source: Caselaw Access Project

author: BURGESS, J. PER CURIAM.

license: Public Domain

text:
    W. F. GORDON, Administrator of Estate of HARRY L. PANGLE, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division Two,
    July 13, 1909.

    1. NEGLIGENCE: Defective Car: Defendant’s Knowledge ¡Cause of Injury. Where a switchman sues for damages for personal injuries received by him while attempting, in the line of his employment, to uncouple a caboose attached to a moving train, charging his injuries to be due to a defective handrail which gave way as he was in the act of mounting the car, the burden is upon him to prove (1) that the defect in the handrail existed at the time and was the cause of the injury, and (2) that defendant had knowledge, either actual or constructive, for a sufficient length of time prior to the injury, to have enabled it, by the exercise Of reasonable care, to repair the defect. But it is not necessary to prove either of these essential elements of his case by direct and positive testimony, but they may be established by facts and circumstances.
    2. -: -: -: -: Plaintiff's Testimony. According to the plaintiff’s testimony the handhold of the caboose, which he took hold of in order to get upon the car for the purpose of uncoupling it, was loose, shaky and wabbly, and would play backward and forward eight or nine inches, and it was then in exactly the same condition it was two weeks before when it was on the track leading to the repair shop. Held, that it was the duty of defendant to keep the handrail in a reasonably safe condition for its employees required to use it, and that the court cannot hold that there was no evidence of negligence on defendant’s part without ignoring the plaintiff’s testimony, and that the court has no right to do.
    3. LIBERAL CROSS-EXAMINATION: Memorandum Book. A liberal cross-examination of an adverse or unfriendly witness is permissible, for the purpose of ascertaining his feelings or bias, or for testing his memory respecting the facts to which he has testified. And where the witness had testified that he had inspected the car, whose defective handrail plaintiff’s evidence tended to show caused plaintiff’s injury, and found no defect in the car, and that his memorandum book so showed, it was permissible to permit plaintiff, by liberal cross-examination, not only to test his memory, but the accuracy and reliability of his memoranda.

      4. EVIDENCE: Admission of Employee: Impeachment: Res Gestae. Where the switchman’s testimony tended to show a loose and wabbly handrail on the car and that such defect caused his injury, and defendant’s yard foreman testified that he examined the handrail about an hour and a half after the accident and found it in good condition and that it was not loose or wabbly, it is proper, for purposes of impeachment, to permit plaintiff’s mother to testify that, about an hour after the accident, she asked the same yard foreman how her son was injured and that he said her son “took hold of that> old loose handrail of the' caboose and fell,” and that he had “been trying to have it put in the repair shops for a month.” The statements of the foreman, being in reference to a past event, upon which he had no authority from defendant to speak, were not admissible as a part of the res gestae, but they were admissible as contradictory of his testimony on a material matter, proper foundation for his impeachment having been laid by asking him if he had not made the statements to plaintiff’s mother.
    5. -: -: -: Hearsay. And though the mother • testified that the foreman made the statement about an hour after the accident and the foreman testified he examined the handrail about an hour and a half after the accident and then found it to be in good condition, the foreman’s statements cannot be held to have been mere hearsay, since the record • does not show that the statements he made to the mother were based upon what he had heard, but it shows that he made them of his own personal knowledge and as facts.
    6. CONTRIBUTORY NEGLIGENCE: Mounting Moving Car: Custom. Where a custom prevailed in the yards for the switch-men to go upon moving cars to uncouple them, and plaintiff was directed by the foreman to hurry, it was not negligence, as a matter of law, for the switchman to attempt to board a car moving four miles an hour.
    7. -: Safer Way: Boarding at Front End: Caboose. Where the doors of cabooses were generally locked as they came into the yards, and the time for uncoupling the caboose before the train reached the switch was short, the switchman was not, as a matter of law, guilty of negligence in trying- to board the caboose at the front end where the uncoupling was to be done, even if the rear end was safer. At most his contributory negligence was a question for the jury.
    8. -: Uncoupling: Not Using Lever. The switchman, in attempting to uncouple the caboose, was not guilty of contributory negligence in not using the lever at the side of the car, it being neoessary for him to get on the platform in order to put on the brake and stop the car before the train reached the switch.

      9. EVIDENCE: Bias of Witness: Drunkenness. It was not reversible error to permit plaintiff, on cross-examination of defendant’s conductor, who had given damaging testimony against plaintiff, to ask him if he had not been discharged by defendant for drunkenness and now had an application on file for reinstatement. The evidence showing the witness was in the habit of getting drunk was, of itself, inadmissible, but it was incidental to the more important question of his discharge and his application for reinstatement, which went to affect his credibility, by indicating his bias and interest in the suit, and it is always permissible to permit a showing of a witness’! bias or interest.
    10. JUROR: Dismissal of Panel. There is no merit in defendant's contention that the court should have dismissed the entire panel because one man was excused because he testified that he had read about the case in newspapers and thought at the time that plaintiff should have damages, but the matter, then passed out of his mind and he had thought no more about it.
    11. EXCESSIVE VERDICT: $35,000. The plaintiff was an able-bodied man, twenty-nine years old, earning $90 per month. His back and five' ribs were broken, his pelvis and hip bones mashed, and he was bruised throughout his entire body. His injuries resulted in total paralysis from the middle of his back down, so that he had no control of the functions of the body, and could not sit up except when propped by pillows. His suffering during his life thereafter was intense. He appeared at the trial, but since has died. The verdict was for $50,000, and the trial court required a remittitur of $15,000. Held, that the judgment for $35,000 is still excessive by $10,000, and plaintiff is required to file a further remittitur of that amount as a condition of affirmance, the balance to bear interest from date of verdict.
    Appeal from Vernon Circuit Court. — Hon. L. W: Shafer, Judge.
    Affirmed on condition.

      S. W. Moore, Cyrus Crane and H. C. Clark for appellant.
    (1) The evidence as to defendant’s negligence was not sufficient to warrant the submission of this case to the jury, (a) The necessary elements were not established by the evidence. Bowen v. Railroad, 95 Mo. 268; Hamilton v. Railroad, 123 Mo. App. 619; Bnrnes v. Railroad, 129 Mo. 53; Glasscock v. Dry Goods Co., 106 Mo. App. 663; Hester v. Dold Packing Co., 84 Mo. App. 451; Bennett v. Lumber Co., 116 Mo. App. 710; Kelly v. Railroad, 105 Mo. App. 375; Howard v. Railroad, 173 Mo. 531; Murphy v. Railroad, 71 N. W. 662; Johnson v. Railroad, 36 W. Va. 73; Railroad v. Thompson, 11 Tex. Civ. App. 658; Perry v. Railroad, 65 N. W. 608 ; Railroad v. Wagoner, 33 Kan. 667; Carruthers v. Railroad, 55 Kan. 600; Ahearn v. Railroad, 45 Atl. 1032; Riley v. Campbell, 59 Eed. 990; Railroad v. Ledbetter, 8 P'ac. 411. (b) The presumption existed that the master had done his duty in keeping the instrumentalities in a reasonably safe condition. Wood on the Law of Master & Servant, sec. 382, p. 754; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Franklin v. Railroad, 97 Mó. App. 482; Railroad v. Lindamood, 78 S. W. 100; Kincaid v. Railroad, 29 Pac. 3; Duntley v. Inman, etc., 42 Ore. 334; Droney v. Doherty, 186 Mass. 205. (2) The court erred: (a) In admitting testimony of repairs made on caboose car No. 531 after the accident occurred. 1 Elliott on Evidence, sec. 228, p. 327; Ely v. Railroad, 77 Mo. 36; Hipsley v. Railroad, 88 Mo. 348. (b) This error was not cured by the instruction given at plaintiff’s request, attempting to limit the effect of this testimony. Cobb v. Griffith, 12 Mo. App. 130; Meyer v. Lewis, 43 Mo. App. 417; Mueller v. Weitz, 56 Mo. App. 36; Stephens v. Railroad, 96 Mo. 207;, Seafield v. Bohne, 169 Mo. 546. (3) The court erred in admitting evidence of the declarations of Manker, the yardmaster, which were not part of the res gestae and were not binding on defendant. 1.' The declaration was not part of the res gestae and was not proper as an admission against defendant’s interest. Koenig v. Railroad, 173 Mo. 698; Ruschenberg v. Railroad, 161 Mo. 70; Adams v. Railroad, 74 Mo. 553; Barker v. Railroad, 126 Mo. 143; Devlin v. Railroad, 87 Mo. 545. 2. The declaration admitted was- not competent as impeaching testimony. Hamburger v. Rinkel, 164 Mo. 398; Roe v. Bank of Versailles, 167 Mo. 406; Wojtylak v. Coal Co., 188 Mo. 288; Covey v. Railroad, 86' Mo. 635. (4) The court erred in allowing the case to go to the jury, because plaintiff was guilty of negligence as a matter of law. 1. In doing the work when the train was in motion instead of at a standstill. 2. In boarding the caboose at the front end instead of the rear end. Bailey’s Personal Injuries Relating to Master and Servant, secs. 1121 and 1123; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Smith v. Forrester-Nace Box Co., 193 Mo. 715; Patton v. Railroad, 179 U. S. 658. 3. In not using the lever to the automatic coupler. Federal Safety Appliance Act, sec. 2; Gilbert v. Railroad, 128 Fed. 529; Dawson v. Railroad, 114 Fed. 870; Morris v. Duluth, 108 Fed. 747; Railroad v. Brady, 161 Fed. 719. (5) The court erred in permitting plaintiff to show on cross-examination of Conductor Marsh that he had been discharged for drunkenness. 1 Elliott on Evidence, sec. 167, p. 229; 3 Ency.. of Evidence, p. 756; State v. Grant, 144 Mo. 63; Hancock v. Blackwell, 139 Mo. 445; Vawter v. Hultz, 112 Mo. 639; Culbertson v. Railroad, 140 Mo. 57; Shaefer v. Railroad, 98 Mo. App. 454; State v. Clawson, 30 Mo. App. 143; Seymour v. Farrell, 51 Mo. 97; Wright v. Kansas City, 187 Mo. 693; State v. Rogers, 108 Mo. 202; State v. Gesell, 124 Mo. 535. (6) The damages are excessive. Markey v. Railroad, 185 Mo. 366; Devoy v. Railroad, 192 Mo. 225; Waldhier v. Railroad, 87 Mo. 37; Furnish v. Railroad, 102 Mo. 438; Burdict v. Railroad, 123 Mo. 236; Nicholds v. Plate Glass Co., 126 Mo. 68; Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 141 Mo. 112; Markey v. Railroad, 185 Mo. 365; Chitty v. Railroad, 166 Mo. 443; Stolze v. Railroad, 188 Mo. 581; Reynolds v. Eailroad, 189 Mo. 408. (7) In this case a mere remittitur will not he sufficient to cure the wrong verdict of the jury as manifested in the excessive award made. This excessive award, coupled with the further errors in the record and with the whole proceedings as disclosed by the record, shows clearly that the verdict was the result of passion and prejudice, or in other words, was not a just, true and fair verdict. Lindsay v. Kansas City, 195 Mo. 182; Norris v. Whyte, 158 Mo. 36 ; Spohn v. Eailroad, 87 Mo. 84; Cook v. Eailroad, 94 Mo. App, 417; Fullerton v. Fordyce, 144 Mo. 519; Nicholds v. Crystal Plate Glass Co., 126 Mo. 68,

      Seott & Bowher, Arthur F. Mullen and M. F. Harrington for respondent.
    (1) Owing to the severe and terrible character of the injuries and suffering sustained by the respondent in this case, the judgment of the court entered therein is not excessive. Waldheir v. Eailroad, 87 Mo. 37; Devoy v. Eailroad, 192 Mo. 197; Markey v. Eailroad, 185 Mo. 365; Eeynolds v. Eailroad, 189 Mo. 408; Stotler v. Eailroad, 200 Mo. 107; Smith v. Whittier, 95 Cal. 279; Friedman v. Eailroad, 41 111. App. 270; Erickson v. Eailroad, 32 N. Y. Supp. 915; Ehrman v. Eailroad, 60 Hun 580; Herrald v. Eailroad, 24 Hun 184; Witrak v. Eailroad, 65 N. Y. Supp. 257; Fonda v. Eailroad, 79 N. W. 1043; Kelley v. Eailroad, 80 S. W. 1073; Whitehead v. Eailroad, 114 N. W. 467; Eeeves v. Gas Co., 92 Pac. 89; Snell v. Waters-Pierce Oil Co., 106 S. W. 107; Wallace v. Eailroad, 45 So. 857; Barton v. Eailroad, 130 111. App. 573. (2) The fact that one witness is contradicted by a number of witnesses, or as many as twelve witnesses, and that the verdict of the jury is based upon the testimony of the one witness, is no ground for saying that the verdict of the jury is the result of passion, prejudice or corruption. Drake v. Kansas City, 190' Mo. 370; Widman & Co. v. St. Joseph, 191 Mo. 459. (3) The question of whether or not respondent was guilty of contributory negligence at the time he received his injury, under the testimony ifi this case, was a question for the jury. Brady v. Railroad, 206 Mo. 509; Edington v. Railroad, 204 Mo. 61; Curtis v. McNair, 173 Mo. 270; Charlton v. Railroad, 200 Mo. 413; Dean v. Railroad, 199 Mo. 386; O’Mellia v. Railroad, 115 Mo. 205; Murphy v. Railroad, 115 Mo. Ill; Hollenbeck v. Railroad, 141 Mo. 97. (4) It was negligence on the part of appellant to have a car in use upon its railroad with a defective handrail. Parsons v. Railroad, 94 Mo. 286; Settle v. Railroad, 127 Mo. 336. (5) Evidence of custom in the character of tools and appliances furnished and in general use, and also the manner and method of performing certain services, is admissible on the question of negligence and contributory negligence. Brady v. Railroad, 206 Mo. 509 -, Eddington v. Railroad, 204 Mo. 61; O’Mellia v. Railroad, 115 Mo. 205; Minnier v. Railroad, 167 Mo. 99; Minnier v. Railroad, 115 Mo. App. 152. (6) The question of whether or not respondent pursued the safest course, or rather a dangerous course to perform his duty for the appellant at the time he was injured, or pursued such a course as would make him guilty of contributory negligence under the doctrine that when there is a safe way and an unsafe way for the servant to perform his duty, was for the jury. Brady v. Railroad, 206 Mo. 509; Eddington v. Railroad, 204 Mo. 61; Murphy v. Railroad, 115 Mo. Ill; O’Mellia v. Railroad, 115 Mo. 205. (7) A party has a right to show that a witness who has testified to material facts in issue has made contradictory statements in regard to such matters even after the accident for the purpose of impeaching the credibility of such witness. Spohü v. Railroad, 101 Mo. 417; Mullen v. Railroad, 196 Mo. 572; State v. Forsha, 190 Mo. 296; Kenner v. Railroad, 69 Mo. App. 312; Hamilton v. Mining Co., 108 Mo. 364; Fry v. Railroad, 200 Mo. 406; Spokn v. Railroad, 122 Mo. 1. (8) A wide latitude is allowed on cross-examination of an opposing witness and any question tending to test his memory, means of knowledge, accuracy and veracity is admissible, and such an examination is largely within tke discretion of tke trial court. Mebford v. Railroad, 121 Mo. App. 647; State v. Nelson, 101 Mo. 464; State v. Boyd, 178 Mo. 2; Rickards v. Bank, 119 Mo. App. 18; State v. Smith, 190 Mo. 706. (9) Even wkere testimony is admissible fo.r some purposes and is so admitted by tke court at tke time without limiting its effect, yet wkere tke court does limit tke effect of suck testimony by’ proper instructions, tkis is all tkat is necessary. Bennen v. St. Louis, 92 Mo. 482; McDermit v. Railroad, 87 Mo. 285; Farmer v. Farmer, 129 Mo. 530; Baustian v. Young, 152 Mo. 317; Garesche v. College, 76 Mo. 332. (10) Tke cross-examination of J. W. Marsh, tke conductor, showing tkat he had been discharged for drunkenness, was not erroneous. Tke matter of cross-examination is largely within tke discretion of tke trial court and is not reversible error unless grossly abused. Hirsck v. Green, 83 Mo. App. 487; State v. Hack, 118 Mo. 92; State v. Boyd, 178 Mo. 2; State v. Harris, 150 Mo. 56.

      Note. — Decided May 18, 1909. Motion for rehearing filed. Motion overruled July 13, 1909.

   BURGESS, J.

This is an action for damages for personal injuries, in wkick Harry L. Pangle, now deceased, recovered a verdict for $50,000, but wkick was reduced by tke trial court to $35,000, and judgment entered for that sum. Defendant’s motions for a new trial and in arrest of judgment having been overruled, an appeal was taken to tkis court.

Harry L. Pangle was employed, as switchman by tke defendant company in its railroad yards in tke city of Pittsburg, Kansas. His duty as switchman required Mm to follow the switch engine, and switch and uncouple cars, and to meet trains coming into the yards and make such disposition of them as might he ordered by the yard foreman. Pittsburg was a division pomt on defendant’s line, and engines, cabooses and train crews were changed there. The defendant’s switch-yards extended some distance south of the station. South of the yards the defendant’s line was crossed twice by the Frisco tracks, and further north was the Santa Fe railroad crossing. Incoming’ trains from the south stopped at the first Frisco crossing, if the gate which was there for protection was turned against them, and always stopped before reaching the next Frisco crossing’, further north, without any signals whatever. At the Santa Fe crossing the trains from the south also stopped unless there was a yardman present to signal them to cross. Further north, and at a point where the defendant company’s switches commence, was a box fixed on a post, in which box it was customary to put slips containing directions for the trainmen of the different trains as to what track they should take in coming into the yards.

On the 16th day of April, 1904, the day of the injury complained of, a freight train was due to arrive from the south, its destination being Kansas City, Missouri, and at Pittsburg the train crew, engine and caboose on this train had to be changed. This was known as a “hurry-up-train,” being largely composed of fruit cars, and was required to be operated quickly and sent on to Kansas City. Just before the time the train was bound to arrive, C. TI. Manker, the yard foreman, ordered Pangle to take a caboose down to the south end of the yards to attach to this train, and also ordered him to take the slip out of the box in question containing directions for this tram, and send the train up the main, line, and to cut off the caboose and “clear the switch,” the yard foreman stating to bim at the same time that he was in a hnrry to get the train out. Pangle and his associate, Meeks, as directed by Manker, attached a caboose to an engine and placed this caboose, which was to be attached to the train, at a switch. He then took the slip out of the said box, and proceeded south to meet the train and execute the other orders of the foreman. After the train had crossed the last Frisco crossing, some distance south of the company’s switches, Pangle gave a signal indicating that the train' should keep to the main line, and as the engine passed slowly by him he told the engineer and the head brakeman, who was on the engine, to pull up on the main line, and he then went south to meet and get on the caboose and uncouple it. The train was then moving at a speed of about four miles an hour. In order to cut off the caboose and clear the switch it was necessary to get up on the forward end of the caboose and turn the angle cock to let out the air and pull out the pin that coupled the caboose to the next car. As the caboose came by him he reached out and took hold of an upright iron handrail on the forward end of the car, which handrail was used by any one attempting to get on the steps. This handrail, however, was very loose, and as Pangle grasped it in attempting to get on, it swayed or wabbled backwards some seven or eight inches, causing his foot to miss the step. He then got his left knee on the bottom step, his right foot being dragging on the ground, and as he attempted to pull himself up the handrail flopped forward ten or twelve inches, causing him to lose his hold and to fall between the steps of the caboose and the forward car. He was caught by the truck .frame or brake-beam of the caboose, doubled up and rolled over, and received injuries of the most serious and painful character. His back was broken, as were several of his ribs, and he was bruised and maimed in his entire body. He was taken to a Kansas City hospital, and later to a hospital at Chicago, where he was operated upon by Dr. Seim, an eminent surgeon. He became totally paralyzed from the dorsal region down, needed assistance all the time in the performance of the functions of his body, and at the time of the trial his body had to be propped up and supported on the witness chair. According to counsel, Pangle died of his injuries about a year after the trial.

The testimony on the part of plaintiff showed that the defendant company maintained a repair shop at Pittsburg, and that when a car needed repairing it was placed on the tracks leading to the repair shop and marked with a red tag indicating that it was in “bad order.” Pangle testified that about two or three weeks prior to the date of the injury, he and one Meeks took this same caboose, the number of which was 531, and placed it on the track leading to the repair shop, and that it was then marked with a “bad-order” tag. He noticed at the time that the handrail referred to was loose and shaky, and saw Mark Ditto, an employee of the company, examine and shake said handrail, and as he shook it its movements would loosen the ratchet that held the brake on the end of the caboose. Pangle further testified that after a car which was in bad condition was marked with a “bad-order” tag and placed on the tracks leading to the repair shop, the general rule was that when the car again came out it was in good order, and that on the 16th day of April, 1904, when he attempted to board the caboose in question he did not know its actual condition nor the condition of the handrail, but he “believed it to be all right.” He had not seen this caboose from the time he saw it placed on the repair track until he attempted to mount it on this day. It was further shown by the evidence that during all the time Pangle worked for the defendant company it was the custom in the Pittsburg yards to couple and uncouple cars while the train was in motion, as well as while standing still, and that cars were coupled and uncoupled while moving at a speed of- “six and eight and ten miles, and as high as twelve miles an hour.”

There was no evidence that said caboose received any repairs from the time Pangle saw it on the repair track, in bad condition, until the time he attempted to board it and received the injuries complained of, but there was evidence that it was repaired some time after the 16th day of April, 1904.

Several witnesses, employees of the defendant, testified on defendant’s behalf that they inspected the handrail in question on the day of the injury and found it in good condition. Among these witnesses was C. H. Manker, the yard foreman, who testified that he examined the handrail on this caboose about an hour and a half after the accident, and that he “didn’t find any loose or shaky.” It appears from the testimony, however, that shortly after the accident Manker was at Pangle’s home, and that while there Mrs. Mary J. Pangle, mother of the injured man, asked him how the accident occurred, whereupon Manker replied, “Oh, Harry got hold of that old loose handrail of the caboose, and fell. I have been trying to get them to put that caboose in the shops for a month, and I guess they will put it in now. ’ ’

At the time Pangle was injured he was twenty-nine years of age, and married, and was earning $3.08 per day, or about $90 per month. He had worked for other railroads as brakeman and switchman for about six years, and had been working for the defendant some six months.

The first question presented for our consideration upon this appeal is whether there was sufficient evidence of negligence on the.part of the defendant to take the case to the jury. Defendant insists there was not.

We assume that the burden was upon the plaintiff to prove, first, that the defect in the handrail existed at the time of the injury, and that such defect was the cause of the injury, and, second, knowledge on the part of the defendant, either actual or constructive, for a sufficient length of time prior to the injury to have enabled it, by the exercise of reasonable care, to repair the defect. But it was not necessary to prove these by direct and positive testimony, but they might be established by facts and circumstances, if sufficient.

To hold that there was no evidence of negligence on the part of the defendant would be to ignore the testimony of the plaintiff himself — something we have no right to do. According to his testimony, the handrail of the caboose, which he took hold of in order to get upon the car, was loose, shaky and wabbly, and that it would move backwards and forwards some eight or nine inches, that it was then in exactly the same condition as when he saw it some two weeks before, when the caboose was on the tracks leading to the defendant’s repair shop.

It was the duty of the defendant.to keep its cars, cabooses, and the’handrails thereof in a reasonably safe condition for its employees who had to work with such instrumentalities, and there was evidence to show that it had not done so in this instance, the weight of such evidence being for the jury. So, with respect to defendant’s knowledge of the dangerous condition of the handrail of the caboose, the evidence showed that the defect in the handrail had existed for a sufficient time prior to the injury for the plaintiff to have known it, or by the exercise of reasonable care and diligence to have discovered said defect, and repaired the same before the injury occurred. Both these issues were submitted to the jury by proper instructions, and the issues found in favor of the plaintiff.

It is next insisted that the court admitted testimony of repairs made upon said caboose after the injury occurred, and in so doing committed error. We have been unable to find in the record any evidence of such repairs subsequent to the injury, except such as was brought out by defendant’s counsel in the redirect examination of defendant’s witness, A. F. Marsh, as follows: “Q. Sometime afterwards it [the caboose] was painted and fixed up, wasn’t it? A. Yes, sir. Q. Do you remember when that was? A. No, I don’t.”

Defendant also complains of the action of the court in permitting the cross-examination of defendant’s witness, J. A. Murphy, the car inspector. This witness testified to facts with reference to the condition of the caboose on the day of the injury, and for a month prior thereto. His testimony was based upon entries made in a record in which, as he testified, he kept the number of said car and a record of the repairs made thereon. Part of his testimony, on direct examination, was as follows:

‘ ‘ Q. Have you got here, Mr. Murphy, the book— your inspection book — that you used that day? A. Yes, sir, I have. Q. Let’s see, I believe you said the date was the 16th of April, 1904? A. 16th of April or March. Q. The 16th of April was the date of this accident? A. Here is the record of that train coming in on that day. Q. This book — this little memorandum that you have handed me — you say this was the book that you used in making your inspection as you went along the train? A. Yes, sir; that is the book. Q. Now, where did you put the number of the caboose that was on the train? A. Well, if it was not sent to the shop, I would put it up in the top corner — in the upper left-hand corner of the book. Q. Now, if there was anything wrong about the caboose, 531, that developed on inspection, how did you indicate it on this book? A. It would be put down here in this column, and a circle around the number, and over here on this page you would put what- was found, or what was defective about it, opposite the number, all on this side of the page. Q. Were you working there, Mr. Murphy, in April, before the 16th, as inspector? A. Yes, sir. Q. Now, I wish you would look — I wish you would state first whether or not you have examined the memorandum books of the inspection, as you took it at the time, for the purpose of refreshing your recollection so as to tell whether or not, from the first of March, 1904, you found on inspection of that caboose, 531, any defect in connection with the handrails or this upright — what do you call it? A. Railing post. You say you want me to state if I have looked up these books and refreshed my memory. Q. Yes, sir. A. Well, I glanced over them, yes, sir, for about a month, along about that time previous to this. I have looked over my books, yes, sir, some little. Q. Do you find that there was any defect with the rail or upright post? A. No defect of that nature whatever.”

The authorities all hold that a liberal cross-examination of an adverse or unfriendly witness is permissible, for the purpose of ascertaining his feelings or bias against the party against whom he is testifying, or for testing his memory respecting the facts to which he testifies, although this is not allowable on direct examination. This cross-examination of witness Murphy was for the purpose of testing his memory and the accuracy of his memoranda as to the condition of the caboose on April 16, 1904, and the court in an instruction told the jury that it should not be considered for any other purpose. The witness had given very important testimony against Pangle, predicated upon the record which he testified he had kept, and upon the plainest principle of justice as well as by the rules of evidence it was permissible to test the accuracy of his memoranda. If this car was sent to the repair shop after the accident, and his record, which he testified would show it, did not do so, it would certainly tend strongly to show the jury that he was mistaken when he stated that his record before the accident showed any and all defects found by him on his inspection of the car. On cross-examination, this witness testified that his record showed that the caboose was in the same condition on the 18th day of April as on the 16th of April, when he inspected it. He then testified that the 18th was the last day that his record showed any inspection of this car. He further testified that the car was sent to the repair shop some time after the day of the injury, hut that his record did not show it, and he could not tell when.

In Bank v. Richards, 119 Mo. App. l. c. 24, it is said: “Great liberality should he allowed in the cross-examination of an adverse party, where, as in this case, his evidence is a flat and unequivocal contradiction of the evidence of the opposite party in respect to the principal issue in the case. His conscience may he searched as with a lighted candle, and so long as his cross-examination is confined to the purpose of eliciting the truth relative to the issues in the case, a free hand should he given.” So in the case of Mefford v. Railroad, 121 Mo. App. 647, it is said: ‘ ‘ The cross-examination of the witness was largely in the discretion of the trial court.” The same rule is announced in State v. Boyd, 178 Mo. 2; State v. Nelson, 101 Mo. 464; State v. Smith, 190 Mo. 706. Indeed the authorities are all one way upon this question, none of those cited by the defendant being to the contrary as we understand them.

Defendant also claims that the court erred in the admission of the statement made by O. H. Manker, the yard foreman, to Mary J. Pangle, mother of the injured man, about an hour after the injury occurred. With reference to the injury to her son, she asked Manker how it happened, and he said, “Harry took hold of that old loose handrail of the caboose, and fell. I have been trying to get them to put that caboose in the shops for a month, and I guess they will put it in now.” It appears from the record that this testimony was not offered in chief, or for the purpose of proving negligence on the part of the railroad company, but for the sole purpose of contradicting witness Manker on a material matter upon which he had testified for the defendant.

It is well settled that the statements or admissions of an employee of a railway company with reference to a past event, upon which he was not authorized to speak for his employer, are not admissible in evidence, as not being part of the res gestae. [Koenig v. Union Depot Ry. Co., 173 Mo. 698, and authorities cited.] But that rule has no application here, where the object of the testimony was the impeachment of a witness. Manker had testified for the defendant that about an hour and a half after the accident he examined the handrails on this caboose, that he found them in good condition and that they were not loose or shaky. This testimony tended to prove that the handrails were in good condition at the time of the accident, and it was, of course, offered for that and no other purpose. For the purpose of impeaching this witness he was asked, on cross-examination, if he did not, while at the house of Harry B. Pangle, on the 16th of April, 1901, shortly after the accident, make the statement quoted above to Mrs. Pangle. He denied having done so. Thereupon Mrs. Pangle was called, and being asked if Manker did not make said statement to her, at the time and place mentioned, she answered that he did. According to' the testimony, this statement by witness Manker was made to Mrs. Pangle about an hour after the injury occurred, or half an hour before the time Manker, as he testified, examined the handrails and found them in good condition.

Defendant, however, argues that the witness had not seen the handrail at the time he was supposed to have made the statement to Mrs. Pangle, and that if made, it must have been upon mere hearsay. In answer to this, it need only be said that the record does not show that he told Mrs. Pangle that his statement as to the condition of the handrail was based upon anything that he had heard, but that he made it as if of his own personal knowledge and as a fact.

As we have already intimated, this narration by Manker to Mrs. Pangle of a past event and the conditions causing the injury, not being part of the res gestae, would not be admissible in evidence against the defendant, and the only question is, was it admissible for the purpose of contradicting or impeaching witness Manker ?

In Spohn v. Railroad, 101 Mo. 417, it was held “that an agent who testifies to facts material to the issue may be contradicted by evidence of statements and declarations made by him inconsistent with his testimony, notwithstanding such inconsistent statements were made after the accident in issue and as a mere narrative of it.” The court further said: “But where such statements or declarations relate to facts material to the issue on trial concerning which the agent has testified, he may be contradicted by evidence of them, the same as any other witness, the proper foundation having been first laid for introducing them.”

In the case of Hamilton v. Mining Co., 108 Mo. 365, it was held “that where the defendant’s superintendent on being examined as a witness for defendant, testified that he never gave the plaintiff the order to couple cars, he may on cross-examination, for the purpose of laying foundation for impeaching his testimony, be asked whether he had not after the accident stated to plaintiff that he gave the order.”

In Kenner v. Railroad, 69 Mo. App. 312, the court said: “The conductor testified that the cow came upon the track from behind a pile of cordwood, and when she came upon it she was so near the engine that it was impossible to prevent the collision. He was asked on cross-examination if he had not stated that, the killing of the cow was ‘a piece of carelessness on the part of the engineer.’ The time, place and persons to whom the statement was alleged to have been made were embodied in the question. The objection to the question is without merit. It was asked with a view of contradicting the previous testimony of the witness, which is a matter of common practice.”

Witness Manker had testified to facts material to the issue, and there was, we think, no error in admitting evidence of a statement made by him inconsistent with his said testimony, the proper foundation for the introduction of such evidence having first been laid.

It is insisted by defendant that Pangle was guilty of negligence as a matter of law, and that the court, therefore, committed error in allowing the case to go to the jury. Pangle’s negligence, as defendant states, consisted in his attempting to uncouple the car while the train was in motion, and in attempting to board the car at the front end instead of at the rear end, the latter being the safer and better way of getting on the car.

The train in question was what was called a “hurry-up ’ ’ train, many of the cars being loaded with perishable fruit, and the yard foreman, Manker, was in a hurry to get it out, and so advised Pangle, who was working under his immediate direction. Manker had directed him to go down to the south end of the yards and meet this in-coming train, send it up the main line, and cut off the caboose and clear the switch, and then to attach the other caboose to the train. At the time Mr. Manker gave those directions, he also said to Pangle, “This is a fruit train, and we want to get it out of here in a hurry.” Pangle, obedient to the order, met the train, signaled it up the main line as directed, and when the caboose came along opposite to him, the train being then moving at a speed of about four miles an hour, he took hold of this handrail on the caboose and attempted to get on the steps of the car, and was injured in the manner described. The testimony showed that it was the custom in the defendant’s yards at Pittsburg for its switchmen and employees to board moving trains in switching, coupling and handling the cars. Upon this subject Pangle testified as a witness in his own behalf as follows: “Well, they were both coupled standing still and in motion. In switching a train we never stopped the train to couple on a car., for if we did we never get a train switched. We had to switch a train to keep the cars moving. Q. State what rate of speed was the custom, if there was such there — at what rate of speed were cars going, and cabooses going, when men were operating them and doing work on them? A. Six, eight and ten miles, and as high as twelve miles an hour. Q. Was that the custom in the yards of the defendant at Pittsburg, Kansas, during all the time you worked there ? A. It was the custom all the time I worked.” .

In the case of Brady v. Railroad, 206 Mo. 509, the plaintiff therein testified: “It is customary in the C. & A. yards, and in every yard, to go in on the brake beam to cut off cars where the lever don’t work. Ruggles, the general yard master, was often down there while the men were going in between moving cars to cut them off.” The plaintiff in that case was a switchman, and went in between the cars for the purpose of making a coupling, while the train was moving at a speed of five miles an hour, and was injured. The court held that the question of whether the plaintiff, under the circumstances, was guilty of contributory negligence was for the jury.

In Brunke v. Telephone Co., 115 Mo. App. 36, it was held that “evidence of a custom in doing a certain thing has probative force bearing upon negligence, since custom arises from its adoption by many prudent men, and the law recognizes the value of arriving at the nature or tendency of the given act by considering its effect upon the conduct of others as shown by a general custom;” citing O’Mellia v. Railroad, 115 Mo. 205; White v. Railroad, 84 Mo. App. 411, and other Missouri cases.

When we consider the custom which prevailed in the defendant’s yards at Pittsburg in the matter of coupling and handling cars while in motion, as also the directions given Pangle by the yard foreman in connection with this “hurry-up” train, and which he was endeavoring to carry out, we are unable to see wherein he was guilty of contributory negligence as a matter of law. Indeed, in our view there was scarcely sufficient evidence of contributory negligence in his conduct to entitle the defendant to have the question submitted to the jury.

The defendant further insists that Pangle should have gone to the rear end of the caboose to have gotten on, this being the safer way. Pangle states in his .testimony that the cabooses were generally locked as they came into the station, but that he did not know whether this caboose was locked at the time. He further stated that he did not have time to get on the rear end, go through the caboose, and uncouple it before the train reached the switch. The service which Pangle was called upon to render was to be performed on the front end of the car, at which end he attempted to board it. There was nothing in the conduct of the plaintiff which would justify our holding that he was guilty of contributory negligence as a matter of law. At most, it was only a question for the jury. [Edington v. Railroad, 204 Mo. 61; Charlton v. Railroad, 200 Mo. 413; Murphy v. Railroad, 115 Mo. 111; Brady v. Railroad, supra.]

Nor was Pangle guilty of contributory negligence in not uncoupling the ear by means of the lever at the side of the car, as it was necessary for him to get on the platform of the car in order to put on the brake and stop it, which he was required to do under the directions of the yard foreman.

The point is made that the court erroneously permitted plaintiff’s counsel, upon the cross-examination of witness A. F. Marsh, to show that the latter had been discharged by the defendant for drunkenness. This witness was conductor of the freight train in question, and was afterwards discharged for the reason stated, and at the time he was testifying against the plaintiff he had an application in with the defendant company for reinstatement. The question as to his having been discharged for being drunk was not asked for the purpose of establishing the fact of his having been drunk, but as incidental to the more important questions of his discharge and his application for reinstatement. This witness had given very strong testimony against the plaintiff, and it was not improper, for the purpose of affecting his credibility as a witness, to bring out any facts on cross-examination which tended to show any bias in favor of the party whose witness he was or his interest, if any, in the suit. “The fact that a witness manifests a bias or partiality for the party who calls him is a proper matter for the consideration of the jury in estimating the value of his testimony, and it. is a general rule that on cross-examination any fact may be elicited which tends to show such bias or partiality.” [30 Am. and Eng. Ency. Law (2 Ed.), p. 1088, and authorities cited.]

We concede that evidence showing that a witness was drunk at a certain time, or was in the habit of getting drunk, would, for tire purpose of impeaching him, be inadmissible as the authorities called to our attention by the defendant abundantly show. This witness had been discharged from a responsible-position, and the inquiry as to the cause naturally followed. His answer to such question could in no way affect his credibility as a witness or have any tendency to show a bias in favor of the defendant, and the question was only as a preliminary to the more important question as to his relations with the defendant and his having an application in with the company for reinstatement at the time he was testifying. In any event, we do not think the judgment should be reversed simply on account of the cross-examination of this witness, the admissibility of whose evidence was largely in the discretion of the trial court, and which we think was nonpre judicial.

It is also contended by defendant that the court erred in not dismissing the jury after the statement made by juror Lovelace, one of the regular panel. On being examined as to his qualifications as a juror, he stated in effect that he had read about the case in the newspapers, and thought at the time he read it that the plaintiff ought to have damages, but that the matter passed out of his mind after reading about it and he had thought no more about it. Mr. Lovelace was excused from service on the jury that tried the case; but the defendant insists that the court should have dismissed the entire panel. It is unnecessary to say more with respect to this contention than that there is no merit in it.

There are some other alleged errors of a like character with the preceding one which defendant complains of, and being without merit, we will not discuss them.

The final contention is that the verdict is excessive, and the result of passion and prejudice. That the verdict was a large one is manifest; but the injuries sustained by the plaintiff were dreadful, and rarely if ever surpassed in point of severity, and his suffering during his life thereafter was intense — worse than death. Prior to his injury ‘he was an able-bodied young man, twenty-nine years of age, with several years’ experience in railroad service, and earning about ninety dollars per month. His back and five of his ribs were broken, his pelvis and hip bones mashed, and he was bruised in his entire body. His injuries resulted in total paralysis from the middle of his hack down, so that he had no control whatever of that portion of his body. He could not sit up without being propped with pillows or something to hold his body in position, nor did he have any control of the functions of his body.

Personal injury cases as a rule furnish no guide as to the amount of damages an injured party is entitled to receive in a case of this kind. The jury rendered a verdict in favor of plaintiff assessing his damages at fifty thousand dollars. Of this verdict the trial court required a remittitur of fifteen thousand dollars, and entered up judgment in favor of plaintiff for thirty-five thousand dollars. That court had a better appreciation of the facts as developed at the trial than we can have, and was better qualified to judge as to the size and fairness of the verdict. The court ordered the remittitur and overruled the motion for a new trial, and, under the circumstances, we are not disposed to interfere.

In the recent case of Partello v. Missouri Pacific Ry. Co., 217 Mo. 645, for damages for personal injuries, plaintiff recovered a verdict for $30,000, and judgment was entered accordingly. Afterwards on a motion for a new trial, plaintiff remitted $10,000, and the court let stand the judgment for $20,000. Upon appeal to this court, the judgment was reversed and the cause remanded on the ground that the verdict was excessive and the result of passion and prejudice. But there was no comparison between the injuries in the two cases, those received by the plaintiff in this case being far more severe than those sustained by the plaintiff in the other case.

The judgment is affirmed.

All concur.

ON REHEARING.

PER CURIAM.

Upon motion for rehearing it is considered and adjudged that the opinion and judgment herein rendered on May 18, 1909, be and the same is hereby modified so that the said judgment shall be affirmed for the sum of twenty-five thousand dollars as of the date of the rendition of said verdict and judgment, and to bear interest from that date, if plaintiff shall within ten days from this date remit the further sum of ten thousand dollars as of the date of the said verdict, otherwise said judgment shall be reversed and remanded for new trial.


author: GANTT, P. J.

text:
    HENRY WALDERMEYER, Appellant, v. THRESIA LOEBIG.
    Division Two,
    July 13, 1909.
    1. DEED: Meaning: Estate intended to Be Conveyed. A deed must be read as a whole and construed according to the intention of tbe parties; and though the words “grant, bargain and sell” were used by one of the grantors in the granting clause, yet if she was a widow, and manifestly intended to convey only her dower, she will not be held to have conveyed more, when sued for damages for a breach of the covenant that she was seized of an indefeasible estate in fee simple, which the use of those words would otherwise imply..
    2. -: -: -: Deed of Trust: Dower: Suit on Covenant of Warranty. The deed of trust recited that “Thresia Loebig, widow of John Loebig, and D. J. Neudorf, curator or the estate of Barbara F., Mary K,, and Thresia V. Loebig, minors, said D. J. Neudorf, curator, acting herein by virtue of and under an order of the St. Louis Probate Court, made at the December term, 1896, thereof, authorizing said curator to borrow ?7,000 on the property of said minors ... do by these presents, grant, bargain and sell, convey and confirm” said property. The order of the probate court referred to in this deed of trust shows that Neudorf, in his petition for privilege to mortgage the land, recited that “the minors were the owners of said real estate as tenants in common, subject to the dower estate therein of their mother, the widow of John Loebig, deceased, as also her willingness to join in such mortgage pledging her dower interest in said property to secure the money so borrowed.” Held, first, that the deed of trust refers specifically to the power of Neudorf to make the same; second, the plaintiff, who was the third party to the deed of trust, was put upon notice by it, and by the order, which by the reference thereto was incorporated in the deed as a part thereof, that the widow intended to convey only her dower interest; third, that was also plaintiff’s understanding, as shown by the fact that he did not require her to execute the mortgage notes; fourth, the widow did not by the use of the words “grant, bargain and sale” convey an indefeasible estate in fee simple, and though those words are apt and appropriate to convey such an estate, and are given that meaning by the statute, they will not be permitted to overcome her manifest intention, plainly understood by all; and fifth, the deed of trust failing to convey the estate of the minors, because the probate court had no power to authorize a mortgaging of their lands for the purpose of making improvements, the plaintiff cannot recover from the widow damages to the amount of the loan as for a breach of a covenant of warranty.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Affirmed.

      Block S Sullivan for appellant.
    (1) Whatever the covenants, they were those of the covenantors individually. Murphy v. Price, 45 Mo. 249; Foote v. Clark, 102 Mo. 401; Donahoe v. Emery, 9 Met. (Mass.) 66. (2) ■ The deed of trust attempted to convey a fee within Sec. 907, R. S. 1899. McCulloch v. Holmes, 111 Mo. 447; Ewing v. Shanna-ban, 113 Mo. 193. (3) The joint or several liability of covenantors is determined by tbe language used and not by tbe nature óf tbeir respective interests. Pratt v. Clark, 57 Mo. 189'; Pratt v. Eaton, 65 Mo. 161; Coleman v. Sherwin, 1 Salk. 137; Lily v. Hodges, 8 Mod. 166; Donaboe v. Emery, 9 Met. (Mass.) 66; Comings v. Little, 24 Pick. (Mass.) 266; Holzheier v. Hayes, 133 Cal. 456; Phil. v. Reeves, 48 Pa. St. 472; Click v. Green, 77 Ya. 827; Boyd v. Klingel, 46 Md. 301; Alpaugb v. Wood, 53 N. J. L. 644; White v. Tyndall, 13 App. Cas. 263; Hill v. Combs, 92 Mo. App. 252; Elliott v. Bell, 37 W. Ya. 836; Westcott v. King, 14 Barb. (N. Y.) 36; Carleton v. Tyler, 16 Me. 393. (4) All joint covenants are both joint and several. R. S. 1899', sec. 889. (5) .Knowledge by the covenantee of the true state of the title is no bar to an action on a covenant. Kellogg v. Malin, 50 Mo. 503; Williamson v. Hall, 62 Mo. 406; Clore v. Graham, 64 Mo. 255; Whiteside v. McGruder, 74 Mo. App. 371. (6) The fact that one of two grantors received the entire consideration will not defeat an action against the other on the covenant. Bloom v. Wolfe, 50 Iowa 289; Barnett v. Hughey, 54 Ark. 195; Sterling v. Peet, 14 Conn. 252; Tucker v. Butterweck, 39 So. (Fla.) 480. (7) The covenants implied by the words “grant, bargain and sell” in a deed purporting to .convey a fee, are substantial covenants of title. R. S. 1899, sec. 907; Maguire v. Riggin, 44 Mo. 514. (8) The use of these words in a deed of trust implies the same covenants”as in an ordinary deed of bargain and sale. Cockrill v. Bane, 94 Mo. 445; Boyd v. Haseltine, 110 Mo. 207; Blanchard v. Haseltine, 79 Mo. App. 252. (9) If by reason of a paramount title the grantee cannot obtain possession, his action on the covenant accrues. Murphy v. Price, 48 Mo. 247; Adkins v. Tomlinson, 121 Mo. 495,

      Buder & Buder for respondent.
    (1) Where one deed makes reference to another the two are to be considered as one, and the deed so referred to need not be recorded. The deed of trust, containing the covenants for the breach of which plaintiff seeks to recover, makes specific references to the order of the probate court under and pursuant to which the same was executed. Agan v. Shannon, 103 Mo. 661; Lincoln v. Thomson, 75 Mo. 637; 2 Smith Lead Cases (8 Ed.), 529; Whittlesey v. Delaney, 73 N. Y. 571. (2) “Under the statute, the wife is not bound by her covenants contained in the deed except as far as may be necessary effectually to convey from her and her heirs all her right, title and interest in the land at the time the deed was made. By the terms of the statute her deed is, in its effect, whatever its form, simply a quit-claim of all her existing right, title and interest. Such being the effect of the deed, the rulings of the court in regard to inurement, under quit-claim deeds, would apply to her deed regardless .of its form or covenants.” Brawford v. Wolfe, 103 Mo. 397; Bank v. Robidoux, 57 Mo. 446; Barker v. Circle, 60 Mo. 259; Reese v. Smith, 12 Mo. 348. (3) The purchaser at a sale by a mortgagee or trustee selling under a power to sell for the payment of debts must take notice of the title and its defects as it appears of record. Barnard v. Duncan, 38 Mo. 170 ; Haley v. Bagley, 37 Mo. 363; Mason v. Black, 87 Mo. 329; Loring v. Groomer, 110 Mo. 632; McDonald v. Quick, 139 Mo. 484. (4) The deed of trust and trustee’s deed under and through which plaintiff is making his claim for a breach of the covenant were in an equitable suit, wherein both were parties, declared null and void. 8 Am. and Eng. Ency. Law (2 Ed.), 54; Northcote v. Underhill, 1 Salk. 199. (5) A covenantee must take some estate, or if no title passes, possession must accompany the deed, for the covenants to inure to a subsequent grantee. Allen v. Kennedy, 91 Mo. 3291; Iowa Loan & Trust Co. v. Fullen, 114 Mo. App. 633. (6) Tbe rule that covenants are taken most strongly against the covenantor is reversed in tbe case of statutory covenants, because they are implied and are in derogation of tbe common law. Miller v. Bayless, 101 Mo. App. 487,194 Mo. 630.
   GANTT, P. J.

The learned counsel for tbe plaintiff very aptly denominates this cause as tbe aftermath of Waldermeyer v. Loebig, 183 Mo. 363. Tbe petition in tbe present case filed December 19, 1904, declared for tbe breach of covenants of title alleged to have been contained in tbe deed of trust which was before tbe court upon other considerations in that case. Tbe petition in substance alleges that tbe defendant, Mrs. Loebig, tbe widow of John Loebig, deceased, and one D. Ind. Neudorf, in February, 1897, in consideration of a loan of $7,000 then made by tbe plaintiff and to secure tbe same, executed to William F. Woerner, as trustee, their deed of trust upon certain premises, to-wit, tbe same real estate which was involved in Waldermeyer v. Loebig, 183 Mo. 363; that by said deed of trust Mrs. Loebig and Neudorf undertook to convey a fee simple estate and made use of tbe words “grant, bargain and sell” to convey tbe same; that they thereby covenanted to and with tbe trustee, bis successors in trust and assigns, and for and in behalf of tbe plaintiff as beneficiary in said deed of trust, that they were at tbe time seized of an indefeasible estate in fee simple in tbe premises; that tbe trustee sold the premises under tbe powers contained in tbe said deed of trust upon a default occurring thereunder, and tbe plaintiff having become tbe purchaser at this sale for tbe full amount of bis debt and interest, tbe trustee conveyed tbe said premises to him and thereby assigned to tbe plaintiff tbe covenants in said deed of trust. It was also alleged that tbe trustee bad subsequently assigned all rights of action on the covenants in the deed of trust to the plaintiff. The petition then averred that no title whatever passed by the deed of trust; that the plaintiff had sued defendant and others in ejectment for possession of the premises, under his purchase thereof, and that judgment had gone against him in the action. Also that he had instituted the action of Waldermeyer v. Loebig, reported in 183 Mo. 363, seeking subrogation to mechanic’s liens upon said premises which his loan had been used to discharge, and that as the final result of that action in this court it was adjudged that the deed of trust passed no title to the premises. It was then alleged that the premises had at all times been of the value in excess of $15,000 and that the plaintiff’s loss was his debt of $7,000, interest thereon subsequent to February, 1899, and $2,000 expenses in the prosecution of the two actions pleaded. An abatement of $6,000 was admitted from the amount claimed because of the collection by the plaintiff of that sum from the estate of D. Ind. Neudorf upon the same covenants. The prayer of the petition was for a judgment for $5,100 and interest.

The answer was a general denial, with certain specific defenses, first, that defendant had no interest in the premises save as dowress, and that she only joined in the deed of trust to subject her dower thereto; that the money was loaned to Neudorf, the other party to the deed, and that the plaintiff at the time he made the loan knew all the foregoing facts. Second, that after a default in the deed of trust the trustee sold and conveyed the premises to the plaintiff thereunder in consideration of a sum bid by the plaintiff therefor in excess of his debt, which excess the plaintiff paid to the trustee, and that the notes held by the plaintiff for the loan were canceled, whereby the defendant deduced the conclusion that both the debt and the deed of trust were satisfied and that no recovery could be had in consequence upon any covenant therein contained. Third, that in Waldermeyer v. Loebig, supra, it was adjudicated by the other division of this court that Mrs. Loebig was not hound by any covenant in the deed of trust. Fourth, that plaintiff had previously sued the executrix of D. Ind. Neudorf’s estate on the same covenants and that the parties to that action had agreed upon a judgment in plaintiff’s behalf, fixing his damages at $6,000, and that such a judgment was entered in his behalf in that action and paid.

The reply admitted the settlement pleaded with the executrix of Neudorf, and alleged that in making it the plaintiff had expressly reserved his right to prosecute his action against Mrs. Loebig for full satisfaction of all his damages sustained by the breach of the covenants.

The jury was waived, and the cause tried to the court, which resulted in a finding for the defendant and judgment accordingly, from which the plaintiff appealed.

The undisputed facts in this case are fully stated by Judge Marshall, in so far as they existed at the time he wrote the opinion in the 183 Mo. 363, but for an intelligent understanding of the present case it is deemed necessary to repeat some of the facts which appear in that report. John Loebig in his lifetime owned the premises in controversy, which are situated on South Broadway in the city of St. Louis. There was upon them in his lifetime, a three-story brick building, the lower floor of which he used for business purposes, the second floor for a residence for his family, and the third floor he let out for other purposes. The St. Louis cyclone of 1896 damaged the premises quite materially and Loebig died shortly after that time, leaving them in a damaged state. He left no will and his surviving family consisted of the defendant, Ms widow, and three infant daughters. D. Ind. Neudorf became administrator of his estate and curator of his three minor children. Neudorf contracted for and made extensive repairs and improvements on these premises. He and the defendant, Mrs. Loebig, agreed with each other that preliminary to the settlement of the liabilities thereby incurred the parties holding the claims should prove the same against Loebig ’s estate in the probate court, and this was done. Neudorf thereupon, as curator for the three daughters, addressed his petition to the probate court for leave to borrow $7,000 by the execution of a deed of trust on the premises for the purpose of discharging these claims. In this petition he stated that the defendant was willing to join in the deed of trust in order to subject her dower interest in the premises thereto. The probate court granted the prayer of the curator and authorized him to execute the deed of trust. Thereupon he and Mrs. Loebig executed the deed of trust, and the plaintiff loaned $7,000 on the faith of it for three years at six per cent interest. As the liability of Mrs. Loebig depends in a large measure upon the terms of this deed of trust, it is deemed essential to copy the granting part thereof, omitting a description of the premises conveyed, to-wit:

“This deed made and entered .into this fifteenth day of February, eighteen hundred and ninety-seven, by and between Thresia Loebig, widow of John Loebig, deceased, and D. Independence Neudorf, curator, acting herein by virtue of and under an order of the St. Louis Probate Court, made at the December term, 1896, thereof, authorizing said curator to borrow $7,000 on the property of said minors, of the city of St. Louis, and State of Missouri, parties of the first part, and William F. Woerner, of the same place, party of the second part, and. Henry Waldermeyer, of the same place, party of the third part, witnesseth: That the said parties of the first part, in consideration of the debt and trust hereinafter mentioned and created, and of the sum of one dollar to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain, and sell, convey and confirm unto the said party of the second part, forever, all the following described real estate, situated in the city of St. Louis and State of Missouri, and known and described as follows, to-wit: ’ ’ (Here follows a particular description of the premises). The habendum reads as follows: “To have and to hold the same, together with the appurtenances, to the said party of the second part and to his successor hereinafter designated, and to the assigns of him and of his successor forever. ’ ’

The deed of trust then recites a loan by the plaintiff to Neudorf of the sum of $7,000 for three years to bear interest at six per cent per annum, and contains the usual provision for the sale by the trustee in case of a default and for conveying the premises to whosoever shall purchase at said sale, and “upon such sale shall execute a deed in fee simple of the property sold to the purchaser thereof.” Mrs. Thresia Loebig, the defendant herein, joined in the deed of trust as above indicated and signed and acknowledged the same in proper form. Neudorf as curator received this $7,000 from the plaintiff and used it to pay the claims which had been alleged against the estate of Mr. Loebig.

Default was made in the payment of the fifth installment of interest and thereupon the trustee foreclosed the deed of trust on April 25, 1900, and plaintiff became the purchaser of the property for $9,100 and received a trustee’s deed therefor. Thereupon, as alleged in plaintiff’s- petition, he brought his action of ejectment for the premises and was defeated in the circuit court and no appeal was taken from that judgment. Following this the plaintiff instituted his action in equity against Neudorf and Mrs. Loebig and two of the minor children, the other child haying died in the mean time, and asked to he subrogated to the liens for the improvement of the premises. This case was defended by Mrs. Loebig, the defendant here, and Neudorf, and this court in Waldermeyer v. Loebig, 183 Mo. 363, held that the said claims for the improvement of the building could not be made a charge upon said real estate and were not liens upon the land. Thereupon plaintiff brought his action on the covenants in the said deed of trust against the executrix of Neudorf, who had died in the meantime. A compromise was fixed between the plaintiff herein and Mrs. Neudorf, by the terms of which plaintiff received $6,000 and accepted the same in full satisfaction of all claims against the estate of Neudorf, but “expressly reserved” to himself any and all rights of action on said covenants for the purpose of securing additional and complete satisfaction of his damages thereunder against Thresia Loebig, co-covenanter in said deed of trust. And thereupon plaintiff brought this action against Mrs. Loebig on said covenants, which as already said resulted in a judgment in favor of the defendant. As indicating his views of the law of the case the learned circuit judge at the instance of the plaintiff gave the following declarations of law:

“2. Upon the foreclosure of said deed of trust, and the execution of the deed by the trustee therein to the plaintiff, which was read in evidence, and upon the execution of the assignment by said trustee to the plaintiff, which was read in evidence, the right of action on said covenant vested in the plaintiff.
“5. The court declares the law to be that since' the plaintiff in compromising with the executrix of D. I. Neudorf expressly reserved his right of action for full recovery of the balance of his damages from this defendant, nothing which occurred with reference to said compromise prevents Ms recovery in tMs case against the defendant.
“6. The court declares the law to he that the judgment of the circuit court, in the equity ease, and of the Supreme Court, on appeal, is conclusive of the fact that the plaintiff took nothing by the deed of trust, nor by the trustee’s deed, notwithstanding it may appear that. subsequent to the execution of said deed of trust the defendant inherited some interest in said premises by the death of one of her children.”

And refused the following declarations of law requested by the plaintiff:

“1. The court declares that under the terms of the deed of trust read in evidence in this case the defendant herein and D. I. Neudorf, jointly and severally covenanted with the trustee therein that they were seized of an indefeasible estate in fee simple in the property therein described, and this defendant is personally liable on said covenant.
“3. The court finds from the evidence that the defendant’s husband owned said property in fee, and died without a will, leaving’ him surviving the defendant, his widow, and three children; and the court declares the law to be that neither the defendant nor said D. I. Neudorf was seized of an indefeasible estate in fee simple in said premises, nor did they convey such estate by said deed of trust, and there has been a breach of said covenant in the deed of trust.
“4. The judgment of the circuit court, room 1, in the ejectment suit, and the judgment of the circuit court, room 2, and of the Supreme Court on appeal, in equity case, conclusively established the proposition that the plaintiff acquired nothing by said deed of trust and trustee’s deed, and that there has been a breach of the covenants in said deed of trust.
“7. If the court finds that the plaintiff on said deed of trust loaned seven thousand dollars, and that interest was paid thereon to the 15th of February, 1899, and not thereafter, then the court declares the law to he that the plaintiff is entitled to recover in this action from the defendant, seven thousand dollars with six per cent interest thereon from the 15th day of February, 1899, to the date of the receipt hy him of the money from the executrix of D. I. Neudorf, less the sum of six thousand dollars credited at that time, and to which balance thus arrived at should be added interest at six per cent per annum from the date of the receipt of the said six thousand dollars down to the date of the judgment.”

The defendant asked the lower court nothing hut a demurrer to the evidence, which was refused.

Several interesting legal propositions have arisen upon this record. The one which the circuit court regarded as controlling was whether this deed properly construed should he held to mean that Mrs. Loebig undertook to convey a fee simple estate in the said premises to the trustee Woerner for the benefit of plaintiff. For, if she did, then the use of the words “grant, bargain and sell” contained in themselves the covenant that she was seized of an indefeasible estate in fee simple in the said premises conveyed by the deed of trust. [Sec. 907, R. S. 1899.] Unless the deed purports to convey an absolute estate in fee, the words “grant, bargain and sell” mean only a transfer of the estate.

Again and again it has been ruled by this court that a deed must be read as a whole, in a word, by its four comers, and that many of the old formulas were no longer invoked by the courts. All mies of construction rest upon the principle that they were designed to ascertain the intention of the grantor and effectuate it unless some positive rule of law would be infringed hy so doing. Thus in the recent case of Stoepler v. Silberberg, 220 Mo. l. c. 267, in discussing the effect of these statutory words in a deed, it was said: “But while these covenants are expressed in the deed, the instrument must he read and construed in the light of all its parts, and when this is done, it is obvious that it does not attempt or purport to convey and warrant the lot itself, but only ‘all such right, title and interest’ that Frederick Stoepler had in and to said house and lot,” etc. To the same effect is Butcher v. Rogers, 60 Mo. 138; Moore v. Harris, 91 Mo. 616. In Allen v. Holton, 20 Pick. l. c. 463, it was said: “Every deed is to be construed according to the intention of the parties, as manifested by the entire instrument, although it may not comport with the language of a particular part of it. Thus a recital or a preamble in a deed may qualify the generality of the words of a covenant or other parts of a deed.” It is familiar law that when one deed or instrument refers to another, the instrument or deed referred to becomes thereby part and parcel of the former instrument. To all intents the two become one when we seek to find their meaning and intention. [Agan v. Shannon, 103 Mo. 661.] In Bean v. Kenmuir, 86 Mo. l. c. 671, this court said: “But rules of interpretation, formerly adhered to with much strictness, have been changed, or modified, or abandoned, when, in their modern applications, they have been found hostile to the end the courts struggle to attain, which is to give effect to the grantor’s intention, and to effect which they make it the paramount rule to read the whole instrument, and, if possible, give effect and meaning to all its language. The granting clause of the deed in question contains the words ‘grant, bargain and sell’ which, in the absence of other clauses restricting, limiting or modifying the same, would, under our statute, constitute a deed of warranty with full express covenants, and, as said by counsel, if the deed in question stopped here, it would, when duly signed and sealed, have conveyed the fee. ’ ’ To the same effect see Utter v. Sidman, 170 Mo. 284, and cases there cited.

Now keeping in view these principles of construction, it will he observed that this deed recites that “Thresia Loebig, ividow of John Loebig, and D. I. Neudorf, curator of the estate of Barbara F., Mary K. and Thresia V. Loebig, minors, said D. I. Neudorf, curator, acting herein by virtue of and under an order of the St. Louis Probate Court, made at the December term, 1896, thereof, authorizing said curator to borrow $7,000 on the property of said minors,” from which it will be seen that the deed refers directly to the power of attorney to Neudorf to make said deed of trust, said power arising in the order of the probate court, and when we look to that order we find that the court had before it a petition which stated among other things “that the minors were the owners of said real estate as tenants in common, subject to the dower estate therein of their mother, the widow of John Loebig, deceased, as also her willingness to join in such mortgage pledging her dower interest in said property to secure the money so borrowed.”

It is perfectly apparent from these documents referred to in the deed of trust itself that the only purpose and intent of the defendant Mrs. Loebig in joining in this deed of trust, was to convey her dower interest in the land. Directed by the recitals of the deed to the probate record, the plaintiff who was party to the deed of trust, was put on notice that the widow intended and only intended to convey her dower interest in said lots, and it is obvious this was the intent of all the parties. Had it been the intention to bind the widow absolutely, plaintiff would have required her to execute the notes, which she did not. He was fully advised that this realty had descended to the minors subject to the dower of Mrs. Loebig and that the guardian and curator had petitioned the probate court to permit him as guardian and curator to borrow $7,000, and. mortgage these premises in order to obtain a fund with which to make the improvements, and had advised the court that Mrs. Loebig was willing to include her dower in the mortgage to secure the investor. Plaintiff was a party to that loan. He does not stand in the attitude of an innocent purchaser for value without notice. He was fully informed of the extent to which Mrs. Loebig was willing to go. There is everything to indicate that she never proposed to convey an indefeasible estate in fee simple to this lot. She had nothing but dower, and she agreed merely to release her dower rights. Under such circumstances, there can be no sort of doubt that, independent of the legal obligation assumed by the use of the words “grant, bargain and sell,” all the parties to this deed of trust knew and understood that Mrs. Loebig was not undertaking, so far as she was concerned, to convey an indefeasible estate in fee simple. Is there enough on the face of the deed to restrain the full effect of the warranties contained in the words “grant, bargain and sell?” We think there is. The deed on its face shows that it was the understanding and agreement of all parties to the deed of trust that the minors owned the fee simple and that the court had granted their guardian and curator the authority to mortgage that fee simple, the mother joining merely to release her dower. When the deed is executed Mrs. Loebig’s relation to the lot is further emphasized by denominating her as “widow,” that is to say, in that capacity she joins, which was in furtherance of her known and expressed agreement to bind herself so far and no further. A construction now that, in spite of all this, she intended and must be held to have intended to convey an indefeasible estate in fee simple, would nullify what we all know was her real intention, and to utterly repudiate the now prevalent doctrine that her intention and the intention of every other party to the transaction must control. If it be said that where apt and appropriate words, the very words which the statute has defined in advance, are used, there is no room for construction, the answer is that in seeking for the intention, this court has often dealt with this proposition, and notwithstanding the use of the statutory words “grant, bargain and sell” have allowed other expressions no more definite to control. Thus, in Bean v. Kenmuir, 86 Mo. 666, notwithstanding the positive rule of law that the grant of a remainder after a fee simple is void, the court construed the plain grant to be a life estate only, so as to save the remainder. In Davidson v. Manson, 146 Mo. l. c. 612, the granting words of the deeds were “give, grant, bargain and sell,” and conveyed unto the said Charlotte B. Davidson and her heirs and assigns, and the habendum clause was, “To have and hold the above granted and bargained premises with the appurtenances thereof to the said Charlotte B. Davidson, her heirs and, assigns in fee simple, her natural life to her own proper use and behoof.” It was ruled she only took a life estate. In that case not only the words “grant, bargain and sell” were used, but “in fee simple,” but the words “natural life” restrained the other plain and definite words of the deed. But as already indicated the reference in the deed of trust to the order of the probate court incorporated those proceedings into the deed of trust for the purpose of ascertaining the intention of the parties to it, and when they are looked to, we think the intention was that Mrs. Loebig should only release her dower right, the only interest she then had in said lands, and that no party to said deed of trust looked upon her joining in the deed as an assertion and warranty that she had an indefeasible estate in fee simple in said lot and intended to convey and warrant the same.

"We think the circuit court correctly construed this deed of trust in so far as Mrs. Loebig is concerned, and its judgment is accordingly affirmed.

Burgess and Fox, JJ., concur.