on June 14, 1904.
that will are as follows:

"First. Should I die leaving surviving me my husband and a child or children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one-half to my husband and one-half to my child or children.

The material parts of thereby to claim, assert, or set up any right, title, and interest in and to said real estate, or said will or by reason of courtesy of the laws any part thereof, contrary to the provisions of of this state, for that the claim of estate by curtesy in said land is antagonistic to the disposi tions made in said will; and that the said Bernard P. Bogy, defendant, waived his right to claim title by curtesy to said real estate by reader the provisions thereof, as aforesaid, and by son of his assent to said will and his claim unsaid will, as aforesaid, made in his favor, and his reason of his acceptance of the provisions of acceptance of the trust thereby created as executor and the probating thereof, for that plaintiff says that the assent to said will on the part of the said Bernard P. Bogy and acceptance by him of the fee-simple estate devised to him in said will are antagonistic to the claim now made by him of an estate by curtesy therein, and this she is ready to verify."

"Second. Should I die leaving surviving me my husband, but no child or children, then it is my will that my whole estate, real and personal, be equally divided between my husband and my mother, Ann E. Griffith, one-half to each. "Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate, both real and personal, to my mother, Ann E. Griffith.

"Fourth. I hereby appoint my husband, Bernard P. Bogy my executor and request that he be not required to give bond."

In

"Now, as to V.'s rights. At the time the will was probated I was informed by the court that I had a fee in one half and a curtesy in the other half, as there were no conditions attached to the acceptance of the one half left me absolutely. Since V.'s marriage I have consulted several lawyers, and they have all agreed to the

The executor therein named thereupon On the trial the plaintiff introduced in eviqualified as such, and filed an inventory of dence a letter written by the defendant Berthe property of the estate, showing the prop-nard P. Bogy to Judge Moseley, plaintiff's aterty in controversy, and no other. There torney, dated November 18, 1912. It contained the following: was no personal property of the estate. due time the executor filed his final settlement of such estate showing that he had received nothing, and had paid out nothing as such executor. Immediately upon the death of the wife the husband began collecting the rents of the property, amounting to about $1,200 a year. He did not account for any portion of the rents to his children. This suit was begun February 24, 1914. Bernard P. Bogy, Jr., was made defendant, and appeared by the defendant Bernard P. Bogy as his guardian ad litem.

The first count of the petition contains the following:

"That defendants thereafter, on, to wit, the 20th day of June, 1904, entered into and upon such premises and have since said entry and do now unlawfully withhold from plaintiff the possession of said premises, to her damage in the sum of one hundred thousand ($100,000.00) dollars; that plaintiff was upon the said 10th day of June, 1904, and has been ever since said date legally entitled to the possession of said premises."

The answer of defendant Bernard P. Bogy states that he is the owner of an estate by the curtesy in all said real estate, and that he is entitled under said will to one-half of the remainder in fee, and that each of the other parties is entitled to a fourth of the remainder in fee under said will. The reply alleges that such will disposed of the entire property in fee, giving to the father a half, and to each of the children a fourth. It contains the following:

above."

It is agreed that "V." mentioned in that letter is the plaintiff.

I. In Myers v. Hansbrough, 202 Mo. 495, 100 S. W. 1137, Valliant, P. J., said:

"The particular title by which the plaintiff claims right to the possession of this land was never in his wife; it is an interest cut out of her title, subtracted from it, not by her leave or license, but by the arbitrary force of the law. It is an interest that could not be taken from the husband either at the will or sufferance of the wife. If a creditor of hers, after the estate by the curtesy initiate had vested in the husband, had obtained judgment against her and sold the land in her lifetime, the purchaser at the sheriff's sale would have obtained what was hers, which, under the statute, included possession during her life, but the creditor would not by such sale acquire what was not hers, what was beyond the reach of her will or sufferance."

That case has been cited with approval in Donovan & Boyd v. Griffith, 215 Mo. 162, 114 S. W. 621, 20 L. R. A. (N. S.) 825, 128 Am. St. Rep. 458, 15 Ann. Cas. 724, and in Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S.

W. 38.

Mrs. Bogy owned an estate or interest in this land, but she did not have the entire "That the said Bernard P. Bogy, defendant, ownership of it. The husband also had an accepted the devise so made to him in said will, estate or interest in it. Her will does not and elected to take and enjoy the same, and now purport to dispose of any particular item of claims, and has claimed ever since the probating of said will, to be the owner in fee simple property, real or personal. It does not atof an undivided one-half interest in and to the tempt to dispose of "my land." It disposes real estate described in the petition, under and of "my whole estate, real and personal"; no by virtue of the provisions of said will. That more, no less. By its very terms it includes neither the plaintiff nor either of the defendants have or claim any other source of title to said everything that was hers and excludes everyreal estate than by, through, and under said thing else. The language used seems spe Eleanor Bogy, and by, through and under said cially and peculiarly adapted to the purpose will; and that the said Eleanor Bogy, deceased, of leaving the husband's curtesy estate unis the common source of title. fendant Bernard P. Bogy elected to accept the affected by it. If the wife entertained any devise made to him in said will, and is estopped intention of disposing of the entire owner

That said de

band's will, she cannot afterward dissent from the will and claim dower. Mendenhall v. Mendenhall, 53 N. C. 287. But the reason for that holding is there expressed in these

ship of the land including the husband's widow qualifies as the executrix of her huscurtesy estate, she did not express such intention in the language of the will. We find no authority anywhere holding that the words "my estate" can be construed to include the estate of others in land not other-words: wise particularly described. Godfrey v. "The right to dissent is inconsistent with her Humphrey, 18 Pick. (35 Mass.) 539, 29 Am. act of qualifying as executrix, and the duties (1) The appointDec. 621, is cited as upholding the contrary thereby assumed in this: ment and qualification of one as executrix operview. In that case the testator owned the ates as an assignment in law, and vests the land in fee, and the only question was wheth- whole personal estate in such executor. If er the devise of his "estate" to the wife, one executes a writing by which he appoints A. without words of explanation, carried the B. his executor, that is a will. A. B. thereby becomes the owner of the estate, and after payfee or only an estate for the life of the wife. ing off the debts is, by the common law, entitled The question at issue here was not there in- to the surplus. If one executes a writing by volved. But the court in that case said: which he disposes of his property after his death, without appointing an executor, that is a testament. If he does both, that is appoints an executor, and also disposes of his estate, or a part thereof, that is a last will and testament.' The executor becomes the owner of the estate, and after paying off the debts and legacies is entitled by the common law to the surplus. Thus it is seen that the office of executor is deemed in law of great importance; it draws to it the ownership, control, and management of the entire personal estate, and gives a right (at common law) to the surplus. It is therefore manifestly inconsistent for a widow to claim the office and its rights and incidents under the will, and at the same time to enter her dissent and claim dower, year's provision and a distributive share, as if her husband had died intestate; in other words, there is an inconsistency in claiming the office under the will, and at the same time claiming rights as if there was no will."

"It has long been held that the devise of all a man's estate, where there are not words to control or restrain its operation, shall be construed not merely to mean his lands, but the quantity of interest which he has in them, so as to pass an estate of inheritance, if he has one. Carter v. Horner, 4 Mod. 89; s. c., 1 Eq. Cas.

Abr. 177."

Certainly it will be construed "to pass an estate of inheritance if he has one."

In Graham v. Roseburgh, 47 Mo. 111, it

was said:

"The principle of election is frequently applied by courts of equity in cases of wills, and rests upon the obligation imposed on a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both."

Note that the intention must be "clear."

In Schorr v. Etling, 124 Mo. 42, 27 S. W. 395, it was claimed that a devise to a wife was in exclusion of her homestead estate. It was said:

"The intent to exclude the widow from her legal right must clearly appear; if it be doubtful, she is not to be excluded."

In our opinion this is not a case in which the surviving husband was put to his election, and that he is entitled to hold both his estate by the curtesy and the half interest in the remainder devised to him in the will. II. For convenience it will be understood that when we hereinafter speak of the defendant it will mean Bernard P. Bogy, Sr., unless it is otherwise expressed.

The common law giving to the executor such surplus was in force in that state. It is the reason for such holding. We have no such law here, and therefore no such reason, and no such rule. There is a special reason in this case, over and above what is shown in most of the other cases above cited. We have a right to assume that the court, at the time of the probating of the will, told the defendant that he was entitled to hold both the curtesy and under the will, for the fact that such advice was given was put in evidence by the plaintiff, and all the evidence in the case is consistent with the fact that such advice was given. It would be remarkable if this court should now hold that he made an election by probating the will and serving as executor after the court had told him that he could take both estates without an election, and in spite of the fact that this court has held that no election is called for unless the will is clear and free from doubt on this point.

Even if the law were such as to put the husband to his election, the act of the husband in presenting the will for probate and acting as executor thereunder does not, in itself, constitute such an election. Benedict v. Wilmarth, 46 Fla. 535, 35 South. 84, 4 Ann. Cas. 1033; In re Proctor's Estate, 103 III. The fact that the defendant claimed Iowa, 232, 72 N. W. 516; Smith's Adm'r v. both the curtesy and under the will does not Smith, 6 Ky. Law Rep. 453; Kerrigan v. in itself amount to an election to take under Conelly (N. J. Eq.) 46 Atl. 227; Williams v. the will and relinquish the curtesy. Cobb Boul, 184 N. Y. 605, 77 N. E. 1198; Reaves v. MacFarland, 87 Neb. 408, 127 N. W. 378; V. Garrett's Adm'r, 34 Ala. 558; In re Whitridge v. Parkhurst, 20 Md. 62; Schuster Gwin's Estate, 77 Cal. 313, 19 Pac. 527; v. Morton (Mo.) 187 S. W. 2. Whitridge v. Parkhurst, 20 Md. 62; Came- IV. If the facts in this case show an elecron v. Cameron, Prob. Ct. Rep. (Ohio) 157; tion it was an election to take the curtesy, Taylor v. Browne, 2 Leigh (Va.) 419; Pace and not under the will. The surviving husv. Pace, 271 Ill. 114, 110 N. E. 878. The band has never received any property under

and the interest in remainder devised to him has never been received by him. If he had sold and conveyed in fee an undivided half of the property, and had appropriated to his own use the consideration therefor, a different situation would confront us. But there has not been any change in the ownership or possession of the property since the wife's death, except that immediately after her death the husband went into possession and has been receiving the rents. He has claimed to be doing that by right of his curtesy estate. It is strictly in accordance with such estate. It cannot be presumed that he collected the rents for himself and his minor

Case Certified from Kansas City Court of Appeals.

Action by Joseph A. Guthrie, administrator, against Conway F. Holmes. Judgment for plaintiff, and defendant appealed. Certified from the Kansas City Court of Appeals, where the judgment was affirmed. Judgment reversed.

Morrison, Nugent & Wylder and H. L Hassler, all of Kansas City, for appellant. Hogsett & Boyle, of Kansas City, for respondent.

children in accordance with the will. It does not appear that he ever gave bond as their guardian. We note that he represents the minor son here as guardian ad litem, and not as general guardian. In State ex rel. v. Staed, 143 Mo. 252, 45 S. W. 51, it was said: "He was not living with his son, but his son was living with him. The estate of the son GRAVES, J. This case reaches us upon a was not derived from the father, and he had proper certification from the Kansas City not, so far as the evidence shows, given bond or qualified himself to act as guardian or curator of the estate of the child as required by R. S. 1889, § 5279. It cannot be said, therefore, that his possession was the possession of the child, and it is clear that the fact that the child was living with his father in the premises did not change the character of the father's original possession."

-AUTOMOBILES.

Court of Appeals, there being a dissenting judge who deemed the majority opinion in conflict with opinions of this court, and expressed of record such views in an opinion filed.

The case was twice before the Kansas City Court of Appeals. First it was held (Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236) that there were facts sufficient to take the case to the jury, but the judgment for plaintiff was reversed and cause remanded for error in an instruction. Upon a retrial plaintiff again received a verdict at the hands of the jury, and from a judgment thereon the

present appeal arises. Upon a second hearing in the Court of Appeals, the division of opinion occurred, and the dissenting judge now takes the position that the plaintiff failed to make a case.

That the evidence on the second trial must have been materially different from that upon the first is made clear by rulings in the first opinion. Thus in the first opinion we find this recited fact:

In an action for injuries from collision with an automobile, proof that the automobile belong- "And it was further shown that he was to ed to defendant, and was being operated by de- overhaul the car and make some repairs during fendant's regularly employed chauffeur, raises a the absence of defendant, consulting with an expresumption that the chauffeur was acting with-pert in a certain public garage in the city." in the scope of his employment. 2. MASTER AND SERVANT

330(1)—INJURIES

No such statement of facts could be made

TO THIRD PERSONS-SCOPE OF EMPLOYMENT on the present record, and from it we con-PRESUMPTIONS. |clude the evidence before us is quite different from the record in the first appeal. However, we shall state the facts, as we find them in this record.

Evidence that the owner of an automobile on leaving the city told his chauffeur at 1 o'clock to deliver several friends and drive home, a trip which would take an hour, and the chauffeur ran into and injured plaintiff at 7:30 p. m., overcomes the presumption that the chauffeur was acting within the scope of his employment at the

time of the accident.

3. MASTER AND SERVANT 305-INJURIES TO THIRD PERSONS-AUTOMOBILES-DEVIATING FROM DIRECT ROUTE.

Slight deviations from route or slight incidental things done by a chauffeur for his own benefit do not exonerate the master for negligence of the chauffeur.

In March or April, 1912, the defendant employed one H. L. Hettenbaugh as a chauffeur, and to take care of his two automobiles. Hettenbaugh was not only a chauffeur, but was an automobile mechanic, having had experience in repair shops. On July 10, 1912, defendant and his family and some others were going away from Kansas City, and Hettenbaugh drove defendant's wife, some mem

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

bers of his family, and perhaps a Mrs. Edson, | friend by name of Davis, who was in the auto the railroad station at Second and Wyan-tomobile business, but no talk about his car, dotte streets. Defendant had two automo- and in a nearby section took a drink of liqbiles, one a Packard touring car, used by Het-uor. He says that there was a knock in the tenbaugh on this occasion, and the other a engine of the car, and he concluded to drive Packard roadster, driven to the depot by deto a public garage at Thirty-Fourth and fendant on this occasion. Defendant drove Broadway to consult one Rogers, who was an to the station, shortly before time of the expert on Packard cars; that he took Rogers train's departure, and whilst there directed in the car and they drove to Fortieth and Hettenbaugh to take two acquaintances up Broadway, as he says, so that Rogers might town and then to take the car home. One of observe the car. Rogers says he was not adthese acquaintances was to be taken to the vised with about the car at all, but that they Dwight Building at Tenth and Baltimore, took a drink at a saloon at that street interand the other to the Baltimore Hotel at Elev- section. In making this trip to Thirty-Fourth enth and Baltimore. There is no question as and Broadway Hettenbaugh had gone conto the directions given Hettenbaugh at this siderably west and much south of defendant's time. The day before his departure, it ap- residence, and his arrival there was about 4 pears that defendant had directed Hetten- o'clock in the afternoon. After returning to baugh to thoroughly overhaul his cars, if he the garage with Rogers, Hettenbaugh went had time so to do, and especially the road-south on Main street to Thirty-Seventh and ster. Defendant, himself, only expected to be absent some ten days. No directions were given about consulting Rogers, or any other expert about either of said cars. Instead of the record showing that such directions were given, as indicated in the first opinion of the Court of Appeals, this record shows that they were not given. It is true that Hettenbaugh says that on two or three previous occasions defendant had directed him to consult with one Rogers, at a garage at Thirty-Fourth and Broadway, but there were no such directions at this time.

Main, his home, where he arrived, as he says, about 5 o'clock. About 6 o'clock he retraced his route, and, seeing Rogers about to take a street car for his (Rogers') home took him in the car to take him home. Hettenbaugh had a young man with him at this time. Rogers was picked up at Thirty-Third and Broadway. Thence the three went north to Fifteenth and Grand avenue, where they stopped at a saloon and got another drink. At this time Rogers noticed that Hettenbaugh was a little talkative, and he took the wheel and drove the car himself, with Hettenbaugh Defendant lived at the intersection of Har- in a seat beside him. From this saloon Rogrison street (a north and south street) and ers drove east on Fifteenth street to the Armour boulevard. From the Baltimore Paseo, and thence south on Paseo to HowHotel, where the last passenger was to be ard, and thence east on Howard street to left, to defendant's home was in a southeast- Parke avenue, his home. The car was then erly direction. We have given the directions a mile and a half or more northeast of deof defendant to Hettenbaugh. In the instant fendant's residence, and it was nearly 7 case it is admitted that the plaintiff was in- o'clock in the evening. What became of the jured through the negligence of Hettenbaugh young companion does not appear. The dowhilst driving the defendant's car. The ac- ings of Hettenbaugh from the time he left cident and injury occurred at Nineteenth the home of Rogers had better appear in his street and Grand avenue about 7:30 in the own language. His deposition was twice takevening. Hettenbaugh left the railway sta-en-once by plaintiff and once by defendanttion at shortly after 1:30. It would require but both depositions were read in evidence by him about 10 minutes to deliver the two passengers to their respective places, and then 30 to 40 minutes to drive the car to defendant's home. By 2:30 at least, had defendant's directions been followed, his car would have been in the garage back of his residence. The doings of Hettenbaugh become material at this point. He says (and in this case two depositions of Hettenbaugh were introduced in evidence by the plaintiff) that after delivering the passenger at the Baltimore Hotel, he drove back a block to the Dwight Building, wherein was the Pioneer Trust Company, with which defendant appears to have been connected, to get his check cashed, where he had to remain until after 3 o'clock for that purpose. He then started south on Grand avenue in the direction of defendant's home. At Twelfth and Grand avenue he stopped to get his laundry. At Seventeenth and

the plaintiff in this second trial. It is largely upon these depositions that the Court of Appeals (majority opinion) find the liability of the defendant. In his deposition given on October 11, 1912, Hettenbaugh says:

Q.

"Q. Well, now, where did you go from Rogers' place, Mr. Hettenbaugh? A. I don't know. I could not answer that question properly. Have you any recollection at all about it? A. be positive. Q. Well, what is your best recolWell, I have a faint recollection, but I could not lection? A. My recollection is that I went on south from there, intending to go to the garage, that is, to his home, and put the car away; but it seems to me that when I got nearly to the place, I missed my keys, and whether I left them one place or another I don't know, and never found them, and haven't found them yet, as far as that goes. Q. What keys do you refer to? A. The keys to the cars and the garage. They were on a ring. Q. Was the garage kept locked at all times? A. Yes, sir. Q. State whether or not you had received instructions from Mr. Holmes to keep the ga

A.

instruction that I got when I went to work for | Packard which belonged to Mr. Holmes? A. him. Q. What did you do then, when you miss- Certainly." ed your keys, Mr. Hettenbaugh? A. I couldn't answer that question for certain. Q. What is May 16, 1914, the defendant took the secyour best recollection? A. The only recollection ond deposition at Pasadena, Cal. The that I have, I missed my keys-it seemed to me whole of the second deposition reads: I did. Further than that I don't remember any "Q. Mr. Hettenbaugh, where do you live at the more. I don't know where I went after that. present time? A. 258 North Vernon, Pasadena. Q. Well, do you have any recollection of start-Q. What is your name in full, please? A. Howing out to look for your keys? (Objected to as ard L. Hettenbaugh. Q. 'Howard L.,' you say? leading and suggestive. Objection overruled.) A. Howard L. Hettenbaugh. Q. Are you the A. No, I have no other recollection of going to Howard L. Hettenbaugh that at one time acted look for the keys, but, as I remember it, I as chauffeur for Mr. Holmes, the defendant in went back to the garage, and looked for my keys this case? there, and they were gone. A. Yes, sir. Q. And you are the Further than that same Howard L. Hettenbaugh whose deposition I cannot remember. Q. What was the next was taken by the plaintiff in that case on or thing you do remember, Mr. Hettenbaugh? A. about the 11th day of October, 1912? A. Yes, Well, the next thing I can remember was that sir. Q. Without expecting you to remember the I woke up in No. 1 police station. That is exact date, you remember of giving your testiabout all I can tell you. I didn't know where mony? A. Yes. Q. And you are the man who I was then, but I found out pretty soon. Q. You was driving the car, the Packard automobile, have no recollection of running into anybody? of Mr. Holmes, on the night that this accident A. Why, yes; I have a faint recollection of the is alleged to have occurred? accident at Fifty-Second and- (Objected to I think you have already testified that you have A. Yes, sir. Q. for the reason that it is leading and suggestive. no recollection of being at the scene of the acObjection overruled.) Q. Go on. A. I have a cident at the time when they allege? A. What faint recollection of running into a man at accident? Q. Well, the place where Mr. WhimFifty-Second and Oak, although I didn't have at ster alleges he was hurt. I believe you have that time. But since I have thought about it, already stated you have no recollection? thought it over, and studied over it. I think I No, sir. Q. Now, Mr. Hettenbaugh, when your remember of it now. Q. Do you recollect wheth- deposition was taken the following question and er it was a man you ran into at Fifty-Second answer was asked you: 'Q. Well, what is your and Oak, or another machine, which? A. An- best recollection? A. My recollection is that I other machine, that I run into there, I think. went on south from there, intending to go to As far as I can recollect. Q. You have no the garage, that is, to his home, and put the car recollection of running into a man at Nine- away; but it seems to me that when I got teenth and Grand? A. No, sir. Q. Then, if nearly to the place, I missed my keys, and whethyou were driving this car on Grand about Nine- er I left them one place or another I don't know. teenth street, that afternoon, after you missed I never found them, and haven't found them your keys, you do not know where you were yet, as far as that goes.' Now, you remember going? (Objected to as leading and suggestive. having so testified, do you, as I have read to Objection sustained.) Q. Do you have any rec- you? A. Yes. Q. Or substantially that way? ollection of driving your car on Grand near A. Yes. Q. The keys you referred to were the Nineteenth street that afternoon, after you keys of the garage, I believe; Mr. Holmes' missed your keys? A. No, sir; I haven't. Q. garage? A. Yes, sir. Also some of my own Mr. Hettenbaugh, how did you come to go out keys on the ring. Q. I suppose you had a ring to see Mr. Rogers about the car? A. How did on which you kept your own private keys? A. I come to go out there? For a little informa- Yes. Q. And the keys to the garage? A. Yes. tion, I told you. Q. State whether or not you Q. Do you remember what you did after you received any instructions from Mr. Holmes to missed your keys? A. The only thing I rememconsult Ben Rogers about repairs on the car. ber that I might have did was to have gone (Objected to as leading and suggestive. Objec- to look for the keys. But I don't know where; tion overruled.) A. No, sir. Q. Was anybody I have no recollection of where I went, definitewith you after you left Rogers out at his place, ly. Q. You don't remember definitely whether Mr. Hettenbaugh? A. Not that I know of. you went to Mr. Holmes' garage, or to the Q. Do you know why it is, Mr. Hettenbaugh, Packard garage, or where you went, any place, that you are unable to recollect what occurred do you? A. No. Q. And you have no definite after that time? A. No, not unless it was that recollection of even looking for the keys, have I had had too many highballs. That's the only you, now, Mr. Hettenbaugh? A. Well, I have reason I know. You wanted the truth, and I a recollection that I went there and missed the am giving it to you. Q. You say, Mr. Hetten-keys, and then went to look for them. Now, baugh, that Mr. Holmes never told you to con- that time in the evening. Q. Well, I mean you I would have no other mission out with the car sult Mr. Rogers? A. That is not the question have a recollection that you missed them just you asked me. Q. Did he ever tell you to con- before you got to his garage? sult Mr. Rogers? (Objected to as immaterial, You haven't any recollection whether you went A. Yes. Q. incompetent, and irrelevant. Objections overto the garage or not? A. Well, I couldn't say ruled.) A. Not that I remember of. Q. At for sure that I stopped at the garage or that I any time? A. I don't see that any other time didn't. As a possible chance, I may have stophas anything to do with it. Q. Well, it has. ped at the garage, but I would not want to say A. Yes; regarding other times he did. Q. positively. Q. What I mean is, everything is How many times did you consult Mr. Rogers a sort of blank, or hazy, after that, isn't it? about it, Mr. Hettenbaugh-about Mr. Holmes' A. Yes, sir; I don't remember clearly. Anycar? A. Twice or probably three times. (Ob- way, I could not prove it; if I thought I rejected to as immaterial, what happened on oth-membered something I could not have any proof er occasions. Objection sustained.) Q. As I for it. Q. And you have no recollection of lookunderstand it, Mr. Hettenbaugh, you do not rec-ing any place, have you? A. Any particular ollect anything where you went or what oc- place, you mean? Q. Any particular place. A. curred, after you missed your keys? A. Well, no, not exactly, only the accident at Fifty-Second and Oak. Q. Do you know what time in the evening that was? A. No, I could not say what time it was. I couldn't swear to it my self; they say it was about 25 or 15 of 8. That is the time they say; 15 of 8, I think. Q. You were still driving the seven-passenger

No. Q. You have no definite recollection, as I understand, of having reached Mr. Holmes' garage? A. Well, no; not except near there. Q. Well, that is what I mean. But I mean getting right up to it? A. I remember being on the street where the garage was located; but I couldn't swear that I even went up into the garage, because, if I missed my keys, it would