author: DAVID E. BLAIR, J.

text:
    SOTERO DRAKOPULOS, Appellant, v. WILLIAM B. BIDDLE et al., Receivers of St. Louis & San Francisco Railroad Company, et al.
    Division Two,
    June 23, 1921.
    1. AMENDED PETITION: Departure: Personal Injuries: Substitution of Widow for Administrator. An action for damages for the negligent killing of plaintiff’s husband had been brought by his administrator, founded on a statute of Kansas which provided that the action might be brought by the personal representative for the exclusive benefit of the widow and children. Thereafter the widow applied for leave to be substituted as party plaintiff and to adopt the pleadings in said cause, and leave was granted, and she filed an amended petition, which was substantially in the same words as the administrator’s petition, with the further allegation that under another statute the action could be brought by the widow where no personal representative had been appointed. ' Held, that the amended petition is not a departure from the cause of action stated in the administrator’s petition, either on the ground (a) that a new olaintiff is substituted who is a stranger to the original cause, or (b) because the amended petition is based upon a different statute, or (c) because different proof will be required, or (d) because a judgment upon one petition would not be a bar to the cause of action stated in the other.
    2. -: -: Stranger to Action. Where the administrator’s petition, in an action for damages for the negligent killing of a certain man, alleged that a certain woman is his widow and named their children, and prayed judgment for and in their behalf, the widow, when substituted as plaintiff in an amended petition, is not a stranger to the original cause of action, the statute providing that, where no personal representative has been appointed, the action may be brought by the widow for herself and the'children.
    3. -: -: Different Proof. If the amended petition does not substantially change the claim or defense, it is not a departure. To constitute a departure the amended petition must require substantially different proof. Where the cause of action is damages for the wrongful act of defendant, which by statute inure to the exclusive benefit of the widow and children of the party whose death defendant’s wrongful act caused, a substitution of the widow as plaintiff in an amended petition for the administrator named as plaintiff in the original petition, the statute authorizing sucli substitution where no personal representative has been appointed, does not require substantially different proof, although it will be necessary to prove under the amended petition that no administrator had been appointed.
    4. -: -- — : Judicial Discretion. Permitting amendments to the pleadings is largely within the discretion of the trial court; but where it is apparent that the only ground for striking out the amended petition was that it was a supposed departure, and that is not a fact, but if the ruling is sustained the effect would be to deny relief to plaintiff, it will Be held that the court did not wisely or soundly exercise its power.
    Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.
    Reversed and remanded (with directions).

      G. W. Prince, E. A. Harris, and Jas. N. Berry for1 appellant.
    (1) Substituting tbe widow, wbo bad tbe legal right to sue for tbe claim for wbicb tbe action was brought, instead of a personal representative improperly named as plaintiff, was not a departure, or commencement of a new action. There is a vast difference between substituting a competent for an incompetent plaintiff, and bringing in a new defendant. Vaughan v. Ry. Co., 177 Mo. App. 155; Dugan v. Ry. Co., 178 Mo. App. 165; Lilly v. Tobbein, 103 Mo. 477 ;/Mott v. Long, 90 Kan. 110; Up-son v. Railway, 211 Mass. 446; Harknes's v. Julian, 53 Mo. 238; Webber v. City, 83 Mo. 262; Winkelmaier v. Weaver, 28 Mo. 356; Meyer v. Ry., 152 Iowa, 330; Ry. Co. v. Wulf, 226 U. S. 570. (2) Amendments are allowed expressly to save tbe case from tbe Statute of Limitations, and courts have been liberal in allowing them when tbe cause of action is not totally different. Lottman v. Barnett, 62 Mo. 159; Courtney v. Blackwell, 150 Mo. 245. (3) Plaintiff in the fifth amended petition is not a stranger to the original petition and subsequent amended petitions, as she was named in all of the prior petitions filed, as a party for whose benefit the administrator was suing, as well as for the benefit of the children of the deceased. Weber v. City of Hannibal, 83 Mo. 263; Keystone Coal Co. v. Fekete, 232 Fed. 74. (4) The defendants by obtaining leave of court for time in which to plead to the fifth amended petition, and in filing their joint motion to strike, which was an attack upon the pleadings, and also asking judgment for costs, was a general appearance, and even had the fifth amended petition been a departure, defendants’ general appearance constituted a waiver of such so called departure. Walker v. Wabash, 193 Mo. 403; State v. Grimm, 239 Mo. 135. (5) Secs. 6014 and 6015, R. S. Kans. 1909, Chap. 95, are necessarily construed together, and the fact that Sec. 6015 was not mentioned in the original petition and subsequent amended petitions filed in said cause, does not constitute a departure by setting forth Sec. 6015 together with section 6014, in the fifth amended petition. (6) There was no departure in the fifth amended petition from the original and subsequent amended petitions, because the quantum of evidence and the measure of damage was the same. Haines v. Pearson, 107 Mo. App. 485; Ry. Co., v. Wulf, 226 U. S. 570. (7) The widow of deceased is the proper party to bring suit for the death of her husband, based upon Sections 6014 and 6015. Darotti v. Ry. Co., 262 Mo. 1; Marquez v. Koch, 176 Mo. App. 143; Vawter v. Ry. Co., 84 Mo. 679.

      W. F. Evans, Guthrie, Conrad & Durhum and Hale Houts for respondent.
    (1) The cause of action set up by the widow in the fifth amended petition was authorized only by Sec. 6015, G. S. Kan. 1909, and was an entirely different cause of action from that stated by the administrator in the fourth amended petition under Section 6014, which authorized the suit only by the administrator. "The subject-matter was different, different evidence was required to support the respective actions, recovery in one under one petition would not be a bar from recovery under the other. The new petition substituted a new plaintiff who was a stranger to the cause of action stated in the former petition. There was a change from law to law. Respondents’ motion to strike as a departure was properly sustained. Garber v. Mo. Pac., 210 S. "W. 389; St. Charles Savings Bank v. Thompson, 223 S. W. 737; Broyles v. Eversmeyer, 262 Mo. 389; McHugh v. Transit Co., 190 Mo. 85; Ross v. Mineral Land Co., 162 Mo. 317; Heman v. Glann, 129 Mo. 325; Parker v. Rodes, 79 Mo. 88; Biclc v. Vaughan, 140-Mo. App. 602; Jones v. "Whitney, 136 Mo. App. 683. (2) While the courts may allow amendments in order to save a case from the Statute of Limitations, courts will not permit a new and different cause of action to be substituted for the purpose of tolling the statute or for any other purpose. St. Charles Savings Bank v. Thompson, 223 S. W. 737. (3) The appellant was a stranger to the cause of action stated in the fourth amended petition. On the face of the fourth amended petition, the only cause of action was in Strother, the administrator. It did not constitute a defective statement of a cause of action in favor of appellant, but was a complete cause of action to which the appellant has no right as a party, although she may have had a beneficial interest in the result. Garber v. Mo. Pac., 210' S. W. 389. (4) There was no waiver of the departure. Defendants followed the procedure prescribed by this court in Walker v. Wabash, 190 Mo. 453, cited by appellant. Entry of appearance by defendants was not involved for they were already in court. They did not answer over but filed the motion which was the only pleading by which the question could have been raised. (5) There was clearly a change from law to law. While it was necessary for appellant to plead Section 6014 authorizing an action for wrongful death, it was also necessary for her in order to recover to plead and prove a new and additional section, to-wit, Section 6015, and the effect of bringing herself within Section 6015 was to nullify and destroy that part of Section 6014 authorizing the administrator to bring suit. (6) The evidence required under the fifth amended petition was entirely different to that required under the fourth.' To maintain the former action it was necessary to prove that plaintiff,. Sam B. Strother, was the duly appointed administrator of Gust Drakopulos and authorized by Section 6014 to sue for the death of deceased. Under the fifth amended petition, it was necessary to prove that there was no administrator duly authorized to bring: an action under Section 6014, to prove the existence of Section 6015 authorizing a suit by the widow and that the plaintiff was the widow. (7) "While the widow was the proper party to sue for the death upon properly pleading and proving Section 6015 and proving the facts required by said section, she was not a proper party to bring the action if the allegations of the fourth amended petition were true. Sec. 1163, R. S. 1919; Schureren v. Ry. Co., 192 S. W. 965.
   DAVID E. BLAIR, J.

The action is for damages for the wrongful death of Gust Drakopulos, the husband of plaintiff. The original petition was filed August 7, 1915. The fourth amended petition, filed December 3, 1918, ran in the name of Samuel B. Strother, Administrator of the Estate of Gust Drakopulos, deceased. It alleges that plaintiff therein was the “duly appointed administrator,” etc. Certain allegations relating to the appointment of receivers for the St. Louis'& San Francisco Railroad Company, foreclosure sale of its property and purchase thereof by defendant, St. Louis & San Francisco Railway Company, are made. Said petition then averred the facts relative to the death of Gust Drakopulos in the State of Kansas on April 26, 1915, and that the same was caused by the negligence of defendants; that deceased left surviving him a widow, Sotero Drakopulos, and three minor children therein named, all dependent upon him; that plaintiff has been given a right of action for said death by the laws of Kansas, and sets out Section 6014 of Chapter 95, Article 18, of the General Statutes of Kansas for 1909, as follows:

“Action for death by wrongful act; limitations; damages. When the death of pne is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for injury for the same act or omission. This action must he commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to .the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”

The prayer of said fourth amended petition is as follows:

“Wherefore, plaintiff, for and in behalf of said widow and children, asks judgment against defendants for, the sum of ten thousand dollars together with his costs herein incurred and expended.”

On February 12,1919, the widow, Sotero Drakopulos, present plaintiff, applied for leave to be substituted as party plaintiff and to adopt the pleadings and proceedings in said cause. On March 4, 1919, and over the objection and exception of defendants, she was permitted to be substituted as plaintiff, and on that date filed a fifth amended petition, in which she alleged that on and prior to April 26, 1915, she was the wife of Gust Drakopulos, and sets out the names of her three children and that she and said children were residents of the Kingdom of Greece and were dependent upon said Gust Drakopulos.

The fifth amended petition in other particulars is substantially in the same words as the fourth amended petition, except that it sets out in full Section 6015 of the General Statutes of Kansas for 1909, Chapter 95, Article. 18, as follows:

“Section 6015. When action may be brought■ by widow or next of Icin. That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in the next preceding section is or has been at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”

There is also a slight difference in the two petitions caused by the use of appropriate words to make the fifth amended petition applicable to plaintiff as widow of deceased, instead of applicable to the plaintiff named in the. fourth amended petition as administrator of deceased. The prayer of the fifth amended petition is as follows:

“Wherefore, plaintiff, for and in behalf of herself and said minor children, asks judgment against defendants in the sum of ten thousand dollars, together with her costs herein incurred and expended.”

On March 17, 1919, defendants filed their motion to strike out plaintiff’s fifth amended petition and said motion was sustained by the trial court, to which action plaintiff duly excepted and judgment of dismissal with costs was entered against plaintiff.' The appeal is from the order of the trial.court striking out such fifth amended petition and dismissing the cause. The propriety of such action is the sole question before us.

As appears from defendants’ motion to strike out the fifth amended petition, the theory of defendants is that such amended petition is a departure from the cause of action stated in the fourth amended and prior petitions; because a new plaintiff is substituted who is a stranger to the original cause of action and to the plaintiff therein, and because the fifth amended petition is based upon a statute different from the one which is the basis of the claim of the fourth amended petition, and because entirely different proof will be -required in the two petitions, and because a judgment upon one petition would be no bar to the cause of action stated in the other.

We do not think there is any-merit in the contention that plaintiff is a stranger to the original cause of action. It is expressly alleged in. the fourth amended petition that Sotero Drakopulos is the widow of deceased and the names of the minor children are set out therein, and that such administrator prays judgment for and in behhlf of said widow and children.

For is it true that the fifth amended petition is based on a statute different from the one pleaded in the fourth amended petition. Both petitions plead Section 6014 and both are based thereon. The fifth amended petition pleads Section 6015 in addition. Section 6015 merely provides when the widow may maintain the action provided for in Section 6014.- Section 6015 adds nothing to the liability of defendants in any way.

The only difference in the proof required is that in the fourth amended petition such proof should show deceased was a resident of Kansas and the appointment of a competent administrator; while in the fifth amended petition the proof should show either that deceased was not a resident of Kansas, or, if a resident, that no personal representative is or has been appointed. Additional proof of Section 6015 as a law of Kansas is required in the fifth amended petition. Proof of the existence of the widow and children is necessary in both petitions. The subject of the action, the cause of action, the grounds of negligence and the measure of damages are the same in both petitions. The damages sought to he recovered are for the benefit of the widow and children in both petitions and the proceeds recovered on a judgment under either petition are required by the law of Kansas to be distributed in the same manner.

Nor are we able to agree that a recovery on the fifth amended petition would not be a complete bar to the action by the administrator or vice versa. If the fourth amended petition properly alleges the appointment of a competent administrator and the proof showed that fact and the administrator obtained a judgment thereon, such judgment would bar recovery upon the fifth amended petition, since a recovery by the administrator suing merely in a representative capacity would be for the benefit of the widow and children. Under Section 6014 the administrator acts as a trustee for the widow and children, and not for the estate of the deceased. The damages recovered could not be subjected to the debts of the deceased. A recovery by him for them would bar their subsequent suit. A recovery by them in the name of the widow would bar a suit by the administrator for their benefit. [23 Cyc. 1245; Landis v. Hamilton, 77 Mo. 554; Davidson v. Real Estate & Inv. Co., 249 Mo. l. c. 502; Cooley v. Warren, 53 Mo. l. c. 169.]

It is true the amended petition requires somewhat different proof from the fourth amended petition, but not substantially different proof. If the test of departure be that the proof required is different in any resp.ect, then every amendment would be a departure. We think Section 1274, Revised Statutes 1919, is sufficiently broad to cover the amendment here in question. It provides for an amendment by adding or striking out the name of a party and even provides for amendment after the proof has been made in order to conform the pleadings to the proof where such amendment does not substantially change the claim or defense. This is the consideration which should guide the courts. If the amendment does not substantially change the claim or defense, there is no departure.

The subject of the action here is the right of Gust Drakopulos to immunity from injury by the negligent acts of defendants. The cause of action is the alleged violation of that right by defendants. The object of the action is the recovery of damages for such violation to inure to the exclusive benefit of the widow and children. These are the substantial elements of the claim.. Whether the action is brought by the administrator or the widow is a mere detail of procedure. The only concern of defendants as to parties plaintiff i's that whoever prosecutes the action shall be competent to maintain it in such a way as to bar any other action for the same injury. Defendants’ rights in this regard are amply safeguarded and the amendment did not injuriously affect the substantial rights of the defendants.

Support for these views is found in Vaughan v. Railroad, 177 Mo. App. 155, in which ease the Kansas City Court of Appeals held that it was error to enter judgment after verdict in favor of the admintratrix, who was added as plaintiff after verdict, without the fact of her appointment as administratrix having been submitted as an issue for trial by the jury. On page 171 the court held that the trial court properly permitted the substitution, but should then have sustained a motion for a new trial instead of permitting the administratrix to adopt the judgment and previous proceedings and remanded the cause for new trial with the administratrix as a party plaintiff. The action in that case was under the Federal Employers Liability Act, wherein the administratrix was the proper party plaintiff. The ruling-in that case was approved by the same court in Dungan v. Railroad, 178 Mo. App. 164. We are further fortified in the view we take of the amendment in this case by the opinion of Mr. Justice Pitney of the United States Supreme Court in M. K. & T.. Ry. Co. v. Wulf, 226 U. S. 570. In that case the action had been instituted by the mother of the deceased as his sole heir, and subsequently she was appointed administratrix and was made a party plaintiff. The action in that case was under the Federal Employers Liability Act, where the action conld only be maintained by the personal representative of the deceased. The substitution was approved and it was ruled that the substitution did not change the cause of action.

Defendants cite the case of Broyles v. Eversmeyer, 262 Mo. 384, as supporting their contention. It is difficult to understand how that case is authority for defendants’ position. This court, speaking through Graves, J., held proper an amendment correcting a mistake in the description of a tract of land. Section 1848, Revised Statutes 1909 (now See. 1274, R. S. 1919), was there invoked as authority for the amendment. That same statute provides for adding or striking out the name of a party and for amendment of the pleadings, even after the proof has been made, in order to conform pleading to proof where such amendment does not change substantially the claim or defense. Defendants also cite Garber v. Mo. Pac. Ry. Co., 210 S. W. 377. The question there was the propriety of the action of the trial court in striking out the third count of the third amended petition as a departure. The first and second counts of said amended petition were based on Missouri statutes and the third count on the Federal Employers Liability Act. As no exceptions were saved to the action of the trial court in striking out such third count, it was held that the question was not properly raised for review and the propriety of the amendment was not before this court, and that even if the question had been properly saved, as neither the original nor any other petition prior to the third amended petition was incorporated in the record, the court was in no position to determine the propriety of the amendment. The question of departure was not determined.

In Bank v. Thompson, 223 S. W. 734, relied on by defendants, the original petition counted on a demand note and the amended petition upon an agreement under which the note set out in the original petition had been given to secure the payment of other notes. The two petitions were based on different subject-matters and required quite different evidence to support them. None of the other cases on the question of departure cited by defendants give us any additional light.

No reason except the alleged departure appears in the record before us to justify the court’s action in striking out the fifth amendecbpetition. It is true that the permitting of. amendments is largely within the sound discretion of the trial court. The court having exercised its discretion in plaintiff’s favor and having permitted the substitution of the widow as party plaintiff, we are justified in assuming that it would not have stricken out the pleading except for the supposed departure. We are satisfied that was not a sufficient reason. We regard the exercise of the court’s power as unwise and unsound where its action finally closed the door to relief in plaintiff’s face. The Statute of Limitations is a complete bar to the prosecution of a new suit.

From what has been said it is apparent that the court erred in striking out plaintiff’s fifth amended petition and dismissing the cause and entering judgment against plaintiff for costs. The judgment of the trial court must be reversed and the cause remanded with directions to the trial court to set aside its order'of dismissal of the cause and to reinstate plaintiff’s fifth amended petition and to proceed with the cause in conformity to law.

It is so ordered.

All concur.


source: Caselaw Access Project

author: HIGBEE, P. J.

license: Public Domain

text:
    AUSTIN MOLONEY, Appellant, v. BOATMEN’S BANK.
    Division Two,
    June 23, 1921.
    1. NEGLIGENCE: Fire: Bracing Wall: Question for Jury. It was for the jury to decide whether the defendant, whose seven-story building had burned, could have so braced the standing' wall as to prevent it falling, in time of a high wind, upon an adjoining building, where there is positive expert testimony to the effect that the wall could not have been braced, and that an attempt to brace it would have been futile and extremely hazardous to those undertaking to do the work.
    2. -: -: -: Duty to 'Adjoining Owner. Where there was no imperative necessity to repair the damage to an adjoining building caused by a fire in defendant’s seven-story building, the defendant owed to an employee of the owner of said adjoining building who had been employed in the work of repairing it, the same duty to remove the high wall left standing, as a menace, that it owed other citizens.
    3. -: -: Unbraced Wall: Dead Bodies. An athletic building was destroyed by fire, and the bodies of thirty or more persons were buried in the wreckage; on the following day, the upper part of the west wall fell upon and damaged the rear end of an adjoining-building, but the rest remained standing, and the expert testimony was to the effect that it could not be braced, and about eight days after the fire, at a time of a high wind, it fell towards the east, but buckled and a part of it fell upon said adjoining building and injured plaintiff, who had been employed by its owner to assist in repairing it, and he sues on the theory that it was the duty of defendant either to brace or wreck the west wall, because defendant knew that people were going in and out of said adjoining building. Held, that defendant had no right to throw down the wall upon the dead bodies in the ruins of the burnt building, but on the contrary it was its duty, as a matter of common humanity, to rescue them as quickly and with as little mutilation as was reasonably possible. And, Held, further, that defendant had no right to throw the wall -upon the adjoining building unless there was immediate necessity therefor; and it being the opinion of those in authority and qualified to speak that the wall, though dangerous, would stand until the bodies were recovered, and it being uncontradicted that when the last body was removed cables were being placed and arrangements made to pull the wall down upon the defendant’s lot, when it was suddenly blown down by a violent wind, the verdict and judgment for defendant were for the right party.
    4 ERRONEOUS INSTRUCTION: Verdict for Right Party. When the verdict is manifestly for the right party and a different result could not have been reached by the jury under the law, it should not be disturbed because of technical error in the instructions.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Appirmed.

      Hudson S Hudson and Safford é Marsaleh for appellant.
    (1) Instruction number seven given for defendant was erroneous, because it ignored the issue of defendant’s negligence in failing to brace or secure the wall. Price v. Met. St. Ry. Co., 220 Mo. 463; Orr v. Bradley, 126 Mo. App. 148; Steffens v. Fisher, 161 Mo. App. 395. (a) The burden was upon defendant to show that the fall of the wall was not due to negligence on defendant’s part in any respect. Turner v. Haar, 114 Mo. 346; Franke v. City, 110 Mo. 526; Teepen v. Taylor, 141 Mo. App. 286; Scharff v. Const. Co., 115 Mo. App. 167; Lynds v. Clark, 14 Mo. App. 74; Cork v. Blossom, 162 Mass. 333; Dettmering v. English, 64 N. J. L. 16; 3 Shearman & Redfield on Negligence (6 Ed.), sec. 702, p. 1826. (b) Negligence in failing to secure or protect a wall, damaged by fire, as a result of which it falls and causes injury to another, renders the owner liable. Teepen v. Taylor, 141 Mo. App. 286; Reinhardt v. Holmes, 143 Mo. App. 222; Schwartz v. Adsit, 91 111. App. 580; Biedler v. King, 209 111. 310; Nordheimer v. Alexander, 19 Can. S. C. 248. (c) A wall left standing in a dangerous condition after a fire is a nuisance, and the owner is required to use such care as will absolutely prevent injuries thereby, after a reasonable time to inspect the wall. Ainsworth v. Lakin, 180 Mass. 401; Grogan v. Foundry Co., 87 Mo. 328; Simmons v. Everson, 124 N. Y. 319; Lynds v. Clark, 14 Mo. App. 79. (d) The fact that there were dead bodies in the ruins did not justify defendant in failing to exercise proper care, as above defined, with respect to the wall. Lauer v. Palms, 129 Mich. 671; Green v. Eden, 28 Ind. App. 583; Smith v. Am. Soc., 7 Mise. 158, 27 N. Y. Supp. 315; Guiney v. Railroad, 167 Mo. 604; City v. St. Ry. Co., 90 App. Div. (N. Y.) 66, 182 N. Y. 536; Gentry v. Railroad, 172 Mo. .App. 138. (2) Instruction number eight, given for defendant, misstates the law in the following respects: (a) It fails to require the jury to find that defendant exercised ordinary care. Charless v. Rankin, 22 Mo. 573; Teepen v. Taylor, 141 Mo. App. 285. (b) It erroneously authorizes the jury to find that defendant could escape liability by delegating to others its duty of caring for its dangerous premises. Teepen v. Taylor, 141 Mo. App. 282; Charless v. Rankin, 22 Mo. 566; Dillon v. Plunt, 105 Mo; 161; Carson v. Const. Co., 189 Mo. App. 126; Sessengut v. Posey,'67 Ind. 408; Steppe v. Alter, 48 La. Ann. 367; City of Anderson v. East, 117 Ind. 130; Engle v. Eureka Club, 59 Hun, 593, 14 N. Y. Supp. 184; Cork v. Blossom, 162 Mass. 330; Lawver v. McLean, 10 Mo. App. 590. (c) It erroneously permits the jury to find that defendant could delegate its duty of inspection to persons not competent to pass upon the condition of the wall. Pollock on Torts (Webb’s American Ed.) p. 542; Clark v. Pope, 70 111. 133; Sherman v. Bates, 15 Neb. 18; Schreiner v. Miller, 67 Iowa, 91. (3) Instruction number nine given at defendant’s request, is erroneous in singling out and commenting upon the fact that there were bodies in the ruins, and ignoring all other facts in evidence to be considered by the jury in determining whether defendant exercised ordinary care. Strother v. Milling Co., 261 Mo. 22. (4) Instruction number eleven states that in considering the condition of the wall and defendant’s duty regarding the same before it fell, defendant could consider only the facts and conditions which existed at the time and was not able to take into consideration facts or conditions which subsequently developed. This statement is not the law. Defendant was required to and could consider not only the existing condition of the weather but conditions which were reasonably likety to arise. Jones v. Railroad, 178 Mo. 546; Steffens v. Fisher, 161 Mo. App. 393; Tee-pen v. Taylor, 141 Mo. App. 285; Brash v. City, 161 Mo. 437; Woods v.- City, 58 Mo. App. 272; Benton v. City, 248 Mo. 111. (5) The testimony of witness McKelvey over plaintiff’s objection, that since the accident he had* not been apprised of anything that under the circumstances then existing could have been done to handle the situation in a safer manner than that in which it was handled, was improper and constituted an invasion of the province of the jury. The testimony of witness Whitaker that in handling the situation after the fire he was doing the best he could and was doing about anything any man could do. under the circumstances, was improper. It was a conclusion and invasion of the province of the jury. Dammann v. City, 152 Mo. 200; Disbrow v. Ice Co., 170 Mo. App. 585; Landers v. Railroad, 134 Mo. App. 80; Central Railroad Co. v. Bagley, 121 Ga. 781; Springfield Railroad Co. v. Puntenney, 101 111. App. 98, 200 111. 9. (6) The testimony of witness Whitaker that after the fire the city was in charge of .the bank’s property and the bank had no possession of it at all, was improper, as a conclusion of law and an invasion of the jury’s province. Kendall Co. v. Bain, 46 Mo. App. 581. Furthermore, it was an incorrect conclusion of law. 1 Thompson on Negligence (2 Ed.), sec. 579, p. 535; Id. p. .553; City v. East, 117 Ind. 126.

      Lehman & Lehman, Abbott, Fauntleroy, C%illen & Edwards and Gurlee é Hay for respondent.
    (1) The defendant was warranted in allowing the wall to stand, as it was when the fire was extinguished, while the work of rescuing the dead bodies was being-prosecuted, provided a reasonably careful and prudent person would have done so, under the same circumstances. Orr v. Bradley, 126 Mo. App. 146. (2) (a) Defendant had no right to throw or pull the wall upon the premises of the Seed Company, unless there was an immediate and imperative necessity therefor. -American Paint Works v. Lawrence, 3 Zabriskie, 590, 57 Am. D'ec. 420; Hale v. Lawrence, 1 Zab. 714, 47 Am. Dec. 190. (b) Defendant had no right to throw the wall upon the dead bodies, caught in the ruins, and would have been liable for so doing, to the relatives of the dead, unless exercised upon the doctrine of necessity above stated. Larsen v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370; Foley v. Phelps, 1 N: Y. App-. Div. 551; Kyles v. Southern Railroad, 147 N. C. 394; Pierce v. Proprietors of Swan Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Floyd v. Atl. Coast Line Ry. Co., L. R. A. 1915B, p. 519. (c) It was defendant’s duty to rescue the dead bodies as quickly and with as little mutilation as possible. -Cases last cited. (3) It was not necessary for the officers of defendant personally to supervise and direct the work of rescuing the dead bodies and caring for the ruins of the burned building. Defendant had the right to delegate such task to competent and reputable agents. If defendant did so, and if such agents exercised such care in accomplishing the work as a reasonably careful and prudent person would have exercised under the same circumstances, then defendant is not liable. New Orleans & Northeastern R. R. Co. v. Jopes, 142 U. S. 18; Mc-Nprney v. Forrester, 19 Wash. L. Rep. (Can.) 32; Olsen v. Meyer,-46 Neb. 240. (4) Even if it should be found that some of the instructions are subject to criticism or that “they may not come fully up to the standard of perfection required by the criticisms of defendant’s learned and ingenious counsel,” yet it must be held that “upon the whole of the evidence the verdict was manifestly for the right party” and should be affirmed. R. S. 1919, see. 1276; Peterson v. Transit Co., 199 Mo. 344; Shinn v. Railroad, 248 Mo. 182; Noble v. Blount, 77 Mo. 239; Haehl v. Railroad, 119 Mo. 344; Fox. v. Windes, 127 Mo. 514; Sherwood v. Ry. Co., 132 Mo. 344; Schuepbaek v. Gas. Co., 232 Mo. 612; Mockowik v. Railroad, 196 Mo. 568; Moore v. Lindell Ry. Co., 176 Mo. 545; Litzegren v. United Rys. Co., 227 S. W. 929; McManama v. Railroad, 175 Mo. App. 54.
   HIGBEE, P. J.

The defendant owned a seven-and-a-half story brick building at the northwest corner of the intersection of Fourth. Street and Washington Avenue in the City of St. Louis, fronting 100 feet on Washington Avenue and extending north about 120 feet-.The greater portion of it was occupied by the Missouri Athletic Club. This building was about 90 feet in height. The west wall was 30 inches thick at the base and 18 inches at the top; the west side was perpendicular; the east side was broken by steps or offsets about 20 feet apart where the wall was reduced in thickness. There were rows of windows in the wall at the fifth and sixth floors. Adjoining on the west was four-story brick building leased by the St. Louis Seed Company. The west wall of the defendant’s building extended about 40 feet above the Seed Company’s building. It had a frontage of about 35 feet and a depth of about 100 feet.

On Monday, March 9, 1914, the defendant’s building was destroyed by fire, which started very early in the morning of that day and was not extinguished until about 4:30 p. m. of the following day. On the first day of the fire the north end of the upper part of the west wall of defendant’s building fell upon and damaged the rear part of the Seed Company’s building. The fire gutted the interior of defendant’s building, except the part occupied by the bank at the southeast corner of the building and a row of rooms and adjoining hallway on each floor at the south end of the building. The wreckage sank to the basement, forming a mass of debris reaching, in some places, to the third story of the building. During the fire a large part of the east wall fell into Fourth Street. The north, south and west walls, excepting the portion above mentioned that fell, remained standing. It was known that many of the roomers in the building had perished in the fire and that their bodies were buried in the wreckage.

Mr. 'Whitaker, president of the bank, during the afternoon of the first day of the fire, attempted to get into communication with several construction companies to arrange for the reinoval of the bodies and take care of the ruins of the building. James II. McKelvey, the Building Commissioner of the City of St. Louis, testified that on Wednesday morning, 'after consultation with Henry Kiel, Mayor of the city, he placed thirty men at work on the ruins of the building, removing debris and searching for bodies, and that on the afternoon of that day he told Whitaker it was the’ duty of the Building Commissioner to take charge of the premises because of their dangerous condition and that he already had men there removing portions of the east wall. Whitaker thereupon agreed that McKelvey should take charge of the building and arranged to pay the necessary force to do the work required on the building and for the removal of the bodies. McKelvey was in charge of the work until the second section of the west wall fell on March 17th. The bank sent a man to keep the time of the men employed on the ruins and to pay them at the end of each day’s work. It was admitted that McKelvey and the men under him took charge as representatives of the defendant.

The work of searching for the bodies and the removal of the debris was carried on unremittingly by a force of men working in two shifts, starting with about thirty men and increasing from day to day to about two hundred men in each shift by March 17. McKelvey personally supervised the work by day, and George Frederick, his chief deputy, at night. Seven Inspectors from the Building Commissioner’s office acted as foremen. These were paid by the city. Thirty bodies were recovered from the debris, the last one being taken out at about noon of March 17th.

About the second day after the fire, the Wimmer Construction Company was employed by the lessor of the Seed Company to repair the damage to its building caused by the fall of the north part of the west wall of defendant’s building during the fire. It employed plaintiff and other laborers in this work. Shortly before 2:10 p. m. on March 17th, a strong wind arose and blew over another section of the west wall of the bank building. The top part of the section fell to the east, while the lower part buckled and fell to the west upon the Seed Company’s building, causing the entire four floors of the north third of the building to collapse. Plaintiff, who was working in the basement, was buried under the wreckage, and after several hours was rescued by -the city firemen. He sustained serious, permanent injuries, the gravity of which is not questioned. He brought this action on March 21, 1914. The third amended petition charges that the defendant negligently caused and permitted the west wall of said building to collapse and fall upon said building while plaintiff was so on said premises, to his damage in the sum of $50,000. The cause was tried to a jury, resulting in a verdict for. defendant.

Charles E. Swingley, chief of the fire department of the City of St. Louis, called by plaintiff, testified in substance: He had 45 years’ connection with the fire department and had continuous active experience in handling and extinguishing fires, examination of buildings, and in observing buildings after fires and noting their condition as to strength and durability; that he arrived at this fire about five minutes after it started and that it burned nearly two days; he made a close, ocular inspection of the west wall with one of liis assistants, together with the Mayor and Mr. McKelvey, for the purpose of arriving at an opinion as to. the reasonable safety of the wall under ordinary conditions that might prevail at that time of the year. He further testified:

“I noted the condition of the wall in question after the fire. I am familiar with buildings and walls as to their vitality and durability. During my long experience in the fire department I observed measures taken to protect walls, and things of that sort. I know of no practicable, reasonable way in which that wall could have been braced to have rendered it more safe than it was after the fire, without building scaffolding, which would have required a great deal of time. That scaffolding would have had to rest on this debris and the building as a foundation, unless it was removed to get a solid foundation for it. I do.not think it could have been braced with any degree of strength and stability without getting down beneath the debris and resting the braces on the basement of the building. The very work that was,being done at the time the wall fell would have been necessary to have a proper basis and foundation for the scaffolding to brace the wall. It would have required’three or four days anyway to have built the scaffolding that would .have properly braced this wall; I don’t know whether they could have done it that soon. There "was no way that I know of, of removing this wall in any reasonable time, taking it down, without throwing it on the wreckage or debris of the building and the bodies therein. I examined it with reference to whether or not it could be removed or could be braced. There was a conference in which I participated, along with other gentlemen, as to the proper course to be followed in the matter of the removal of the bodies, the wreckage of the building, and of their condition and the caring for the walls.”

' It was his opinion that the wall had sufficient strength to stand without any wind; that a high wind would blow.it over; a thirty-mile gale would endanger the lives of persons near the wall.

Louis R. Lindley, called by plaintiff, testified that he was employed in the removal of the wreckage; that he had twenty-five years’ experience in wrecking dangerous walls, and was familiar with the manner of bracing them; that he saw two cracks in' the west wall, 10 or 15 feet apart at the bottom; the part of the wall between the cracks fell March 17th on the Seed Company’s building; the wind was blowing 20 to 25 miles per hour. The fall could have been prevented by bracing the wall with guy lines to the east and west and timbers; in this way the wall could have been pulled down without its falling to the west; it could be broken off at any story; it would take eight men eight hours to brace the wall in the man-nor described; a fire has a tendency to cause brick to crumble and weaken and a man takes chances .in my business; it is all a game of chance; “I never mentioned this to a living soul connected with it that I could do it and that I would brace up the wall and do it differently from them. ’ ’

Plarrv Moran, plaintiff’s witness, who characterized himself as a steeplejack, stack painter, hobo traveler, rigger and laborer for twenty-five years, said, in substance, that he saw the west wall shortly aftqr March 9th; it could have been rigged at that time so as to prevent it from falling, by placing timbers inside the wall, and outside from the Seed Company level, lashing the timbers through the windows, and then guying the wall east and west. With the guys the wall could be thrown either way. When so braced it could not fall if there were a fifty-mile wind and could not buckle. It would have taken four men a good day to do the work spoken of by the witness. He knew the wall was dangerous.

E. M. Hubbard, cashier of the bank, plaintiff’s witness, testified: “The Building Commissioner (McKelvey) was in active charge, superintending and directing the work of removing the bodies and taking out the wreckage and caring for the premises between the ninth and seventeenth of March. What we did immediately after the fire was to confer with men experienced in handling that sort of work, and when the Building Commissioner took charge we put those things in his hands and rendered whatever assistance we could. ’ ’

Plaintiff testified: “When I came in the Seed Company gate from Lucas Avenue, I could see those walls standing there in the bank building. I knew those walls were there and that a fire had gutted that building and went in to work in the Seed Company’s store immediately next to the Avail that fell, and worked there until it fell. I looked at the Avail several times during the five days I worked in that vicinity, looked at them every day mostly. The wall that fell was the only one to be seen. I saw that every day. I don’t know whether it was safe or dangerous. During the time I worked there, I saw some of the men working in the debris and wreckage of the bank building.....I knew there were dead bodies in there, and that they were hunting- for them and bringing them out, but did not see any of them carried out. The foreman of the Wimmer Construction Company was. there, in charge of us men, all the time I worked in the Seed Company’s building.”

MeKelvey, the Building Commissioner, and other officials in charge, inspected the walls and not only concluded that there was no practicable way to brace the west wall, but that it would stand for a reasonable time and that it was reasonably safe to proceed with the rescue of the bodies in the debris. Referring- to the west wall, MeKelvey testified: “The only reason we did not.wreck the walls sooner was because -we wanted to remove the dead bodies first. I devoted all my attention at all times to work in the Boatmen’s Bank building-. I had 400 men under my supervision during twenty-four hours. The men who had supervision and control were under me as officers of the city and were paid by the city. . . . When the thirtieth body was recovered, I took'the word of the chairman of the committee that they were all out of the building. If I remember properly we had cables over the walls ready to commence taking- them down when the wall gave way. While we were looking for the bodies, preparations were being made for taking down the walls.”

Ross Halleck, an architect, and Henry Ruf ch, a structural engineer, both connected with the Building Commissioner ’s office, were of the opinion that the wall would stand a reasonable length of time under the condition it was in. The latter’s conclusion was it would stand a wind of thirty and probably up to fifty miles per hour.

Henry Kiel, Mayor of the city, testified that he had been a builder, bricklayer and contractor for twenty-five years. He examined the west wall after the fire. He saw no overhanging of the wall which he would consider a dangerous condition and no bulges. It was not damaged to any great extent by the fire and witness commented upon the wall being in good condition at the time Witness stated he was familiar with the manner in which a wall is kept .from buckling when being pulled, by lashing timbers to it, but in his opinion neither lashing timbers to the wall in question nor shoring it would have strengthened the wall or prevented it from falling to the west.

McPheeters, chief of the Board of Police Commissioners, testified the streets in the vicinity of the bank were at first roped off. Several days before the 17th he had the ropes changed so as to permit people to enter the buildings on the north side of Washington Street, including the seed store. After that people entered the seed store, and there was a natural flow of people going to the seed store and the one next to it all the time.

Edward M. David, a house building contractor for fifteen years in St. Louis, whose business was shoring and bracing walls, testified: “I saw the wall also from the Seed Company’s yard and from the inside of the building. It was my opinion that with the present weather conditions the wall would probably stand, but T would not care about being in there if we had any high winds, any extreme or unusual conditions. Prom my experience as a shorer and rigger, in my judgment, there wasn’t any practical way in which that wall could have been shored or braced so as to contribute to any extent to the safety of the wall without endangering the lives of the workmen put on the wall, which was leaning in six inches at least. . . . You could have built a scaffold above the Seed Company’s building, but it would not have extended back as far as the break. You could build it up with six by sixes just as high as you might want, up to the top of the wall, but I don’t know whether the roof would have carried a load like that. You could not get six by sixes 35 feet long to extend across from one wall of the Seed Company. They are not carried in stock here. I would not have a man put a forty-foot ladder up the side of this wall and climb up that ladder on account of weather conditions. For that reason I think men couldn’t have gotten up there and put any rigging on the wall. They couldn’t put cables that high. Cables are pretty heavy to pull up. We tried it on the south wall, the east corner, and couldn’t do it. ... I wouldn’t care to send men up. . . . After I inspected the wall T worked in and about the wall until the seventeenth, when the wall fell. ’ ’

James Smythe testified when the wall fell there were three or four men on the top floor of the Missouri Athletic Club building. They were then wiring the walls. They were going to pull the walls that evening after six o’clock. They had put cables all over the walls.

M. J. Montgomery testified in rebuttal: that he was a carpenter, and had had extensive experience in bracing walls; that the west wall could have been prevented from falling over on the Seed Company by bracing it from the Seed Company’s roof. In half a day it could have been braced by three men in such a way that it would not have fallen to the west. ‘ ‘ I went to work there on the west side of the wall, considering that the wTall was safe enough to warrant my going to work if they let it alone.”

The first instruction for the plaintiff was: “That the law presumes the falling of the wall was due to some negligence of defendant, and you will find in favor of the plaintiff unless^ in view of all the evidence in this case, you find that the defendant has shown by a fair preponderance of the evidence that said wall did not fall as the result of any negligence on its part. Second, that you cannot find against plaintiff on the. ground of contributory negligence. Third, even though you find the 'Wimmer Construction Company, the St. Louis Seed Company, its lessor or either of them were guilty of negligence, such negligence cannot be attributed to plaintiff so as to preclude a recovery.”

Appellant complains of the following instructions given for the defendant.

“7. The jury are instructed that the defendant had the legal right to have and maintain the wall in question upon its own property and that it was not an insurer of its safety, provided you find from the evidence that in suffering such wall to stand upon said property it exercised such care as an ordinarily prudent person would exercise under the same or similar circumstances, and if you so find, your verdict should be for the defendant.

“8. If the defendant, within a reasonable time after the fire, arranged with certain persons to recover the bodies in the ruins of the building, and if you furtb er find that the said persons were competent and reputable workmen for the task for which they were engaged, and if you further find that said persons examined the wall, which fell, and the premises with reasonable care and believed that the said Avail was sufficiently sound and stable to reasonably warrant them in undertaking the recovery' of the dead bodies, before removing said wall, and if you further find that with reasonable diligence and prudence they entered upon the work of recovering said bodies, and that while they were so engaged and before they had had time, by the exercise of reasonable care and diligence, to complete said work of removing said bodies, the wall fell and injured plaintiff, then your verdict should be for the defendant.

“9. The jury are instructed that even though you may believe from the evidence that the wall, in question, and which fell on March 17, 1914, and injured plaintiff, was in fact in a weakened condition, yet, if you find that in the wreckage of the bank building, a number of human bodies were buried in the ruins of said bank building, and that from the date of said fire, defendant had, with reasonable diligence and prudence, been engaged in the work of trying to locate and recover such bodies and removing the wreckage so as to locate and remove the dead, and that from the time of the fire to the time that plaintiff received his injuries, a reasonable time for the recovery of said bodies had not elapsed and that in the doing of such work, and in what defendant did, if anything, as shown by the evidence, in regard to the removal of the wreckage and the care of walls of the building, the defendant acted as a reasonably prudent person would have acted under like circumstances; then your '■diet should be for the defendant.

“10. The jury are instructed that although you may find from the evidence that the wall in question was so damaged and weakened by fire as to be unsafe as a permanent structure, yet if you find that it was in such a condition as to. appear to a reasonably prudent man to be reasonably certain to stand for a sufficient time to enable defendant, by the exercise of reasonable diligence, to remove^ the bodies from the ruins of said building, and if you further find that a reasonably prudent man would have permitted said wall to stand for such time and that the defendant undertook, with reasonable diligence, to remove such bodies and was so engaged between the date of said fire and the -date on which said wall fell, and if you further find that the said wall fell before defendant had had time, by the exercise of reasonable diligence, to remove said bodies, then your verdict should be for defendant.

1‘11. In determining the condition of the west wall of the building in question and defendant’s duty with regard to the same before the said wall fell, defendant could consider only the facts and conditions which existed at the time and was not able to take into consideration any facts or conditions which subsequently developed; hence if you find from the evidence that defendant examined and considered said wall and its duty with regard thereto with the care and prudence which a reasonably careful and prudent man would have exercised under the same circumstances, and did in the premises what such a man would have done under the same circumstances and that notwithstanding such fact said wall fell as a result of conditions and elements over which defendant had no control, then your verdict-should be for the defendant.”

I. The defendant’s building was destroyed by fire on March 9th and 10th. Large numbers of anxious people congregated about the ruins until the bodies were' rescued. The relatives of persons known to have been in the building and their sympathizing friends were overwrought by the dire tragedy. No one knew who or how many had perished in this awful holocaust. Confronted by these appalling conditions, the great and compelling duty of the officials of the bank and of the city, as they believed, was to rescue the bodies of the victims. In appellant’s printed argument it is said:

“With respect to defendant’s care or lack of care, regarding the wall which fell and injured plaintiff, the outstanding facts were that after the fire the wall, ninety feet high, weakened, cracked and leaning, was permitted by defendant for eight days to stand above a building in which people were constantly present, without any attempt being made either to brace the wall or to take down any part of it. . . . He [McKelvey] stated that the only reason the wall was not wrecked sooner was because he wanted to remove the dead bodies first. Concededly this reason did not constitute a legal justification for jeopardizing the lives and limbs of the persons whom lie knew were constantly going in and out of the-seed company building. His act in permitting the wall to stand in its dano’^^a «^uriition, without bracing, was an act of gross negligence.”

II. It was a question for the jury whether the defendant in the exercise of ordinary care, could or could not have braced or shored the wall. The testimony of plaintiff’s expert witness, Swingley, together with that of the defendant’s experts, was to the effect that the cotl^ have been braced or shored, and that an attempt to have done so would not only have been fntile but extremely hazardous to the lives of those undertaking the. task. We think the jury was justified by the overwhelming weight of the evidence in finding that the wall could not have been braced or shored and that the. falling of the wall was not due to defendant’s negligence. , ■

III. Appellant contends that, as a matter of law, the first and paramount duty of the defendant was either to brace or wreck the west wall, because defendant knew people were going in and out of the Seed Company’s building. It is clear from plaintiff’s evidence that he knew that rescuers were recovering bodies from the burned building. He looked at the wall several times during the five days he worked in the Seed Company’s building. He was under the charge of the foreman of the Wimmer Construction Company all of the time he worked there. It was not claimed that there was any imperative necessity for the plaintiff or his employer to undertake this hazardous work in the face of the imminent dangers portrayed by appellant’s counsel. So far as this record discloses, that work could have been delayed until the bodies were removed and the wall was wrecked. This work was voluntarily undertaken three days after the search for the victims of the fire began. Plaintiff sustained no relation to defendant. Defendant owed the same appellant that he owed to other citizens. Under ordinary circumstances there can be no doubt that, in view of the fact that the wall could not be braced or shored, it would have been defendant’s duty to have pulled it down so that it would not have been a menace to persons who might be exposed to the danger of its falling, but, under the circumstances of this case, to have thrown the wall either to the east or to the west would have been without moral or legal justification.

The defendant had no right to throw the wall upon the dead bodies in the ruins of the building. At common law it was an offense to treat a dead human body indecently. [17 C. J. 1148.] An action for damages will lie for the unauthorized mutilation of a dead body. [Ib. 1144, sec. 18.]

“The right is to the possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed and mutilated corpse as some stranger, .an offender .against the criminal law, may choose to turn over to the afflicted relative.” [Foley v. Phelps, 37 N. Y. S. 471.]

It was held, in Kyles v. Southern Ry. Co., 147 N. C., 394, 61 S. E. 278, where a section-master negligently permitted remains to be exposed on a track and failed to care properly for them, that the company was liable to decedent’s widow for actual physical and mental suffering sustained by her through knowledge thereof, although the section-master acted in good faith, believing he was bound to await the arrival of the coroner before disturbing the remains. The court said, at pages 400‘. 402:

“The defendant also owed the plaintiff the duty to gather the body and its fragments and prepare the same for burial, and a negligent failure to do so was an infringement upon her legal rights and therefore actionable [citing cases]. Parts of the body were left along the track and gathered up by the father on the Mon-' day following. . . . Respect for the dead is an instinct that none may violate. The democracy of death is superior to the edicts of kings. Rizpah became forever famous among her kind when she defied the king of Israel who would treat the bodies of her dead with contempt. Sophocles has immortalized Antigone, who vindicated the like sentiment of human nature as a higher law than that of her sovereign. It is no answer to such negligence or indifference to say that the defendant did not remove the body from the track because waiting for the coroner. Humanity and decency required that the body and its scattered members should be reverently picked np, laid Qff the track in some nearby spot, sheltered by a covering from the sun and flies and dust and irreverent eyes, and protected from the dogs by some better agency than, according to the testimony, the volunteer aid of small boys attracted thither by curiosity, but who showed more respect for humanity than those who represented this defendant.

“That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of. mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feeling of mankind to be discharged by someone toward the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation; it may, therefore, be considered as a sort of quasi-property, and it would be discreditable to any system of law not to provide a remedy in such a case.” [Pierce v. Proprietors of Swan Cemetery, 10 R. I. l. c. 237; Floyd v. Ry. Co., L. R. A. 1915B, 519.]

It was therefore the duty of defendant, as a matter of common humanity, to rescue the bodies of the victims from the debris as quickly and with as little mutilation as was reasonably possible.

IV. Again, it is well settled that the defendant had no right to throw the wall upon the Seed Company’s building unless there was an immediate necessity thferefor. It was the opinion of the Mayor of the city, the Building Commissioner, the chief of the fire department and others whose experience qualified them to speak authoritatively, that the wall, though dangerous, would stand until the bodies were recovered from the ruins of the building. It is uncontradicted that when the last body was removed, cables were being placed on the west wall and arrangements were being made to pull the wall, when it was thrown down by a violent wind that suddenly blew from the northwest.

In Hale v. Lawrence, 1 Zabriskie, 714, 47 Am. Dec. 190, l. c. 194, it is said:

“A man may justify taking the life of an adversary where it is necessary to save his own, or destroying his neighbor’s property, in some cases, for the preservation of his own. So the people of a neighborhood may justify a trespass on another’s grounds to destroy noxious animals; and in a densely populated town, all may unite in destroying a building to stop a conflagration which threatens destruction to the rest. But in all these cases the act done is in the individual capacity of him who does it, and it is done upon his own responsibility and at his own peril. The law esteems all private property sacred from the violent interference of others, and he who takes, injures, or destroys it, will be held' a trespasser, until he shows a justification. A necessity, extreme, imperative or overwhelming, will constitute such a justification, but mere expediency, or public good, or utility, will not answer. The public interest or welfare is not left in the keeping of private individuals. This justification, therefore, under a plea of necessity, is always a question of fact, to be tried by a jury and settled by their verdict, unless the sovereign authority shall have constitutionally provided some other mode.”

See, also, American Print Works v. Lawrence, 3 Zabriskie, 590, 57 Am. Dec. 420.

The question has frequently arisen in cases where walls have been allowed to stand after being damaged and weakened by fire. In such cases the owner is required to exercise ordinary care to keep the walls in safe condition. [Orr v. Bradley, 126 Mo. App. 146; 3 Shearman & Redfield on Negligence (6 Ed.), p. 1826, sec. 702; Hudgins v. Hann, 240 Fed. 387; Swentzel v. Holmes, 175 S. W. 871; 29 Cyc. 365.] The duty of inspection may be delegated to competent and experienced builders, provided due care is exfercised- in making the inspection. [Olson v. Meyer, 46 Neb. 240, 64 N. W. 954, and cases cited supra.

V. It is contended that defendant’s instruction numbered 7 ignores his duty to brace or secure the wall. It required the jury to find that in suffering such wall to stand, the defendant exercised such care as ,. ., , , , . an ordinarily prudent person would have exercised under the same or similar circumstances. The jury would clearly understand this to mean the wall as it stood, unbraced and unsecured. This instruction eliminates the vices in an instruction condemned in Orr v. Bradley, supra, and is authorized by the learned opinion in that case. The other criticisms .leveled against this instruction are without merit.

VI. Appellant criticises defendant’s instruction numbered 8, (1) that it fails to require the jury to find that the defendant exercised ordinary ca.re; (2 and 3) that it authorized the jury to find that defendant could escaPe liability by delegating tc others not competent to pass on the condition of the wall, its duty of caring for is dangerous premises, and (4) it adopts an incorrect measure of the strength of the wall to justify defendant in permitting it to stand without bracing. A simple reading of the instruction shows that the criticisms are without merit.

VII. ~We do not think that defendant’s instruction numbered 9 singles out and gives undue prominence to isolated parts of the evidence, as claimed by appellant. [Meux v. Haller, 179 Mo. App. 466, l. c. 475; O'Malley v. Musick, 191 Mo. App. 405, l. C. 413.] It is a general instruction.

“Instructions are to enable the jury to understand the law of the case. A few short, pithy and sententious instructions, embodying the law of the case, will always be better understood, and will have more effect on the triers of the fact, than a long list of instructions, loaded with words, generally so involved that it tends to confuse rather than conduct the jury to a proper conclusion.” [State v. Floyd, 15 Mo. 349, 355; Crole v. Thomas, 17 Mo. 329, 332; Talbot v. Mearns, 21 Mo. 427, 431.]

“The jury’s mind should be focused on, and not diverted from, the issues.” [Strother v. Milling Co., 261 Mo., l. c. 23.]

VIII. The defendant’s instruction numbered 11 is criticised in that it permits the defendant to act upon the appearance of the wall instead of requiring him to make careful inspection, and permits him to act on the opinion of a reasonably prudent man instead of a n -i n • xi i*x* & man; capable m passing on tiie condition oi the wall. All of the witnesses for the defendant, including the fire chief, Swing!ey, plaintiff’s witness who inspected the wall and testified to its conditions, were competent to give an opinion on the apparent strength and stability of the wall. The jury could not have been misled by this instruction.

IX. Instruction numbered 11 is further criticised in that, in determining the condition of the wall, defendant was required to consider only the facts and conditions which existed at the time, and was excused from forecasting. the conditions of the weather which were reasonably likely to arise. The instruction refers to the condition of the wall at the time defendant was compelled to act, and to act promptly in view of the appalling conditions. It may be assumed that Whitaker and his co-laborers knew that the weather was an uncertain factor, “that the wind bloweth where it listeth and thou hearest the sound thereof, but canst not tell whence it cometh and whither it goeth.” If the wall could not have been braced, or if an attempt to brace it would have been hazardous to the lives of the workmen, wliat alternative did defendant have other than the plan adopted? A consideration of the weather could not have suggested a different course of action. If there had been no human bodies in the ruins of the building, and defendant had neglected to pull down the wall without any sufficient reason therefor, and it had toppled over under the force of the wind and injured any one, a very different question would be presented. [Orr v. Bradley, supra.]

X. If the instructions did not go far enough in plaintiff’s favor, he should have asked for others presenting the theories of the law contended for by him. [Drey v. Doyle, 99 Mo. 459.] The criticisms leveled a^ defendant’s instructions are purely technical. Sections 1276 and 1513, Revised Statutes 1919, forbid the reversal of a judgment for error which does not affect the substantial rights of the adverse party or materially affect the merits of the action. [Honea v. Railroad, 245 Mo. 621, l. c. 644.] When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial. But when the verdict is manifestly for the right party and a different regult could not have been reached by the jury under the law, it should not be disturbed because of such erroneous instruction. [State ex rel. v. Stone, 111 Mo. App. l. c. 372, and cases cited.]

The errors complained of in the admission of improper evidence were not prejudicial. The verdict was for the right party and the judgment is affirmed.

All concur.


author: RAILEY, C. PER CURIAM:

text:
    THE STATE v. GEORGE DEPRIEST, alias BROWN, Appellant.
    Division Two,
    June 23, 1921.
    1. APPELLATE PRACTICE: Sufficiency of Evidence. It is not the province of an appellate court to determine the weight of the testimony; in deciding whether a demurrer to the evidence in a criminal case was properly sustained, it searches the record only to the extent of determining whether there was substantial evidence to support the verdict. And judged by this rule, the evidence in this case was amply sufficient to sustain the verdict that defendant was the person who, with gun in hand, robbed the prosecuting witness of thirty dollars or more.
    2. EVIDENCE: Refreshing Witness’s Memory: Grand Jury Notes. The testimony given before the grand jury by a witness for the State may be handed to him for the purpose of refreshing his memory.
    3. ARGUMENT TO JURY: Defendant’s Failure to Testify: Comment. It is not permitted to the prosecuting attorney to refer to and criticise defendant’s failure to testify; but to say that “there has not been a witness here who says defendant was not” at the place where the robbery was committed, is not to comment on defendant’s failure to testify.
    4. -: Defendant’s Reputation: Injected by His Counsel. Where defendant’s counsel has in his argument to the jury stated that defendant “comes here with the best of reputation” it is not error for the prosecuting attorney to refute it by replying that no witness “said anything about his reputation,” and that, if any witness had said anything about defendant’s reputation he too “would have had something to say about his reputation.” Such remarks were not comment on defendant’s failure to testify, and defendant’s reputation being injected into the case by himself, the prosecuting attorney had a right to refute the statement of his counsel that it was “the best,” and the court did not err in refusing to discharge the jury because of the refutation made.
    Appeal from St. Louis City Circuit Court. — Hon. Vital W. Garesche, Judge.
    Affirmed.

      Jdim P. Leahy for appellant.
    (1) The defendant was not proved by the State to be guilty of this specific charge made in the indictment against him, and he was entitled to an acquittal, and his demurrer to the- evidence should have been sustained. State v. Howell, 100 Mo. 639; State v. Woolard, 111 Mo. 256. (2). The presence of the defendant at the necessary-time and place must be shown as essential to the commission of a crime. If the defendant’s evidence is sufficient to raise a reasonable doubt, or if the State’s evidence is so defective as to raise a reasonable doubt, or if taking all the evidence on both sides there is a reasonable doubt of the defendant’s guilt, he is entitled to an acquittal. State v. Jones, 71Mo. 594; State v. Howell, 100 Mo. 628; People v. Fong'Ah Sing, 64 Cal. 253; State v. Franke, 159 Mo. 535; State v. Hopkirk, 84 Mo. 288; State v. Powers, 130 Mo. 479; State v. Howard, 118 Mo. 140. (3) It is a fundamental principle of the law of circumstantial evidence that each independent fact must be proved in the same satisfactory manner as if the whole issue rested upon that fact. State v. Crabtree, 170 Mo. 654; Com. v. Webster, 5 Cush. 295,; 1 Starke, Ev. 510. (4) While the memory of a prosecuting- witness may be refreshed by his testimony taken before the grand jury, it cannot be used for the purpose of impeaching him by the State. State v. Patton, 255 Mo. 257. (5) The failure of the defendant to testify cannot be referred to or criticized by the prosecuting attorney. State v. Graves, 95 Mo. 510. (6) A defendant charged with the commission of a crime comes into the court with the presumption of innocence and with a good reputation, and in the absence of evidence showing his reputation to have been bad, it is error on the part of the prosecuting official to state that he could prove his reputation to be bad. State v. Lee, 66 Mo. 165.

      Jesse W. Barrett, Attorney-General, Albert Miller, Assistant Attorney-General, and B. W. Otto, of counsel, for respondent.
    (1) The court did not commit error in overruling appellant’s demurrer to the evidence and in submitting the case to the jury. The record discloses that there is substantial evidence of defendant’s guilt. State v. Fields, 234 Mo. 627; State v. James, 216 Mo. 407; State v. Wooley, 215 Mo. 687; State v. King, 214 Mo. 390; State v. Stewart, 127 Mo. 293. (2) The court did not commit error in permitting the use of the grand jury transcript in the trial of this cause, (a) It is competent for a witness to refer to his testimony taken before the grand jury to refresh his memory. State v. Patton, 255 Mo. 256; State v. Miller, 234 Mo. 597; State v. Carpenter, 216 Mo. 449; State v. Kennedy, 154 Mo. 286; McLin v. State, 48 Tex. Cr. '549. (b) The conduct of counsel representing the State in the examination of witnesses for the State, in connection with the grand jury transcript, did not approach the character of impeachment. State v. Patton, 255 Mo. 257; State v. Whalen, 148 Mo. 289; State v. Duestrow, 137 Mo. 84. (c) Where a witness is shown to be unfriendly or hostile to the prosecution, it is proper to allow the prosecution to ask him leading questions. State v. Kebler, 228 Mo. 382; State v. Draughn, 140 Mo. App. 267; State v. Duestrow, 137 Mo. 84. (3) The argument of counsel representing the State, was legitimate and did not amount to a comment on the “failure of the defendant to testify.” State v. Pfeifer, 267 Mo. 29; State v. Fields, 234 Mo. 625; State v. Whit-sett, 232 Mo. 529; State v. Schmidt, 136 Mo. 651. (4) The argument of counsel representing the State as to the subject matter of proof or evidence concerning the “reputation” of the defendant was proper and legitimate, in Gew of the preceding argument made by counsel representing defendant. State v. Hyland, 144 Mo. 313.
   RAILEY, C.

On October 6, 1919, the grand jury of the City of St. Lonis, Missouri, returned into the circuit court of said city, an indictment charging that the defendant, George DePriest, alias Brown, on the 23rd day of September, 1919, in the City of St. Louis aforesaid, did feloniously assault one John B. McIntyre and, by force and violence to his person, feloniously and violently did rob, steal, take and carry away from the said McIntyre, the sum of thirty dollars, lawful money of the United States, with intent feloniously to deprive the owner of the use thereof, and to convert the same to his own use. On November 20, 1919, defendant was arrainged in the circuit court aforesaid and entered a plea of not guilty.

On December 18, 1919, the trial of the above cause was commenced before a jury.

The scene of the alleged robbery was a large room covering the entire upper floor, in the third story of a building, located at 705% Pine Street, in the heart of the business district of the City of St. Louis. The building fronts on the north side of Pine, and runs back to an alley in the rear, about 100 feet. The above room, at the time of the alleged robbery, was occupied by the Waiters’ Club of St. Louis. There was several pool tables in it, as well as card tables. A bar was located at the west side of the room, and back of the bar there was a small room where supplies were kept. There were two entrances to the Waiters’ Club, one leading to the street, and the other leading to the alley at the rear.

The testimony on behalf of the State tends to prove the following facts:

John B. McIntyre testified, in substance, that he belonged to the Waiters’ Union, and was a member of the Waiters’ Club at 705% Pine Street; that he was at said club on the morning of September 23, 1919; that he was sitting in the bar end of said room, on said morning, at the card table, and was held up; that about two o’clock on the morning of September 23, 1919, there were ■ some thirty or forty men in the club playing cards; that three men entered the club, one of whom was holding a gun and he commanded the members of the club to put up their hands; that he (witness) paid no attention to the man with the gun, but was watching the fellow doing the searching; that the latter just took what witness had; that all the men in the room were lined up, except six or seven, in the back room; that they took from witness between thirty and thirty-five dollars, of lawful money of the United States; that two of these men, after they got through, backed down the stairs; that one of those who backed down the steps, was the man who held the gun, %uhile they tvere being robbed; that he is certain the man who held the gun was one of. the two men who backed down the stairs; that he did not know what became of the third man; that the one who searched witness did not back down the Stairway; that witness went to the window, and “hollered” to an officer below, “There goes two fellows that stuck up this club; ” he could not swear defendant was the man who had the gun; he had known defendant for about two years before the trial, by the name of Brown. He further testified that he never knew him by the name of DePriest; that the man who held the gun had his hat pulled down over his face; that he could not swear that defendant was in the club that evening; that he was not able to tell positively who the man was that held the gun. Witness was shown the testimony which he gave before the grand jury, and then said, after reading same, that he could not identify defendant as the man who had the.gun.

On cross-examination, witness testified that the man who searched him was not the defendant in this case; that the man with the gun resembted defendant, but he could not say it was defendant who had the gun; that as soon as witness ran to the window and “hollered,” the officer ran to the alley and started to shooting; that the two men had their backs to witness, and when the latter “hollered,” the two men ran into the alley.

Andrew Whalen, a night watchman, testified that on the morning of September 23, 1919, as he came to the comer of 7tli and Pine, lie was accosted by officer Scbrievers, and requested to hold a man by the name of Conklin, for him; that he did not see defendant that morning; that he heard two shots, but did not know who fired them; that Schrievers had Conklin rigilt in front of the Waiters’ Club, when witness came up; that Schrievers went north on 7th Street. On cross-examination, witness testified, that it was about three o’clock in the morning when he was left in charge of Conklin.

Charles F. Conklin testified, in substance, that he •was manager of a billard hall; that on the morning of September 23, 1919, he saw defendant at 9th and Pine; that they were at the Maryland Drug Store; that he was at the Waiters’ Club on the above morning, and met Dick Lambert there; that he had known defendant about one year or a year and a half; that he talked with defendant at the above drug store; and the latter then went east on Pine Street in the direction of the Waiters’ Club; that he and Schrievers were tailring one door west of the Waiters’ Club, when two men came out of the latter; that he got a glimpse of them; that they were going west on Pine Street, and were right in front of witness; that he heard some one. call from the Waiters’ Club, and they said, “Stop those fello%us, they just held us up” or “stuck us up;” that he heard the call from the club after he had gotten a glimpse of these two men and they had passed on west; that officer Schrievers called his attention to Brown; that defendant had been drinking the night before; that he did not recognize either of the two men who passed while he was west of the Waiters’ Club; that Schrievers said, as these two men passed: ‘ ‘ There goes One-Eye now;” that defendant was called “One-Eye ’ ’ or Brown; that Schrievers said it was Brown, but witness just got a glimpse of him; that when Schrievers called attention to “One-Eye,’’whom he knew to be Brown, he looked over his shoulder and saw Brown.

Thomas Lewis, manager of the Waiters’ Club, testified, in substance, that he did not see the man with a gun, but saw the searchers; that he did not know defendant.

Charles Schrievers, a member of the police force, testified, in substance, that he was night watchman, on the morning of September 23, 1919; that he was searching Conklin just west of the Waiters’ Club on the above morning’ when defendant, knoivn as Brown, came out of the Waiters’ Club entrance; that he said to Conklin, “There goes your friend Brown,” and Conklin answered, ‘ ‘ Yes; ” that they went into the alley and got about halfway in when McIntyre called out the window to witness, or somebody standing on the sidewalk, “Get those two fellows; they just stuck up the place;” that witness started out after them into the alley, and they were waiting to seé if he was coming; that just as he started in, they ran through the alley to 7th Street, and witness fired two shots; that he was sure defendant, George DePriest, alias Brown, was one of the two men; that he had known Brown for sometime and was hot mistaken about defendant being one of them. On cross-examination, witness said he saw defendant and the other man come right out of the club hall; that only two men came out of the club at that time; that he (witness) fired three shots altogether.

T. George Dineen, detective sergeant, testified, in substance,, that he had known defendant about five years; that he arrested defendant at 2905 Easton Avenue, St. Louis, Missouri; that defendant was asleep when witness got there; that he found two loaded revolvers under defendant’s bed; that defendant said to witness, “My big friend took several shots at me;” that he meant Schrievers, in speaking of,his “big friend;” that he asked defendant who was with him, in speaking of the hold-up, and defendant said he didn’t know who was with him, he might have taken somebody out of the club to do the searching; that he told defendant he was suspected of being in the hold-up.

Oscar L. Collard, a detective sergeant, testified, in substance, ’that he arrested defendant, George DePriest, alias Brown, on the 23rd of September, 1919; that he found two loaded revolvers under the bed’where defendant was sleeping; that defendant told witness that his big friend S.chrievers shot at him; that witness asked defendant who was with him, and defendant said he was by himself; that witness then asked him who it was that did the searching, and he answered, “I don’t know, I guess it must have been some fellow I picked out of the crowd.” On cross-examination, witness testified that defendant didn’t say directly that he did the holding up.

At the conclusion of the testimony, defendant interposed a demurrer to the evidence, which was overruled. The court gave to the jury instructions, 1, la, 2, 3 and 4. Defendant objected to each and all of -said instructions, except number 4, which was unobjected to by appellant. The instructions, and rulings of the court, as well as the argument of counsel, will be considered in the opinion. The jury returned into court the following verdict:

“We, the jury in the above entitled cause, find the defendant guilty of robbery, -in the first degree as charged in the indictment, and assess the punishment' at imprisonment in the penitentiary for ten years.

“George F. Eaton, Foreman.”

Appellant, in due time filed motions for á nevr trial and in arrest of judgment. Both motions were overruled.

On March 4,1920, defendant was duly sentenced, 'and judgment entered in accordance with the verdict aforesaid. Appellant, in due time, appealed the cause to this court.

I. ' Appellant contends that his demurrer to the evidence should have been sustained. We have made a very full statement of the facts, with the view of considering this question. It is not our province to pass lrPon weight of the testimony and. hence, we will only determine whether the record presents substantial evidence upon which the verdict can be sustained. It is clear, that the prosecuting witness, John B. McIntyre, was robbed, in the City of St. Louis, and State of Missouri, of thirty dollars, or more, of lawful money of the United States, as charged in the indictment. While McIntyre did not recognize defendant as the man who held the pistol, yet he did say that defendant looked like the man who had the gun. He likewise testified positively, that the man who held the gun on him, with one of the others engaged in the robbery, backed out of the club and down the stairs. Charles Schrievers, the policeman, testified that he saw defendamt and another man coming out of the Waiters’ Club, and that he told Conklin, who was with him, that his friend Brown was passing by, and Conklin also recognized this defendant, who was known as “One-eye,” or Brown, and who was then passing along Pine Street, a short distance from the Waiters’ Club entrance. Schrievers also testified that 'McIntyre called out of the club-house window and “hollered”: “Get those two fellows, they just stuck up the place.” Schrievers is corroborated, as to the above statement, by McIntyre and Conklin, Soon after the above hallooing by McIntyre, defendant and his companion started down the alley, were chased by Schrievers, and three shots were fired after them before defendant finally escaped. When appellant was aroused from his sleep by two policemen, he had two loaded pistols under his bed, and told them that his big friend Schrievers had shot at him the night before. Collard, one of said policemen, then asked defendant who was with him, and he said he was by himself. Collard then asked him who it was that did the searching, and he said, “1 don’t, know, I guess it must have been some fellow I picked out of the crowd. ’ ’

The foregoing circumstances, in connection with other corroborating facts heretofore set out were amply sufficient to warrant the jury in finding that defendant was the man who held the gun on McIntyre and others, while they were being robbed. We are, therefore, of the opinion, that the trial court committed no error in overruling defendant’s demurrer to the evidence.

II. Appellant asserts that: “While the memory of a prosecuting witness may be refreshed by his testimony taken before the grand jury, it cannot be used for the purpose of impeaching him by the State.” We are cited to State v. Patton, 255 Mo. l. c. 257, as an authority in support of this contention.

We have no 'fault to find with the principles of law declared in the Patton case, which were followed in the later case of State v. Riles, 274 Mo. l. c. 623-4, 204 S. W. 1-2. The testimony taken before the grand jury was not offered in evidence in this case, nor was any part of same stated to the jury. On the contrary, the testimony given by McIntyre before the grand' jury was submitted to him, with the request that he examine same. He was then asked, after refreshing his memory, if he could identify defendant as the man who held the gun, and he answered that he could not, but said the man with the gun, looked like defendant. We are of the opinion that the trial court was within the law, in respect to foregoing matter. In addition ^ieret°j 110 harm was done defendant, as the witness, after examining his testimony given before the grand jury, reiterated what he had previously said, that he could not swear defendant was the man who had the gun.

III. Appellant contends that his failure to testify could not legally be referred to or criticised by the prosecuting attorney in the presence of the jury. In support of this assertion we are cited to State v. Graves, 95 Mo. 510, in which defendant testified as a witness in his own behalf. The prosecutor, in the above case, commented on some mattfers which defendant might have testified about; but failed to do. This court, speaking through Norton J., reversed the case on account of said comments. Brace and Sherwood, JJ., dissented.

The Graves case, relied on by appellant, was, in express terms, overruled in State v. Larkin and Harris, 250 Mo. l. c. 244-5. Aside from its being overruled, it has no application here, because the defendant testified as a witnes therein. The principle of law contended for by defendant is correct, when applied to the facts of this case, as defendant was not on the witness stand. It will, therefore, be necessary to turn to the record, and ascertain what actually occurred, in passing upon above complaint.

The prosecuting attorney was reviewing the evidence relating to the identity of defendant, alias Brown, as the man who held the gun while McIntyre and others were robbed. In considering the testimony of policeman Schrievers, the prosecutor said: “Now, he had all that opportunity to see this man Brown. Now, if Brown did not do anything, and you must.say Brown was there, that is the only testimony you have here, he must have been there, there hasn’t been a witness here who says he was not there.” ’ The foregoing was objected to as being a comment on defendant’s failure to testify in the cause. We are of the opinion that the above remarks, complained of by appellant, did not constitute a comment on the failure of defendant to testify as a witness in the cause. [State v. Fields, 284 Mo. l. c. 625-6; State v. Ruck, 194 Mo. l. c. 440.] In State v. Fields, at pages 625-6, we said:

“In the closing argument to the jury the prosecuting attorney said: ‘ Tire State has proved certain facts; has •brought a large number of witnesses before you whose testimony has not been controverted by the defendant’s witnesses.’ This language was objected to by counsel for defendant, 'for the reason that the defendant is not obliged to take the stand. ’ The court thereupon admonished the prosecuting attorney that he had no right to comment on the fact that the defendant did not take the stand. The defendant’s counsel then excepted to the remark of the court. It is now contended by appellant that prejudicial error was committed in the remarks both of the prosecuting attorney and of the court.

“As to the alleged improper remarks of the prosecuting attorney we are of the opinion that the language was not open to the construction that it was a comment on the- failure of the defendant to testify. The words 'the defendant’s witnesses’ are not fairly susceptible of such an interpretation, nor is there .anything in the record to indicate that they were so intended. We hold that the prosecuting attorney was within the bonds of legitimate argument and that his conduct was not open to the objection made or deserving of admonition from the court.”

In State v. Ruck, 194 Mo. l. c. 440, the prosecuting attorney, in his argument to the jury, said:

“Here is a case that seems to me calls for the punishment that should be made to fit the crime. Here we have testimony undenied, undisputed by no living or unliving witness.” (Italics ours.)

The • prosecutor was here interrupted by counsel for defendant, on the ground that said remarks constituted a comment on the failure of defendant to testify in the case. We held that the language above quoted was not a comment on defendant’s failure to testify.

We are of the opinion that counsel for the State was within the law, in making the above statement complained of by defendant.

IY. Appellant likewise complains of that part of the prosecuting attorney’s argument in closing the case, as follows:

“Now, Mr. Leahy says that this man comes here with the best of reputation. Did you hear anything about reputation here? Did you hear anyone say anything about his reputation, and if he had said something about his reputation, I would have had something to say about his reputation.”

Appellant’s counsel objected to the above remarks on the ground that it was a comment on defendant’s failure to testify as a witness. The court was not asked to rebuke counsel, but to discharge the jury.

Mr. O’Brien, representing the State, in justification of his remarks, said:

“When Mr. Leahy mentioned the fact about his reputation, that gave me the right to talk about it. Up until that time I had no right to mention his reputation and I could not say a word about his reputation until his reputation was put in issue by himself. ’ ’

The trial court heard Mr. Leahy’s argument, and as defendant’s counsel did not deny having told the jury that defendant “comes here with the best’of reputation,” appellant is in no position to complain of said remarks. The trial court very properly refused to discharge the jury, as requested by defendant.

. The objection urged to prosecutor’s remarks is disposed of adversely to appellant’s contention, in State v. Hyland, 144 Mo. l. c. 313-4, where we said:

“Lastly, it is insisted that error occurred in not rebuking the statements of the prosecuting attorney in his argument that 'crimes of this character are becoming too frequent’ and to the further statement as follows: 'The character of this man is not an issue in this case. It couldn’t have been put in by the State. I say to you there is no evidence as to the character of this defendant, because Mr. Kimbrell didn’t make that an issue in this case. If he had made that an issue in this case and opened the doors the testimony would have been before the jury. He tells you that this man is a law-abiding man; nothing against him, when he knew under the law we couldn’t make that an issue. Isn’t it a little bit singular that after living here twelve or fifteen years he couldn’t produce a witness to show that he was that kind of man.’ Now as to these observations of the prosecuting attorney, there is absolutely nothing in the first He merely voiced a truism. It is lamentably true that criminal acts like the one under investigation are too common. [State v. Emory, 79 Mo. 461; State v. Hopkirk, 84 Mo. l. c. 288.] As to the remark in regard to the character of defendant as a law-abiding man, the prosecuting attorney correctly told the jury that no such issue had been tendered and the character of the defendant had not been shown, and the State could not have made it an issue in the first instance. On its face it shows that it was a legitimate reply to the unsupported assertion that defendant was a law-abiding man with nothing against his character. The prosecuting attorney very properly insisted there was no such evidence and if defendant desired his good character to be considered as a part of his defense he ought to have produced at least some one witness- that he was that kind of a man.

‘ ‘ There is no merit in the contention that there was error in rebutting defendant’s unfounded statement that ho was a law-abiding citizen. He had no right to inject that issue into the argument and complain if it was promptly met and refuted.”

V. It is insisted by defendant that the corpus delicti was not shown by the State in this case. There is no controversy over the fact'that the prosecuting witness, on the morning of September 23, 1919, was held up at the point of a gun, and robbed, while in the Waiters’ Club, of $30 in lawful money of the United States. We have heretofore shown, under proposition one of this opinion, in considering the demurrer to the evidence, that there is substantial testimony in the case, tending to show that defendant was the man who held the gun while McIntyre and others were being robbed. The foregoing contention is without merit and overruled. [State v. Schyhart, 199 S. W. l. c. 211, and cases cited.]

VI. We have examined the instructions given in the case, and find that they are fair to defendant, and properly covered all the law necessary to aid the jury in passing upon the case.

VII. Upon a careful consideration of tbe law and facts relating to tbis case, we find no error of wbicb appellant can legally complain. He received a fair and impartial trial, and was convicted upon substantial evidence. Tbe judgment below is accordingly affirmed.

White and Mosley, GG., concur.

PER CURIAM:

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

All of tbe judges concur.