« ForrigeFortsett »
5. Croy, 74 Mo. App. 462, and the rule stated sustained, the statutory remedy was not availin 29 American and English Encyc. of Law, able, where a horse went upon the track and
fell into a trestle bridge without being injured, 912.
frightened, or run by a locomotive or train. We find the same interpretation of the
[Ed. Note.-For other cases, see Railroads, statute is given in England. In Goodman v. Cent. Dig. $$ 1409–1450; Dec. Dig. $ 411.*] Chase, 1 B. & Ald. 297, there were two argu- ) 3. RAILROADS_(8 411*)-INJURIES TO STOCKments, after which Lord Ellenborough stated
Under such sections the owner of such the opinion of the court as follows: "By the
horse was entitled discharge of Chase Junior with the plain-| though the statutory remedy was not available,
recover his damages, tiff's consent, the debt as between those two since the statutory remedies, so far as they repersons was satisfied. No case can be cited | late to compensatory damages, are cumulative in which such a discharge has not been hela and not exclusive, and a common-law action will
lie for negligence in the performance of a statuquite sufficient. Then, if so, the promise by tory duty. the defendant here is not a collateral but an
[Ed. Note.-For other cases, see Railroads, original promise, for which the consideration Cent. Dig. 88 1409–1450; Dec. Dig. § 411.*] is the discharge of the debt as between the 4. RAILROADS (8 411*)—INJURIES TO STOCKplaintiff and Chase Junior. That being so,
STATUTORY PROVISIONS. it becomes wholly unnecessary to consider
Under Rev. St. 1909, $ 3145, requiring
railroad companies to erect and maintain lawthe question arising out of the construction ful fences on the sides of the road where it of the fourth section of the statute of passes through, along, or adjoining inclosed frauds." In Sane v. Burghart, 1 Q. B. 933, or cultivated fields or uninclosed lands, and to the original debtor was discharged by the construct and maintain cattle guards, where
fences are required, sufficient to prevent anicreditor, in consideration of which Burghart mals from getting on the railroad, the owner agreed to pay the debt, and it was held to of a railroad, crossed by a private road which be an original undertaking by him to the was open where it entered a public road, owed
the owner of a horse living at some distance creditor to which the statute did not apply. from the railroad the duty of providing a law
 The foregoing considerations demon- ful barrier to prevent the horse, which escaped strate that the petition stated a case not from its pasture inclosed by a lawful fence, within the statute, and that therefore the from straying from the public road to the rail.
road by the way of the private road. demurrer should have been overruled.
[Ed. Note.-For other cases, see Railroads, The judgment is reversed, and the cause Cent. Dig. 88 1409–1450; Dec. Dig. $ 411.*] remanded. All concur.
Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.
Action by James McClaskey against the McCLASKEY v. QUINCY, O. & K. C. R. CO. Quincy, Omaha & Kansas City Railroad Com(Kansas City Court of Appeals. Missouri.
pany. From a judgment for plaintiff, deDec. 1, 1913.)
fendant appeals. Affirmed. 1. RAILROADS (8 439*)-INJURIES TO STOCK
D. M. Wilson' and J. W. Clapp, both of ACTIONS-PETITION.
Milan, and J. G. Trimble, of Kansas City, In an action against a railroad company for for appellant. Earl F. Nelson, of Milan, for injuries to a horse, where the petition alleged a failure to maintain a lawful fence at the respondent. place where the horse went upon the railroad track, and that the company's servants negli- JOHNSON, J. The appeal in this case is gently injured the horse in removing it from from a judgment plaintiff recovered in the a trestle bridge into which it had fallen, but circuit court of Sullivan county in an action there was no proof of the negligence of such servants, the inclusion of the allegation of such for a breach by defendant of its duty to Degligence did not affect plaintiff's right to re- maintain lawful fences on the sides of its cover under the remaining allegation, if it railroad, where the same passes through the stated a good cause of action.
[Ed. Note:-For other cases, see Railroads, country. A horse owned by plaintiff escaped Cent. Dig. $g 1551-1569; Dec. Dig. $ 439.*] from a pasture, which was inclosed by a 2. RAILROADS_(8 411*)-INJURIES TO STOCK-lawful fence, to a public road, traveled a mile STATUTORY PROVISIONS.
or more along that road to a place where Under Rev. St. 1909, § 3145, requiring an opening in the fence on the north side railroad companies to erect and maintain law; afforded him access to a private road which ful fences on the sides of the railroad, and to construct and maintain cattle guards, and
ran north to and across defendant's railproviding that until such fences and cattle road. There were no cattle guards at this guards are made and maintained the corporation crossing, and a fence on the north side of the shall be liable in double the amount of damages done by its agents, engines, or cars to animals right of way caused the horse, when he on such road by reason of the failure to con- reached that barrier, to turn west and go struct or maintain such fences or cattle guards, along defendant's right of way. Finally he and section 3146, providing that when live took to the track, and then fell into a trestle stock shall go upon any railroad or its right of way, where the railroad is not inclosed by a bridge he attempted to cross. He was aftergood fence, such as is, by law, required, and by wards extricated by some section men, but being frightened or run by any passing locomo
was so badly injured as to be rendered altive or train, shall be injured or killed by having run against a fence or into a culvert, bridge, most, if not entirely, worthless. The farmer etc., the railroad company shall pay the damage ) who owned the land over which the private
For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
road passed maintained a lawful fence along road, 112 Mo. App. 575, 87 S. W. 65; Oyler the north side of the public road which ran V. Railroad, supra; Francis v. Railroad, 118 east and west. There had been a gate at Mo. App. 435, 93 S. W. 876; Smith v. Railthe place where the private road entered the road, 127 Mo. App. 160, 105 S. W. 10; public road, but for some time before the Brown v. Railroad, 127 Mo. App. 614, 106 event in question the gate had been down, S. W. 551. and as defendant had no fence along the The judgment is affirmed. All concur. south side of right of way, which was about 100 yards north of the public road and parallel thereto, there was nothing to prevent the horse from taking the course he
REA V. REA. pursued to the place of the injury. There is (Kansas City Court of Appeals. Missouri. no evidence that the horse was frightened or
Dec. 1, 1913.) run by a passing locomotive or train.
1. DIVORCE (8 184*) - APPEAL FINDINGS  The petition contains two allegations of
CONCLUSIVENESS. negligence, viz., first, that defendant failed tion for divorce are not binding on appeal, they
While findings of the trial court in an acto maintain a good and lawful fence and gate will nevertheless be given persuasive influence at the place where the horse entered upon and deferred to by the appellate court. the right of way, and, second, that defend
[Ed. Note.-For other cases, see Divorce, ant's servants negligently injured the horse Cent. Dig. $8 570-573; Dec. Dig. $ 184.*]
2. DIVORCE in removing it from the bridge. There is no
( 104*) - AMENDMENT - CON
FORMITY TO PROOF. proof of the second charge, and it will be
A husband's petition for divorce originally dismissed from our consideration with the charged adultery, and also indignities, in that observation that its inclusion in the petition defendant sought the society of male compan. could not affect the right of plaintiff to re- ions, other than her husband, while he was ab
sent from home, and without his knowledge, cover on the remaining charge if it states and that she carried on a secret correspondence a good cause of action.
with B. and permitted him to call on her dur The gist of the action is negligence of ing plaintiff's absence. At the close of the evidefendant in the performance of the duty im- and afterwards announced that the charge of
dence the court took the case under advisement posed by section 3145, Rev. Stat. 1909, upon adultery bad not been sustained and ought to railroad companies to maintain lawful fences be withdrawn, and that the petition should be along the sides of their railroads where they was done, making such charge more specific,
amended as to the charge of indignities. This run through the country. The remedy pro- and including an allegation that defendant pervided in that statute was not available to mitted her young daughter to have company plaintiff, since his horse was not injured by until late at night, and that B. at one time caa locomotive or train, nor could plaintiff ment did no more than to conform the petition
ressed the daughter. Held, that such amendhave maintained an action under the succeed to the proof and was properly allowed. ing section, since the horse was not frighten
(Ed. Note.-For other cases, see Divorce, ed or run by a passing locomotive or train. Cent., Dig. 88 27, 28, 328–339; Dec. Dig. $
104.*]  But these statutory remedies, so far as they relate to compensatory damages are
3. DIVORCE (8 146*)_TBIAL-AMENDMENT OF
PETITION-NEW EVIDENCE. cumulative, not exclusive. If a railroad Where a petition for divorce originally company negligently fails to maintain the charged adultery and indignities, and at the kind of inclosure required by law, and in trial the case was fully tried on the issue of consequence of such negligence an animal ant's part as to the scope of the proof, an
indignities, without any objection on defendstrays upon the track and is injured, the amendment of the petition after submission so owner may recover the damages thus inflicted as to eliminate the charge of adultery and make upon him, though the manner of the injury form to the proof did not entitle defendant to
the charge of indignities more specific to conmay be outside the purview of the statutory an opportunity to introduce further evidence. remedies. An action will lie for the enforce [Ed. Note.--For other cases, see Divorce, Cent. ment of a common-law remedy for negligence Dig. $$ 164, 471-473, 477, 488-492; Dec. Dig. in the performance of the statutory duty.
§ 146.*] Oyler v. Railroad, 113 Mo. App. 375, 88 S. 4. DIVORCE (8 105*)—PETITION-AFFIVADIT. W. 162; Gorman v. Railroad, 26 Mo. 441, sworn to originally, it was not essentiai that
Where a petition for divorce was properly 72 Am. Dec. 220; Hill v. Railroad, 49 Mo. it be reverified after an amendment to conform App. 520; 8. C., 121 Mo. 477, 26 S. W. 576. to the proof.  The point made by defendant that it
(Ed. Note.-For other cases, see Divorce, owed plaintiff no duty to provide a lawful Cent. Dig. $$ 340–343; Dec. Dig. $ 105.*) barrier to prevent his horse from straying
Appeal from Circuit Court, Andrew Counfrom the public road to the railroad has been ty; A. D. Burns, Judge. so often ruled adversely to the position of
Action by Claude Rea against Virginia B. defendant that we do not think its discussion Rea. Judgment for plaintiff, and defendant Kere would be profitable. Reference to the
appeals. Affirmed. following cases will disclose that the point W. H. Hayes and Boober & Williams, all is not well taken: Litton v. Railroad, 111 of Savannah, for appellant. Shinabarger, Mo. App. 140, 85 S. W. 978; Reed v. Rail- | Blagg & Ellison, of Maryville, for respondent.
•For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
ELLISON, P. J. Plaintiff's action is for di- , When this amendment was made, defendant
He obtained a decree in the trial asked to be allowed to introduce more evicourt on the ground of indignities and incom- dence, and the court refused the request. We patibility of temper.
think the amendment to the petition was The evidence disclosed that plaintiff had nothing more than an allowance of an amenda daughter Ruth by a former marriage, who ment for the purpose of conforming to the at the period of this controversy was be proof. It is a common practice in ordinary tween 14 and 15 years of age. She lived cases, and no reason exists why it should with plaintiff and defendant on a farm in not be done in an action for divorce. Rose v. Andrew county. Plaintiff was a traveling Rose, 129 Mo. App. 175, 107 S. W. 1089; salesman of merchandise and was absent Garver v. Garver, 145 Mo. App. 353, 130 S. perhaps five days in the week; the farm bew. 369. ing managed during his absence by defendant  As to the introduction of further eviand hired men. The indignities charged dence as requested by defendant, we find no against defendant are her improper conduct reason to interfere with the trial court. The with one of these men (though not amounting matters specified in the amendment had all to adultery) and the example set to the been contested under the original petition ; young daughter, which plaintiff feared might the defendant at no time objecting to the have a corrupting influence as she grew evidence taking the scope it did. So that older.
the refusal to open up what had been alIt was shown by a preponderance of the ready fully contested was not improper. evidence that defendant permitted one Beat-  Another ground of objection is that ty, who was one of the employés on the the petition after the amendment was not farm, who lived near by, to visit her and at again sworn to. That point has also been times to caress her. There was other evi- ruled against defendant. The affidavit is dence that she wrote him notes, and that, jurisdictional (Hinkle v. Lovelace, 204 Mo. when finally plaintiff took his daughter away | 208, 102 S. W. 1015, 11 L. R. A. (N. S.] 730, for the reason that he believed she was in 120 Am. St. Rep. 698, 11 Ann. Cas. 794; Stedanger of evil influences and surroundings, vens v. Stevens, 170 Mo. App. 322, 156 S. W. she said to the daughter that, “If you won't 68); but where the cause of action is not tell on me, I won't tell on you." There was changed, and where no new cause of action is also evidence that she admitted in the pres- introduced, where, as here, the amendment ence of others to an ungovernable temper introduces no new cause of divorce but only which had led her into unjust treatment of an amplification of what was already chargher husband.
ed, there is no necessity for renewing the affi We can see no good to be accomplished davit. Garver v. Garver, supra; Tackaberry in setting out all this evidence in detail and v. Tackaberry, 101 Mich. 102, 59 N. W. 400; no good reason for doing more than to say Conant v. Jones, 120 Ga. 568, 570, 48 S. E. that the preponderance of evidence in plain- 234. tiff's behalf has induced the trial judge to We think the trial court properly found find that the indignities charged were sus against the defendant's cross-bill, and we tained, and that, while that finding is not affirm the judgment granting plaintiff a dibinding on this court, yet it properly has vorce. All concur. a very persuasive influence and should be deferred to by us. Herriford v. Herriford, 169 Mo. App. 641, 155 S. W. 855.  There is, however, a legal question pre
BRADEN V. CHICAGO, B. & Q. R. CO. sented which requires our attention. The petition originally contained a charge of (Kansas City Court of Appeals. Missouri. adultery and also a charge of indignities in
Nov. 3, 1913. Rehearing Denied
Dec. 1, 1913.) that she sought the companionship and society of male companions while he was ab- 1. MASTER AND SERVANT (8 107*)-SAFE PLACE sent from home and without his knowledge,
OF WORK. and that she carried on a secret correspond- tiff to mow its right of way with a machine
A railroad company which employed plainence with Beatty and permitted him to call and by hand was not required to furnish him on her during plaintiff's absence. At the with a level surface to mow in order to disclose of the evidence the court took the case charge its duty, as employer, of furnishing a
safe place of work. under advisement and afterwards announced
[Ed. Note.-For other cases, see Master and that the charge of adultery had not been sus- Servant, Cent. Dig. $8 199–202, 212, 254, 255; tained and ought to be withdrawn, and that Dec. Dig. $ 107.*) the petition should be amended as to the
2. MASTER AND SERVANT (88 150, 155*)-A8charges of Indignities. This was done by
BUMPTION OF RISK. amendment The charge of indignities was If a danger is extraordinary and one not made more specific and included that of de ordinarily incident to the service, and the emfendant permitting the young daughter to ployer knows it, he is negligent for failing have company until late at night, and that to warn the employé; but if the danger be
obvious to one of ordinary intelligence and can Beatty had one time caressed the daughter. I be appreciated by him, or is not extraordinary,
'For other cases soo samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
the employer is not bound to warn a servant, though, as stated, the weeds were very thick, thereof.
plaintiff says he observed the ditch when he [Ed. Note.-For other cases, see Master and was 40 feet from it and got off the machine Servant, Cent. Dig. ss 297, 299–302, 305-307, and went forward on foot to see if he could 310; Dec. Dig. $$ 150, 155.*] 3. MASTER AND SERVANT (&$ 101, 102*)-SAFE drive the team and mower across it. AnothPLACE OF WORK.
er natural drainage ditch about 242 feet wide An employer is not bound to furnish an and 2142 feet deep, coming from the west on absolutely safe place of work but only one free a course parallel to the embankment, empfrom the dangers not ordinarily incident to the tied into the larger ditch at a point estimatwork.
[Ed. Note.- For other cases, see Master and ed by plaintiff as being 12 or 14 feet and by Servant, Cent. Dig. S 135, 171, 174, 178–184, the helper as being 6 feet south of the cul. 192; Dec. Dig. $8 101, 102.*]
vert. Plaintiff states that he did not discov4. MASTER AND SERVANT ($ 206*)-RISKS As-er this small ditch on account of the weeds
and drove across the larger one without One employed by a railroad company to mow, with a machine and by hand, a part of its knowing of its presence. His team crossed at right of way assumed the risk of injury to his a place just north of the small ditch, and his team by one of the horses falling into a ditch machine had just reached the top of the west on the right of way; risks from the contour of bank when the near horse fell and landed the land being ordinary risks of the employ on his back in the small ditch, where he re
[Ed. Note. For other cases, see Master and mained until the next morning. His injuries Servant, Cent. Dig. $ 550; Dec. Dig. 8 206.*] were so severe that plaintiff decided to kill Appeal from Circuit Court, Livingston what caused the horse to fall but founds his
him. Plaintiff testified that he did not know County; Arch B. Davis, Judge.
Action by Robert E. Braden against the action on the inference that it stepped or Chicago, Burlington & Quincy Railroad Com- slipped into the concealed ditch. The helppany. From a judgment for plaintiff, de er's version of the injury differs materially fendant appeals. Reversed.
from plaintiff's and gives a plausible reason
for the accident. He states that plaintiff 0. M. Spencer, of St. Joseph, Frank Sheetz, knew of the presence of the small ditch and of Chillicothe, and Maurice Roberts, of St. attempted to drive across to the tongue of Joseph, for appellant. Paul D. Kitt, of Chil- land lying between the embankment and the licothe, for respondent.
small ditch, and that as the machine was JOHNSON, J. Plaintiff, a farmer, was em ascending the west bank the off horse shied ployed by a section foreman of defendant in at the culvert and pushed the near horse August, 1910, to cut weeds and grass on de- over into the small ditch. fendant's right of way for a distance of
If we were sitting as triers of fact, we about three-quarters of a mile west from Uti- would accept the statement of the helper as ca station. He was to use his team and being more in accord with the conceded physmowing machine where it was practicable ical facts than that of plaintiff. It is diffiand to cut the remainder by hand. One of cult to believe that plaintiff could not and the section men accompanied him. After
did not see the mouth of the small ditch and working with his machine until near the close the break in the weeds that must have been of the first day, one of the horses fell into a plainly marked by its course if, as he states, ditch on the right of way and was so injured he could see the large ditch 40 feet away that he had to be killed. Plaintiff sued in a
and made a careful inspection to determine justice court to recover the value of the whether or not he could cross it in safety; horse on the ground that its death was caus- but since all issues of fact were resolved by ed by defendant's negligent breach of a duty the trial court in favor of plaintiff, and the to warn him of the ditch, the presence of judgment before us necessarily was based on which, plaintiff contends, was concealed by the hypothesis that the small ditch was so a very thick and rank growth of weeds. The concealed by vegetation that plaintiff could cause was tried in the circuit court without not detect it from his position on the east the aid of a jury and resulted in a judgment side of the large ditch, nor while he was for plaintiff. Defendant appealed.
crossing, we shall accept that view of the The evidence consisted of the testimony of occurrence, despite its repugnance to plain plaintiff and his companion, the section hand and conceded physical facts. We do this who was sent by defendant to help him. merely for the purposes of argument and beWhile driving the mowing machine westward cause we are convinced that plaintiff has no on the south side of the railroad, they came cause of action against defendant under any to a natural drainage ditch that crossed the possible view of the facts. The gist of the right of way from southeast to northwest cause he asserts is the breach of a master's and crossed under the track through a cul- duty to exercise reasonable care to furnish vert. The track was on an embankment that his servant a reasonably safe place in which was perhaps 16 feet high, perpendicular to work. measure, and had sloping sides. The ditch  He does not claim and would not be was about 6 feet wide and 6 feet deep. Al- heard to claim that such duty compelled de
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r ludexes
fendant to furnish him a smooth and level by the servant. The mere fact that plaintiff surface on which to cut weeds (Post v. Rail. was employed by a railroad company to mow way, 121 Mo. App. 562, 97 S. W. 233), but its field instead of by a neighboring farmer does contend that defendant was bound to is immaterial. The same law applies to all warn him of the presence of natural drain- classes of employers. age ditches that were obscured by vegeta- Clearly the injury to the horse was due to tion and into which he, unawares, might a risk assumed by plaintiff and cannot be drive his horses, to his injury and damage. attributed to any negligence of defendant.
[2, 3] The rules are too well settled to call The judgment is reversed. All concur. for discussion or require the citation of authorities that a servant assumes the risks that are ordinarily incident to the service he undertakes; that the master is not an insurer of
COULTER v. COULTER. the safety of his servant; and that the meas- (Kansas City Court of Appeals. Missouri. ure of his duty is not to furnish his servant
Dec. 1, 1913.) an absolutely safe place in which to work but 1. PLEADING ($ 433*)—DEFECTS IN PETITION a place free from all risks and dangers that -AIDER BY VERDICT.
The omission of an essential averment from are not ordinarily incident to the kind of
a petition is not wholly waived by answer to work the servant is employed to perform. the merits; but a failure to demur brings into As stated in Elliott on Railroads (2d Ed.) 8 play the rule of liberal construction, and, if 1283: “The general rule is that where the the omitted fact can be found to be alleged by danger is an extraordinaryone (that is, a
inference, the petition will not be held bad aft
er verdict. danger not ordinarily incident to the service),
[Ed. Note. For other cases, see Pleading, and the employer has knowledge of such dan- Cent. Dig. 88 1451-1477; Dec. Dig. § 433.*] ger, he is guilty of negligence if he fails to 2. PLEADING (8 433*)-Actions—PETITION. warn the employé. Where, however, the dan- In an action by a wife under Rev. St. ger is obvious to a person of ordinary intelli- 1909, $ 8295, providing that, when a husband, gence and one that can be known and ap- and refuse and neglect to provide for her, the
without good cause, shall abandon his wife, preciated by a person who exercises ordina- court shall order and adjudge such support ry prudence and care, or where it is not an and maintenance to be provided and paid by extraordinary peril but is one incident to the the husband, the petition alleged that plaintiff
was without fault, and that defendant in leavservice, there is no duty to give warning un- ing her wholly disregarded his duty as husband, less the person employed has not reached the but did not expressly aver that his abandonyears of discretion.”
ment was without just cause. Held that, as the Counsel for plaintiff ask, “How can a serv- it was good as against a motion in arrest; the
petition was not challenged until after verdict, ant assume something of which he has no missing averment being supplied by inference. knowledge, actual or constructive?" and an- [Ed. Note.-For other cases, see Pleading, swer the question by pointing to the rule Cent. Dig. $$ 1451-1477; Dec. Dig. $ 433.*) that “The assumption of a risk appears to in- 3. HUSBAND AND WIFE (8283*)-A BANDONrolve the facts of comprehension that a peril
A wife is bound to follow the fortunes is to be encountered and a willingness to en- of her husband, and to live where he chooses to counter it; that is to say, a positive exercise live, and in the style and manner he may adopt; of volition in the form of assent to the risk.” but the dụty of a wife to forsake her family and
cleave to her husband is no greater than the corAdolff v. Baking Co., 100 Mo. App. loc. cit. responding duty of the husband, and neither 209, 73 S. W. 321; Roberts v. Tel. Co., 166 spouse has the right to demand in mere wanMo. loc. cit. 378, 66 S. W. 155.
tonness and caprice the estrangement of the
other from his or her parents.  This is true, but does not a servant hir
[Ed. Note.-For other cases, see Husband and ed to mow a field have both actual and con
Wife, Cent. Dig. 88 1062-1073; Dec. Dig. 8 structive knowledge of the topographical fea. 283.*] tures common to all fields? Hills, slopes, vales, 4. HUSBAND AND WIFE ($ 283*)--SEPARATE water and drainage courses, gullies large and
MAINTENANCEM-ABANDONMENT. small, stumps, and sometimes stones are gen, ing the home that he had provided for her, he
Where a wife abandoned her husband, leay. eral characteristics, and a farmer employed condoned her fault by resuming cohabitation to mow a field covered with rank vegeta- with her under a promise to provide as soon tion knows that he will encounter many such
as possible a new home more acceptable to natural obstacles and must be on the look- her; consenting for her to temporarily remain
with her parents. out for them. If such are not natural risks,
[Ed. Note.-For other cases, see Husband and it is hard to imagine any that would be. Wife, Cent. Dig. 88 1062-1073; Dec. Dig. 8 Must a farmer who hires a man to mow bis 283.*] field warn him beforehand of every hidden 5. HUSBAND AND WIFE (8283*)—SEPARATE gully, stump, or stone on pain of being forced
Where a wife lives apart from her husto answer in damages for any injury to his band with his consent, she cannot be said to servant that may result from such a risk? have abandoned him, and he is bound to supThe suggestion is too absurd to be entertain port her, and will remain bound until she re
fuses to return to him upon request, and hence ed for a moment. Such risks are natural, in- the wife is entitled to a decree for separate cidental to the employment, and are assumed maintenance under Rev. St. 1909, $ 8295, where
"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes