(232 S.W.) ated liability of an accident insurer, under its policy providing for payment to the beneficiary, if deceased died of injuries effected directly and independently of all other causes through accidental means. ceased was neither vomiting nor in convulsions, but was complaining of pains in the upper part of the abdomen. The doctor remained about three-quarters of an hour, and about 20 minutes after he left deceased Appeal from St. Louis Circuit Court: Karl had another convulsion. Dr. Lonsway came Kimmel, Judge. Action by Ellen O'Connor against the Columbian National Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. again, and stayed about 2 hours. During the second visit the deceased was conscious, and would speak when he was spoken to. About 7 o'clock the next morning Dr. Munsch arrived. About 10 o'clock he was taken to the hospital, where he remained until his Leahy & Saunders and David W. Voyles, death. all of St. Louis, for appellant. O'Neill Ryan, of St. Louis, for respondent. NIPPER, C. This is a suit to recover on an accident insurance policy. Plaintiff recovered, and defendant appeals. The petition is in the usual form. The answer, after a general denial, alleges that deceased came to his death as a result of disease, namely uræmia secondary to acute nephritis. The deceased, Charles F. O'Connor, died August 28, 1916, and was 23 years of age. A sister was named as beneficiary in the policy, which was afterwards assigned to deceased's mother, Ellen O'Connor. Charles F. O'Connor was single, and lived with his parents in St. Louis. His general health had been good up to the time of his death, with the exception of being operated upon for appendicitis in March, 1916; but he was able to go about his work in the office of the Meyer Milling Company, where he was employed, on April 12th following the date of the operation. He was also sick during the month of August, prior to his death, with an attack of what was termed in the evidence as "summer grippe." He had gone back to work on August 21, 1916. On the evening of August 24th, or in the the early morning of August 25th, he was taken seriously ill, and died four days later. His mother stated that, on the evening he was taken ill, he ate dinner at their home with other members of the family; that the meal consisted of vegetable soup, crackers, beefsteak, creamed potatoes, canned green peas, a salad of tomatoes and lettuce, graham biscuits and some coffee. He left home about 10 minutes to 8 that evening, and started to the Knights of Columbus Building to meet his friend, a Mr. Hannan. Some time near the hour of midnight she was aroused by the screams of the deceased, who was rigid and sitting upright in his bed. He was in a convulsion, and perspiration was pouring off his face and hands. He was foaming at the mouth. This convulsion lasted 7 or 8 minutes. His mother gave him some hot water and baking soda, which produced vomiting. Dr. Lonsway was called and arrived about half past 12. When the doctor arrived, de It was shown by the deposition of Peter W. Hannan, who was 28 years of age and stationed at Jefferson Barracks at the time the deposition was taken, that he had known the deceased about a year and a half prior to his death, and attended night school with him at St. Louis University; that he saw the deceased during the summer of 1916 on an average of two nights a week. They very frequently spent their evenings together. When asked to describe in general or specific terms his appearance, he said: "I would pick him out as a pretty healthy, good-looking, young man." This answer was objected to as being a conclusion. The objection was overruled, and defendant's counsel excepted. Witness stated that he frequently played handball and went in swimming with deceased; that on the evening of Thursday, August 24, 1916, he and O'Connor were together. They went to a show, and afterwards went to an ice cream parlor at about 10:45 and ate some ice cream; that deceased stated to him at the time they were eating the ice cream that he did not think it was good-that it did not taste good. They left the ice cream parlor soon afterwards, and separated. It appears from the testimony of defendant's witnesses, who conducted the ice cream ant's establishment where the deceased ate on the evening he was taken ill, that the ice cream was made in the usual way, and that there was no complaint from any one else who ate ice cream at this place on that evening. Dr. Munsch testified that he had practiced medicine in St. Louis for 10 years; that he knew deceased as a physician and as a friend, and had at times treated him for minor ailments. He testified that at the time he visited O'Connor's home, on the first visit mentioned heretofore, he found that the deceased answered intelligently when spoken to, but did not volunteer information; he was not inclined to move, and resisted handling. He stated he was guided in his treatment by the information given him by the patient, whom he described at that time as being nauseated, pulse 80 to 84, nothing abnormal in respiration nor as to heart, and his temperature about 98. The skin of his face was pinched, and his ex taking into his stomach of ptomaine poison, on the night of the 24th of August, 1916. In distinguishing between a case of ptomaine poisoning and uræmic poisoning, he went into the matter in detail, showing a vast and marked difference in the two cases; and from his testimony it appears with reasonable certainty that death was due to ptomaine poisoning. At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer, which the court refused to give. Dr. Taussig, testifying on the part of the defendant, stated that he had made a specialty of internal medicine, and, some years ago, of food poisons. He says that, from the testimony given by the attending physicians, a proper diagnosis could not be made. When asked as to what was ptomaine poisoning, he said: "Ptomaine poisoning is a convenient term, that is still retained by men who are not careful about their language, about the words they use, to cover what is now better known as food poisoning." tremities showed cyanosis; tongue dry; no odor to his breath; no abnormal odor of any kind coming from his body. He said that he concluded at the time that he had taken in ptomaine, producing the poisoning from which he was suffering. Witness went with the deceased to St. John's Hospital, and treated him there up to the time of his death. He called in consultation Drs. Engelbach and Tierney to assist him. He further described in detail how he treated him, and his condition at various times prior to his death. On cross-examination, when asked the question, "What is ptomaine poisoning?" he answered: "Ptomaine poisoning is a condition brought about by the taking in, with food, of a substance produced by the decomposition in the food before it is taken into the body." Defendant's counsel, on cross-examination, asked him if he was' certain as to what caused the death of Charles F. O'Connor, to which he answered: "Well, it is certain as a person could be." Dr. Lonsway also testified as to the condition in which he found the deceased on his visits to him the night he was taken ill. He stated that he was a friend of the deceased, and knew him well; that they were frenia, Bright's disease, and uræmia, or intesquently together. This doctor was permitted to state, over the objections and exceptions of defendant's counsel, that, from the general appearance of deceased during the time he knew him, he took him to be in good physical condition; that he formed the opinion at that time that deceased had taken in ptomaine poison, and upon that basis he treated him. He gave further evidence in detail as to deceased's condition at that time. On cross-examination he said that ptomaine poisoning, as he understood it, is usually produced by the action of bacteria upon protein, and by taking the food into the system the bacteria produced the toxic condition in the system known as ptomaine poisoning. Dr. John H. Simon, who had been active in the general practice of medicine in St. Louis for about 26 years prior to the date of deceased's death, testified that he was in court and heard the testimony of Dr. Lonsway read; also the testimony of Dr. Munsch and of Mrs. O'Connor. He stated that during the course of 28 years of practice he had possibly seen 300 cases of ptomaine poisoning, and that he had also seen perhaps 1,000 cases of acute nephritis and uræmia. He says there is such a thing as ptomaine poison; that ptomaine is a word which has been applied to a group of poisonous and some nonpoisonous substances which are the product of bacterial action; that there is such a poison, "whether you call it ptomaine or toxic food poison." giving his opinion as to the cause of the death of deceased, he stated that he believed he came to his death by the accidental scribed the deceased may have had pneumoThat from the symptoms he had heard de tinal obstruction; that he might have died from the multiplication in his system of virulent bacteria taken in with food; that he had never seen or heard of a disease that could be definitely established as due to ptomaine; that he had heard or read of people becoming ill or dying from ptomaine poisoning, "but not as the result of recent work, or work by men whom I considered knew what they were talking about"; that if this poison, as it ordinarily exists, was in the food which one ate, of sufficient quantity to produce death, it would be so obnoxious and taste so bad that no one would eat it; that when an individual is made sick and especially seriously sick, that illness is not due to the ptomaines, but to other products of bacterial action. Dr. Ives, another witness testifying for defendant, who said he had made a specialty of bacteriology and pathology, said that he never knew of any case where death had resulted to a human being from ptomaine poisoning. It is unnecessary at this time to refer to other evidence. [1, 2] Defendant contends that its peremptory instruction should have been given, because the physicians were permitted to state what caused deceased's death, as this was invading the province of the jury. We do not find such testimony in the record, where the doctors were asked or permitted to state in positive terms what caused de In ceased's death, except where defendant's counsel asked Dr. Munsch, on cross-examination, if he was certain as to what caused the death of Charles F. O'Connor. If de (232 S.W.) fendant's counsel asks questions of this character, or makes no proper objections to those asked by counsel for plaintiff, he cannot be heard to complain in this court on appeal; neither is there reversible error in witnesses giving evidence as to the general appearance of deceased prior to the attack from which he died. Lindsay v. Kansas City, 195 Mo. 166, 93 S. W. 273; Schwanenfeldt v. Street Railway Co., 187 Mo. App. 588, 174 S. W. 143; Winkler v. Terminal Railroad Association, 227 S. W. 625. Nor can we uphold defendant's contention that there is no substantial evidence to show that deceased died from ptomaine poisoning. The learned counsel for defendant insists that deceased came to his death from food poisoning, or in some other way than from ptomaine poisoning, contending that the evidence of Drs. Taussig and Ives shows that it would impossible for deceased to have taken sufficient ptomaines into his system to have caused death, under the circumstances detailed in evidence, and in their brief say: "Here, as in other cases, the law should keep pace with the advances made in other fields of learning." Under the facts disclosed by the record in this case, we do not think we would be justified in making the advanced strides in such rapid manner as learned counsel suggests. Three doctors testified that there is such a thing as ptomaine poisoning, and that in their opinion this caused the death of Charles F. O'Connor. Two doctors testified that under the facts disclosed at the trial this would be almost impossible. This made a disputed question of fact, which the jury was called upon to decide, and we are not prepared to say that this is a backward step in the administration of justice. Where eminent doctors disagree, as they did in this case, upon the question at issue, then the jury must decide that issue, which it did, and found evidently that deceased came to his death from ptomaine poisoning; and, there being substantial testimony to support this finding, this court will content itself by refusing to disturb the verdict of the jury, rather than to declare. as a matter of law that deceased could not have died from ptomaine poisoning, and thereby settle judicially this disagreement between members of the medical fraternity. [3] This policy provided for payment of the sum mentioned, to the beneficiary, if the deceased died of "injuries effected directly and independently of all other causes, through accidental means," etc. It has been held that death by ptomaine poisoning created liability under the terms of similar policies, and that the taking of ptomaine poi son, under such circumstances as here, was an accident within the meaning of such a policy. Johnson v. Fidelity & Casualty Co., 184 Mich. 406, 151 N. W. 593, L. R. A. 1916A, 475; United States Casualty Co. v. Griffis, 186 Ind. 126, 114 N. E. 83, L. R. A. 1917F, 481. [4] It would make no difference whether the ptomaine poison was in the ice cream, which deceased ate, or in the meat, peas, or other substance; if he took it into his stomach with any of the food products mentioned in the evidence and as a result died therefrom, it would be accidental poisoning, and the defendant would be liable. In addition to the cases above cited, we refer to the following: Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S. W. 1102; Beile v. Protective Association, 155 Mo. App. 629, 135 S. W. 497; Paul v. Travelers' Insurance Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758; Freeman v. Mercantile Mutual Accident Association, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Travelers' Insurance Co. v. Dunlap, 160 Ill. 642, 43 N. E. 765, 52 Am. St. Rep. 355; Railway Mail Association v. Dent, 213 Fed. 981, 130 C. C. A. 387, L. R. A. 1915A, 314. To so hold does not mean that the verdict of the jury can be sustained only by placing inference upon inference. It was an established fact that deceased was taken sick, and died, and from the manner in which he was taken sick, and the circumstances attending his last illness, it would appear from the testimony of the physicians that his death was caused by ptomaine poisoning, and we think this was a fair and reasonable inference based upon established facts. And from the fact that he was attacked in the manner in which he was, and it being shown that he partook of the food substances mentioned in the evidence, we think it a reasonable inference to be drawn from the same facts that the ptomaine poison was taken into the stomach some time during the afternoon or evening of August 24, 1916. Merkel v. Railway Mail Association, 226 S. W. 299. Other assignments of error we have examined, and find them without merit. The record is free from reversible error, and under the facts of this case it appears that the judgment is a righteous one. The Commissioner recommends that it be affirmed. 1 PER CURIAM. The foregoing opinion of NIPPER, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. ALLEN, P. J., and BECKER, J., concur. (209 Mo. App. 144) BANK, Intervener). (No. 16530.) (St. Louis Court of Appeals. Missouri. June 7, 1921. Rehearing Denied June 24, 1921.) 1. Judgment 883 (9)-No right to set-off where judgment is assigned. Where judgment against plaintiff was assigned before his claim against the assignor was reduced to judgment, that fact defeats the right to legal set-off. 2. Set-off and counterclaim 8(1)-Power of equitable set-off will be exercised to promote substantial justice. The power of equitable set-off will be exercised in all cases to promote substantial justice and rests largely in the sound discretion of the court. 3. Set-off and counterclaim 8(1)-Plaintiff held entitled to right of equitable set-off notwithstanding assignment of judgment. NIPPER, C. This is an appeal from an order sustaining respondent's motion to set off a judgment in favor of respondent against appellants. On July 17, 1914, the Stevens Motor Car Company obtained a judgment against respondent for the sum of $1,852.98. On March 8, 1917, respondent recovered judgment against the Stevens Motor Car Company for the sum of $4,276.65. On November 21, 1917, respondent filed an amended motion to set off the last-mentioned judgment against the judgment in favor of the Stevens Motor Car Company. The motion of respondent sets up the facts related above, and alleges that on March 6, 1917, the Waverly Sales Company, which became the Stevens Motor Car Company, pretended to assign the judgment against Ford to the Southern Commercial & Savings Bank, one of the appellants herein, but avers that said assignment was without consideration, and fraudulently made for the purpose of deWhere, on the day plaintiff's action against frauding the said Ford, and further alleging defendant went to trial, defendant assigned a judgment previously recovered against plaintiff that the Southern Commercial & Savings to a bank, which knew of the pendency of the Bank (hereafter referred to as the bank) action and that if judgment was recovered de- knew at the time of taking the alleged asfendant would be insolvent, plaintiff, having re-signment that respondent had filed suit covered a large judgment against defendant, is entitled to equitable set-off, though not to a legal set-off. 4. Evidence 43(3)-Appellate court will take judicial notice of affirmance of principal cause of action. against the Stevens Motor Car Company. Respondent asks that his judgment be set off, and credited with the amount of the judgment held by the Stevens Motor Car Company, and that execution issue for the balance due. Where, after rendition of judgment in his The Stevens Motor Car Company and the favor, plaintiff moved to have such judgment bank filed answers to respondent's motion, set off against a judgment in favor of defend-putting in issue the validity of the assignant against him, and the trial court, notwith-ment to the bank, and alleging that the judgstanding the pendency of an appeal, granted motion, the appellate court, having affirmed the ment of respondent against the motor car principal judgment, will, on appeal from the or- company had been appealed from, and that der of set-off, take judicial notice of its af- said cause was still pending and undeterminfirmance instead of reversing and remanding ed in this court and was not a final judg ment. the cause. 5. Appeal and error 1043(6)-Error in receiving deposition cured by placing of wit nesses on stand. Where the trial court admitted in evidence depositions of officers of the defendant as declarations against interest, and defendant placed such officers on the stand, the error, if any, was thereby cured. Plaintiff offered in evidence, as an admission, the deposition of one Kammerer, cashier of the bank, whose evidence, as shown by said deposition, was that the Stevens Motor Car Company, had been indebted to the bank for several years, and that at the time of the assignment it owed the bank $3,600. On the same day the assignment was made, the indebtedness was reduced to $2,150. The Appeal from St. Louis Circuit Court; Sam- $3,600 indebtedness was evidenced by one uel Rosenfeld, Judge. note, which had been renewed eight or nine months prior to the date of the assignment; that Mr. Stevens had always told them at the bank that when the judgment against Ford was paid he would use the proceeds of the payment to liquidate the debt of his company; that the assignment of the judgment was delivered to him at the bank by Mr. Stevens; that Mr. Stevens may have told him of the suit instituted by Mr. Ford against the Stevens Motor Car Company the day before the delivery of the assignment, but that he had not mentioned the matter on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) any prior occasion, He said that Stevens came to the bank and told him he could give the bank this assignment, and he informed Stevens that "we want the assignment if that's the best you can do," and at that time he was told that Ford had a case against the Stevens Motor Car Company. It appears that this judgment was assigned to the bank on March 5, 1917, and the assignment was made a matter of record on the next day. It appears from the testimony of the cashier of the bank, and of Frank E. Stevens who was connected with the Stevens Motor Car Company, that the bank had been pressing Stevens for this money, and agreed with him that if he would make a payment of $1,500 and assign this judgment to the bank as collateral, then he would be granted an extension of time for the payment of the remainder amounting to $2,150. It appears from the evidence of Frank E. Stevens that the Stevens Motor Car Company ceased to be a going concern about April 1, 1917. He states that at the time of the assignment he talked to Mr. Kammerer's attorney about the matter more than he did to Mr. Kammerer, and that at the time the judgment was assigned and the balance on the note renewed, the company was unable to pay the indebtedness in full. Respondent introduced the original files in the cases of Ford v. Stevens Motor Car Company, and also the files in the case of the company against Ford. Both Kammerer and Stevens testified on behalf of the appellants. On cross-examination, Kammerer, cashier of the appellant bank, stated that at the time of the assignment he knew that the Stevens of the assignment he knew that the Stevens Motor Car Company was being sued by Ford for about $5,000; that he knew that fact the day before the assignment was given; and that he also knew that if the judgment for $5,000 was secured against the Stevens Motor Car Company, it would not be able to pay its creditors in full, and that the assignment of the judgment was wanted so that the bank would come in first. Such other evidence as may be necessary will be referred to in the course of the opinion. signed to the bank; (4) error in the admission of depositions. [1] We will discuss the third assignment first, that is, Could respondent invoke the right to equitable set-off when the judgment against him had been assigned to the bank before his claim against the Stevens Motor Car Company had been reduced to a judgment? No legal right to set-off existed at the time the assignment was made to the bank, and ordinarily this would defeat respondent's right to set-off. Walton v. Catron, 125 Mo. App. 501, 102 S. W. 1058; Field v. Oliver, 43 Mo. 200. [2, 3] But in this case respondent invoked the aid of a court of equity, on account of certain equities which respondent had against this judgment at the time it was assigned to the bank, and accepted by the bank, with full knowledge on its part of his right to an equitable set-off. In Gay v. Gay, 10 Paige (N. Y.) 369, the chancellor said: 66 "*** The right to set-off does not always depend upon the statute, nor upon the question whether both demands are liquidated by judgment or decree. But if an equitable right of set-off exists, while the parties have mutual demands against each other, because the debt due to the party claiming the set-off is so situated that it is impossible for him to obtain satisfaction of such debt by an ordinary suit at law, or in equity, to recover the same, this court, upon a bill filed, will compel an equitable set-off of one debt against the other. And the insolvency of the party against whom the set-off is claimed is a sufficient ground for the exercise of the jurisdiction of a court of chancery, in allowing a set-off in cases not provided for by the statute, although the demands on both sides are not liquidated by judgment." In Warner v. Whittaker, 6 Mich. 133, 72 Am. Dec. 65, it was said: "No rule is better settled than that the assignee of a chose in action takes it subject to all equities existing between the debtor and creditor." justice, and rests largely in the sound discretion of the court. Hendrickson v. Brown, 39 N. J. Law, 239. There are cases in which the set-off against one judgment is allowed, where, in anticipation of an application to make the set-off, the assignment was made for the purpose of The assignments of error made by appel- defeating the right. Bloomstock v. Duncan, lants and upon which they seek a reversal 2 McCord (S. C.) 318, 13 Am. Dec. 728. of this judgment are: (1) That as Ford's The power of equitable set-off will be exjudgment against the Stevens Motor Car Com-ercised in all cases to promote substantial pany was pending in this court on appeal at the time the set-off judgment was rendered, the judgment attempted to be set off was not a final judgment, and therefore no right to set-off existed; (2) the appellant motor car company had a right to prefer its bona fide creditors; (3) that no right to set-off existed because Ford's judgment against the Stevens Motor Car Company was not in existence at the time the Stevens Motor Car Company's judgment against Ford was as The question of the right of equitable setoff by a motion is very ably discussed in Coonan v. Loewenthal, 147 Cal. 218, 81 Pac. 527. It was there said: "The insolvency of a debtor is one of the principal grounds upon which the intervention of a court of equity to grant an equitable setoff rests, and when such insolvency exists a |