author: SMALL, C.

text:
    JOSEPHUS A. LAYCOCK v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant.
    In Banc,
    November 30, 1921.
    1. NEGLIGENCE: Passenger: Irregular Movement of Street Car: Pleading. There is more or less irregularity in the movement of all electrical cars which is -not due to negligence on the part of those operating them, and where' plaintiff was safely upon the ear as a passenger, and was not injured while getting on or leaving it, but while riding thereon, he must, in order that his petition may state a cause of action, allege and prove that the jerk of the ear which resulted in his injury was an unusual or extraordinary movement.
    2. -: ——.—: Jerks: Crowded Car: Breaking Window. An allegation that defendant moved a crowded electric street car with a sudden and unexpected jerk with such force as to throw another passenger against the glass of the entrance door, breaking the glass and causing broken pieces to strike plaintiff in his eyes and face, greatly injuring him, is, in substance and effect, an allegation -of facts showing an extraordinary and unusual movement of the car, and is, after verdict, a sufficient statement of a cause of action. .

      3. -: -: - — : Cable Cars and Freight Trains. There is a wide difference between the jerks and lurches of cable cars and freight trains necessarily incident to their operation and the jerks and lurches incident to the operation of an electric street ear, and the cases excusing the irregularity of their movements are not ,authority for excusing the unusual and extraordinary jerks of electric street cars.
    4. -:-: -: Instruction: Following Petition. Where the facts stated in the petition constituted a sufficient allegation that plaintiff’s injuries were caused by an unusual jerk and extraordinary movement of the street ear, an instruction which follows the petition and requires the jury to find the same facts is sufficient and requires them to find that the jerk was unusual and extraordinary.
    5. MEASURE OF DAMAGES: Special: Loss of Earnings: Allegation and Instruction. An allegation that “prior to his injury plaintiff was engaged in the business of buying and selling brooms at wholesale, and was a salesman of merchandise to the retail trade, and earned an average of five dollars per day; that since his injury he has been unable to attend to his business, and has lost his earnings; that his earning power has been permanently impaired; that he will continue to lose the earnings of his business; that he will be permanently unable to follow his former business, or any other business’' simply puts a limit on plaintiff’s loss of earnings prior to the filing of his petition to five dollai's per day, but puts .no such limit upon his future earnings; and an instruction telling the jury that in estimating his damages they will take into consideration “the reasonable value of plaintiff’s time which he has lost as a direct result of said injury, whether his earning capacity has been reduced as a direct result of said injuries, and what effect his injuries will have on his earning capacity in the future’’ was not erroneous, although it placed no specific limit upon the amount that might be allowed for loss of time or earnings.
    6. -: -: Loss of Time: Less Than Alleged: Instruction. Where the petition fixed the value of plaintiff’s time from the date of his injury to the filing of the petition at five dollars a day, and the evidence was that he earned only four dollars a day, an instruction telling the jury that in estimating plaintiff’s damages they should take into consideration “the reasonable value of his time which-you may believe from the evidence the plaintiff lost as a direct result of said injury,” without mentioning the amount, was not erroneous. Where the evidence shows that the value of earnings lost or of time lost is less than the amount stated in the petition, the presumption is that the jury, absent anything to the contrary appearing, obeyed their oaths and brought in a verdict according to the evidence. It is necessary that the instruetion limit the amount of such special damagfes only in ease the amount as shown by the evidence exceeds or may exceed the amount specified in the petition. [Approving ruling of Kansas City Court of Appeals in Campbell v. Chillicothe, 175 Mo. App. 486, and numerous -other cases, and disapproving contrary ruling by St. Louis Court of Appeals.]
    7. _ — : Double Recovery: Loss of Time and Loss of Earnings. Loss of time and loss of earnings do not constitute separate and distinct items of loss. An instruction permitting plaintiff to recover for time lost and reduced earning capacity in the past does not allow a double recovery, and is not errofieous.
    8. EVIDENCE: Lost Earnings: No Books. The mere fact that plaintiff kept no books and could not tell precisely the net profits of his work or business should not deprive him of any just claim for loss of time or earnings. Where plaintiff was incapacitated from pursuing his ordinary avocation, which was that of a wholesale dealer in brooms in a small way, evidence that he purchased brooms from manufacturers and went about and took orders for them and delivered them to purchasers, and estimated that his profits or earnings in said business for several years prior to his injury had been one hundred dollars per month, though he kept no books, the loss being personal to himself because he alone conducted the business, is not speculative, and is not incompetent.
    9. -: Conclusion of Witness: Jerk of Car: No Motion to Strike Out. To sustain an objection to the testimony of a witness that there was no jerking of the street car sufficient to throw down a passenger and that it started forward in the ordinary way, that such testimony was a conclusion of the witness, made after numerous inquiries calling for such conclusion were made and answered, and followed by no motion to strike out, is not reversible error, the testimony being competent.
    10.EXCESSIVE VERDICT: Loss of Eye: $5,000. Plaintiff was fifty-three years of age; he testified that when a passenger was thrown by the jerk of the street car against the entrance door, broken pieces of glass struck him in the face and right eye, knocking him blind and producing intense pain; that he was immediately treated by an oculist, but the right eye, previously straight, since the accident is turned to one side, producing a disfigurement, and its sight so destroyed that he cannot read with it; that the sight of the left eye has rapidly failed, and both eyes are in a state of severe pain, constantly inflamed and feverish, and interfering with normal sleep; numerous lay witnesses testified that his right eye, prior to t.he accident, had been, straight, and others that it was previously defective; his expert oeculist testified that the right eye might have been diverted from its natural position by the injury; and defendant’s expert, who was the oculist first consulted, testified that when plaintiff came to him he found no particles of glass or injury to the right eye and that it was not then diverted, but this witness had been the regular physician for defendant and at the 'time plaintiff came to him was being occasionally consulted as an oculist by defendant, and while treating plaintiff communicated his condition to defendant, but did not inform plaintiff of such facts and plaintiff was not aware of them. Held, that in view of -the conflicting,, testimony, the court cannot say that the verdict for five thousand dollars was so excessive as to indicate the jury were not governed by the weight of the evidence as they honestly believed it to be.
    Appeal from St. Louis City Circuit Court. — Eon. William T. Jones, Judge.
    AFFIRMED.

      Albert D. Nortoni, Charles W. Bates, T. E. Francis, and Thomas Bond for appellant.
    (1) Tlie petition fails to state a cause of action, in that it contains no averment that the jerk which is alleged to have caused the accident, was unusual to the ordinary operation of the street car. Bartley v. Street Ry., 148 Mó. 124, 139; Saxton v. Railroad, 98 Mo. App. 494, 503; Bobbitt v. Street Ry., 169 Mo. App. 424. (2) Instruction 1 is erroneous in that it permits a verdict for the plaintiff without requiring the jury to find from the evidence that the jerk which is alleged to have caused the accident, was unusual to the ordinary movements of the car. Cases cited above. (3)' Instruction 3 is erroneous in that it fails to limit the damages which the jury are authorized to award for loss of time' and impaired earning capacity, past and future, to the amount claimed in the petition. Finley v. United Rys. Co., 238 Mo. 6, 14; Radtke v. Basket & Box Co., 229 Mo. 1, 21; Tinkle v. Railroad, 212 Mo. 445, 471; Smoot v. Railroad, 194 Mo. 513, 521. (4) Instruction 3 is also erroneous because it permits a double recovery for a single loss, in that it permits the jury to compensate the plaintiff for loss of time and also impaired earning’ capacity in the past, when the one necessarily includes the other. Fargy v. Rutledge, 180 S. W. 90; Western & Atlantic Railroad v. Smith, 88 S. E. 983; St. Louis Southwestern Ry. Co. v. Smith, 63 S. W. 1064. (5) The court erred in not sustaining defendant’s objections to the testimony offered to show loss of profits, for the reason that said profits were speculative, and the testimony as to the amount thereof was uncertain, and the court erred in directing, the jury in instruction 3 that they might compensate plaintiff for loss of time and earnings, for the reason that there was no competent evidence showing any such loss. Morrow v. Railroad, 140 Mo. App. 200,-213; Reynolds v. Tel. Co., 81 Mo. App. 223, 231; Yiernow v. Carthage, 139 Mo. App. 276, 281; Cravens v. Hunter, 87 Mo. App. 456, 465; Burdall v. Johnson, 122 Mo. App. 119; Wilt v. Hammond, 179 Mo. App. 406, 418. (6) The court erred in sustaining plaintiff’s objection to the testimony of witness Maag to the effect that the motion of the car was not sufficient to throw a man, or to overbalance a man. Such statements of eye-witnesses who observed the motion of the car and its effect on passengers thereon, are statements of fact, and are not incompetent under the opinion rule. 17 Cyfe. 81 to 98; Denver, T. & Ft. W. Ry. Co. v. Ditch Co., 35 Pac. 910. (7) We respectfully invite the court’s attention to the facts and rulings in the following cases, which we cite in support of our contention on the main question in this case, that is, that the petition was insufficient, our demurrer to the evidence should have been sustained and also plaintiff’s first instruction was wholly insufficient, misleading and misdirection. Hite v. Met. St. Ry. Co., 138 Mo. 132; Bartley v. Met. St. Ry. Co., 148 Mo. 124; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104; Tickell v. St. Louis & Iron Mt. Ry. Co., 149 Mo. App. 648; Guffey v. Hannibal & St. Joe Ry. Co., 53 Mo. App. 462.

      Sale & Frey and Fauntleroy, Cullen & Hay for respondent; Ralph T. Finley of counsel.
    (1) The petition does not limit plaintiff’s damages for loss of earning's. The recital that “prior to Ms injury he earned an average of five dollars per day” is merely a statement of what plaintiff had previously earned and is not alleged to be plaintiff’s damages for either past or future loss of earnings. Barnes V, Houchin, 195 S. W. (Mo. App.) 61; Bible v. Railroad, 169 Mo. App. 525. (2) Even though it be held that plaintiff’s petition limited the amount of his past earnings, the instruction on the measure of damages is, never-, theless, not erroneous, since all the evidence in the case showed' that his earnings were less than the amount claimed in the petition. Shinn v. United Rys. Co., 248 Mo. .173; Campbell v. Chillicothe, 175 Mo. App. 436, 439; Summers v. Railroad, 187 S. W. 125, 127; Bell v. United Rys. Co., 183 ])!o. App. 334; Morris v. K. C. Rys. Co., 223 S. W. 784; Hance v. United Rys. Co., .223 S. W. 123; Erdmann v. United Rys., 174 Mo. App. 245; Lindsay v. Kansas City, 195 Mo. 180; Sang v. St. Louis, 262 Mo. 454; State ex rel. v. Reynolds, 257 Mo. 19; Carter v. Wabash, 182 S. W. 1061.' The defendant did not ask a more definite or specific instruction as to the measure of damages. It thereby waived all right to claim plaintiff’s instruction on the measure of damages erroneous for indefiniteness. King v. St. Louis, 250 Mo. 514; Powell v. Railroad, 164 S. W. (Mo.) .638; Browning v. Railroad, 124 Mo. 55; Waddell v. Railroad, 213 Mo. 20. (3) Plaintiff’s instruction on the measure of damages.did not permit a double recovery. _ Reynolds v. St. Louis Transit Co., 189 Mo. 408. A recovery for loss of time and impairment of earning capacity is not double. 17 C. J. 781.
   SMALL, C.

This case, a suit for personal injuries claimed to have been received by plaintiff as a passenger from a sudden jerk of defendant’s car, was tried in the Circuit Court of the City of St. Louis. Judgment was rendered for plaintiff, and defendant appealed to the St. Louis Court of Appeals, which certified the case to this court for final determination, because said Court of Appeals deemed its decision herein contrary to the decision of the Kansas City Court of Appeals in Campbell v. Chillicothe, 175 Mo. App. 436, on the instruction on the measure of damages given for the plaintiff.

I. First: As to whether the petition fails to state a cause of action, and does not allege, in substance, that plaintiff was injured by an unusual or extraordinary movement or jerk of the car.

It is true, as contended by appellant, that in this case the plaintiff, being safely upon the car as a passenger and not claiming to have been injured while he was getting on or leaving the car, but while he was riding thereon, in order to have a cause of action against defendant must allege and prove that the jerk of the car complained of was an unusual or extraordinary jerk, because all cars are subject, in their operation, to more or less irregularity in movement, without any negligence on the part of the defendant or its employees in charge of such cars.

The petition, alleges as follows: “Plaintiff says that the Manchester car, upon which he was received as a passenger by the defendant company, was crowded with passengers at the time he got on the car at Jefferson and Chouteau avenues; that all the seats were occupied by passengers, and the aisle in said car was crowded with passengers, and the rear platform of said car was also crowded. Plaintiff paid his fare as a passenger to the conductor of said car by delivering to him the transfer ticket, and was standing on the rear platform of said car while the car proceeded on its way along the usual route of said car, and between Vandeventer Avenue and Kingshighway, when the defendant’s servants in charge of said ear negligently and carelessly permitted and allowed tlie same to move witli a sudden and unexpected jerk, thereby pulling or driving the car forward with such force as to throw someone in the inside of the car against the glass entrance door breaking the glass therein, and causing the same to strike plaintiff in the eyes and in his face, greatly injuring him. ’ ’

We think these allegations are sufficient, after verdict, to state a cause of action. To move a crowded electric street-car with a sudden and unexpected jerk with such force as to throw some one inside of the car against the glass entrance-door, breaking the glass therein and causing the same to strike plaintiff: in the eyes and in his face, greatly injuring him, is, in substance and effect, to allege facts showing an extraordinary and unusual movement of such a car. The cases cited by learned counsel for appellant, of jerks, of no greater force than that alleged in the petition, on cable cars or freight trains, do not apply to this case, because there is> a wide’ difference between the jerks and lurches of cable cars and freight trains necessarily incident to their operation and the jerks and lurches incident to the operation of an electric street car. The case cited of a cable car, to-wit, Hite v. Met. St. Ry. Co., 130 Mo. 132, shows that it was impossible to operate the cable car around the 12th Street Loop in Kansas City without making irregular and violent jerks sufficient to throw a person from the car, owing to the impossibility of regulating the slack in the cable and other mechanical devices under the circumstances therein shown. Obviously, the cases of injuries to passengers on a freight train by lurches in its movement, as in Hedrick v. Railroad, 195 Mo. 104, can have no relevancy to this case. Such violent jerks, as described in the petition in this case, might be usual and ordinary in the operation of a cable car or a freight train, but, in our judgment, not ordinary or usual, but extraordinary or unusual, in the operation of a crowded electric street car. Electric street cars are obviously much more regular, stable and uniform in their movements, than cable cars or freight trains.

We rule, that the petition stated a cause of action.

II. Did plaintiff’s main instruction require the jury to find that the jerk was unusual or extraordinary? Said instruction required the jury to find “that [while] said car was proceeding on its way along the usual roure of said car between Vandeventer Avenue and Kingshighway defendant’s’ servants in charge of said car caused or permitted said car to be suddenly and violently started and jerked forward with such force as to throw someone who was riding in the inside of said car against the glass entrance-door, and that in co starting said car forward (if you so find) said servants acted negligently, as that term is defined in another instruction; that the glass was thereby broken from said door, and that some of the glass struck the plaintiff in his eyes and injured him, then your verdict will be in favor of the plaintiff and against the defendant.” This instruction follows the allegations of the petition and the petition being sufficient, it follows that this instruction is also sufficient (if the facts therein submitted to the jury are found to be true), to constitute an unusual and extraordinary movement of said car, which rendered the defendant liable to plaintiff for any injury he sustained therefrom. It is not denied that the plaintiff’s evidence tended to show< the facts alleged in the petition and hypothecated in said instruction. As stated by the Court of Appeals in its opinion:

“The car in question was of the pay-as-you-enter type. The plaintiff boarded the car at Jefferson Avenue, and on account of the crowded condition of the car stood on the back platform close to the entrance door which led from the platform into the body of the car. Plaintiff testified that when the car arrived west of Vandeventer Avenue and somewhere between there and Kings-highway and as he was standing close to this entrance door, the car gave a terrific lurch and that there was a man standing just inside of the entrance door with his back towards the door and about eight or ten inches from the door, and as the car gave the lurch, it threw this man backward off of his feet, causing him to fall against the glass in the door, breaking it into many fragments, some of -which fell into plaintiff’s face and eyes. Plaintiff introduced a passenger on the ear who testified as to the lurch, stating that the car gave a lurch and started too fast, throwing a man on the inside against the door, breaking the glass and causing it to fall against the plaintiff. Another witness for plaintiff testified that as the car started up suddenly a man inside was thrown against the door, breaking the glass.
“Defendant’s evidence tended to show that as the street car was going westwardly in the usual manner and that just west of Vandeventer Avenue and while running over a switch which intersected the track, a man was entering the car carrying bundles in his arms and the bundles went against the door, breaking the glass; that there was no unusual movement of the car and no sudden or unexpected jerk, and that the. only motion of the car was the ordinary motion necessarily incident to the operation of the street car over the switch.”

Said instruction as to such loss of earnings “In estimating such dam-III. Is plaintiff’s instruction numbered 3 on the measure of damages erroneous, because it contains no limit as to the amount of special damages for loss of earnings was as follows: ages to which plaintiff may be entitled, if any you may take into consideration . . .' the reasonable value of plaintiff’s time which you may believe from the evidence the plaintiff lost, if any, as a direct result of said injury, if any, whether his earning capacity has been reduced, as a direct result of said injuries, if any, and what effect, if any, his injuries, if any, will have on his earning capacity in the future. ’ ’ There was no specific limitation in the instruction as to the amount that might be allowed the plaintiff for his loss. of time and loss of earning capacity. The allegations in the petition, as to the loss of earnings, are as follows: “Plaintiff says, that prior to his injury aforesaid, he was engaged in the business of buying and selling brooms at wholesale, and was a salesman of merchandise to the retail trade, and earned an average of five dollars per day; that since bis injury, lie lias been unable to attend to bis business, and lias lost bis earnings; that bis earning power lias been permanently impaired; that he will continue to lose the earnings of bis business; that be will be permanently unable to follow bis former business, or any other business.” It is contended that this language of the petition limits both the past and future earnings of plaintiff to $5 per day. We do not so construe it. In our opinion, this language simply puts a limit on the plaintiff’s loss of earnings prior to the filing of the petition, to an average of $5 per day; that there was no such limit put, or .intended to be put, upon bis future earnings. We agree to’what was said.by the St. Louis Court of Appeals in Jackson v. United Rys. Co., 227 S. W. 617, as to a very similar allegation:

“The allegation in the petition in regard to the question of such earnings is as follows:
‘ ‘ She has lost the earnings of her labor and avocation to the date of the filing of this petition, to-wit, in the sum of $14 per week, which she was earning at the time of her injuries, and will lose such earnings in the future.’
“Does that allegation limit the amount of such future earnings to $14 per week? It is not reasonable to suppose that the pleader intended to limit the lost future earnings to $14 a week, as there was no means of knowing bow much plaintiff would earn in the future. Nor does the language used in fact limit the alleged loss to that sum. It appeared by other allegations that the plaintiff was a skirt-maker, and the words ‘such earnings in the future’ referred to the earnings of her labor and avocation as a skirt-maker, but not at the rate of $14 a week, and it is nowhere said that such future earnings will amount to that sum or any other sum. ‘Such earnings’ mean earnings of a like character as had been earned; that is, earnings as á skirt-maker.
“Inasmuch as defendant did not in any wise attack the allegation by motion, and considering the fact that pleadings must be taken in their natural and ordinary meaning and their allegation liberally construed (Sec. 1831; R. S. 1909), especially after verdict and judgment, we do not regard the allegation referred to as placing a limit of recovery on the item of lost future earnings.”

There being no limit fixed in the petition, as to the loss of future earnings, said instruction is not erroneous so far as it concerns future earnings, under all the authorities. Nor was it erroneous as to loss of earnings or loss of time (which is the same thing, Slaughter v. Railroad, 116 Mo. 269) from the time of the injury up to .the filing of the petition, because the evidence was that the plaintiff earned only $4 a day or $100 per month, which was less than $5 per day, the amount fixed in the petition.

In Shinn v. United Rys. Co., 248 Mo. 173, where the special damages claimed in the petition were greater that the special damages proven by the evidence, and there was no limit fixed in the instruction, this court, per Lamm, J., said: “We will not speculate on what the jury might do, or airily conjecture this or that. We stand on the proposition that the jury are presumed, absent anything to the contrary appearing, to obey their oaths and bring in a verdict according to the evidence. Being men of sense and acting under an oath freshly taken, they are entitled to that presumption. ” It is true that in that ease it was not decided whether the fact that the evidence showed less special damages and earnings than specially alleged in the petition would render the generality of the,instruction on the measure of damages free from objection or reversible error, but the court expressly reserved the decision on that point to some future case which might turn upon it. But we think the suggestion of the learned judg’e in that case, that “we stand on the proposition that the jury will obey their oaths and find a verdict according to the evidence,” is a sound proposition, and that, therefore, where the evidence' of lost earnings is less than the amount limited in the petition, the jury will be presumed to follow the evidence and allow less than is limited in the petition for such, item of damages, although there is no express limitation in the instructions other than as in this case. The instruction in this case limits the amount of past and future earnings the plaintiff may recover to the reasonable value thereof which the jury may believe and find from the evidence plaintiff has and will lose. If the jury regard their oaths at all, they would be guided by said instruction, and obey the evidence. If the jury would disregard their oaths, they would also disregard the instruction, even if it contained a further express limit as to such special damages. It is only in case the amount of the special damages, as shown by the evidence, is or may be greater than the amount specified in the petition, that there is any necessity for inserting such limitations in the instruction. The cases relied on by appellant do not decide otherwise.

In the case of Smoot v. Kansas City, 194 Mo. 513, it does not appear that the earnings proved were less than the amount claimed in the petition. This is also true as to the case of Tinkle v. Railroad, 212 Mo. 445, where the amount of the doctor’s bill proven does not appear. In the case of Radtke v. Basket & Box Co., 229 Mo. 1, the petition limited the loss of earnings to nine dollars per week. But the opinion does not state the amount of the earnings or earnings per week which the evidence tended to prove. In Finley v. United Rys. Co., 238 Mo. 6, the petition set a limit of three dollars per day as the amount of lost earnings, whereas the evidence showed such lost earnings to be three dollars to five dollars per day, a greater amount than sued for, and there should have been a limitation in the instruction to prevent the plaintiff from recovering a greater sum than sued for. It is well established law, that the generality of an instruction on the measure of damages in personal injury suits, does not constitute reversible error, unless the defendant asks instructions specifically pointing out the proper lines of limitation for the jury to follow in arriving at the amount of damages. [Hoover v. St. Louis Elec. T. Railroad Co., 227 S. W. l. c. 79, citing Browning v. Railway, 124 Mo. 71; Powell v. Railroad, 255 Mo. l. c. 456, and numerous other cases up to and including Sang v. St. Louis, 262 Mo. 463.]

The Kansas City Court of Appeals, following our suggestion in the Shinn Case, supra, has ruled in the following cases that, where the amount of the special damage proven is less than the amount specified in the petition, it is not reversible error for the court not to expressly limit in its instructions the amount of the special damages, for the reason that the jury will be presumed to follow their oaths and the instructions of the court to allow no greater sum for sucludamages than is shown by the evidence. [Campbell v. Chillicothe, 175 Mo. App. 436; Summers v. Railroad, 187 S. W. 125; Bell v. United Rys. Co., 183 Mo. App. 334; Morris v. K. C. Rys. Co., 223 S. W. 784; Erdmann v. United Rys. Co., 174 Mo. App. 245.] We regard this doctrine as sound law. We, therefore, hold that plaintiff’s instruction on the measure of damages contains no reversible error. The defendant not having asked for any instructions limiting the amount of earnings, plaintiff was entitled to recover. We approve the ruling of the Kansas City Court of Appeals on this subject in the above cited cases, and disapprove the rulings of the St. Louis Court of Appeals, holding said instruction was erroneous or constituted reversible error in this case.

■ IV. Does instruction numbered 3 permit double recovery for a single loss, to-wit, loss of time and impaired. earning capacity in the past? We think it does not. Loss of time and loss of earning capacity do ^ constitute separate and distinct items of loss. In Slaughter v. Railroad, 116 Mo. l. c. 275-6, this court said: “The distinction sought to be made between ‘loss of time’ and ‘loss of earnings’ for that time does not exist in law. The damages to be awarded in either case is the pecuniary value of the time lost, and either expression sufficiently indicates the measure. In common acceptation they are one and the same thing.” So that permitting .plaintiff to recover for time lost and reduced earning capacity in the past, does not allow him a double, but simply a single recovery for such loss of time, or which is the same thing, decreased earning capacity.

V. Was error committed in allowing evidence as to plaintiff’s loss of profits or earnings'? The evidence tended to prove that the plaintiff was incapacitated from pursuing, among other things, his ordinary avocation; which, prior to his injury, had been that of a wholesale dealer in brooms in a small way. that he had purchased brooms from the manufacturers; that he had no storeroom, but kept such brooms at his dwelling house'; that he went around and took orders for brooms and then delivered them or shipped them to the purchaser; that he was in business alone; that he kept no books; that he had been in such business several years prior to his injury, and that his net profits or-earnings he estimated would average one hundred dollars per month, or about four dollars per day.

The appellant objected to the admissions of this testimony, for the reason that such earnings were too speculative; that respondent kept no books, and there was no means of ascertaining with reasonable certainty what the net profits or earnings of his business were. We do not regard the objections to this evidence well founded. In this case, plaintiff’s loss was more in the nature of lost personal earnings than the loss of the profits of a regularly established mercantile business, because he alone conducted his business, and its profits depended wholly upon his ability to personally go around and solicit orders for.and sell and deliver the brooms. The mere fact that plaintiff kept no books and could not tell precisely the net profits of his work or business should not deprive him of any just claim for loss of time or earnings. This is well illustrated in the case of Devoy v. Transit Co., 192 Mo. l. c. 223-4, where the plaintiff, an aged attorney, who “thought his earnings were in the neighborhood of $2,500 a year, if he could figure it np.” But he kept no books, had no regular clientele or office, but kept his books and office “in his hat,” and his business was that of assisting other attorneys to “settle” or “shore-up” their cases. He, however, was allowed for lost earnings such sum as the jury might believe from the evidence he sustained, “however ambiguous the evidence.” This case was recently cited and approved by this court in Ganz v. Railroad, 220 S. W. 495. So, it is well settled that in actions by parents for damages for the loss of services or earnings of minors, evidence of the minor’s age, previous health and condition in life is sufficient to enable the jury to determine the minor’s earning capacity and the parent’s loss, aided by the knowledge and experience of the jury. [Meeker v. Union Elec. Light & Power Co., 216 S. W. 933.]

So that we must rule this contention against the appellant.

VI. Appellant further insists that the court erred in refusing to admit certain testimony of a witness, a passenger on the car, as to whether the jerk or jar complained of by the plaintiff was of suf-force to throw a man down, while standing in the car. The foil owing, colloquy took place:

“Q. Please describe what you saw occur there at that time. A. "Well, a man got in the car with a bundle in his arm and the car gave a little kind of a curve going across the intersection there, and his bundles went against the window.
“Q. Was there any violent jerking or lurching of of the car at that time? A. Oh, no.
“ Q. Any motion more than they usually make? A. Only going over the crossing; when they go over a double crossing, that’s all.
“Q. Just the ordinary motion? A. It wasn’t enough to throw a man; that is, to overbalance a man.
“Mr. Hay: Well, I object to tbe conclusion of tlie witness.
“The Court: All right, the objection will be sustained.
‘‘ To which action and ruling of the court defendant, by its counsel then and there duly. excepted and still excepts.
“Mr. Farley : Q. Well, compared with the way cars usually run at such a place, is that how this car ran? A. It ran very smooth to me.
“Mr. Farley: Take the witness.”

We think the testimony was admissible as properly descriptive of the force of the jerk. [Rearden v. Railroad, 215 Mo. 134-38.] But the testimony was, in effect, admitted. The question was not objected to until after it was answered. It is true, objection was then made and sustained, but the answer was before the jury, and there was no motion to strike it out, and it was not stricken out. In any event, we .should not regard the error as reversible, nor as affecting the merits of the case, because the witness had previously answered without any objection whatever that there was no unusual nor extraordinary jar or jerk, which completely covered the point at issue.

VII. In appellant’s formal assignment of errors in its brief, one of the errors assigned is that the verdict was excessive; but under the heading in said brief, of points and authorities, nothing is said as to the amount of the verdict. In the further argument contained in the brief, however, the verdict is referred to as large and excessive. The verdict was for $5,000.

The plaintiff, as to his injuries, testified: That he was fifty-three years of age. That before the accident, his sight in both eyes was good — normal. That the glass was broken into almost innumerable fragments and thrown right into his face and both eyes. That he was almost “knocked blind” with glass which came into his eyes. “It produced terrific suffering. It seemed like my eyes were being almost cut out with the glass. ’ ’ That be immediately consulted and was treated by an oculist. But that Ms right eye, by reason of the accident, became turned to one side, so that he has but little sight in it. He cannot see ordinary print or even display-headlines with it. Could not read a single word with the right eye, and the sight in his left eye had also failed very much since the accident. That he was also disfigured, in that, whereas before the accident, both of his eyes were straight and in a normal position in his head, after the accident, and by reason thereof, his right eye had a “divergent strabismus,” that is, he became “cock-eyed” in the right eye. That ever since the accident, up to the time of the trial, both eyes had been in a state of severe pain, so much so that he never got any rest, ‘ ‘ practically. ” “ That is, insane pain at night, I hardly get any sleep at all; and they have been sore and in a very distressed condition continually; they have been inflamed and feverish. ’ ’ He further testified that after the accident he felt his right eye draw to one side and has since been unable to work. Photographs of'plaintiff, one when he was a child, one when a young man, and one taken, as he testified, about six or eight years before his injury, showed that his eyes were straight.

A number of lay witnesses testified for plaintiff, that his sight was good, and that his eyes were straight, before the accident. Some witnesses testified for defendant to the contrary, that plaintiff’s right, or one of his eyes, was defective before the accident. There was also some dispute between the expert testimony of the plaintiff and of the defendant. The plaintiff’s expert oculist testified that his right eye might have been diverted from its natural position by the injuries he sustained. Whereas, the defendant’s expert oculist testified that he was the oculist to whom plaintiff first went for treatment after the accident; that he found no particles of glass or injury to the right eye, but that it was diverted when plaintiff first came to him, and the injuries he discovered could not have caused the diversion of his right eye. But it was shown that some years previously this' witness had been the regular physician for the defendant company, and at the time plaintiff came to him was occasionally consulted by an oculist by defendant; and that while h'e was treating the plaintiff, he communicated to the defendant plaintiff’s condition, of which he did not inform the plaintiff, and of which the plaintiff was not aware.

In view of the conflicting evidence on the subject, we cannot say that the verdict was so excessive as to indicate that the jury were not governed by the weight of the evidence as they honestly believed it to be.

Finding no reversible error in the case, the judgment of the court below is affirmed.

Ragland, C., concurs; Brown, C., absent.

PER CURIAM: - The foregoing opinion by Small, C., is adopted ak the opinion of the court.

All of the judges concur, except Graves and Elder, JJ., who dissent.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    THE STATE ex rel. CONTINENTAL INSURANCE COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    November 30, 1921.
    1. CERTIORARI: To Court of Appeals: No Previous Ruling: Errors. It is not tlie province of the Supreme Court upon certiorari to the Court of Appeals, based upon conflict of decisions, to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced conclusions of law contrary to the last previous ruling of the Supreme Court upon the same or a similar state of facts.
    2. -: -: Proximate Cause: Injury From Explosion: Leakage. The defendant insurance company brought action on an insurance policy -,'liieli insured plaintiff’s stock in trade against all direet loss or damage by sprinkler leakage except that the company should not be liable for (a) “loss by fire, however caused,” or (b) “for loss resulting from leakage of water, if such leakage is caused directly or indirectly by fire,” or (c) “for loss caused by lightning, cyclone or explosion.” The steel top of the hot well, connected with the boiler by a pipe, was blown off by an explosion, and in its course upward broke one of the water pipes of the sprinkler system, which immediately started the flow of water, resulting in the damage to plaintiff’s property. The Court of Appeals held that the company did not exempt itself from loss by leakage by the clause which exempted it from “loss caused by explosion,” that the word “explosion” did not relate back to the word “leakage,” and that the explosion did not relieve the company from the payment of damages for the loss caused by the leakage. Held, upon certiorari, that said ruling does not contravene any prior decision of the Supreme Court, for the Supreme Court has not declared the law on a similar state of facts.
    3. : : Constitutional Questions. On certiorari to the Court of Appeals, based upon conflict of decisions, the Supreme Court will not extend its inquiry beyond the opinion and any pleading, instruction or written instrument referred to therein; and an assignment that “the effect of the decision of the Court of Appeals is to deprive relator of its property without due process of law, and to deny it the equal protection of the law,” contrary to certain sections of the State and Federal constitutions, presents mere abstract propositions, suggestive of an appeal or writ of error rather than a writ of certiorari, and will not be considered where the opinion of the Court of Appeals does not disclose that such constitutional question was presented or involved.

      Certiorari.

    Writ quashed.

      Leahy & Saunders for relator.
    (1) The Court of Appeals correctly decided that the hot-well connected with the boiler exploded, and, therefore, the sprinkler leakage system was broken by an explosion. Webster’s Dictionary, defining “explosion;” The Century Dictionary, defining “explosion.” The term explosion in a policy is to be eontrued in its ordinary and popular sense, and the word explosion in such policy should be construed to mean what an ordinary man would understand by such word. (2) The court in this case incorrectly contrued the term “cause,” as applied to the exception in the sprinkler leakage policy, exempting the company from liability for “loss caused by an explosion,” and erred in holding that, while the explosion broke'the sprinkler leakage system and caused the water to flow therefrom and damage plaintiff’s goods, the explosion was not the proximate cause of the loss. Dixon v. Omaha & St. Louis Railroad Co., 124 Mo. 140, 149; Kane v. Pacific Railway Co., 251 Mo. 13, 27; Bellows v. Travelers Ins. Co., 203 S. W. 978; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Frisbie v. Fidelity & Casualty Co., 133 Mo. 32, 35; Insurance Co. v. Boon, 95 U. S." 117; Driskell v. U. S. H. & A. Ins. Co., 117 Mo. App. 362; Baehr v. Union Casualty Co., 133 Mo. App. 541; Hooper v. Standard Life & Accident Ins. Co., 166 Mo. App. 209; Goodes v. Order United Commercial Trav., 174 Mo. App. 330; Greenlee v. Kansas City Casualty Co., 182 S. W., 138, 192 Mo. App. 303. (3) The great weight of authority on the question of proximate cause in policies containing exceptions identical with this one is to the effect that the doctrine of proximate cause applies and cannot be frittered away by refinements of language and mysterious intervening causes which cannot be defined or even described. Insurance Co. v. Tweed, 7 Wall. 44; Approved in Atchison v. Calhoun, 213 U. S. 7; Frisbie v. Fidelity & Casualty Co., 133 Mo. App. 30; Cohn v. National Insurance Co., 96 Mo. App. 315; German-American Insurance Co. v. Hyman, 94 Pac. 27; Mitchell v. Potomac Insurance Co., 183 U. S. 42; German Fire Insurance Co. .v. Roost, 45 N. E. 1097; Story v. The Sun Mutual Insurance Co., 91 N. Y. 103; St. John. v. American Mutual Fire & Marine Insurance Co., 11 N. Y. 516; Evans v. The" Columbian Insurance Co., 44 N. Y. 146; Hustice v. Phoenix Insurance Co. of Brooklyn, 175 N. Y. 292; Insurance Co. v. Boon, 95 U. S. 117; Hayward v. Insurance Co., 3 Keyes (N. Y.) 456; Hayward v, Insurance Co., 2 Abbot Decisions (N. Y.) 349; Heuer y. Insurance Co., 144 Ill. 393; Hallander v. Jefferson Mutual Fire Insurance Co., 218 S. W. 419. (4) The plaintiff in this case was permitted to shift its position in the appellate court from the position taken by its pleadings and evidence in the trial court to the effect that there was no explosion, contrary to the following-controlling’ decisions of this court. Dougherty v. Gan-gloff, 239 Mo. 660; Henry Co. v. Citizens Bank, 208 Mo. 226. In the trial court it contended there was no explosion; in the appellate court it contended there was an explosion. Renshaw v. Insurance Co., 103 Mo. 595; Maupin v. Southern Insurance Co., 220 S. W. 20. (5) The effect of the decision of the Court of Appeals is to deprive relator of its property without due process of law, and to deny it the equal protection of the law, contrary to Section 30 of -Article 2 of the Constitution of Missouri, and to the Fourteenth Amendment to the Constitution of the United States, and to impair the obligation of the contract, contrary to Section 10, Article 1 of the Federal Constitution. Allgeyer v. La., 165 U. S. 578; Lochner v. New York, 198 U. S. 45. (6) Insurance policies are to be construed as ordinary contracts, though ambiguities therein are to be resolved against the insurance company, and exceptions are to be strictly construed against the insurance company: Renshaw v. Insurance Co., 103 Mo. 595, 604; Maupin v. Southern Ins. Co., 220 S. W. 20. (7) Insurance policies must be construed with reference to their subject-matter and a sprinkler leakage policy cannot by the legerdemain of construction be converted into a boiler insurance policy, a cyclone policy and an earthquake policy. No premium is paid the insurance company for assuming such risks, and the policy should not receive such a construction. •

      Leonard, Sibley & McRoberts and Shepard Barclay for respondents.
    (1) The policy makes clear and plain distinction between direct and indirect consequences of facts mentioned as exceptions to the risk assumed of damage by leakage of water. When such distinction is expressed, the courts will give effect thereto. Ins. Oo. y. Robinson, 64 Ill. 285 (explosion of lamp), cited and followed as authority in Missouri in. Renshaw v. Ins. Co., 103 Mo. 611; Straus v. Ins. Co., 94 Mo. 182. See aso Pac. Heating Co. y. Ins. Co., 9 Cal. App. Dec. 157, 158 Cal. 367; Win-spear v. Ins. Co., 6 Q. B. Div. 42; Lawrence y. Ins. Co., 7 Q. B. Div. 216; Montgomery y. Ins. Co., 242 Pa. 86. (2) On the undisputed facts, the so-called “explosion” was not a direct cause of any damage by water; but only a secondary or indirect cause, and not v/ithin the exception. Renshaw v. Ins. Co, 103 Mo. 595; Ins. Co. v. Robinson, 64 Ill. 265; Ileffron v. Ins. Co., 132 Pa. 580; Ins. Co. v. Willard, 164 Fed. 404, 212 U. S. 581; Ins. Co. v. Stanton, 191 Fed. 813; Joyce, Insurance (2 Ed.) sec. 2590; Ins. Co. v. Parker, 23 Ohio St. 85; Mfrs. Ind. Co. v. Dorgan, 58 Fed. 945; Ins. Co. v. Corlies, 21 Wend, 367; Briggs v. Ins. Co., 66 Barb. 325, 53 N. Y. 447; Yorse v. Ins. Co., 119 Iowa, 555; Montgomery v. Ins. Co., 242 Pa. 86. (3) The facts, which relator claims constitute an “explosion,” were submitted to the jury in the trial court. Plaintiff contended in the Court of Appeals .that the word “explosion” imports combustion in some form, which was absent here; citing on that point: Joyce, Insurance (2 Ed.) sec. 2768; Century Dictionary, “explode,” p. 2083; Ins. Co. v. Rup-ard, 220 S. W. 538; Mill Co. v. North British Co., 139 Fed. 637; Fitzgerald y. Ins. Co., 62 N. Y. Supp. 824; Stanley v.' West Ins., L. R. 3 Ex. 71; Babcock v. Ins. Co., 4 N. Y. 326; Bird v. Ins. Co., 224 N. Y. 47. But the learned opinion in the Court of Appeals held that the facts disclosed an “explosion” as matter of law. So respondents submit that relator has no ground to complain of that ruling. (4) The defendant had the burden of proof to maintain its plea that the loss was directly caused by facts within the exception of the policy. Ins. Co. v. Rupard, 220 S. W. 538. But defendant did not discharge the burden. The jury found against its plea; so that, even if its plea bad any support in tbe evidence, tbe adverse finding' by tbe jury on its own instruction as to tbe “direct cause” of tbe damage would bar a reversal of tbat result. G-annon v. Gas Co., 145 Mo. 502; Johnson v# Grayson, 230 Mo. 394; Siedenkranz v. Lodge, 199 S. W. 451. (5) Ambiguity in a policy (as to liability of the insurer) should be construed favorably to tbe insured. Rensbawv. Ins. Co., 103 Mo. 611; Sutton v. Ins. Co., 208 S. W. 499; Ethington v. Ins. Co., 55 Mo. App. 129; Malin v. Ins. Co., 219 S. W. 143; Union v. Colehouse, 227 Ill. 565; Rieger v. London Co., 215 S. W. 920.
   ELDER, J.

This is a proceeding in which relator seeks by writ of certiorari to review tbe decision of tbe St. Louis Court of Appeals and quash tbe judgment entered by tbat court in tbe case of American Paper Products Company, respondent, v. Continental Insurance Company, appellant, (relator herein).

Tbe action brought was upon an insurance policy issued by relator to tbe aforesaid respondent, American Paper Products Company, insuring its stock in trade against all direct loss or damage by sprinkler leakage, except as provided in tbe policy, such proviso being as follows, to-wit:

“This company shall not be liable for loss by fire, however caused; nor for loss resulting from tbe leakage of water, if such leakage is caused directly or indirectly by fire; nor for such loss due to stoppage or interruption of any work in plant unless liability for such loss is specifically assumed herein; nor for loss caused by lightning (whether fire ensues or not), cyclone, tornado, windstorm, earthquake, explosion or blasting . . . nor for loss caused directly or indirectly by the fall or collapse of any building or any part thereof, unless such fall or collapse is caused by the accidental leakage of water from automatic sprinkler system, or the tanks supplying it. ” (Italics ours).

The case was tried before a jury, in the Circuit Court for Lincoln County, and a verdict was returned in favor of the Paper Products Company for the amount of damage claimed, to-wit, $1,754.71, and for attorney’s fees and damages for vexatious dellay. After a remittitur of the items for attorney’s fees and damages for delay, judgment was entered for $1,754.71. Upon appeal to the St. Louis Court of Appeals, this judgment was affirmed.

The facts in the case are thus stated in the opinion of the Court of Appeals:

“Plaintiff maintained at its plant an engine and boiler room in a one-story frame building, in the basement of which was stored the paper stock that was damaged by water. The building was equipped with an automatic sprinkler system, the sprinkler pipes being about one foot below the ceiling, which was twelve feet from the floor. At a certain degree of heat the sprinkler heads open, and under-pressure water flows from the pipes and floods the building, thereby extinguishing the fire. About three feet from the steam boiler which was situated in this boiler room, and under the floor of the boiler room, embedded in the ground, was what is termed a ‘hot-well,’ the top thereof being about one foot under the surface. This hot-well is connected with the 'boiler by a pipe and is also connected with the sewer, its object being to change the water in the boiler, letting the impurities of the water that settle in the bottom of the boiler flow out through the hot-well into the sewer. This hot-well is constructed of iron and'steel, having a steel top one-half inch thick and thirty inches in diameter, and which is fastened to the flanges of the hot-well by means of nine iron bolts one-half inch thick, the said top weighing from 350 to 200 pounds.
“In the early morning of February 20, 1916, this 150 or 200-pound steel top of the hot-well suddenly left its position, breaking and tearing away nine, one-half-inch iron bolts, passed through the floor of the building, on through the roof thereof, tearing a hole five feet in diameter, and landed npon a railroad track some thirty-five to fifty feet away.
“Plaintiff’s expert witness testified on cross-examination that it wonld require a pressure of 495,000 pounds to release the top of this hot-well. In its course upward it broke the heavy timbers of the roof and also one of the water pipes of the sprinkler system, which immediately started the flow of water resulting in the damage to plaintiff’s property. The accident is explained by expert witnesses for the plaintiff and also for the defendant as being caused by the cocks in the pipe connecting the boiler with the hot-well being suddenly opened and thereby allowing hot water from the boiler to be rushed with terrific power through the pipe into the hot-well, the water in the boiler being at a high temperature with a terrific power of steam behind it. The water in the hot-well being cool, and this volume of hot water from the boiler being suddenly forced into the cold water caused, according to defendant’s witnesses, an explosion. By plaintiff’s expert witness it is called a water hammer, which, in his opinion, might result in the cover of the hot-well being forced from its position, which was termed by the witness a rupture.”

Relator, in its petition for our writ, and in its brief, presents various matters wherein it claims that the opinion of the Court of Appeals conflicts with controlling decisions of this court. These, with the particulars pertinent thereto, we shall discuss in the course of the opinion.

I. Relator contends that the Court of Appeals “incorrectly construed the term ‘cause,’ as applied to the exception in the sprinkler leakage policy, exempting the company from liability for ‘loss caused by an explosion,’ and erred in holding that, while the explosion broke the sprinkler leakage system and caused the water to flow therefrom and ’damage plaintiff’s goods, the explosion was not the proximate cause of the loss.” As relevant to this contention, and as definitive of the term “proximate cause,” learned counsel for relator cite Dixon v. Omaha and St. Louis Railroad Co., 124 Mo. l. c. 149; Kane v. Mo. Pac. Ry. Co., 251 Mo. l. c. 27; Bellows v. Travelers Ins. Co., 203 S. W. 978; Fetter v. Fidelity & Casualty Co., 174 Mo. 256.

That portion of the opinion of the Court of Appeals which is pertinent to the error assigned is as follows:

“The policy provided that the company shall not be liable'for loss (1) by fire, however caused; (2) nor for loss resulting from a leakage of water, if such leakage is caused directly or indirectly by fire; (3) nor for loss due to stoppage of work, etc.; (4) nor for loss caused by lightning, cyclone, . . . explosion, etc;; (5) nor for loss caused directly or indirectly by invasion, insurrection, riot, etc.; (6) nor for loss by theft; (7) nor for loss caused directly or indirectly by the neglect of the insured to use all reasonable means to save and preserve the property; (8) nor for loss caused directly or indirectly by the falling or collapse of any building, etc.
“It should be noted that the part of the exception relied on and standing alone is an exemption from loss caused by an explosion, and not an exemption from loss resulting from leakage of water caused directly or indirectly by an explosion. If the clause read: ‘Nor for loss by leakage of water caused- directly or indirectly by explosion,’ there would be no doubt of defendant’s exemption from liability under the admitted facts of the case.
“While it is true that an insurance contract, like other contracts, is construed so as to give effect to all of its provisions if possible and its terms are accepted in their plain and ordinary sense, it is equally true that in construing exceptions inserted in the policy by the company which attempt to exempt it from certain specified risks, such exceptions, in the event of doubt, are to be construed strictly against the insurer. [Laker v. Royal Fraternal Union, 95 Mo. App. 353, 75 S. W. 705 ; Joyce on Insurance (2 Ed.) p. 579.] Likewise, in the event of an ambiguity in the language used to limit the liability of the insurer, the language is to be construed in favor of the insured and against the insurer. [Renshaw v. Ins. Co., 103 Mo. 611, 15 S. W. 945.]
“Bearing these rules in mind, is it clear that it was intended that the policy should not cover the loss by leakage of water caused by an explosion, when it provided ‘nor for loss caused by explosion?’ Shall the law by implication write into the exception the words ‘by leakage’ preceding the word ‘cause?’ We think not. When the company exempted itself in the same paragraph of exceptions from loss by fire, it very plainly stipulated against ‘loss by fire, however caused, and from loss resulting from the leakage of water, if such leakage is caused directly or indirectly by fire.’ But when it came to the exemption on account of an explosion, all reference to leakage is omitted and the language used is ‘nor for loss caused by an explosion.’
“Having in mind the rules of construction in such cases, we think this exemption only covered such loss as the plaintiff’s goods suffered directly by the explosion, and not the loss by leakage of water that followed the explosion, although such leakage of water was caused by the explosion.
“We aré without authority in this State, but similar provisions in policies have been thus construed in other jurisdictions. ’ ’

Following the latest rulings of this court, and as preliminary to a consideration of the question presented by relator, we hold that it is not our province to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. [State ex rel. American Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Peters v. Reynolds, 214 S. W. l. c. 122; State ex rel. Mechanics Amer. Natl. Bank v. Sturgis, 208 S. W. l. c. 462; Majestic Mfg. Co. v. Reynolds, 186 S. W. 1072.]

Proceeding to an examination of the cases cited by relator in support of its insistence, we find that Dixon v. Omaha & St. L. Railroad Co., supra, involves the liability of defendant for the death of its engineer, caused by the collision of the train with a bull which had come on the track through a defect in the company’s right-of-way fence, such defective fence being held to have been the proximate cause of the accident. Kane v. Missouri Pacific Ry. Co., supra, was a suit for personal injuries alleged to have been sustained through the derailment of an engine upon which plaintiff was acting as pilot. The ruling there announced was to the effect that to establish that the absence of splashers in the tank of the tender and of side bearings in the front trucks was the proximate cause of the derailment of the engine, it must have appeared with reasonable certainty that if they had been present the derailment would not have occurred, and the burden was on plaintiff to show that fact. Bellows v. Travelers Ins. Co., supra, holds that where an insured, in good health, was severely beaten by footpads in September, 1912, and there was evidence that the internal effects of the beating caused kidney trouble, which progressed until he died in June, 1913, the jury were justified in finding that death resulted, directly and independently of all other causes, from the effect of the injuries received. Fetter et al v. Fidelity & Casualty Co., supra, holds that where an insured in attempting to close a window lost his equilibrium and was thrown against a chair, causing a rupture of a kidney, from which rupture was produced a hemorrhage which caused death, and an autopsy revealed a cancerous condition of the kidney, it was for the jury to decide whether the cancerous condition resulted from the rupture or whether the rupture would not have occurred had there not been a previous weakened cancerous condition already existing. Frisbie v. Fidelity & Casualty Co., supra, is not reported as cited.

It is obvious that none of these cases involve facts analogous to the facts stated in the opinion of the Court of Appeals under review. It is equally obvious that the rulings in those cases in no way conflict with the conclusions of law announced by the Court of Appeals. Nor from our investigation do we find any case wherein we have declared the law on facts similar to those here present. Accordingly, it follows that we are not called upon to determine whether the views of the Court of Appeals, as quoted, are correct or incorrect; therefore the point made is ruled against relator.

II. Eelator further urges: First, That “the plaintiff was permitted to shift its position in the appellate court from the position taken by its pleadings and evidence in the trial court, to the effect that there was no explosion,” contrary to Dougherty v. Gangloff, 239 Mo. l. c. 660, and Henry Co. v. Citizens Bank, 208 Mo. l. c. 226. Second, That “the effect of the.-decision of the Court of Appeals is to deprive relator of its property without due process of law, and to deny it the equal protection of the law, contrary to Section 30 of Article II of the Constitution of Missouri, and to the Fourteenth Amendment to the Constitution of the United States, and to impair the obligation of the contract, contrary to Section 10, Article 1, of the Federal Constitution.”

In so far as the opinion of the Court of Appeals, or any matter referred to therein, is concerned, these contentions are but abstract propositions presented as suggestive of an appeal or writ of error, rather than a writ of certiorari. We are not referred to any passage of the opinion wherein the shifting of positions by plaintiff is indicated or adverted to, nor does an examination of the opinion disclose how any constitutional/question, State or Federal, is presented or involved. While there has been some diversity of opinion among the members of this court as to the scope of our review in certiorari proceedings when directed against the Courts of Appeal, we have not extended our inquiry beyond the opinion and any pleading, instruction, or written instrument referred to therein. [State ex rel. Kansas City v. Ellison, 220 S. W. 498; State ex rel. Hayes v. Ellison, 191 S. W, l. c. 53; State ex rel. Heine Safety Boiler Co. v. Robertson, 188 S. W. l. c. 102.] Manifestly, therefore, the errors suggested by relator, are not for onr consideration.

In passing upon the various matters urged by relator, we have adhered to the functions of a writ of cer-tiorari as declared by this court in its latest pronouncements. Much that is pressed upon our attention is beyond our sphere of authority, when measured by the remedy sought to be invoked.

Our conclusion is that the writ in this case was improvidently granted and should be quashed. It is so ordered.

All concur.


text:
    JOHN H. SAWYER et al., Appellants, v. EMMA FRENCH.
    In Banc,
    November 30, 1921.
    1. PARTITION: Action at Law: Appellate Practice. If no equitable features are alleged in a partition suit, either in the petition or answer, and no equitable relief is prayed, the issues are strictly legal, and the decision on the facts of the court sitting as a jury is binding on the appellate court -and the evidence cannot be considered cLe novo on appeal.
    2. DEED: Re-executed: Self-Serving: No Objection. Whether or not a deed, reciting that a former and lost deed was made to a husband and wife, made to the surviving wife ten or twelve years after th^ husband’s death, without the knowledge of his heirs, was an inadmissible self-serving declaration on the part of the wife and was mere hearsay in the partition suit between the heirs of the husband and the grantee of the wife, will not be decided on appeal, where said appellant heirs made no objection at the trial to the introduction of said deed in evidence.
    3. -: -: Inadmissible: No Objection: Probative Force. Inadmissible evidence, including hearsay, admitted without objection, is not.a nullity or void of probative force, but is to be given its natural probative effect as if it were in law admissible. A recital in a deed that a former deed to a husband and wife had been lost and that it was made in re-execution of said former deed and made to the surviving wife, if admitted in evidence without objection, is to be given its natural probative effect that the former deed was a deed to the husband and wife and created an estate by the entirety, although the re-executed deed was made in the absence of the husband’s heirs.
    4. DEED BY ENTIRETY: Mortgage and iaxes Raid by Husband: Es-toppel. It does not follow that, because the husband paid for the land, or gave his note therefor and subsequently paid it, either by himself or his administrator, where he had the land conveyed to himself and his wife as tenants by the entirety, the wife will be estopped to claim her rights as such tenant. Where there is a recital in a deed that a former lost deed had been made to a husband and wife and that it was made in re-execution of said former deed and made to the surviving wife, the faet that, before said re-execution deed was made, the wife had, as administratrix of her husband’s estate, paid a mortgage upon and special taxes assessed against the property, out of estate funds, and that it was inventoried as a part of his estate, does not estop her or her grantee to claim that said property was not the property of the husband and did not descend to his heirs; especially should this be the ruling where there is no showing that the mortgage note was not his note alone, for if it was his alone it was her right and duty, as administratrix of his estate, to pay it with the funds of his estate.
    5. -: -: -: Usual Course: Provision for Wife. It is entirely consistent with the usual course of things for the husband to pay, or intend to pay, for land and encumbrances thereon which he has caused to be conveyed to himself and wife; and if the mortgage note was signed by him, alone, she is in no wise estopped to claim the land as the surviving tenant by the entirety by the faet that, after his death, she, as the administratrix of his estate, paid the note with the moneys of the estate. Besides, in this ease there was evidence, admitted without objection,'that the deed to her and her husband was lost at the time of his death, and neither she nor her attorney knew until after the estate had been settled, and not until they learned the true facts from the grantor, that the deed conveyed the land to her and her husband.
    Appeal from Jasper Circuit Court. — Hon. Joseph D. Perkins, Judge.

      Affirmed.

      Hugh Dabbs and B. H. Esterly for appellants.
    (1) Tlie undisputed evidence shows that the'conveyance of the property in controversy to Emma French came about solely through the recollection of Mrs. Sarah A. Sawyer, as testified to by respondent’s attorney, Mr. Hackney, that the original deed, executed in 1893, was to her husband and herself jointly. Appellants insist that it would be impossible for Mrs. Sawyer to have had such recollection under the circumstances described. It would be contrary to the recognized laws of nature. The courts take judicial notice of the well known laws of nature. 16 Cyc. 854 (56); 7 Ency. Evidence, p. 902; The development of the faculty of memory may be judicially noticed. 7 Ency. Evidence, p. 908, note 32. People v. Martin, 85 Hun, 343, 32 N. Y. Supp. 933. (2) Estoppel consists in holding for truth a representation acted upon, when the person who made it, or his privies, seek to deny its truth and to deprive the party who acted upon it of the benefit obtained. 16 Cyc. 723-724; Bigelow on Es-toppel, p. 27; Chouteau v. Goddin, 39 Mo. 229; State Bank v. Frame, 112 Mo. 513; Fowler v. Carr, 63 Mo. App. 486; Spence v. Renfro, 179 Mo. 421; Union Savings Association v. ICehlor, 7 Mo. App. 158, 163; Boles v. Bennington, 136 Mo. 530. Where a party has taken a position as to the ownership of property, in a proceeding in a court of record, he will thereafter be estopped from later taking an adverse position in another proceeding to the prejudice of parties to the former proceeding who relied upon the position formerly taken and would be injured were the adverse position maintained. 16 Cyc. 684. One who, with knowledge of the facts and without objection, suffers another to make expenditures on or in connection with his property under a claim of title thereto will be estopped to deny such title or right to the prejudice of that other who has acted in reliance on and been misled by. his conduct. 16 Cyc. 765; Craddock v. Short, 134 Mo. 449; Goods v. St. Louis, 113 Mo. 257; Stevenson v. Saline County, 65 Mo. 425; Collins v. Rogers, 63 Mo. 515.

      Howard Gray for respondent.
    (1) The trial court heard the conflicting testimony and found for the respondent, and this court will not weigh that testimony. St. Louis _ Union Trust Co. v. Hill, 223 S. W. 434; State ex rel. v. Sturgis, 276 Mo. 570, 208 S. W. 458; McGinnis v. Railroad, 268 Mo. 667; Gilbert v. Railroad, 226 S. W. 263. (2) The question of estoppel is not in this case, as it was in no wise suggested by the pleadings. When the defendant set up title to the lots and the record showed a legal title in her, if the appellants desired to raise the question of estoppel, they should have done so in their reply. Compressed Air Co. v. Fulton, 166 Mo. App. 11; McClure v. Bank, 263 Mo. 128; Dibert v. D’Arcy, 248 Mo. 617; Sanders v. Chart-rand, 158 Mo. 352; Swinehart v. Railroad Co., 207 Mo. 423. (3) The appellants cannot claim that the testimony on estoppel was admitted without objection, and therefore, the objection that it was not alleged in the reply unavailable, for the reason that all the testimony offered and which appellants now claim tended to prove an es-toppel was pertinent under ' another issue. Swinehart v. Railroad Company, supra. (4) Outside of the question of pleading, there are no facts in the case on which, to base a question of estoppel. The only testimony is found in the first annual statement of Mrs. Sawyer as administratrix of her husband’s estate wherein it appears that a mortgage upon this property was paid out of the personal assets of the estate. This same settlement shows that the principal of a mortgage on the farm was also paid out of the personal assets. Mrs. Sawyer only had a dower interest in that farm and her liability was one-third of'an annual interest on that mortgage, Fuller v. Devolld, 144 Mo. App. 43, and yet the whole principal was paid out of the personal property in which she had an undivided one-tenth interest absolutely. Again, this was only an annual settlement and what was done on final settlement relative to this matter the recórd does not disclose. Again, it is an elementary principle in order for an estoppel to be available, the parties urging’ it must have been misled or induced to do something which they would not have done. The children were all of age and undoubtedly wanted their mother to have the home free of encumbrance, and it is unreasonable to say that even if they had known the deed was made to her and her husband, they would have protested against the payment of the mortgage. Parties invoking an estoppel must establish their case by clear, precise and unequivocal evidence. Northrup v. Colter, 150 Mo. App. 639.
   SMALL, C.

Suit in partition. The parties are the nine children and heirs of Benville A. Sawyer, who died intestate in 1893. He also left a widow him surviving, Sarah A. Sawyer, the mother of his said children. The land, sought to be partitioned, consists of a farm of eighty acres, and two lots, both improved, one having a store building, and the other a residence thereon, both situated on Garrison Avenue in the city of Carthage in Jasper County. The widow died in February, 1917. John H. Sawyer, a son, and two other of said children are the plaintiffs, and Emma French, a daughter, and five others are the defendants.

The petition is in the usual statutory form of petitions for partition, alleging that plaintiffs and defendants are the owners, as tenants in common, of the said lots in the city of Carthage, each owning an undivided one-ninth interest therein, and certain interests in said farm. That the property is not susceptible of division, etc. Whereupon, plaintiffs pray that the property be sold in partition and the proceeds divided according to the respective rights of the parties.

The answer of defendant Emma French consists of a general denial, and a further allegation and affirmative defense that she is in the open, notorious and' exclusive possession and the sole and exclusive owner of said city property, and the other parties have no right or title therein, and she prays to he discharged with her costs. The other defendants filed no pleading.

The reply -put the answer of defendant Emma French in issue.

At the trial, there was no dispute that all the parties were owners of the farm, as stated in the petition. The sole controversy was as to the ownership of the Carthage property. The defendant Emma French claimed to own this property by virtue of a deed made to her by her mother, dated September 29, 1905. The appellants claim this deed conveyed no title to Emma French, because their father was the sole owner of the property by deed made to him alone, at the time of his death, which deed, however, was never recorded, hut was lost after the father’s death, while in possession of the mother. Where as, the defendant Emma French claims, that said lost deed was not a deed to the father alone, but to him and his wife, Sarah A. Sawyer, as tenants by the entirety: that her mother having survived her father, she, having obtained a deed from her mother, as aforesaid, was the sole owner of the property.

The evidence, without serious contradiction, shows that both the farm and the city property were allowed by the children to remain in possession and use of their mother as long as she lived. That the deed to the farm was in the father’s name alone, and was recorded before his death. That the widow was appointed administratrix of the estate of her deceased husband in 1893, and included in her inventory of the real property belonging to the estate of her deceased husband, which was subscribed and sworn to by her, the lots in question, which were subject to a deed of trust of $600, and interest. Her first annual settlement was made and approved August 14, 1894, and shows that with money belonging to the estate she paid off the incumbrance, amounting to $648.25, on the property, and special taxes thereon amounting to $22.53. The final settlement is not shown in evidence.

Lenora E. Padfield, a daughter, who lived with her mother from the time of her father’s death in 1893 until 1902, testified for plaintiffs that she saw the deed for the lots in question at home in her mother’s charge, and it, as well as the deed to the farm, was in her father’s name alone. Her mother’s name was not in either of the deeds. During the time she lived with her mother she talked with her regarding the Carthage property, and her mother said it belonged to “us children and herself,” “all the children had an interest in the property.”

J. R. Sutter, a cousin of the parties, who resided in Kansas City, testified: That in 1899 he desired to buy the property in suit, and he went to his aunt, Mrs. Sarah A. Sawyer, and also the defendant Emma French, regarding the purchase of it. They (himself, Emma French and Sarah A. Sawyer) went to see the attorney of Mrs. Sawyer, Judge Kilgore, about it, and it was discovered that it was not possible to deliver a clear deed unless all the heirs would sign it, as he understood it. That was all that was said, except that there was no will left by his únele, from the explanation offered him by Sarah A. Sawyer and Emma French and the attorney. The attorney said the only way the deed could be delivered was to bring a suit in partition. “We were all three present. I didn’t see no deed.”

“The Court: Was any statement made by Mrs. French or your aunt about who held the deed to that property at the time your uncle died? A. Yes, sir, that he held the deed and the fact that he left no will, left it subject to the heirs, and they weren’t able to find some of them and I wasn’t willing to make the purchase. They did not know where John Sawyer was, and neither did they know where Noah was.”

Gleorge K. Sawyer, a son, testified for plaintiffs: That he had seen his sister Emma French a number of times since 1905, and that she never claimed to him to have a deed to -the property until after this suit was brought. None of his brothers lived in the vicinity of Carthage.

Amanda Green, a daughter, testified for plaintiffs': That in 1901, her mother visited her at her home in Wichita, Kansas, and also in 1905, 1910, 1911, 1913, 1914 and 1915, and remained several months each time, and on one occasion in 1913 her mother told her, “After father’s death, in looking over his papers, I found that he had not recorded his deed from Joshua Haughawout to the property on Garrison Avenue, and when I found it, it scared me. ’ ’ In 1915, her mother told her tliat she deeded the property to Emma French, and she said, “I did it when I was so sick, and I saw my mistake shortly after I had done it. ’ ’

David B. Sawyer, a son, testified for plaintiffs: That he lived in Colorado. That prior to his father’s death, he went with him when' he paid off a loan on the property to the Building & Loan Association. That within three or four days after his father’s death he looked over his papers and saw the deed to the lots in question and read it. That it was a warranty deed, made and executed by Joshua Haughawout, as grantor, to his father, B. A. Sawyer,' and his heirs, and that “my mother’s name was not mentioned ,in the deed and was not joined-as one of the grantees. There were deeds to other properties in the chest, and they were all in my father’s name.” That he called his mother’s attention to the fact that her name was not in the deed, and she said, “No, that the law would give her her part and protect her interest.” That his mother never claimed any interest except that of dower.

Defendant Emma French introduced testimony, in substance as follows:

B. F. Hackney, attorney for the administratrix, testified : That in going through the papers of the deceased, to prepare the inventory for the administratrix, he found the deed to the eighty acres of land and other old deeds, but could find no deed to the property in question, and went to the Recorder’s Office and failed to find any such deed recorded. That the widow was present when they .searched for'the deed, and sometime after the settlement of the estate “she sent for me and she was living with her daughter [Emma French]. She wanted that deed fixed up and I went and conferred with Mr. Haughawout and they agreed on that deed and fixed up what purported to be the re-executed deed. This (indicating) is the deed. Don’t know where Mr. Haughawout is now. I made the settlement [as administratrix] for her. I attended to her legal matters. She went to Judge Kilgore a time or two. Didn’t know the deed was around the house several years after the father’s death. Never heard anyone claim it was. I went to see Haughawout several times and talked the matter over before the deed was re-executed, and then wrote up the deed at the request of the parties. At the time we supposed we were doing our duty to inventory these lots. I didn’t think any controversy was up at the time. Mrs. Sawyer was leaving the matter with us. Whatever we put in [the inventory] was all right with her, but we had the papers and went through them carefully for the deed. The deed was made to Mrs. French in 1'905, with the agreement to take care of her mother. They were then living over on Kellar Street, and soon after that she took her mother and went over on this property. Mrs. Sawyer said she wanted to make arrangements for her declining years. I think Mrs. Sawyer lived there except a short time she was in Wichita for a trip. I am satisfied she lived there until her death. Mrs. French was living there and handling the property, using it as her own.” On cross-examination, this witness testified: “It was on my advice 'that Mrs. Sawyer paid off the mortgage and taxes on the property out of the funds of the .estate. I didn’t ask Mrs. Sawyer if the property belonged to the estate when I put it in the inventory. I supposed it did.' The question of re-executing the deed came up anyhow ten years after the inventory was made. Mr. Haughawout claimed it was made to the two — Ben ville A. Sawyer and wife. Mrs. Sawyer, wanted the deed fixed np. I took a notary ont to her honse and she made the deed to Mrs. French. All the time the rent from the property in question was collected by Mrs. Sawyer. I am satisfied she had the use of the Carthage property while she lived. We talked of the re-execution of the deed probably for three years. It might have been only a few months. Mrs. French had nothing to do with re-executing the deed.”

Defendant Emma French testified on her own behalf: She was the oldest child. “From the time my father died, I never saw the deed they claim Haughawout made for this property. I never heard.of its being in the house. It was always supposed to be lost.” Her mother lived with her some months before she made the deed to her. “She wanted,to make provision for me to keep her for her lifetime. -1 took care of her and buried her with my own.money. I remember going to Judge Kilgore’s office. ’ ’ On cross-examination, she said: “At the time I was at Judge Kilgore’s office, the conversation was this deed between mother and Kilgore. I knew Mr. Sutter was thinking of purchasing the property. Q. The conversation was about as Mr. Sutter said? A. Yes, sir.”

Defendant Emma French then offered in evidence the re-executed deed. It was a quit-claim deed from Joshua D. Haughawout and wife to Sarah A. Sawyer, surviving wife of Benville A. Sawyer, deceased, dated September 19, 1905, recorded September 21, 1905, conveying the property in question, and reciting: “The above described grantors, Joshua D. Haughawout and wife, Hettie E. Haughawout, heretofore about the-day of --, 1893, executed, acknowledged and delivered to Benville A. Sawyer and Sarah A. Sawyer, husband and wife, a deed whereby grantors conveyed to said Sawyers the above described lots, which said deed has been lost; and this deed is now made as a re-execution of the former deed, and is made to Sarah A. Sawyer the survivor.” Said defendant also introduced in evidence the deed to her made by her mother. It was dated 29th of September, 1905, and recorded September 21, 1905. It was a warranty deed, consideration one dollar, “upon condition” that grantee supports her mother during the mother’s life “and upon performance of this condition, this conveyance to become absolute, but upon failure to perform said condition” the property to revert to the grant- or. There was no objection to any of the testimony introduced.

This was all of the evidence. Thereupon, plaintiffs ashed the following declaration of law, which the court gave:

“An action for partition is not one for recovery of lands, within the statutes of this State, providing that no action for such recovery shall be maintained unless the plaintiff or the person.under whom he claims was possessed of the premises within ten years before the commencement of the action.”

The trial was had February .25, 1918. Afterwards, before the court rendered its decision, deféndant Emma French offered in evidence a quit-claim deed by two of the parties, George E. Sawyer and Amanda Green, conveying to her for a consideration of $96.50, two undivided ninths of a portion of the property. This deed was dated October 1st, 1898, and recorded April 29, 1903, and conveyed the undivided two-ninths, “being our interest as heirs at law of Benville A. Sawyer (deceased).” It was acknowledged before W. H. Kilgore, notary public, Jasper County, Missouri, on the 5th day of October, 1898.

On December 21,1918, the court found the issues and rendered judgment as to the property in dispute in favor of defendant Emma French, and after unsuccessfully moving for a new trial plaintiffs appealed to this court.

I. The pleadings in this case are at law, no equitable features are alleged, either in the petition or the answer, and no equitable relief is prayed for. The issues, therefore, are strictly legal, and the- case having been tried by the court sitting as a jury, we. are hound by the decision of the lower court on the facts, and cannot consider the evidence in the case de novo. [Koehler v. Rowland, 275 Mo. 573, and cases cited; Bank v. Wilson, 222 S. W. (Mo.) 381.]

II. It is strenuously argued by appellants’ learned counsel that the re-executed deed dated September 19, 1905, recorded September 21, 1905, from Haughawout and wife to Sarah A. Sawyer, reciting that the former and lost deed was made to Ben-ville A. Sawyer and Sarah A. Sawyer, husband and wife, is of no probative force to show a conveyance to the wife as one of the tenants by the entirety, but is evidence that the husband was the grantee; that the recital in said deed having been made ten or twelve years after her husband’s death, and without knowledge or consent of his heirs, is an inadmissible self-serving declaration on the part of Mrs. Sawyer, and mere hearsay as to said heirs, and of no probative force as against them. We cannot agree to this argument. Whether it was admissible, we need not pass on. No objection was made to the introduction in evidence of said re-executed deed at the trial of the case. The appellants cannot, therefore, complain in this court on appeal that the deed was inadmissible as evidence. [Bank of Commerce v. Pierce, 280 Mo. 614.]

III. But learned counsel of appellants argue that, although it was admitted without objection, its character as hearsay as to them and as self-serving as to Mrs. Sawyer, deprives it of all probative force in her favor or in favor of her grantee, Emma French. We cannot concur in this contention. In- ...... admissible evidence (assuming it'to be. such), including hearsay evidence, admitted without objection, is not a nullity or void of probative force, but is to be given its natural probative effect as if it was in law admissible. [10 R. C. L. secs. 197 and 198, p. 1008.] This is true, even in a criminal case.

In Diaz v. United States, 223 U. S. l. c. 450 (a criminal case), the court said: “So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible. [Damon v. Carrol, 163 Mass. 404, 408; Sherwood v. Sissa, 5 Nev. 349, 355; United States v. McCoy, 193 U. S. 598; Schlemmer v. Buffalo Ry. Co., 205 U. S. 1, 9; Neal v. Delaware, 103 U. S. 370, 396; Foster v. United States, 178 Fed. 165, 176.]”

This deed differs widely from the re-executed deed passed on by the court in Langley v. Kesler, 57 Ore. 281, cited by counsel from 2 Jones’s Blue Book on Evidence, page 550. In that case, the re-executed deed recited that the original deed was made to the husband alone, that he alone bought and paid for the property, but intended to have the deed made to himself and wife as a gift to her, but by mistake it was made to him alone. The court ruled that the title was effectually conveyed to the husband alone by the original deed, in law and equity, as shown by the recitals in the re-executed deed, and, tlaerefore, the grantor had no further title to convey, and the mere acceptance by the husband of the re-executed deed from the original grantor to himself and wife, gave the wife no title and deprived the husband of none; that his intention to make her a gift could only be effected by a deed from him after the original deed was made to him. That case, therefore, has no relevancy to the case here, where the recital of facts on the face of the re-executed deed shows that the original deed or title was made to both the husband and wife.

We must, therefore, rule, that the re-executed deed in this case, having been admitted’without objection, the recitals therein were evidence that the lost original deed was made to the husband and wife and conveyed to them an estate by the entirety.

IY. But, it is further argued that, because the laud in question was inventoried as land belonging to the husband’s estate with Mrs. Sawyer’s knowledge and consent, as administratrix, and a $648 mortgage and $22 special taxes thereon were paid off by her as such administratrix with the funds belonging to the estate or heirs, both she and her daughter, Emma French would be estopped to claim the property was not the property of her deceased husband and descended to his heirs. We do not agree to this contention. It does not follow that because the husband pays for the land, or gives his note therefor, and subsequently pays it, either by himself or his administrator, where he had the land conveyed to himself and his wife, as tenants by the entirety, that his wife would be estopped to claim her rights as such tenant. It does not appear in this case, that the. note paid off was not the note of the husband alone. If so, it was her right and duty, as administratrix, to pay it off with the funds of the estate. This would in no way estop her to claim the land as tenant by the entirety. It is entirely consistent with the usual course of things, for the husband to pay, and intend to pay, for land or encumbrances thereon which he has caused to be conveyed to himself and wife, as tenants by the entirety. The evidence does hot conclusively show that Mrs. Sawyer, as administratrix, could not legally pay off the encumbrance with the funds of the estate, although the title might have been in her as surviving tenant by the entirety.

Furthermore, the deed was lost and could not' be found at the time of the husband’s death, according to respondent’s evidence, and both the wife and her attorney no doubt supposed at that time that the title was in the husband alone, and Mrs. Sawyer may not have learned the exact fact as to how the deed was made until about the time of the making of the re-executed deed, when she and her attorney interviewed the grantor, Haughawout, on the subject and he informed them that the original deed was made to both her husband and herself, as tenants by the entirety. This evidence also was admitted without objection. The conversation with Haughawout was in 1905 or perhaps 3 years before. So also, therefore, Mrs. Sawyer may not have known definitely that she had title to the property in 1899 when she, in effect, told the witness Sutter, in the presence of Emma French, that the deed to the property was in her husband’s name, and that all of the heirs would have to join in the deed to give him a good title in case he purchased. For the same reason Emma French might not have known that her mother owned the property, when in 1898 she took a quit-claim deed from her brother and sister for a two-ninths interest as the heirs of their father. The probate court records, shown in evidence, and admissions of Mrs. Sawyer to Sutter, were no doubt evidence that the original deed was to her husband alone, but not conclusive evidence, nor conclusive as an estoppel against her subsequently claiming as tenant by the entirety, when she ascertained the fact that the original deed was made to her and her husband as such tenants.

The court below having found against the appellants, this court, on this appeal, can only consider the evidence of the respondent, and evidence of plaintiffs admitted to be true, and the undisputed record evidence, because it was the province of the lower court — as a jury —to pass upon the weight and credibility of the verbal testimony given by the plaintiffs’ witnesses, and that court having found against them, we are concluded by that finding. So that, we hold, that there is nothing in the respondent’s testimony or the admittedly true evidence of the plaintiffs, or the record evidence in the case — the only testimony we are permitted to consider — to necessarily .and as a matter of law overcome the probative force of the re-executed deed made by Haughawout and wife, reciting that the original deed was made to Mrs. Sawyer and her husband, as tenants by the entirety. The weight and probative force of such recital, said deed having been admitted without objection, was for the trial court, sitting as a jury, in view of all the facts and circumstances in the case, and we cannot disturb its verdict thereon.

Finding no reversible error in the case, we affirm the judgment of the lower court. Let it be so recorded.

Ragland, C., concurs; Brown, C., absent.

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

All of the judges concur, except Woodson and Graves, JJ., who dissent.