that I advise you concerning same. I have given the matter careful consideration and I have concluded that our minimum fee should be $5,000 for services which have been rendered or will be rendered in the immediate future."

that defendants in fact recognized the charge made by garnishees as a proper charge."

--and further directing Barth to proceed to perform other professional services mentioned in the telegram. Inasmuch as the telegram of Adam to Barth, dated May 28, 1914, referred to a letter which was to follow, and to be a letter of explanation, and in view of all the facts and circumstances in evidence in this case, which show there were some disputed facts, we think the question of whether there was an account stated should be submitted to the jury under proper instructions.

We shall next proceed to a consideration of the instructions given in this case. We deem it necessary to a proper understanding

of these instructions that instructions Nos. 1

and 2, given at the request of plaintiffs, and which are as follows, be set out in this opin

ion:

"(1) The court instructs the jury that before you can find that there was an account stated between the garnishees and the defendants, you must believe from the evidence that the garnishees rendered to the defendants a bill for their services as attorneys for them, in the sum of $5,000, and that defendants agreed that said

fee was satisfactory to them.

"But such agreement on the part of defendants need not be proven by a direct, explicit assent, but may be inferred from the facts and circumstances in evidence, including a failure on the part of defendants to object to the bill. "(2) The jury is instructed that it is admitted that the garnishees, John S. Leahy, Walter H. Saunders, and Irvin V. Barth, received into their possession the sum of $6,974.62, money of the defendants Adam, Sanderson, and Woodinan, and the jury is instructed that the said garnishees had no right to apply any part of said money to the payment of attorney's fees that might be due said garnishees from said defendants, or any of them, unless you find from the evidence that there was an agreement made and entered into by said garnishees and said defendants, fixing the amount said garnishees

were entitled to receive for their services ren

dered, and to be rendered, if any, by said

garnishees to said defendants.

"Such agreement on the part of defendants does not require specific direct proof of an absolute acceptance of a statement of charge rendered by garnishees, but may be shown by the facts and circumstances in evidence if the facts and circumstances in evidence convince the jury

an unjust burden upon the garnishees in this case, and implies that the agreement must be in writing, especially in view of the qualifying portion of this instruction. The jury

are further told in this instruction that this

agreement may be shown "if the facts and circumstances in evidence convince the jury that the defendants in fact recognized the charge made by garnishees as a "proper charge." This part of the instruction we think was error. This account may have become an account stated, whether defendants recognized it as a "proper charge" or an improper one. Defendants may have thought it improper by reason of its being too much, or by of its being rendered at an inopportune time. reason of its not being enough, or by reason and we do not think the jury should be required to find that defendants recognized it as a "proper charge," before they could find that it had become an account stated. The defendants may have considered that the account rendered by the garnishees in this case was not proper because the services were not worth that much, and yet the jury are told in another instruction that there is no issue as to the value of the services ren

dered in this case. Instruction No. 2, given at the request of plaintiffs, with the qualifications above noted required the jury to find that which was unnecessary to make the account rendered become an account stated, for if defendants assented by acquiescence or silence for a reasonable time, it became an account stated, even though at the time it was rendered defendants may have considered it an improper charge. In Powell v. Pacific Railroad, 65 Mo. loc. cit. 661, the court in discussing the question as to what constitutes an account stated, uses the following language:

"There must be a fixed and certain sum ad

mitted to be due; the admission must be voluntary, but it need not be express and in terms, for if the account be sent to the debtor in a letter, which is received but not replied to in is taken as admission that the account is truly a reasonable time, the acquiescence of the party

stated."

The court has this to say also in the same opinion:

"Between merchants at home, an account which has been presented and no objection made

WAGES ON DISCHARGE UNNECESSARY.

In action by a discharged servant for assault, it is error to charge that defendant had right to discharge plaintiff "without cause and paying plaintiff her wages," and to refuse an instruction that defendant had right to discharge servant" without cause and without payment of wages."

on the afternoon of the following day, whereupon defendant ordered plaintiff to leave the room and the house immediately, which she had a right to do, as it is averred; that she gave plaintiff reasonable time to do, but instead grabbed defendant by the leave, which plaintiff would not and did not wrist, sinking her nails into defendant's fore

"Not to be officially published."

Action for assault and battery by Addie P. Traw against Helen B. Heydt and husband. Judgment for plaintiff against defendant wife, who appeals. Reversed and remanded.

days; that thereupon defendant, after again ordering plaintiff to leave the room and the house pushed her out of the door and into a make plaintiff comply with defendant's orstairway, using only such force as would ders and requests.

There was a reply, generally denying these allegations.

On a trial before the court and a jury, a

REYNOLDS, P. J. Plaintiff commenced this action against John B. Heydt and Helen Heydt, his wife, for damages for an alleged assault on her by the latter. She dismissed as to John B. Heydt and filed an amended petition against Helen B. Heydt, in which she averred that on March 29th, 1916, she was in the employ of defendant as a cook; that on that date defendant wantonly and maliciously, and without just cause, assaulted her and struck and beat her with her hands and with a revolver or other hard object, "whereby plaintiff was severely bruised and injured; that such assault and beating severely bruised plaintiff's back and caused her great pain and suffering therein; that ever since said assault and beating plaintiff's back has been lame and sore, and she had had almost constant pains in her chest and neck and head; that plaintiff suffered a severe nervous shock from said assault and beating; that as a result of the aforesaid injuries, and the lameness, soreness, pain and nervousness resulting therefrom, plaintiff was wholly unable to perform the work of one engaged as a cook, or in other house service, which is the employment to which plaintiff is accustomed, and in which she is skilled, for a period of over six weeks, and is still unable to perform the full amount of work ordinarily required of one in such employment; that said lameness, soreness, pain and nervousness will continue for a long time to come, and will make it impossible for plaintiff to obtain or accept such, or any other steady employment; that plaintiff has been damaged thereby in the sum of $10,000 actual damages, for which sum, and for $10,000 punitive dam

ages, and for costs of this suit, plaintiff prays

for judgment."

The answer, after a general denial, avers that plaintiff had been discharged from the employ of defendant, her service to end on the last of March, 1916; that on March 29th, defendant overheard plaintiff and defendant's husband in a secret conversation,

turned against defendant. No punitive damages were allowed, but as a condition to overruling defendant's motion for a new trial, the court ordered a remittitur of $1,000, which was made, and judgment rendered against plaintiff for $4,000, from which she has duly appealed.

The evidence connected with the assault. as usual, was conflicting, but the verdict of the jury settles the question that the assault was made by defendant. Plaintiff's injuries consisted of bruises, which had disappeared by the time of the trial, and there was evidence that for a while after the assault she exhibited some nervousness, lost some sleep and some weight; but according to the testimony of her own physician, at the time of the trial, she looked about as before; and while she had been out of employment for about seven weeks, losing wages, which had been about $25 a month, she had again gone

to work at her avocation of cook and at about her former wages. There is some evidence, but contradicted, that defendant struck plaintiff with a revolver or other hard instrument.

During the course of the trial plaintiff introduced in evidence, over the objection and exception of defendant, a deed conveying certain realty in the city of St. Louis to defendant and her husband, for a consideration of $12,000, the deed made March 7th, 1907; and over the objection of defendant, evidence was introduced tending to prove that the realty was of the value of about $12,000, and was still owned by Mr. and Mrs. Heydt. There was also evidence to the effect that at one

time defendant was the owner of 100 shares

of stock in some company, on which she had been paid semi-annual dividends of $100; and also that she had some personal property, jewelry, etc. Defendant's testimony was to the effect that she had transferred this stock in trust to a nephew, a minor, but was still receiving the dividends on it, and

At the instance of the defendant the court told the jury that the deed to defendant Helen B. Heydt and John B. Heydt, her husband, for real estate in the city of St. Louis, offered in evidence by plaintiff,

"does not of itself show that the defendant has any exclusive interest therein, and defendant may never have any such interest therein, and the only way which the defendant would ever have an exclusive interest in said property would depend upon her surviving John B. Heydt."

[5] Learned counsel for respondent claim that this instruction properly declared the law and was a correct direction to the jury as to what rights appellant had in the property and cured the error, if any, in admitting the deed in evidence. We do not think this is correct. As will be seen by instruction No. 4, which we have set out, that the court submitted to the jury the question of the financial condition as well as the social position, referring to both parties defendant, using the plural, although the husband was out of the case, and the nature of their business, as elements to be considered in fixing the amount of the verdict. Necessarily, under such an instruction, even with this definition of an estate in entirety, the jury would be led to take into consideration the value of the property covered by the deed, for that was the property of both husband and wife. The cases cited by counsel for respondent on the proposition that the error in admitting this deed and evidence of value was harmless error, do not support their claim. In view of the size of the verdict, we have no doubt but that the jury took into consideration the value of this property. The admission of this deed and testimony as to the value of the property conveyed, was harmful and reversible error.

[6] We have set out the second instruction, italicizing the words objected to therein by counsel for defendant, namely, that in estimating damage the jury are to take into consideration not only the physical injuries inflicted but the "humiliation and disgrace suffered by plaintiff." No such element was stated in the petition in the case and there is not a word of testimony tending to sustain them. The alleged assault was made when no one was present but plaintiff and this defendant, and there is no evidence whatever of either humiliation or disgrace.

the property embraced in the deed as evidence of the financial condition of the defendant. Although the instruction is not clear as to whether by the use of "their" in this instruction is meant the defendant and her husband, or plaintiff and defendant, obviously it refers to the financial condition of defendant and her husband as there is not a particle of testimony as to the financial condition of the plaintiff. It goes without saying that in estimating actual damages the ability of the party to pay, their situation in life, their social standing, are not elements to be considered. Yet, as we have seen, the tendency of instruction No. 4 was to direct the attention of the jury to these very ele ments. That same thought runs through both instructions 2 and 4. When we consider this assault, which arose out of suspicion of the wife as to the relations between her husband and plaintiff, the injuries from it were not very serious. A few bruises were inflicted on her body and they lasted but a short time. Naturally, there was some mental shock and excitement attendant on a circumstance of this kind, but that disappeared before the trial. There is no evidence of any permanent disability of any kind-mental or physical. Her own physician, testifying as a witness, said that plaintiff appeared just as well at the day of the trial as she had before this occurrence. At most, she lost seven weeks' wages, her compensation being $25 a month, and when she went to work she appears to have received about the same wages. So that to allow the sum of $5,000 for such injuries is evidence of either prejudice and passion on the part of the jury, or that they were confused into allowing so large a verdict as $5,000 by considering the financial condition and social position and business of both defendant and her husband. This verdict can be explained on no other hypothesis. As was said by Judge Marshall, speaking for our Supreme Court, in Norris v. Whyte, 158 Mo. 20, loc. cit. 36, 57 S. W. 1037, 1042:

"Taking all the facts and circumstances into consideration the verdict in this case shocks the judicial sense of right and creates a firm conviction in the mind of the court that the ends of justice will be best subserved by reversing the judgment and remanding the case to be tried again before another jury."