Davidson v. Frisco Railway Co. forward from the truck." This act of "pulling" was charged to his co-employees alone. This, in the face of the fact that plaintiff on the former trial had testified that he was pushing the casket at the time of the injury. He swore to that in accordance with the allegations of his petition. Not only so but the "pushing" by plaintiff was submitted in his first instruction at the first trial. In the trial involved in this appeal he swore in accordance with the allegation of the amended petition, and says that he was not "pushing." However, one of his witnesses, Bob Hutchins, stuck to the original petition, for upon cross-examination he says: "Q. And they lifted the south end, then he pushed from the north end, so as to push it on into the car? A. Yes. "Q. He merely held the north end there until they raised the south end and got it up on the south end, and he would push it in the car-was that the way you did it? A. When we started with it off the truck and the man in the car said 'Ready,' why Davidson was against it. When we turned the casket two or three feet with the end towards the car, that puts the end of the casket next to the car-door, and when the man said 'Ready,' Davidson had hold of it and pushed against it; and when the fellows raised it, it bumped while he was pushing against it." This appears from the additional abstract filed by respondent, which stands here unchallenged. From the same source the following vital testimony appears from the plaintiff. "Q. And did the casket stop then, too? A. When it bumped the car it did. The boys were about to have to let it down on the truck again, but they kept struggling with it and got it in the car." This is of importance on the question of negligence, when it is borne in mind that the amended petition eli-. minates the charge that defendant was negligent in failing to furnish help enough for the work to be done. That charge was in the original petition and was a part of the causal negligence then pleaded. Davidson v. Frisco Railway Co. For the details we refer to our former opinion in 229 S. W. 786. For all matters of importance in this hearing the foregoing will suffice for a statement of the case. Law of I. Much space in the brief is devoted to the question as to the extent our former opinion in this case will bind the court in this hearing. We shall not review the many cases cited. It suffices to say that such opinion is the law of the case, unless the pleadings have been amended so as to introduce new issues, or the evidence on the re-trial is substantially different, from the evidence considered upon the vital questions at the former hearing here. It should be further stated, however, that even if there is no substantial difference in pleadings and proof upon the re-trial, yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice. This is true whether we erred in the principles of law declared, or erred in the determination of what were the real facts of the case. This court should not stick in the bark upon such matters. We have corrected such alleged errors upon second appeal. [Mangold v. Bacon, 237 Mo. 1. c. 511, paragraph 2 on pages 511 et seq. and cases cited. See also dissenting opinion in the Mangold Case, 237 Mo. 1. c. 525.] II. We have taken the original files in the case when first heard here, and compared them with the files in the present record. At each hearing the petition contained two counts, but at the first hearing the plaintiff abandoned the second count, and submitted his case upon the Federal Employers' Liability Act. At the second Change in Testimony. hearing the case was taken from the jury upon a demurrer to the evidence. That the plaintiff "doctored" his testimony for this second trial there can be but little question. At which time he told the truth is another question. Respondent contends that under Steele v. Railroad Co., 265 Mo. 97, the plaintiff should be Davidson v. Frisco Railway Co. ent basis from this case. The contradictory statements in Steele's Case occurred in the same trial and hearing. Such statements stood as admissions in a case then being heard. It amounted to contradictory admissions at the single trial. In this, it is to be distinguished from the present case. The general rule is that where a plaintiff at one hearing testifies in a given way, and at a later hearing testifies to the opposite, it is for the jury to determine what credence it will give to the evidence given before them, as impeached by what such party said at the previous hearing. This contention of respondent cannot be upheld. III. The amendment of the petition as well as the amendment of plaintiff's evidence upon the matter of "pushing" seems to have grown out of a misapprehension of the exact point ruled by this court at our previous hearing. The matter of "pushing" was mentioned, but it was not the vital question in the case, or the question actually ruled. At most it could only go to plaintiff's alleged contributory negligence, and this is only a partial defense under the Federal statute. It only goes to amount of recovery. At the very outset of the opinion (the facts having been first outlined) BROWN, C., says that the sole question in the case is whether or not the employees of defendant, assisting plaintiff in the work, were guilty of negligence. He rules that their negligence, under the Federal Employers' Liability Act, would be the negligence of the defendant. Judge BROWN concludes by citing approvingly Neth v. Delano, 184 Mo. App. 652, this being the case said by the Springfield Court of Appeals to be in conflict with their opinion, and for which the case was then certified to this court. The opinion concludes that there was no negligence upon the part of the defendant shown by plaintiff's evidence. This is the sole vital matter ruled when the case was here at the former hearing. It is the sole question raised by the present petition. True it is the petition was amended, but this issue was the same as in the first petition. The evidence in the present Metropolitan Life Ins. Co. v. Underwood. record upon the one single issue of negligence or no negligence upon the part of the defendant, through its employees, other than plaintiff, is not substantially different in this record from the previous record. In fact it is rather stronger against plaintiff than before, because the plaintiff in the last trial made damaging admission. The following question and answer speak for themselves: "Q. And did the casket stop then, too? A. When it bumped the car it did. The boys were about to have to let it down on the truck again, but they kept struggling with it and got it in the car." This shows that these helpers of plaintiff were doing all they could. Note plaintiff's admissions: "The boys were about to have to let it down, but they kept struggling with it and got it in the car." This shows that these parties were doing all they could and the best they could. The matter of "pushing" by plaintiff was not a material element in determining defendants' negligence, through the conduct of these three helpers, when the case was here previously, nor is the absence of that fact particularly helpful to plaintiff now. The evidence in this record as to what these three helpers did is not different from what it was before. What they did was the thing from which the defendant's negligence must appear. The pleadings and evidence being substantially the same in both trials upon the one vital question, the present judgment should be affirmed, unless we conclude that we erred before. We are satisfied with our former ruling both as to law and facts. The present judgment is therefore affirmed. All concur, except Woodson, C. J., who dissents. METROPOLITAN LIFE INSURANCE COMPANY, Appellant, v. GEORGE M. UNDERWOOD. In Banc, November 20, 1923. 1. CANCELLATION OF INSURANCE POLICY: Character of Proof. In a suit to cancel a life insurance policy on the ground that it was obtained by fraud, the burden is upon the plaintiff; and the 2. 3. 4. Metropolitan Life Ins. Co. v. Underwood. evidence to sustain the fraud must be so clear, cogent and convincing as to leave no room for reasonable doubt in the conscience of the chancellor. -: : Presumption of Honesty. Fraud, conspiracy and falsehood will not be presumed without or against the evidence, but must be proven by convincing and cogent testimony by the party asserting it. While fraud may be proven by circumstances, yet if the transaction under consideration may as well consist with honesty and fair dealing as with a fraudulent purpose it will be referred to the better motive. : Fraud: Unusual Story: Consistent Throughout: Offered by Plaintiff. Defendant's story that he was captured by highwaymen on a public street, taken in an automobile to a railroad some distance in the country, robbed of what money he had, tied face downward to the track rail with barbed fence wire, that after they left he broke a part of the wires and worked his body to one side of the rail, but could not break the wires that held his left foot and left hand, and that a passenger train which came a few minutes later ran over his hand and foot, is an unusual story, but being consistent throughout and contradicted by no other witness and no other circumstance, and being in the form of a deposition, taken and introduced in evidence by plaintiff, as an admission, is not sufficient to sustain the charge that defendant voluntarily placed himself upon the track and tied himself to the rail in such a way as to cause the loss of one entire hand and one entire foot in order to reap at once the full benefit of an accident insurance policy issued to him only a few days previously, and is not suf ficient to meet the demands of the law which places the burden upon plaintiff to prove the fraud by cogent and convincing proof; but, being the only testimony on the point and being consistent throughout and having been offered by plaintiff as an admission, disproves such charge, and authorizes a judgment on his crossbill. : Indebtedness: Policy Sought by Company. The defendant, a hard-working middle-aged man, engaged in operating two or three public taxicabs, a straw-and-hay bailer and a restaurant and rooming-house in a good town, was heavily in debt, his property being mortgaged for about as much as it was worth; he did business with three banks, and at one of them, at least, his account was overdrawn, but his checks were uniformly honored, and he was not hard-pressed by his creditors or threatened with foreclosure or suit; in February he took out a life policy in an old line company, in May one in an accident company, on June 2d another in an accident company, and on July 11th was solicited |