That being so, then the legal effect of an unauthorized use of such a credit card for identification purposes; and the false making of a "credit sales slip," is not "evidence of indebtedness" to Montgomery Ward or anyone else for any debt due, but is in legal effect the perpetration of a personal fraud against the person to whom the credit card is issued. Cf. Magnolia Petroleum Co. v. McMillan, Tex.Civ.App. 1943, 168 S.W.2d 881; Jones Store Co. v. Kelly, 1931, 225 Mo.App. 833, 36 S.W.2d 681. In that aspect, any indebtedness as to which these "credit sales slips" may be related can only be to some contract between Montgomery Ward and the customer in whose name the "credit card" is issued, and the "credit sales slips" are not "evidence of indebtedness" themselves.
There are surprisingly few reported cases dealing with the question of a credit card owner's liability for its unauthorized use. In Jones Store Co. v. Kelly, 225 Mo App 833, 36 S.W.2d 681 (1931) there was evidence that the owner of the credit token (a coin in that case) had authorized the use of his token in making the purchase for which recovery was sought. The court said that if the credit token had been used wrongfully the defendant would not be liable.
ence in the case. Sec. 1915, Mo. R.S.A.; Grange v. C. E.I. Ry. Co., 69 S.W.2d 955, 334 Mo. 1040; Parrent v. Mobile O.R. Co., 70 S.W.2d 1068, 334 Mo. 1202; Seago v. N.Y.C.R. Co., 155 S.W.2d 126, 348 Mo. 761, reversed 62 S.Ct. 806, 315 U.S. 781, 86 L.Ed. 1188; Rosenberg v. Term. R. Assn. of St. Louis, 159 S.W.2d 633; Russell v. Johnson, 160 S.W.2d 701, 349 Mo. 267; Finley v. St. L.-S.F.R. Co., 160 S.W.2d 735, 349 Mo. 330; Brinkley v. U. Biscuit Co., 164 S.W.2d 325, 349 Mo. 1227; Hold v. Term. R. Assn. of St. Louis, 201 S.W.2d 958; Reardon v. F.W. Woolworth Co., 154 S.W.2d 373; Schoen v. Am. Natl. Ins. Co., 167 S.W.2d 423, affirmed in 180 S.W.2d 57, 352 Mo. 935; Young v. Wheelock, 64 S.W.2d 950, certiorari denied in Wheelock v. Young, 54 S.Ct. 527, 291 U.S. 676, 78 L.Ed. 1064; Neal v. Caldwell, 34 S.W.2d 104, 326 Mo. 1146; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562, 328 Mo. 1009, 81 A.L.R. 400; Brown v. Farmer Mtr. Co., 17 S.W.2d 615; McClure v. H.R. Ennis R.E. Inv. Co., 19 S.W.2d 531; Jones Store Co. v. Kelly, 36 S.W.2d 681, 225 Mo. App. 833; Robinson v. C.B. Q.R. Co., 38 S.W.2d 514; Pedigo v. Roseberry, 102 S.W.2d 600, 340 Mo. 724. (3) The court, having determined the propriety of stating the rule of falsus in uno, falsus in omnibus to the jury in instructions 6 and 7, asked by defendants determined in its own mind, before submitting the case, that material contradictory testimony has been given; so that when given, the credibility of the witnesses was then for the jury; and the Court erred in thereafter setting aside the jury's verdict after it had determined the credibility of the witnesses and the facts in the case. Bellovich v. Griese, 100 S.W.2d 261; Alexander v. Emmke, 15 S.W.2d 868; Farmers' State Bank v. Miller, 26 S.W.2d 863; Oliver v. City of Vandalia, 28 S.W.2d 1044; Pappas Pie Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; Marden v. Radford, 84 S.W.2d 947, 229 Mo. App. 789; Eisenbarth v. Powell Bros. Truck Lines, 125 S.W.2d 899, 235 Mo. App. 442, certiorari denied State ex rel. Powell Bros. Truck L
Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 458. (2) The submission of the case to the jury on plaintiff's instruction purporting to cover the whole case, which simply submitted plaintiff's theory, with no instruction covering defendant's theory, was erroneous. State ex rel. Jenkins v. Trimble, 291 Mo. 235, 236 S.W. 651; Sells v. Fireside Life Assn., 66 343 S.W.2d 956; Jones Store Co. v. Kelly, 225 Mo. App. 833, 36 S.W.2d 683; Smith v. Southern, 210 Mo. App. 293, 236 S.W. 413. McDonald, Bartlett Muldoon, Jesse McDonald, Daniel Bartlett and Thomas F. Muldoon for respondent.
contract offered in evidence was plaintiffs' own contract, but even if there were such prima facie showing, it was completely overcome by documentary evidence to the contrary, Darlington Lbr. Co. v. Railroad, 243 Mo. 224; Kazee v. Kansas City Life Ins. Co., 217 S.W. 339; Shaw v. Am. Ins. Union, 33 S.W.2d 1052; Waters v. Life Assn., 50 S.W.2d 188. (c) The plaintiffs were not entitled to recover on the bond sued on because they were neither material men, laboring men, nor mechanics, for whose benefit alone suit on the bond could be maintained. Lincoln Co. v. DuPont DeNemours Co., 32 S.W.2d 292. (d) There was a total failure to prove the allegation in the petition that plaintiffs "purchased the material" from the Dahlstrom Metallic Door Co. (7) Instruction 1 given to the jury by the court, at the request of the plaintiffs, is erroneous as submitting to the jury's determination a proposition or question of law. Paving Co. v. Surety Co., 238 S.W. 119; Henry v. Railroad Co., 282 S.W. 424; Jones Store Co. v. Kelly, 36 S.W.2d 683. (8) The jury wholly disregarded the evidence and ignored the instructions of the court both in their verdict on the plaintiffs' cause of action and on the second count of the defendant Clark's counterclaim, and the verdict should have been set aside on that account. Financial Co. v. Surety Co., 276 Mo. 183; Roman v. Boston Trading Co., 87 Mo. App. 186; Power Co. v. Coffee Co., 95 Mo. App. 412; Sec. 1002, R.S. 1929.
" See also Magnolia Petroleum Co. v. McMillan (1943 Tex.Civ.App.), 168 S.W.2d 881 and Goldfield v. Brewbaker Motors, 36 Ala. App. 152, 54 So.2d 797. In Jones Store Company v. Kelly, 225 Mo. App. 833, 36 S.W.2d 681, the court held that if the customer gave his charge account coin to a person, intending that the person could purchase on the customer's credit, the debt was the customer's debt. But that the customer is not liable if another, wrongfully, without the customer's knowledge, gains possession of the numbered charge account coin and uses it in making purchases.
Bennett v. Royal Union Mutual Life Ins. Co., supra; Horn v. Ownes (Mo.), 172 S.W.2d 591; Clapper v. Lakin, 343 Mo. 710, 123 S.W.2d 27; Griffith v. Continental Cas. Co., 229 Mo. 426, 253 S.W. 1043; Turner v. National Benevolent Society, 24 Mo. App. 463, 28 S.W.2d 125. (2) The court erred in giving plaintiff's instruction which purports to cover the entire case and authorize a verdict for plaintiff, but it entirely ignores the defenses affirmatively pleaded and supported by the evidence. Carroll v. Union Marine Ins. Co. (Mo. App.), 249 S.W. 691; Walker v. Bianchi et al. (Mo. App.), 276 S.W. 1044; Bouligny v. Metropolitan Life Ins. Co. (Mo.), 133 S.W.2d 1094; Griffith v. Delico Meat Products Co., 347 Mo. 28, 145 S.W.2d 431; Koury v. Home Ins. Co. (Mo. App.), 57 S.W.2d 750; Tobin Construction Company v. Davis et al., (Mo. App.), 81 S.W.2d 474; Jones Store Co. v. Kelly et al., 225 Mo. App. 833, 36 S.W.2d 681; Ormsby v. LaClede Farmers Mutual Fire Lightning Ins. Co., 98 Mo. App. 371, 72 S.W. 139. (3) The court erred in giving plaintiff's instruction submitting the issue of penalties and attorney's fees to the jury, because there was not any evidence that defendant vexatiously refused to pay plaintiff's claim, and a policy was never issued by the defendant. Section 6040, Revised Statutes of Missouri, 1939; State ex rel. John Hancock Mutual Life Insurance Co. v. Hughes et al. (Mo.), 152 S.W.2d 132; 1 Raymond, Mo. Instructions, Sec. 94, p. 78; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Grandgenett v. National Protective Ins. Assn. (Mo. App.), 73 S.W.2d 341; Graves v. Washington Natl. Ins. Co. (Mo.), 180 S.W.2d 805; Howard v. Aetna Life Ins. Co. (Mo.), 164 S.W.2d 360; Paetz v. London Guaranty Accident Co. (Mo. App.), 71 S.W.2d 826; State ex rel. Metropolitan Life Insurance Co. v. Shain et al. (Mo.), 66 S.W.2d 871; State ex rel. Continental Life Insurance Co. v. Allen et al. (Mo.), 303
App.), 276 S.W. 1044; Bouligny v. Met. Life Ins. Co. (Mo. App.), 133 S.W.2d 1094; Griffith v. Delico Meat Products Co. (Mo., Div. 1), 145 S.W.2d 431; Koury v. Home Ins. Co. (Mo. App.), 57 S.W.2d 750; Tobin Const. Co. v. Davis et al. (Mo. App.), 81 S.W.2d 474; Jones Store Co. v. Kelly et al. (Mo. App.), 36 S.W.2d 681; Ormsby v. Laclede Farmer's Mutual Fire Lightning Ins. Co., 98 Mo. App. 371. (5) The court erred in submitting the issue of penalties and attorneys' fees to the jury because there was no evidence that defendant vexatiously refused to pay plaintiff's claim.
App.), 276 S.W. 1044; Bouligny v. Met. Life Ins. Co. (Mo. App.), 133 S.W.2d 1094; Koury v. Home Insurance Co. (Mo. App.), 57 S.W.2d 750; Tobin Construction Co. v. Davis et al. (Mo. App.), 81 S.W.2d 474; Jones Store Co. v. Kelley et al. (Mo. App.), 36 S.W.2d 681; Ormsby v. Laclede Farmers Mutual Fire Maritime Ins. Co., 98 Mo. App. 371. (3) The court erred in giving plaintiff's instruction numbered "3" for the following reasons: (a) It requires the jury to find facts not supported by the evidence, namely; that even though the insured had disease and physical infirmity, he would not have died of disease or physical infirmity at the time he did except for the accidental injury.
(a) It attempted to cover the whole case without hypothesizing the necessary facts. Jones v. St. Louis-San Francisco Ry. Co., 226 Mo. App. 1152, 50 S.W.2d 217; Jones Store Co. v. Kelly, 225 Mo. App. 833, 36 S.W.2d 681. It required the jury to determine a question of law. Licklider v. Domain, 96 S.W.2d 641; Speak v. Ely Walker Dry Goods Co., 22 Mo. App. 122; Kliethermes Motor Co. v. Cole Motor Service, 102 S.W.2d 819; Cockrell v. McIntyre, 161 Mo. 59; Goodson v. Embleton, 106 Mo. App. 77. (4) The court erred in giving plaintiff's Instruction No. "II" which permitted the jury to find for the plaintiff if defendant's general agent "gave credit to Everett S. Hill and extended the time for the payment of said premium."