whether, all his acts and the situation and conditions considered, he exercised ordinary care. Thus much concerning the demand for a nonsuit. We are urged to declare that even if deceased was careless his carelessness did not contribute to the tragedy, because the unblocked space intervened and became the proximate cause of it. The evidence is uniform that the entrance of deceased between the cars and his stumble and fall happened in a second or two; and we think if it be found he negligently—that is, without reasonable necessity-went between, or negligently stepped on the brake beam, his conduct must be treated as a concurrent cause with defendant's. So the immediate point was ruled on satisfactory reasoning and similar facts in the Morris, Gilbert, and other cases, supra.

the testimony of a witness introduced by a party is not conclusive against the party if there is countervailing evidence, or for any reason the jury has the right to believe the contrary. Brown v. Wood, 19 Mo. 475; Meyer Bros. Drug Co. v. McMahan, 50 Mo. App. 18. The testimony of White that deceased walked by the car seven or eight feet, holding up the lever, unquestionably conduced to prove he attempted to lift the pin by the lever. This was the only positive testimony deceased lifted on the lever, as the other witnesses only said he held his hand on it. The point of difficulty in this connection is not whether there was evidence Brannock endeavored to lift the pin by the lever, but whether there was substantial evidence tending to prove the attempt was adequate, and such as a careful employé would have been In Lake Erie, etc., Co. v. Craig, 73 Fed. 642, satisfied with before taking the risk of enter- | 19 C. C. A. 631, the question whether a training between the cars. Holding up the lever man who was injured by catching his foot while walking seven or eight feet, to keep in an open frog had proximately contributed up with cars moving from four to six miles to the accident by needlessly going between an hour, or as fast as a person would travel cars was ruled to be for the jury, on the in a rapid walk, was but a brief effort to ground that if he went between carelessly, lift the pin, the success of which might have nevertheless he did not take the risk of inbeen prevented by a tautness or twist of the jury from the frog, because he had no nocars, a curve in the track, or other impedi- tice, actual or constructive, it was open; hence ment the progress of the cars would have ob- might count on the railway company having viated in a moment or two. We incline to complied with its duty to block it. In Gleathink this testimony from White was not son v. Railroad, 73 Fed. 647, 19 C. C. A. 636, substantial proof of a reasonable effort to the same court nonsuited a plaintiff who had manipulate the lever. But another witness carelessly gone between cars and then stum(Buckner) said Brannock walked by the cars bled over an impediment of a kind he was for 20 yards with his hand on the lever. It bound to anticipate, holding the employé's negis true the witness said Brannock went be-ligence was the proximate cause of his hurt. tween before taking hold of the lever; but The Craig Case is to be distinguished from possibly Buckner was mistaken about the lat- this one, for Brannock must have known the ter circumstance and right about the distance condition of the tracks in the yard and the Brannock walked with his hand on the lever, risk of getting his foot caught between unand he may have been endeavoring over said blocked rails, he having worked there for distance to cut the cars by the lever. More- months. If he forgot the fact at the time, over, that he was intent on the purpose to cut his forgetfulness will not take away the negthem appears from his being seen as he step-ligent quality of his conduct if he went beped on the brake beam grasping a handhold tween the cars without good reason to do so. with one hand, with the other placed on the Danger was to be apprehended from such a coupling pin. We think there was substan- step, and this is the circumstance essential tial proof he made a reasonable effort to cut to connect a careless act with its consequence, the cars from the outside before facing the as proximate cause of the latter; not anhazard of going between, though aware other ticipation of the very source of danger which courts, which maybe are more expert than existed. Brady v. Railroad, 206 Mo., loc. cit. we are in what constitutes careful railroad- 537, 102 S. W. 978, 105 S. W. 1195; 1 Shear. ing, have given decisions that are authority & Redf. Negligence (5th Ed.) § 29. But abilfor the contrary ruling. Our conclusion is in ity to anticipate by ordinary forethought that harmony with the opinion given by the Su- harm is likely to result from the wrongful preme Court of Iowa on quite similar facts, conduct of another, if one does a given carein Pierson v. Railroad, 127 Iowa, 13, 102 N. W. less act, is material on the question of wheth149, a case from which our Supreme Court, er said act is superseded as proximate cause in Brady v. Railroad, supra, quoted with ap- of the ensuing harm. If the act of carelessproval a passage wherein the reasoning of ness is performed knowing, or with good reathe federal courts in the Morris and Gilbert son to know, it exposes the actor to injury Cases, supra, was rejected. See, too, Rifley v. from another's tort, and injury follows, the Railroad, 72 Minn. 469, 75 N. W. 704. first carelessness remains a concurrent and proximate cause. 1 Shear. & Redf. § 34. If a man should carelessly walk along a highway when he sees another man is about tortiously to shoot across it, and while thus

If the triers of the fact should find deceased was warranted to go between the cars, there remains the further question of whether he was warranted to take the risk of step

regarded as having contributed proximately in the order of Knights and Ladies of Honor to the injury. Brannock knew of the open and to participate in the relief fund of the guard rail and its dangers, and if he needless- order to an amount not exceeding $1,000"; ly incurred them, he induced his own death. this sum payable at his death "to his first The main instruction for plaintiff was erro- cousin, L. A. Missey," who is the plaintiff in neous because it omitted from consideration this case. Arnold died, being in good standthe defense of contributory negligence, and ing in the order, and, payment of the claim to some of the instructions for defendant were | plaintiff being refused, she brought this suit. too favorable.

It is provided by the constitution and laws of

The judgment is reversed and the cause re- the order that all benefits are payable to a manded. All concur.

MISSEY v. SUPREME LODGE KNIGHTS
AND LADIES OF HONOR.

(St. Louis Court of Appeals.

Missouri. Feb. 21, 1910. Rehearing Denied March

8, 1910.)

member's wife, husband, children, and children of deceased children, grandchildren, parents, brothers, and sisters of the whole blood, brothers and sisters of the half blood, grandparents, nieces, and nephews, cousins in the first degree, aunts, uncles, next of kin, who would be distributees of the personal estate of such member upon his death intestate. These constitute what are called the "first

1. INSURANCE (§ 819*)-MUTUAL BENEFIT IN-class" of those who may be designated as CHARACTER OF ORGANIZATION

SURANCE-
EVIDENCE.

Evidence held to sustain a finding that defendant insurance company is an organization doing business under the benevolent or mutual benefit plan, so as not to be subject to the general insurance laws of the state.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 819.*]

2. INSURANCE (§ 18*)—PLAN OF INSURANCE CERTIFICATE OF AUTHORITY.

A foreign life insurance company, authorized by the Superintendent of the Insurance Department to do business in the state on the assessment plan, cannot issue certificates of membership, or make contracts of insurance, on any other plan.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 18.*]

beneficiaries. Of the second class are persons who are dependent upon the member for maintenance, such as food, clothing, lodging, or education, and it is provided that written evidence of the dependency within this last class must be furnished to the satisfaction

of the Supreme Secretary before a relief fund certificate can be issued. In the application for membership which the deceased signed he warranted the statements in his answers to the questions, and contracted that, if any of them were untrue, he should forfeit the rights of himself or family or dependents to any of the benefits or privileges of the order, and he stated in his application that he directed the payment of the benefit to "L. A. Missey, relat

3. INSURANCE (§ 723*)—MUTUAL BENEFIT IN-ed to me as cousin. First degree." The petiSURANCE BENEFICIARIES VALIDITY OF CONTRACT. Where the constitution and by-laws of a mutual benefit life insurance company require the beneficiary to sustain a certain relationship to insured, and provide that every "certificate issued to a member who shall have designated in his application as beneficiary a person who is not entitled to take such benefit" shall be void, a certificate designating the beneficiary as "cousin, first degree," of insured, when not related to him in any degree, and not dependent on him for support, is void.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1861; Dec. Dig. § 723.*]

Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by Letitia A. Missey against the Supreme Lodge Knights and Ladies of Honor. Defendant had judgment, and plaintiff ap

peals. Affirmed.

Crites & Nielson, Byrns & Bean, and Louis A. Steber, for appellant. E. M. Dearing, for respondent.

tion in the case charged that the defendant was an insurance company. The answer denied this, and set up that it was a corporation duly incorporated under the laws of the state of Indiana, as a fraternal, benevolent, beneficial association, order, or society, and as such authorized to do business in the state of Missouri, and it contested payment on the ground that the beneficiary named was not within any of the classes above specified as entitled to be designated as a beneficiary; it plead the provisions governing the classification 10 of law 4 of the constitution and bytion of beneficiaries, as above, and also seclaws of the order, which provides: "Every relief fund certificate issued to a member who shall have designated in his application as beneficiary, a person who is not entitled to

take such benefit under relief fund law 4, shall be null and void, and all rights of such person named as beneficiary shall be forfeited." The case was tried before the court, a jury having been waived, and the plaintiff REYNOLDS, P. J. Action by one Letitia was asked in her cross-examination what reA. Missey on a benefit certificate, issued to lation she was to deceased, to which she anone Frank D. Arnold as a member of Dorothy swered, "None whatever." She was asked if Lodge 2424 of the Knights and Ladies of she was his cousin in any degree. She anHonor. The certificate entitles Arnold "to swered that she was not, in any degree, and all the rights and privileges of membership in answer to the question as to whether she

was dependent upon him for support, she an- | pany are carried on in good faith under the swered that she was not dependent upon him; form of what we know in our state as benevothat the deceased Frank D. Arnold, was a lent societies. Nor does the fact that some friend of their family, but no relation or con- members of the governing body are appointed nection whatever. As stated, the claim of the and not elected subject the body to the charge plaintiff was that this defendant was not a that its affairs are not conducted by a reprerepresentative beneficial organization, with-sentative body. The by-laws and the constiin the meaning of our law, but an old line in- tution of the order were in evidence before surance company. This issue was submitted the court; there was evidence showing how to the court, who heard the testimony adduc- its business was carried on; among other ed in support of the contention of plaintiff, evidence in the case was the certificate of auand at the conclusion of it found in favor of thority to do business, granted to it by the the defendant, and rendered judgment ac- Insurance Superintendent of this state, as a cordingly. From this the plaintiff has prose- benevolent association or society, so that there cuted her appeal. was evidence on which the court was warranted in finding that the defendant was an organization carrying on business under the benevolent or mutual benefit plan, in which event it is not subject to the general insurance laws of this state.

To repeat, the contention of plaintiff is that our statute provides, inter alia, that a fraternal beneficial association must have a representative form of government, and that the true test as to whether defendant is a fraternal beneficial association is: "Is it formed or organized and is it carried on for the sole benefit of its members and their beneficiaries, and not for profit? Has it a lodge system, with a ritualistic form of work and a representative form of government?" Plaintiff's learned and industrious counsel base their contention for these propositions on the cases of Westerman v. Supreme Lodge Knights of Pythias, 196 Mo. 670, 94 S. W. 470, 5 L. R. A. (N. S.) 1114; Brasfield v. Modern Woodmen, 88 Mo. App. 208; Gruwell v. National Council Knights and Ladies of Security, 126 Mo. App. 496, 104 S. W. 884; and they contend that, in order that the society shall have a representative form of government, the general control of the affairs of the society must be in the hands of directors elected by the membership. Admitting these propositions to be correct in law, and admitting that there does not appear to be any evidence what ritualistic form of work was carried on, still the evidence afforded by the constitution and by-laws of the order, and the testimony given by witnesses, as to the manner in which the affairs of defendant are conducted are sufficient to show that the operations of the defendant were controlled by representation or a representative government, in the sense that the Grand and Supreme Lodges were constituted either of direct representatives from the subordinate lodges or by past officers of the order, elected or appointed as provided by the constitution of the order. The particular manner in which an organization of this kind carries on details of its work and government is not under the scrutiny or subject to the criticism of the courts, as long as it appears that the operations of the com

At the trial in the circuit court, no point was made as to whether the defendant had "a ritualistic form of work"-the sole point made by the instruction asked and by contention during the trial was that it did not have "a representative form of government." We might refuse to now consider the point now made that it had not proven that it had a ritualistic form of work. When the defendant introduced its certificate to do business in this state as a fraternal beneficiary association, this was at least prima facie proof that it had the necessary requirements of such an association. That it is carrying on business solely on the assessment plan and has a lodge system is clear. By no construction can it be held to be such an association as is amenable to our statutes governing insurance companies. The only form of insurance this defendant had power to carry on in this state by the certificate of the Superintendent of the Insurance Department of the state, and the only form of insurance it could do under its charter and constitution, was on the assessment plan. As we held in Smoot v. Bankers' Life Ass'n, 138 Mo. App. 438, 120 S. W. 719, it could issue certificates of membership or contracts on no other plan. If it exceeded its powers, and issued contracts outside of them, its members or their beneficiaries would be on very precarious ground when seeking to enforce them. By the constitution and by-laws of the order no member could designate a beneficiary who did not fall within some one of the classes above referred to. Confessedly this plaintiff was not of either class, and was not entitled to the benefits of the order.

The judgment of the circuit court is right, and is affirmed. All concur.

price of $13,500, and was able and willing

cover.

HAMBURGER & DREYLING v. THOMAS. to buy at that price. It is made plain that (Supreme Court of Texas. he would have bought, but for the fact that March 30, 1910.) an examination made in good faith of the 1. BROKERS (§ 61*)-RIGHT TO COMPENSATION evidences of title produced by defendants did -REJECTION OF TITLE-EFFECT. So it apWhere an owner, holding himself out as not satisfy him of its soundness. having a good title, employs a broker to sell pears that the sale negotiated by plaintiff his land, and agrees to furnish an abstract was defeated solely by the failure of deshowing clear title, and also agrees with a purchaser, ready, willing, and able to buy, fur- fendants to make good their stipulation to nished by the broker, that he will furnish a furnish a clear title to the purchaser. When suitable title, the broker is entitled to his com- these simple facts, established by the verpensation, though the purchaser reject the title, and any objection that the title was in fact dict of the jury, are disentangled from the good, or that the owner had title by limitations, contentions in which the case has been enwas not material to the broker's right to re- veloped, there is no difficulty in seeing that the plaintiff had done all he was required by the contract to do towards the completion of the sale, in short, had rendered the service he was employed to render, and that the sale was defeated through the fault of the defendants. It ought to require no argument or authority to establish his right to the compensation, but the following establish the principle controlling: Holden v. Stacks, 159 Mass. 503, 34 N. E. 1069, 38 Am. St. Rep. 451; Reed v. Light, 170 Ind. 550, 85 N. E. 9; Carter v. Simpson, 130 Ill. App. 328; Vaughan v. McCarthy, 59 Minn. 199, 60 N. W. 1075; Buckingham v. Harris, 10 Colo. 459, 15 Pac. 817; Finnerty v. Fritz, 5 Colo. 178; Parker v. Walker, 86 Tenn. 566, 569, 8 S. W. 391.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 77, 78, 92, 93; Dec. Dig. § 61.*] 2. BROKERS (8 61*)—REJECTION OF TITLE BY PURCHASER-NATURE OF AGREEMENT-COM

PENSATION.

That the agreement with the broker was in the alternative, and did not bind the purchaser to buy, even if he approved the title, would not defeat the broker's right to compensation, since it was the fact that the title was not clear to the purchaser that defeated the sale. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dec. Dig. § 61.*] 3. BROKERS (§ 61*) - COMPENSATION-SUFFICIENCY OF TITLE.

Where an owner agrees with a broker, and a purchaser, furnished by the broker, to give clear title, a purchaser need not accept a title one link of which depends on a sale under execution issued on a personal judgment for money, based on service by publication, and there is no showing that the person cited was a nonresident, so that the broker's right to compensation could not be defeated because the purchaser rejected such title.

The chief ground of defense is the fact that the writing copied in the opinion of the Court of Civil Appeals, which was executed by the defendants and Baker, did not bind the latter to take the property, but left to him the alternative, even if he should approve the title, either to take it or to forfeit the $1,000 deposited. There would be more Error to Court of Civil Appeals of Fourth force in this if the title had proved satisfacSupreme Judicial District. tory, and Baker had exercised his right to Action by W. W. Thomas against Ham-recede from the trade by forfeiting the monburger & Dreyling. From a judgment of the ey deposited. In such case there would have Court of Civil Appeals (118 S. W. 770), af- been neither a willingness to buy nor an enfirming a judgment for plaintiff, defendants forceable contract to buy, one or the other bring error. Affirmed.

of which conditions would be essential to the

J. W. Lockett, for plaintiffs in error. S. broker's right to compensation. But the latH. Brashear, for defendant in error.

ter condition is not essential where the first exists and the sale is defeated by the owner of the property. The question whether or not the plaintiff performed the service called for by the contract is not wholly dependent upon the writing executed between the owners of the property and the proposed purchaser. The fact that the latter really was willing and able to buy, and would have bought, notwithstanding he was at liberty not to do so, had he not been prevented by the defendants' failure to produce proper evidence of title, must be regarded as controlling, and as dispensing with the necessity of a binding contract to purchase, which might otherwise have existed. The case differs from those in which there is no evidence of the rendering of the service by the broker but the granting of an option to the so-called purchaser, in the fact that a purchaser was

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dec. Dig. § 61.*1

WILLIAMS, J. The nature of this case and its facts are fully stated in the opinion of the Court of Civil Appeals. 118 S. W. 770. In the writing evidencing the employment of defendant in error (hereafter called plaintiff) by plaintiffs in error (hereafter called defendants) to sell the described land, they agreed, among other things, that if he would sell the property they would furnish "an abstract of title up to date of sale and clear title to purchaser," and that plaintiff should receive for his services "whatever sum in excess of $12,000 he may sell the property for out of the first payment made by purchaser." The plaintiff entered into negotiations with James A. Baker, as a result of which the latter decided to buy the land, if satisfied with the title, for the cash

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

found by plaintiff, a sale to whom was pre- | provides "that the provisions of this law shall vented only by the fault of the owner. not apply in cases of strikes or other public vember 26th, makes application for eight live calamity." Held, that a shipper who, on Nostock cars for December 8th, and pays more than one-fourth of the freight, cannot recover the penalty for failure to furnish the cars until December 26th, because of the provision in article 4497 that it shall be the duty of the company to supply the cars within a reasonable time thereafter, not to exceed six days from the receipt of the application, and such penalties are not recoverable where the railroad company has a legal excuse for failing to furnish the cars by the time named in the application.

But it is contended that the sale was not defeated by any real defect in the title. It is true that the evidence does not show that the title was bad. That was not Baker's contention. It was that the evidences furnished did not show the title to be good; and it was to that defendants were obligated by both their contracts, that with plaintiff and that with Baker. Upon the question thus stated the findings of the jury are in favor of the plaintiff, and the question as to title left open by the evidences furnished by defendants were, in our opinion, such as to justify a prudent buyer in refusing to complete the purchase. One of the links in the title was a sale under execution issued upon a personal judgment for money based on service by publication, and it did not appear, and de-pany. fendants furnished no evidence to show, whether or not the person so cited was a citizen or resident of Texas. The validity of the entire proceeding depended on the answer to that question, and. without evidence that the fact was such as to make the judgment valid, defendants could not be said to have furnished an abstract showing a clear title. Nor can it be said, in opposition to the verdict, that the evidence of title by limitation was such as to require a purchaser to accept it, if that could be said of any claim of title by limitation. All of the objections to this recovery are met by the fact that defendants, by their written contract with plaintiff and with the broker, bound themselves to furnish an abstract showing clear title, and that the sale negotiated by plaintiff fell through solely because of their failure to do so; and it is unnecessary that we discuss propositions and authorities applicable to different states of fact.

Affirmed.

[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 20.*]

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by Andrews, Reynolds & Company against the Texas & Pacific Railway ComJudgment for plaintiff (118 S. W. 1101), and defendant brings error. Reversed in part.

Ed. W. Smith and W. L. Hall, for plaintiff in error. S. J. Isaacks and Graham B. Smedley, for defendant in error.

GAINES, C. J. On November 26, 1906, the plaintiffs, Andrews, Reynolds & Co., made a written application to the agent of the defendant, the Texas & Pacific Railway Company, for eight live stock cars upon which to ship cattle from Midland to Ft. Worth, the cars to be furnished on December 8, 1906, and at the same time paid to the agent $96, which was more than one-fourth of the freight upon the eight cars of cattle from Midland to Ft. Worth. The cars were not furnished until December 26, 1906. They recovered a judgment for $60 actual damages and $1,600 for penalties.

The statutes (Rev. St. 1895) which provide for penalties in such cases read as follows:

"Art. 4497. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge

TEXAS & P. RY. CO. v. ANDREWS, REY- of transportation, to any railway company, NOLDS & CO.

(Supreme Court of Texas. March 30, 1910.) CARRIERS (§ 20*)-CARRIAGE OF LIVE STOCKPENALTIES FOR FAILURE TO FURNISH CARS. Rev. St. 1895, art. 4497, makes it the duty of a railroad company to furnish a shipper the number of cars required, at any point indicated in the application, "within a reasonable time thereafter, not to exceed six days from the receipt of such application," and shall supply such cars to the applicants therefor, in the order of their applications without preference, "provided, if the application be for ten cars, or less, the same shall be furnished in three days." Article 4498 provides that the application shall state the number of cars desired, the place at which, "and the time they are desired." ticle 4499 provides that the railway company shall forfeit the sum of $25 per day for each car not furnished, and all actual damages. ticle 4500 provides that a person applying for cars shall deposit one-fourth of the freight have ten full days in which to supply the charge for the use of such cars. Article 4502 cars.

receiver or trustee, operating a line of railway at the point the cars are desired upon which to ship any freight, it shall be the duty of such railway company, receiver, trustee or other person in charge thereof, to supply the number of cars so required, at the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the persons so applying therefor, in the order in which such applications are made without giving preference to any person; provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided, further, that if the application be for fifty cars or more, the railway company may

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