author: TTIGrBEE, P. J.

text:
    THE STATE v. LEE B. BIRD, Appellant.
    Division Two,
    March 7, 1921.
    1. INSTRUCTION: Failure to Instruct on All Law of Case. A request that the court give further instructions covering every phase of the law involved in the murder trial ddes not alone assign any error for review. It is necessary to go further and designate what specific point of law is not covered by the instructions given.
    2. ARGUMENT TO JURY: Not Preserved in Bill. Remarks of the prosecuting attorney in his argument to the jury, alleged to have been prejudicial to the defendant in the murder trial, if not preserved in the bill of exceptions, cannot be considered in the appellate court. They cannot be brought to the attention of the court by affidavits and counter affidavits.
    3. STATUTE: Time of Taking Effect: Revised Statutes: Manslaughter. The Act of May 27, 1919, Laws 1919, page 256 (Secs. 3236 to 3242, R. S. 1919), abolishing all degrees of manslaughter, though enacted at a revising session, was an original act, and not a revision, and consequently, having no emergency clause, went into effect ninety days after its approval, and consequently the court should not have given instructions defining manslaughter in the third and fourth degrees where defendant was charged with having committed murder on October 28, 1919. But still the question remains whether, notwithstanding such instructions were given and defendant was convicted of manslaughter in the third degree, he was prejudiced thereby.
    4. MANSLAUGHTER: Erroneous Instructions: Immaterial. Notwithstanding the Act of 1919 abolishing all .degrees of manslaughter was in force at the time of the homicide, the court submitted the ease to the jury on instructions defining murder in the first and second degrees and manslaughter in the third and fourth degrees, under statutes which had been repealed. The jury found the defendant guilty of manslaughter in the third degree and assessed his punishment at three years’ imprisonment, and there is no complaint of the punishment authorized by the instructions. Held, that the court should not have given instructions on manslaughter in the third or fourth degrees, but should have instructed on manslaughter generally as defined by the new Act of 1919; but the statute (Sec. 4078, R. S. 1919) authorizes a new trial only “when the court has misdirected the jury in a material matter of law,” and defendant was not harmed by the giving of these instructions.

      5. -: -: Verdict: Offense Unknown to Law: Surplusage. Where the statute had abolished all degrees of manslaughter and the court, nevertheless, submitted the case to the jury on instructions defining manslaughter in the third and fourth degrees, and the jury found defendant guilty of manslaughter in the third degree, he was not convicted of an offense unknown to the law, but the words “in the third degree” have no meaning and may be rejected as surplusage, and when so eliminated there remains a verdict convicting defendant of manslaughter.
    6. -: Case for Jury. Where the jury may well have found from the evidence that the defendant, after having been ordered out of the restaurant where deceased was employed, provoked a quarrel with him on his own premises, assaulted and beat him over the head with a revolver, and, when deceased was fleeing from him, shot him in the back, inflicting a mortal wound, the case of defendant’s guilt was one for the jury to decide, and the verdict of guilty of manslaughter and a punishment of three years’ imprisonment discloses no passion or prejudice.
    Appeal from Jackson Criminal Court. — I-Ion. Ralph 8. Latshaw, Judge.
    Al’KlRMED.

      Henry L. Jost and James P. Ayhoard for appellant,.
    (1) The court erred in giving, to the jury, over the objections of defendant, the instruction on the subject of manslaughter in the fourth degree. (2) The court erred in giving instruction to the jury, over the protests and objections of defendant, on the subject of manslaughter as defined by the provisions of the Revised Statutes of 1909, for the reason that said statutory provisions relating to the subject of manslaughter were expressly repealed by the Act approved May 27, 1919, appearing in Laws 1919, page 256. (3) The verdict of the jury, finding defendant guilty of manslaughter in the third degree, was unwarranted under the law and was not and cannot be a lawful basis and foundation for the sentence arid judgment of the court pronounced and rendered thereon. (4) It is elementary that a conviction unsanctioned by law cannot stand. The act for which the State takes away the liberty of a citizen must be in violation of some existing law. Kelly’s Criminal Law & Practice (3 Ed.), sec. 3. Third degree manslaughter, as it formerly existed in Missouri, Secs. 4462, 4463, 4464, 4465, and 4466, R. S. 1909, was expressly repealed in 1919, Laws 1919, p. 256. The alleged homicide in this case occurred October 28,1919. The trial was begun February 2, 1920. The verdict of the jury was returned February 6, 1920. The defendant was therefore charged, tried, found guilty and sentenced for an alleged crime which he did not and could not under the law commit. For those reasons, the judgment of conviction must be reversed and the cause remanded. Kelly’s Criminal Law & Practice (3 Ed.), see. 3; 16 G. J. 64; Smith v. State., 14 Mo. 147; State v. Brotzer, 245 Mo. 499; State v. Roller, 77 Mo. 120; United States v. Passmore, 4 Dali. 372; Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101; United States v. Tynen, 11 Wall. 88; United States v. Reisenger, 128 U. S. 398; People v. San Luis Obispo Bank, 159 Cal. 65, Ann. Cas. 1912B, 1148, 37 L. R. A,. (N. S.) 934; Keller v. State, 12 Md. 322, 71 Am. Dec. 596 and note; Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377 and note; Lindzey v. State, 65 Miss. 542, 7 Am. St. 674; State v. Massey, 103 N. C. 356, 4 L. R. A. 308; State v. Perkins, 141 N. C. 797, 9 L. R. A. (N. S.) 165; In re Kline, 70 Ohio St. 25,1 Ann. Cas. 219, and note; Ex parte Larkin, 1 Okla. 53. 11 L. R. A. 418; State v. Addington, 2 Bailey L. (S. C.) 516., 23 Am. Dec. 150; Wharton v. State, 5 Cold. (Tenn.) 1, 94 Am. Dec. 214; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302 and note.

      Frank W. McAllister, Attorney-General, and Lewis H. Cook, Assistant Attorney-General, for respondent.
    (1) Instructions presenting all the evidential facts constitutive of the offense charged and all grades thereof are given in approved form; also instructions or presumption of innocence, reasonable doubt, the credibility of witnesses, self-defense, accidental homicide and instructions defining the techinal words used in other instructions. The instructions are formed with reference to’ all the facts in the case and when taken together present the whole case in a way that the jury could not be confused. (2) As to the remarks of Mr. Moore in his closing' argument to the jury it is enough to say that the fact that they appear in the motion for a new trial and by affidavit is no evidence that they appear in the bill of exceptions, nor do they so appear in such bill, the one place where such matters can be presented. They cannot be preserved in affidavits nor in the. motion for new trial. State v. Howard, 118 Mo. 127; State v. Levy, 126 Mo. 554; State v. Williams, 147 Mo. 14; State v. McAfee, 148 Mo. 370; State v. Williams, 186 Mo. 128; State v. Feely, 194 Mo. 315; State v. McGarver, 194 Mo. 740; State v. Yalle, 196 Mo. 29; State v. Brooks, 202 Mo. 106'.
   TTIGrBEE, P. J.

The Prosecuting Attorney of Jackson County, on December 8, 1919, filed an information in the criminal court of that county, charging the defendant with the crime of murder in the first degree. It is alleged that on October 28, 1919, the defendant shot one Fred Reed and that Reed died as a result thereof on November 6th following,. The defendant was formally arraigned and entéred a plea of not guilty on the day the information was filed. The cause was tried at the February term, 1920. The court submitted the case on instructions defining murder in the first and second degrees, and manslaughter in the third and fourth degrees. The jury found the defendant guilty of manslaughter in the third degree and assessed his punishment at imprisonment in the penitentiary for three years. Having-been séntenced accordingly, the defendant appealed to this court.

In appellant’s brief, counsel assign as error the giving of instructions 5 and 6 by the court on its own motion on manslaughter in the third and fourth degrees; that the jury found the defendant guilty of a crime unknown to the law; and that the court erred in overruling the demurrer to the evidence, and the motions for new trial and in arrest.

T. It is said that the information is vagu~ and in-deftnite, but no flaw is found or specific defect pointed out by counsel in the motions, briefs or argument. We think the information distinctly charges the defendant with the crime of murder in the first degree, and conforms to all the standards of good pleading.

II. The court gave 19 instructions for the State on its own motion. They are unusually clear, definite and comprehensive, covering every phase of the law applicable to the case. Counsel, in the motion for new trial, brief and arglBnellt, fail to specify a single vice in the instructions. The court also gave some instructions for the defendant, and modi-fled and refused others covered by those given. No error has be~n indicated in this respect. They also requested the court to give further instructions covering every phase of the law involved in the controversy and assign the failure to do this as error. They do not indicate in the motion the specific point of law on which the court failed to instruct, nor do they do so in their brief or assignment of errors. This contei~tion, therefore, cannot be considered. [State v. Gaultney, 242 Mo. 388; 16 C. J. 1055, sec. 2497.]

TIT. Oomplaint is also made in the motion for new trial of certain alleged prejudicial remarks of the prose-outing attorney in his argument to the jury, but as they are not preserved in the bill of excep~ lions they cannot be considered. They cannot be brought to our attention by affidavits and counter affidavits as was attempted in this case.

IV. Counsel for appellant in their brief complain of the instructions on manslaughter. They correctly define the offenses of manslaughter in the third and fourth degrees as those offenses were defined in the Revised Statutes of 1909, and need not he set out ip^g contention is that the Act approved May 27, 1919 (Laws 1919, p. 256; Secs. 3236 to 3242, R. S. 1919) abolished all degrees of manslaughter, and that said act, having no emergency clause, became operative ninety days after adjournment of that session, that is, on August 7, 1919, as provided in Section 7062, R. S. 1919. The Attorney-General, however, has, suggested that the act referred to, having been passed at a revising session of the Legislature, became effective November 1, 1919, as provided by Section 7095, Revised Statutes 1919, and, hence, the law of 1909 was in force at the date of the alleged offense and the trial of the defendant was properly had under that law, even though repealed at the time of the trial. [Sec. 7064, R. S. 1919; Sec. 8063, R. S. 1909; State v. Lewis, 273 Mo. 518, l. c. 535.]

The Act of May 27, 1919, abolishing all the degrees of manslaughter and fixing the punishment (Sec. 3245) is an original act and not a revision. There is an apparent conflict between Sections 7062 and 7095, Revised Statutes 1919, as to the time when an act passed at a revising session takes effect. This identical question was thoroughly considered by this Division in State v. Schenk, 238 Mo. 429. According to the ruling in that case the act in question, being an original act having no emergency clause, became .effective ninety days after the adjournment of the session, that is, on August 7, 1919. [See also State v. Anderson, 252 Mo. 83.]

The court should not have given instructions on manslaughter in the third and fourth degrees, but should have instructed on manslaughter generally as provided in the Act of 1919. But was defendant prejudiced 1

The elements of the crimes of manslaughter in the third and fourth degrees as prescribed in the repealed act are embraced in Section 3236, Revised Statutes 1919. There is no complaint of the punishment authorized by the .instructions. Section 4078, Revised Statutes 1919, par. 4, authorizes a new trial “when the court has misdirected the jury in a material matter of law. ’ ’ An instruction, however, on manslaughter in the first degree,' defining the punishment by imprisonment in the penitentiary at not less than five years as fixed by Section 4469, Revised Statutes 1909, would be in conflict with Section 3245, Revised Statutes 1919, which permits the jury to assess a lighter punishment, and would therefore be prejudicial error. We are unable to see how the defendant was harmed by the giving of these instructions. They could not have misled the jury. It is only where the court has misdirected the jury in a material matter of law that a new trial may be granted. As in civil cases, an erroneous instruction must be prejudicial to warrant the reversal of a judgment.

V. It is also contended that the jury found the defendant guilty of an offense unknown to the law and therefore the verdict is a nullity. The defendant was convicted of manslaughter. The words “in ^16 third degree” have no meaning or signifi-canee. They are useless and may be rejected as surplusage. They do not vitiate the verdict. Utile per inutile non vitiatur. [3 Wharton’s Criminal Law (10 Ed.) sec. 1689.]

In Traube v. State, 56 Miss. 153, the rule is thus stated in the head note:

“T. was indicted and tried for murder. The jury rendered the following verdict: ‘We, the jury, find the defendant guilty of manslaughter in the second degree. ’ A motion was made in arrest of judgment, on the ground that the jury did not convict the defendant of any offense known to our laws, there being no degrees of manslaughter in this State. The motion was overruled. The words in the verdict, 'guilty of manslaughter,’ were a full and complete finding of the issue submitted, and the court properly treated the superadded words ‘in the second degree’ as surplusage. If a verdict contains a finding which is not embraced in the issue, or contains words which are without meaning, and, after striking out or disregarding such irresponsive finding or such meaningless words, there still remains a perfect finding responsive to the issue, the verdict should be upheld and judgment pronounced accordingly.”

In Grant v. State, 23 L. R. A. (Fla.) 723, the jury returned a verdict: “We, the jury, find the defendant guilty of manslaughter in the first degree. ’ ’ There were no degrees of manslaughter in that State. It was held that such a verdict was, in legal effect, one of manslaughter. [L. C. 737.] [See, also, State v. Bishop, 231 Mo. 411, 415.]

Referring to the Statute of Jeofails (now Sec. 3908, R. S. 1919), this court, in State v. O’Kelley and Fitch, 258 Mo. 345, l. c. 351, said:

“Gradually from 1825 our Statute of Jeofails in criminal cases, now Section 5115, Revised Statutes 1909, has been enlarged. Prior to 1879 it was confined to the curing of defects appearing on the face of an indictment. By Section 1821 of the revision of 1879, its curative power was extended so.as to heal defects occurring in the proceedings not on the face of the indictment. As thus amended, it provides that the proceedings in a criminal case shall not he held invalid for the errors therein stated, ‘nor for any errors committed at the instance or in favor of the defendant; nor because the evidence shows'or tends to show him to he guilty of a higher degree of the offense than that of which he is convicted; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.’ ”

VI. We have carefully considered the 157 pages of typewritten evidence. It clearly made a snbmissible case. The jury might well have found that the defendant, after having been ordered out of the restaurant where Reed was employed, provoked a quarrel with him on his own premises, assaulted and heat him over the head with a revolver and, when Reed was fleeing from him, shot him in the hack, inflicting a moral wound. The evidence does not disclose that the verdict was the result of passion or prejudice. Doubtless the jury considered the defendant’s youth and previous good reputation for peace and quiet in mitigation of his offense. The defendant had a fair trial.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: RAILEY, O. PER CURIAM:

license: Public Domain

text:
    O. W. MAHANY v. KANSAS CITY RAILWAYS COMPANY and D. W. NEWCOMER’S SONS, Appellants.
    Division Two,
    March 7, 1921.
    1. NEGLIGENCE: Of Driver of Automobile: Imputed to Passenger. Where plaintiff and other pall-hearers were being transported in an automobile operated by undertakers, who were carrying them on account of the consideration received by them in conducting the funeral, and plaintiff had no control over - the driver of the automobile and was in no way directing his movements at the time and place of its collision with a street car, and the collision occurred in a very short time after the motorman and driver came within view of each other, the alleged negligence of the automobile driver cannot be imputed to plaintiff as a matter of law.
    2. -: Clear .Track: Approaching Automobile: Increasing Speed. The principle that a street railway company, in the absence of evidence to the contrary, is entitled to a clear track and may run its cars at a rapid speed, unless prohibited by law, has no application where there is substantial evidence that the automobile, in which plaintiff was riding as a pall-bearer, from the time it left the cemetery until struck by the street car, was in plain view of the motorman, and its driver, without indicating any intention to stop, proceeded towards the crossing, at the rate of five miles per hour, until the automobile occupied a position oil peril, and the motorman, instead of putting his street car under control' and slacking its speed, increased the speed to twenty-five or thirty miles per hour. Nor can a demurrer to the evidence- offered by the railway company be sustained, under such circumstances, on the theory that the conduct of the motorman was justified by a, signal from the chauffeur to proceed over the crossing, where the chauffeur testified that he gave no signal whatever and he is corroborated by the testimony of passengers in the automobile.
    ,1 NEGLIGENCE: Automobile Approaching Crossing: Demurrer. Where there was a covered station about 140 feet from the center of a public highway crossing the railroad tracks, at which street cars usually stopped, and the motorman and conductor testified that the street car did not stop at this crossing, but increased its speed to twenty-five or thirty miles an hour, and the driver of an automobile, approaching the crossing at a speed of five miles an hour, testified that when he drove on the railway tracks his automobile was under perfect control and could have been stopped instantly, and that, before approaching the danger zone, he was in plain view of the street car and saw its every movement between the station and crossing, the said driver did not exercise either ordinary or the highest degree of care, and a demurrer to the evidence of plaintiff, a passenger in the hired automobile who was injured in the collision, offered by the owner of the automobile, was properly refused.
    4.-: Street Railway: Instruction: Dangerous Speed. An instruction for plaintiff, a passenger in a hired automobile who was injured when it collided with a street car at a public crossing, telling the jury that, in order to find against the street railway company, they must find that the company was guilty of negligence in operating the street car at a negligent, excessive and dangerous rate of speed, and was guilty of negligence in failing to have the car under reasonable control, and that plaintiff, by reason of said negligence, or the joint negligence of the company and the defendant owner of the automobile, was injured, properly stated the law.
    6. -: -: Signal from Chauffeur: Instruction. The court did not err in modifying an instruction offered by the railway company telling the jury that "if the driver of the automobile in which plaintiff was riding signaled the motorman to come on with his car, plaintiff is not entitled to recover against said defendant” so as to read that “if the driver of the automobile in which plaintiff was riding signaled the motorman to come on with his car, and said motorman saw such signal, and relied thereon, and acting as a prudent person liad a rislit to rely on such signal, then plaintiff is not entitled to recover from said defendant.”
    6. NEW TRIAL: Newly Discovered. Evidence. Defendants are not entitled to a new trial on the ground of newly discovered evidence relating to the extent of plaintiff’s injuries, where such injuries were fully and extensively stated in his petition, and they used no diligence and made no effort, by inquiring from his neighbors and other persons who might know, to discover any of the facts which they set up in their motions as newly discovered evidence. An assignment that plaintiff was guilty of fraud and deceit at the trial in testifying as to the extent of his 'injuries cannot be sustained on the ground of newly discovered evidence where defendants were guilty of inexcusable negligence in failing to ascertain tbe facts before trial.
    7. EVIDENCE: Extent of Injuries: Attending Physician: Conclusion Based on Plaintiff’s Testimony. After plaintiff was injured he was in a Missouri hospital for two weeks, and while there was treated by three physicians, who found bruises and some other injuries, but no broken bones. He went from there to Kansas, and thereafter no doctor examined or prescribed for him up to the time of the trial, two years later. The three physicians who treated him at the time of the injhry testified at the trial, but they had not examined him, or been requested to examine him, to determine his present condition, before they were called as witnesses. After they had testified, plaintiff testified in his own behalf, detailing at length his injuries, among others that he had a heavy limp, which he exhibited to the jury, and which he said was due to an injury in the hip. Then the three physicians were called to testify as experts and to base their opinions upon plaintiff’s testimony. Held, that the course pursued may not be illegal, but is unusual, and in the orderly administration of justice should be closely scrutinized by the court, and if an unfair advantage has been obtained thereby a new trial should be granted.
    8. -: -: -: Conclusions of Expert. The testimony of an expert is admissible within reasonable bounds, but should not invade the province of the jury, nor substitute the expert’s opinion for that of the jury upon the ultimate facts to be decided by them. - The expert should not be permitted to express his opinion as to conjectural and speculative matters. It must not be based on mere possibility.
    9. -: -: Permanency of Injuries: Opinion of Expert: Reasonable Certainty. While an expert may express his opinion as to whether an injury to plaintiff will be permanent, his answer, in order to stand the test of judicial criticism, must show that the result which his opinion indicates will follow to a reasonable degree of certainty.

      10. EXCESSIVE VERDICT: Injection of Harmful Facts'. Where it was not alleged in the petition that an operation was performed upon plaintiff on account of his injuries, hut throughout the trial the plaintiff, his counsel and one of his expert witnesses, over the repeated protests of defendant, improperly got before the jury that a serious operation had been performed, resulting in plaintiffs emasculation, without any showing that it was made necessary by the injuries that he received in the accident, and it is manifest that such operation and its natural effect were injected into the case for the illegal purpose of augmenting plaintiff's damage, and the size of the verdict'makes manifest that they had that effect, the appellate court will not require a remittitur to be filed and affirm the verdict for the balance, but will reverse and remand the cause for a new trial, on the ground that defendants have not had a fair and impartial trial.
    Appeal from Jackson Circuit Court. — Hon. Darnel E.Bird, Judge.
    Reversed ahd remaNded.

      Charles N. Sadler for appellant, Kansas City Railways Co.
    (1) The demurrer interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence should have been sustained, .(a) No negligence was shown. No common law excessive speed was shown. Pope v. Railroad, 242 Mo.'239; Lann v. Ry. Co., 216 Mo. 580; Petty v. Ry. Co., 179 Mo. 674; Theobold v. Transit Co., 191 Mo. 432; Green v. Rj'. Co., 192 Mo. 142:. '(b) Plaintiff could not rely on driver even if he was a guest. Leopard v. Ry. Co., 214 S. W. 268; Fechley v. Traction Co., 119 Mo. App. 367; Burton v. Pryor, 198 S. W. 1117; Marsh v. Railroad, 104 Mo. App. 587. (c) Even if car was running at excessive speed, the contributory negligence of plaintiff bars his right to recover. Pope v. Railroad, 242 Mo. 232; Green v. Railroad, 1921 Mo. 131; Reeves v. Railroad, 215 Mo. 169; Schmidt v. Railroad, 191 Mo. 215; Sanguinette v. Railroad, 196 Mo. 497; Mockowik v. Railroad, 196 Mo; 550; McCreery v. Ry. Co., 221 Mo. 3Í. (2) The court erred in giving instructions asked by plaintiff, (a) Instruction B fails to define what is meant by “negligent, excessive and dangerous rate of speed.” Slezak v. Transit Co., 142 Mo. App. 702; Day v. Citizens Ry. Co., 81 Mo. App. 471; Gebhardt v. Transit Co., 97 Mo. App. 381. (b) There was no evidence upon which to base same. Jordan v. Transit Co., 20-2 Mo. 418; Rawling v. Frisco, 175 S. W. 935; Boyd v. Ry. Co., 236 Mo. 54. (c) Broadens issues made by pleadings. Bergfeld v. Dun-ham, 202 S. W. 253; Sims v. Dunham, -203 S. W. 652; Beave v. Transit Co., 212 Mo. 331. (3) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff, (a) Broadens issues made by pleadings. Shafer v. Dunham, 183 S. W. 670; Hall v. Coal Co., 260 Mo. 351; Bergfeld v. Dun-ham, 202 S. W. 253; Davidson v. Transit Co., 211 Mo. 363; Roscoe v. Railroad, 202 Mo. 576. (b) Invades province of jury. Taylor v. Ry. Co., 185 Mo. 256; Glasgow v. Ry. Co., 191 Mo. 364; Smart v. Kansas City, 208 Mo. 199; Castanie v. Ry. Co., 249 Mo.— (4) The court erred in refusing to sustain motion for new trial on the ground of fraud and deceit. R. S. 1909, sec. 2022; Ridge v. Johnson, 129 Mo. App. 541. (5) The verdict is excessive. Clark v. Ry. Co., 234 Mo. 396; Rodney v. Ry. Co., 127 Mo. 676; Lyons v. Railroad, 253 Mo. 143; Dominick v. Coal Co., 255 Mo. 305; Holzmer v. Ry. Co., 169 S. W. 102; Gibney v. Transit Co., 204 Mo. 704; Mor-rell v. Laurence, 203 Mo. 363.

      J. K. Gubbison and William G. Holt for appellants, D. W. Newcomer’s Sons.
    (1) The trial court erred in failing to sustain the demurrer of D. W. Newcomer’s Sons at the close of plaintiff’s testimony and at the close of all of the testimony and in failing to give the peremptory instruction requested by them. (2) The court erred in giving Instruction A requested by plaintiff. (3) The trial court erred in failing to grant a new trial on the ground of newly discovered evidence, and on the statutory ground, .Section 2022, which provides in substance that in every case where a fraud or deceit has been practiced by one of the parties on the other, or the court is satisfied that perjury or mistake has been committed, a new trial should be granted. Standard Inv. Co. v. Hoyt, 164 Mo. 124; Ry. Co. v. Fogelsong, 42- Col. 341; In Jensen v. Hamburg American Packing Co., 23 App. Div. 163, 48 N. Y. Supp. 630; Southard v. Bangor Railroad, 91 Atl. 948; State v. Murray, 91 Mo. 103; Rickroad v. Martin, 43 Mo. App. 597; Lessenden v. Ry. Co., 238 Mo. 247; Waddell v. Ry. Co., Ill S. W. '542; McDonald v. Railroad, 164 Mo. App. 56; Morrell v. Lawrence, 203 Mo. 363; Taylor v. Ry. Co., 185 Mo. 239; Lundahl v. Kansas City, 209 S. W. 564; Ossenberg v. Chemical Co., 218 S. W. 421; Young v. Lusk, 268 Mo. 640.

      Aiiuood,. Wicker sham, Hill & Popham for respondent.
    (1) The allegation in plaintiff’s petition against both defendants was clearly proven. Negligence of the driver of the automobile was not imputable to plaintiff: Sluder v. Transit Co., 189 Mo. 142; Becker v. Ry. Co., 102 Mo. 549; Marsh v. Railroad, 104 Mo. App. 586; Montague v. Ry. Co., 193 S. W. 936; Burton v. Prvor, 198 S. W. 1117; Newton v. Harvey, 202 S. W. 249; Hunger v. City of Sedalia, 66 Mo. Ápp. 632; Profit v. Ry. Co., 91 Mo. App. 375. (2) Plaintiff occupied the position of a passenger for hire. The automobile was. furnished by defendants Newcomer’s Sons as a part of the funeral service and they were paid for it. Mahaney had no control or right of control over the driver of the automobile. Contributory negligence was not pleaded, and "therefore cannot be relied upon as a defense. Aronovitz v. Arky, 219 Mo. 622; Hensley v. K. C. Rys., 214 S. W. 288; Johnson v. Traction Co., 176 Mo. App. 174. (a) Instructions A and B given on request of plaintiff clearly informed the jury as to what under the law would constitute liability against eacli of the joint tortfeasors. (3) The court did not err in denying motion for new trial on account of alleged so-called “fraud and deceit.” This was a matter addressed solely to the discretion of the trial judge and this record will show that discretion was in nowise abused. Absent gross abuse of discretion, no question is presented on review by this court. Callison v. Eads, 211 S. W. 716; O'ncken v. Ehrler, 222 S. "W. 1047. (4) The point advanced by appellants that the court committed error in refusing to grant motion for new trial on ground of “newly discovered evidence” is wholly without merit. Not a single requirement of the, law was met by appellants entitling .them for new trial on this ground. State v. Speritus, 191. Mo. 41; Grocery Go. v. Hotel Co., 183 Mo. App. 440; Knox v. Railroad, 199 Mo. App. 72. (5) In view of the seriousness and permanency of plaintiff’s injuries, the verdict of the jury was in nowise excessive. Hurst v. Railroad, 219 S. W. 567; Hays v. United Rys. Co., 183 Mo. App. 608, 167 S. W. 656; Greenwall v. Railroad, 224 S. W. 156; Dunton v. Hines, 267 Fed. 454.
   RAILEY, O.

The petition alleges, among other things, that on April 24,1917, plaintiff attended a funeral conducted by defendants Newcomer, and was one of the funeral party transported by said defendants, in conducting said funeral; that in consideration of the funeral bill paid to said defendants Newcomer, the plaintiff and other members of said funeral party, were to be transported in vehicles by them, to and from the cemetery; that after the burial, while plaintiff and the other members of said party were being transported by said defendants Newcomer, from the cemetery, as aforesaid, in a large funeral automobile, operated by said defendants Newcomer and their agents, the automobile was driven along the public highway to a certain point near the cemetery, and near the town of Mt. Washington, in Jackson County, Missouri, where said highway crosses the system and railway tracks of defendant, The Kansas City Railways Company; tliat then and there, a street ear operated by said Railways Company, and said funeral automobile, in which plaintiff was so riding, approached said intersection about the same time; that by the several and joint negligence and carelessness of said Railways Company in operating, managing and controlling said street car, and the defendants Newcomer and their agents and servants in managing, operating and controlling-said funeral automobile, the said street car and said funeral automobile at said time collided and ran together, violently and with great force, whereby plaintiff was forcibly hurled against various portions of said automobile, caused to come in contact with other objects and was thereby severely and permanently injured.

The petition describes in detail the injuries alleged to have been sustained by plaintiff, and charges that he has been damaged to the extent of $50,000, etc.

Each of the above-named defendants filed a general denial.

The trial was commenced on May 12, 1919, before Judge Bird and a jnry.

It is undisputed that the Railways Company was operating a line of railway between Kansas City and Independence, Missouri, and that it was operating the street car which injured plaintiff on April 24, 1917. It is also uncontroverted that the defendants Newcomer were the undertakers conducting said funeral, and that for the consideration paid them plaintiff and the other pallbearers were to be transported to the Mt. Washington Cemetery and return, in the automobile of said defendants. It is also uncontroverted that after the funeral plaintiff and about four or five of the above pallbearers were riding in the Newcomer automobile when plaintiff was injured.

The evidence tends to show that “Mount Washington Cemetery” is located south of the railway track. At the east end of the cemetery there was a public highway extending north and south, which crossed the railroad track practically at right angles. A short distance west of where the street railroad track crossed said public road, there is a covered station on the north side of the railroad track, located about twenty-five feet west of a post mentioned in the evidence. The front vestibules of street cars going east are usually stopped about at this post, where passengers get on or off the car. It was about 106 feet from the entrance of the cemetery north to the railroad track. It is about a four or five per cent up-grade from the cemetery to the railroad track. The distance by actual measurement, from the post above mentioned, to the center of the crossing where plaintiff was injured, is 50 or 51 feet. About 90 feet west of said post is a sign, designated as “Mt. Washington.” This is where pedestrians get off to go into the cemetery through a gate. The highway runs northeast as it leaves the cemetery, and then runs practically north across the railroad track. The automobile, by reason of said collision, was carried east down the street car track about twenty-six feet from the center of said highway. It was a Cadilac, seven-passenger automobile, and weighed about 4,000 pounds. ■ The accident occurred about the middle of the day. The street car was traveling east, and the automobile going north, when the collision took place. The east end of the street car struck the automobile near its middle and carried it the above distance of twenty-six feet. Plaintiff was injured in the collision, and sued both defendants to recover the damages sustained by him, on account of the alleged negligence of defendants.

In order to avoid repetition, the remainder of the facts will be considered in the opinion.

The instructions given and refused, as well as the rulings of the court during the progress of the trial, will be considered, as far as necessary, in the opinion.

The jury returned a verdict for $30,000 against both defendants and judgment was rendered accordingly. Defendants filed separate motions for a new trial, and separate motions in arrest of judgment. All of said motions were overruled, and both defendants appealed to this court.

Í. Both the Railways Company, and defendants Newcomer, are strenuously insisting that the trial court committed'error in overruling their respective demurrers to the evidence at the conclusion of the case. As these contentions, are not based upon the same evi-dence> and as the testimony of each tends to shift the responsibility for plaintiff’s injuries to the other defendant, it. will be necessary to dispose of their respective contentions separately.

II. Before considering- either demurrer to the evidence, it is important to determine whether the alleged negligence of the automobile driver was imputable to plaintiff. The latter was sitting* on the rear seat of the automobile and on the west side of same, from which the oncoming car was approaching. It is-undisputed that plaintiff was riding-in a hired vehicle, then operated by defendants Newcomer in the course of their undertaking business, and that defendants Newcomer furnished this vehicle and carried plaintiff, with other pallbearers, on account of the consideration which they had received. The plaintiff had no control over the driver of the machine, was not in anyway directing his movements at the time and place of accident, and as the collision occurred in such a short time after the gripman and driver of the machine came in view of each other, we are of the opinion that the alleged negligence of the automobile driver should not be imputed to plaintiff as a matter of law. [Moon v. St. Louis Transit Co., 237 Mo. l. c. 434 and following; Neff v. City of Cameron, 213 Mo. l. c. 359 and following; Petersen v. Transit Co., 199 Mo. l. c. 341; Sluder v. Transit Co., 189 Mo. l. c. 139 and following; Becke v. Mo. Pac. Ry. Co., 102 Mo. 544; Davis v. City L. & T. Co., 222 S. W. l. c. 885; Lawler v. Montgomery, 217 S. W. l. c. 857; Leapard v. K. C. Rys. Co., 214 S. W. 268-9; Burton v. Pryor, 198 S. W. l. c. 1120; Montague v. M. K. & T. Ry. Co., 193 S. W. l. c. 936; Marsh v. Railroad, 104 Mo. App. l. c. 586; Profit v. C. G. Western Ry. Co., 91 Mo. App. l. c. 375; Munger v. City of Sedalia, 66 Mo. App. l. c. 631-2.]

III. The defendant Railways Company insists that it had the right to a clear track, and that twenty-five or thirty miles per hour was not an unreasonable rate of speed for its car at the time and place of accident. We have examined the cases cited by the Railways Company, but do not consider that they are applicable to the facts of this case. It may be true that in the country, and in places where the population is sparsely settled, a railroad company, in the operation of its train or cars, in the absence of evidence to the contrary, may proceed upon the theory that its track is clear, and run its cars or trains over same at a rapid rate.of speed, unless prohibited by law. The principle just announced, however, has no application to the facts of this case, because there was substantial evidence offered in behalf of plaintiff, tending to show that from the time the automobile left the cemetery, until struck by the street car, it was in plain view of the motorman. Plaintiff’s evidence likewise tended to show, that the chauffeur, without indicating any intention to stop, proceeded on his journey, at the rate of five miles per hour, toward the crossing, until he occupied a position of peril; that instead of the motorman putting his car under control and slacking his speed so as to avoid a collision, he increased the speed to twenty-five or thirty miles per hour, and ran his car into the automobile containing plaintiff and other passengers.

The motorman, in justification of his conduct, said he received a signal from the chauffeur, which he understood to be an invitation to come on over the crossing.' The chauffeur testified that he gave no signal whatever to the motorman, and he is corroborated as to this fact by at least one, if not more, of the passengers in the automobile. If the jurors believed the chauffeur, then they were justified in finding that the motorman was guilty of negligence in failing to have his car under control, and in increasing the speed of the car to twenty-five or thirty miles per hour, while the passengers of the automobile were in peril upon or near the crossing.

The demurrer of defendant Railways Company, was properly overruled.

IY. The defendants Newcomer likewise insist that their demurrer to plaintiff’s evidence should have been sustained. The observations heretofore made, in respect to the negligence of the Railway Company, apply with equal force to the conduct of the chauffeur in charge of the automobile. The motorman testified, that he did not stop at “Mt. Washington,” and his testimony is corroborated in that respect by the conductor in charge of the street car. The chauffeur testified, that when he drove on the railroad track, his car was in intermediate gear, was under perfect control, and could have been stopped instantly.

We then have before us substantial-evidence tending to show the following facts: That the street car did not stop at the post, but increased its speed to twenty-five or thirty miles per hour before reaching the crossing; that the chauffeur, before approaching the danger zone, was in plain view of the street car and saw its every movement between the post and crossing; that he either knew, or ought to have known, that a collision was likely to occur; that he unnecessarily speculated as to results, at the expense of his passengers, and failed to exercise any degree of care for the safety of those dependent upon him. The trial court committed no error in submitting to the jury the issue as to the negligence of the defendants Newcomer, under the circumstances of the case.

It may be observed in passing that paragraph 9 of Section 12 of the Laws of 1911, page 330, was in force at the date of this accident, and that said act has been construed by tlie oilier Division of this court to mean that the chauffeur in this ease, at the time of the accident, was required to exercise the highest degree of care that a very prudent person would use. [Jackson v. S. W. Bell Tel. Co., 281 Mo. 358; Monroe v. C. & A. Railroad Co., 280 Mo. 483; Threadgill v. U. Rys. Co., 279 Mo. 66.] Even if tested by the rule of ordinary care, we would not feel justified in holding, as a matter of law, that the chauffeur aforesaid was not guilty of negligence at the time and place of said accident.

Y. It is claimed by defendants Newcomer that plaintiff’s Instruction A. is erroneous. Said instruction is based upon the facts relating to the alleged negligence of the above-named defendants. It required Hie jury to find that the chauffeur failed to exercise ordinary care while attempting to pass over the crossing in controversy, before a verdict could be returned for plaintiff. If the law as declared in the other Division be held to apply to this case, these defendants got off better than they had the right to expect, as they were entitled to a verdict under said instruction “A” if the chauffeur was in the exercise of ordinary care at the time of said collision. The above contention is'without merit and overruled.

YI. The defendant Railways Company contends that Instruction B, given at the instance of plaintiff, is erroneous and should not have been given. It related to the change of negligence against the street car company. In order to find for plaintiff, as against said Railways Company, the jurors were required to latter was guilty of negligence, in operating said street car at a negligent, excessive and dangerous rate of speed, and was guilty of negligence in failing to have the street car under reasonable control, and that plaintiff, by reason of said negligence, or the joint negligence of both defendants, was injured thereby. Said instruction properly defined ‘‘ordinary care” and “negligence.” It was in harmony with Instruction Two, given at tire instance of said Railways Company, and tire two instructions considered together properly stated the law.

VII. The defendant Railways Company complains of the action of the trial court in modifying its instruction numbered 4, and in giving the same as modified. Said instructions read as follows:

i£4. The court instructs the jury that if you find and believe fro mthe evidence that the driver of the automobile in which plaintiff was riding signaled the' motorman to come on with his car, then under such circumstances plaintiff is not entitled to recover from defendant, the Kansas City Railways Company, and your verdict must he for said defendant.
“4%. The court instructs the jury that if you find and believe from the evidence that the driver of the automobile in which plaintiff was ’riding, signaled the motorman to come on with his car, and that said motorman saw such signal, and relied thereon, and acting as a prudent person had a right to rely on such signal, then under such circumstances plaintiff is not entitled to recover from defendant, The Kansas City Railways Company, and your verdict must be for said defendant.”

The court below committed no error in modifying said instruction 4, and in giving the same as modified. The above complaint is devoid of merit and overruled.

VIII. Instructions 5, 6, 7 and 8, asked by defend- and Railways Company, were properly refused in view of the evidence in the case. These instructions sought to charge plaintiff with the imputed negligence of the chauffeur, and have been fully considered under Proposition Two of this opinion.

IX. Both defendants charge that plaintiff was guilty of fraud and deceit at the trial of the case, in testifying as to the extent of his- injuries. They urge this in support of their respective motions for a new trial, and also ask that tile latter he sustained oil the ground 0f newly discovered evidence. We have carefully read each of the motions filed by defendants, as well as all the affidavits filed relating to alleged newly discovered evidence. It is manifest, upon the most casual examination of said motions and affidavits,' that appellants failed to use any diligence whatever in locating the residence of plaintiff,-and learning, prior to the trial, from his neighbors, the same facts which they are now urging as newly discovered evidence. The defendants Newcomer were in charge of the funeral, and plaintiff, as a pallbearer, was riding as a passenger in their automobile. • They must have been informed as to his residence, expecially after the accident. The petition advised both appellants that plaintiff was claiming to have been injured as follows:

“His left arm was greatly bruised, wrenched, and injured ; his right hand was broken and the thumb thereof dislocated; his right hip was dislocated; his left hip greatly wrenched, bruised and injured; he was ruptured and suffered a separation of his abdominal wall; his testicles, scrotum, and spermatic cord were bruised and lacerated and his entire privates injured and his sexual and procreative powers impaired and almost destroyed; his ribs and sides were greatly injured, bruised, and made sore; his chest and lungs were bruised, wrenched and congested; his respiratory organs and heart were jarred and injured; his legs were bruised and strained; his spine and back and the muscles thereof were wrenched and bruised; his kidneys and urinary organs were greatly bruised, deranged, and injured; his head and neck were greatly twisted and bruised, causing violent headaches and pains in his head and neck; his brain, spinal cord, nerves, and entire nervous ' system were greatly shocked, impaired, and injured, and the nerves, blood vessels, ligaments, and muscles of his whole body were greatly wrenched and injured.”

Tt is clear that the failure of appellants to have before the court at the trial the facts stated in their said motions and the affidavits aforesaid, was by reason of their own negligence and lack of diligence. They are in no position here to ask this court to convict the trial court of an abuse of judicial discretion in overruling their motions for a new trial and in arrest of judgment, under the circumstances presented in this record. The conclusion just announced is sustained by a long line of decisions in this State, some of which are as follows: Miller v. Whitson, 40 Mo. l. c. 103; Cook v. Ry. Co., 56 Mo. 380; Fretwell v. Laffoon, 77 Mo. 26; Snyder v. Burnham, 77 Mo. 52; Maxwell v. Ry. Co., 85 Mo. 106; Shotwell v. McElhinney, 101 Mo. l. c. 682-3; Tittman v. Thornton, 107 Mo. 510-11; Thiele v. Citizens Ry. Co., 140 Mo. l. c. 338-9; State v. Speritus, 191 Mo. 24; State v. Whitsett, 232 Mo. 511; State v. Walker, 250 Mo. l. c. 321; Sang v. City of St. Louis, 262 Mo. l. c. 467, 171 S. W. 347; Claxton v. Pool, 197 S. W. 349; State v. Arnett, 210 S. W. l. c. 84; Formenlo v. Hines, 225 S. W. 104; MacCallum v. Wilson Printing Co., 221 S. W. 158-9; Eidson v. Met. St. Ry. Co., 209 S. W. l. c. 577-8; Owens v. Fanning, 205 S. W. l. c. 72 ; Knox v. M. K. & T. Ry. Co., 199 Mo. App. 64, 203 S. W. 226; Stahlman v. Rys. Co., 183 Mo. App. l. c. 149, 166 S. W. 314; Grocery Co. v. Hotel Co., 183 Mo. App. 429; Aaron v. Met. St. Ry. Co., 159 Mo. App. l. c. 315, 144 S. W. 145.

The inexcusable negligence of defendants, in failing to ascertain from the neighbors and acquaintances of plaintiff the extent of his injuries prior to the date of trial, when he was claiming in his petition to be so badly injured as aforesaid, did not justify the trial court in granting them a new trial based upon newly discovered evidence. The foregoing contention of appellants is accordingly overruled.

X. It is contended by appellants that error was committed during the progress of the trial, to their prejudice, in respect to the admission and. rejection of evidence. There are some remarkable features connected with the trial of this case. Plaintiff was injured on April 24, 1917. He was at the hospital in Independence, Missonri, about two weeks and two days, and was treated while there by Doctors Mather, Twyman and Nixon. They found bruises on him and some other injuries, but-discovered no broken bones. He went from the hospital to his home in Kansas, and never had any other doctor examine him or prescribe for him up to the time of the trial, over two years thereafter. He had all three of the above doctors as witnesses at the trial, but did not call on either of them to examine him at that time, to determine his physical condition before they were put on the stand to testify. On the contrary, plaintiff took the stand in his own behalf, and covered a wide range in detailing his alleged injuries. The above doctors were then called upon to testify as experts and to express their opinion based upon plaintiff’s testimony, in relation to the various matters submitted to them. "We are not prepared to say, that the course pursued in respect to above matter is illegal, but in the orderly administration of justice the court should closely scrutinize such an unusual proceeding, and if any unfair advantage has been obtained thereby a new trial should be awarded.

It is manifest from reading plaintiff’s testimony, in connection with the history of the case, that some-of the grievances complained of, and graphically described before the jury, may have resulted from causes other than those which could have been attributed to said collision. Some of them may have been attributable to natural causes which sustained no relation to the negligent acts complained of by respondent. As an illustration, plaintiff testified in chief, as follows:

“Q. Now, I notice that you have a limp. Have you had that limp since this injury? A. Yes, sir.
“Q. Just show the jury in what way you walk on that leg. Just walk as you ordinarily do. (Witness walking in front of the jury.)
“Q. Why do you have that heavy limp, Mr. Ma-hany? A. Well, from this hip. . . .
“Q. Are you able to get along on your legs at all without that heavy limp that you evidence here? A. No, sir.’’

There was no proof offered tending to show that said limp resulted from the collision, or that it had not been assumed for the purposes of the case. The three doctors who examined and treated him during the two weeks following the accident discovered no injury which could account for this heavy limp.

Dr. Nixon testified for plaintiff as follows:

“I-got him in condition to move first, and after we took him to the sanitarium, we got him stripped off and looked over his body for injuries. He was just bruised in various places over the body, hips and shoulders and sides, just a bruised condition.”

This witness further testified in chief:

“Q. What seemed to be the trouble with the right hip, Doctor? A. Well, there was a bruised condition there. We X-rayed the hip, but the plate did not show any bony injury.
“Q. Did not show that the bones were broken? A. Did not show that the bones were broken; no, sir.”

Now, this was all the doctors found, in respect to this matter, two years before the trial. Neither doctor examined him at the date of the trial, or at any other time than during the first two weeks of his injury. It is not even claimed that there were any bruises on his heavy limping leg, at the date of trial, nor does it appear from the evidence that anything was wrong with the leg at that time, except the limp which had been developed after the accident. On the above showing, the doctors were examined as experts, to show that this heavy limp was permanent.

Proceeding along this line, the following hypothetical question was propounded to Dr. Nixon:

“Well, now, Doctor, it appears that he was injured April. 24, 1917, and assume, . ■■ . . that since this injury he has developed a heavy limp and limps in walking; . . . I ask you, Doctor, to tell the jury whether or not in your opinion the conditions I have described might, could or would in your opinion, have been caused by the collision and injuries mentioned*?” This question was objected to on the ground that it invaded the province of the jury, was conjectural, speculative, etc. The objection thus made was overruled, and witness answered:
“It is possible that such a condition might follow that injury.”

The plaintiff, over a proper objection, followed the above inquiry by asking Dr. Nixon if, in his opinion, this heavy limp was permanent. Witness answered: “It is possible that it might be permanent.”

Dr. Mather, over a proper objection, was permitted to testify', that in his opinion, this limp will probably be permanent. Again, counsel, in describing plaintiff’s alleged ailments, asked Dr. Mather: “What in your opinion does that indicate in reference to his nerves or nervous sj^stem, Doctor1?”

A proper objection was made to this question, which was overruled, and the witness permitted to answer: “It is due to the strain from the accident, nerve strain, undoubtedly.

“Me. Sablee: I ask that the answer be stricken out for the same reason.
“The Court: Motion to strike out will be denied. lie says that is what caused it.” (Italics ours.)

After this illegal evidence had carried its poison to the jury, counsel for respondent asked to have the above italicised portion stricken out, and the court said, “All right. ’ ’

The following question was propounded to Dr. Twyman, over the objection of defendants:

“Q. And if since this injury he has had trouble with that right hip and at this time has the heavy limp that you observe when he walks, and it has been more than two years since this injury, what is your opinion as to the permanency of that condition1? , , ,
“A. Assuming tiiat that is due to anatomical changes I, of course — I would say, just' assuming in good faith that the party is not putting the limp on, if he has to do that, that he probably will always have to do that.”

The admission of the foregoing testimony, as well as several other - matters contained in the record of a similar character, was not only prejudicial to the rights of defendants, but in all probability was largely responsible for the excessive verdict in this case. It is well-established law in this State that expert testimony is admissible within reasonable bounds, but the testimony of the expert should not invade the province of the jury, nor substitute his opinion for that of the jury upon the ultimate facts to be decided in the case. [Deiner v. Sutermeister, 266 Mo. l. c. 521 and following; De Maet v. Storage Co., 231 Mo. 615; Smart v. Kansas City, 208 Mo. l. c. 199-203; Roscoe v. Met. St. Ry. Co., 202 Mo. l. c. 577; Glasgow v. Railroad, 191 Mo. l. c. 364; Taylor v. Railroad, 18-5 Mo. l. c. 256.] The expert witnesses aforesaid were not only permitted to express their opinions as to conjectural and speculative matters testified to by plaintiff, but were likewise permitted, in violation of the law as announced in the above cases, to invade the province of the jury as to the ultimate facts to be determined in the case.

(a) While an expert may express his opinion as to whether or not an injury is permanent, his answer, in order to stand the test of judicial criticism, must show that the result which he has indicated, will follow to a reasonable degree of certainty. In other words, his opinion is incompetent, if based upon a mere possibility as to what may occur in the future. [Campbell v. Ry. Co., 175 Mo. l. c. 177-8; McGee v. Railroad, 214 Mo. l. c. 543; McCreery v. United Rys. Co., 221 Mo. l. c. 27-8; Blythe v. United Rys. Co., 211 S. W. l. c. 696; Battles v. Rys. Co., 178 Mo. App. l. c. 619; 11 Ruling Case Law, sec. 13, p. 582; 5 Encyc. Evidence, pp. 665-6; Strohm v. Ry. Co., 96 N. Y. 305; McClain v. Ry. Co., 116 N. Y. l. c. 467-8; Briggs v. Ry. Co., 177 N. Y. 62; Selleck v. City of Janesville, 104 Wis. l. c. 574.]

T3ie main opinions given by Doctor Nixon in answer to the hypothetical questions propounded to him by plaintiff, are based on mere possibility, as heretofore shown. This evidence went to the jury, over the objections of defendants, under the sanction of the court, as proper evidence to be considered in fixing* the amount of compensation to be recovered. The admission of same was prejudicial to defendants and should have been excluded.

Excessive verdict:Unfair rial. XI. Appellants strenuously insist that the damages assessed by the jury are grossly excessive and that a new should be granted on account of same. The verdict in this case was for $30,000. It was obtained under the circumstances heretofore stated.

It is not alleged in the petition that any operation was performed upon plaintiff on account of his injuries and, yet, throughout the trial, the plaintiff, his counsel and one of his doctors, over the repeated protest of the defendants, improperly got before the jury the fact that one of plaintiff’s testicles was removed by an operation, and -evidently created the impression upon .the minds of the jurors that he ought to be compensated therefor. The plaintiff in chief testified:

“Q. Why do yon have that heavy limp, Mr. Ma-hany? A. Well, from this hip. These leaders through here (indicating) on this side where I was operated on” etc.

On objection being made as to an operation, plaintiff’s counsel kindly consented that it might be excluded. In his hypothetical question to Dr. Nixon, heretofore mentioned, counsel for plaintiff told the doctor to assume “that the one testicle which he (plaintiff) now has is enlarged,” etc., thereby again calling the attention of the jury to the fact that one of plaintiff’s testicles had been removed by said operation. Counsel for plaintiff, in framing a hypothetical question submitted to Dr. Mather, said:

“’Doctor, it appears from the evidence here that the one testicle which this man now has is enlarged” etc. Dr. Mather was asked by plaintiff’s counsel for an opinion as to respondent’s nervous system and answered as follows:
“His nervous condition, of course, was shattered and injured following the accident, possibly due to the removal of the testicle.” This was also objected to, and the jury directed not to consider same.

It is manifest, from the foregoing, that plaintiff’s operation, and the loss of one of his testicles, was deliberately injected into the case for the illegal purpose of augmenting the damages herein. It was well calculated to have that effect, and we have no doubt from the size of the verdict aforesaid must have succeeded admirably.

Under ordinary circumstances where the verdict is excessive, the court may require a remitittur and affirm it as to the balance, but, in this case, we have reached the conclusion that defendants have not been awarded a fair and impartial trial under the Constitution and laws of our State.

"Without extending this discussion further, we hereby reverse and remand the cause for a new trial.

White, G., concurs; Modey, G., not sitting.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, J.

text:
    JOHN F. SLINKARD v. LAMB CONSTRUCTION COMPANY, Appellant.
    In Banc,
    November 20, 1920.
    CONTRACT: Right of Stranger to Invoke Interpretation. Where the suit is not a contest between the parties to a contract or their privies, whether the consideration mentioned therein was contractual or a mere recital, a party to the suit, who is a stranger to the contract, has no right to object to the introduction of parol testimony tending to vary its terms.
    Appeal from St. Louis City Circuit Court. — Hon. John W. McElhinney, Judge.
    Affirmed.

      McGammon & McGammon for appellant.

      Ródgers & Koerner for respondents.
   WILLIAMS, J.

Plaintiff recovered judgment against defendant in the Circuit Court of the City of St. Louis in the sum of $4,500, for personal injuries alleged to have been the result of defendant’s negligence. Thereupon defendant duly appealed to the St. Louis Court of Appeals. The opinion of the Court of Appeals, affirming the judgment, will he found reported in 212 S. W. 61.

One of the judges of that court deemed its decision to be in conflict with certain opinions of this court and one of the opinions of the Kansas City Court of Appeals, and the case was thereupon properly certified to this court.

We have carefully read the record and find that the opinion of the Court of Appeals contains a fair and accurate statement of the facts. We are also of the opinion, after a careful review of the case, that the opinion of the Court of Appeals properly declaras the law applicable to the issues made.

There is one statement in said opinion, however, which we deem unnecessary to a decision of the case and upon that point express no opinion. The point to which reference is here made is found in Paragraph One of that opinion and reads as follows: “as we read the release in question the consideration alleged therein is a mere recital and is not contractual in the legal sense.”

Since this suit is not a contest between the parties to the release or between their privies it is unneceessary to determine whether the consideration mentioned in the release was contractual or a mere recital — this because in either event the appellant, being a stranger to the contract of release, would have no right to object to the introduction of parol evidence tending to vary its terms. [McKim v. Met. St. Ry. Co., 196 Mo. App. 544, l. c. 546, and cases therein cited; McKee v. St. Louis, 17 Mo. 184, l. c. 190-1.]

To all the remaining portion of the opinion of the Court of Appeals we fully agree, and are unable to see any conflict between that opinion and the opinions mentioned by the learned dissenting member of that court.

For the reasons (except as above limited) stated in the opinion of the Court of Appeals, we rule that the judgment of the circuit court, should be affirmed.

It is so ordered.

All concur, except Gbaves, J., who dissents.


author: DAVID E. BLAIR, J. WALKER, J.

text:
    THE STATE v. J. M. FORD, Appellant.
    Division Two,
    March 7, 1921.
    1. LIMITATIONS: Absence from State: Question of Fact. If the total number of months and days defendant was in Missouri between the date the crime of forgery was committed and the date the information was filed, when aggregated, amount to less than, three years, his prosecution is not barred by limitations; and where there is substantial evidence that he was in this State less than three years between the two dates, and the issue of fact is submitted to tlie jury in an appropriate instruction, tlieir verdict concludes the question.
    2. FORGERY: Substantial Evidence: Intent. Evidence that the ■i signatures of the sureties on the promissory note were forged, that defendant knew they were not genuine, and that he uttered and offered the note to a hank and received value therefor, is sufficient to authorize a finding of an intent on defendant’s part to injure and defraud, and to sustain a verdict finding him guilty of the crime of uttering a forged note.
    3. -: Signature to Other Notes: Cross-Examination: Proof. In the trial of defendant for having uttered a forged note, the forgery consisting of the signatures of the two sureties, a husband and wife, both denied their signatures on the note, and he ad- . mitted there was great similarity between the alleged forged signatures and their genuine signatures. On cross-examination counsel asked the witnesses if they had not signed many notes for defendant and really had no idea how many they had signed. The trial court sustained an objection to this line of examination, and thereupon defendant offered to make such proof, and the offer was rejected. Held, that the proffered proof bore directly upon a vital issue in the case, that it would have been of great assistance to the jury in determining the weight and credit to he given to the testimony of the sureties, that defendant was entitled to make it, if he could, and it must he assumed, in view of the rejected offer, that he could have made it.

      Held, by WALKER, J., dissenting, that, the sureties having testified that they did not sign the note upon which the prosecution is based, a cross-examination as to whether they had signed other notes for defendant was permissible only for the purpose of testing their credibility, and it was not an abuse of the court’s discretion to exclude it.
    Appeal from Lawrence Circuit Court. — Hon. G. H. STtinker, Special Jndgé.
    Reversed and remanded.

      Gabriel & Gonkling for appellant.
    (1) The court erred in overruling the defendant’s demurrer interposed at the close of the evidence on the part of the State, and again at. the close of the entire eviclence. (a) The evidence shows conclusively that the information was not filed until more than three years (excluding Hie time tlie defendant was out of the jurisdiction) had elapsed, after the date of the alleged offense on October 29, 1906. R. S. 1909, sec. 4945, 4947; State v. Snyder, 182 Mo.- 462; Nodaway County v. Williams, 199 S. W. 224; McMillan v. Milling- Co., 190 Mo. App. 340; McNeil v. Mo. Pac. Ry. Co., 182 S. W. 762; Sullivan y. Railway, 72 Mo. 195; State v. Hopper, 21 Mo. App. '510; State v. Myers, 68 Mo. 266. (b) The defendant was not convicted of the offense charged in the information but was convicted of an offense with which he has never been charged. Nodaway County v. Williams, 199 S. W. 224; McMillan v. Milling Co.. 190 Mo. App. 340;-l Greenleaf on Evidence (35 Ed.), sec. 51; 3 Rice on Crim. Ev. 168; Wharton’s Crim. Ev. (9 Ed.) secs. 143-146; 1 Chit, on Grim. Law, 250; State ex rel. v. Ellison, 176 S. W. 11; State v. Herner, 48 Mo. 520; State v. Myers, 99 Mo. 107. (c) There is no sufficient and substantial evidence to support the verdict of the jury. State v. Bass, 251 Mo. 107; R. S. 1909, sec. 2022; Ridge v. Johnson, 129 Mo. App. 541; Sly v. Ry. Co., 134 Mo. 681. (d) There is a fatal variance between the note alleged, described, and set out in the indictment, and the note that was introduced in evidence by the State. State v. Pay, 65 Mo. 490; State v. Smith, 31 Mo. 320; State v: McNerney, 118 Mo. App. 60; State v. Chamberlain, 75 Mo. 382; State v. Chinn, 342 Mo. 507; Nodaway Co. v. Williams, 3.99 S. W. 224; State v. Owen, 73 Mo. 440; State v. English, 67 Mo. 136; Pitzer’s Admr. v. Barrett, 34 Mo. 84; Green v. Kennedy, 6 Mo. App. 577; Dunlap v. Kelly, 115 Mo. App. 610; Hard v. Foster, 98 Mo. 297. (2) The court erred in refusing to admit proper, competent, relevant and material evidence offered by the defendant.

      Franh W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
    (1) The court was not in error in overruling defendant’s demurrer. It was waived by offering evidence and there was ample evidence to take the case to the jury, (a) The offense was not barred by the Statute of Limitations and there being substantial evidence to sustain the verdict, this court will not attempt to reconcile the conflict therein. State v. G-erhardt, 248 Mo. 544; State v. Douglass, 239 Mo. 678; State v. Kullman, 22:5 Mo. 629; State v. Miller, 188 Mo. 379; State v. Kosky, 191 Mo. 16; State v. Wigger, 196 Mo. 97; State v. Thomás, 155 Mo. 306. (b) Defendant was convicted of the offense with which he was charged, uttering a forged note to E. A. Liles, cashier.- Sec. 4921, R. S. 1909; State v. Chissell, 245 Mo. 555; State v. Bell, 212 Mo. 127; State v..Harris, 209 Mo. 438; State v. Sakowski, 190 Mo. 647; State v. Hathorn, 166 Mo. 236. (c) There was substantial evidence to support- the verdict, and, absent a showing of bias, prejudice or passion, this court will not disturb the finding of the jury. State v. Underwood, 263 Mo. 668; State v. Baker, 264 Mo. 351; State ■ v. Maurer, 255 Mo. 168; State v. Concelia, 250 Mo. 425; State v. Bowen, 247 Mo. 595; State v. Reed, 2;37 Mo. 231; State'v. Bell, 212 Mo. 127; State v. Oertel, 217 S. W. 65. (d) The note offered in evidence was sufficiently described in the information. Had there been a variance it was for the trial court to determine whether or not it was prejudicial. State v. Foley, 247 Mo. 633; State v. Terry, 109 Mo. 62:2; Sec. 5114, R. S. 1909; State v. Wade, 267 Mo. 266; State v. Sharpless, 212 Mo. 201; State v. Ca-rrigan, 210 Mo. 371; State v. Dale, 141 Mo. 287; State v. Lamb, 141, Mo. 302:; State v. Wammack, 70 Mo. 411. (2) The court did not err in admission and rejection of evidence. Had there been it was not saved for review. State v. Wellman, 253 Mo. 314; State v. Ferrell, 246 Mo. 331; State v. Dudley, 245 Mo. 183; State v. Witherspoon, 221 Mó. 720; State v. Crone, 209 Mo. 330; State v. Pvles, 206 Mo. 632; State v. Finn, 199 Mo. 603.
   DAVID E. BLAIR, J.

After two mistrials appellant was convicted upon the third trial, under the second 'count of an information in accepted form, charging him with the crime of uttering' a forged note, in violation of the provisions of Section 4656, Bevised Statutes 1909 (Sec. 3441, B. S. 1919), and after unsuccessful motion for a new trial was sentenced on the verdict of the jury to imprisonment in the State Penitentiary for a term of three years, and has appealed.

Defendant- gave two notes, for value received, to the Peoples Bank of Aurora, Lawrence County, Missouri, for $2000 and $500 respectively. The information is based on the $2000 note. The alleged forger"' is as to the signatures on said note of his sureties, Ge^ Swindle and Mollie Swindle. Mrs. Swindle was the sister of defendant.

The alleged uttering is charged to have occurred as of the date of the note, October 29, 1906. The alleged forgery of the signatures of the sureties was not discovered for some months, and not until after one or more renewals of the notes by the defendant. When presented to the Swindles for payment, they denounced their purported signatures as forgeries. It appears a suit on the notes was brought .by the bank against the Swindles, which was unsuccessful

Some time in the fall of 1908, and about two years after the delivery of the notes in controversy to the bank by the defendant, he left the State of Missouri and thereafter remained out of the State until he-was brought back in August, 1916, by a detective named L. A. Wood-ley, who found him living at Granger, Washington, under the name of C. C. Hardcastle. It appears.that defendant was brought back to Missouri on some charge other than the one in the case now before us. At the trial the defendant introduced testimony of his previous good character. Other facts necessary to the proper understanding of the assignments of error will be recited in the opinion.

I. The first question presented is whether the prosecution in this case is barred by the Statute of Limitations, which provides that prosecutions in this character cases must be commenced witbin three years after the commission of the offense, as provided by Section 4945, Revised Statutes 1909 (Sec. 3737, R. S. 1919).

The prosecution is clearly barred, unless the total elapsed time that defendant was in Missouri, from October 29, 1906, the date of the commission of the alleged offense, to September 10, 1917, the date the information was filed, is within the period of three years prescribed by the statute above referred to. The time defendant was out of the State is not considered in making" this calculation. [Sec. 4947, R. S. 1909; Sec. 3739, R. S. 1919.]

There is a sharp conflict in the testimony of - the witnesses, both as to the date of defendant’s departure from Missouri, and as to the date of his return to this State. Much of the testimony on the part of the State is vague and uncertain. In the view we take of the matter it is not necessary to review this testimony. Counsel on both sides agree on October 29, 1906, as the proper date to take for the commission of the offense. It is the date of the defendant’s departure from Missouri that is the subject of the greatest conflict in the testimony.

Witness Woodley, the detective who brought defendant back to Missouri, testified that defendant told bim he left Missouri on September 15,. 1908, and the same witness testified that he returned to Missouri with defendant on August 25, 1916. The defendant fixes the date of the return about August 21, 1916, but such difference is immaterial. The information was filed September 10, 1917. On the basis of Woodley’s testimony, we make the following calculation: The elapsed time from October 29, 1906, to September 15, 1908, is one year, ten months and sixteen days, and from August 25, 1916, to September 10, 1917, one year and fifteen days, or a total elapsed time of two years, eleven months and one day.

It was the exclusive province of the jury, under the supervision of the trial judge, to determine this issue of fact, which was property submitted in an appropriate instruction. The jury might have believed defendant’s testimony that he left Barry County October 15, 1908, and finally left Missouri in November, 1908. It appar-entty did not believe it. It had the right to believe Woodley’s testimony as to the admission of defendant that he left Missouri September 15, 1908. The finding of the jury concludes the matter.

II. Appellant contends that there is no substantial evidence in the record to support the verdict. We have just pointed out that there was ample evidence that the prosecution was' begun within the time prescribed by law. There is evidence that the signatures of the Swindles on the note in question, purporting to create an obligation for the payment of mone3r, where forged; that defendant knew they were not genuine signatures; that defendant uttered and offered the note to the bank and received value therefor. From these facts the jury was authorized to find an intent on the part of defendant to injure and defraud. The contention is without merit.

III. Error is claimed by appellant because of variance between the allegation of the information that the note in question was uttered to one E. A. Liles, cashier, and the proof which shows delivery of the note †0 bank. While this variance might be demonstrated to be harmless under the ruling of this court in State v. Allen, 171 Mo. 562, or because such variance was not found by the trial court to be material to the merits of the case or prejudicial to the defense of the defendant under the provisions of Section 5114, Revised Statutes 1909 (Sec. 3907, R. S. 1919), it is not necessary for us so to decide, and we do hot do so because we have concluded this case must be remanded for a new trial, for reasons hereinafter stated. The question can and undoubtedly will be avoided upon such, retrial by proof in conformity with the charge in the information.

IV. Appellant claims that there is a fatal variance between the note set ont in the information and the note offered in evidence as “Exhibit A.” It is true that there is a variance. "Whether it is fatal or not, it unnecessary to decide, because on a retrial of the case the prosecuting attorney, if so advised, may file an amended information to conform to the proof.

V. Appellant contends that error was committed by the trial court in the refusal of testimony offered by him. Witnesses Geo. Swindle and Mollie Swindle had denied their signatures on the note. G-eo. Swindle had admitted the existence of great similarity between the alleged forged signatures and the genuine signatures of himself and wife, and that if he had not known the signatures were in fact not placed on the notes by himself and wife, he would have thought they were genuine signatures.

Defendant’s counsel asked both George and Mollie Swindle when testifying as witnesses if they had not signed main'- notes for the defendant and really had no idea how many notes they had signed. The trial court sustained the State’s objection to his line of examination and defendant duly offered to make such proof and the offer was rejected. The controversy over this line of cross-examination and the offers of proof by defendant occupy several pages of the record, but we do not think it necessary to set ont the same in full.

On the facts in the record before ns defendant was clearly entitled to this proof, if he could make it, and, for the purposes of this assignment of error, it must be assumed he could make it. Defendant claimed that his sister and brother-in-law (the Swindles) had previously signed several notes for him, that Mollie Swindle had also signed, her husband’s name to such notes by his authority, and that when lie received from the bank the note in question he sent it to his sister and her husband in the mail and in due time it was returned to him with their purported signatures thereon, and that he took the note to the bank and delivered it, believing it bore the genuine signatures of the Swindles. It was true there was testimony in the record of an admission by defendant that he signed the names of the Swindles on the note himself by the authority of the Swindles. This was denied by defendant on the trial.

Defendant was entitled to have the case fully submitted to the jury upon his theory that the note was in fact signed by the Swindles. In connection with the proof in the record before us of great similarity between the true and the alleged forged signatures of the Swindles and the admission of one of the bank officials, R. D. Liles, that he had testified to the genuineness of the signature of Mrs. Swindle in the suit against the Swindles on the note, the jury might well have believed that the Swindles were mistaken in their testimony that their signatures on the note in question were not genuine, if defendant had been permitted in cross-examining them to show that they had signed a great many other notes for him and really did not know just what notes they had signed. This evidence would have been of great assistance to the jury in determining the weight and credit to give to the testimony of the Swindles.

While the scope of the cross-examination on matters affecting the weight and credit to be given the testimony of witnesses is largely within the discretion of the trial court, the exercise of that discretion should be a sound one, and should not be used to exclude testimony having a direct bearing on an issue of vital importance in the ease, such as the genuineness of the signatures of the Swindles on the note alleged to be a forgery. In Under-hill on Criminal Evidence (2 Ed.), sec. 221, it is said:

“Where evidence from which an inference unfavorable to the prisoner is given upon the direct examination, everything within the knowledge of the witness and which may raise an inference to rebut, may be brought out on cross-examination.”

This is true even though the cross-examination he in regard to matters entirely collateral to the issues iu the case. While defendant could not have contradicted the Swindles if they had denied having signed so many notes for defendant that they did not know what notes they had signed, he was entitled to that admission from them on cross-examination, if he could secure it. The test as to whether defendant would have been permitted to introduce the testimony on direct examination is only applicable on the question of contradiction of testimony on collateral matters. [30 Am. & Eng. Ency. Law (2 Ed.), p. 1102.]

VI. Alleged error in admission of testimony offered by the State and in the giving of instructions need not be noticed here, for such questions will hardly arise on a retrial, in view of our ruling on the record before us.

For the aforesaid errors in sustaining objections to proper cross-examination by defendant of witnesses G-eo. and Mollie Swindle, the judgment must he reversed and the cause remanded for a new trial.

Higbee, P. J., concurs; Walker, J., dissents in separate opinion.

WALKER, J.

(dissenting). — I do not concur iii the conclusion reached by my learned brother that this case should be reversed on the ground that error was committed in refusing to permit the Swindles to be cross-examined as to whether they had not signed other notes for the defendant and did not know how many they had signed. These witnesses had sworn affirmatively on their direct examination that they did not sign the note upon which the prosecution was based. A cross-examination of the character here sought to be made is permissible only to test the credibility of the witnesses and is always within the discretion of the trial court.

The only exception to this rule in any wise absolute is when the cross-examination is in regard to transactions directly relevant to the crime charged and grow out of the examination in chief. It was not relevant to the transaction that the-Swindles liad or liad not signed other notes for the defendant except to test their credibility. Offered for this purpose, 'which, constituted its sole ground of admissibility, it was not an abuse of the trial court’s discretionary power in excluding it. Another test as to the admissibility of the character of testimony here sought to be introduced is: Would the defendant have been permitted to introduce this evidence on direct examination in his own behalf?

I am of the opinion, in view of the foregoing, that the refusal of the trial court to permit the Swindles to be cross-examined in the manner indicated does not constitute such prejudice as to authorize a reversal of this case, and that the judgment of the trial court should be affirmed.