author: MOZLEY, C.

text:
    GRACE D. HOLLINGHAUSEN v. EMMA ADE, Appellant.
    Division Two,
    July 19, 1921.
    .1. COMMON-LAW MARRIAGE: Sufficient Proof. A valid marriage may be entered into between parties willing and competent to contract at common law, without solemnization by minister or officer. Testimony that a man and woman in February, 1910, at Salina. Kansas, entered into a present agreement to become man and wife; that in a few days they returned to the home of her mother in Missouri, and introduced themselves as man and wife and received the mother’s blessing; that he provided an elegant home where she and he resided happily together until March, 1917; that during all that time they treated each other as man and wife, were introduced as man and wife, and were so regarded among their friends and neighbors, is amply sufficient, without a ceremonial marriage, to establish a common-law marriage.
    2. ALIENATION: Instruction: Conduct Calculated to Prejudice: Omission of Words Cause to Separate. In an action for damages for the alienation of the affections of plaintiff’s husband, in which the petition charged that defendant caused plaintiff’s husband to separate from her, prevented communication between them and maliciously prevented a reconciliation, a-n instruction declaring that “if defendant was intentionally guilty of such conduct as was calculated to prejudice plaintiff’s husband against plaintiff and to alienate him from her and to prevent a reconciliation between them, and that plaintiff was thereby deprived of the society, companionship, comfort, protection, aid and affection of her husband, your verdict will be for plaintiff,” was not error; and where said instruction as asked declared that “if defendant was guilty of such conduct as was calculated to cause their' separation and to alienate the affections,” etc., “and did cause him to separate from and abandon plaintiff,” its modification by the court so as to omit the words “cause their separation” and “did cause him to separate and abandon plaintiff,” the giving of it with these words omitted was not prejudicial error against defendant.
    3. -: -: Calculated to Cause. It is enough that the instruction require that defendant’s conduct was calculated to cause plaintiff’s husband to separate from her, and to prevent a recon- ■ ciliation between them, without requiring that it “actually did” cause the separation and prevent the reconciliation. If by the intentional interference of defendant with the marital relations of her brother and his wife, the wife is deprived of the companionship of her husband, she is entitled to a verdict for alienation. A modification of the instruction so as to require the jury to find that defendant’s conduct “actually did cause him to separate from and abandon plaintiff” was not necessary; but it is a modification of which defendant cannot complain.
    4. -: Estoppel: Alimony Paid: Mutuality. The fact that plaintiff, after her husband’s separation from her, brought an action of divorce against him, and in the settlement of her claim for alimony obtained $7,500 from.him, in consideration for her deed releasing all claims to his estate, does not estop her from maintaining an action for damages against his sister -for alienating his affections and causing him to separate from her. There was no mutuality between the plaintiff in the divorce case and defendant in the alienation suit, and without mutuality there can be no estoppel.
    5. -: Damages: Injury to Feelings: Loss of Society. The wife, in her suit for the malicious alienation of her husband’s affections and separation from her, can recover damages for injury done to her feelings and the loss of the support, comfort and society of her husband.
    6. -: Caused by Plaintiff: Unpleaded. In an alienation case, an instruction telling the jury that if plaintiff herself by her conduct caused her husband to separate from her, the verdict must be for defendant, being an issue not pleaded, should be refused.
    7. -•: Sister’s Privilege: Counsel and Advice. There is no initial presumption of good faith on the part of a sister who iiiterferes in the marital relations of her brother and plaintiff. The law does not presume that advice and counsel given by a sister to her brother to separate from his wife is given in good faith. She does not possess the superior right of a parent. '
    8. -: Duration of Damages: Separation and Divorce. Where defendant caused plaintiff’s husband to separate from her, she is entitled to damages from the time he separated from her, and not simply from the time she obtained a judgment of divorce from him, and not simply from the time he separated from her up to the time of the judgment for divorce. _
    9. -: Excessive Verdict. There is no scale by which the damages of a wife can be graduated with 'certainty in an alienation suit, although her husband separated from her on March 31st and died on June 9th. Where the evidence shows a malicious and unlawful interference by a sister in the marital relations between her brother and the plaintiff; that upon his separation from plaintiff the defendant sister persistently and successfully kept them apart, although she knew they were anxious to become reconciled, and succeeded in preventing a reconciliation or even communications between them up to the time of his death, a verdict for. ten thousand dollars actual and five thousand punitive damages will not be held to be excessive.
    10.JOINT TORTFEASORS: Judgment Against One: Dismissal as to Other. Where in a suit for damages for the alienation of the affections of plaintiffs husband, brought against his sister and her husband, as joint tortfeasors, the court at the close of the evidence sustained a demurrer offered by the defendant husband, and the jury brought in a verdict against the remaining defendant, in pursuance to instructions applicable to her alone, it was not error to permit plaintiff to dismiss as to the defendant husband and to enter a judgment of dismissal as to him, and to enter judgment against the defendant wife in accordance with the verdict.

      Appeal from Jackson Circuit Court. — Now. Thomas J. Seehorn, Judge.
    Affirmed.

      Walsh £ Aylward and E. A. Setzler for appellants.
    (1) The court erred in refusing to give the peremptory instruction requested by the defendant instructing* the jury to find for the defendant, and also erred in refusing to sustain the demurrer of the defendant offered at the close of the plaintiff’s evidence, (a) The evidence is insufficient to sustain the verdict. Leavel v. Leavel, 122 Mo. App. 666; Cornelius v. Cornelius, 233 Mo. 29; Barton v. Barton, 119 Mo. App. 528; Nichols v. Nichols, 134 Mo. 194; White v. Ross, 47 Mich. 172; Rice v. Rice, 104 Mich. 371; Young v. Young, 8 Wash. 81; Cooper v. Cooper, 171 Pac. 7; Corrick v. Dunham, 147 Iowa, 320, 126 N. W. 150; Wolf v. Wolf, 164 N. W. 107; Potter v. Hosser, 177 N. W. 170; Bruce v. Galvin, 183 Iowa, 145,166 N. W. 787; Cash v. Childers, 176 Ky. 448, 195 S. W. 191; Bourne v. Bourne, 185 Pac. 496. (b) The evidence upon the issue of marriage was insufficient. Perkins v. Silverman, 223 S. W. 901; Cargile v. Wood, 63 Mo. 514; State v. Cooper, 103 Mo. 273; Williams v. Williams, 259 Mo. 552, 169 S. W. 619; Bishop v. Brittian Inv. Co., 229 Mo. 730, 129 S. W. 677, Ann. Cas. 1912A, 868: Topper v. Perry, 197 Mo. 548, 95 S. W. 208, 114 Am. St. 777; Clayton v. Wardell, 4 Comst. 230; Cunningham v. Cunningham, 2 Dow, P. C., 482. (2) The court erred in modifying and giving as modified Instruction “G.” Geromini v. Brunelli, 214 Mass. 492, 102 N. E. 67; Modisett v. McPike, 74 Mo. 640; Hartpence v. Rogers, 143 Mo. 633; Barton v. Barton, 119 Mo. 519; Butterfield v. Ennis, 193 Mo. App. 638, 186 S. W. 117; DePord v. Johnson, 251 Mo. 255; Leavel v. Leavel, 122 Mo. App. 658; Murdock v. Dunham, 206 S. W. 915; Hall v. C. & C. Co., 260 Mo. 351; Potter v. Hosser, 177 N. W. 169; Stillwell v. Stillwell, 172 N. W. 177; Servís v. Servís, 172 N. Y. 438, 65 N. E. 271; Hall v. Smith, 80 Mise. 85, 140 N. Y. Supp. 796. (3) The court erred in modifying and giving as modified Instruction “B.” Authorities under point 2. (4) The court erred, in giving plaintiff’s Instruction “E.” DeFord v. Johnson, 251 Mo. 256; Yowell v. Yaughn, 85 Mo. App. 211; Wolf v. Wolf, 181 N. Y. Supp. 372; Beach v. Brown, 20 Wash. 266,43 L. B. A. 114,72 Am. St. 98; Prettyman v. Williamson, 1 Penn. (Del.) 224; McNamara v. McAllister, ' 150 Iowa, 243, 34 L. B. A. (N. S.) 436,130 N. W. 26, Ann. Oas. 1912 D. p. 463; Bergman v. Solomon, 143 Ky. 581, 336 S. W. 1010; Purdy v. Bobinson, 133 App. Div. 155, 117 N. Y. Supp. 295; Sockheim v. Miller, 136 111. App. 132. (5) The court erred in refusing* to give defendant’s Instruction 1. Leavel v. Leavel, Í22 Mo. App. 654; Geromini v. Brunelli, 214 Mass. 492. (6) The court erred in refusing to give defendant’s Instruction- 2, 3, 4 and 6. Metcalf v. Tiffany, 106 Mich. 504, 64 N. W. 479. (7) The court erred in refusing to give defendant’s Instruction 5. Nichols v. Nichols, 147 Mo. 393. (8) The court erred in refusing to give defendant’s Instruction 10. Allen v. Forsythe, 160 Mo. App. 267; Miller v. Miller, 154 Iowa, 344, 134 N. W. 1038; Baird v. Corle, 157 Wis. 565, 147 N. W. 834; Powell v. Benthall, 136 ‘ N. C. 145; McGregor v. McGregor, 115 S. W. 802; Luick v. Arends, 21 N. D. 614, 132 N. W. 353. • (9) The court erred in not limiting certain evidence by instruction which was received for the sole purpose of showing the state of mind, or affection, of the person making the statements. McGinnis v. McGlothlan, 192 Mo. App., 144; Hayes v. Hayes, 242 Mo. 155, 271; Teckenbrock v. McLaughlin, 209 Mo. 550; Hardwick v. Hardwick, 130 Iowa, 230; Miller v. Miller, 154 Iowa, 344. (10) The court ' erred in setting aside the general verdict returned as to both defendants, granting unto the defendant Carl Ade a new trial after the verdict had been received and recorded, permitting plaintiff to dismiss as to him and in entering a judgment against this defendant for the full amount thereof. Sec. 2097, K. S. 1909; Mo. Constitution, sec. 10, art. 2; sec. 28, art. 2; sec. 30, art.„2; Dartmouth College Case, 4 Wheat. 518, 4 L. Ed. 629. (11) The court erred in refusing to sustain defendant’s motion for a new trial for the reason that the jury absolutely ignored and disregarded the instructions of the court and refused to consider or follow the same. Shohoney v. Eailway, 223 Mo. 649; Hitz v. Eailway Co., 152 Mo. App. 687; Payne v. Eailway Co., 129 Mo. 405; Ellis Lbr. Co. v. Johns, 152 Mo. 516. (12) The verdict of the jury was grossly excessive, the result of passion and prejudice against the defendants, and the defendants were thereby deprived of a fair and impartial trial. Spohn v. Eailway Co., 87 Mo. 84; Spiro v. Transit Co., 102 Mo. App. 250; Fuller v. Eobertson, 230 Mo. 32; Allen v. Forsythe, 160 Mo. App. 262; Hughey v. Eysell, 167 Mo. App. 565; Dailey v. City of Columbia, 122 Mo. App. 21; Winkelman v. Maddox, 119 Mo. App. 658; Miller v. Dryden, 34 Mo. App. 602; Eichelman v. Weiss, 7 Mo. Apn. 87; Ferguson v. Thacher, 79 Mo. 511; Schweickhardt v. St. Louis, 2 Mo. App. 583; Crow v. Crow, 124 Mo. App. 125; Spalding v. Bank, 78 Mo'. App. 374; Beshars v. Banking Assn., 73 Mo. App. 293; Plate Glass Co. v. Peper, 96 Mo. App. 505; Singleton v. Exposition Co., 172 Mo. 306; Dyer v. Combs, 65 Mo. App. 152; Haumueller v. Ackerman, 130 Mo. App. 390; Newton v. Eailroad, 168 Mo. App. 199; Cottell v. Pub. Co., 88 Mo. 356; Poulson v. Collier, 18 Mo. App. 604; Eeal Éstate Co. v. Surety Co., 276 Mo. 183; Wonderly v. Haynes, 186 Mo. App. 82; Hurley v. Kennally, 186 Mo. 225; Miller v. United Eys., 155 Mo. App. 547.

      J. M. Johnson, L. N. Dempsey and Donald W. Johnson for respondent.
    (1) On demurrer to the evidence, (a) The evidence is sufficient to sustain the verdict. Claxton v. Pool, 182 Mo. App. 13; Knapp v. Knapp, 183 S. W. 576; Wagner v. Wagner, 204 S. W. 390; Surbeck v. Surbeck, 208 S. W* 645; Nichols v. Nicholsj 147 Mo. 387; Linden v. McClintock, 187. S. W. 82; Rowell, v. Vanghn, 85 Mo. App. 206. (b) The evidence -upon the issue of marriage is sufficient. Perkins v. Silverman, 223 S. W. 895; State v. Cooper, 103 Mo. 273; Cargile v. Wood, 63 Mo. 5Ó1; Butterfield v. Ennis, 193 Mo. App. 638; Davis v. Stouffer, 132 Mo. App. 555. (2) Not necessary to show that there was affection and that defendant had completely alienated it. DeFord v. Johnson, 152 Mo. App. 209; Linden v. McClintock, 187 S. W. 82; 3 Elliott on Evidence, see., 1650; 15 Am. & Eng. Ency. Law (2 Ed.) 862; DeFord v. Johnson, 251 Mo. 244. (3) There was no error in the giving of modified Instruction “Gr. ” Nichols v. Nichols, 147 Mo. 387; Barton v. Barton, 119 Mo. App. 507; Modisett v. McPike, 74 Mo. 636; Hartpence v. Rogers, 143 Mo. 633. (4) Plaintiff’s modified Instruction “B,” is correct. Authorities under Point 3. (5) There is no error in Instruction “E.” The evidence strongly tends to show actionable interference between husband and wife by the defendant from the date of the separation, March 31, 1917, which continued until the death of the husband on June 9, 1917. Plaintiff was entitled to recover all damages she sustained in consequence of such interference, including the destruction of her right to consortium. Nichols v. Nichols, 147 Mo. 387. (6) The court did not err in refusing to give defendant’s Instruction No. 1, since there was ample evidence to take to the jury the question of actual malice. Butterfield v. Ennis, 193 Mo. App. 638. Where, as here, the defendant attacks the character of the plaintiff, no other proof of actual malice would be required. Therefore the charge that plaintiff was not the wife, but was the mistress of defendant’s brother if untrue will support a finding of actual malice. Cornelius v. Cornelius, 233 Mo. 1, 25. (7) Defendant’s Instructions 2, 3, 4 and 6 were properly refused. The divorce and settlement therein of property rights did not preclude plaintiff from maintaining her action for alienation of affections. DeFord v. Johnson, 251 Mo. 244; 21 Cyc. 1620; Clow v. Chapman, 125 Mo. 101; Modisett v. McPike, 74 Mo. 646; Nichols v. Nichols, 147 Mo. 387. (8) There was no error in refusing defendant’s Instruction Number .5, which as a prerequisite to a recovery by plaintiff required the jury to find that the defendant ‘ (lawfully and maliciously induced the said Carl Hollinghausen to cease to live with plaintiff, etc.” The gravamen of the cause of action submitted to the jury was not that the defendant caused the separation, but that she prevented a reconciliation. DeFord v. Johnson, 152 Mo. App. 209; Linden v. MeClintock, 187 S. W. 82. (9) There was no error in refusing defendant’s Instruction 10. (a) Because there is no initial presumption of good faith on the part of a brother or sister who interferes in the marital relations of a plaintiff. Barton v. Barton, 119 Mo. App. 529. (b) The instruction was fully covered in defendant’s Instruction 15 given by the •■ourt. (c) There is no room in this case under the evidence for indulging in initial presumptions, since the rule is well settled that presumptions should not be indulged where the issue of fact is fully covered by evidence. Wizon v. Railroad Co., 141 Mo. 425; Lynah v. Street Ry. Co., 112 Mo. 420; Stack v. Baking Co., 223 S. W. 97. (d) The instructions throughout both for plaintiff and defendant imposed the burden of proving malice where it belonged, upon the plaintiff, and the verdict of the jury necessarily found that the defendant had not acted in good faith, but in malice. (10) In view of the peremptory'instruction to the jury to return a verdict for the defendant, Carl Ade, the court did not err in setting aside the verdict as to that defendant and permitting the plaintiff to dismiss him from the action, and then entering judgment on the verdict against the remaining defendant, Emma Ade. The defendant, Emma Ade, being sued as a joint tortfeasor had no right either to have her co-tortfeasor sued or kept in the case, since between such wrongdoers there is no right of contribution. Berkson v. Cable Ry. Co., 144 Mo. 211; Rogers v. Rogers, 177 S. W. 382; Vodicka v. Sette, 223 S. W. 582; State ex rel. Dunklin Co. v. Blakemore, 205 S. W. 626. (11) The verdict was not excessive and there is no indication of passion or prejudice on the part of the jury. Gross v. Gross, 73 S. E. (W. Ya.) 961; DeFord v. Johnson, 177 S. W. 577; Fuller v._ Robinson, 230 Mo. 22; Waldron v. Waldron, 45 Fed. 315; Williams v. Williams, 30 Colo. 51; Lockwood v. Lockwood, 67 Minn. 476; Scherph v. Szadeczky, 1 Abb. Pr. 366; Speck v. Gray, 4 Wash. 589; Duberley v. Gunning, 4 T. R. 651; Smith v. Ry. Co., 180 S. W. 1036; State ex rel. v. Ellison, 268 Mo. 225.
   MOZLEY, C.

This action was brought in the Jackson County Circuit Court, Missouri, in Kansas City, by plaintiff, Grace D. Hollinghausen, against defendants, Carl Ade and Emma Ade, his wife, to recover actual damages in the sum of $25,000, and punitive damages in the sum of $25,000 for alienating the affections of her husband, Carl Hollinghausen, and thereafter preventing a reconciliation between them.

The petition alleges that plaintiff and Carl Hollinghausen were lawfully married at Salina, Kansas, on the — day of February, 1910, and thereafter lived happily together until the 31st day of March, 1917. That May the 1.1th, 1917, she obtained a divorce from her said husband on account of certain grievous misdeeds of her- said husband, which are fully set out in “Exhibit A” in appellant’s abstract.

It further alleges a wicked and malicious conspiracy between defendants, who well knew they were so living together as man and wife, to bring about an alienation of the affections of her said husband, and a wicked and' malicious attempt (which it is alleged was successful) to prevent a reconciliation between them, and prayed damages as above stated.

Defendants answered with a general denial of the averments of the petition', and pleaded as defensive matter the same divorce proceedings; that said divorce was obtained by plaintiff against, defendant on account of wrongs, by default, he having been duly served with summons. That pending said divorce proceedings a written contract was entered between plaintiff and her said husband by virtue of which her right to alimony and all rights she had in defendant’s estate on account of being his wife were fully adjusted and finally settled for the sum of $7,500; that said adjustment was made voluntarily and with full knowledge on the part of plaintiff, and that it operated to estop her from recovering in the instant action.

The' reply was a general denial of the new matter.

With the issues thus framed, trial was had before the court and a jury, which returned the follo'wing verdict:

“We, the jury, find for plaintiff and assess her actual damages at ten thousand dollars. We further allow her exemplary damages at five thousand dollars.

“George W. Ernst, Foreman.”

Two days thereafter, to-wit, February 19, 1919, the following record entries were made.

“Now the court, of its own motion, on account of errors in instructions, sets the verdict aside in this case as to Carl Ade and grants Carl Ade a new trial of this cause.

“Now plaintiff dismisses this cause as to Carl Ade, defendant herein.

“Now the court orders judgment entered in accord-, anee with the verdict of the jury.” To which both defendants excepted.

Said judgment was to the effect that plaintiff have and recover from defendant the amount specified in the verdict with costs of’ suit and that she have execution therefor.

Then followed the usual judgment of dismissal as to Carl Ade.

Defendants offered no testimony.

We will further refer to the facts hereafter.

I. The first assignment will be determined by the evidence.

Under this assignment it is insisted that the evidence was insufficient to establish a common-law marriage between plaintiff and Carl Hollinghansen.

Without setting the testimony on this point out in full, it is sufficient to state'that it shows that these parties, at Salina, Kansds, on the — day of February, 1910, entered into a present agreement to become man and wife; that in a few days they returned to the home of the mother of plaintiff, at Kansas City, Missouri, and introduced themselves as man and wife and received her blessings; that he provided an elegant home where he and plaintiff resided happily together until March 31, 1917, about seven years; that during that time they were both anxious to -have a child born, but on account of some impediment standing in the way, he had an operation performed on her which cost him about $350; that during all this time they treated each other as man and wife, were introduced as man and wife, and were so regarded among their friends and neighbors.

The deposition of Emma Ade was taken by plaintiff and introduced in evidence which we quote from as follows:

“Q. Prior to that time where was his home? A. Why, he lived at Twenty-fifth and Troost.

“Q. In an apartment? A. Yes, sir.

“Q. And who lived with him or with whom did he live there at Twenty-fifth and Troost? A. Grace Hildebrand.

“Q. She is the plaintiff in this action? A. Yes, sir;

“Q. Were they living there together in the apartment?

‘‘Mr. Altward : If you know?

“Q. Yes, if you know. You needn’t testify to anything you don’t know. Were they living there together? A. I suppose they were living there together.

“Q. I am asking you for your knowledge. Now, how do you know they were living there together? A. Why, because they were there together.

“Q. You saw them there? A. Yes, sir.

“Q. How long did they live there together in that apartment? A. Why, I am sure I don’t know how long they lived there. .

“Q. No, I don’t expect you to give it accurately, Mrs. Ade, but about how long they lived in those apartments there? A. Several years.

“Q. Did anyone live there with them? A.. Not that I know of.

“Q. Did you visit them there in the apartments? A. Yes, sir.

“Q. About how often did you visit them there? A. Just occasionally.

“Q. Well, give us an idea about how long it was, once a week or once a month. A. Why, there was for a short time once a week and then occasionally it was longer. Sometimes a month, six weeks, eight weeks we didn’t see one another.

“Q. Inuring that two or three years that they lived there together in the apartment at Twenty-fifth and Troost did they visit you at your house sometimes? A. Yes, sir.

‘‘Q. How often did Mr. Hollinghausen and the plaintiff visit you there at your house during the time they were living at Twenty-fifth and Troost? A. Just as I stated before, just occasionally.

“Q. Occasionally? A. Yes, sir.

“Q. Once a week or sometimes not so often? A. Yes, sir.

“Q. Yes, and they came there and would sometimes have meals? That is, they were entertained at your house. A. Yes, sir.

“Q. And sometimes they would entertain you and Mr. Ade at their house? A. Yes, sir.

“Q. And you were on good terms with them. A. Yes, sir. ... .

“Q. State what your conversation with your brother was on that occasion. A. As I stated, it was after she shot the negro; and it was in the newspapers that my brother was married.

“Q. Yes? A. I, the .next day or two later, went to him and said, ‘Brother if you were married why didn’t you come and tell me ? I am your only sister. Why didn’t you tell me you were married? I never knew anything about it. ’ And my brother said, ‘ Emma I am not married. I am simply defending Grace for fear she may have trouble about the shooting affair.’ ”

We think this testimony was amply sufficient for submission to the jury for their determination, and the demurrer was properly refused.

And if the first; part of said demurrer was intended to strike at the sufficiency of the petition as not stating facts sufficient to constitute a cause of action against defendants, without setting said petition out further, we think it stated a cause of action and it was good after verdict anyway. [Sec. 2119, R. S. 1909].

A valid marriage may be entered into between parties willing and competent to contract at common-law. [Dyer v. Brannock, 66 Mo. 391; State v. Cooper, 103 Mo. 266; State v. Hansbrough, 181 Mo. 348; Topper v. Perry, 197 Mo. 531; Plattner v. Plattner, 116 Mo. App. 405; Butterfield v. Ennis, 193 Mo. App. 638; 18 R. C. L. 391, par. 12.]

The jury has determined this question in favor of plaintiff, and their verdict is binding on us.

II. Instruction “G” as originally drawn, so far as is necessary to quote, reads as follows:

“If, therefore, you believe and find from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that defendant Emma Ade was intentionally guilty of such conduct as was calculated to eause their separation and to alienate the affections of the said Carl Hollinghausen, and by reason thereof the defendant did cause the affections-of said Carl Hollinghausen to be alienated from plaintiff, and did cause Mm to separate from and abandon plaintiff,” etc.

Said instruction as modified omitted that part of the original instruction relating to the defendant being guilty of conduct that was calculated to cause their separation The original instruction manifestly submitted the case on a wrong theory — that of the conduct of the defendant causing the separation between these parties. The case was submitted to the jury solely on the averment in the petition that a reconciliation was wickedly and maliciously prevented between plaintiff and her husband; that he was kept separate and apart from her and communication between them prevented.

Where an instruction tenders to the finding of the jury the facts of an issue not in the case it is erroneous and would have been reversible error. [DeDonato v. Morrison, 160 Mo. 581, l. c. 591; Glass v. Gelvin, 80 Mo. 297; Silverthorne v. Summit Lumber Co., 190 Mo. App. 716.] We rule that said instruction was correct' as modified and overrule defendant’s objection thereto.

III. Instruction “B” as originally presented so far as. is necessary to quote, reads as follows:

• “If, therefore, you believe from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that on or about March 31st, 1917, they quarrelled, and the said Carl Hollinghausen separated from plaintiff, and that thereupon defendant, Emma Ade, was intentionally guilty of such conduct as was calculated to prejudice plaintiff’s husband against plaintiff and alienate him from her and to prevent a reconciliation between them, and that plaintiff was thereby deprived of the society, companionship, comfort, protection, aid and affection of her husband, your verdict will be for plaintiff.”

Said paragraph of said instruction, as modified, reads as follows:

“If, therefore, you believe from the evidence that plaintiff and Carl Hollinghausen were husband and wife, and that on or about. March 31st, 1917, they quarrelled, and the said Carl Hollinghausen separated from plaintiff, and thereafter defendant, Emma Ade, was intentionally guilty of such conduct as was calculated to and actually did,” etc. Then the instruction concludes as above.

It will be observed that the modified instruction differs from the original in adding the words, actually did, after the words, calculated to.

We think the original instruction was erroneous in that it only required the jury to find that the alleged conduct of defendant wa,s merely calculated to cause her husband’s alienation and prevent a reconciliation between them, whereas, as modified the jury were required to find that said conduct actually'did produce such result. The modified instruction “B” was correct, and we overrule defendant’s objection thereto.

Instruction “A” and “E” announce correct propositions of law and we, therefore, overrule defendant’s objections thereto.

IY. The' court did not err in refusing to give defendant’s instruction number 1, to the effect that there was no evidence of actual malice on the part of defendant toward the plaintiff, and that issue is withdrawn from your. consideration. Under this record said instruction did not correctly state the law. A correct instruction on the subject of malice was given at the request of plaintiff. We overrule defendant’s objection to the refusal of the court to give said instruction.

V. Instructions, 2, 3, 4, and 6 were properly overruled. Numbers 2, 3 and 4 related to the proposition asserted by defendant that if the jury found that plaintiff had made the settlement pleaded in the answer ,by which she had received $7,500 in full of alimony and all her property rights in her husband’s estate, that she was estopped from recovering in this action. This settlement had nothing to do with the instant case, and defendant was not a party to it; there was no mutuality respecting the matter as between plaintiff and defendant. “Mutuality is a necessary ingredient of an estoppel. There can be no estoppel upon one party unless the other party is equally estopped.” [Hempstead v. Easton, 33 Mo. 142; City of Unionville v. Martin, 95 Mo. App. 28, and authorities cited at l. c. 39; DeFord v. Johnson, 251 Mo. 244.]

The court properly refused these instructions.

VI. Instruction 5 was properly refused because it sought to submit to the jury an issue not in the case.

Instruction 6 tells the jury that plaintiff could not ■ reeover damages for injury done to her feelings or the loss of support, comfort and society of her husbanj and these elements would be withdrawn from the consideration of the jury. These were elements plaintiff could recover for, and, hence, the instruction was properly overruled.

Instruction 7 told the jury that if plaintiff caused the separation.between her and her husband and was not wrongfully induced to do so by either of the defendants, their verdict would be for defendants. The cause of their separation, as above seen, was not an issue of the cause, and therefore the instruction was properly refused.

Instructions 8 and 11 were properly refused.

VII. Instruction 10 told the jury that the law presumes that counsel or advice given by a sister to brother is given in good faith and from proper motives and honest impluses, the burden of proving that such was not the case was shifted to plaintiff to prove by a preponderance of the testimony that such advice was not given in good faith, and unless the jury find such facts exist to their personal satisfaction they will find for defendant, Emma Ade.

We agree with plaintiff that there is no initial presumption of good faith on the part of a brother or a sister who interferes in ’ the marital relations of a plaintiff. This is vastly different from a case of parents interfering between husband and wife.

In the case of Barton v. Barton, 119 Mo. App. l. c. 532, it was held: “We are not to be understood as intimating that a parent may, without good cause, influence a child to separate from a spouse; to do so is a tort for which the parent, like any other person, is liable. We mean to say that the law recognizes a superior right of interference on the part of a parent; and will justify the interference for a cause which would be no justification in favor of another person. This rule prevails because of the law’s respect for that anxiety parents feel for their children which impels to efforts to promote a child’s welfare and happiness. This natural impluse prompts advice and assistance in domestic troubles, as well as in others. ’ ’

We rule that the instruction was properly refused.

VIII. It is assigned as error that the court modified and gave instruction 20. Said instruction as originally requested by defendant reads as follows:

“The court instructs the jury that in the event your finding is for the • plaintiff, you are only permitted to allow damages, if any, for the loss of affection, the society, companionship, and ■ comfort of the said Carl Hollinghausen from the 25th day of April to the date of his death, on June 9, 1917.”

The modified instruction changed the date from when the damages accrued to March 31, 1917, to the date of his death June 9,1917. There was no error in modifying said instruction, and the assignment is overruled. '

IX. We rule that defendant’s peremptory demurrers were properly overruled.

Plaintiff’s instructions given to the jury presents the case sufficiently clear for their ready understanding, and when read in connection with the thirteen given at defendant’s request, which were quite liberal in her behalf, we think there is no doubt but that the case was properly instructed on.

X. Error is assigned in that the court failed to limit certain evidence by instruction which was received for the sole purpose' of showing the state of mind, or affection, of the person making the statement. If defendant desired such instruction it was her duty to ask the court to give one. [Ratten v. C. E. Ry. Co., 120 Mo. App. 270; Sotebier v. Transit Co., 203 Mo. l. c. 721; Brown v. Globe Printing Co., 213 Mo. 611-613.] We overrule the assignment.

XI. Lastly defendant makes the point that the verdict is grossly excessive and is the result of passion and prejudice.

There is nothing in this record that shows the verdict was the result of passion and prejudice, and we cannot hold that it was.

As to being grossly excessive both sides cite the case of Fuller v. Robinson, 230 Mo. 32, to show the pro et con of the contention.

The citation of authorities on this point usually is only valuable in the particular case in announcing the general rule of this court on the question. ' But in the instant case, the case cited, supra, appears to have a concrete applicability. We quote from it as follows:

“A verdict for $10,000, in a suit for alienation of the affections of plaintiff’s wife, is not excessive. There is no scale by which damages can be graduated with certainty in such cases, and the laws commits to the jury the duty of estimating the wrong done to the plaintiff, and with their discretion the court will not interfere except where they have clearly been actuated by unreasoning prejudice. ’ ’

Defendant argues that plaintiff could recover damages only from the date of the separation to the date of the divorce, which she calculates was 43 days. This is erroneous. As shown above, plaintiff requested an instruction to the effect that, if she recovered at all, she could recover until June 9, 1917, the date of the husband’s*death, and the court modified it making it read from March 31, 1917, the date of the separation, until June 9, 1917, the date of his death. Time is not of the essence of the plaintiff’s right to recover; that right rests upon the wrong done her by defendant. She defendant’s wicked and malicious efforts to keep plaintiff and her husband apart is abundantly disclosed by the evidence. It shows that the husband immediately came to her home when the separation occurred, and from that day until the date of his death she persistently and successfully kept them apart, so that they could not see each other, although she knew that they were anxious to become reconciled.

We overrule the point.

From what has been said above it follows that defendant’s assignments that the court erred in overruling her motion for new trial and to arrest the judgment were properly overruled.

This disposes of all of defendant’s assignments adversely to her contentions.

This record presents an almost unparalleled instance of wicked, malicious and unlawful interference by defendant in successfully, preventing plaintiff and her husband from affecting a reconciliation, and we affirm the judgment. It is so ordered. Railey and White, CC., concur.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.

On Motion eor Rehearing.

PER CURIAM: — The appellant complains of error in the giving of Instruction Gr, which is substantially, if not literally, a copy of Instruction B before it was modified by the court. The portion complained of by appellant is as follows:

“And that, thereupon, defendant Emma F. Ade was intentionally guilty- of such conduct as was calculated to prejudice plaintiff’s husband against plaintiff and to alienate him from her and to prevent a reconciliation between them, and that plaintiff was thereby deprived of the society, companionship, comfort, etc., . . . your verdict will be for the plaintiff.”

I. On a reconsideration of the case, we see no error in this instruction, nor was there any need for the modification of Instruction B. If the jury found that by the intentional interference of Emma Ade compja^ne(j ^ piain-(¿f£ wag deprived of the companionship of her husband, then plaintiff was entitled to a verdict. The appellant’s criticism of the instruction is without merit.

II. Appellant complains of the setting aside of the verdict against both of the defendants, the granting of. a new trial as to the defendant Carl Ade, the dismissal of the case as to him, and the rendi^on 0£ judgment against the defendant Emma Ade.

When the evidence for the plaintiff was closed, the court sustained a demurrer as to the defendant Carl Ade, and gave an instruction directing the jury to find a verdict in his behalf. As will be seen by instructions B and G-, given for the plaintiff, the court submitted the case solely on the issue between the plaintiff and the defendant Emma Ade; that is, if the jury found Emma Ade guilty of the conduct charged and plaintiff was thereby deprived of the companionship, etc., of her husband, the verdict should be for the plaintiff. It authorized a verdict solely against Emma Ade. Carl Ade was out of the case and no verdict could be or was in fact rendered against him. All that was necessary was a formal dismissal as to Mm. So it is apparent that the verdict and judgment disposed of all the parties and issues in the case.

Appellant relies on Hughey v. Eyssell, 167 Mo. App. 564, l. c. 565. As said in State ex rel. Dunklin County v. Blakemore, 275 Mo. 695, l. c. 703, it is unnecessary to 'discuss the soundness of the rule as applied in that case. The trial court, by its instruction, withdrew the case from the jury as to Carl Ade, and submitted the issues solely between the plaintiff and the appellant. We must assume the jury had sufficient intelligence to understand the instructions of the court and that they were not authorized to return-a verdict against Carl Ade. There was no' occasion for the court to set aside the verdict as against Carl Ade and grant him a new trial, for the simple reason that no verdict was returned against him. ,

The motion for rehearing is overruled.

All concur.


source: Caselaw Access Project

author: BAILEY, C.

license: Public Domain

text:
    THE STATE ex rel. AMERICAN CENTRAL INSURANCE COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    Division Two,
    July 19, 1921.
    1. ACTION AT LAW: Equitable Defense: Subrogation: Destroying Action. To convert an action at law into a suit in equity tbe matters set .up in the answer as constituting the equitable defense must, taken as true, destroy plaintiff’s right to recover, and must ask for affirmative relief on that ground.
    2. -: -: Action on Insurance Policy: Subrogation to Plaintiff’s Right. Where the trustee and mortgagee brought action on a fire insurance policy, which contained a rider to the effect that, when the company shall pay the loss to the trustee or mortgagee- and claim no liability to the mortgagor existed, it shall be legally subrogated to the rights’ of the party to whom the payment is made, said rider did not purport to destroy the plaintiffs’ legal action on the policy as their interest might appear, and a plea of its provisions in defendant’s answer, which also denied liability on the policy, did not convert the action at law into a suit in equity.
    3. -: -: -: -: No Payment. Where the trustee and mortgagee bring suit on a fire insurance policy, which contains a clause that the company, upon paying the loss to them, may be subrogated to all their rights under any securities executed by the mortgagor and held by them, a plea asking that defendant be so subrogated is unavailing, and so far as the plaintiffs are concerned states no equity, if the defendant has neither paid plaintiffs’ demand nor paid the amount thereof into court for their benefit. There can be no subrogation to a plaintiff’s rights until his demand has been paid.
    4. ACTION ON INSURANCE POLICY: Brought by Trustee and Mortgagee: Bringing in Mortgagor. In an action at law on a fire insurance policy brought by the trustee and mortgagee for the amount of the insurance upon the mortgaged property, it is not proper to require the mortgagor or his grantee to appear and plead to plaintiff’s cause of action, sinbe they are not only unnecessary parties, but have no interest in the controversy between the plaintiffs and the defendant insurance company.
    5. -: -: -: Concealment of Real Owner: Knowledge of Company: Action at Law. Property was conveyed to Martin and the deed recorded, and a fire insurance policy was issued to him as the insured; immediately thereafter, by an unrecorded deed, Martin conveyed to Krupnick, who was in fact the beneficial owner, and who executed certain notes to one of the plaintiffs and secured them by a deed of trust to the other as trustee, and said trustee and the payee of the notes bring suit on the policy. Defendant, by answer, prayed that Martin and Krupnick be made parties defendant, and pleaded that the policy was void because of the concealment from defendant of lack of title in Martin and of the interest of Krupnick. Being made parties, Martin disclaimed any beneficial interest and averred that the property was conveyed to him for the purpose of having it conveyed to Krupnick; Krupnick pleaded that he was the owner of the real estate, subject to the deed of trust; that defendant had full knowledge of all the facts before and after said policy was written, and with such knowledge received and retained the premium, and that ■ by reason of such knowledge the policy was not void. In its counter-plea, defendant denied it had said knowledge. Held, that these issues were purely legal in their nature and triable by a’jury; and that the action on the policy was not converted into a suit in equity, by a further plea by defendant that it was subrogated, by the terms of the policy, to the mortgagee’s right to the notes executed by Krupnick, for such plea^ did not purport to destroy Krupnick’s right of action, and even if it had it would have been unavailing, because defendant had not paid plaintiff’s demand.
    6. -: -: -: -: Waiver: Authority of Agent: Facts upon Certiorari. Upon certiorari to the Court of Appeals, in which it was ruled that the defendant insurance company was charged with whatever knowledge was acquired by its inspector a few weeks after the policy was issued, it will not be held by the Supreme Court that the facts shown in evidence were not sufficient to establish such knowledge or the inspector’s authority to waive any concealment by the insured of the true .ownership of the insured property, where, upon the partial facts recited in the opinion of the Court of Appeals, no ground for quashing its judgment appears, the entire evidence being presumably before the Court of Appeals, and only such portions of it can be considered by the Supreme Court as appear from its opinion.

      Certiorari.

    Wbtt quashed.

      Leahy é Saunders and David W. Voyles for relator.
    (1) With, reference to whether the opinion predicates waiver upon alleged knowledge of Brown, we quote from the opinion of the respondents, as follows: “It (appellant) knew of the claim or change of ownership certainly a few weeks after issue of the policy.” Since the status of the parties as of the date of the fire must have been in contemplation, and the adjuster learned nothing, according to the opinion of the respondents, until after the fire, this ruling in the opinion could only have referred to the knowledge, if any, acquired by Brown. (2) The right of an insurance company to subrogation is one of equitable cognizance, and a court of equity, having jurisdiction of the subject-matter, has power-to determine all incidental questions effecting the right claimed. Traders Ins. Co', v. Agricultural Ins. Co., 142 111. 338, 346. (3) The power of a court of equity is not limited to settle the rights of parties upon what has been done in the past, but it reaches forth and declares their rights and duties for the future, and in the exercise of this -power it will decree that when sureties have paid the debt of. their principal they shall be subrogated to the rights of the creditor. City of Keokuk v. Love, 31 Iowa, 119. (4) The doctrine requiring payment as a condition to the right of subrogation can only be invoked by the creditor for his own protection; and is never applied to defeat contract obligations, in the interest of the debtor alone. Skiiikle v. Huffman, 52 Neb. 20; Keokuk v. Love, 31 Iowa, 124; Motley v. Harris, 1 Lea (Tenn.) 577, 583; Sheldon on Subrogation (2 Ed.) sec. 128. See also, Comins v. Pottle, 35 N. J. Eq. 94. (5) The contract in this case by which, alone, the mortgagee could acquire rights in the insurance fund if the policy was void as to the mortgagor, specifically provided for subrogation. (6) Payment of the demand of a creditor without agreement that the securities be assigned or kept on foot for the benefit of the payor, extinguishes the debt absolutely. Sand-ford v. McLean, 3 Paige (N. Y.) 117, 23 Am. Dec. 773. And subrogation will never be decreed in favor of a mere volunteer. 25 R. C. L. sec. 11, Article “Subrogation.” Nor in favor of one who fails to assert his rights until rights of others intervene. Id., sec. 76. Hence, there is no equity in the contention that it was the duty of appellant to pay the policy without an assignment with the certainty that the mortgage would be surrendered and released, compelling appellant to take the chance that rights of third parties might intervene. Especially is this true, in view of the fact that an assignment pro tanto would in no manner have been detrimental to the mortgagee. (7) Where a contract of insurance provides for an assignment, the mortgagee is not entitled to payment without assigning the whole, or so much of, the security as would cover the amount due under the policy. Fire & Marine Ins. Co. v. Wetmore, 32 111. 221; Kip v. Ins. Co., 4 Edw. Ch. (N. Y.) 86; Attleborough v. Security Ins. Co.,’ 168 Mass. 148; Fire Ins. Co. v. Fidelity Trust Co., 123 Pa. St. 516. (8) No demurrer was filed, or any other objection made by any of the parties to the sufficiency of the cross-bill; the contention that it did not present a case in equity because the insurance company had not paid the policy, could not have availed Krupnick; yet he was made a party and failed to make the contention below; the point could only have been raised by the mortgagee, who, a party, failed to make it. Such contention could only have been made by the mortgagee, coupled with a showing that some detriment flowed to him from an enforcement of the contract providing for subrogation.

      George B. Webster and Elliott W. Major for respondents.
    (1) It was not error on the part of the circuit court to try the issues between Hayden and Meininger, as plaintiffs, and tbe relator, as defendant, by a jury, nor on the part of the Court of Appeals to affirm the judgment. R. S. 1909, sec. 1989; Rand-McNally Co. v. Wickham, 60 Mo. App. 44; Barnard Co. v. Monett Mfg. Co., 79' Mo. App. 153. The amended answer and cross-bill of the relator did not convert their action at law into a proceeding in equity, since it prayed no equitable relief against them. Lincoln Trust Co. v. Nathan, 175 Mo. 32; Thompson v. Bank, 132 Mo. App. 225. Subrogation is a species of relief which falls within the concurrent rather than the exclusive jurisdiction of equity. 4 Pomeroy on Eq. Jurisprudence (3 Ed.) sec. 1416. There is no conflict between anything in the opinion of the Court of Appeals in this case and the rule of the Lowenstein Case, 227 Mo. 100. (2) The opinion of the Court of Appeals in this case does not conflict with the decisions of this court in such cases as Myers v. Schuchmann, 182 Mo. 159, or Wendover v. Baker, 121 Mo. 273, because in those cases there was in the answer a prayer for affirmative equitable relief against the jjlaintiff, while here there is none. (3) There is no conflict with the opinion in Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, which case involved the fraudulent alteration of a policy, and was in effect a proceeding to reform, and rested wholly upon fraud or mistake. (4) The Court of Appeals did not come into conflict with the opinion of this court in the case of James v. Mutual Life Ins. Co., 148 Mo. 1, or any other opinion of this court, in its holding that the relator had knowledge of the true condition of the title, and waived its right to avoid the policy by retaining the premium and failing to act within reasonable time. Laying aside the evidence of Krupnick’s alleged conversation with Brown, the inspector, there was still ample ground and reason for the holding of the Court of Appeals in the testimony of Olsen, the relator’s adjuster, in which he admitted having acquired knowledge of Krupnick’s ownership of the property insured while adjusting another loss arising out of the same fire.
   BAILEY, C.

Petition for certiorari, by the State, on the relation of American Central Insurance Company, a corporation, against George' D. Eeynolds et ál., judges of the St. Louis Court of Appeals, to have this court quash the record of the Court of Appeals in the case of C. E. Hayden, Trustee, and others, against the American Central Insurance Company, 221 S. W. 437, and' following. It is contended by the relator here that the opinion of the Court of Appeals contravenes certain rulings of this court.

The facts, as set out in the above opinion, read as follows:

“This is an action on an insurance policy for $3,100, for a term of three years from January 21, 1914, at an annual premium of $46.50, the policy issued in favor of George P. Martin, as owner. By rider attached, in case of loss, the amount of insurance is payable to C. E. Hayden, trustee for Arthur 0. Meininger. The suit was instituted by Arthur 0. Meininger, mortgagee under the two deeds of trust, herein after referred to, and C. E. Hayden, trustee in those deeds of trust, against appellant, to recover, under the mortgage clause attached to the policy, the amount of insurance covered, total loss of the property insured, a frame dwelling, known as 1725 Princeton Avenue, being averred. Judgment was demanded for $3,100 under the policy, with interest from March 6, 1915, at six per cent per annum, and for $310 as damages for alleged vexatious delay, and for a reasonable attorneys’ fee. The suit was filed May 7,1915. Entry of appearance made by appellant, defendant below.

“On February 9, 1916, appellant filed its amended answer, and what is designated by appellant as a cross-bill, setting up in the answer that the policy was issued in the name of George F. Martin, as insured, but that the property insured was in fact owned by one Adolph Krupnick at the time the policy was issued, and it prayed that Martin and Krupnick be made parties defendant. Appellant averred that said policy was void, because of the concealment from it of lack of title of Martin and of the interest of Krupnick. By way of its cross-bill, as it is called by appellant, it set up the same facts, averred that by reason-thereof the policy was void, and sets out the subrogation clause as follows:

“ ‘It is also agreed that whenever this company shall pay to- the mortgagee or trustee any sum for loss under this policy, and shall claim that as to the mortgagor or owner, no liability therefor existed, it shall at once and to the extent of such payment be legally subrogated to all the rights of the party to whom such payment shall be made, under any and all securities held by such party for the' payment of said debt. But such subrogation shall be in subrogation to the claims of said party for the balance of the debt so secured. Or this company may, at its option, pay the said mortgagee or trustee the whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to,whom such payment shall be made an assignment and transfer of said debt, with all securities held by said party for the payment thereof. ’

“Appellant then avers that if plaintiff, as trustee or mortgagee, had any interest in or title to the property, or any right to the insurance under the policy, it (defendant insurance company), as insurer under the policy, claims its right to be subrogated to the rights of the mortgagee under the mortgage securities. The defendant further avers that Martin and Krupnick are necessary parties, interested in the subject-matter of the case, and that a complete determination of the action cannot be had without the presence of both of them.

“ ‘In that the defendant herein claims the right to be subrogated to the rights of the plaintiff, Arthur 0. Meininger, in and to the securities held by him, constituting a first and second lien, as stated in this answer, on the real estate, the legal title of which is in said George F. Martin, and the equitable title of which is in said Adolph Krupnick, and defendant therefore prays that the said George F. Martin and Adolph Krupnick be made parties defendant to said cause.

“ ‘Defendant states that frequently since the occurrence of said loss it has offered to pay to said plaintiffs $3,000 of said policy, provided the said plaintiffs transfer to defendant the said promissory notes secured by deeds of trust set out in the said petition, but that plaintiffs have declined and refused to transfer said promissory. notes secured by said deeds of trust, or to subrogate defendant to the rights of plaintiffs in said property.’ (The offer of $3,000 is under the erroneous supposition that the $3,100 also covered the outbuildings.)

“Admitting that it has not paid the policy but denying that its refusal was vexatious or for delay, defendant tenders into the court the premium received and the interest thereon.

“Plaintiffs’ reply was a general denial. Thereafter the court ordered that Martin and Krupnick be made parties defendant, each of whom filed a pleading by way of answer and reply. Krupnick averred that he had been the owner of said property since September 13, 1913, subject to the deeds of trust, averred that appellant, American Central Insurance Company, at all times had full knowledge of said fact, and denied that it was entitled to subrogation. .

‘ ‘ The answer of Martin was substantially to the same effect, except that he disclaimed any beneficial interest in the property, and stated that the deeds conveying the premises were made to him for the purpose of having the property conveyed to Krupnick.

“By way of reply to these pleadings, appellant specifically denied that it had any knowledge that Krupnick was owner, and of any conveyance from Martin to Krupnick, and averred that it first learned of these facts long after the occurrence of the fire, and that it has tendered into court the amount of the premium with interest.

“The first and second deeds of trust were executed September 12, 1913. The Night and Day Bank of St. Louis had prior thereto owned the insured property, referred to as the Princeton Avenue or Richmond Heights property. Adolph Krupnick, prior to that date, owned improved real estate on Dickson Street in St. Louis, also incumbered. With the aid of one Altheimer, a real estate agent, the bank (which carried the Richmond Heights property in the name of Arthus 0. Meininger), on September 12, 1913, traded the Richmond Heights property to Adolph Krupnick, for his interest in the Dickson Street property, Altheimer acting as agent for both parties. Krupnick at the time had some children by his former wife, since deceased, and for family reasons did not want to have his name of record as the owner of the real estate. Accordingly, Meininger, acting for the bank, made a deed conveying the Richmond Heights property to George P. Martin, a collector in the employ of Altheimer, Martin and his wife, contemporaneously therewith, executing the first and second deeds of trust upon the property, to secure notes payable to the order of Meininger. On the next day Martin and his wife executed a deed conveying the fee-simple title in and to the Richmond Heights property, subject to the deeds of trust, to Adolph Krupnick, and it was agreed between Altheimer and Krupnick that this deed would remain unrecorded in the possession' of Altheimer until such time as Krupnick called for it.

“There is no record evidence that either of plaintiffs knew that Martin had made the conveyance to Krupnick, or knew of the agreement between Altheimer and Krupnick that any deed should remain unrecorded. Nor was there any written application for the policy, the request for its issue having been made over the telephone to the defendant’s city office. It should also be noted that while defendant claims that the policy covered only $3,000 on the house, and that the $100 was on the outbuildings, etc., the policy itself calls for ‘$3,100 on the two-story, shingle-roof frame building and ' additions thereto,’ after which appears this: ‘Nil on fencing, stable and outhouses belonging to above-described building.’ These were not injured or destroyed.

“The first deed of trust was to secure a promissory note for $2,500 and interest notes in the sum of $75, one due every six months, until maturity of the principal note, which was due five years after date, or September 12, 1918.

“The second deed of trust, executed the same day, to-wit, September 12,1913, was to secure the sum of $875 purchase money, evidenced by fifty-eight promissory notes of $15 each, payable in from one to fifty-seven months after date,, and one note payable fifty-eight-months after date for $20.

“At the time of the fire these deeds of trust remained unpaid; and at the time of the trial there was still due on the first mortgage $2,500, and on the second mortgage $875, making a total of $3,375. The policy was issued January 21, 1914, for a premium of $46.50, insuring George F. Martin for the term of three years, from the 20th day of January, 1914, in the sum of $3,100, on the dwelling house in question. It is the New York standard policy, and contains provisions rendering it void in case of concealment or misrepresentation of any material fact or circumstance concerning the insurance or subject thereof, or if the interest of the insured be not truly stated, or if the interest of the insured be other than unconditional and sole ownership, or if the subject- of insurance be a building on ground not' owned by the insured in fee simple. The policy bears a mortgage clause providing that it is payable, in case of loss, to C. E. Hayden, mortgagee or trustee, as in the mortgage clause provided, which clause also contains the provision, among others, that the interest of the mortgagee or trustee shall not be invalidated by any act or neglect of the mortgag'd; or owner, etc.; provided, among other things, that the mortgagee or trustee shall notify the company ‘ of any change of ownership, or increase of hazard which shall come to his or their knowledge, and shall have permission for such a change of ownership or increase of hazard, duly indorsed on the policy,’ and further providing, that if the company ‘shall pay the mortgagee or trustee, any sum for loss under this policy, and shall claim that as to the mortgagor or owner, no liability therefor existed, it shall at once and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payment shall be made, under any and all securities held by such party for the payment of said debt.’

“The policy was applied for by the mortgagee, Arthur O. Meininger, and issued by the N. R. Wall & E. T. Campbell Agency Company, representing the appellant. Meininger, in making application for the policy, gave the name of George F. Martin as the owner of the property, and did not disclose the interest of Krupnick in the property. Meininger had been acquainted with Krupnick for a considerable time prior to making application for the policy, and Krupnick had told him before he applied for the policy that he owned the Princeton Avenue property. About February 11 or 12, 1914, the Wall-Campbell Agency Company made a request for an inspection of the physical condition of this property, and the inspection slip, or paper used for that purpose, was turned over to one Brown, who had been in the employ of the American Central Insurance Company for many years, whose authority was then limited to an inspection of the property and to the incidental duty, as appellant claims, - of reporting any facts he might learn regarding the ownership or hazard incident thereto. The inspection slip set out that the assured was George P. Martin; and under the head of ‘Occupancy,’ Brown filled in the words, ‘Dwl. of owner,’ along with some other notations as to the physical condition of the property, signed his name to it, and turned it in to the 'Wall-Campbell Agency Company.

“The fire occurred November 6, 1914, and a few weeks after the fire, one Olson, in the employ of the Western Adjustment & Inspection Company, insurance adjusters, who had been requested to adjust a loss sustained by Krupnick as to certain furniture, under a policy issued by some other company than appellant, took the furniture loss up with Krupnick and adjusted it, and in that connection was told by Krupnick that he owned the house. Neither Olson nor his employer had at that time been employed by the appellant herein to do any adjusting with reference to the policy in suit. Subsequently, however, when that Inspection Company was employed by appellant, Olson, learning shortly after the fire, that a claim was being made for the insurance by the holder of a deed of trust, took the matter up with Mr. Altheimer and inquired of him who George F. Martin was. Altheimer informed him that he was the third party in this transaction; that the policy had not been transferred nor the deed recorded, but that Mr. Krupnick was the owner. Olson then went to Clayton and examined the records of the Eecorder of Deeds and reported to appellant. What he reported does not clearly appear, but presumably that Krupnick was owner of the property — at least he, acting as adjuster for appellant, knew that. This was a few weeks after the fire.

“There is practically no controversy as to the facts in this case except with reference to the contention made by attorneys for Krupnick, that at the time the inspect- or, Brown, visited the dwelling, about February 11 or 12, 1914, after the policy was issued, which was on January 21, 1914, he knew that Krupnick lived there, greeted him by his name, and on that occasion was informed by Krupnick that he owned the property. Krupnick testified that, when Brown came to the house, he inquired, ‘Does Mr. Krupnick live here?’ and was informed by Krupnick that he did. Krupnick was corroborated in this by some of his children who were present. Brown denies that he had such knowledge or conversation.

“The case was called for trial on the 24th day of April, 1916, and over the protest of appellant the court directed that the issues between it and the respondents Meininger and Hayden be tried before a jury, excluding from said trial the other defendants, Martin and Krupnick; and at the end of that trial the court directed the jury to find a verdict in favor of said respondent, submitting, however, the question of vexatious delay.

“Thereafter, on the 1st day of May, 1916, the verdict of the jury in the first named trial having been received and filed by the court, the court proceeded to try the issues between appellant and defendants Martin and Krupnick, over the protest of appellant, before a jury in exactly the same manner, and, as before, at law. At the conclusion of this trial, the court submitted to the jury the issue raised by defendants Martin and Krupnick, that the policy, though invalid because of Martin’s lack of ownership at the time of the issuance of the policy, unless said provision was waived, was binding and valid if the jury found that Brown, while making inspection, was told by Krupnick that he was the owner, and that Brown made no objection nor suggestion to Krupnick that such fact would invalidate the policy,, and that the i appellant thereafter retained the premium and did not cancel the policy; that the appellant would be deemed to have thereby waived the provision of the policy relating to title to the property, and that, in that event, the jury should return a verdict that the policy was valid as to both Martin and Krupnick. Verdict was rendered to the effect that the jury found the issues for Martin and Krupnick and that the policy was valid* as to them.

“Motions for new trial having been duly filed by appellant, after both these verdicts, the court overruled them and entered judgment upon said verdicts, that is to say, upon the first verdict in favor of plaintiffs for the amount of the policy, plus $250 attorneys’ fees; and upon the second verdict, that the policy sued upon was valid as to Martin and Krupnick. Motions for new trial and in arrest of judgment were thereafter filed by appellant, and these motions being overruled, it prosecuted its appeal to this court.”

The’ amended answer and cross-bill filed by relator, which it is claimed converted the law action supra into one in equity, in substance, reads as follows:

(1) It admits that on September 12, 1913, the real estate described in the petition was improved with a certain dwelling known as 1725 Princeton Avenue, in Richmond Heights; admits that on the date above mentioned, said George P. Martin, executed and delivered to plaintiff Playden, as trustee, for the benefit of plaintiff Meininger, the deeds of trust described in plaintiff’s petition; admits, that on January 21, 1914, at the time when said deeds of trust were in full force and effect, defendant, in consideration of the premium of $46.50 then and there paid to it, issued the policy sued on against fire, for a term of three years, ending on January 20, 1917, and that a rider or clause attached, provided that any loss which may accrue under said policy, should be payable to C. E. Hayden, trustee; that on November 6, 1914, while said policy was in force, the building aforesaid was destroyed by fire.

Every other allegation in the petition is denied.

(2) Further answering, defendant states, that by the terms of said policy, it was agreed that said entire policy, unless otherwise provided by agreement indorsed thereon, or added thereto, should be void if the interest of said insured, George F. Martin, in said property, be other than an unconditional and sole ownership, or if the building be on ground not owned by said insured in fee simple, or if any change, other than death of the said insured, take place in the interest, title or possession of the said property, whether by voluntary act of the insured or otherwise.

(3) Defendant further alleges, that on Septembei 12,1913, Arthur 0. Meininger, one of the plaintiffs herein, executed and delivered to one George F. Martin, a deed in fee simple to lot 9 of Block 9, of Richmond Heights, being the property upon which the building covered by said policy was situated, and described in the petition; that on or about said date, said George F. Martin joined therein by his wife, executed and delivered to C. E. Hayden, plaintiff herein, the certain first and second deeds of trust, described in the petition; that thereafter on or about September 13, 1913, said George F. Martin, executed and delivered to one Adolph Krupniek an absolute deed to said real estate; that when said policy was issued,'on or about January 21,1914, said Krupniek, through said conveyance from Martin, was the absolute owner of said real estate, subject to the deeds of trust aforesaid; that said ownership and title were not known to defendant.

(4) That by the terms of said policy, it was agreed that if, with the consent of defendant, interest under said policy should exist in favor of the mortgagee, the conditions contained in said policy should apply in the manner expressed in such provision and conditions of insurance relating to such interest, as shall be written upon, attached or appended thereto; that the said George F. Martin and said C. E. Hayden and said Meininger, concealed from defendant at the time application was made for the policy of insurance sued upon by plaintiffs, the title and interest of said Krupniclc in said property; that his said title and interest therein were not made known to defendant, or insured, or mentioned in said policy; that by reason of said facts said policy was rendered null and void and of no effect at the time of said fire. Wherefore, having fully answered, defendant prays that it be hence discharged with its costs.

The foregoing parts of said amended answer, designated by way of convenience, as paragraphs 1,2,3 and 4, simply presented issues of law and fact for the consideration of a jury, without any equitable matter being presented as a defense or otherwise. The remaining portion of said amended answer, alleged to be a cross-bill demanding equitable relief, etc., in substance, reads as follows:

(5) Defendant states that said policy provided that $3,000 was the amount taken on said dwelling and $100 on the fences, stable and outhouses situated on said premises; that none of the fences, stable or outhouses, covered by said policy, were damaged by fire.

(6) This paragraph is the same as that marked (2) supra, and then continues: that if, with the consent of defendant, interest under said policy shall exist in favor of a mortgagee, or of any person having an interest in the subject-matter of said insurance, other than the interest of the insured described therein, the conditions contained in said policy shall apply in the manner expressed in such provisions and conditions of insurance, relating to such interest, as shall be written upon, attached or appended thereto.

(7) Defendant further states that it is provided in the rider attached to said policy, as follows:

“It is also agreed that whenever this company shall pay to the mortgagee or trustee any sum for loss under this policy and shall claim that as to the mortgagor or owner, no liability therefor existed, it shall at once and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payment shall be made, under any and all securities held by such party for the payment of said debt. But such subrogation shall be in subrogation to the claims of said party for the balance of the debt so secured. Or this company may at its option, pay the- said mortgage or trustee, the whole debt so secured, with all the interest which may have aceured thereon to the date of such payment, and shall thereupon receive- from the party to whom such payment shall be made an assignment and transfer of said debt with all securities held by said party for the payment thereof. ’ ’

(8) Further answering, the same facts are alleged as are set out in paragraph (2) supra.

(9) Defendant further states the same facts as are heretofore set out in paragraph (3).

(10.) Defendant further states the same facts as are set out in paragraph (4) supra; that said policy was not in full force on November 6, 3-914, as to said George F. Martin, when said property is alleged to have been destroyed or damaged by fire.

(11) Defendant further states that, by reason of said Krupnick’s ownership of said property, said policy became null and void; that defendant is not liable to said George F. Martin, or to said Adolph Krupnick; that if said plaintiffs, as trustee or mortgagee, at the date of said loss or damage, had any interest in said property, and have any right to insurance under said policy, defendant claims its right to pay to said trustee, the amount, if any, due under the terms of said policy, payable on account of said loss and damage, and .to be subrogated to the interest of the said mortgagee in the deeds of trust described in plaintiffs’ petition.

(12) Defendant further states that said George F. Martin and Adolph Krupnick are necessary parties, and are interested in the subject-matter of this case; that a complete determination of this action ca'nnot be had without the presence of both of said persons, in that the defendant herein claims the right to be subrogated to the rights of plaintiff, Arthur Meininger, in and to the securities held by him constituting a first and second lien, as stated in this' answer, on the real estate, the legal title to which is in said George F. Martin, and the equitable title of which is in said Adolph Krupnick. The defendant, therefore, prayed that said Martin and Krupnick be made defendants in the cause.

(13) Defendant states that frequently, since the occurrence of said loss, defendant offered to pay said plaintiffs $3,000 of said policy, provided said plaintiffs transfer to defendants the said promissory notes secured by deeds of trust, set out in petition, but that plaintiffs have declined and refused to transfer said notes or to subrogate defendant to the rights of plaintiffs in said property.

(14) Defendant admits that it has not paid said policy, but denies that defendant’s refusal to pay the same has been vexatious or for delay.

(15) Defendant further states that the premium, amounting to $46.50 for said policy, was paid to it February 6, 1914, and defendant hereby tenders to said George F. Martin, Adolph Krupnick and the plaintiffs herein, and now brings into court and deposits the same with the clerk thereto, the sum of $46.50, with interest thereon from February 6,1914, amounting to $5.73, making a total of $52.23. •

,(16) Said answer and cross-bill then concludes with a prayer that judgment be entered in defendant’s favor and against plaintiffs. It further prays that if the court should, find in favor of plaintiffs, it order and direct them to transfer to defendant the said notes and deed of trust set out in petition, and for a decree to the effect that defendant should stand subrogated to all and singular the rights of said mortgagee as holder of said mortgage lien, and for such other and further orders and decrees as in the premises may be 'just and proper.

Relator, in due time, filed a motion for re-hearing in the Court of Appeals, in above entitled cause, which was overruled and the present writ applied for by the defendant to quash the record and judgment of said court.

I. Relator’s first assignment. of error, reads as follows:

“In holding that this cause was properly tried as at law and that it should not be tried as in equity, the decision of the court is in conflict" with the previous controlling decisions of this court holding that where a cross-bill presents not only an equitable defense, but seeks affirmative relief which a court of equity alone has power to give, the cause is triable as a cause in equity.” In support of that contention, Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, l. c. 94; Myers v. Schuchmann, 182 Mo. 159, l. c. 171, and Wendover v. Baker, 121 Mo. 273, l. c. 289, are cited.

In passing upon relator’s contention, and the authorities cited in support of same, it is important that we should keep in mind the issues presented by the pleadings in the case.

Hayden as trustee, and Meininger as cestui que trust, sued upon the policy in controversy as mortgagees, under the rider attached to said policy, to recover .$3,100. The alleged equitable matters set up in defendant’s amended answer simply related to the subject of subrogatioji, on the theory that defendant had the right to pay off the demand of plaintiffs and take an assignment from them, etc. The equity relied on by defendant did not purport to destroy plaintiffs’ legal action on the policy as their interests might appear. On the contrary, relator was defending on the merits at law, and if this defense proved unavailing, it desired relief in equity, by being subrogated, to plaintiff’s rights .in the premises, on the theory that it had paid their demand. On the record thus presented, we are decidedly of the opinion that the Court of Appeals was within the law, in holding relator’s amended answer aforesaid did not convert plaintiffs’ case into a proceeding in equity.

In Colburn v. Krenning, 220 S. W. (Mo.) l. c. 937, we had occasion to consider this question very carefully, where an alleged cross-bill in equity was filed, presenting substantially the same kind of a question as that now under consideration. We there gave expression to our views in the following language:

■ “It may be conceded in passing, that where plaintiff is asserting an action at law, if the defendant, in his answer, pleads matters of an equitable nature, and asks for affirmative equitable relief, ivhich, if taken to be true, would destroy plaintiff’s case, or show that he never had a valid cause of action, the whole case would be converted into a proceeding in equity. Under such circumstances, it is generally held that the equitable answer thus filed converts the entire action into a proceeding in equity to be tried by the court.

“Upon a careful consideration of the authorities, we have not been able to find any case going to the extent of holding that an answer like the one before us could deprive a plaintiff of his constitutional right of trial by jury.” (Italics ours.)

The same principle is announced in the following ■cases: Fulton v. Fisher, 239 Mo. l. c. 131; Lincoln Trust Co. v. Nathan, 175 Mo. l. c. 42, 74 S. W. l. c. 1008; Mathiason v. St. Louis, 156 Mo. l. c. 200; Joyce v. Growney, 154 Mo. 253.

Turning to the three cases relied upon by relator under this proposition, we find that neither is in conflict with the law as heretofore declared. In Carter v. Insurance Co., 275 Mo. 84, and following, plaintiff sued on a life insurance policy. The answer set up an equitable defense, alleging that the policy was obtained through fraud, etc., and the court was asked to cancel the same. The equitable defense thus pleaded, destroyed plaintiff’s right to recover on the policy and, hence, under the rule heretofore announced, converted the whole case into a proceeding in equity. In Myers v. Schuchmann, 182 Mo. 159, relied upon by relator and cited in the Carter Case, plaintiff sued in ejectment. The answer alleged that the deed from Balch to plaintiff was made through mistake and in fraud of the rights of defendants, etc.' It concluded with a prayer to cancel said deed, etc. The equitable relief sought in the answer destroyed plaintiff’s case. Under the circumstances, the trial court properly disposed of it as a proceeding in equity. In Wendover v. Baker, 121 Mo. l. c. 274, and following, reied on by relator and cited in the Carter case, the plaintiff sued on three promissory notes. Defendant, in his answer, set up an agreement by which said notes were to be cancelled, alleged that he had complied with his part of said agreement, and concluded the answer with a prayer, that plaintiff be restrained from prosecuting her action at law, and that said notes be .cancelled, and surrendered to him. The facts stated in said answer, if true, destroyed plaintiff’s right of recovery on said notes, and entitled him to the equitable relief prayed for. The entire case was, therefore, converted into a proceeding in equity, and should have been disposed of by the trial court accordingly.

The foregoing contention of relator is without merit. •

(a) There was no equity in said answer so far as plaintiffs were concerned, for the obvious reason, that defendant never paid the amount of their demand. . If it insisted on being subrogated to plaintiffs’ rights, it Payment. should have paid the latter’s demand, or paid the saíne into court, and asked for an order subrogating it to plaintiffs’ rights, etc.. Even without an order of court, or the formal assignment of securities held by plaintiffs, the payment of plaintiffs ’ demand, would have entitled relator to equitable subrogation. [25 Ruling Case Law, sec. 8, p. 1320.] The above subrogation, however, had nothing whatever to do with plaintiffs’ right to recover on the policy as mortgagees.

(b) The trial court erred in requiring Martin and Krupnick to appear and plead in plaintiffs’ case, as they were not only unnecessary parties therein, but had no interest in the controversy pending between relator and plaintiffs. [Fulton v. Fisher, 239 Mo. l. c. 131-2.]

II. Although the trial court improperly required Martin and Krupnick to be joined as parties to plaintiffs’ action, yet they appeared and plead therein. Martin disclaimed any beneficial interest, and answered that the premises were conveyed to him for the purpose of having said property conveyed to Krupnick. The latter pleaded to said action, after having been brought in at the instance of relator, and alleged, in substance, that he was the owner of the real estate in controversy, subject to said deeds of trust; that said insurance company had full knowledge, at the time it wrote the policy, of all the facts stated in said pleading; that it had full knowledge before and after said policy was written, of all the facts aforesaid, and, with this knowledge, kept and retained the amount of premium paid for said insurance ; that by reason of the foregoing, said insurance was not void, etc. The relator pleaded to said answer, and denied that it had any knowledge of the above facts pleaded by Krupnick.

It will thus be seen that the issues between Krupnick and relator were purely legal in their nature, and properly triable before a jury. The equitable matter set out in the cross-bill, did not purport to destroy Krupniclt’s right of action, but was pleaded as subrogation, without paying plaintiffs’ demand as heretofore shown. The authorities cited in the preceding proposition apply with' equal force to the above facts. The case was,'therefore, properly tried throughout as an action at law, and the Court of Appeals was right in so holding.

III. Eelator’s second assignment of error, reads as follows: •

“The decision of the Court of Appeals that the relator is charged with whatever knowledge was acquired a few weeks after the issuance of policy, by its inspector Brown, though such knowledge, if any, was not shown to have been communicated by Brown to any superior agent or officer of the relator, is in conflict with the previous controlling decision of this court in the case of James v. Mutual Life Insurance Company, 148 Mo. 1, l. c. 11, in that said Brown was not shown to have received such authority from the relator as would constitute him. the agent of relator with power to bind the relator by his acts and knowledge as if under the circumstances the relator had acted for itself.”

The James Case, supra, came to this court on appeal from the circuit court, and all the evidence was before us. Upon page 13 of the James Case, it was said: “The question of waiver is, like any other fact in the case, essentially a matter for the jury.”

The entire evidence was presumably before the Court of Appeals, but only such portions of same can be considered here as appear from the opinion of the Court of Appeals. [State ex rel. Bush v. Sturgis, 221 S. W. (Mo.) 91.] On the partial facts before us, we find no grounds for quashing the record and judgment of the Court of Appeals on account of alleged conflict between its opinion, and that of this court in the James Case supra. The above contention is accordingly overruled.

IY. Relator’s third assignment of error reads as follows:

“The decision of the Court of Appeals discloses facts conclusively proving that relator at the date of the fire is not liable under said- policy to Martin, the mortgagor; alld in refusing, as in equity, to consider and enforce subrogation as provided in the mortgage clause, as an incident to a .finding of the court that relator is liable to pay the mortgagee under the mortgage clause, the decision is in conflict with the previous controlling decisions of this court that a person secondarily liable, who pays the debt of another, is, as against the debtor primarily liable, entitled to be subrogated to all the rights of the creditor under the securities held by him. [Loewenstein v. Queen Insurance Co., 227 Mo. 100, l. c. 117.]”

The main points relating to this assignment of error have been fully considered under propositions one and two of this opinion. We hold that there is no conflict between the conclusions reached by the Court of Appeals in this case, and the principles of law declared in the Loewenstein Case above mentioned.

V. It is undisputed in this case .that no part of the loss sustained by plaintiffs has ever been paid. The relator was not entitled to be subrogated to ^ rights and remedies of plaintiffs until it had paid their demand. The alleged equitable defense injected into the cause did ndt convert the case into a proceeding in equity. On the contrary, it was properly disposed of as a proceeding at law. • Under the circumstances, there was no place for equitable subrogation in the case. The opinion of the Court of Appeals is in harmony with the former rulings of this court.

The writ heretofore issued is accordingly quashed.

Moéley and White, CG.‘, concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.