author: GANTT, J. GANTT, J.

text:
    EVERETT, Appellant, v. BUTLER.
    Division Two,
    January 3, 1906.
    1. APPEAL: Filing Bill: Insufficient Recital in Abstract. A recital in the abstract “that plaintiff filed her bill of exceptions showing the above matters and things on the 11th of November, 1902, in accordance with the order of the court made and entered,” is a conclusion of law, and is not sufficient to show that the bill was filed within time permitted by the court, or that any permission was given by the court to file the same in vacation, or that the same was approved by the circuit judge, and on motion made by the opposite party the appeal will be dismissed.
    2. -: -: -: Filing Amended Abstract. Nor can the failure of appellant to comply with the statute and the rules of the court, which require an abstract to be served on respondent and be filed in this court thirty days before the case is set for hearing, be cured by serving on respondent and filing with- '• out leave three days before the case is set for hearing an additional abstract which shows that his bill of exceptions was filed within the time permitted by the court. [Distinguishing Lane v. Railroad, 132 Mo. 17.]
    Appeal from Washington Circuit Court. — No». F. R. Bearing, Judge.
    Appeal dismissed.

      Warren B. Isenberg for appellant.
    L. F. Binning and Edw. T. Eversole for respondent.
   GANTT, J.

This is an action of ejectment commenced in the Washington Circuit Court for lots 6 and 7 in block 82 of the town of Irondale, Washington county, Missouri.

We are Hot advised by the abstract when this action was commenced, but there is a recital that an answer was filed March. 5, 1902. It was a general denial. It then recited “that the case came on for trial during the March term, 1902, when the following proceedings were had as per hill of exceptions filed and allowed according to law.” Elsewhere in this abstract it is said: ‘ ‘ Plaintiff on the 26th of August, 1902, filed her affidavit for appeal, which was granted to this court, and plaintiff filed her bill of exceptions showing the above matters and things, on the 11th of November, 1902, in accordance with the order of the court made and entered. ’ ’ Prom this last-mentioned recital taken in connection with the certificate of judgment and appeal filed by the appellant in this court under the short method, it sufficiently appears that a judgment was rendered in this cause in favor of the defendant on the 8th of March, 1902, and by another recital in the abstract, it appears that on March 10, 1902, the plaintiff filed a motion for a new trial, which said motion was by the order of the court continued to the next regular term in August, 1902, at which time the motion for new trial was overruled. By the recital that the bill of exceptions was filed on the 11th of November, 1902, it will appear that the bill of. exceptions was filed in vacation of the said Washington Circuit Court, inasmuch as by law a regular term of the circuit court of Jefferson county intervened in September, and there is no evidence in the record that the circuit court of Washington county was adjourned over to November. In the abstract we are not shown that the circuit court of Washington county, by its order of record, during the August term thereof, extended to plaintiff the time for the filing of her bill of exceptions to a time after the adjournment of the said August term, and if so what time was granted her, unless we are to accept the recital “that plaintiff filed her bill of exceptions showing the above matters and things on the 11th of November, in accordance with the order of the court made and entered,” as sufficient.

We are of the opinion that this is not an abstract of any order of record but merely a conclusion of tbe plaintiff. If the court granted plaintiff leave to file a bill of exceptions in vacation within a certain time, surely it was an easy matter to so state, and then when she states she filed her bill of exceptions on the 11th of November, 1902, we could have seen it was filed within the time. Moreover, the burden of showing that her exceptions had become a part of the record devolved upon plaintiff and it is made her duty to show the facts to the court and not draw her conclusions merely. This recital does not state that the judge of the court signed this bill of exceptions, and without his signature clearly the bill of exceptions became no part of the record. "We are exceedingly loth, to dispose of an appeal in this manner, but the opposite party has rights which cannot be ignored. He has made timely objection to this abstract, and insists that the plaintiff has failed to observe the rules of this court and her appeal ought to be dismissed. As the abstract now stands there is not enough before us to show the bill of exceptions was filed in vacation by leave of the court entered of record in term time and within the time allowed.

The appeal is based entirely upon exceptions taken to the action of the trial court, and as the abstract fails to comply with the rules of this court, in that it is not indexed at all and it does not appear that the bill of exceptions is properly a part of the record, we are constrained to sustain the motion to dismiss the appeal, and it is so ordered.

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

ON MOTION FOR NEW HEARING.

GANTT, J.

The plaintiff has filed a motion for rehearing, and for an order setting aside the judgment dismissing the appeal in this cause, and for grounds thereof assigns the following reasons: because the appellant on the 13th day of October, three days before this cause was docketed for hearing and after receiving the brief of the respondent in which plaintiff’s abstract of record was assailed as utterly insufficient, had served on the defendant what plaintiff denominates an additional abstract of the record, in which the plaintiff had interlined, in writing, exceptions to the overruling of the motion for new trial and to the refusal of certain declarations of law asked by the plaintiff, and also appended a printed sheet, containing a digest of the petition and answer and the order overruling the motion for new trial, the affidavit for appeal and the order made on August 26, 1902, giving plaintiff leave to file a bill of exceptions on or before November 26,1902, and a subsequent order extending the time to file said bill of exceptions on or before December 15, 1902.

Plaintiff now insists that the court erred in dismissing her appeal and in not considering her additional abstract of record offered to be filed in the circumstances above noted.

Section 813, Revised Statutes 1899, provides that when an appeal is prosecuted to this court by what is known as the short method, the appellant shall “within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause in the office of the clerk of such appellate court, and within such time, deliver a copy of said printed abstract to the respondent or defendant in error.” Rule 11 of this court provides that “in those cases where the appellant shall, under the provisions of section 2253, Revised Statutes of 1889 (now sec. 813, R. S. 1899), file in the court a copy of the judgment, order or decree, in lieu of the complete transcript, he shall deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and shall in like time file ten copies thereof with the clerk of this court.” Rule 13 requires that “the abstracts mentioned in rules 11 and 12 shall bq printed in fair type, and shall be paged, and shall have a complete index at the end thereof, and shall set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision.” It will thus be seen that the rules of this court made in pursuance of the statute require the appellant or plaintiff in error to deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and in like time file ten copies thereof with the clerk of this court. But it is now contended by the appellant that he may ignore these rules and file an abstract within three days of the date of the hearing, and that such abstract must be filed by the clerk “either with or without the permission of the court, ’ ’ and that it is obligatory upon this court to accept the same. Such insistence is in the teeth of the rule, and if allowed would involve the court and opposing counsel in utter confusion. The rules and the statute upon which they are based are devised for the orderly disposition of the causes in this court, and to the end that both counsel and the court may be fully advised of the record upon which an opinion is sought in this court. The position of counsel is utterly untenable. But it is said that the- dismissal of the appeal in this case is in conflict with the decision of this court in Lane v. Railroad, 132 Mo. 17. The learned counsel for the defendant has overlooked the fact that Lane v. Railroad was decided by the Court in Banc, and the amended abstract wa.s prepared for the Court in Banc after the cause had been certified to the Court in Banc. Yarious cases might have been cited in which a similar practice has been allowed from the very necessities of the case. "When the cause is certified by either Division to the Court in Banc, it is in the estimation of the law a new setting of the cause, and as the sessions of the Court in Banc are regulated according to the amount of business therein, it often occurs that the date assigned for the hearing of the cause in Banc is much less than thirty days, and obviously the rule for the serving of abstracts and briefs in the Divisions are not applicable, and bence counsel are compelled to accommodate themselves to the conditions thus presented. Nothing said in Lane v. Railroad, 132 Mo. 17, therefore, and similar cases in Banc, conflicts in any way with the conclusion we reached in dismissing this appeal.

Neither do we hold that there may not be amendments to an abstract under proper circumstances for good cause shown, but when an abstract, as in this case, utterly fails to comply with the law not only in immaterial but in the most material respects, and counsel for the respondent or defendant in error have availed themselves of their right to object to the same, and have been, at the expense of printing their briefs, to hold that counsel for the appellant may then within three days of the date set for the argument of the case, so change the abstract as to present a wholly different state of record, would be to encourage negligence on the part of counsel and to punish the diligent counsel by exacting of them the printing and preparation of entirely new briefs, and oftentimes counter-abstracts of record. When this so-called additional abstract was offered for the first time at the hearing of this ease, the cause was ready for hearing. Rule 4 of this course provided, “No suggestion of diminution of record in civil cases will be entertained by the court after joinder in error except by consent of parties.” While no formal joinder in error is now required, when counsel on both sides have prepared and served their briefs on opposing counsel, the record is considered as made up for argument and decision, and it is too late then to change the record, except by consent of counsel, or upon leave of court given upon satisfactory showing. Rule 22 provides: “Hereafter in no case will extension of time for filing statements, abstracts and briefs be granted, except upon affidavit showing satisfactory cause.” No case within our experience has shown a more flagrant disregard of the rules of the court in the preparation of the abstract of record required by the law. No cause was shown for the failure to comply with the rules and in the very nature of the case none could have been shown, because all the matters inserted in the so-called additional abstract of record could have been inserted in the first abstract served upon defendant as well as in the additional abstract.

Upon full consideration, we see no reason for changing our ruling, and the motion for rehearing must be and is denied.

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


source: Caselaw Access Project

author: BRACE, P. J.

license: Public Domain

text:
    LOCKE, Appellant, v. CITY OF INDEPENDENCE.
    Division One,
    January 16, 1906.

      1. EVIDENCE: Exclusion: Cure. Error in excluding evidence of declarations by plaintiff of her pain and suffering resulting from a fall on a defective sidewalk, is cured by a mass of such evidence subsequently admitted.
    2. NEGLIGENCE: Verdict for Plaintiff: Nominal Damages: Conflicting Evidence. Where there is evidence that the plaintiff as a result of the accident received serious injuries, and substantial contradictory evidence that she received no serious injury therefrom, but that the many injuries of which she complained were feigned, it was the exclusive province of the jury to determine the issue of fact, and hence the court will not reverse a verdict and judgment for one cent. In such case, the verdict cannot be said to be the result of passion or prejudice on the part of the jury.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Affirmed.

      N. F. Heilman and I. J. Ringolshy for appellant.
    (1) (a) The verdict for one cent, and the one cent damages assessed, are the result of bias, passion and prejudice on the part of the jury, and said damages are grossly inadequate, unreasonable and absurd, (b). The verdict is arbitrary and is manifestly and clearly wrong. It is so manifestly and clearly wrong as to shock the moral sense of the court, (e) If the plaintiff was entitled to recover at all, she was entitled to recover reasonable and substantial damages, (d) In utter disregard of the court’s instructions and the evidence touching the nature, character and extent of plaintiff’s injuries, the jury assessed her damages at one cent after finding that she was injured and entitled to damages therefor on account of defendant’s negligence. Fischer v. St. Louis, 189 No. 567; Fairgrieve v. Moberly, 29 Mo. App. 141, 39 Mo. App. 38; Welsh v. McAllister, 13 Mo. App. 89, 15 Mo. App-. 501; Lee v. Knapp, 137 Mo. 385; Chouquette v. Railroad, 152 Mo. 257; Falvev v. Stanford, L. R. 10 Q. B. 54. (2) The court erred in excluding evidence of plaintiff’s complaints of present pain and suffering. McHugh v. Railroad, 88 S. W. 855; Goss v. Railroad, 50 Mo. App. 614; Brown v. Railroad, 66 Mo. 588; Mosby v. Ins. Co., 75 U. S. 397; Phillips v. Keeley, 29 Ala. 623; Elkhart v. Ritter, 66 Ind. 136; Newell v. Railroad, 54 Am. Rep. 312; Quaife v. Railroad, 33 Am. Rep. 821.

      Lleiuellyn Jones and Flournoy ds Flournoy for respondent.
    (1) There is nothing in the record to show that the jury was guilty of any misconduct, prejudice or passion, hence, the smallness of the verdict is no ground for a new trial. Fischer v. St. Louis, 189 Mo. 567; Havens v. Railroad, 155 Mo. 216; Dowd v. Air Brake Co., 132 Mo. 579; Weinberg v. Railroad, 139 Mo. 286. (2) If any error was made by the trial court in excluding testimony as to complaints of suffering made by appellant, such error was rectified by subsequently admitting such testimony. Plollman v. Lang, 143 Mo. 100; Reardon v. Railroad, 114 Mo. 385; Roe v. Bank, 167 Mo. 406; State v. Brenner, 164 Mo. 487; Deere Plow Co. v. Sullivan, 158 Mo. 140. (3) In view of the fact that a lawyer was. employed to bring suit for damages within four or five days after the accident, and that such suit was brought fourteen days after the accident, testimony as to complaints of pain made by appellant to witnesses other than physicians, was not admissible. Bacon v. Inhabitants of Charlton, 7 Cush. (Mass.) 581; Jones v. Village of Portland, 88 Mich. 598; Railroad v. Iluntley, 38 Mich. 537; Roach v. Railroad, 105 N. Y. 294; Purgason v. Davis Co., 57 Iowa 601; Railroad v. Carr, 170 111. 479; McHugh v. Railroad, 88 S. "W. 853; Abbott v. Heath, 84 Wis. 314; Stewarts v. Everts, 76 Wis. 35; Davidson v. Cornell, 132 N. Y. 228.
   BRACE, P. J.

This is an action for personal injuries alleged to have been suffered by the plaintiff from a. fall upon a defective sidewalk in' said city, in which the verdict and judgment were for the plaintiff and her damages assessed at one cent.

The errors assigned for reversal are, in substance: (1) The exclusion of some evidence as to the condition of the sidewalk. (2) The exclusion of some: evidence of declarations of plaintiff, after suit brought, as to her then suffering pain. (3) That on the evidence, the verdict is the result of bias, prejudice or passion, and the court erred in not granting a new trial for that reason.

As to the first assignment of error it is only necessary to say, that as the verdict was for the plaintiff on the issue of a defective sidewalk, she suffered no injury from any alleged error in this respect; and, as to the second, that if there was any error in excluding any complaint of pain by the defendant, it was amply cured by amass of such evidence subsequently admitted. [Roe v. Bank of Versailles, 167 Mo. 406; State v. Brennan, 164 Mo. 487; Hollmann v. Lange, 143 Mo. 100; Reardon v. Railroad, 114 Mo. 384.]

The only real contention in the case arises under the third assignment and is, that the verdict ought to be set aside and the judgment reversed because the plaintiff suffered serious injuries from her fall on the sidewalk and she was only awarded nominal damages. If the plaintiff suffered serious injuries from her fall, then she ought to have substantial damages for such injuries. But who is to determine that fact? Unquestionably the jury before whom the case was tried on the evidence produced before it. Nevertheless, the whole of that evidence, covering more than five hundred pages of printed matter in a volume almost as large as one of the Missouri Reports, is brought here, and long and able arguments, both oral and written, have been made upon it to convince us that Mrs. Locke received serious injuries from her fall; and, hence, the verdict of the jury for nominal damages was the result of passion or prejudice or some other malign influence operating upon the minds of the .jurymen who rendered it; and, in support of the contention, the recent case of Fischer v. St. Louis, 189 Mo. 567, seems to he relied upon. On the other hand it is argued in like manner on this evidence that the plaintiff sustained no serious injury from her fall but that the many injuries of which she thereafter complained were feigned. There was evidence tending to support each theory — with the weight of that evidence we have- nothing to do. It was the exclusive province of the jury to determine that issue of fact, and, by their verdict for nominal damages, they did determine it in favor of the defendant. This is conclusive upon us. In such case it is not our province to interfere with the verdict of the jury, and there is no ruling in the case of Fischer v. St. Louis, supra., or in any of the cases therein or in the brief of counsel cited that would authorize such interference.

In the Fischer case, the serious character of the injuries of the appellant stood confessed, and a verdict in her favor for one dollar was set aside and a new trial ordered, because such a verdict in such a case could be explained alone as the product of prejudice or some kindred motive. Rut in this case, the question whether the plaintiff did receive serious injuries or not was the very bone of contention; and, while there was ample evidence upon which the jury might have found that she did, there was also substantial evidence tending to prove that she did not. A verdict for nominal damages in such a case affords no ground for attributing the verdict to prejudice or some kindred motive. Weinberg v. Railroad, 139 Mo. 286, is a case directly in point, in which the verdict was for the plaintiff and her damages assessed at one dollar, and on her appeal this court refused to interfere with the verdict, saying: “The evidence as to the extent of her injuries was conflicting. While the evidence upon her part showed that she was quite seriously injured, the evidence upon the part of the defendant showed that she was not, and in fact that her injuries were slight. The jury, it seems, saw proper to believe the witnesses for defendant rather than plaintiff and the witnesses who testified in her behalf. ’ ’

In this case it would serve no good purpose to attempt a summary of the immense mass of testimony contained in this record and endeavor to sift the credible from the incredible therein and determine the weight to be given thereto. It is not within our province to do so. It was the peculiar right and duty of the jury, under the supervision of the court, to do this. They exercised that right and performed that duty under the supervision of the learned judge, who tried the case without error, in a manner to meet his approval; and there being substantial evidence therein to support the theory that the plaintiff did not receive serious injury from her fall, the verdict is logical, and the record furnishes no ground for our interference with it, or the judgment thereon. The judgment of the circuit court will therefore be affirmed.

All concur.


author: MARSHALL, J.

text:
    ANNA M. DEANE v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    January 16, 1906.
    1. NEGLIGENCE: Wantonness. Where there is no evidence of wantonness or willfulness on the part of the operatives of the car that struck a pedestrian attempting to cross the track at a street crossing,, there is no room for the application of the humanitarian doctrine to the case.
    2. -: Speed of Cars.. If plaintiff’s own evidence logically demonstrates that a street car was not being run faster than twelve miles an hour, it cannot be said that the testimony of one of her witnesses that it was being run twenty-five miles an hour is any substantial evidence that it was being run in excess of fifteen miles an hour —the maximum rate permitted by ordinance.
    3. -: Neither Looking Nor Listening.. Although the street car that struck plaintiff’s husband may have been run at a negligent rate of speed and no bell or gong may have been sounded, yet if, when he got off of the car on which he was riding and passed behind it, in pursuance of a purpose to cross the other track on which cars were moving in the opposite direction, he could easily have seen the nearby car coming on the track which he wished to cross had he only looked, and by stopping in the place of safety four or more feet wide between the tracks avoided the accident, but did not look or listen, but read a newspaper, and while doing so stepped in front of the car and was killed, he was guilty of such contributory negligence as bars his widow’s right to recover.
    Appeal from St. Louis City Circuit Court. — How. H. D. Wood, Judge.
    Beversed.

      Morton Jourdcm, George W. Easley and Boyle, Priest & Lehmann for appellant.
    The court erred in refusing the instruction in the nature of a demurrer to the evidence, offered by the defendant at the close of the plaintiff’s case, and renewed at the close of all the evidence in the case. The plaintiff’s husband was a man of mature years, in full possession of all his mental and physical faculties, well acquainted with the manner of operating cars at the place of the accident. He went upon or so near the east-bound track as to come in collision with the car, without having looked or listened for the approaching car, when had he done so he might have seen and heard the approaching car, and avoided the collision. He passed immediately to the rear of the car upon which he had been carried as a passenger, and went on to the east-bound track, without having taken any precaution whatever to ascertain whether a car was approaching or not. This was such contributory negligence as to defeat the plaintiff’s recovery. G-iardina v. Railroad, 185 Mo. 330; Meyer v. Railroad, 6 Mo. App. 31; Dunn v. Railroad, 21 Mo. App. 188; Weber v. Railroad, 100 Mo. 204; Asphalt Go. v. Railroad, 102 Mo. App. 476; Buzby v. Railroad, 129 Pa. St. 539; Smith v. Railroad, 29 Ore. 539; Craemer v. Railroad, 126 Mass. 320; Chattanooga Co. v. Body (Tenn.), 8 Am. Neg. Rep. 556; Railroad v. Helms (Md.), 1 Am. Neg. Rep. 63; Davis v. Railroad, 159 Mo. 8.

      Frank K. Ryan and E. P. Johnson for respondent.
    (1) The demurrer to the evidence admitted every fact it tended to prove and every inference that might with propriety have been made from it. Montgomery v. Railroad, 181 Mo. 504; Deitring v. Railroad, 109 Mo. App. 541;- Moore v. Railroad, 95 Mo. App. 735. (2) Contributory negligence is not a defense unless it is the proximate cause of or directly contributes to the injury. Rapp v. Railroad, 88 S. W. 869; Hutchinson v. Railroad, 88 Mo. App. 383; Morgan v. Railroad, 159 Mo. 273; Klockenbrink v. Railroad, 172 Mo. 688; Schlereth v. Railroad, 115 Mo. 96. (3) Deceased was a passenger on a west-bound ear on the north side of Finney avenue, and it stopped a few feet west of the west crossing of "Whittier street, a blind street that did not go through on the north. He had been reading a paper and alighted from the car and stood still for a short time near the curb on the north side of Finney avenue, and as the car from which he had alighted started on west, he started around or behind it and walked diagonally across Finney avenue, between it and the one that had followed it, in a southeasterly direction, looking at and reading his paper, without stopping or looking, apparently unconscious of his surroundings, until he got to the north rail of the east-bound track (or possibly a step over said rail), which is on the south side of Finney avenue, when some one seemed to halloo and he looked up, saw the first of the east-bound cars approaching and within about four feet of him, dropped his paper, seemed dazed and suddenly, almost instantly, jerked and jumped back, but he was not quick enough, and the northeast corner of said first east-bound car struck him and crushed his head. He was struck three or four feet west of the west crossing of "Whittier, and the car dragged him to a little west of the center of it, which is about forty feet wide between the curbs, and it ran on until its back platform was about a car length, thirty feet, east of the east crossing of Whittier before it was stopped — a distance of four feet to the west crossing, forty feet of Whittier between its curbs, twenty feet of two sidewalks and thirty feet, a car length, east of the east crossing — a total of ninety-four feet from the place where he was struck. When he first got in sight of the car that struck him, it was forty to fifty feet west of him; when he reached the middle of the west-bound track, it was forty to forty-five feet west of where he was struck; when he got across the south rail of the latter track, it was about twenty-five to thirty feet distant, and when he reached the north rail or stepped over it, of the east-bound track, where he jumped back, it was about four feet west of him. Finney avenue is wider than Whittier street, and he walked from near the curb on the north side of Finney avenue to the point where he was struck, and he could have seen the car (and, of course the motorman might have seen him), during the whole time he was approaching the latter track, as testified to by appellant’s witness, Dr. Scarborough. The- car that struck him was running very fast, at the rate of twenty-five- miles an hour, .on a down grade from Taylor avenue-, which is three blocks away, and where a ear, if started, would run by itself, with the power off, and its gong was not sounded, but the gongs of other cars were sounded. There is a conflict in the evidence as to the speed of this car, ranging from six to twenty-five miles an hour, and also a conflict in regard to whether its gong was sounded. Under these facts the negligence of deceased was not the proximate cause of his injury, nor did it contribute directly thereto, which distinguishes it from the cases relied on by appellant, and shows that the motorman of the car that struck him either saw him, or by the exercise of ordinary care might have seen him and become aware of the danger to which he was exposed in time to have stopped (lis car and prevented the injury of deceased, and the demurrer to the evidence was properly overruled. Bunyan v. Railroad, 127 Mo. 18; Baird v. Railroad, 146 Mo. 269; Werner v. Railroad, 81 Mo. 369; Holden v. Railroad, 177 Mo. 463; Baxter v. Railroad, 103 Mo. App. 606; Aldrich v. Railroad, 101 Mo. App. 88; Morgan v. Railroad, 159 Mo. 274; Klockenbrink v. Railroad, 172 Mo. 686; Jett v. Railroad, 178 Mo. 673; Scullin v. Railroad, 184 Mo. 707; Rapp v. Railroad, 88 S. W. 869; Deitring v. Railroad, 109 Mo. App. 540; Meyers v. Railroad, 99 Mo. App..371; Riska v. Railroad, 180 Mo. 191.
   MARSHALL, J.

This is an action, under the statute, to recover $5,000 for the death of the plaintiff’s husband, on the 20th of May, 1901, occasioned, it is alleged, by the negligent running of the defendant’s car, at the intersection of Finney avenue and Whittier street, in the city of St. Louis. There was a verdict and judgment for the plaintiff for $5,000, and the defendant appealed.

THE ISSUES.

The petition is ‘very voluminous, but the gist of the negligence charged is, that the agents of the defendant failed to stop the car in time to avoid the injury to the deceased, after the danger was known to them, or by the exercise of ordinary care could have been known to them; that the car was running at a dangerous rate of speed, and the operatives were not keeping a vigilant watch for persons approaching, or moving on, the tracks; that the deceased was a passenger on one of defendant’s west-bound cars, and left the car at Whittier street, and was struck by an east-bound car when attempting to cross the south track on Finney avenue, and that the operatives of the east-bound car negligently failed to sound the gong, or turn off the current of electricity and slow up the car when passing the westbound car.

The petition further alleges that a prior action for the same purpose was instituted on the 17th of July, 1901, and that the plaintiff suffered a nonsuit therein on the 15th of July, 1902, which allegation is intended to bring this action within the provisions of the statute in such cases.

The answer is a general denial, coupled with a plea of contributory negligence of the deceased, in that he stepped in front of defendant’s ear in such close proximity to it as to make it impossible to prevent the accident, and without looking or listening for the approach of the car.

The reply is a general denial.

The case made is this:

The defendant has a double-track street railway on Finney avenue. The tracks are four or five feet apart. Whittier street does not extend northwardly beyond Finney avenue. The accident occurred a little after six o ’clock in the evening. The deceased was a passenger on a west-bound car. When the car reached a point near Whittier street, there were three cars going west on the north track, and five ears going east on the south track. The deceased was riding on the second of the three cars going west. He was struck by the first of the five cars going east. The car on which the deceased was a passenger stopped a few feet west of the west line of Whittier street. He alighted from the car, passed around the rear, across the north track, and walked diagonally in a southeasterly direction across Whittier street. He did not stop or look or listen for a car approaching on the south track, but proceeded southeasterly, and was reading a paper as he walked. He had only gone a few feet east of the west line of Whittier street, and had about reached the north rail of the south track, when he was struck by a car coming eastwardly, and injured so that he died as the result thereof.

The track west of Whittier is straight for three blocks westwardly to Taylor avenue, and a person standing in the four or five foot space between the two tracks, could see a car for that distance westwardly. The grade is a slight down grade from Taylor avenue to Whittier street. After the accident, the car that struck the deceased stopped with its rear platform at the east side of Whittier street. -,

With respect to the speed of the car that struck the deceased, the plaintiff’s case rests upon the testimony of three witnesses, to-wit, Thomas Furlong, Louis Robbin and Delina Roberts. Furlong was a passenger with the deceased on the west-bound car, and was seated on the south side thereof, about the middle of the car, reading a paper. He testified that he did not know how fast the east-bound car was running, but was of opinion that it was running fast. Robbin was a passenger on the west-bound car, immediately behind the car on which the deceased was riding. When the car on which Robbin was riding reached the east side of Whittier street, it stopped to permit the car on which the deceased was riding to discharge passengers at the west side of Whittier street, and Robbin arose and looked out of the front door, and saw the deceased crossing the north track, and at the same time he saw an east-bound car coming on the south track. He testified that the deceased was walking in a southeastwardly direction, and that there was nothing to prevent his seeing the east-bound car, on the south track, if he had looked; that at the time he saw the deceased so walking, the east-bound car was twenty-five or thirty feet west of the west crossing. He did not testify as to the speed of the east-bound car.

Mrs. Roberts was an eyewitness to the accident. She was standing at the southeast corner of Whittier street and Finney avenue. She testified that the deceased stepped off of the car about ten feet west of the west crossing of Whittier street, and walked diagonally southeastwardly; that the east-bound car was running very fast, and that just as the deceased reached the north rail of the south track, the east-bound car was twenty or twenty-five feet from him; that the deceased did not notice the car until just before it struck him, which it did at a point three or four feet east of the west crossing, and about fifteen feet east of the point at which the deceased had alighted from the car; that she came of a family of railroad conductors and had a brother who was a passenger conductor at the time, and that she had frequently observed the speed of cars, and in her opinion the east-bound car was traveling at not less than twenty-five miles an hour. She further testified that the deceased neither looked to the right nor left nor back of bim, but seemed to be looking straight ahead across the track in a little southeasterly direction ; that the deceased never looked to the west until he jumped back, when the car was right upon him; that there was no obstruction on the track at any time, to prevent the deceased from seeing the east-bound car, all the way up to Taylor avenue, a distance of three blocks.

The defendant called six witnesses, who testified with respect to the speed of the car. W. O. Scarborough, a passsenger on the west-bound car from which the deceased alighted, was standing on the back platform, looking eastwardly, and was within eight feet from where the deceased crossed the west-bound track. He testified that the deceased had gotten a step or two into the middle of the east-bound track, when he looked up and saw the east-bound car about eight feet from him; that he stepped or jumped back, but the car struck him and injured him. After qualifying as an expert witness, by testifying that he had been an inspector of street railways, he stated that the east-bound car was not going at á greater rate of speed than eight or ten miles an hour, at the fastest; that the deceased did not look in the direction from which the car was coming, but looked straight ahead, and paid no attention to anything else, and never stopped until he got on to the eastbound track; that the space between the two tracks is four or five feet.

Mrs. F. A. Ball was seated in her carriage on Whittier street about twenty-five or thirty feet south of Finney avenue. She testified that the deceased never stopped until just before the car struck him; that the car was running very slowly.

A. J. Riddle was in the carriage with Mrs. Ball, and testified that the car was not running faster than usual, and seemed to be slowing down for the east crossing of the street.

Howard Campbell, the motorman, testified that the car was running six or eight miles an hour, and that he did not see the deceased until the car was within eight feet of him, and that he then used every possible means to stop the car.

James Griffin was walking north on Whittier street and was within forty or fifty feet of Finney avenue. He said the car was not going over eight miles an hour.

H. E. Croft was a passenger on the car from which the deceased had alighted; he was standing on the rear platform facing rather to the southeast. He testified that the east-bound car was not running faster than five or six miles an hour. He further testified that the deceased stood opposite him on the platform while going westwardly, and that he had on glasses, and while the deceased was crossing the street “he held the paper right up to his face, the same as anyone would to read a paper.”

With respect to the sounding of the bell, the plaintiff’s case rests upon the testimony of the three witnesses aforesaid. Furlong testified that he was reading a paper, and paid no particular attention, but that he heard no bell or gong sounded upon the east-bound car. Robbin testified that the bell on the east-bound car “was ringing.” Mrs. Roberts testified that the gong on the east-bound car was not rung, but said that the car made a noise, which she heard while standing on the farther side of the street.

On the other hand, the defendant’s witnesses, Riddle, Campbell, Griffin and Croft, testified that the gong on the east-bound car was rung. The defendant also introduced the city ordinance which authorized the defendant to run its cars, at the point where the accident occurred, at a speed of fifteen miles an hour.

At the close of the plaintiff’s case, and again at the close of the whole ease, the defendant demurred to the evidence. The court overruled the demurrers and the defendant excepted.

In the view hereafter taken it is not necessary to refer to the instructions given for the plaintiff, further than to say that the case was put to the jury, principally, upon the humanitarian doctrine.

I.

The first error assigned is the refusal of the court to sustain the demurrers to the evidence.

At the outset it is proper to say that there is no room for the application of the humanitarian doctrine to this case. There is no evidence of any willfulness or wantonness on the part of the operatives of the car, that caused the injury to the deceased. [Zumault v. Railroads, 175 Mo. 288; Moore v. Railroad, 176 Mo. 528; McGauley v. Railroad, 179 Mo. l. c. 592.] The case is, therefore, determinable upon the principles of negligence of the defendant, if any, and contributory negligence of the deceased, if any. ,

The negligence of the defendant is said to consist in running the east-bound car at a dangerous rate of speed under the circumstances, and of a failure to ring the bell when approaching or passing the west-bound car.

As to the rate of speed, only two witnesses for the plaintiff testified. Furlong said he did not know how fast the east-bound car was running, but was of the opinion that it was running fast. Mrs. Roberts testified that the car was running very fast, and upon testifying that she came of a family of railroad conductors, and had a brother who was a passenger conductor, and that she had frequently observed the running of cars, she was permitted to express an opinion that the eastbound car was running at a rate of not less than twenty-five miles an hour.

On the other hand, six witnesses for the defendant testified that the car was running from five to ten miles an hour, according to the various estimates of the witnesses. The testimony of Furlong is so indefinite as not to carry with it any great weight or force, and cannot properly be considered as sustaining the allegations of the petition that the car was being run at a dangerous rate of speed. This leaves only the testimony of Mrs. Roberts, who said the car was traveling at not less than twenty-five miles an hour. A car traveling at that rate would go thirty-six and two-thirds feet a second. Mrs. Roberts testified that when the deceased reached the north rail of the east-bound track, the car on that track was twenty or twenty-five feet away from him. The car, therefore, traveling at the rate of twenty-five miles an hour, or thirty-six and two-thirds feet a second, would reach the point, at which the deceased was, within one second, or, more accurately, three-fourths of a second, from the time the deceased stepped on the track, or in such close proximity to it as to be struck by the car.

The plaintiff introduced testimony showing that the car stopped at the east crossing of the street, and that the street was forty or fifty feet wide, and that the deceased was struck at a point three or four feet east of the west side of Whittier street. The plaintiff further introduced evidence tending to show that a car moving at the rate of four miles an hour could be stopped in from six to ten feet; at six miles an hour, in eight to twelve feet; at eight miles an hour, from ten to fourteen feet; and at twelve miles an hour, from thirty-five to forty feet. The witness giving this testimony refused to express any opinion as to the space in which a car running at fifteen miles an hour could be stopped.

The plaintiff’s case, therefore, showed that the estimate given by Mrs. Roberts, of twenty-five miles an hour, was a mistaken estimate, according to the plaintiff’s expert witness’s opinion, for the car was actually stopped in from thirty-five to forty feet, which was the distance in which the expert said a car could be stopped running at twelve miles an hour. And this is manifestly so, for it needs no expert testimony to show that a car traveling at the rate of thirty-six and two-thirds feet a second, could not be stopped in a second, and the car that caused the accident did not run materially further than the distance it was covering per second. There is, therefore, no substantial evidence in this case, that the car was being run at a speed of twenty-five miles an hour. The car was entitled by ordinance to run at a speed of fifteen miles an hour, and the great weight, if not the entire testimony in the case, very clearly shows that it was not exceeding the authorized speed at the time of the accident.

With respect to the ringing of the bell, Furlong testified that he heard no bell rung, but he paid no attention to it as he was reading a paper. Mrs. Roberts testified that no bell was run. Robbin, the other witness for the plaintiff, testified that the bell was rung at the time. Six witnesses for the defendant testified that the bell was being rung just before and at the time of the accident. There is no conflict in the evidence that when the deceased got off of the car, at or near the west side of Whittier street, he crossed the west-bound track, going in a southeasterly direction, and also crossed the space of four or five feet between the west-bound and the east-bound tracks, and had actually reached the east-bound track, or was about on it, when he was struck. He never stopped, looked or listened for an approaching car from the west, but was looking towards the southeast, and reading his paper, as he walked. When he crossed the west-bound track, behind the car on which he had been.riding, and reached the space between the tracks, he could have looked westwardly, and have seen a car for three blocks. In fact, at that time, the west-bound car was from eight to twenty feet from him, according to the testimony of the various witnesses. He did not do so. For the purposes of this case, therefore, if it be conceded that the operative of the car was negligent in not sounding the bell, or in running at a high rate of speed, so that he could not stop the car after the deceased came in sight, from behind the west-bound car, the fact still remains that the deceased was guilty of contributory negligence in not looking towards tbe west for an approaching car before attempting to cross the track, and that if he had so looked, he would necessarily have seen the car and could have stopped in a place of safety, and thereby have avoided the accident.

In principle there is no difference between the case at bar and the cases of Giardina v. Railroad, 185 Mo. 330 and Green v. Railroad, 192 Mo. 131. The facts in those eases were very similar to the facts in the case at bar. In both of them, the injured party could, by the exercise of any degree of care, have seen the approaching car in time to have avoided the accident. The Giardina case was like this case, in that, the injured party crossed the track behind a car going in one direction, and did not notice the approach of another car on the other track coining from an opposite direction, when he might have done so. In that case, as in the Green case, a recovery was denied on the ground that, even conceding that the defendant had been guilty of negligence, the case made showed that the plaintiff had also been guilty of such contributory negligence as barred a recovery. Those cases are decisive of this case, and a like result must follow in this case. It is true that greater care is required in the operation of street cars at intersecting streets, where passengers are usually discharged, and where cars meet and pass each other, than at other points between intersecting streets. It is likewise true, that persons crossing railroad tracks at such points, or at. any point, must exercise ordinary care to prevent accidents, for especially in large cities, where street cars run at short intervals, the law charges every one with notice of the fact that a car may pass any given point at any minute, and, therefore, easts the duty upon persons crossing the tracks to exercise ordinary care not to go on or over or so near a track as to be injured by a passing train. The unfortunate accident in this case would easily have been avoided if the deceased had taken the slightest care to prevent it. Instead of doing so he walked onto the track, or so close to it as to be injured, without looking for an approaching car, but with his eyes fixed in an opposite direction, and as some of the witnesses say, reading his paper while he walked.

The conclusion is irresistible, that the deceased was guilty of contributory negligence which cuts off a recovery, even though the defendant could properly, under the evidence in the case, be said to have been guity of negligence, for there is no evidence whatever of any recklessness or wantonness in the case. It follows that the judgment of the circuit court must be reversed.

Valliant, J., concurs; Lamm, J., concurs in the result; Brace, P. J., absent.


author: LAMM, J.

text:
    MATOUSEK, Appellant, v. BOHEMIAN ROMAN CATHOLIC FIRST CENTRAL UNION, U. S. A., and LOCAL SOCIETY NO. 63 OF THE CITY OF ST. LOUIS OF THE BOHEMIAN ROMAN CATHOLIC FIRST CENTRAL UNION, U. S. A., et al.
    Division One,
    January 16, 1906.
    1. RES ADJUDICATA: When Available. Where plaintiff fails to establish his cause of action, the fact that defendant’s plea of res adjuMcata was not sustained by proof or otherwise, is of no consequence. The burden is on plaintiff to establish his cause of action, and if he fails in that, he cannot obtain a reversal on the ground that respondent failed to make good his defense of former adjudication.
    2. -: Conceded at Trial. Where appellant at the trial conceded that a former suit in mandamus was an adjudication that plaintiff had been properly expelled from a benevolent society, that concession will be held a bar to his suit for damages for being expelled.

      3. -: Reverse of Position on Appeal.. Appellant is held on appeal to the position he assumed at the trial. Where he at the trial conceded that his claim for damages for his expulsion from a benevolent society had by his suit of mandamus been adjudicated adversely to himself so far as the society was concerned, but not as to the membersi of the committee which preferred the charges against him, he will not on appeal be permitted to so alter his position as to try to hold the society for damages while foregoing any claim against the members of the committee.
    Appeal from. St. Louis City Circuit Court. — Son. Franklin Ferriss, Judge.
    Affirmed.

      Albert E. Hcmsman for appellant.
    (1) Tbe trial court cannot take judicial notice of tbe contents of tbe record of another ease pending before it, or decided by it; but sucb record must be introduced in evidence. Hence tbe court erred in sustaining defendant societies’ defense of res judicata, wbicb was done on tbe pleadings in tbis case and before any evidence was introduced. Adler v. Lang, 26 Mo. App. 226; Grace v. Ballou, 4 S. D. 333; Banks v, Burnam, 61 Mo. 76; Ralphs v. Hensler, 97 Cal. 296; Gibson v. Buckner, 65 Ark. 84; Thayer v. Honeywell, 7 Kan. 548; Bond v. White, 24 Kan. 48; Baker v. Nygatt, 14 Iowa 131; State v. Edwards, 19 Mo. 674. (2) Res. judicata is an affirmative defense, and like all other defenses of that sort, must be pleaded and proved. Beattie Mnfg. Co. v. Gerardi, 166 Mo. 155; Findley v. Johnson, 84 Ga. 69; Bond v. White, 24 Kan. 48. (3) Where it is shown by tbe bill of exceptions that tbe finding of tbe court excepted to is based upon documentary evidence wbicb was not introduced at tbe trial, and hence is not preserved in tbe bill of exceptions, tbe appellate court will treat it as a failure of proof and reverse and' remand tbe cause. Lackland v. Nevins, 3 Mo. App. 335; Landgraff v. Brick Co., 80 Mo. App. 538.

      Rassieur S Ruder for respondents.
    (1) No point is made by appellant that the judgment of the lower court in favor of the individual defendants is not proper. Nowhere does he ask for a review of that decision. His brief is directed merely at the judgment in favor of the defendant societies. (2) A party is limited on appeal to the theory upon which he tried his case in the lower court. Horgan v. Brady, 155 Mo. 659; Chinn v. Naylor, 182 Mo. 583; Trigg v. Taylor, 27 Mo. 245; Walker v. Owen, 79 Mo. 563; Tomlinson v. Ellison, 104 Mo. 105 ; Minton v. Steele, 125 Mo. 181. (3) Where it clearly'appears that the judgment of the lower court is for the right party, it will not be reversed, though error was committed at the trial. Bank v. Armstrong, 92 Mo. 282; Vaughn v. Daniels, 98 Mo. 230; Williams v. Mitchell, 112 Mo. 300; State ex rel. v. Jones, 131 Mo. 194; Finley v. St. Louis Ref. & Wood Gutter Co., 99 Mo. 559.
   LAMM, J.

Respondent, the Bohemian Roman Catholic Central Union, U. S. A., may be abbreviated to the “Union,” and is a parent body incorporated under our state laws pertaining to benevolent, scientific, educational and miscellaneous associations (art. 11, chap. 12, R. S. 1899), having for its object to foster the practice of religious duties among its members, to unite Bohemian Roman Catholic societies in works of charity and benevolence, to assist societies in giving aid and assistance to its members, to nurse its sick and bury its dead, and to provide a fund for the benefit of its members’ widows and orphans.

Respondent, the Local Society No. 63 of the City of St. Louis of the Bohemian Roman Catholic First Central Union, U. S. A., may be abbreviated into the ‘ ‘ Society, ’ ’ and is a subordinate branch or lodge of the Union, alleged by appellant to be incorporated, and alleged by respondents to be not a body corporate.

Both the Union and the Society have insurance features, together with sick and other benefits. Under the Union, a member was insured to the amount of $1,300 and had certain sick benefits. Under the Society, he had sick benefits and a further insurance of $200. Matousek was a member of both and had been for well on to twenty years.

At a certain time he was tried and expelled from the Union and the Society, on charges preferred by a committee composed of one Klasek, one Babka, one Jansky, one Cibulka and one Stys — also parties to this litigation. Thereupon he sued out a writ of mandamus in the circuit court of the city of St. Louis against the Union and the Society, and having for its purpose to be reinstated as a member thereof and in his insurance, sick and other benefits, forfeited by his expulsion. Being cast in the mandamus suit, judgment was rendered for the Union and the Society, and such judgment remained in full vigor.

Thereupon Matousek instituted the present action against the Union, the Society, and the said members of said committee by name, for damages, alleging in substance that the members of said committee, Klasek et ah, were actuated by malice and conspired together for the purpose of injuring him, and that the Union and the Society participated in such malice; that because of said purpose and acts resulting in his wrongful expulsion, he was deprived of the advantage of his insurance policies, his social advantages and sick benefits ; and that he was now too old to secure similar insurance and had suffered loss by said wrongs in the sum of $5,000 actual, and $5,000 punitive, damages.

The case is presented to us by appellant’s counsel on the theory that the finding as to the members of the committee and the rulings of the court on the evi dence relating to said committee were all right. It will, therefore, not be necessary to state or consider the pleadings, the evidence or the court’s rulings pertaining to the conduct and acts-, verbal or otherwise, of those respondents who were members of the said committee.

The Society and the Union filed a joint answer, thereby interposing two defenses. The first defense was, in legal effect, a denial of the allegations in the petition, coupled with averments the converse of those made by plaintiff, in that, defendants say, Matousek on offering himself for initiation, promised, and on initiation, obligated himself, to obey the by-laws and regulations of the Union and Society; that one of the bylaws of the Union denounced expulsion as a penalty against any member who abused and slandered the Union and by such dishonorable practices injured its reputation; that plaintiff disobeyed such by-law by slandering and abusing the Union and injuring it, and, in consequence thereof, a written complaint was lodged against him in October, 1901, and he was served with a copy and notified to appear at a meeting of the Society to be holden on November 10th, at 1:30 p. m.; that he did appear in person and was regularly tried, participating therein, and, by ballot of two-thirds of the members present, was found guilty of the charges, and expelled in accordance with the by-laws and rules, and deprived of all rights and benefits of said Union and Society; that thereafter he appealed to the parent Union from the decision of the subordinate Society, and the action of the Society in expelling him was affirmed in accordance with the by-laws regulating, appeals ; and that the Union and Society had jurisdiction of Matousek, as a member, as well as of the subject-matter of said hearing and were the proper and only tribunals for the consideration and determination of the matter involved in the complaint, and that their action in said matter is, therefore, final and binding on the plaintiff.

Second, the answer pleaded res judicata, as follows:

“And, as a further defense to this action, these defendants state that heretofore on or about the 14th day of January, 1902, after the plaintiff had been expelled as aforesaid from his membership in said Society and Union, and after the said action was so affirmed by the said Bohemian Roman Catholic First Central Union, U. S. A., of which he now complains, he brought a mandamus proceeding or action against these defendants in the circuit court of the city of St. Louis, entitled State ex rel. Francis Matousek v. Bohemian Roman Catholic First Central Union, U. S. A., and Local Society No. 63 of the City of St. Louis of the Bohemian Roman Catholic First Central Union, U. S. A., numbered 22847 A, Room 3, of the files of this Court; that the object of said suit was by mandamus to restore to plaintiff his membership in said Local Society No. 63 and in said Union, together with all the rights and benefits of such membership', of which he now again complains he has been wrongfully deprived; that in the said action, these defendants as respondents, in due time filed their return; that the matters and things involved in said last-named cause are the same now embraced in plaintiff’s present action; that thereafter, to-wit, on February 18, 1902, the said court rendered judgment in said cause in favor of these defendants and against plaintiff, which said judgment has never been vacated, set aside or appealed from, and is therefore final and binding on plaintiff. Wherefore, having fully answered, these defendants pray to be hence dismissed with their costs.”

The replication was a general denial.

The cause being tried to the court without a jury, at the end of plaintiff’s case the court stated that he would give plaintiff the option of a verdict against him or a nonsuit. Plaintiff elected to take his defeat in the form of a verdict, whereupon a peremptory instruction in the nature of a demurrer to the evidence was given and judgment in favor of all the defendants entered, from which plaintiff duly appealed here.

The whole force of appellant’s brief in chief and in reply is directed to one major insistence, to-wit, that the court erred in dealing with respondents’ affirmative plea of res judicata,, the contention being that the defense of res judicata was allowed by the court below in the teeth of the fact that respondents introduced no evidence to sustain such plea, nor did appellant introduce the record sustaining such plea, nor does the bill of exceptions contain the record establishing such plea. The issue here, then, is narrowed by 'appellant to one wherein error is assigned because the trial court sustained the plea of res judicata, without proof.

May error be necessarily predicated in this case on such contention? We think not; because the issues on the foregoing pleadings, summarized, may be stated thus: (1) A charge of an unfair, illegal and malicious lodge trial and a wrongful, expulsion of a member resulting — in which the onus probandi was on plaintiff. (2) A plea of res judicata as a defense, and herein the onus probandi was on defendants. Now, reduced to a simple logical formula, the situation stood this way: if plaintiff sustained the first issue and defendants sustained the second, the result would he a judgment for defendants, because the defense avoided the effect of plaintiff’s proof. If, on the other hand, plaintiff sustained the first issue and defendants failed on the second, the result would be a judgment for the plaintiff. If, however, plaintiff failed on the first issue, then the second became immaterial, because no defense was necessary and the case fell to the ground of its own weight. Hence, it only becomes necessary to consider the plea of res judicata after considering and disposing of the first plea.

The vice of the position taken by the learned counsel for appellant, it would seem, is in assuming that plaintiff sustained the first plea, for by that assumption lie is drawn into the vortex of begging one of the material questions involved — a case of petitio principiij because a close reading of the record discloses that plaintiff did not sustain his contention of a malicious and illegal lodge trial. One of his insistences on that behalf was that he was not allowed to make any defense at the lodge trial. But the record, in our opinion, does not so show. Another was that the by-laws required a majority of all the members to vote for an expulsion, which majority, he insists, did not appear. This was met by a counter contention of respondents to the effect that the controlling by-laws provided for only a majority of “the knights” or members present at the trial voting to expel. In this condition of things the trial judge, who was not a Czech, or a Bohemian in any sense, but a plain American citizen, presumably able to read and to think only in his mother-tongue, was confronted with by-laws of the Society in the Bohemian language on the one hand, and with unsatisfactory, unlearned and disputed off-hand translations of certain sections of said by-laws on the other, and the record shows he was, for good reasons, too, not satisfied with the translations. Especially so, as the by-laws of the Union seemed to provide that a majority present at the trial could expel, while the muddy translations of the ■by-laws of the Society seemed to hint at a majority of all the members of the lodge.'

In fine, we cannot find that the allegation of an illegal, unfair or malicious lodge trial and expulsion was sustained. So that, with nothing more, on the simple proposition that plaintiff failed to make out his case the judgment should remain undisturbed.

But if it be conceded, in the unsatisfactory record before us, that such allegation was sustained by at least prima-facie proof, and if it be conceded, furthermore, that such proof called for the establishment of the plea of res judicata before respondents, the Union and the Society, stood acquit, yet we are not satisfied that appellant has successfully borne the burden the law lays upon his shoulders of pointing out here reversible error in that behalf before the judgment against him should be reversed. And this is so, because it is not always by evidence that a fact may be established. Facts may be admitted. A case may be tried on the theory that a fact is assumed to exist, the legal effect of which alone is questioned. [State ex inf. v. Fasse, 189 Mo. l. c. 537.] This is precisely what happened in this case. A critical examination of the bill of exceptions shows that the trial court, as it was proper it should do, made an effort to burn away all the underbrush in the case by drawing the fire of counsel on both sides upon the issues and what proof would be offered and what admissions made. A three-cornered colloquy between court and counsel, of several pages, not necessary to produce here, is shown by the bill of exceptions. And, while somewhat misty, yet it substantially appears therefrom and from the whole record that appellant’s then counsel conceded a judgment in the mandamus suit involving the same issues between Matousek and the Society and the Union, which judgment was unappealed from and in full life. It is true the matter crept into the case sidewise, so to speak, but, nevertheless, it was lodged there and the trial proceeded on the concession and the assumption that the facts constituting res judicata stood confessed. With this admission, why incumber the record with the pleadings, judgment and other impedimenta, mere luggage all, of the mandamus suit? Counsel appearing here for appellant is not the same trying this case below. It follows, we think, that he is no better situated to judge of the admissions and theory upon which the case was tried below, than is this court, because both the court and the learned counsel must go to the same cold, dry and, in this instance, somewhat nebulous record for information.

Our conclusion is, therefore, that the record shows by indirection, but conclusively, that the case was tried on the theory below that the former adjudication was conceded. In fact, the insistence of plaintiff’s counsel below was, as we interpret the record, that the individual members of the committee should alone be held. Whereas, here, the case is presented on the theory that the individual members of the committee are acquit and the Society and Union alone can he held for damages.

It is not necessary to cite authorities to sustain the proposition that positions, once taken and acted on, may not be thus- reversed and turned topsy-turvy. Such bouleversement (to timidly borrow a word respectably introduced to this court in another ease by a counselor learned in linguistics and glossology) has no place in the practical science of jurisprudence.

Finding no error, the judgment is affirmed.

All concur, except Brace, P. J., absent.