered plaintiff's goods delivered to the er of which he was the driver, but, instead teamster, who, as we have said, sold them of delivering them to plaintiff, he sold them and never delivered to plaintiff. for $100, returned the team and wagon to the barn of the Transfer Company, and then absconded. From the foregoing it will be seen that defendant delivered the goods to the transfer company's teamster whom that company had The only irregularity, if The mode of doing business between the sent after them. railroad companies, including defendant, and it may be called such, was in delivering to the transfer company as agent for a large a teamster who was not identified. But we number of merchants receiving shipments think plaintiff has received a service out of was this: To protect the railroad companies this to which it was not entitled. Of course from imposition by persons pretending to be it was the duty of this defendant, as a carsent after freight by the transfer company, rier, to safety deliver at destination to the it was agreed between them that none of the consignee (Bartlett v. Steamboat, 32 Mo. 256; railroad companies would deliver freight to Buddy v. Railroad, 20 Mo. App. 220; Express a teamster unless there was found signed or Co. v. Milk, 73 Ill. 224; Powell v. Myers, indorsed on his "freight sheet" the name of 26 Wend. [N. Y.] 591), but the object of the either of four named officers of the transfer railway company, as applied to this case, was company, viz., the president, the bookkeeper, to protect itself against an impostor getting the superintendent, or the dock foreman. the goods and thereby rendering it liable This sheet was perhaps 18 inches long, so as to accommodate items of freight, and it is for delivering to the wrong party. The railway's position may be likened, by way of check. The bank must pay, at its peril, to fly the act of the company as would have the proper person. Prudence suggests that it been the act of the president. Plaintiff's do not pay until it has required the party whole case is based upon a failure to identify presenting the check to identify himself. But a man as being the transfer company's teamthough the bank is imprudent enough not to ster, when in fact it is admitted he was such require identification, yet if the party is the teamster. right person, no harm has resulted to the bank from its incautious act. In National Bank v. Schley, 58 Ga. 370, it is said that: "If a person withdraw from a bank a special deposit, in pursuance of authority conferred upon him by the depositor, the bank is discharged, though the authority be unknown, at the time, to the corporation or to the officer representing it in the transaction." And in Dobie on Bailments and Carriers, § 19, it is stated that: "Of course the bailee is not liable when he delivers goods to the right person, though the delivery is made on insufficient, or even false evidence." Here the face of the record shows, as we have stated, that the negro was the transfer company's teamster who was directed to go to defendant's freight office for the goods. In obedience to that direction he went. As he was the right man, he did not need identification. Identification would not have prevented him from stealing the goods just as he did steal them. Plaintiff is making use of this identification card just as it would had some impostor gone to defendant and falsely represented that he was the transfer company's teamster sent after the goods. The matter of identification was for the protection of the railroad companies. The transfer company's president testified that: "The railroad companies, for their own protection, had the transfer companies to meet with the local freight agents and made an agreement by which they could be protected, and not make wrong deliveries." We think the judgment should be reversed. TRIMBLE, J., concurs. PAUL v. METROPOLITAN ST. RY. CO. et al. (No. 11601.) (Kansas City Court of Appeals. Missouri. June 14, 1915. On Motion for Rehearing, Oct. 4, 1915.) 1. CARRIERS 321-INJURY TO PASSENGERINSTRUCTIONS-CONFORMITY TO ISSUES. In an action for personal injuries by a passenger, received through the alleged negligence of a street car company in starting its stopping place where the car had stopped to car while plaintiff was alighting at a regular take on and let off passengers, the defense being that plaintiff fell because some one stepped on her dress, and that the car did not start until the conductor had picked her up, an instruction was not objectionable for ignoring the element of whether defendant's servants knew, or in the exercise of ordinary care could have known, that plaintiff was alighting when the car was started, since the conductor's knowledge was not in issue in the case. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. 321.] On Motion for Rehearing. 2. CARRIERS 303-ALIGHTING PASSENGERS -CARE REQUIRED-STREET RAILROADS. running through the country, has stopped a reaThe rule that after a steam railroad train, sonable time at stations for passengers to board and alight, the conductor may start the train upon the assumption that all passengers are safe, does not apply to the operation of street cars in cities. [Ed. Note.-For other cases, see Carriers, 1234-1240, 1243; Dec. Dig. 303.] Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 3. CARRIERS 303-ALIGHTING PASSENGERS -CARE REQUIRED. Under his duty to use the highest degree of care for the safety of his passengers, a street that no passenger is alighting or is otherwise car conductor before starting the car must know in a position of danger, and his failure to perform such duty is negligence. [Ed. Note.-For other cases, see Carriers, 1234-1240, 1243; Dec. Dig. 303.] Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, And that agreement was that no deliveries would be made without the signature of some official on the "teamster's sheet." But it would make no difference if we concede that the agreement had also for its object the protection of the transfer company, for the reason that it might have had some teamsters in its employ whom it did not wish to trust with hauling freight to consignees, and that on that account, it wanted freight delivered only to such teamsters as carried a freight sheet indorsed by one of its officers. For here the teamster was a freight teamster, employed to haul and deliver freight to consignees, and who, in this instance, was sent by the transfer company after the freight in controversy. No other conclusion can be reached than that Action by Laura E. Paul against the Methe was sent by the dock foreman and his as-ropolitan Street Railway Company and othsistant, and that was the act of the company. ers for personal injuries. From a judgment Suppose the president of the transfer comfor plaintiff, defendants appeal. Affirmed. pany had given the teamster this sheet, even without a pretense of being indorsed, and sent him for plaintiff's goods, it would seem folly to suggest that he should have been identified by defendant's freight agent. The JOHNSON, J. In alighting from à street act of the dock foreman was just as complete- car operated by defendants on the Brooklyn Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge. "Not to be officially reported." John H. Lucas and Bruce Barnett, both of Kansas City, for appellants. Claude T. Goble, of Kansas City, for respondent. material to the cause of action and it was not essential that the jury should consider it." line in Kansas City, plaintiff was thrown to the pavement and injured. She sued to recover her damages on the ground that her We see no reason for changing the views injury was caused by negligence of defend- thus expressed, which we find sufficiently anants in prematurely starting the car while she swers all of defendants' criticisms of the inwas in the act of alighting from it at a regu-struction. There is no error in the case, and lar stopping place where it had stopped to re- the judgment is affirmed. All concur. ceive and discharge passengers. The answer is a general denial. Verdict and judgment were for plaintiff in the circuit court, and defendants appealed. The evidence of plaintiff tends to show that the car on which she was a passenger stopped at Tenth street and Forest avenue to take on and let off passengers; that plaintiff proceeded as expeditiously as possible to the rear vestibule, and was in the act of stepping to the street from the last step, when the car was suddenly started, in obedience to a signal from the conductor, and plaintiff was thrown to the pavement and injured. The evidence of defendants is to the effect that some one in the vestibule accidently stepped on plaintiff's skirt when she was stepping from the platform of the vestibule and caused her to fall, and that the car did not start until the conductor had helped her to her feet and she proceeded on her way home. [1] Defendants do not contend that plaintiff's evidence is insufficient to sustain the pleaded cause of action, and the only points they present for our determination are directed against the first instruction, given at the request of plaintiff. The principal objection to the instruction is that: "It ignores the element as to whether defendants' servants knew, or by the exercise of proper care could have known, that plaintiff was alighting from the car at the time the car started forward." We said of this precise objection to a similar instruction which was urged in Alten v. Railway, 133 Mo. App. loc. cit. 430, 113 S. W. 691: "It would sufficiently answer the objection to say that, since all of the evidence of defendant is to the effect that the conductor did observe plaintiff while she was in the act of alighting, the question omitted from the instruction was not a debatable issue, and there is neither rule nor reason for requiring the submission to the jury of admitted facts, however material they may be. But defendant's conclusion is unsound for another reason. The witnesses for both parties agree that the car had stopped at the regular stopping place and passengers were getting on and off. In such situation, it was the duty of the conductor, before giving the signal to start, to know whether or not a passenger was alighting. If plaintiff was in the act of stepping from the platform, it would be no excuse for the conductor to say that he did not know that fact. In the exercise of reasonable care, he was bound to know it. Green v. Railway, 122 Mo. App. 647 [99 S. W. 281: Nelson v. Railway, 113 Mo. App. 702 [88 S. W. 1119]; Hurley v. Railway, 120 Mo. App. 262 [96 S. W. 714]. The question under discussion was not On Motion for Rehearing. [2] Counsel for defendants argue in their motion for a rehearing that the rule, stated in the opinion, which holds a conductor of a street car negligent in giving a signal to start while a passenger is in the act of alighting at a place where the car has stopped to take on and discharge passengers, is in conflict with the decision of the Supreme Court in Clotworthy v. Railroad, 80 Mo. 220. That case announces the well-known and generally recognized rule applicable to the operation of trains on steam railroads running through the country that where such train stops long enough at a station for a passenger conveniently to alight and without fault of the company's servants he fails to do so, and the conductor, not knowing and having no reason to suspect that he is in the act of alighting, causes the train to start while he is so alighting, the company will not be held liable. That rule does not apply to the operation of street cars in cities for reasons given in recent opinions of this court and the St. Louis Court of Appeals. Nelson v. Railway, 113 Mo. App. loc. cit. 709, 88 S. W. 1119; Green V. Railway, 122 Mo. App. 647, 99 S. W. 28; Hurley v. Railway, 120 Mo. App. 262, 96 S. W. 714; Zeiler v. Railway, 153 Mo. App. 613, 134 S. W. 1067; Jerome v. United Railways Co., 155 Mo. App. 202, 134 S. W. 107; Elliott v. Railway, 157 Mo. App. 517, 138 S. W. 663. [3] In the exercise of the highest degree of care towards his passengers, the conductor of a street car, in any event, should see and know that no passenger is in the act of alighting or otherwise is in a position which would be rendered perilous by the motion of the car when it is again put in motion, and a failure to perform that duty is held by the great weight of authority to be negligence. Booth on Street Railways, § 349; Nellis on Street Railroad Accident Law, 92; Railway v. Smith, 90 Ala. 60, 8 South. 86, 24 Am. St. Rep. 761; Anderson v. Railway, 12 Ind. App. 194, 38 N. E. 1109; Patterson v. Railway, 90 Iowa, 247, 57 N. W. 880. See, also, note 11 L. R. A. (N. S.) 140 et seq. The rule criticized in the motion is not in conflict with that applied in the Clotworthy Case and is so just and well sustained by reason and authority that it should not be discarded from the negligence law of this state pertaining to the relation of carrier and passenger. The motion for rehearing is overruled. All concur. JENNINGS et al. v. NATIONAL AMER- (Kansas City Court of Appeals. Missouri. 1. INSURANCE 310-LIFE INSURANCE-FORFEITURE OF POLICY-"LIABLE TO FORFEITURE"-"LIABILITY." Where, in an action on a policy of life insurance, after both sides had rested and the instructions been passed upon by the judge, the day after the closing of evidence, when arguments were to be made and the case submitted the answer to set up a provision of its by-laws to the jury, the insurer asked leave to amend that a reduction could be made from the amount specified in the policy of any premiums due for Where a policy of insurance, providing that the first ten years remaining unearned between it was issued subject to the statements in the that time and the prior death of the insured, application, that said statements were warrant- and also asked leave to introduce evidence to ed to be true and made a part of the insurance show the amount of the unearned premiums contract, together with the by-laws of the com- which it could have collected between the death pany, and that the policy should be "liable to of the deceased and the expiration of ten years forfeiture" if such statements were not true, from the date of the policy, had decedent lived under the company's by-laws, the making of so long, which, under the by-law, could be defalse statements being an offense upon which, ducted from the face of the policy in suit therebefore any effect was produced upon the insur- on, the action of the court in refusing the reance, a proceeding must be had by the com-quested leave, resulting in plaintiff's recovery pany "under such rules as may from time to of the face of the policy, was not an abuse of time be formulated by the board of directors," discretion. in the absence of proceeding to declare a forfeiture, the policy was not avoided by misstatements of the insured in the application, since "liable to forfeiture" means exposed or subject to forfeiture, contingently subject to forfeiture, "liability" being something that must be enforced, while, if a contract provides that a forfeiture may be declared in a certain contingency, then such forfeiture cannot come into existence until it has been declared. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. 645.] 3. INSURANCE 645-LIFE INSURANCE-ACTION-EVIDENCE. In an action on a policy of life insurance providing that the application should be taken as part of the contract, the plaintiff was not required to introduce the application in evidence together with the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. 645.] 4. INSURANCE 687 LIFE INSURANCE CHARACTER OF COMPANY. Cent. Dig. §§ 601, 605; Dec. Dig. 236.] The allowance of amendments to pleadings is a matter not entirely within the discretion of the trial court; its action being reviewable in case of manifest abuse. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825-3831; Dec. Dig. 959.] Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge. "Not to be officially published." peals. Affirmed. D. C. Finley, of Kansas City, for appellant. G. W. Duvall and Fyke & Snider, all of Kansas City, for respondents. TRIMBLE, J. This is a suit upon a policy of insurance issued upon the life of W. R. Jennings. The beneficiaries recovered in the trial court, and the company appealed. The answer admitted that the policy was issued, that plaintiffs are the beneficiaries, and that the insured died. Unless, therefore, the answer contained allegations leWhether an insurance company did an old-gally sufficient to constitute a defense, plainline or fraternal insurance business was determined, not by what it called itself or its business, but by the character of the policy, in suit and the manner in which the defendant conducted its business. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1824; Dec. Dig. 687.] - 5. INSURANCE 645 LIFE INSURANCE BREACH OF WARRANTY-STATUTE. tiffs were entitled to recover. No doubt, the answer sought to set up the defense of forfeiture because of certain alleged misstatements in the application. If, however, the answer failed to plead a forfeiture so as to enable the alleged misstatements to relieve defendant of liability, there was no error committed by the trial court in refusing to hold that the insurance was forfeited, nor in excluding evidence of facts sought to be introduced by defendant to prove that forfeiture. Under Rev. St. 1909, § 7024, providing that the warranty of any fact in an application for insurance shall, if not material to the risk insured against, be deemed a representation only, where, in an action on a life policy, there was neither pleading nor evidence that alleged misstatements in the application were material to [1] The policy provides that it is issued the risk, evidence tending to show such falsity subject to the statements made in the apcould not defeat plaintiff's recovery. [Ed. Note.-For other cases, see Insurance, plication, and that said statements are warCent. Dig. §§ 1554, 1632-1644; Dec. Dig.ranted to be true, and are made a part of 645.] the insurance contract, together with the |