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    ANNIE JAFFI v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. VERDICT: Against Physical Facts. Where two witnesses positively testify that, after the wheel of the car ran over the little boy’s foot on the rail,’ his foot somehow became entangled in the wheel or a portion of the car and he was dragged in that way for sopie distance while one of them held him up and tried to extricate him, the court will not hold their testimony incredible and declare the verdict against the conceded physical facts and contrary to reason, especially where one of them, a foreigner, says there were many things on the car there but she could not tell what they were, and none of defendant’s witnesses testify that there were no brakeshoes, rods, chains or other contrivances about the brake or wheel in which the boy’s foot could have been caught.
    2. -: -: Negligence: Kicking Dead Cars: No Watchman. Where there was sufficient evidence to sustain the material facts in the case, namely, that cars were left standing on the track in the street in a densely populated part of the city, and were kicked back without any notice or signal of any kind and without any brakeman or other person being at the rear end of the cars before they were placed in motion, and that when moved under such circumstances the little boy’s foot was caught at the rear end of the rear car and he was dragged under the car and killed, the court will not hold that the case should not have been submitted to the jury on the ground that the testimony for plaintiff was so radically opposed to the physical facts that it cannot be made the basis of a verdict.
    3. INSTRUCTIONS: Assumption of Fact: Negligence. An instruction which begins with, “If the jury find from the evidence,” and then proceeds to submit the facts which the jury must find before they can find for plaintiff, and says in reference to the running of the car which caused the injury “and that the running and management of its cars as aforesaid, if they were so run and managed,” etc., does not assume the existence of the facts stated, but does leave them to be found by the jury.
    4. -: Too Long. It is improper to send the jury to the pleadings to find the issues submitted to them, and an instruction which embodied the substantive facts which plaintiff was required to establish, those facts all being put in isue by’ defendant’s answer, is not too long.

      5. -: Misunderstanding of Issues: Going Between Cars. Where plaintiff’s case is based on defendant’s negligence in Melting back “dead” cars located on its track in a public street, in the midst of a dense population, without having a brakeman or other person present to warn children or other persons about to cross near the rear end of the “dead” ears, and thereby as plaintiff’s little son was on the track or about to cross, the cars, without any notice or warning, were kicked back over him, an instruction which specifically called the jury’s attention to defendant’s duty to have someone at the rear end of the “dead” cars to warn persons who might be in danger, when fortified by another for plaintiff which told the jury defendant “was not required to guard against per? sons under or between its ears” and by one for defendant which told them that plaintiff could not recover if the boy attempted to pass between or under the cars, is not liable to be understood as telling the jury that it was defendant’s duty to have some one present to warn persons not to pass between or go under the cars.
    6. -: Contributory Negligence: Little Boy. Defendant cannot complain that the court submitted the question of the contributory negligence of the six-year-old boy injured, for if error, it was in its favor.
    7. NEGLIGENCE: Right to Street. A child six years old has the same right to the use of a public street that the defendant railroad company whose tracks are located therein has.
    8. REMARKS OF COUNSEL: How Preserved. Remarks of respondent’s counsel in arguing a case to the jury, if not preserved in the bill of exceptions, are not before the appellate court for review.
    9. CONFLICT OF EVIDENCE. Where there is an irreconcilable conflict in .the evidence, and the jury resolved it in favor of the plaintiff, and her evidence was not such' as would authorize the appellate court to say it was opposed to all physical laws and utterly unworthy of belief, and no error appears in the instructions or rulings of the trial court, the judgment will be affirmed.
    Appeal from Jackson Circuit Court — Row. J. R. Stover, Judge.
    Arpíeme».

      Elijah Robinson for appellant. '
    (1) Under the undisputed evidence plaintiff was not entitled to recover, and the court should have directed a verdict for defendant. 1. Plaintiff’s theory of the case is disproved by the conceded physical facts; and the verdict is contrary to reason and ought not to be permitted to stand. Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Nugent v. Milling Co., 131 Mo. 258; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 680; Payne v. Railroad, 136 Mo. 583; Oglesby v. Railroad, 150 Mo. 188; Hook v. Railroad, 162 Mo. 598; Petty v. Railroad, 179 Mo. 687; O’Keef v. Railroad, 81 Mo. App. 386; Covell v. Railroad, 82 Mo. App. 180; Spohn v. Railroad, 87 Mo. 74; State v. Fannon, 158 Mo. 149; Spiro v. Railroad, 102 Mo. App. 250. 2. This verdict is against every reasonable probability that might result from the evidence, and the inevitable conclusion must be that it was the result, of partiality or prejudice on the part of the jurors, and a judgment based on such a verdict should be reversed. Jeans v. Morrison, 99 Mo. App. 208; Gage v. Trawick, 94 Mo. App. 307; Cook v. Railroad, 94 Mo. App. 417; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Bautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Spohn v. Railroad, 87 Mo. 74; Cannon v. Moore, 17 Mo. App. 92; Whitsett v. Ranson, 79 Mo. 258; Freiz v. Fallon, 24 Mo. App. 439; Empey v. Railroad, 45 Mo. App. 422; Walton v. Railroad, 49 Mo. App. 620; Glick v. Railroad, 57 Mo. App. 97. (2) The trial court committed error in giving plaintiff’s instruction 5. Said instruction, considering the language thereof, was 'calculated to mislead the jury. The plaintiff’s son did not have the same right to use the street that defendant had. Defendant had procured the right to lay its tracks in said street, and had the right to run its cars over those tracks, exercising, of course, reasonable care in doing so. Outside of its tracks defendant had no right to occupy said street, but upon its tracks in said street it had a right superior to that of plaintiff’s child, or any one else. The giving of said instruction, being calculated to mislead the jury, constituted prejudicial error.

      Gage, Ladd S Small and Sharp é Sharp for respondent.
    (1) Plaintiff distinctly testifies that the boy’s foot or shoe was caught, and that the boy was dragged, and that she followed him until the cars stopped, holding the boy and trying to extricate him, but was unable to do so. She saw many things at the rear of the car, but could not tell what they were, and could not tell just how the boy’s foot was caught and held. This was certainly positive testimony that there was something in the rear of that car, near the wheels, which caught and held the boy’s foot. Hessie Ray testified to the same thing. Mrs. Keating testified that when she first saw Mrs. Jaffi she was stooping down at the rear of the north car, over her boy. So did the policeman, Corrigan. Thus there was abundant evidence produced by plaintiff that there was something at the end of the car which caught the boy and dragged him south. And the absence of testimony and the suppression of testimony by defendant on this point also corroborates these witnesses and plaintiff. No witnesses for defendant — none of the railroad men who operated this car — testified that there was nothing at the end of the car in which the little boy’s foot could be caught, in the great struggle for life he must have made while his mother was trying to rescue him from death. It was immaterial how the boy’s foot was caught. The question was, was it caught? The eases cited by appellant are the very reverse of the case at bar. (2) The verdict is not against the weight of the evidence. As shown by the record, the verdict appealed from is the second verdict for plaintiff in this case. The first verdict was set aside by the lower court as against the weight of the evidence. The lower court, therefore, did not err in refusing to set aside the verdict appealed from, for that reason: 1st. Because under section 801, Revised Statutes 1899, a verdict cannot be set aside a second time for the reason that it is against the weight of the evidence. McFarland v. U. S. Assn., 124 Mo. 204. 2nd. Because the preponderance of the credible testimony was in favor of plaintiff. (3) Plaintiff’s instruction 5 is complained of because it told the jury that plaintiff’s child “had the same right” to use the highway that defendant had. This statement in the instruction is the law, and in no way misled the jury in the connection in which it is used. Jennings v. Railroad, 112 Mo. 268; Kennayde v. Railroad, 45 Mo. 255; Scullin v. Railroad, 184 Mo. 695; Rapp v. Railroad, 190 Mo. 161; Riska v. Railroad, 180 Mo. 168.
   GANTT, J.

This is an appeal from the circuit court of Jackson county. The action was commenced .on the twenty-second of June, 1901, and afterwards an amended petition was filed on December 17, 1901.

Plaintiff states that on the thirteenth of May, 1901, she was the mother of Harry Jaffi, a minor son six years of age, and that the father of said minor was dead, and that the said Harry Jaffi was never married; that on the thirteenth day of May, 1901, about 3:30 p. m., a train crew of the defendant company, consisting of Dick Addison and William Reed, engineer and fireman, and Lon Hayden and W. J. Thelan and Pone Whiting as brakemen, were operating an engine and string of cars on State Line street, a part of which is in the State of Missouri and in Jackson county. That said State Line street is a public street located in a densely populated portion of Kansas City, with tenement houses located on each side thereof, which were occupied by a large number of people, and many children were constantly on the street. That the engine attached to said train was on the south end thereof; that said train was. backed north on said central main line track, toward Central avenue; that when the north end of said train reached the vicinity of Central avenue and so that the north end of said train was about directly west and opposite the Jaffi house, the three cars farthest north were cut off and left standing on the central main line track of said State Line. That said train was then pulled about two hundred feet south and kicked some cars in onto one of the hay tracks, which is situated on the west side of the said main line track, and then said crew kicked a second bunch of three cars northward on said central main line track to and within a few feet of the first two of the three ears first kicked north as first described; that said crew then pulled a bunch of about five cars out from one of the hay tracks to the south, and onto the said central main line track, and then backed them northward against the second three standing farther south on said central main line track, and coupled onto them; that said crew then violently, negligently and suddenly backed said train northward against the first two or three ears standing farthest north on said main line track, which were then standing with the north end thereof northwest and opposite the plaintiff’s house, without sounding any alarm or giving any warning that said two or three cars standing farthest north were about to be bumped against and pushed northward, and without having any brakeman, watchman or other person on the north end of said north cars, or in a position to warn persons in danger of being run over. That while said north three cars were standing still and immediately prior to their being pushed northward, the said Harry Jaffi, the minor son of the plaintiff, attempted to cross said central main line track from the west toward the east and within a few feet of the north end of said north three cars, and while said minor was still in the State of Missouri, and atempting to cross said track, he was struck by the north end of said three ears, crushing and mangling his foot until the same became entangled in a portion of said cars, and that the agents and servants of the defendant then having all the ears on said main line track coupled together, suddenly started the entire train south, thereby dragging the body of said minor toward the south a distance of about one hundred and twenty-five to one hundred and fifty feet, when said train stopped and again backed toward the north, thereby running over the legs and body of said minor, killing him almost instantly; that the death of said minor was caused by the negligence of said defendant company in this, to-wit: First. That said defendant company and its duly authorized and acting servants and agents were guilty of negligence in that it pushed said three north cars northward, which caused the death of said minor, without having any watchman or brakeman upon the north end of said three north cars, or without having a brakeman, watchman or any person in a position to warn persons that were in a position of danger of the movement of said three north cars! Second. That said defendant company and its duly authorized and acting agents pushed said three north cars northward along said State Line street, without ringing any bell, blowing any whistle, or sounding any alarm whatever to indicate that said three north car's were about to be bumped and pushed toward the north, so that persons in places of danger might protect themselves. That said Harry Jaffi died from the injury received and occasioned by the negligence and unskillfulness of the officers, agents, servants and employees of said defendant company, while running and managing the said cars as aforesaid, and that by reason thereof, plaintiff has been deprived of the society, comfort, enjoyment and earnings of her said son, to the plaintiff’s damage in the snm of five thousand dollars, for which she prays judgment and cost.

„ To this petition, the defendant in its answer admitted that it was a corporation engaged in the operation of the line of railway described in the petition, and that on the day and at or near the place stated, an accident occurred whereby Harry Jaffi, the minor son of. the plaintiff, was killed, but denied that his death was caused by any carelessness or negligence on its part or that of its servants, agents or employees, and then made a general denial of all the other allegations in the petition, and for a further answer a plea of contributory negligence on the part of said Harry Jaffi and of the plaintiff his mother.

The cause was tried and resulted in a verdict for the plaintiff, which upon a motion for a new trial was set aside by the court on the ground that the verdict was against the weight of the evidence. The cause was then retried at the November term, 1903, and again resulted in a judgment for the plaintiff for five, thousand dollars. From that judgment the defendant appeals.

There is irreconcilable conflict in the testimony of the various witnesses, but the evidence on both sides' established that the plaintiff’s son, a boy about sixyears old, was killed by being run overby defendant’s cars on State Line street in Kansas City, Missouri, on the thirteenth of May, 1901. State Line street runs north and south between the States of Kansas and Missouri, and is divided by the State line and is located in what is known locally as the “west bottoms” in Kansas City and at the time of the accident it was occupied by the tracks of the Missouri Pacific Railway company, the defendant herein, and according to the evidence, was used as a yard for the making up of trains. ' The main track of the railroad is in this State, and some of the switches are on the Missouri side and some on the Kansas side of the line. On the Missouri side the street is thickly settled, and Mrs. Jaffi resided in the house on the east side of this street, into which she had moyed the day before, the said house being’ two hundred and fifteen feet south of the corner of State Line and Ninth streets. On the afternoon of May 13, 1901, a crew of the defendant company consisting of the engineer, a fireman and three brakemen, were engaged in switching freight cars on the defendant’s’tracks in said State Line street to and from a hay house located west thereof. A short time before the accident occurred in which Harry Jaffi was lulled, this crew had placed six cars, consisting of two strings of three cars each, on the main track in said State Line street, the north end of the north three cars being a short distance south of a point directly opposite the house in which Mrs. Jaffi resided and the north end of the other three cars was about a car length, more or less, south of the south end of the north three cars. It appears that after the crew had done some switching on the hay tracks, they ran the engine with five cars attached thereto, on to the main track south of the two- strings of cars, which had been left, as above described, on the main track in the street, and the engine, which was south of all these cars and headed north, pushed these five ears north and coupled on to the south string of three cars. At this point,- the evidence is directly contradictory. On the part of the plaintiff, Mrs. Jaffi testified that sh.e had just given the little boy a cup^ of water, and he complained that it was dusty or muddy, and went out into the street to throw it out. He was gone only a few minutes when she heard the noise of the train, and she stepped out to look.after him; she saw the cars were backing and she ran to him, and as she ran she saw the car hit him on his right leg and stop, she ran to him and caught him up, but his foot was caught in some way, and the train started forward to the south, and she followed holding the hoy up trying to disengage him. The train again stopped and humped backwards, throwing her down and the child under the wheels. The plaintiff was a foreigner and her account of the striking of the little boy and the catching of his foot in the brakes, was very broken and somewhat difficult to understand, but from her statement, it can be gleaned that the child was struck by the west wheel at the north end of the northernmost car of the train; that she ran to him and caught him by the shoulders and tried to pull him loose from the wheel, but could not do so, and he was dragged a distance of 125 feet or more, and when the cars stopped they suddenly backed north again and ran over the boy and also knocked her down.

Mrs. Keating, the witness for the plaintiff, who lived in the second story of the same house with Mrs. Jaffi, testified that at the time of the accident she heard some screams and ran to the front yard, caught up Mrs. Jaffi’s crippled child that was crying and calling for its mother, and ran out on the sidewalk and looked south but could see no one; the child was still crying in her arms, and she thought that perhaps the screams came from the cottage north of the house where she lived. She ran up the street and found that the screams did not come from that point. She then ran out into the street around the north end of the cars standing in front of the buggy housé and came down on the west side. There she discovered Mrs. Jaffi crouched down at the rear wheel of the north car. The witness then ran with the crippled child and left it with another child and ran back to Mrs. Jaffi, and found her bending over the boy Harry, who had been crushed and injured, and she took hold of her, Mrs. Jaffi, and undertook to force her back to her own gate and with the aid of some other women did so, but at the gate Mrs. Jaffi broke loose and ran back to' 'the wounded child. She then went to a policeman and afterwards went back to the scene of the accident; when she got there, the cars had been pushed back a little north of where they were when she went to Mrs. Jaffi. He was taken out from under the train right close to the frog in the track. Cross-examined on this point as to the moving of the car, she gave her reasons for saying it had backed up while she was gone, that when she went back she did not have to go so far south as she did the first time. They had not been moved very far, but' she said she paid very little attention to the exact distance as she had g’one there to help Mrs. Jaffi.

Another witness, Hessie Ray, testified she lived at 934 State Line street, and remembered the accident which happened to the little' Jaffi boy; it was about three o’clock in the evening; her house was on the west side of the street towards the south. She was. washing that day, and had come over on the east side of Ninth street where she got water; when she went after the water she did not notice whether there was any car in the street or not. She got the water and started home, coming from the north going south, and when she was ■ on State Line street on the north end of the cars, she saw the little boy throw out his water and the train backed on him. He had started back and got his foot on the track and the train backed and caught him pretty near in front of Mrs. Jaffi’s house. The car was standing still when the boy'started to cross the track, she. did not notice exactly where he was caught, she was seared herself. After the car caught the boy, it pulled south quite a ways and then bumped back and then stopped, and if they had not jerked the boy out as quick as they did it would have cut him in two'. His mother had hold of his arms and was hallooing. His mother held on to him until the train knocked her down and then another white woman ran up and dragged her and pulled her away and then a man pulled the child out from under the cars. She was asked, who reached the hoy first after the accident besides his mother, and she answered this white woman,'and then the colored boy ran in and jerked the child out. The white woman was Mrs. Keating. After Mrs. Keating took Mrs. Jaffi away, she saw the ears move twice. Just how the hoy was caught she could not say, hut he was caught in some manner near the rear wheel of the car. She also testified that there were two or three cars standing still further north in front of the buggy house on a switch.

Thomas Corrigan testified that he was police officer in Kansas City working on west Ninth street, at the time of the accident, and was on Ninth street, east, at the corner of State Line street, when a man told him that a hoy had been run over; that he came down to the southeast comer of State Line and Ninth streets, which he thought was about two hundred and seventy-five feet from the place of the accident; that from this point he could see the mother leaning over the child and there was no one else at the end of the car or in sight at that vicinity; that he went straight from the corner down to where the little hoy was, right down the street the nearest way; that there he saw blood on .the frog on the rail right at the frog; that when he got there Mrs. Keating was there and some colored people, and the foreman of the train crew came, up to ask him where he could find a telephone; that he saw Mrs. Keating have hold of Mrs. Jaffi, wanting to take her to the house, and she took her away from the child, hut that she had not taken her away when he left with the foreman. This evidence tended to show that the accident occurred at the north end of the north car, as the policeman, Mr. Corrigan, could not have seen Mrs. Jaffi from the southeast corner of Ninth street if she had been at the south end of the car and on the west side of it.

The defendant’s evidence tended to prove that the boy was struck by tbe north wheel of the second car from the north on the west side, and that he was pulled ont from under those wheels by a negro man named Pope, who testified for the defendant in the case, and that the cars stopped immediately after running over the boy’s leg and foot and were not moved again for a good while and not until after the child had been taken away by a police ambulance. The testimony of Pope directly contradicted the plaintiff’s testimony in the case. Nearly all the witnesses for the defendant testify to the finding of the child right at .that point between the first and second cars, and to the fact that the cars were not moved at all from the time the child was knocked down until he was taken away by the-police ambulance. They also testified that there were drops of blood on the south wheel of the north car, which was north of the place where the boy was run over, according to their testimony.

It was admitted by counsel for the defendant in open court that there was no brakeman on the top of the cars, nor was there any brakeman at the north end at the time the boy was injured, but that a brakeman was at the south end of the three stationary cars there.

W. J. Thelan testified for the defendant that he was one of the switchmen handling these cars; that the engine pushing the different cars came up the track from the south to the first three cars standing there, and the foreman Hildebrand made a coupling; that the engine and the eight cars then came on north until they struck the last three cars, when he himself coupled them; that the engine then pulled those cars back to the south until they were clear of what is called the hay switch, when the witness started to cut these three cars off and did pull the pin between them and the other cars; that just as he was pulling the pin, the cars at that time moving southwards, he heard Pope hollow, “Do not move these cars, you are running over something.” That he had already given the signal to the engineer to stop the cars and that they were never-moved after that at all until the hoy was taken to- the house. This witness says that when he heard Pope halloo, he jumped through the train and saw him pulling the child out at the rear of the second car; that he then jumped back immediately and gave the emergency signal and then told Hildebrand what had happened and then went south to talk to the engineer and tell him. He was asked, “Did you notice any blood on the rail? A. I noticed blood on the rail, yes, sir. Q. "Where was the blood with reference to the south wheel of the north car? A. It was south of it. Q. Did you notice blood on any of the wheels? A. Yes, sir, on the top of the south wheel of the north car.” This witness also testified that just before the accident, he went by the north end of these three cars and saw no one. On rebuttal it was shown that on two previous trials he had not so testified and the counsel for the defendant had previously admitted that no one was near the north end or on top of the car.

Hildebrand, the foreman of this switching crew, was called by the plaintiff and testified that when he found the little boy they had pulled him out from between the north car and the car next to it on the south. “Q. He was between the south end of the north car and the north end of the south car? Ans. Yes, sir. Q. Did you notice any blood there? Ans. Yes, sir. Q. Where was the blood? Ans. There was blood on the rail right between the two cars and blood on the top of the wheels, on the south tire of wheels on the north car.” He testified further that before coupling on to the north three cars he did not send any one of his crew back to the end of these north cars to see if everything was clear behind them in the street, but that it was a man’s place to see that it was clear. He did not see any one go back there; that he paid no attention to it. The counsel for the defendant objected to this last testimony on the ground that it was immaterial and it had been admitted that there was nobody back there at the time, that there was nobody on the top of the cars and nobody nearer than Mr. The-]an, who was three cars length from the north end of the cars.

John Davis testified for the defendant that he was* sitting on the east side of the street when the accident occurred; that he heard the child scream; that he looked under the cars and there was a boy lying there, and he saw a fellow take and jerk him and pull him out in a westerly direction; that he jumped over the bumpers between the north car and the car next to it, and saw Tom Corrigan the policeman standing there, and that Mrs. Jaffi came down there hollowing, “Oh my child, my boy” and then others came.

George Fleming for the defendant testified that he was sitting on the sidewalk on the street and heard the child scream; that he looked- under the box car just as the wheels stopped rolling, and saw him on the track between the north car and the south car, under the north tracks of the south car when he first saw him as he ran around the north end of the north car, and when he got around there Pope was pulling him out from under the car. He then went for a policeman, Thomas Corrigan; that he did not go back with him to the boy.

William Pope testified that he was the man who saw the boy run in between the north trucks of the second car and that the boy was knocked down and the witness pulled him out. That witness was within two or three feet of the boy at the time he ran in. His statement of it is that the accident occurred when the engine backed back and they had some more boxes on the south end. They backed back and bumped against these three boxes that were standing still and knocked the boy down. The train pulled up when they ran over his legs, and I grabbed him and pulled him out. He testified that Mrs. Jaffi was not there at all until two or three minutes after he had pulled the child out; that there was a crowd there when she got there.

John T. Moore testified for the defendant that he was sitting on the sidewalk on the east side of the State Line street; that he heard a child scream; looking in the direction of the train, he saw under the trucks the form of a man or a child and heard a man’s voice say, ‘ ‘ Stop the cars, you are running over a boy; ’ ’ that he went up around the north end of these cars, down on the west side to the junction between the first and second cars, and the boy was at the north end of the south car, the one that was connected with the north car; that the north car did not touch the boy at all, it was the north end of the south car, it was between the trucks that ran over him; that William Pope was the only one there; that after they had taken the boy out, Mrs. Jaffi first came upon the scene.

Lon Hayden testified that he was one of the switch gang operating these cars at the time of the accident; that the engine with five cars was pushed up and coupled on to' the second three cars, and then they were pushed up and coupled on to the north three cars; that when the coupling was made, the train moved very slowly and easy so that they did not jar the stationary cars or move them to amount to anything. After the north three cars had been coupled on, I heard some one halloo and ran up the track and saw a colored boy or man named William Pope pulling this boy from under the south end of the north car. I ran up there and by the time I got there, there were two or three colored boys there, they reached there before I did. There was no one else there at the time. Soon after I got there the little boy’s mother and another woman came. I noticed blood on the rail opposite to where Pope had the boy and also blood on the top of the south wheel of the north car. The cars were not moved from the time I' first heard some one halloo until the little boy was taken away.

Reed, the fireman, testified that he was starting to push the cars up to couple on to the other cars standing on State Line street, and the engineer stopped so suddenly he asked what was the matter, and the engineer said that from the signal someone was hurt. He went up to where the boy was lying and saw blood on the rail and on the south wheel of the north car.

Addison, the engineer, testified that he was in charge of the engine when the boy was hurt; that the cars had all been coupled together, and he then got the signal to pull back slow; that he did so, but could not. say just how far1; that he was looking back to see where the crew were and watching them because he knew that they would give him a signal to stop and directly he got the signal, he put on the air and stopped suddenly.

I. The chief contention of the learned counsel for the defendant is that the verdict in this case is against the conceded physical facts and is contrary to reason. There are numerous decisions of this court holding that where such is the case this court will reverse a judgment on that ground. There are many such cases and it is not at all necessary to make a list of them; the important matter is to determine whether this assignment of error is well founded. The petition alleged that the little boy was attempting to cross the said railroad track just north of the said stationary cars, and that these cars without any warning or notice whatever and without having any watchman or brakeman upon the north end thereof or any watchman or person in position to warn persons who were in the position of danger from the movement of the said cars, were violently and suddenly backed northward and struck the child and then were moved southward and dragged the body of the little boy whereby he was mangled and killed. Mrs. Jaffi, the mother, distinctly testified that the train was thus backed over the little boy and that his foot or shoe was caught in some way and he was dragged south, and that she ran to him and attempted to extricate him but was unable to do so. The negro woman, Hessie Eay, corroborated Mrs. Jaffi’s testimony, and Mrs. Keating testified that when, she first saw Mrs. Jaffi she was stooping down at the rear of the north car over her boy, and Mr. Corrigan, the policeman, testified to seeing them at that point. But it is earnestly insisted by the counsel for the defendant that this story of the mother and these wit-' nesses is absolutely unreasonable and incredible, first, because there was no evidence of any injury on his head or no evidence of a blow on his head, and as the boy was taller than .the bottom of the car, this necessarily would have appeared. But the main proposition as we gather it upon which this court is asked to reject this testimony as utterly incredible, is that there was nothing about the wheel of the car or in any way connected with the wheel or the other appliances that could have taken hold of the boy’s leg or foot and dragged him any distance. But this contention of counsel ignores the testimony of Mrs. Jaffi who said there were many things at the rear of the car, but she could not tell what they were, nor just how the boy’s foot was caught and held, and it is a significant fact that none of the witnesses for the defendant who were in charge of that train testified that there was nothing at the end of the car in the shape of brake shoes, rods, chains or other contrivance's connected with the brake in which the boy’s feet could be caught, and the sketch of the car made by the witness, Mr. Gableman, is confessedly not of the particular car which ran over the little boy, but simply an ordinary freight car that was standing on the track at the time he made the measurements of the Street. Moreover, the exhibit only shows the outline of the car, and the distance from the top1 of the brake to the top of the rail and from the top of the rail to the bottom of the car, and the distance between the wheels. On cross-examination, Mr. Grableman stated that his diagram did not purport to represent the car that ran on the boy, and that his diagram did not show the crossbars or other contrivances connected with the brake. He did not make a picture of the rear end of the car so as to show the rods, crossbars and chains and shoes and other things connected with the brake, but simply a general outline of the car. That he was not instructed to show all of these things. He testified further that the distance from the Jafli house to the east rail of the railroad track was twenty-three feet and three inches and that the west rail would be practically five feet more or twenty-eight feet and three inches. Counsel for the defendant insists that our common knowledge alone would teach us that if the wheel of the car when bumped northward ran over the child’s foot on the rail and then started again southward, the wheel would have rolled off of his foot and left him in that position, but in the absence of all knowledge as to- what the contrivances were at the end of that car, and of what they consisted, and confronted with the positive evidence of two witnesses whom the jury must have believed and credited in order to have found the verdict for the plaintiff, we are not prepared to say that it was impossible for the boy to have been caught and dragged, nor is it strange that the mother under the circumstances, even if she could have spoken English intelligently, could not tell just how the little boy was caught; to her the horrifying fact was that he was caught, and it is not to be wondered that she could not definitely describe what it was that held1 him.. But counsel say that if her evidence was true that there was something about the appliances that caught the boy’s shoe or stocking, the efforts of the mother would have been sufficient to have extricated him. We do not think this is at all self-evident. How much strength or how much judgment she exhibited in attempting to pull the child out as the car moved and she followed, we can only tell from her testimony and the evidence of the other witnesses who saw it and who said the mother herself was knocked down by the sudden backing of the train. Two juries have concurred in finding that the boy’s foot was caught and that he was dragged as testified to by the witnesses and the learned circuit court judge who heard this case on the last trial has given it his approval. In our opinion, the case is widely variant from the class of cases in which this court has held that certain physical facts disproved and controverted the oral testimony of witnesses, and that those cases are not applicable here.. Discrepancies are also pointed out under this head by the learned counsel for the defendant, discrepancies which were fair and just matters of comment and argument before the jury, but these were matters for the jury to settle. That these women became excited and may have got some of the facts mixed, or may not be able to explain each occurrence in its natural order and sequence, in view of the affecting spectacle of this little child being crushed, is not at all strange.

As to the material fact, to-wit, that the car was kicked back in the public highway without any notice or signal of any kind and without any brakeman or other person being at this north end before this car was placed in motion on the street in front of a densely populated district, and that the boy’s foot was caught and that he was dragged under the car, there was sufficient evidence on which to submit the case to the jury. Indeed, as to the negligent act of kicking these cars back on a public street without any warning of any kind and without having any one there to warn persons who might be passing along this street, there is no-dispute ; this was conceded by the learned counsel for the defendant on the trial, and while it is true that one of the witnesses, who was one of the switching crew, undertook to say that he had been around there just before the train was moved, it was shown that he had twice testified in the case before, and had never made any such claim before. His testimony on this point cannot be held to have affected the clear and solemn admission of counsel that the company had no' brakeman or other person at the north end of those stationary cars when confessedly they were moved back without any signal. It is absolutely impossible for this court to reconcile the testimony of the various witnesses, but the conflict is no more marked between the witnesses of the plaintiff and the defendant, than it is between the witnesses for the defendant itself. For example, the witness William Pope, who testified to have seen the accident, testified that he saw the little boy run between the trucks of the second car; that he was knocked down, and that he, witness, pulled him out, but his statement is that the train was then backing back when the boy was injured, whereas all the train men concur in saying that they had coupled on to these north three cars and were pulling them south when they heard the cry that they were running over a boy. Of course this testimony is directly contradictory to that of the plaintiff and her witnesses, but it was for the jury to weigh this evidence and credit or discredit the various witnesses. The witness Moore for the defendant testified that the north car did not touch the boy at all, it was the north end of the south car, and other witnesses for the defendant testified positively that the train did not move after the boy was struck and not until he had been removed to the hospital. And yet all of the crew testify that they found blood on the top of the south wheel of the north car and on the track south of it, and this could not have been true unless this south wheel of the north car had run over the boy or over his blood on the track going north, and in this manner corroborated the plaintiff and her witnesses to the effect that the’ car did move after Mrs. Keating first took Mrs. Jaffi away from the scene. But as already said, these were all matters for the jury to weigh in reaching their conclusion as to how the little boy was hurt and which car struck him and which of the witnesses in their opinion correctly and truthfully detailed the occurrences which certainly resulted in the death of the little boy. We are not in a position to say that this case should not have b¿en submitted to a jury on the ground that the testimony for the plaintiff was so radically opposed to the physical facts that it cannot be made the basis of a verdict.

II. Counsel challenges the instructions for the plaintiff. First it is said that instruction number one assumed the existence of facts stated and did not leave them to be found by the jury. This objection is not tenable. The instruction begins with the words, “If the jury believe from the evidence,”- and then proceeds to submit the facts which the jury must find before they can find for the plaintiff, and in reference to the running of the car said, “and that the running and management of its cars as aforesaid, if they were so run and managed, ’ ’ etc. And in this manner the- facts were all submitted to the jury and not assumed.

The objection as to the length of the instruction, we think is without merit, for although the counsel for the defendant admitted that there was no one on the top of the rear car or near the end of it to warn pedestrians that the train was about to be moved backward suddenly, still one of the defendant’s witnesses after-wards testified that he was near the end of the car. The plaintiff had proved, and the burden was upon the plaintiff to prove the substantive facts alleged in her petition as the answer of the defendant put all those facts in issue, and moreover the defendant’s own instruction number one required the jury to find the existence of the acts of negligence alleged in the petition. We have often ruled that it was improper to send the jury to the pleadings to find the issues to be submitted to them, and we think the instruction for the plaintiff therefore is not subject to this criticism.

The further objection to this instruction, that it was calculated to cause the jury to understand that it was the duty of the defendant to have some one in such a position as to see and warn persons who might be in positions of danger not merely at the north end of the stationary cars but those that might be between the cars or under the cars or elsewhere in places of danger, we think is clearly without merit. The plaintiff’s instructions specifically called the attention of the jury to the failure to have a watchman or brakeman at the north end or upon the ground near such north end so as to see and warn persons and children, and the whole of the plaintiff’s evidence tended to prove that it was the failure to have the watchman at the north end to warn the little boy, which the evidence showed was on the track north of the north end of said stationary cars. Standing alone, it could not possibly have mislead the jury as to the duty of the defendant. But the jury were not left in any doubt on this point, for in the third instruction given for the defendant, the court told the jury that the defendant had a right to move its cars back and forth over said tracks and State Line street, and was not required to keep any lookout for persons under or between its cars, and if deceased, Harry Jaffi, either went under the cars or attempted to pass through between them either while they were moving or standing still, without the knowledge of the employees of the defendant, and the accident was caused by his going under the cars or attempting to pass between them, the plaintiff could not recover. And the court repeated this to the jury in the fifth instruction given for the plaintiff, wherein it told the jury the defendant “was not required to guard against persons under or between its cars.”

III. Instructions three and four for the plaintiff are also assailed, but wherein they are incorrect is not pointed out by the learned counsel. Instruction number three submitted to the jury the question of contributory negligence of the mother in the usual and orthodox way, -and number four submitted the question of the contributory negligence of the little boy himself. Certainly the defendant cannot complain that the court submitted the question of the little boy’s contributory negligence to the jury as it was too favorable, if anything, to the defendant.

IV. Instruction number five for the plaintiff is also assigned as error. That instruction is. as follows: “The court instructs the jury that the place where the accident happened was a public street, and. that defendant did not have an exclusive right for the purpose of making up its trains or switching its cars, and that the public, including plaintiff’s child, had the same right to use the highway as the defendant had, and that defendant’s servants in the movement of its cars upon said street had no right to assume that the way was clear, but were bound to exercise ordinary care before moving such cars to ascertain and discover whether any person upon the street might be injured by such movement, but was not required to guard against persons under or between its cars.” Counsel asserts that the plaintiff’s son did not have the same right to use the street that the defendant had, that defendant had a right superior to that of the plaintiff’s child or any one else on its tracks. It is too plain for discussion that the little child of plaintiff was not a trespasser upon the public highway, but had an equal right to that of the defendant to the use of the street. [Jennings v. Railroad, 112 Mo. 268; Kennayde v. Railroad, 45 Mo. 255; Scullin v. Railroad, 184 Mo. 695; Rapp v. Railroad, 190 Mo. 161.]

Y. Again, it is insisted that the judgment of the trial court should be reversed because of statements made by counsel for the plaintiff in his closing argument. As there is nothing in the bill of exceptions showing-the alleged improper remarks of the counsel for the plaintiff, they are not before this, court for review. This has been so uniformly ruled by this court that it is no longer open for discussion.

The instructions given for the defendant were all that the law would have justified and those for the plaintiff were such as have often received the approval of this court: The only question was one as to the evidence of how the boy came to receive his. injuries and consequent death. As already said, there was a sharp conflict, indeed an irreconcilable conflict ini the evidence, and the jury resolved that issue in favor of the plaintiff, and in our opinion there was no such state of evidence on behalf of the plaintiff as would authorize this court to say that it was opposed to all physical laws and was utterly unworthy of belief. As the case was properly submitted to the jury under correct instructions and the verdict was for the plaintiff, the judgment must be affirmed, and it is so ordered.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    NICHOLAS M. BELL v. PEPER TOBACCO WAREHOUSE COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. EMPLOYMENT: Salary Fixed After Service Rendered: Continuation. After plaintiff had been in defendant’s employment as manager for three full years the board of directors adopted a resolution fixing his salary for the first year at one thousand and five hundred dollars, for the second year at one thousand and eight hundred dollars and for “the present year at two thousand and five- hundred dollars.” Eeld, that, the resolution having reference only to past services, the continuation of plaintiff in the samé service after said resolution was adopted raised no presjimption • that the services .thereafter for twelve years rendered were rendered upon the same terms as for the third year of plaintiff’s employment.
    t. -: -: ———: Express Contract: Recovery. And plaintiff having sued on an express contract between himself and defendant, by which he was employed as manager at a salary of one thousand and five hundred dollars for the first year, one thousand and eight hundred dollars for the second year, two thousand and five hundred dollars for the third • year, and two thousand and five hundred dollars for each of the twelve years thereafter, and no contract being shown beyond said resolution, which by its terms refers to past services then already rendered, he cannot recover. He can only recover for the services rendered after the adoption of said resolution upon an implied contract for their reasonable value, upon a quantum meruit.

    3. -: -: -: -: -: Vice-President and Director. Where plaintiff sues upon a special contract to pay him a fixed salary, and fails to establish such contract, he cannot recover, whether he be vice-p'resident and a director of defendant corporation or not. But where there is evidence tending to show that the services rendered were outside the scope and line of his duties as director, and that they were rendered with the understanding by the officers of the company that they were to be paid for, he may, in a quantum meruit, recover the reasonable value thereof.
    4. -: — : Salary As Public Officer. A defense that plaintiff while he was manager of defendant corporation held a public Office and received a salary therefrom and that any contract he held with said company for a salary was against public policy and should not be recognized by the courts, should be pleaded in order to be available.

      Appeal from St. Louis City Circuit Court— Hon. H. D. Wood, Judge.
    Reversed and remanded.

      Klein é Hough for appellant.
    (1) There is no evidence in the record of any express contract between plaintiff and defendant relating to his employment as manager, or relating to- the amount of his salary after the 1st day of May, 1892. (a) The evidence and especially the account of the plaintiff on defendant’s books kept by plaintiff himself negatives any such express contract, (b) The evidence clearly shows that aside from the resolution of June 9, 1892, there is no- entry in any of defendant’s books making any reference to, or giving the plaintiff credit for, or charging the defendant with any salary on plaintiff’s account; and the evidence shows that plaintiff never made any claim therefor until shortly before the institution of this suit. (2) Plaintiff being a director and vice-president of the defendant company is not entitled to recover any compensation for services rendered as manager unless such compensation has been fixed by a by-law or resolution of the corporation before the services were actually- rendered, or unless such services were entirely outside of the line of his duty as director and vice-president, and were performed at the instance of defendant’s officers, whose powers were of a general character, and under such circumstances as to raise a fair presumption that the parties intended and understood that they were to be paid for. Bennett v. St. Louis Car Roofing Co., 19 Mo. App-. 349; Besch v. Western Carriage Mfg. Co., 36- Mo. App. 333; Pfeiffer v. Lansberg Brake Co., 44 Mo-. App. 67; Rose v. Carbonating Co., 60 Mo. App-. 32; RemRemmers v. Se-ky, 70 Mo. App. 364; Beach v. Sto-uffer, 84 Mo. App. 395; Taussig v. Railroad, 166 Mo. 33; Wagner v. Edison Electric Ulum. Co., 177 Mo. 62. (3) The resolution of the directors of June 9', 1892, related to services rendered by plaintiff prior to that time, plainly the services rendered up to May 1, 1892. This, resolution does not relate to or embrace any services to be rendered thereafter, and is therefore no evidence of any express contract to pay plaintiff a definite sum for services rendered thereafter.

      Joseph 8. Lcmrie for respondent.
    (1) The resolution should have read and should now be construed as reading, “for the past and present year twenty-five hundred dollars.” However, should the resolution be taken as it stands and construed literally, the legal effect, for the purpose of fixing the salary of the manager at twenty-five hundred dollars for that year and the succeeding years of his service without notice of any change in the terms of service, would be the same. If, on the other hand, by the term “present year” was meant the third year, and the board intended thereby to fix the compensation of manager for the third year at twenty-five hundred dollars, a promise to pay him the same compensation for the succeeding years during which the warehouse company employed him as manager, was equally implied, in the absence of any notice to the contrary. When the board of directors fixed plaintiff’s salary at twenty-five hundred dollars, and continued Ms employment in the same capacity for succeeding years without notice of any change, there was an implied promise on the part of the company to continue said salary during such service. Wood, Master and Servant, sec. 96; 20 Am. and Eng. Ency. Law (2 Ed.), 16; O ’Hara v. Mfg. Co., 2 N. Y. City Rep. 158; Ins. Co. v. Barbar, 93 N. E. 1024; Farmers’ Loan & Trust Co. v. Railroad, 152 N. Y. 251; Railroad v. Owen, 121 Ala. 505; Tatterson v. Mfg. Co., 106 Mass. 56; Crane Bros. - Co. v. Adams, 142 111. 125; Rose v. Carbonating Co., 60 Mo. App. 28. . (2) It is beyond dispute that it was intended and understood between the parties that his services as manager were to be paid for, and the fact that plaintiff in June, 1892, while manager, accepted five shares of stock and consented to become a director and vice-president of the company, cuts no figure in the ease. It cannot be said that it was expected by either party that plaintiff, by reason of having become an officer of the corporation, would not continue to' be compensated for the performance of the arduous and exacting duties attaching to the situation of manager, and which were entirely beyond the scope of his duties as director and vice-president. Taussig v. Railroad, 166 Mo. 28.
   BURGESS, J.

This is a suit to recover $18,684.87 alleged to be a balance due plaintiff on account of salary as manager of defendant from May 1, 1889, to February 15,1904, at the rate of one thousand five hundred dollars for the first year, eighteen hundred dollars for the second year, and twenty-five hundred dollars for the third year, and at the rate of twenty-five hundred dollars per year from May 1, 1892. The petition originally contained two counts, the first upon an alleged contract, and the other upon quantum meruit; but the plaintiff, after defendant’s motion for nonsuit at the close of plaintiff’s case had been overruled, and before defendant had begun the introduction of its evidence, dismissed as to the second count, electing to stand upon the alleged contract alone.

The answer to the first count admits defendant’s incorporation:, and that plaintiff was its manager for three years, from May 1, 1889, but alleges that he had been paid in full for his services as such manager for said period, and denies all other allegations of said count. Further answering, defendant says that if plaintiff did act as manager after the expiration of said three years, he was a director and vice-president of the corporation, and neither by the charter or by-laws, nor by any action of the board of directors, nor by an agreement between him and the board, was he entitled to receive any remuneration for such services. Defendant, by way of counterclaim, prayed judgment against plaintiff for four thousand three hundred dollars, which it alleged to be the reasonable rental value of a portion of defendant’s warehouse at Twelfth and Market streets in the city of St. Louis, which defendant alleged plaintiff occupied as excise commissioner of the city of St. Louis from July 1, 1893, to January 31, 1897, a period of forty-three months, at one hundred dollars per month. Defendant further alleged that its books were in the sole charge of plaintiff, and none of defendant’s officers except plaintiff knew until after this suit was brought that said rent had not been paid.

The reply is a general denial, together with a plea of the Statute of Limitations as to said counterclaim.

A jury was waived, and a trial had before the court, resulting in a judgment in favor of plaintiff for the amount sued for, with interest from the date of suit, aggregating $19,394.49, and in'favor of plaintiff’ on the counterclaim, from which judgment defendant appeals.

The evidence showed that plaintiff had been in business in St. Louis for many years prior, to 1889, and was experienced in the tobacco business. In the year 1888, being then superintendent of foreign mails of the United States, at a salary of three thousand dollars per annum, with office in Washington, D. C., he married the daughter of Christian Peper, then president of the defendant company, a Missouri corporation, doing a general tobacco warehouse and commission business at Twelfth and Market streets, in the city of St. Louis. Tn April, 1889, plaintiff resigned his said position, and returned to St. Louis, his return being at the request of Christian Peper. On May 1, 1889, plaintiff became manager of the defendant company, with full control of the business. The company at that time was doing no business at all except storage, and this on a very small scale, deriving an income therefrom of about sixty dollars per month. The working force consisted of a superintendent, with a salary of eighteen hundred dollars per year; a bookkeeper with a salary of one thousand five hundred per year, and three or four laborers. Plaintiff discharged the superintendent, and at his request the office of superintendent was abolished by the board of directors, plaintiff as manager assuming such duties. Other changes were made by him for the purpose of decreasing the expenses of carrying on the business. As a result of plaintiff’s management the storage business was largely increased, and the buying and selling branch of the business revived, and at the end of the first year, there was a net profit of ten thousand six hundred dollars. The business continued to increase under plaintiff’s management, and Christian Peper transferred to him five shares of the warehouse company’s stock, and caused him to be elected director and vice president on June 2, .1890. The said five shares were immediately afterwards transferred back to Christian Peper. No definite arrangement had been made with plaintiff as to salary when he entered into the employ of defendant ón May 1, 1889', but during the three following years he had drawn and charged himself on the books of the Warehouse Company with such sums as he needed from time to time. The amount thus drawn for the first year was nine hundred dollars; for the second year, one thousand five hundred and fifty; for the third year, one thousand six hundred and seventy-five dollars. Such was the situation when, at a meeting of the board of directors, held June 9, 1892, “on suggestion of tbe president, a motion by F. C. P'eper, seconded by C. Peper, Jr.,.to compensate N. M. Bell, tbe manager, for the first year a salary of one thousand five hundred dollars; for the second year, one thousand eight hundred dollars, and for the ‘present year,’ two thousand five hundred dollars, was carried,” as appeared by the minute book of the defendant company. At that time the directors of the company were Christian Peper, Charles G-. Peper, Christian Peper, Jr., and N. M. Bell, and it would appear that Christian Peper owned all the stock of the company except such as was owned by his said sons. It appears from the evidence that Christian Peper treated the warehouse company property as his own. He was at that time, and had been for years, engaged in the business of manufacturing tobacco, and had an account on his books with the Warehouse Company, wherein he charged and credited as the case might be the cash advanced for, and received by him from, the warehouse company.

When the year ’commencing May 1, 1892, expired plaintiff’s account on the books of the warehouse company showed that during that year he had drawn sums aggregating $2,184.50'. Nothing was said to him by Christian Peper or anyone else in behalf of the corporation at the expiration of said year, or at any other time, as to salary, and he remained in the employment of the Warehouse Company as manager until February 15, 1904. The only reference to “salary” is in the above-quoted resolution from the minute book of the ■ company; but it would not appear that plaintiff in any year, from first to last, drew as much as two thousand five hundred dollars.

The following summary, attached to plaintiff’s petition, shows the aggregate amount of cash drawn by him each year during his service as manager:

Year ending May 1, 1890.........$ 900.00

Year ending May 1, 1891..........• 1,550.00

Year ending May 1, 1892.........., 1,675.00

Year ending May 1, 1893.......... 2,184.50

Year ending May 1, 1894.......... 1,119.05

Year ending May 1, 1895..........

Year ending May 1, 1896..........

Year ending May 1, 1897.-......... .90

Year ending May 1, 1898 .......... 467.80

Year ending May 1, 1899.......... 1,447.35'

Year ending May 1, 1900......... 1,740.00

Year ending May 1, 1901.......... 1,260.00

Year ending May 1, 1902.......... 1,200.00

Year ending May 1, 1903.......... 1,350.00

From May 1, 1908, to Feb. 15', 1904,

(nine and- one-balf months).. 1,700.00

$16,594.60

Plaintiff introduced in evidence the minutes of a meeting of the board of directors of defendant company of date June 6, 1894, which recited that the report of “N. M. Bell, manager,” had been submitted by him to the board and ordered filed. This was- the first meeting of the board after the said meeting of June 9,1892.

From the commencement of plaintiff’s management, he, by direction of Christian Peper, turned over to the latter, daily, all the cash receipts of the company, and at short intervals, about once a week or oftener, as he required money to pay bills and operating expenses, he would submit to Christian Peper a statement, on the printed letter head of the company whereon was printed the name of “Nicholas M. Bell, Manager,” and make an order or requisition on Christian Peper for the amount of cash needed for operating expenses. Said orders were always promptly honored by Christian Peper, and out of the cash thus received for operating expenses plaintiff was accustomed to take, from time to time, on account of salary, such sums as he needed, and the same would, by his direction, be charged by the bookkeeper of the company to plaintiff’s account on the books of the company. This continued until March, 1902, when Christian Peper organized his manufacturing business into a corporation known as the Christian Peper Tobacco Co., of which he became president, and then the account of the defendant Warehouse Company was transferred by Christian Peper to the Christian Peper Tobacco Co., and thereafter, by his direction, the cash receipts of the Warehouse Company were turned over to the Christian Peper Tobacco Co., and the orders and requisitions of plaintiff, as manager, for money, were made upon the Christian Peper Tobacco Co., and plaintiff continued, as before, to take therefrom such sums, as he needed, and have the same charged to his account on the books of the Warehouse Company.

It also appeared that during plaintiff’s management he turned over to Christian Peper as profits of the business, after deducting several thousand dollars expended by way of repairs and operating expenses, including amount drawn by plaintiff for his own use, the sum of ninety thousand dollars in cash, but that from the year 1900 on, owing to the fact that the various tobacco factories which had been profitable customers of the Warehouse Company had been absorbed by the tobacco trust, the business of the warehouse had declined, and its principal business consisted in the storage of tobacco owned by Christian Peper. About this time plaintiff wished to resign as manager and go into other business, and so expressed himself to Christian Peper. A conversation on the subject between plaintiff and Christian Peper was testified to by Charles G. Peper, a son of Christian Peper, and one of the directors of the Warehouse Company. Such testimony is as follows:

Q. What was the substance of the conversation? A. Well, Mr. Bell told'him — he says, “Father you ought to do something with that warehouse property as it does not pay to run it.” He says, “Now, Nick,” he says, “don.’t worry about that; you stay there. I put you there; now stay there, because I can do nothing with that warehouse property until I get a place to put my tobacco that is now in the warehouse, — that was in the warehouse at that time — and then after I can get some place to put the tobacco that is in the warehouse, I will see what I can do with that property.”

Q. Well, what, if anything, did Mr. Bell say to him about leaving? A. Mr. Bell was talking to him two or three times about leaving.

Q. What did Mr. Peper say about that? A. He didn’t want him to leave. He said, “Stay right there, Nick.”

Q. And he told him to stay, right there? A. He says, “I’ll tell you when to quit.”

Christian Peper died on September 26, 1903, and his son, Frederick C. Peper, succeeded him as president of the Christian Peper Tobacco Co., and assumed control of the financial affairs of the Warehouse Co. In February, 1904, Frederick, as executor of Christian Peper, deceased, sold the property of the Warehouse Company under a deed of trust for more than two hundred thousand dollars in favor of Christian Peper, and the Warehouse Company went out of existence. When plaintiff, then, applied to Frederick O. Peper for a settlement of his salary, he was referred by Peper to Mr. Galt, his attorney, who repudiated the claim, whereupon plaintiff brought this suit. -

It was shown by the testimony that plaintiff was, from June 1, 1893, to January 31, 1897,.excise commissioner of the city of St. Louis, and occupied during his term of office a portion of the Warehouse Company building as his office. Hpon this subject plaintiff testitied that, after receiving his appointment as excise commissioner, he, with the assent of the Warehouse Company, fitted up a corner of the warehouse on the first floor for his office. He. also stated that the duties of such office in no way interfered with the performance of his duties as manager of the Warehouse Company.

There was no evidence that the defendant corporation, hy any action of its stockholders or board of directors, ever promised or agreed to pay plaintiff any salary, except the aforesaid resolution of June 9, 1892; nor did the books and records of defendant show any entry or account in which there was any charge made by plaintiff for salary as such. The books of the defendant did not show any credit on account of salary to plaintiff, his account thereon being wholly confined to charges against himself and in favor of the'company. There was no settlement ever asked by plaintiff during the period of twelve years, from June 9, 1892, to February 15, 1904, nor did plaintiff testify that he ever made any claim for salary until just before this suit was brought.

At the request of plaintiff, and over the objection and exception of defendant, the court declared the law of the case to be as follows:

“If the finding be for plaintiff, then he is entitled to receive as follows: One thousand five hundred dollars for the first year’s service, as manager; one thous- and eight hundred dollars for the second year’s service, and at the rate of two thousand five hundred dollars per year for each successive year’s service down to February 15, 1904 (such amounts aggregating $35,-279.17), less such payments or credits as it may appear from the evidence plaintiff had received during said entire period on account of his salary as manasrer, and upon the balance thus found to be due plaintiff he is entitled to interest at the rate of six per cent per am num from the date at which it appears from the evidence payment of the amount due. him on account of salary was demanded by him of defendant and refused.

‘ ‘ The court declares the law to be that when a person has been employed by another for a certain definite term at fixed wages or salary, if the services are continued after the expiration of said term, in the same business, without any new agreement, it is presumed that the continued services were rendered upon the same terms.

“It is admitted by defendant’s second amended answer that plaintiff was the manager of defendant on the first day of May, 1889', and for three years thereafter, and it is shown by the record of defendant that at a meeting of the board of directors of defendant held June 2, 1892, the salary of plaintiff, as such manager, was fixed at one thousand five hundred dollars for the first year, one thousand eight hundred dollars for the second, and for that year (commencing May 1, 1892) two thousand five hundred dollars; and if it be shown by the evidence in the case to1 be true that upon the expiration of said third year, plaintiff continued in the employment of defendant as such manager from that time until February 15, 1904, without notice from defendant of any change in salary, then the court declares the law to be that plaintiff became, and is, entitled to salary at the rate of two thousand five hundred per year for each successive year’s service as manager, from the expiration of said third year down to February 15, 1904.”

The court, of its own motion, and over the objection and exception of defendant, declared the law as follows:

. “The court declares the law to be, that the mere fact that on June 9, 1892, the board of directors of defendant passed a motion at a meeting of said board to compensate plaintiff for his first three years of service as manager of the defendant for the payment of salary for the first year of one thousand five hundred dollars; for the second year, one thousand eight hundred dollars, and for the third year, two thousand five hundred dollars, if the court believes from the evidence that said three years had ended prior to said ninth day of June, 1892, then the making of said motion to so compensate the defendant for said time, does not in the absence of any evidence as to plaintiff’s services as manager imply any promise or agreement on the part of the defendant to pay the plaintiff two thousand five hundred dollars a year after said first day of May, 1892, up to the fifteenth day of February, 1904, or any part thereof.”

At the instance of defendant, the court declared the law of the case to be as follows:

“The court declares the law to be that a promise or agreement of payment to the plaintiff by defendant for services rendered as manager to it, after May 1, 1892, cannot be implied or presumed from the mere fact that such service was rendered, and the burden of proof is upon the plaintiff to show such promise or agreement on the part of the defendant, and unless that has been shown by the plaintiff, then the finding of the court must be in favor of the defendant on plaintiff’s petition.”

The defendant asked the court, and the court refused, to declare the law to be as follows:

“The court declares the law to be, that under the pleadings and evidence in this case, its finding must be in favor of defendant on plaintiff’s petition.

“If the court finds from the evidence that the plaintiff became a director of the defendant on the second day of June, 1890', and vice-president of the defendant on the third day of June, 1890, then the action of the board of directors on the ninth day of June, 1892, declaring that the plaintiff should be compensated for Ms services in so far as it sought to compensate Mm for Ms services as manager after June 3, 1890, was illegal, and without authority, and void, and the salary of two1 thousand five hundred dollars a year as stated on said 9th day of June by the board of directors could not be made the basis for holding that said board of directors or the defendant had promised or agreed to pay the plaintiff two thousand five hundred dollars a year during all his service for the defendant as manager, after May 1, 1892.”

To the action of the court in refusing to declare the law to be as above, defendant duly excepted.

It is insisted by defendant that the court committed error in overruling defendant’s demurrer to the evidence at the close of the whole case.

The first count of the petition upon which the case was submitted to the court, sitting as a jury, is based upon an express contract between plaintiff and defendant, by which plaintiff was employed by defendant as manager at a salary of one thousand, five hundred dollars for the first year, eighteen hundred dollars for the second year, and twenty-five hundred dollars for the third year. The only evidence introduced by plaintiff tending to establish such a contract is the resolution of the board of directors of the defendant company, adopted at a time when plaintiff was one of the members of said board, and which is as follows:

“On suggestion of the president, a motion by F. C. Peper seconded by C. Peper, Jr., to compensate N. M. Bell, the manager, for the first year at a salary of one thousand five hundred dollars; for the second year, one thousand eight hundred dollars, and for the present year, two thousand five hundred dollars, was carried. ’ ’

This resolution was adopted June 9, 1892, at which time plaintiff had already completed three years’ service as manager of defendant company, the third year terminating May 1, 1892. Evidently the resolution of the board is relied upon by plaintiff as the contract or basis of the contract upon which he sues, and under which he claims that two thousand five hundred dollars continued to be his yearly salary from that date down to February 15, 1904.

When an employee’s salary is fixed by contract at a certain sum per year or month, and he continues to render services after the expiration of such period, without any new agreement, the law presumes, there being no evidence to the contrary, that the continued services were rendered upon the same terms. [Ewing v. Janson, 57 Ark. 240; Standard Oil Co. v. Gilbert, 84 Ga. 717; Crane Bros. Mfg. Co. v. Adams, 142 Ill. 125; Ingalls v. Allen, 132 Ill. 170; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56; Adams v. Fitzpatrick, 125 N. Y. 124; Ranck v. Albright, 36 Pa. St. 367; Wood on Master and Servant, sec. 96; Home Fire Ins. Co. v. Barber, 67 Neb. 644; Rose v. Carbonating Co., 60 Mo. App. 28.]

While it is conceded by defendant that the use of the words “for the present year” might possibly justify the inference that they had reference to the services of the plaintiff to be rendered in the year beginning May 1, 1892, it is argued that such inference would be a strained one; that the evident intent of the directors was to deal only with the services which plaintiff had rendered prior to May 1, 1892 and that they intended by the use of the words “for the present year” to include only the services rendered during the third year of his employment. Defendant contends that this is the construction which the plaintiff has put thereon by his petition, and that he is bound thereby. We think the only fair and reasonable construction of the words-in question is that placed thereon by plaintiff himself, which is that they referred to and included only the services rendered by plaintiff during the third year of his employment. The resolution, then, having reference only to past sérvices, the continuation of plaintiff in the same service after said resolution was passed raised no presumption that the services thereafter rendered were rendered upon the same terms as for the third year of plaintiff’s employment.

The authorities cited and relied upon by plaintiff as supporting his case do not do so, and are in no way applicable thereto, for all those cases are bottomed upon express contracts by which a certain sum was agreed to be paid for services to be rendered for a specified term, and the services were continued after the expiration of the contract, without a new one being entered into; and it was held in all of those cases that the law would presume that the services were rendered upon the same terms as before. Our attention has not been called to any authority, nor have we been able to' find any after diligent search, which holds that any such presumption arises when the contract agreed upon in the first instance was for compensation for past services only, without any reference to services thereafter to be rendered. It follows that as plaintiff failed to prove that the services for which compensation is sought to be recovered were rendered in pursuance of a special contract entered into' between himself and the defendant, he cannot recover in this action, and could only recover for said services upon an implied contract for their reasonable value.

Defendant also contends that a director or officer of a corporation cannot claim compensation for services rendered the corporation unless, such compensation has been fixed by by-law or resolution of the corporation before the services were actually rendered, or unless such services are entirely outside the line of his duty as such officer, and performed at the instance of the officers of the corporation whose powers are of a general character, and under such circumstances as to raise a fair presumption that the parties intended and understood they were to be paid for; that if the agreement be not specific as to the amount to be paid, the corporation can be made liable only for the reasonable value of the services, and recovery only be had upon a quantum meruit.

It is evident that plaintiff can only recover in this action upon an express contract, and to entitle him to a recovery it devolved upon him to show that the defendant corporation expressly agreed, before the services were rendered, to pay plaintiff two thousand five hundred dollars per year so long as he continued in the service of the company as its manager. In the absence of a specific agreement as to the amount of salary to be paid the plaintiff, it is clear that the defendant can be held liable only for the reasonable value of the services rendered, and, as we have indicated, plaintiff could only recover for such services upon a quantum meruit. That this is the general rule is shown by the following authorities: Bennett v. St. Louis Car Roofing Co., 19 Mo. App. 349; Besch v. Western Carriage Mfg. Co., 36 Mo. App. 333; Pfeiffer v. Lansberg Brake Co., 44 Mo. App. 59; Rose v. Carbonating Co., 60 Mo. App. 28; Remmers v. Seky, 70. Mo. App. 364; Beach v. Stouffer, 84 Mo. App. 395.

These cases and many others were carefully reviewed in the case of Taussig v. Railroad, 166 Mo. 28, in which Brace, J., speaking for the court, said: “The rule applicable to such a case, to be deduced from the modem and best-considered cases, is, we think, that a party, although a director or other officer of a corporation, may recover the reasonable value of necessary services rendered to a corporation, entirely outside of the line and scope of his duties as such director or officer, performed at the instance of its officers, whose powers are of a general character, upon an implied promise to pay for such services, when they were rendered under such circumstances as to raise a fair presumption that the parties intended and understood they were to be paid for or ought to have so intended and understood,” citing Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98; Pew v. Gloucester Nat. Bank, 130 Mass. 391; Bassett v. Fairchild, 132 Cal. 637; Nat. Loan & Inv. Co. v. Rockland Co., 94 Fed. 335; Brown v. Silver Mines, 17 Colo. 421; Greensboro Company v. Stratton, 120 Ind. 296; Santa Clara Min. Assn. v. Meredith, 49 Md. 389; Rogers v. Railroad, 82 Minn. 25; Shackelford v. Railroad, 37 Miss. 202; Chandler v. Monmouth Bank, 1 Green (N. J. L.) 255; Cheeney v. Railroad, 68 Ill. 570; Citizens’ Nat. Bank v. Elliott, 55 Iowa 104. The same rule is announced in Wagner v. Edison Electric Ill. Co., 177 Mo. 44.

While there is no direct evidence in this case of any express contract to pay plaintiff a fixed sum for his services, there is evidence tending to show that the services rendered by him were in a measure outside of the line and scope of his duties as director, and that they were rendered with the understanding by the officers of the company that they were to be paid for, but upon this last proposition the evidence was conflicting. But as there was no express contract to pay for said services, plaintiff cannot recover in this action therefor. The demurrer interposed to the evidence should have been sustained.

A final contention is that, as it was shown upon plaintiff’s cross-examination as a witness in his own behalf that he held the public office of excise commissioner for a period of three and one-half years dtiring the term of his service as manager of the warehouse company, any contract by plaintiff with said company for salary while he was excise commissioner was contrary to public policy, and should not be recognized or enforced by the courts. No such defense, however, is pleaded in the answer. Besides, there is nothing on the face of the petition which seems tó indicate any other than a valid implied contract between the plaintiff and defendant; and, under such circumstances, if the contract sued upon is sought to be invalidated because of some extraneous matter, it should be pleaded in order that an issue may be raised at the trial which may be considered on appeal. [St. Louis Agriculture & Mech. Assn. v. Delano, 108 Mo. 217; Sybert v. Jones, 19 Mo. 86; Moore v. Ringo, 82 Mo. 468; Musser v. Adler, 86 Mo. 445.] In the case last cited it is said: “This defense [that services rendered were contrary to public policy] so far as pleading is concerned, is not unlike that of champerty, gaming, usury, and the like. It is an affirmative defense, and should be clearly and distinctly stated.” The same rule is announced in the case of McDearmott v. Sedgwick, 140 Mo. 172, in which Sprague v. Rooney, 104 Mo. 360, which holds to the contrary, is overruled.

For these considerations the judgment is reversed and. the cause remanded.

All concur.