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Lathrop, Morrow, Fox & Moore, of KanSaS City, for appellant. Otis M. Edmonson, and Kennish & Smith, all of Kansas City, for respondent.

BLAND, J. This is a suit for rent. The judgment and verdict was against plaintiff, and She has appealed.

The evidence shows that plaintiff was the owner of premises located at 1708–10 Walnut street, Kansas City, MO. These premises consisted of a two-story brick building. On the lower floor were tWO Storerooms, and the entire upper floor was made up of rooms rented out for boarding house or hotel purposes. On August 13, 1914, plaintiff by Written lease demised to defendant One of the storerooms for a period of two years from April 1, 1914. The rooms on the second floor were Vacant when defendant moved into the premises, about April 1, 1914, and remained vacant until December of that year, When they were rented by plaintiff's agent to a Mrs. Anna Murphy, a woman of bad reputation for chastity. About March 1, 1915, Mrs. Murphy telephoned plaintiff's agent that she had sold out to a Mrs. Clara Davis, another Woman who was a notorious prostitute.

Without going into the evidence in detail, it is sufficient to State that it ShoWS Without any doubt that the place Was conducted by the Murphy and Davis women as a house of prostitution, and under the management of the latter it became a notorious bawdyhouse Where thieves reSOrted. The evidence ShOWS that the boisterous conduct of the inmates of the upstairs rooms was such as to be heard by the employés of the defendant; that there was an electric piano almost continually in operation; that Women would Shout down the rear StairWay Soliciting men from the alley; that automobiles and taxicabs stopped in front of defendant's place of business at all times of the day and night, and men and WOmen in a drunken condition were taken therefrom to the upstairs; and that almost daily beer by the case was delivered through the back stairway. time the place was raided by the police. The upstairs had many windows on all sides, and the storeroom , occupied by the defendant "likewise had large windows and Openings. Defendant had several men employés and tWO Or three young ladies. Defendant Complained to plaintiff’s agent Of the tenants upstairs in the Spring of 1915, and the agent promised that if conditions continued he

would see that the upstairs tenants were put

Out. These Were tenants from month to month. In April or May, 1915, defendant's hmanager testified that “they had apparently had a hilarious time upstairs, and had allowed water to run, and flooded Our Storeroom, and a large piece of the ceiling fell.” Thereupon defendant's manager called up plaintiff’s agent and described What had taken place, and told him that the defendant could not stand the conditions any longer, and

At one

that they would have to be changed. During this conversation defendant’s manager explained to plaintiff's agent the character of the place being conducted upstairs. Plaintiff's agent did nothing to remedy the evil, but instead he stated that he thought defendant’s manager must be mistaken; that he had never heard any adverse reports; that he thought everything would be all right. About the middle of July a Woman rushed dOWnStairs into defendant’s Office clad in a kimono only, called up the police, and with a long oath stated to the police that some “fellow”, was trying to shoot her. The oath used involved the mother of the person who was trying to do the shooting, and was uttered in the presence of two young lady stenographers employed by defendant. The next day defendant’s manager called up plaintiff’S agent and told him about this last incident, and said, “This is the last straw; We cannot stand it any longer, and will simply have to move out.” He told plaintiff's agent that he would come down to see him, which he did the next day. At this last interview with plaintiff’s agent the agent told defendant’s manager that he (the agent) had to be very careful about preferring charges against a tenant, saying that he had had an experience of that kind Once, and that it cost him a lawsuit, and that he had trouble in proving his statement. However, he told defendant’s manager that he had mailed a notice the day before notifying the Davis woman to vacate on or before September 1, 1915. Defendant immediately vacated the premises, defendant's manager giving as the reason therefor that he had no assurance that plaintiff’s agent would be able to get the Davis woman out on account of plaintiff's agent's expressing doubts about the matter, as detailed above. Plaintiff's contention is that there was no eviction of defendant from the premises, and that defendant, having voluntarily moved, is responsible for the rent for the balance of the term. The general rule as to what conStitutes eviction, under circumstanceS Such as those presented in this case, is stated in 11 Amer. & Eng. Ency. of Law, p. 471 (2d Ed.), and approved by the St. Louis Court of Appeals in Delmar Investment Co. v. Blumenfield, 118 MO. App. loc. cit. 318, 94 S. W. 826, as follows: “An eviction is not necessarily an actual, forcible taking possession of the demised premises by the landlord, nor does it necessarily consist in the expulsion of the tenant or a physical interference with the demised premises; nor need it be attended with a denial or refusal to permit the tenant longer to occupy the premises under the lease. Any intentional and injurious interference by the landlord or those acting under his authority, which deprives the tenant of the means or the power of beneficial enjoyment of the demised premises or any part thereof, or materially impairs such beneficial enjoyment, is a constructive eviction.” That an eviction is not neceSSarily an actual, forcible taking possession of the demised premises by the landlord, but may be established by showing an intentional or injurious interference by the landlord, or those acting under his authority, which deprives the tenant of the beneficial enjoyment Of the demised premises, is generally recognized by the authorities. 2 Tiffany on Landlord and Tenant, p. 1282; 1 Taylor on Landlord and Tenant, $309a (9th Ed.); 2 McAdam on Landlord and Tenant, $404 (4th Ed.); Dyett V. Pendleton, 8 Cow. (N. Y.) 727; Jackson v. Eddy, 12 Mo. 209; Delmar Investment Co. v. Blumenfield, supra; French v. Pettingill, 128 Mo. App. 156, 106 S. W. 575. As stated in French v. Pettingill, supra, 128 Mo. App. loc. cit. 160, 106 S. W. 575, the courts of this state have declined to frame a rule Of general application by which to determine what amounts to a Constructive eviction of a tenant, and it is almost impossible to lay doWn any general rule with reference to this matter, as it is often difficult to determine just what acts or conduct On the part of the landlord amounts to an eviction. It was held in French V. Pettingill, Supra, where the landlord rented a portion of the premises for club purposes, and the club maintained a bowling alley and a restaurant where drinks were Served, about Which perSOnS COngregated and became intoxicated, and late at night used loud and profane language, which disturbed the peace and quiet enjoyment of the defendant, who was the plaintiff’s tenant in another portion of the premises, that there was no showing that the landlord intended to authorize the use of the premises for disgraceful or immoral purposes, and that there was no eviction; there being no proof that the landlord was in any way responsible for the disorder on the premises. There was no complaint made to the landlord, and there is nothing in the " Opinion to show that the landlord even knew, before the tenant in that case moved out, of the conditions present. It is stated by Tiffany on Landlord and Tenant, Supra, page 1282, that where a portion of the premises is used by another tenant for prostitution or gambling, there is no eviction of the adjoining tenant where the landlord had no reason to suspect, at the time of making the lease, that the disreputable tenant would be guilty of such improper use, he having no greater power than the tenant subsequently to prevent it. However, the rule Stated by Tiffany seems to contemplate that the disreputable tenant must be holding under an unexpired written lease, which does not permit his removal by the landlord by a simple notice to quit, such as is provided by the laws of this state where the renting is from month to month. Otherwise, why would it have been stated that the landlord had no greater power than the complaining tenant to subsequently prevent the nuisance? However, it is the rule in this

state that if it is shown that the landlord

kind, there is no duty on the part of the tenant to do anything toward abating it, It was stated by Judge Sherwood in the case of Paddock v. Somes, 102 Mo. loc. cit. 239, 14 S. W. 746, 10 L. R. A. 254, that Where a person is deprived of the exercise or enjoyment of a legal right by Some nuisance, he is not required “to spend a dollar,” or to make any exertion whatever to abate the nuisance. [1] It is apparent that the landlord cannot say that there has been no eviction merely because he did not rent the premises for an unlawful purpose. If he leases the premiSeS, not knowing the character of the tenant and for a lawful purpose and afterwards a nuisance, such as a house of prostitution, is maintained by the landlord's sufferance, Connivance, or consent, then he has been guilty of a constructive eviction of a tenant Who is forced to move on account of the nuisance. Milheim v. Baxter, 46 Colo. 155, 103 Pac. 376, 133 Am. St. Rep. 50; 1 Taylor on Landlord and Tenant, § 316 (9th Ed.); McAdam on Landlord and Tenant, $404 (4th Ed.). There is no evidence in this case that plaintiff's agent at the time he rented the upstairs portion of the premises to the Murphy and Davis women knew of their disreputable character. However, on two different occasions in the spring of 1915, his attention was called to what was golng on there, and he took no steps whatever to put them Out, although they were tenants from month to month. The place that the Davis woman was running was of such a notorious character that plaintiff's agent must have known What was going on, even without notice to him of the conditions by defendant's manager. However, there is no question in this case but what plaintiff's agent knew of the existence of the nuisance, and connived at it, and permitted it to exist. Under the facts in this case, we think it must be said that he permitted the nuisance to exist, although he had ample opportunity and the power to abate it. [2] Plaintiff contends that defendant should have remained on the premises and awaited the result of the agent's efforts to get the DaViS Woman Out Of the premises. The. Davis woman moved out a few days after the giving of the notice by plaintiff's agent, but after defendant had notified plaintiff's agent that he WOuld Vacate and move elsewhere. Defendant's manager had twice complained Of the Condition present before the third and last time, after which he moved Out. As before stated, nothing was done to abate the nuisance until defendant notified plaintiff's agent that he Would vacate the premises. At this time plaintiff's agent, instead of giving defendant definite assurance that he Would put the disreputable tenants out, beclouded the matter by expressing doubt as to his ability to get the Davis WoSuffered a constructive eviction, we see no reason why it should, before making arrangements to move elsewhere, await the result of an effort on the part of the landlord to get the disreputable tenant out, at least, where it was shown that the landlord was offering Some lame excuse why he might be frustrated in his efforts to remove the objectionable tenant, and thus abate the nuisance. We think it clear that the Conduct Of plaintiff's agent in permitting this nuisance, Which WaS Of a moSt Objectionable and disgraceful character, amounted to a constructive eviction of defendant, that the defendant was within its rights in vacating, and that this action cannot be maintained for the rent for the balance Of the term. The judgment is affirmed. All concur.

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ENGLES v. WILLIAMS. (No. 12206.)

(Kansas City Court of Appeals. May 20, 1918.)

1. BILLS AND NOTES @:537(6)—BONA FIDE PURCHASE—QUESTION FOR JURY. In replevin by assignee of notes and chattel mortgage securing them, to replevin the mortgaged property, defense being payment, and that plaintiff was not a bona fide holder of the notes and mortgage, whether the assignment was bona fide held for the jury. 2. BILLS AND NOTES @->496(2) — BURDEN OF PROOF OF BONA FIDES OF AsSIGNMENT. Possession of a note properly indorsed, even after maturity, is prima facie evidence of ownership on the part of the holder, and the maker, in suit on the note, has the burden of pleading and proving that the assignment of the note to the holder was fraudulent.

Missouri.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

“Not to be officially published.”

Action by Clara Engles against A. J. Williams. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Bente & Wilson, W. W. Blain, and Jas. T. Montgomery, all of Sedalia, for appellant. H. D. Dow and W. D. Steele, both of Sedalia, for respondent.

BLAND, J. This is a suit in replevin. A verdict and judgment having been rendered in favor of defendant, plaintiff has appealed.

The facts show that during 1912, 1913, and until March 4, 1914, defendant was a tenant of Bente & Wilson, a firm of Sedalia lawyers, upon their farm near Dresden, Mo. On July 1, 1912, defendant made and delivered to C. I. Wilson, Of that firm, tWO promissory notes, payable to the Order of said Wilson, dated On that day and due January 1, 1913 —one for $568.45, and the other for $446.40; both bore interest. On the same day defendant executed and delivered to Said Wilson a chattel mortgage conveying five head of horses and mules to Secure the prompt payment of the notes, etc., and providing that

the mortgaged property might remain in the hands of defendant until default. On May 5, 1913, Wilson assigned these notes and the mortgage to plaintiff as collateral to Secure $600 Which he claims he borrowed from her at that time, evidenced by his note due in 90 days. The evidence shows that the relation between Wilson and plaintiff was intimate and confidential, being that of attorey and client. In addition to this she rented her dwelling of Wilson. Defendant's tWO notes and Chattel mortgage Were delivered to plaintiff as collateral for the alleged loan by her to Wilson. On May 21, 1914, plaintiff instituted this action to repleVin the property mentioned in the chattel mortgage, alleging that she was the owner and lawfully entitled to the possession of the live stock by virtue of said chattel mortgage given to Secure Said tWO promissory notes, alleging that Said Chattel mortgage alld notes were owned by plaintiff, having been indorsed to her for a valuable consideration by Said Wilson. Defendant in his answer pleaded a general denial, and denied specifically that plaintiff Was entitled to possession of the property, and pleaded that defendant Was entitled to the possession of the property, and claimed damages by reason of the taking and detention thereof. Defendant further pleaded that plaintiff was not the owner of the chattel mortgage and notes, but that they Were : OWned by C. I. Wilson, alleging that if Said notes Were indorsed or assigned to plaintiff, that the assignment was fraudulently made by said C. I. Wilson for the purpose of fraudulently preventing defendant from making the defense of the payment of said notes to said C. I. Wilson, and that the notes indorsed or assigned were past due at the time of the alleged assignment; that he had paid C. I. Wilson, the owner of the notes and mortgage, all that was due under the same, and that he owed nothing on them. There is much conflict in the testimony, but as the jury found for the defendant, we Will take his testimony as true, and in its most favorable light to him. He testified that before the alleged assignment he had paid to Wilson all that was due under the notes. There is no evidence that defendant knew of the assignment at the time it was made. He testified that some time thereafter Wilson was claiming that defendant was still indebted on the notes, so defendant made further payments upon the same, and On Various occasions he demanded to See the payments made by him credited upon the note, but that “it seems as though he [Wilson] never had my notes; they always had them up somewhere”; that defendant “never got to see my notes; they always had them up as collateral somewhere; that is the talk they made to me.” Defendant says that on October 16, 1913, he made Wilson get the

6>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

notes, and he then saw a credit of $150 on the back Of One of them.

As already stated, it was defendant's contention at the trial that he paid all that was due under the notes before their assignment on May 5, 1913, to plaintiff; that Wilson was demanding further payment upon the notes, and that he made further payments after that date, and that long before the bringing of this replevin suit the notes were paid in full. It is defendant's Contention that the so-called assignment from Wilson to plaintiff was not a bona fide one, but was, as stated in his answer, for the purpose of preventing the defense of the payment of said notes to said Wilson, and that Wilson and not plaintiff was the owner of the notes before and after the assignment and at the time of the bringing of this suit.

[1] In support of plaintiff’s claim that the assignment was fraudulent, the evidence shows that plaintiff took the notes long after they were due. There is no evidence that she ever saw the live stock, knew anything of their value, or whether they remained alive. She claimed to have Owned the pastdue notes and mortgage over nine months before suit was brought. She never made any demand for the payment of the notes during that time, and it appears that, although $150 was paid to Wilson after the alleged assignment, plaintiff never received (or asked for it, but consented to Wilson's keeping it. However, Wilson made demand of defendant for payment of the note after the alleged assignmnent. She testified that she, on May 5, 1913, loaned Wilson $600, and gave him a check on the bank for that sum. The bank records were introduced, but they failed to show any check in that amount. The only check for anything like that amount was one that came in on May 6, 1913, for $616. We think that under this evidence it was a question for the jury whether the assignment Was a bona fide One. Leavitt V. La Force, 71 Mo. 353; 20 Cyc. 601; 6 Ency. of Evidence, 130, 139, 143.

It is the contention of plaintiff that the matters testified to by defendant which Were urged as payments were not matters of payment, but of set-off between him and Wilson, and that a Set-Off COUld not be pleaded and proved against this plaintiff. This may be conceded to be the law, but defendant's testimony Shows that these matters were payments. He testified directly on this point. There is no question of set-off involved in this case if defendant’s evidence is true. Of course, if the jury found that the alleged assignment was not a bona fide one, and for that reason Wilson Was Still the OWner Of the notes (and this was a substantial issue in the case), the court did not err in admitting plaintiff's testimony tending to show paynments to Wilson on the notes after the alleged assignment.

[2] We think, however, that the case must be reversed and remanded on account of the giving of instruction No. 1 on behalf of defendant. This instruction told the jury that the burden rested upon the plaintiff to show “* * * that the transaction on May 5, 1913 [being the alleged loan of $600 by plaintiff to Wilson, and the alleged assignment of defendant's notes and mortgage to plaintiff by Wilson] was a bona fide transaction for Value, Whereby She became the owner of the tWO notes in question.” POSSession of a note properly indorsed, even after maturity, is prima facie evidence of ownership on the part of such holder. Marshall v. Meyers, 96 Mo. App. loc. cit. 647, 70 S. W. 927; Miller v. Marks, 20 Mo. App. 369; Lachance v. Loeblein, 15 MO. App. 460. Of course, the burden was upon defendant to plead and show that the transaction referred to Was fraudulent. Defendant aSSumed this burden in his pleading, and the court should not have instructed that the burden was upon the plaintiff to show that the transaction was a bona fide one. There is nothing in this or Other instructions that cured this error. The Other objections made to this instruction can easily be met by defendant on another trial, and there is no need of passing upon them.

We do not think the Court On another trial should give instructions NOS. 5 and 6. They may contain good Statements of abstract propositions of law, but they are not applicable to any of the facts appearing in this case. There is nothing in defendant’s attack On the petition.

The judgment is reversed, and the cause remanded. All Concur.

* : (199 Mo. App. 428) MOORE v. DOERR et al. (No. 12879.)

City Court of Appeals. Missouri. April 29, 1918.)

1. T# 6:108%—CoNDUCT OF ATTORNEYs -JURY. In action for damages by assault and battery, question on voir dire whether juror knew “F., the gambler,” father of one of defendants, was improper. 2. HUSBAND AND WIFE & 102—TORTS OF WIFE—LIABILITY. Acts 1915, p. 269, providing that, for all civil injuries committed by a married woman, damages may be recovered against her alone, and her husband shall not be responsible therefor, except in cases where, under the law, he would be jointly responsible with her, if the marriage did not exist, abolished the commonlaw doctrine, and made the wife liable for her own torts, and absolved the husband, except where he would have been liable independent of the relationship.

(Kansas

Appeal from Circuit Court, Jackson County; William T. Johnson, Judge.

Action by Viola Moore against William Doerr and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Henry L. Jost, of Kansas City, for appellants. Williams, Guffin & Field, of Kansas City, for respondent.

ELLISON, P. J. This action is for damages alleged to have resulted to plaintiff from an alleged assault and battery. The judgment in the trial court was for the plaintiff. [1] When the panel of jurors were being examined on their voir dire plaintiff's counsel asked them if they knew “Ed Findley, the gambler, who is the father of Mrs. Doerr, one of the defendants in the case.” They likewise Stated to the panel that it Would be shown that Mrs. Doerr, Since the Suit WaS brought, had conveyed a large amount of property “to Mrs. Findley, the wife of Ed Findley, the gambler.” These questions and statements were improper. They evidently were asked for the purpose of prejudicing the jury against the defendantS. Thee natural effect was to draw attention of the jury to Findley, instead of the defendants, and the tendency was to substitute him for defendants. On another occasion we said that “a litigant has a right to his own personality,” and the opposing party “cannot ask unliquidated damages of a good man, who may have injured him and then substitute a bad man at the trial.” Gore v. Brockman, 138 MO. App. 231, 235, 119 S.W. 1082. So it was ruled that the question, “Do you know Mr. Frank W. Johnson, attorney for the Fidelity Insurance Company in this case, was most prejudicial,” and a new trial was granted. Cunningham V. Heidelburger, 48 Misc. Rep. 614. 95 N. Y. Supp. 554. Prejudicial foreign matter ought not to be introduced into the Case. Theobold V. Transit Co., 191 MO. 395, 416, 90 S. W. 354; O’Hara v. Construction Co., 197 S. W. 163, 165; Beck V. Railroad, 129 Mo. App. 7, 24, 108 S. W. 132; Billmeyer v. Transit Co., 108 Mo. App. 6, 10, 82 S. W. 536. Nothing We have said is intended to prevent counsel from learning the relationship Or Connection, business or Otherwise, Which a juryman may have with a litigant, or from gaining all proper and needful information which will tend to legitimately aid him in making challenges; but this right may be abused, as in this case, by unnecesSary and prejudicial matter. A question Whether the juryman was acquainted with Ed Findley, father of one of defendants, would have served every rightful purpose, Without the added stigma. [2] A demurrer to the evidence for plaintiff was presented by Mrs. Doerr, and refused by the trial court. This involves the following recent statute, found in the Session Acts of 1915, p. 269:

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sible therefor, except in cases where, under the law, he would be jointly responsible with her, if the marriage did not exist.”

We interpret this statute as putting liability on the wife in instances where formerly it did not exist, and taking liability from the husband in instances where formerly it did exist. It means the overthrow of the common law frequently announced in this state, viz. that the Wife was not liable for torts Committed in the presence of her husband, presumably under this coercion, and that the husband was liable for her torts, Whether committed in or Out of his presence. It Substitutes for such common law a liability of the wife for torts committed by her, whether in his presence or not, and also a nonliability of the husband in all instances Where he Would not have been liable, had he not been her husband. The acts of the husband in this case are to be judged as they should be, were he not Mrs. Doerr's husband; and unless he joined in the assault, or otherwise encouraged, aided, and abetted her, the judgment should be for him.

The statute has not been before the COurts, so far as we are advised, except in Claxton v. Pool (Sup.) 197 S. W. 349, L. R. A. 1918A, 512. It was there considered by Commissioner White, but the wrong in that case was committed prior to the enactment of the statute. It was held that, on account of the various changes in the property rights of married women, as evidenced by different Statutes, as Well as Customs, the reaSOn for the common-law rule had ceased, and the rule itself should cease. The opinion in that respect is avowedly Opposed to NicholS V. Nichols, 147 Mo. 387, 407, 48 S. W. 947, Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086, and other cases. The commissioner then refers to this statute, as having been enacted with a view of settling the doubts which seem to have harassed the courtS, and Says that it “relieves the husband from liability for injuries committed by a married woman, except in cases where he would be jointly responsible if the marriage did not exist.” It is true that, of the three members of that division of the Supreme Court, Judge Williams concurs in the Opinion of the Commissioner, Judge Faris concurs in the result, and Judge Walker dissents. Therefore the Opinion may be Said not to be binding authority. But we assume the dissent of Judge Walker and the doubts of Judge Faris are based upon that part of the Opinion in reference to the rule of common law having been abolished before the Statute of 1915 was enacted.

Other questions Were presented by Counsel; but, as the case is to be retried, they, may not arise again.

The judgment is reversed, and the cause remanded. All concur.

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