COLBY v. THOMPSON. (No. 13043.) Missouri. tion in the nature of a demurrer to the evi- Dec. 2, 1918.) TIONS-PERMANENT INJURY-PLEADINGS. [1] The order and offer to buy signed by 1. ASSAULT AND BATTERY 43(6)—INSTRUCdefendants, together with the letter of confirmation and acceptance, constituted a completed contract. After that the matter was beyond defendants' recall in the absence of any failure to perform, or remiss act, emanating from the other party thereto. Parlin, etc., Co. v. Boatman, 84 Mo. App. 67; James v. Marion Fruit Jar, etc., Co., 69 Mo. App. 207. [2, 3] There was, in the letter of acceptance, no changing of the terms of the contract as embodied in the order and offer. The latter says, "Ship to Moberly, Mo.," and also, "All goods f. o. b. mill, freight allowed to destination," and the former changes nothing in this regard, merely showing that the plaintiff was to pay the freight to Moberly as the order contemplated. The phrase in the letter, "a car of Gilt Edge flour*** on a basis of $13.20 for Gilt Edge in 48's," is exactly in harmony with the order. In trade usage, shown to be well known and thoroughly understood, that phrase meant that the basic and minimum price of the flour was $13.20 per barrel in packages of 48 pounds each, but if the flour is desired in smaller packages of 24 pounds each 10 cents additional is required to pay for the cost of the extra sacks. This corresponds exactly with the terms of the order, and the letter changed nothing when it said the offer was accepted on that basis. The term "Gilt Edge" was clearly a name of a certain brand of flour, and so known and understood by the parties. [4] There was no violation of the rule against piecing out with parol evidence a contract required to be in writing. The written contract was not insufficient in any particular. It contained all the necessary specific agreements required to make a good contract in writing. The parol evidence introduced was only to explain what the terms used in the contract meant in general trade usage. This was perfectly proper. Soutier v. Kellerman, 18 Mo. 509; 3 Jones on Ev. (1913 Ed.) § 457. It was error for instruction in action for assault to authorize the jury to consider whether the injuries were permanent; the petition not alleging they were, but merely that plaintiff would suffer in the future therefrom, 2. TRIAL DENCE. 252(20) - INSTRUCTIONS Evi Instruction should not submit the question of permanency of plaintiff's injury, there being no evidence that it would be or was permanent. 3. DAMAGES 32 - "FUTURE SUFFERING" "PERMANENT INJURY." tinguished from "permanent injury," in that "Suffering in the future" from injury is disthe former will persist after the trial, but may cease, while the latter will last throughout life. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Permanent Injury.] 5. EVIDENCE ~528(1)—EXPERT TESTIMONYCAUSE OF SLEEPLESSNESS. Whether one's inability to sleep should be attributed to his injury, rather than his alcoholic habits, is a subject for expert testimony. 6. EVIDENCE 547-EXPERT TESTIMONYFORM OF QUESTIONS. Relative to one's inability to sleep being attributable to his injury, rather than to his alcoholic habits, an expert should be asked whether the sleeplessness could result from such an injury, leaving it entirely to the jury to say whether it did; but questions should not be so framed as to substitute the expert's judgment for that of the jury. 7. ASSAULT AND BATTERY 43(1)—INSTRUCTIONS-IMMATERIAL MATTERS. Instruction for plaintiff in action for assault should not include any reference to defendant having sought out plaintiff and called [5] The war measures as embodied in the him names, these facts being unnecessary to rules of the Milling Division of the United predicate the rule of law therein stated, it beStates Food Administration constituted no ing enough to entitle plaintiff to recover that defense to the breach of the contract. As defendant without just cause or excuse, unlawfully and violently assaulted him. stated, the contract was made August 2-4, 1917. The food regulations were made September 10, 1917. Congress, in authorizing the establishment of such regulations, did not undertake to invalidate prior contracts, nor did it do so. The judgment is affirmed. All concur. Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge. "Not to be officially published." Action by Harry M. Colby against Joseph A. Thompson. Judgment for plaintiff, and defendant appeals. Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. G. & G. T. Pendleton and Roy D. Wil- I was entitled to recover, and this was all liams, both of Boonville, for appellant. George D. Brownfield, W. F. Johnson, and John Cosgrove, all of Boonville, for respond. ent. TRIMBLE, J. Plaintiff sued defendant to recover damages for an assault committed upon him. There was a verdict for $350 actual and $650 punitive damages, and defendant has appealed. [1-4] While the petition alleges facts from which it might be implied that plaintiff would suffer in the future from the injuries complained of, yet there was no such allegation, nor was there anything alleging or implying that was rightfully included in the instruction. State v. Heath, 221 Mo. 565, 595, 121 S. W. 149; Landrum v. St. Louis, etc., R. Co., 132 Mo. App. 717, 721, 112 S. W. 1000; Jones v. Jones, 57 Mo. 138. Other errors are complained of; but we need not examine or pass upon them, since at the next trial doubtless all opportunity for criticism in the respects now, complained of will be avoided. The judgment is reversed, and the cause is remanded. All concur. INS. CO. (No. 13044.) (Kansas City Court of Appeals. Missouri. Dec. 2, 1918.) 1. INSURANCE 340-"ENTERED SERVICE OF ARMY"-WHAT CONSTITUTES. One has "entered the service of the army," within the purview of an insurance policy, when he has passed the examinations, taken the oath, been enrolled, and has subjected himself to the orders of the military. that the injuries were permanent. Neverthe REDD et al. v. AMERICAN CENT. LIFE less, plaintiff's instruction not only authorized the jury to consider damages which might reasonably result "in the future," but they might consider also whether the injuries were "permanent." This was error. McDonald v. St. Louis, etc., R. Co., 165 Mo. App. 75, 111, 146 S. W. 83, and cases cited. There was no evidence that the injury would be, or was, permanent, and the instruction should not have included permanency for that reason. Steinman v. St. Louis Transit Co., 116 Mo. App. 673, 94 S. W. 799. There is a vital difference between suffering or damages in the future, that is, after the trial, and damages from permanent injury. The former will persist after the trial, but may not continue to exist; while the latter will last throughout life. Wood v. Chicago, etc., R. Co., 119 Mo. App. 78, 95 S. W. 946. We cannot say that the inclusion of these elements in the instruction on the measure of damages did not "materially affect the merits." [5, 6] The evidence was that plaintiff was a drinking man, and that after the assault he was unable to sleep for several weeks. Α physician was put on the stand as an expert to prove that his inability to sleep should be attributed to the injury and not to his alcoholic habits. While we think that this was a question in which expert testimony was permissible, yet the questions should not be propounded to the expert in such way as to substitute his judgment for that of the jury's as to which was the cause. He should have been asked whether the sleeplessness could result from such an injury, and thus leave it entirely to the jury to say whether it did actually flow from the injury. [7] Instruction No. 2 for plaintiff should not have included any reference to the facts that the defendant sought out the plaintiff and addressed opprobrious epithets to him at the time the assault was committed, since those facts were not necessary to predicate the rule of law therein stated. If defendant, without just cause or excuse, unlawfully and violently assaulted plaintiff, then the latter 2. INSURANCE 340-AVOIDANCE OF POLICY -SERVICE IN ARMY-"ACTIVE SERVICE." An insured, who enlisted in the army medical department and died from pneumonia at a training camp in Kansas, had not entered into "active service," within an insurance policy invalidating the policy if the insured entered the active service of the army without permission ice in garrison or at sea in time of peace or befrom the company; "active service" being servfore an enemy in time of war. Ellison, P. J., dissenting. Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge. Action by Harry T. Redd and another against the American Central Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed. George F. Longan, of Sedalia, for appel lant. W. W. Kingsbury and Roy D. Williams, both of Boonville, for respondents. BLAND, J. Plaintiffs were beneficiaries under a policy of life insurance written upon the life of Roy W. Redd. The application for the insurance provided: "That active service in the army or navy, in time of war, shall invalidate said contract of insurance, unless a permit for such service shall have been applied for in writing and indorsed upon the policy by the company, and such extra premium paid therefor upon notification as the then rules of the company may provide." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The policy provided: "In case of death from service in war without permission from the company, the full reserve for this policy at the time of such death only will be paid." The agreed statement of facts recites: service "in time of war." Is one who has entered a military training camp and is there in course of training in the medical department of the army, thousands of miles from the scene of hostilities, to be regarded as in active service in the army in time of war? We think not. Such a person is "That insured enlisted in time of war on No- certainly not "before an enemy in time of vember 28, 1917, at Jefferson Barracks, Mo., war," or engaged in "operations carried on as private, Medical Department, Section 3, Med-in his presence," nor is he in "the performical Officer's Training Camp, unassigned, for the term of the 'Emergency'; that he was registered under the Selective Service Law in Black water, Cooper county, Missouri; that thereafter he was sent by the military authorities to Camp Funston, Ft. Riley, Kansas, where he died of pneumonia, while in service as aforesaid." No permission was given the insured by the defendant to enter military service. Other than this policy of insurance, the insured had $10,000 war risk insurance with the United States government. Defendant tendered to plaintiffs the full reserve for the policy at the time of the insured's death, but plaintiffs refused the same. The court entered judgment in favor of plaintiffs for the face value of the policy, and defendant has appealed. It is defendant's contention that the insurance was void, except as to the reserve, for the reason that the insured, as defendant claims, entered active service in the army in time of war without its permission. A determination of what "active service" means in a military sense disposes of this case. See [1, 2] Defendant does not seem to draw any distinction between service in the army and "active" service therein. We believe that one has entered the service of the army when he has passed the examinations, taken the oath, been enrolled, and has subjected himself to the orders of the military. Welts v. Ins. Co., 48 N. Y. 34, 8 Am. Rep. 518. It is therefore apparent that insured had entered service in the army at the time of his death. However, we believe that there is a distinction between service in the army and "active" service therein. The application and policy must be construed favorably to the insured. We think that the word "active" would not have been inserted by defendant in the application were it not intended that it be given some meaning. In fact, the words "active service" in a military sense have a well-defined meaning. The New Standard Dictionary defines "active service" in a military sense as: ance of duty against an enemy." fendant may not be liable for the full value The policy provides that, in order that deof the policy, death must be from service in war. This provision, taken in connection with that in the application, shows that the application and policy mean that the service mentioned was to be in operations by which war is carried on before the enemy; that is, the service one renders when engaged or assisting in actual hostilities. In view of the foregoing construction placed upon the application and the policy, the insured had not entered active service in the army in time of war when he died, and plaintiffs are entitled to recover the full value of the policy. The judgment, therefore, will be affirmed, and it is so ordered. TRIMBLE, J., concurs. ELLISON, P. J., dissents in a separate opinion. ELLISON, P. J. I find myself not in accord with much that is said in the opinion of the majority. One may be in the active service in the army or navy, though he may be in what may be called the noncombatant branch of that service. He is in active service on board a battleship as pilot, fireman, and many other capacities. He is in active service in the army, though he is a surgeon, civil engineer, or commissary, and many other capacities. Indeed, any enlisted soldier or sailor, sworn into the service, in time of war and subject to orders, is in active service; unless, perhaps, he be temporarily out by being a prisoner of war and the like. To carry the phrase "active service" to the extent that was suggested at the argument would require the soldier to be in actual combat, and would strain its meaning to the point of absurdity. The application and policy should be construed together and each given some effect, if it can be done in reason. Thus read and "(1) In garrison or at sea in time of peace; construed, the meaning would be that, if (2) before an enemy in time of war." the assured enters military or naval serv The New Century Dictionary, vol. 4, p. 62, ice in time of war without permission of the defines it: "Active service (Milit.): (1) The performance of duty against an enemy, or operations carried on in his presence." The kind of active service that we are dealing with is, according to the policy, such company, it invalidates the policy, even if he dies when not in the service or wherever and under whatever condition, or from whatever cause, he may die, save one; and that is, "in case of death from service in war," the policy would be valid for the reserve. Defendant tendered the full amount of the reserve, and that was a concession that | covered a verdict and judgment, defendant deceased died "from service in war," and has appealed. that should have been the judgment. HEREFORD v. MYSTIC WORKERS OF The suit was defended on the ground that the insured made false representations as to her health in the application for the insurance. In this application, which she signed, the insured warranted that the answers made by her were fully complete and literally true, and that if the answers were not literally true the certificate issued to her (Kansas City Court of Appeals. Missouri. Dec. should be void. The constitution and by2, 1918.) 1. INSURANCE 724(1)-MUTUAL BENEFITWAIVER LOCAL LODGE OFFICER LOCAL MEDICAL EXAMINER. Under constitution and by-laws of defendant fraternal beneficiary association, held, that a local medical examiner was not an officer of the local lodge, prohibited by such constitution and by-laws, as authorized by Laws 1911, p. 292, § 22, from waiving provisions thereof; but was an agent of the supreme body. 2. INSURANCE 724(2)-MUTUAL BENEFITWAIVER-AGENT OF SUPREME BODY. A local medical examiner of a fraternal beneficiary association, not being an officer of the local lodge, but an agent of the supreme body, could waive warranties in the application for in surance. 3. INSURANCE 724(2)-MUTUAL BENEFITWAIVER-ANSWERS IN APPLICATION. laws of the defendant provided that, if the insured made any false representations as to her health in her application, the insurance should be void. The application stated that the insured had never had bronchitis, habitual cough, tuberculosis, or any disease of the urinary organs. The proof of death showed that the insured had suffered from chronic bronchitis more or less for 15 years; that the immediate cause of her death was a weak heart and bronchial trouble; that the heart trouble had existed for a few weeks only, but the bronchitis for 15 years. To meet this situation, plaintiff proved that the examining physician had been insured's physician for a number of years. The doctor testified that she could not have concealed anything from him as to her physical condition "within the last 16 to 20 years," because he had been the family physician Provision of application for insurance in a and knew as much about her as she did fraternal benefit association making answers herself. The doctor further testified that he warranties was waived; the local medical exam- filled in the answers contained in the appliiner, agent of the supreme body, who wrote the cation, and that "I don't think she attemptanswers, having for years been insured's physi-ed to conceal from me her physical condition cian, and knowing as much about her as she did. 4. INSURANCE 724(1)—MUTUAL BENEFITWAIVER-MEMBER OF LOCAL LODGE-AGENT OF SUPREME BODY. Laws 1911, p. 292, § 22, authorizing a fraternal benefit association by its constitution and by-laws to prohibit waiver of any provision thereof by a member of a subordinate lodge, does not apply to such a member in his capacity of agent of the supreme body. or mislead me." There is no dispute but that the physician who made out the application for the insurance and who filled in the blanks and signed the application as medical examiner was the agent of the defendant. Plaintiff says that on account of these facts the defendant waived the warranties made in the application. Defendant urges that in view of the statutes of Missouri, Laws of 1911, § 22, p. 292, and the Appeal from Circuit Court, Bates Coun- Constitution and by-laws of the defendant, ty; C. A. Calvird, Judge. Action by Edgar L. Hereford against the Mystic Workers of the World. Judgment for plaintiff, and defendant appeals. Affirmed. D. C. Chastain, of Butler, Geo. R. Allen, of Kansas City, and C. A. Denton, of Butler, for appellant. Silvers & Silvers, of Butler, for respond ent. BLAND, J. Plaintiff is the beneficiary in a policy of insurance issued by the defendant, a fraternal beneficiary association. The insured died, and defendant refused to pay the policy. Plaintiff brought this suit for the face value of the policy, and, having re the examining physician could not waive this matter. Said statute provides as follows: "The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power(s) or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the so ciety and each member thereof and on all beneficiaries of members." Said constitution and by-laws read as follows: "No power or authority shall vest in any suofficer, or member thereof, to waive or suspend preme officer, or in any subordinate lodge or any any of the provisions of the laws of the order, nor shall any of the acts of any such officer, lodge or member, be held, taken or considered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as a waiver of any of the laws, rules or regula- | 189, the warder; section 190, the sentinel; tions of the order." section 191, the supervisors. Section 187, under the same heading, is as follows: "The physician or physicians must fully comply with the instructions of the Supreme Medical Examiner, and shall not recommend or admembers, unless they shall find them by the vise the acceptance of any persons, as benefit strictest examination, to be physically, morally and mentally sound, and not addicted to the habitual use of intoxicating drinks or narcotics. No person can act in this capacity without a commission from the Supreme Medical Examiner, nor unless in good standing in the order. The fee for such examination must be paid by the applicant in all cases." It will thus be seen there is nothing in the laws of the order that can be construed to class the local medical examiner as an officer of the subordinate lodge. While his duties are mentioned under the general head of subordinate officers, he is not mentioned in the section (section 177) providing for such officers, and section 187, where he is mentioned, shows that he is not considered an officer of the subordinate lodge, for it provides that he shall not act as a local medical examiner without a commission from the supreme medical examiner, and it further shows that he is under the direction and instruction of that officer. [1] The statute quoted authorizes the defendant to enact the regulation or by-law mentioned, except that the statute does not permit the company to avoid a waiver made by one of its supreme officers. The question for determination is whether the examining physician in this case was a subordinate officer of one of defendant's subordinate lodges. The laws of the order provide that the supreme officers of the lodge should consist of various officers including a supreme medical examiner, but they do not provide that the local medical examiner shall be such an officer. However, they provide that the supreme medical examiner shall appoint all local medical examiners; that the supreme examiner shall look into the qualifications of all persons applying for the appointment of local medical examiner as to whether such a person's habits and character are good; that all applications for membership must be submitted to the supreme medical examiner before any beneficiary certificate is issued or becomes valid; that the supreme medical examiner shall have the right to approve an application for the whole amount applied for or for such part of the amount as he sees fit, or he may reject the application if he thinks best for the good of the order; that the supreme medical examiner may require a second examination if not satisfied with the first; that he shall keep a record of the applications approved or re-local medical examiner, nor any jurisdiction jected; that he shall make such rules and promulgate such instructions to the local medical examiner as shall tend to secure none but good risks; that he shall have general supervision over the whole medical department; that he shall have power to annul or revoke any local medical examiner's commission; that he shall have power to recall or cancel any certificate that has been obtained fraudulently; that all commissions issued by the supreme medical examiner to local medical examiners shall be under the seal of the supreme lodge attested by the secretary. There is nothing in the laws of the order showing that the subordinate lodge has any authority whatever over the local medical examiner in the work of taking and filling out applications for insurance. [2-4] We think that an examination of the entire constitution and by-laws of defendant makes it apparent that the local lodge neither had the appointment or discharge of the over him in the matter of taking and filling out applications for insurance. It is therefore our opinion that the local medical examiner was not a subordinate officer of a subordinate body, such as is mentioned in the statute quoted supra. Being the agent of the supreme body, he could and did waive the warranties contained in the application. Thompson v. Modern Brotherhood, 189 Mo. App. 15, 176 S. W. 506; Hubbard v. Modern Brotherhood, 193 S. W. 911. While it is true that the statute under consideration provides that no subordinate “member" may waive the provisions of the laws of the order under certain conditions, the local medical examiner in this case was something more than a mere member of a subordinate lodge. He was the agent of the supreme medical examiner and acted for him and in his place in taking this application. Section 177 of the constitution and by-laws, under the heading "Subordinate Lodge Offi- We have examined the case of Woodmen cers," provides that the officers of a sub- of the World v. McHenry, 197 Ala. 541, 73 ordinate lodge shall be a prefect, monitor, South. 97, and like cases cited by defendsecretary, banker, marshal, warder, sentinel, ant. The facts shown in the opinion in the and three supervisors. A local medical ex- Alabama case, concerning the relation of aminer is not mentioned as such an officer. Sections 178, 179, and 180 provide for the duties of the prefect; section 181 provides the duties of the monitor; sections 182, 183, 184, and 185, the duties of the secretary; section 186, the duties of the banker; section 188, the marshal; section the physician therein mentioned to the head |