author: BLAIR, C.

text:
    ROY WHITE, A Minor, by his Next Friend, v. THE UNITED RAILWAYS COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. NEGLIGENCE: Contributory: Not Pleaded: Mere Tendency in Plaintiff’s Evidence to Show Such Negligence does not Make it Question for Jury. The fact that plaintiff’s evidence merely tends to prove contributory negligence does not, in the absence of such plea, authorize the submission of that issue to the jury.
    2. -:--: -: Submission to Jury When Invited by Plaintiff Not Error. Plaintiff’s petition alleged that he was injured because of the negligent application of the air brake while he stood upon the step of a moving street car, preparatory to alighting when it should stop. Defendant denied generally and pleaded, further, that plaintiff was injured, if at all, because he attempted to alight from the car while it was in motion. There was no plea of contributory negligence, nor was there any evidence thereof except that plaintiff took his place upon the step while the car was moving rapidly nearly two hundred feet from the point where he expected to alight and before the speed' had been slackened. An instruction was asked and given for plaintiff which directed a verdict for him if the jury found he was injured as alleged and if they further found that meanwhile he was exercising ordinary care for his own safety. Defendant then asked and was allowed an instruction, that, if the jury believed plaintiff’s so placing himself near the edge of the platform and on the step of the car caused, or contributed to cause, his injuries, they must find for defendant. Verdict was for defendant, but a new trial was granted upon the ground that the court erred in giving for defendant the instruction submitting the question of plaintiff’s contributory negligence. Defendant appeals from the order granting a new trial. Meld, that the order granting a new trial must be _ reversed, since the plaintiff by his instruction inyited the submisson of the question of his contributory negligence.
    3. -: -: Instructions: Omission of Word "Directly.” Nor is defendant’s instruction on contributory negligence erroneous, in the circumstances of this case, because the word “directly” is omitted from the phrase “contributed to cause his injuries.”
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Reversed and remanded (with directions).

      Boyle é Priest, Morton Jourdan and T. E. Francis for appellant.
    (1) Even though defendant’s instruction 6 was not within the issues tendered by the answer, nevertheless the facts upon which it was predicated having been developed in plaintiff’s own evidence, it was proper'to give it. Sissel v. Railroad, 214 Mo. 526; Pirn v. Transit Co., 108 Mo. App. 716; Hill v. Drug Co., 140 Mo. 438; Fire Brick Co. v. Railroad, 21 Mo. App: 656; Chaney v. Railroad, 176 Mo. 598; Allen v. Transit Co., 183 Mo. 424; Hudson v. Railroad, 101 Mo. 30; Benjamin v. Railroad, 245 Mo. 598. (2) Plaintiff’s instruction 1 having required, as a condition precedent to the return of a verdict for him, a finding that “ prior to the time of said alleged injury to plaintiff he was exercising ordinary care for his own safety, ’ ’ it was proper to give defendant’s instruction 6, since it merely undertook to specifically define the acts of contributory negligence that plaintiff must be found to have been free from, which were submitted in a general way by plaintiff’s said instruction. Hill v. Drug Co., 140 Mo. 438; Heffeman v. Ragsdale; 199 Mo. 382.

      Watts, Gentry & Fee for respondent.
    (1) The action of the trial court in granting a new trial for error in giving instruction 6 should be affirmed, because' the instruction was wrong in submitting to the jury a ground of contributory negligence which was not set forth in defendant’s specific plea of contributory negligence. The only contributory negligence charged against the plaintiff in the answer was negligence in alighting or attempting to alight from the street car while it was in motion. The ground of contributory negligence submitted in instruction 6 was standing dangerously near the edge of the platform. Defendant was bound by its specification of grounds of contributory negligence, and it was error for the instruction to include another ground not pleaded by defendant. Curtis v. McNair, 173 Mo. 292; Storage & Moving Co. v. Transit Co., 120 Mo. App. 410; Lange v. Eailroad, 208 Mo. 478; Eailroad v. Stable Co., 1191 Ala. 615; Eailroad v. Eay, 96 S. W. 74; Edwards v. Campbell, 33 S. W. 761; Railroad v. Harvey, 27 S. W. 423; Thompson on Negligence, sec. 466; Eailroad v. Morton, 10 C. C. A. 92, 61 Fed. 814; Eailroad v. Jamison, 12 Tex. Civ. App. 689; Railroad v. Scanlan, 168 111. 34. It is necessary for the contributory negligence of plaintiff to be specified, else it may be stricken out or ordered made more definite and certain. Harrison v. Railroad, 74 Mo. 364. When specially pleaded, acts thus set out are all that can be proved, for a special charge limits a general one. Chittey v. Eailroad, 148 Mo. 64; Haley v. Eailroad, 197 Mo. 22; Yawl v. Gilliam, 187 Mo. 393; Taylor v. Eailroad, 185' Mo, 253. The general rule is that a pleader is limited to proof of the specific -allegations made. Gurley v. Eailroad, 93 Mo. 445; Waldhier v. Railroad, 71 Mo. 514; Bohn v. Eailroad, 106 Mo. 433; Hite v. Eailroad, 130 Mo. 132. No reason is perceived why this rule should not bind defendants as well as plaintiffs. (2) The action of the trial court in granting a new trial for error in giving instruction 6 at defendant’s request was right, because that instruction was fatally defective in permitting the defendant to recover on account of plaintiff’s supposed contributory negligence even though such contributory negligence may not directly or proximately have contributed to cause-his injury'. The wording of it permits plaintiff to be defeated on the ground of contributory negligence if his act caused or contributed to cause his injury. . This is not the law. Even if plaintiff is guilty of an act which is admittedly a negligent act, that does not defeat his recovery, unless it directly or proximately contributes to cause his injury. Morrissey v. Ferry Co., 43' Mo. 380; Meyer v. Railroad, 43 Mo. 523; Moore v. Transit Co., 126 Mo. 265; Oates v. Railroad, 168 Mo. 535;. Spencer v. Transit Co., Ill Mo. App. 653;'Payné v. Railroad, 129 Mo. 405 ; Meyer v. Railroad, 40 Mo. 151;. Meyers v. Railroad, 591 Mo. 230; Coney Island Co. v. Dennan, 149 Fed. 687; 7 Am. & Eng. Encv. Law (2 Ed.), p. 380; Railroad v. Kraft, 80 S. W. 40-8; White’s Supp. to Thompson’s Commentaries on the Law of Negligence, sec. 216; Thompson v. Duncan, 76 Ala. 334; Schweinfurth v. Railroad, 60 Ohio St. 215’; Holmes v. Transit Co., 10 O. Cir. Dec. 638; Nelson v. Railroad, 68 S. C. 465; Merrill v. Sheffield, 169 Alt. 242. (3) The-action of the trial court in granting a new trial for error in giving instruction 6 was . right because there was-no evidence upon which to base that instruction. According to plaintiff’s evidence, the sole cause of his injury was the extraordinary jerk of the car, caused by the improper application of the air brake. According to defendant’s evidence, there was no such application of the air brake and no jerk whatever, and defendant’s evidence was to the effect that plaintiff voluntarily stepped off and was injured by so doing and not by reason of standing on the platform or step. Therefore, there was absolutely no evidence in the case-tending to show that the plaintiff’s injury resulted from standing with one foot on the platform and the-other foot <on the step. Parks v. Railroad, 178 Mo. 108; Willmott v. Railroad, 106 Mo. 535; Paquin v. Railroad, 90 Mo. App. 118’.
   BLAIR, C.

This is an appeal from an order of the eirenit court of St. Louis City granting a new trial after verdict for defendant in an action for damages for injuries alleged to have been the result of plaintiff’s having been thrown from one of defendant’s cars by the sudden application of the air brake. The answer consisted of a general denial coupled with a plea that “whatever injuries, if any, plaintiff sustained, were caused by his own carelessness and negligence in alighting or attempting to alight from the street car while it was in motion. ”

Plaintiff was fifteen years and five months old when injured and had lived in St. Louis a little over six years. He testifies that during this time he had ridden upon street cars a great deal, was accustomed to .riding on them and had been for over a year making six trips daily over the line upon which he was injured. At the time he was injured he lived at 4051 Shenandoah avenue, which is in the block between Lawrence and Thurman avenues, 'and at the latter westbound ears turn south. Plaintiff boarded the car at the Union Station, where he worked, about 9 p. m., and rode on the front platform until he reached *a point nearly opposite his home when he nodded to the motorman to indicate he wished to alight at the corner. He then took a position with both feet upon the step' or one foot upon the front platform and one upon the step, facing inward and southward, with his right hand grasping the handhold in front of him and with his left hand grasping the handhold upon the front of the body of the car. At this juncture the car was on Shenandoah avenue nearly two hundred feet from the entrance to the curve into Thurman avenue and was moving at its usual speed, eight to twelve miles an hour, according to plaintiff. Plaintiff says that he saw the motorman apply the brake, heard the hiss of the air and then, he says “I goi a jolt — the hardest jolt I ever got while I have been riding on the cars, and my right handhold broke, and I swung around and hit the car, and I went under the wheels. That is all I remember until they picked me up.” He testifies he was standing as above stated at the time the brake was put on and- was making no attempt to step or jump from the car.

On cross-examination plaintiff testified he didn’t known whether he was thrown backward or forward; that to the best of his knowledge the grasp of his right hand upon the front handhold was first broken and then he tried to hold with his left hand but could not do so. When he was picked up he was lying at a point about one hundred and twenty feet east of the entrance to the curve into Thurman avenue and about one hundred and sixty feet east of the east building line of that avenue and about forty feet west of his home.

Plaintiff is uncorroborated as to the jerk or lurch he says the car gave and both his witnesses and defendant’s say they neither saw nor heard anything of the kind. The motorman testified he saw plaintiff take the position usually assumed by persons about to alight from a moving car and then step off upon the ground and both he and the conductor deny that the air brake was applied in the manner testified to by plaintiff and deny there was any jerk or jolt of the car.

The trial court granted the new trial on the ground' that it had erred in giving, at defendant’s request, the following instruction:

“The court instructs the jury that if they believe from the evidence that a reasonably prudent boy of plaintiff’s age and capacity for understanding and appreciating danger would not have placed himself near the edge of the car under the circumstances, and that plaintiff’s act in so placing himself near the edge of said platform and on the step caused, or contributed to cause, his injuries, if any, then your verdict must be for the defendant.”

Defendant contends (1) that the instruction is not-erroneous and (2) that if erroneous the error was invited by plaintiff.

I. It is not contended plaintiff’s testimony establishes as a matter of law his contributory negligence, but merely that its tendency to show such negligence is sufficient to justify a finding thereof by the jury. This position is well supported. [Wilmott v. Railroad, 106 Mo. l. c. 542, et seq. and cases cited; Parks v. Railroad, 178 Mo. l. c. 116, et seq.; Seymour v. Railroad, 114 Mo. l. c. 272, et seq.; Sweeney v. Railroad, 150 Mo. l. c. 398; as construed in Wellmeyer v. Railroad, 198 Mo. l. c. 543; Heinze v. Railroad, 139 Ia. 189.] It is, of course,' conceded that in actions of this kind contributory negligence ordinarily is a matter of defense which must be pleaded if a defendant would avail himself of it. It is insisted, however, that since it is well settled that when a plaintiff conclusively convicts himself of contributory negligence he must fail though there be no such plea in the case, it must follow that when his own testimony would warrant the jury in finding him guilty of contributory negligence that question must be submitted though the answer raises no such issue.

The theory upon which a defendant, despite a failure to plead it, is permitted to avail himself of plaintiff’s conclusive proof of his own contributory negligence, is that in such circumstances plaintiff fails to make out his case. He disproves it. Recovery can be had only for injuries resulting from the defendant’s negligence and there is a failure of proof when plaintiff conclusively shows he is himself responsible for his injury. [Milburn v. Railroad, 86 Mo. l. c. 109; Buesching v. Gaslight Co., 73 Mo. l. c. 229.]

The reason for the rule in cases in which contributory negligence appears as a matter of law from plaintiff’s testimony affords, therefore, no basis for the conclusion that when testimony merely tending to show contributory negligence is offered by plaintiff an issue of fact is thereby raised in the absence of a proper plea. The question has been heretofore considered. In Schlereth v. Railroad, 96 Mo. l. c. 514, it was said: “It is the settled law of this court that the contributory negligence of the plaintiff is a matter of defense, and must be pleaded and proved in order to escape liability. . . . The only defense the answer sets up is a general denial, and therefore the defendant is in no condition to invoke the contributory negligence of the plaintiff unless the evidence offered in behalf of plaintiff shows such contributory negligence as defeats the action

In Keitel v. Railroad, 28 Mo. App. l. c. 663, Judge Thompson, speaking for the court, said:

“It may not be .out of place to observe that th'e only error committed by the trial court touching the question of contributory negligence was the error of submitting it to the jury at all, since it was not pleaded. It is only where a conclusive inference of contributory negligence arises out of the plaintiff’s own testir mony or that of his witnesses, either on their direct or their cross-examination, that contributory negligence will bar his recovery, although not pleaded. ... In other cases contributory negligence is an affirmative defense, to be pleaded and proved by the defendant, in order to entitle him to have it submitted to the jury; and if it is not so pleaded and proved, and is nevertheless submitted to the jury the case falls within the rule that it is error to submit to the jury an issue not made by the pleadings.”

In Schultze v. Railroad, 32 Mo. App. l. c. 448, the Kansas City Court of Appeals, after conceding the rule to be that plaintiff disproves his case when he proves conclusively his injury is due to his own contributory negligence, proceeds thus:

“Yet it should not be understood that in all cases where there may ,be evidence tending to show contributory negligence such defense may be raised at the trial though not set up in the answer. To be thus utilized on the trial, the contributory negligence shown in plaintiff’s evidence should be so cl¿ar and flagrant as to disprove the cause of action stated in the petition. If it falls short of this, and remains a question of fact, which might be decided either way, then we have little doubt that it should be pleaded to be available as a defense. ’ ’

The same court in Voegeli v. Marble & Granite Co., 49 Mo. App. l. c. 653, says that before defendant can, without an appropriate plea, avail himself of plaintiff’s evidence tending to show contributory negligence, that evidence “must be of such a character as to enable the court to say, as a matter of law that the plaintiff has been guilty of such contributory negligence as would defeat the action. If the question is a debatable one, then it is error to submit it, where the defendant has failed to make the defense in the answer."

In Fechley v. Traction Co., 119 Mo. App. l. c. 368, Judge Goode, speaking for the St. Louis Court of Appeals, said that unless it was pleaded plaintiff’s “contributory negligence was no defense, according to cases in this State, unless the testimony he introduced so clearly showed he was negligent in a manner which contributed to cause the accident, that the court would have been warranted in denying him a recovery." The same ruling is found in McCormick v. City, 64 Mo. App. l. c. 200, and in State ex rel. v. Hallen, 165 Mo. App. l. c. 438, et seq. In this last the authorities are collected.

Sporadic decisions (Brick Co. v. Railroad, 21 Mo. App. l. c. 656; Pim v. Transit Co., 108 Mo. App. l. c. 716, 717) indicating a contrary view do not seem well considered. The first of these is based upon decisions in States in which a different rule as to pleading contributory negligence obtains (Shearman & Redfield on Negligence [5 Ed.], sec. 113 and note) and the other upon decisions in this State which do not justify the conclusion announced. The court which rendered them has subsequently several times decided the same question the other way.

Finally, Division No. 2 of this court in Collett v. Kuhlman, 243 Mo. 585, passed upon the question now presented and held that “the fact that plaintiff’s evidence tends to prove contributory negligence does not, in the absence of such plea, authorize the submission of such issue to the jury.” The judgment was reversed and the cause remanded solely on the ground that this principle had been violated.

Either this and like rulings are right or the rule that contributory negligence must be pleaded will be practically abrogated. It can be safely stated that in the majority of cases of this kind circumstances are shown in plaintiff’s evidence, on cross-examination of his witnesses or otherwise, which tend to prove contributory negligence, and to hold that in every such instance the question of contributory negligence is introduced into the case is to destroy plaintiff’s right to rely upon the issues made by the pleadings and require him to prepare to meet one nr several issues of contributory negligence which different, and possibly reluctant or unfriendly, witnesses may testify into the ease. The situation is different when plaintiff’s evidence conclusively makes out his own contributory negligence as is apparent from the very statement of the matter and from the cases cited.

II. If in this connection the record disclosed nothing more than the giving of instruction six an affirmance of the order granting a new trial would necessarily follow from what lias been said; bnt was 'that error invited by plaintiff? Tbe first instruction given at his instance directed a verdict for him if tbe jury found that after he placed himself upon the step as alleged in tbe petition be was thrown from tbe car by an unusually sudden and violent lurch of that vehicle occasioned .by a negligent application of tbe air brake and if they further found “that prior to and at tbe time of said alleged injury to plaintiff be was exercising ordinary care for bis own safety.”

At tbe time plaintiff’s instruction was asked and given there was not in tbe case any evidence of contributory negligence by any possibility proper for submission to tbe jury save tbe evidence that plaintiff took bis place upon tbe step of tbe car while it was moving rapidly through tbe block at a point nearly two hundred feet from the corner at which be expected to alight, and before tbe speed bad been slackened in tbe least.

Plaintiff could recover only on the negligence alleged. If be stepped off the car in the middle of the block while it was moving, as be testifies, eight to twelve miles per hour, two reasons barred recovery: (1) nothing in the petition warranted it and (2) such an act would constitute negligence as a matter of law. [Spencer v. Railroad, 111 Mo. App. 653.] Tbe facts alleged in the second paragraph of the answer constituted a complete defense and the evidence offered of them was admissible under the general denial. [Parks v. Railroad, 178 Mo. l. c. 118, 119; Neville v. Railroad, 158 Mo. l. c. 311, 312.] The quoted clause of the instruction cannot, therefore, be logically said to refer either to that paragraph or to any evidence offered in support of it.

Further, tbe instruction itself sufficiently points to tbe fact that it was the inference deducible in tbe circumstances from plaintiff’s presence on tbe step that tbe clause mentioned was intended to require the jury to negative in tlieir finding. It submits the question of plaintiff’s exercise of ordinary care in immediate connection with the acts of negligence alleged as grounds of the action and required the jury to find thereon before returning a verdict. Since in neither pleadings nor evidence was there any intimation of issuable negligence on plaintiff’s part'in connection with the negligence alleged in the petition, save plaintiff’s act in placing himself upon the car step, there is nothing other than this to which that part of the instruction requiring ordinary care of plaintiff could have referred.

The sixth instruction, in effect, simply submitted the question whether that act constituted negligence and, if so, whether it contributed to cause the injury and required a finding for defendant if both questions were affirmatively answered. That an instruction on this theory was invited by plaintiff’s instruction is clear enough. The requirement that the jury should, before returning a verdict for him, find plaintiff was exercising ordinary care for his own safety constituted a submission of the question of his contributory negligence. [Krehmeyer v. Railroad, 220 Mo. l. c. 675.] Plaintiff thus injected this issue and secured its submission to the jury. Though it be conceded that in the circumstances it was unnecessary, nevertheless plaintiff put it into the case. A clause like that employed as stated in the instruction mentioned is of no consequence and may be ignored when incorporated in the petition in a case of this kind (Hudson v. Railroad, 101 Mo. l. c. 29) but that is because there is a presumption obviating ordinarily the necessity of such allegation. By incorporating the clause in the instruction, however, plaim tiff evidenced his desire that the question of his freedom from negligence be submitted as an issue of fact and secured such submission. Having done so he was in no position to complain because the defendant accepted the issue and asked and secured an instruction thereon. Undoubtedly if the trial court had not sustained the motion for new trial and plaintiff had appealed this court would not have reversed the judgment on error thus invited and it cannot be logically contended the trial court was in any better position to grant a new trial on that ground. The principle upon which invited error is held no ground for reversal may be said to be, in a sense, that of estoppel. Upon a like question this court (Holmes v. Braidwood, 82 Mo. l. c. 617) once said: “It is an apposite instance where, if ever, the maxim might be applied, communis error fdcit jits. As Parker, C. J., in Slack v. Lyon, 9 Pick. 65, said: The party 'shall not tread back and trip' up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice at the outset of the controversy. ’ ”

In another case (Henslee v. Cannefax, 49 Mo. l. c. 296) in the discussion of an analogous question it was said: ‘ ‘ This negligence of the plaintiff was encouraged by the defendants. They stood by and saw heavy costs accumulate in making out plaintiff’s case, adding to them the costs of their own witnesses, and then asked the court to declare that their defense had been admitted from the beginning. This will not do and courts should not allow traps to be thus sprung, although upon the inattentive. ’ ’

In a recent case (Mott v. Morris, 249 Mo. l. c. 137) in which appellants contended the principal issue tried and submitted by all parties was not cognizable under the pleadings this court said: “Plaintiffs can with ill grace complain that the chancellor took them at their word and decided the issue. If it be error to go so far (a question we reserve) then the maxim applies: Consensus tollit errorem.”

These cases announce the true principle and that principle is as applicable on the hearing below on the motion for new trial as it is when the case is presented here on appeal. Even if this is not universally true it certainly is so when the error invited is the submission of a question to which, plaintiff’s own evidence relates though such-an issue is not formally made by the pleadings.

III. Plaintiff insists, however, that the sixth instruction is so erroneous in form that the order granting a new trial must be affirmed. This contention is based upon the omission of the word “directly” in the phrase “contributed to cause his injuries” as used in that instruction. It is true it seems clearly inferable from the briefs of counsel on both sides that the trial court did not for this reason hold the instruction bad, but nevertheless the question is raised here and must be decided.

The instruction before authorizing a' verdict for defendant, required the jury to find (1) that plaintiff, in the circumstances, in placing himself on the edge of the platform and step, was not in the exercise of ordinary care, i. e., was negligent, and (2) that this lack of ordinary care contributed to cause his injuries. .

The petition, does not count upon the humanitarian- or last clear chance doctrine and, consequently, plaintiff neither asked nor was entitled to instructions upon that theory. [Peterson v. Railroad, 211 Mo. l. c. 521.] Decisions in cases in which that theory was presented are not entirely in point here. This case is one in which the right to recover depends upon an allegation of what is sometimes termed simple negligence.

The instruction objected to requires the jury before returning a verdict for defendant, to find that specified acts of plaintiff constituted a failure to exercise ordinary care and does not leave the jury to speculate as to what acts may be considered as negligence. The argument, therefore, that the instruction authorized a finding for defendant on the ground, of some remote negligence of plaintiff not amounting to a want of ordinary care, is unsound -and the cases in which that doctrine is announced in connection with instructions couched in general language are unlike this.

Further the instruction requires not only a finding of a want of ordinary care on plaintiff’s part but also a further finding that this want of ordinary care contributed to cause his injuries; consequently, decisions condemning instructions which employ the phrases “contributed to his injuries,” “in any way contributed to his injuries” and the like, do not decide the exact question in this case. It is well established in this State that ordinarily in a case of this kind it is entirely correct to instruct that if plaintiff’s negligence “directly contributed to his injury” he cannot recover, and error to instruct that if his negligence merely “contributed to his injury” recovery is barred. The function of the word “directly” in such a phrase is to exclude remote negligence and require the jury to find a causal connection between plaintiff’s negligence and his injury.

The instruction given excludes remote negligence by requiring a finding that a specified act constituted a want of ordinary care and requires, also, a finding that such want of ordinary care not only “.contributed” but that it contributed to cause plaintiff’s injuries. To the writer, in the circumstances of this case, it seems the explicit requirement to find a want of 'ordinary care plus a causal relation between it and the injury sustained was even more likely to convey clearly to the jury the correct idea than would have been the case had the'usual phrase “directly contributed to his injuries” been employed. No case or authority cited and.none examined discusses the exact question presented but principles frequently invoked warrant the conclusions stated.

Further, if the jury found plaintiff’s act in taking a position on the car step constituted lack of ordinary care on his part in the circumstances and also found it contributed to cause his injuries, how could it be possible it contributed at all save directly? That question, however, it is not now necessary to answer. In view of what has been said and of the further fact that plaintiff in his own instruction required the jury to find he was exercising ordinary care, (thus inferentially authorizing a verdict for defendant if he was not), it would be going great lengths to say the sixth instruction was prejudicially erroneous in this last mentioned particular.

It is doubtful whether the instruction mentioned had a great deal to do with influencing the verdict found since that verdict accorded with the great weight of the evidence and since plaintiff’s own testimony indicates a reversal of natural law in one particular. However that may be, a careful examination of the questions presented has led to the conclusion that the sixth instruction was not erroneous in the circumstances of this case and no other reason being suggested or appearing to justify the order granting a new trial, that order is reversed and the cause remanded' with directions to reinstate the verdict and enter judgment thereon for defendant.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: BROWN, C. WOODSON, P. J.

license: Public Domain

text:
    ARCH LOVE v. WILLIAM LOVE, Appellant.
    Division One,
    May 31, 1913.
    1. EJECTMENT: Evidence: No Title in Defendant: Naked Possession. The evidence in this action in ejectment is held to show no title in the defendant; therefore, to defend successfully against the plaintiff, he must depend, in this case, upon his naked possession.
    2. -: No Title: Prior Possession. Prior possession is sufficient to maintain ejectment against one in possession without title.

      Appeal from Louisiana Court of Common Pleas.— Eon. D. E. Eby, Judge.
    Affirmed.

      Pearson & Pearson for appellant.

      Robert A. May for respondent.
   BROWN, C.

Ejectment instituted September 10, 1909, to recover a tract of land in Pike county described in tbe petition as follows: “Beginning at tbe northeast corner of the west one-half of the southwest quarter of'section 30, township 55 north, range 2 west; thence east 10 chains; thence north 14.55 chains to a stake on the south bank of Salt River; thence with the meandering of Salt River in a northwesterly direction to the northeast corner of Wm. Love’s 32-acre tract (being the point where the line running north and south dividing equally the west half of said section 30, intersects the south bank of Salt River); thence south 25.25 chains to place of beginning, containing 19.90 acres.”

A plat of the section in which the land is situated was introduced in evidence. We reproduce it here as it will assist materially an understanding of the description as well as much of the evidence relating to it.

The ouster was laid as of May 30, 1907. The answer is a general denial.

At the trial the plaintiff introduced an administrator’s deed dated August 25, 1871, executed hy Mas-ten H. Arthur, administrator of Joseph Love, deceased, to James Love, in which the land conveyed, is described as follows: “Twenty acres, it being and lying in the northeast corner of eighty and 14-100 acres the fractional part of the northwest quarter of section thirty on the south side of Salt River in township fifty-five, range two west and being the same land on which the deceased lived at the time of his death and lying in Pike county, Missouri.”

This deed was in ordinary form for the conveyance of lands sold for the payment of the debts of a decedent. Its admission in evidence was objected to on the sole ground that the description which it contains is so indefinite that it passed no title, and that it does not refer to the property described in the petition. These objections having been overruled the defendant duly excepted. The plaintiff next introduced a general warranty deed from James Love to himself dated September 14, 1905, in which the land conveyed is described as follows:

“Twenty acres, it being and lying in the northeast corner of eighty and 14-100 acres, the fractional part of the northwest quarter of section thirty (30) on the south side of Salt River in township 55, range 2 west. Also the east half of the southwest fractional quarter of section thirty (30) township 55, range 2 west containing seventy-five and 41-100 acres.
“Also the northeast quarter of the northwest quarter of section thirty-one (31), same township and range above mentioned containing thirty-eight acres more or less.
“Also the southeast quarter of section number thirty (30) in the same township and range containing thirty-three and 58-100 acres, more or less.”

The defendant objected to the introduction of tin's deed on the ground that the description, so far as it relates to the property in controversy, is too vagueindefinite and uncertain and is not the same land described/in the petition, and saved his exception to the ruling by which it was admitted. It reserved a life estate to the grantor. Plaintiff next introduced a general warranty deed dated September 14, 1905, from James Love to William Love which also reserved a life estate in the grantor. The land conveyed was described in this deed as follows:

“All the west half of the southwest quarter of section thirty (30) township fifty-five, range two west. Also the fractional part of the northwest quarter of section thirty (30), township fifty-five, range two west, on south side of Salt River, except twenty acres being and lying in the northeast corner of eighty and 14-100 ¿eres, the fractional part of said northwest quarter of section thirty (30) on the south side of Salt River, township and range aforesaid, which twenty acres was conveyed to grantor herein by Hasten H. Arthur, administrator of the estate of Joseph Love, by deed dated August 25, 1871, recorded in book 40 at pages 590, 591 and 592 of the deed records of Pike county, Missouri.”

James Love was the father of both plaintiff and defendant. These deeds were made in the distribution of his estate to his children.

A comparison of them with the plat and other evidence explanatory of it, indicates that the portion of the northwest quarter of section thirty lying south of Salt River has, since the execution of the administrator’s deed in 1871, dwindled from 80.14 acres to about 61 acres. This is explained by erosion of the river bank, which is counterbalanced to some extent by accretion to the eastern portion of the fraction. The area of this fraction which lies in the west half of the quarter section has decreased from about 60 acres .to 32.08 acres.

The evidence tends to show that for many years •that part of the west tier of forties of section thirty lying south of the river was generally known as the Eastin Early tract, that the east half of the southwest quarter of the section was generally known as the Bradley tract, that that portion of the southeast- quarter of the northwest quarter of the section lying south of Salt River was generally known as the Joe Love tract, and that Joseph Love resided on it at the -time of his death. It .also tends to show that at some time after the execution of the deeds from James Love to his sons, he went with them and Mr. Beauchamp, a surveyor, to the ground and ran and marked the line running along the east side of the Eastin Early tract north to the river, and that it was accepted, for the time being at least, as the line dividing the lands conveyed by the deeds to plaintiff and defendant respectively. The father died March 26, 1906. It is admitted by defendant in his testimony that after some discussion the two sons proceeded to take possession of the land up to this line. The plaintiff rented the corn land, which consisted of about ten or twelve acres of the south end of the tract in controversy, to one Penrod, who put a crop of corn on it, and the defendant put in a crop of corn on the land lying immediately west of it. In October, after the crops had matured, the defendant proceeded to gather one-third of . the Penrod corn, which was the amount of the rent reserved by the plaintiff. For this a recovery was afterwards had against him in an action for trespass. He also extended a fence along the south and east sides of the land in controversy, consisting of posts and two wires, thus fencing it in with his own land.

At the close of the evidence the defendant asked the court to instruct the jury that the verdict must be for the defendant, and also asked an instruction that there was no legal proof of the establishment of an agreed boundary line between the lands of plaintiff and defendant, both of which instructions were refused, and defendant excepted. The court then, in instructions given at the request of the plaintiff, submitted the case to the jury upon the iolowing issues: (1) To find whether or not any portion of the land described in the petition was in the possession of the defendant at the beginning of the suit and if so whether the land so in defendant’s possession was the same land described in the deed to plaintiff. If they found this issue in the affirmative their verdict should be for the plaintiff. (2) Whether being in ignorance of the true location of the boundary line between their respective land's described in the deeds from their father, or such line being uncertain, they had agreed on a permanent boundary line and immediately took possession according to such agreement. If so the jury were instructed that such agreement is binding on them, and that they could not dispute it. The defendant properly saved his exceptions to these instructions.

The jury found for the plaintiff for the possession of the land described in the petition with eighty dollars as damages for its detention. Prom the final judgment entered upon this verdict, the defendant, after filing in. due time his motion for a new trial, which was overruled, has appealed to this court .

I. "While the parties, in the trial of this case, have not been prodigal in presenting to the court those underlying facts which are of great assistance in the determination of such controversies, it does appear, from the paper evidence al.one, that its real motive lies in those typical phenomena which attend the uncontrolled passage of streams through the alluvial soil which forms their valleys. That portion of the'west tier of forties in section thirty which lay south of Salt Eiver, and was known as the Eastin Early tract, had, at one time, contained one hundred and forty acres of land, full measure, pressed down and running over a little, hut at the time the deeds under which these parties claim and the contemporary plats were made, this area had dwindled to about one hundred and twelve acres. It is natural that, upon learning this, the defendant should have taken a lively interest in finding some way in which he could make himself whole.

The only title under which his father had claimed the land in dispute, or any land whatever in the southeast quarter of the northwest quarter of section thirty, was, so far as is shown by the evidence, under the deed from the administrator of Joseph Love. This described the land not only as twenty acres in that part of the northwest quarter of section thirty, township fifty-five, range two, lying on the south side of Salt River, but as being the same land on which Joseph Love lived at the time of his death. Whatever may be said of the first part of this description standing alone, , the land upon which Joseph Love lived is fully identified in this evidence, and includes everything- that William Love is shown to have owned in the particular forty where this controversy lies. The administrator’s deed was sufficient, so far as the description goes, to vest in him all that portion south of Salt River, of the southeast quarter of the northwest quarter of section thirty. In the deed which he made Uo the defendant on September 14, 1905, he excepted the same twenty acres which was conveyed in the administrator’s deed, in the broadest terms that he could use for that purpose, a reference to the deed itself. It is unnecessary for us ‘to express any opinion as to whether or not this exception would include accretion to the land included in the same description in the administrator’s deed, for that subject is not before us. We have carefully examined the evidence, and there is nothing- in it which tends to show that any part of the tract in controversy is the product of accretion since the execution of the last mentioned deed. It .follows that the defendant has shown no title to the land, but that his rights rest upon his naked possession.

II. The defendant, having shown no title to the land in controversy, admitted in his testimony that at the time of his entry upon it the plaintiff was, by his tenant, in actual possession of half of it or more, cultivating it in corn and claiming title to the whole under his deed; the remainder being timber land, and open to and adjoining his own. Under these circumstances the defendant ran a fence around the entire disputed tract, so as to fence it in with his own enclosure, without plaintiff’s permission and against his protest, and has retained such possession. Although the question of prior possession was not submitted to the jury by instructions asked or given, the respondent is insisting on it here, and if, upon the admitted facts, he was entitled to judgment, the appellate court should sustain it on whatever theory it may have been obtained.

So long ago as 1847 this court, in approving the doctrine that the prior possession of the plaintiff was sufficient upon which to maintain ejectment against one in possession without title, stated the reasons upon which it is founded as follows: “As the action of ejectment is a possessory action, where no title appears on either side, a prior possession, though short of twenty years, will prevail over a subsequent possession which has not ripened into a title, provided the prior possession be under a claim of right and not voluntarily abandoned. The reasons upon which this doctrine is based, are very clearly stated by Judge Kent in Smith v. Lorillard, 10 Johns. 355: 'That the first possession should in such cases be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good until other and stronger evidence destroys that presumption. This presumption of right every possessor of land has in the first instance, and after a continued possession of twenty years, under pretense or claim of right, the actual possession ripens into a right of possession which will toll an entry. But until the possession of the tenant has become so matured, it would seem to follow that if the plaintiff shows a prior possession, and upon which, the defendant entered without its having been formally abandoned as derelict, the presumption which arose from the tenant’s possession is transferred to the prior possession of the plaintiff, and the tenant, to recall that presumption, must, show a still prior possession; and so the presumption may be removed from one side to the other, toties quoties, until one party or the other has shown a possession which cannot be overreached, or puts an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title or a right of possession.’ ” [Crockett v. Morrison, 11 Mo. 3, 7.] We have steadily adhered to it ever since. [Bledsoe v. Simms, 53 Mo. 305, 308; Hunt v. Railroad, 75 Mo. 252; Bains v. Bullock, 129 Mo. 117; Hall v. Grallemore, 138 Mo. 638; Kelpe v. Kuppertz, 235 Mo. 479.] In Bledsoe v. Simms, supra, we added the following: “In such case it must appear that the defendant is a mere trespasser, and that he or those under whom he claims, or from whom he obtained possession, entered upon the actual or constructive possession of the plaintiff.” With this feature it covers like a garment every feature of the admitted facts of this case.

As what we have said will lead to an affirmance of the judgment of the trial court, it is unnecessary to discuss the questions raised as to the sufficiency of the description in the plaintiff’s deed from his father. The record discloses that James Love left other heirs, and as the parties to this suit will not be concluded by this judgment with respect to their title, it is perhaps better to leave those questions in which they may be interested until they shall require a decision. The judgment is affirmed.

Blair, C., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur, Woodson, P. J., in separate opinion.

CONCURRING OPINION.

WOODSON, P. J.

I concur in this opinion in toto, except as to the words on page 497, near bottom, “It is natural that, upon learning this, the defendant should have taken a lively interest in finding some way in which he could make himself whole. ’ ’

I do not think it is natural for a man to look or seek to make himself whole, where the acts of nature have damaged him, as against his neighbor, and especially such conduct is anything but natural.

Also to the words, “The record discloses that James Love left other heirs, and as the parties to this suit will not be concluded by this judgment with respect to their title, it is perhaps better to leave those questions in which they may be interested until they shall require a decision.” This is but little short.of suggesting litigation among said “other heirs.” The policy of the law is to settle and not to stir up litigation.


author: LAMM, J.

text:
    ALVIRA KING v. CITY OF ST. LOUIS, Appellant.
    Division One,
    May 31, 1913.
    1. NEGLIGENCE: Evidence of Other Accidents: Cured if Erroneous. Where the witness’s statement that he had -on a former occasion stepped into the same hole in the sidewalk into which plaintiff stepped and was injured, was not responsive to the question, an objection to it was sustained, upon motion to strike out it was stricken out, respondent’s attorney promptly withdrew the answer, no exception was taken to. the ruling, ’ no ruling was requested, and no complaint of any error was made of the answer in the motion for a new trial, to reverse the judgment because such unsought answer was given would be to fly in the face of all precedent and common sense.

      2. --:--: Irretrievable Error. Whether or not testimony that on a prior occasion a witness fell into the saíne hole in the sidewalk which caused plaintiff’s injury is competent is a mooted question, and is not decided in this case, because it is not here, since the trial court upon appellant’s request ruled it out and respondent withdrew it; and likewise, since no exception was saved to the court’s ruling or complaint made thereof in the motion for a new trial, the question of whether the damage caused to defendant by the witness’s unexpectedly telling of his own accident was cured by its being ruled out and withdrawn, is not decided.
    3. -: Measure of Damages: Instruction: Reasonably Certain to Result. Plaintiff’s instruction which limits her recovery for future pain to such as she will suffer by reason of her injuries and “directly caused thereby,” is not objectionable because it does not limit recovery for future pain to such as is “reasonably certain to result” from her injuries. The words “directly caused thereby” are narrower than the words “reasonably certain to. result” therefrom, and leave a narrower way for speculative damages. [Waddell v. Railroad, 113 Mo. App. 1. c. 687, is not approved or disapproved, because the vice of the instruction criticised in that case is not apparent.]
    4. -: -: Loss of Earnings: No Evidence: Nominal: Modest Verdict. The petition charged that because of her injuries plaintiff had been “disabled from labor and her avocation as the keeper of a rooming house,” and asked for no separate amount for loss of earnings, but placed her entire damages at a gross sum; and the jury were instructed to allow her “for any loss of the earnings of her labor directly caused” by her injuries. The evidence showed that she had eighteen rooms, and fifteen roomers, and earned in that way a net amount of $75 to $80 a month when the house was full, and her duties in running the house kept her busy; that after her injuries she kept the roomers who were in the house, but did not try to get any others; that her leg was broken, her ankle dislocated, and she is permanently injured; she remained in bed six weeks, and on crutches nine months, and will likely always be a cripple; and she spent $115 for medicines and physicians, and her verdict was $1157.09. Held, that she was entitled to go to the jury on the question of “the loss of the earnings of her labor” and recover at least nominal damages, and whether she could recover more than nominal damages it is unnecessary to decide,, for, though there is no testimony from which her loss of earnings can be calculated with precision, the modest size of the verdict, considering her grievous hurts and permanent injuries, shows that the jury could not have allowed her anything of substance for the “lost earnings of her labor,” and therefore the instruction was' not error.

      5. -:--: -: -: No Instruction for Nominal Damages: No Error Affecting Merits. Even if because of lack of precise evidence on the point plaintiff was entitled to no more than nominal damages for loss of earnings, and the jury should have been so told, but were not, but on the contrary were told to allow her “for any loss of the earnings of her labor directly caused” by her injuries, the judgment will not be reversed, if there was no error, the modest verdict being considered, which affected the merits. The court must “believe” the error affected the merits to the injury of appellant before it can reverse a judgment.
    6. -:--: -: Instruction: Indefiniteness. Where there is some evidence of the plaintiff’s loss of the earnings of her labor, but the amount of the loss cannot be calculated with precision from the testimony, a general instruction on the subject is not reversible error. If defendant desired to have the amount limited to nominal damages' it should have asked an instruction with that limitation. Mere indefiniteness in an instruction, when appellant stands mute, is not reversible error.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Aeeibmed.

      William H. Baird and Truman P. Young for appellant.
    (1) Evidence of otlier accidents from the same cause is not admissible in a suit against the city for damages on account of an alleged defect in a sidewalk. Groble v. Kansas City, 148 Mo. 475; Smart v. Kansas City, 91 Mo. App. 594; Edwards v. Paving Co., 92 Mo. App. 226; Stout v. Columbia, 118 Mo. App. 444; Calcaterra v. Iovaldi, 123 Mo. App. 352. (2) The withdrawal of evidence produced by plaintiff after tbe jury bas beard tbe testimony will not cure tbe error of its admission where it is of such character that tbe recital of it is calculated to affect tbe minds of tbe jury in arriving at their verdict. Wojtylak v. Coal C.o., 188 Mo. 286; Root v. Railroad, 195 Mo. 376; State v. Bateman, 198 Mo. 222; Neff v. Cameron, 213 Mo. 372; Bragg v. Railroad, 192 Mo. 365. (3) The third instruction given at the request of the plaintiff was erroneous, in this: (a) It did not limit recovery for future pain to such as was reasonably certain to follow. Waddell v. Railroad, 113 Mo. App. 687. (b) • It allowed the jury to return a verdict for loss of earnings which she had sustained up to the time of the trial, and also for loss of earnings which she would sustain thereafter, though there was no sufficient evidence upon which the jury could find and ascertain any amount of earnings lost. Davidson v. Transit Co., 211 Mo. 345; Gibler v. Railroad, 203 Mo. 223; Wallack v. Transit Co., 123 Mo. App. 167; Paquin v. Railroad, 90 Mo. App. 118; Prenderville v. Transit Co., 128 Mo. App.' 604; Grattan v. Suedmeyer, 144 Mo. App. 726; Ileidbrink v. Railroad, 133 Mo. Ap.p. 40; Slaughter v. Railroad, 116 Mo. 269.

      A. R. é Howard Taylor for respondent.
    (1) An appellate court will not consider an objection or an exception to a ruling of a trial court during the trial of'the cause, to which objection was not made and set down as a ground for a new trial in the motion for a new trial. Cowen v. Railroad, 48 Mo. 356; Saxton v. Allen, 49 Mo. 417; Carver v. Thorn-hill, 53 Mo. 286; State v. Brannan, 206 Mo. 639; Horgan v. Brady, 155 Mo. 669; State v. Scott, 214 Mo. 261. (2) The instruction attacked by appellant on the ground that there was no evidence of the loss of earnings of her labor by the respondent is not amenable to such objection, (a) There was undisputed testimony that respondent, at the time she was injured, was applying her labor to her business of keeping roomers in her own home and earning thereby a net sum of $75 to $80 per month, (b) There was undisputed evidence that respondent by the injuries she received was so disabled from her work that she liad to stop this business, only keeping such roomers who were at the time her lodgers and not soliciting others, (c) The evidence was without dispute that she was disabled from labor entirely for six weeks, being bedridden by the injuries, and thereafter only able to move about on crutches for nine or ten months. This shows that she sustained pecuniary loss of earnings, though the precise amount lost is indefinite. If she sustained any pecuniary loss, even though there is absence of definite proof as to the amount, she was entitled to nominal damages, and the instruction was correct, and if appellant desired to limit the recovery for loss of earnings, he should have asked the court to so instruct. (d) The law presumes that a jury under their oaths, will return a tfue verdict on the evidence and it is only when an appellate court is satisfied and be•lieves, from the verdict itself, or some other cause shown by the record, that the verdict is excessive, that it will declare reversible error. Shinn v. Railroad, 248 Mo. 173. (e) The jury in this ease for aught the court can know, gave in their verdict for loss of earnings a nominal sum to which the plaintiff was at least entitled, so that the instruction being clearly right, the only objection being a failure to limit the amount to nominal damages,, the jury being presumed to return a verdict only for the loss shown by the evidence, the only ground on which the court can believe the verdict is excessive is that $1157.09 is too much compensation for an active good woman who has only had a broken leg, a torn and dislocated ankle from which she had suffered up to the time of the trial, and from which she must continue to suffer pain during life — who has by the injury been dropped from the roll of the world’s workers, (f) The Supreme Court shall not reverse the judgment of any court “unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action. R. S. 1909, sec. 2082. The only prejudicial thing, as we view this record, occurring on this trial, was the small verdict rendered. This court has on frequent occasions given this statute effect and force as intended. Its application in this case we submit would be in line with recent decisions by this court. Honea v. Railroad, 245 Mo. 645; Shinn v. Railroad, 248 Mo. 173.
   LAMM, J.

Suing for $15,000 for personal injuries, plaintiff, a widow aged fifty years, had a verdict for $1157.09, and defendant on due steps appeals from the judgment thereon.

It is alleged in the petition, denied in the answer (and proved at the trial) that on a brick sidewalk on one of defendant’s public streets, to-wit, Garrison avenue, on the 6th day of December, 1908, there was a hole, a sort of pitfall, of a width and depth to cause footmen to stumble or step therein and be hurt; that it existed for such length of time as to bring home notice to defendant; and that after nightfall on said date plaintiff walked on said sidewalk and, stepping into said hole, fell, thereby breaking her right leg, dislocating her right' ankle (a lateral dislocation) and somewhat injuring' her left hip and leg. It is also alleged in the petition, denied in the answer (and proved at the trial) that she was permanently disabled and, considering her age, will, it is likely, always be a cripple and suffer pain. It is alleged in the answer, but not shown at the trial, that her injuries were caused by her own negligence contributing thereto. It is undisputed that plaintiff paid out fifteen dollars for medicines and $100 for medical attendance. It is undisputed that she was made unconscious by her fall and consequent injuries; that she was caried to her house some distance away, by those who found her in that plight and by those of her own household who received word and went for her; that therefrom she was confined to her bed for about six weeks and then used crutches for nine or ten months; and, from about an hour after her injury, for four or five months thereafter, was regularly under a doctor’s care and from thence onward to the date of the trial had been under his treatment and in consultation with him at intervals on account of her yet visible injuries.

Defendant made no attempt to controvert the fact of plaintiff’s fall or the extent of her pains and hurts, nor to controvert her medical testimony showing that, for one of her age, they were permanent, nor her lay testimony that by standing for any length of time about her household duties her ankle pains and swelling returned to her.

There was, however, a sharp dispute on the existence of any hole at all in the sidewalk; but there was testimony (and much of it) on her behalf that several bricks were out of the sidewalk, and that their absence made a dangerous hole for several weeks before her injury. Moreover, it is not now contended by defendant that the state of the proof is such that an appellate court has any call to meddle with her verdict on that issue of fact. The case, then, may proceed on the theory that her injuries and defendant’s negligence were submitted on substantial proofs and good instructions and found against defendant.

We are asked to reverse the judgment and remand the cause on the grounds following:

(1) Because of the introduction of certain testimony tending to show that other accidents had hap-pended at the same hole.

(2) Because the withdrawal of the evidence on that score (which happened) did not heal the error.

(3) Because her instruction on the measure of damages was erroneous.

We will recur to pertinent parts of the petition, evidence and rulings in connection with a discussion of those grounds for reversal.

In our opinion there is no reversible error in the case. This because:

I. Of alleged error in admitting testimony (and herein of whether the withdrawal of the same cured sv,ch error).

With a witness (Lynas) on the stand, on direct examination the following occurred, of which alone the foregoing assignment of error is predicated:

‘ ‘ Q. Will you tell the jury the condition in which you saw the hole then? A. Well, I had been doing some work at the Morgan street address and was returning home to Oliye street with a tool box on my shoulder. The box had some wrenches and pretty heavy tools in it, and naturally I would watch how I would carry the box more than the sidewalk, for fear of striking somebody with the box on my shoulder, and I stepped into this hole and tripped and fell flat, and spoke about the hole being in the sidewalk to my wife when I got home.
“Objected to. Objection sustained.
“Mr. Baird: I ask to have the testimony stricken out as to his falling in the hole.
“The Court: What he told his wife will be stricken out.
“Mr. Baird: Well, I ask to have the other testimony stricken out to the effect that he had fallen in the hole three weeks prior to this time.
“Mr. Taylor: I withdraw that.
“The Court: Well, it may be stricken out.”

It will be observed, in the first place, that the answer of the witness was not at all responsive to the question asked by respondent’s counsel; in the second place, that when that answer was objected to the objection was promptly sustained; in the third place, when a motion was made to strike out the testimony it was also promptly sustained; in the fourth place, respondent’s attorney withdrew the testimony; in the fifth place (which is closer home) no exception was taken to any ruling in the premises; in the sixth place, no further ruling was requested; and, seventhly, to cap the climax, no complaint was made in the motion for a new trial of any error in the regard in hand.

To reverse a judgment when the alleged error was not the fault of respondent hut that of a witness— whose tongue was hung in the middle and wagged at both ends — when appellant’s objection was sustained, when appellant’s motion to strike out the alleged improper matter was also sustained, when, to crown all, respondent did all she could do to rectify the matter by withdrawing it from the jury, when no exception was taken below or further ruling asked, and when no error on that score is complained of in the motion for a new trial, would be to fly in the face of all precedent and the good sense of the thing.

This ruling disposes of the point.

But we allow ourselves an observation or two more. Thus: It is argued that testimony of other accidents at the place, from the same cause, is incompetent. That argument is followed up by another to the effect that the damage to defendant’s side of the case was irretrievable after the lips of the witness let fall the disclosure of his fall at the hole. It was in the nature of unpardonable sin. As to which we say: The question whether such evidence is admissible is a mooted one. Irreconcilable views are held by courts of different jurisdictions, and this court has not been able to hold an even and uniform voice thereon. In Goble v. Kansas City, 148 Mo. l. c. 475 et seq., it was ruled one way, and in Charlton v. Railroad, 200 Mo. l. c. 442, without our attention being called to the Goble case, it was ruled (with some diffidence and under the phrase “it seems”) the other. It may be, therefore, that the law in that regard is in a formative state and that the final word has not yet been spoken. Accordingly, when some case comes here turning on the point and calling for new exposition, we can deal with the philosophy of the thing in the light of precedent and settle it. In this case the assignment of error is disposed of on other grounds, hence to decide this phase of it would be obiter. As to the argument based on irretrievable damage, it will do to say that the doctrine of unpardonable sin on the part of a witness, whereby a party to a suit is punished vicariously, without his fault, is so novel and anxious that it may well be kept in pickle (held in solution) for examination in the future. Why penalize a party for what he could not help or forecast ?

II. Of error in the instruction on the measure of damages.

That instruction reads:

“If the jury find a verdict in favor of the plaintiff they should assess her damages at such a sum as they believe from the evidence will be a fair pecuniary compensation to her:
“1st. For any pain of body or mind which the jury believe from the evidence she has suffered or will suffer by reason of said injuries and directly caused thereby.
“2d. For any loss of the earnings of her labor which the jury believe from the evidence she has sustained, or will sustain, by reason of said injuries and directly caused thereby.
“3d. For any expense necessarily incurred for medicines, medical or surgical attention, to the reasonable value thereof, which the jury believe from the evidence she has incurred by reason of said injuries and directly caused thereby.”

(a) It is assigned for error and argued that the instruction is bad because it does not limit recovery for future pain to such as was “reasonably certain to result” from her injuries. We are cited to Waddell v. Railroad, 113 Mo. App. l. c. 687, as authority for that proposition, However sound, the proper application of it can only be got at by looking to the context; for the doctrine of nosciiur a sociis applies. The text of the Waddill case reads:

“In plaintiff’s third instruction the direction relating to damages for future pain and suffering is subject to the criticism that it failed to restrict the consideration of the jury to such damages as are reasonably certain to result from the injury. Speculative, contingent or merely probable results are not a proper element of damages.”

Observe that following the phrase, “reasonably certain to result from the injury,” the court at once went on to say what concrete mischief it was striking at, viz., mere speculative, contingent or probable damages. Doubtless when Judge Johnson wrote the quoted clause he had before his eyes an instruction violating the rule announced. What the obnoxious words were we know not. Before, however, the pronouncement be taken as authority for the criticism leveled at the instruction we are dealing with in the instant case, we would have to know that the vice in the instruction criticized by him was precisely the same as the alleged vice in the instruction now held in judgment. Evidently that cannot be true, as presently shown, therefore the Waddell case is not in point.

Our instruction puts it to the jury to find damages for pain of body or mind which the jury believe from the evidence she has suffered or will suffer by reason of said injuries “and directly caused thereby.” That restriction is more rigid on plaintiff and leaves less play for the jury’s rambling at will than the rule announced in the Waddell case. Therefore, if plaintiff was entitled to an instruction allowing recovery for injuries “reasonably certain to result” there could be no error in favor of defendant by cutting down plaintiff’s right to those damages “directly caused” by her injuries; for, as said “directly caused” fetches a smaller compass than “reasonably certain to result.” A result cannot be directly caused that is not reasonably certain to result, but a thing may be reasonably certain to result that is not directly caused but is indirectly caused. ' So, the word “directly” more clearly indicates proximate cause to the exclusion of remote cause.

(b) The final criticism of the instruction is aimed at its second paragraph, to-wit: “For any loss of the earnings of her- labor which the jury believe from the evidence she has sustained, or will sustain, by reason of said injuries and directly caused thereby.” It is argued that there is no evidence to support that charge.

It will be profitable to attend to the petition and evidence in order to pass on the point understandingly. The petition sets forth the particulars of her disability and then alleges, inter alia, “that by her injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind, has been permanently crippled and disabled from labor and avocation as the keeper of a rooming and boarding house, has lost and will lose the earnings of her labor and avocation,” etc. Other items of loss and damage are set forth. However, the petition counts on damages in gross and does not put a value on the various elements of her damage. No question was made below on this method of pleading nor is any such question raised here. When it came to the evidence it is meager, but yet there was evidence directed to that averment, admitted without objection, viz.:

She testified she was keeping a rooming house and realized a net amount of between $75 and $80 a month when her house was full. That after her injuries she could not carry on her business to amount to anything; that she kept the roomers that were in the house but never tried to get any one-else. That a Miss Davis who was in the house took care of plaintiff and of the house after her injury. That she had eighteen rooms and fifteen roomers at the time of her injury and got $5.50 as the highest price for any room. She did not furnish meals, but rented out rooms. She had been running that rooming house since 1906 up to the time of her injury and her duties in keeping it had kept.her busy. She applied her labor to that business. As said, she was totally disabled for six weeks and in bed, went on crutches for nine months and is lamed for life. There was uo estimate by any witness in dollars and cents of her damages in loss of “the earnings of her labor,” nor any testimony from which the amount could be calculated with precision, but yet it is obvious there was a substantial, actionable injury and loss in that regard. It was neither damnum absque injuria nor vice versa.

Under that testimony, indefinite as it was, as argued by her counsel, she was entitled to go to the jury on that item and recover at least nominal damages.

The rule is that for every actionable injury there is a corresponding right to damages and such an injury arises whenever a legal right of plaintiff is violated. “If there is no inquiry as to actual damages, or none appears on inquiry, the legal implication of damage remains . . ., therefore nominal damages are given.” [Suth. on Dam. (3 Ed.), sec. 9; 13 Cyc. 14.]

It is not necessary in this case for us to hold one way or the other on whether she could recover more than nominal damages. This is so because the modest size of her verdict, considering her confessed grievous hurts and permanent injuries, together with her undisputed pain of body and mind, shows that the jury could not have allowed her anything of substance on the score of “lost earnings of her labor.” We feel sure of this, because, deducting her conceded doctor’s bill and the item for medicine, totalling $115, there is left only a judgment of $1042.09 as jnst compensation for the broken leg, a. dislocated ankle, a permanent disability and tbe consequent suffering of tbe widow.

(c) Moreover, if it be taken for granted, arguendo, that she was entitled to no more than nominal damages for loss of the earnings of her labor under the state of the proof, and that the jury should have been told so, yet, taking her smalt verdict, we cannot bold the error, if any, affected the merits and constituted reversible error. [Shinn v. Railroad, 248 Mo. 173.] We must “believe” the merits were affected to the injury of appellant before we can reverse a judgment. [R. S. 1909, sec. 2082.] We have no such belief, but contra.

(d) But was it error at all? We think not. Tbe instruction as it stood was well enough as a general instruction. If, now, defendant wanted it limited to nominal damages should it not have asked one on its own part with that limitation? We think so. [Browning v. Railroad, 124 Mo. l. c. 71 et seq.] This it did not do. Mere indefiniteness in a general instruction, when appellant stands mute and asks none, is not reversible error. [2 Thomp. on Trials (2 Ed.), sec. 2341.]

Let the judgment be affirmed. It is so ordered.

All concur.


author: BOND, J.

text:
    BAGNELL TIMBER COMPANY v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. LIEN: Notice: Repetition: Self-Serving Testimony. Testimony by plaintiff’s attorney, who prepared the lien claim and notice as for a sale of ties to a tie company, that when he presented the notice in that form to plaintiff’s officers they objected to it, and though he filed it in that form he after-wards went bo plaintiff’s office, ascertained the facts, prepared a new notice showing a sale to said t-ie company and to defendant railroad company as purchasers, and had it served on both, is not so self-serving as to he incompetent, since it would be manifestly unfair to plaintiff to permit defendant to use the first notice to show no joint liability was claimed against the railroad company, without permitting it to show the .second notice was made for the purpose of rectifying the first.

      a. STARE DECISIS. Where a case was tried in accordance with the law as declared on a former appeal, and the same result was reached, the judgment will be affirmed.
    Appeal from Pettis Circuit Court. — Hon. Hopkins B. Slain, Judge.
    Affirmed.

      Lee W. Hagerman and Montgomery <& Montgomery for appellant.
    (1) The second lien notice introduced by plaintiff was not admissible because it was a self-serving document made by plaintiff contradicting a former written admission relating to the very issue of fact on trial. Pearsall v. McCartney, 28 Ala. 110; Taylor v. Brown, 4 Atl. (Md.) 888; Edwards v. Osman, 19 S. W. (Tex.) 868; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 249; Clark v.- Huffaker’s Adm., 26 Mo. 269. (2) There was no evidence that the railway company purchased the ties of the plaintiff. Hence defendant’s demurrer to plaintiff’s evidence should have been sustained. (3) Plaintiff’s instruction numbered one was erroneous, because misleading. It practically amounted to a peremptory instruction to find for plaintiff. (4) Plaintiff’s instruction numbered two was erroneous and mis-' leading to the jury. It was in effect a peremptory instruction to find for the plaintiff. (5) Plaintiff’s instruction numbered 3 was erroneous because it submitted to the jury a mixed question of law and fact, viz : the question of who was the purchaser of the ties from plaintiff under the contract between the plaintiff, Graham & Miller and the railway company. To determine that issue the jury must first find what the contract was and then they must construe it and decide whether the railway company is liable hereunder or not. A mixed question of law and fact should not be submitted to a jury. Jordan v. Hannibal, 87 Mo. 677. (6) Under all the evidence the court should have given defendant’s peremptory instruction at the close of all the evidence because there was no evidence from which it might reasonably be inferred that the railway company agreed to pay the plaintiff for the ties. (7) There was-no evidence that the defendants, Graham & Miller, had any authority to contract for the purchase of the ties as the railway company’s agents, and no evidence that the plaintiff dealt with Graham & Miller as agents for the railway company, but it affirmatively appears that the plaintiff knew that Graham & Miller were agents for the railway company and that plaintiff so dealt with them.

      J. H. Bothwell and Charles E. Yeater for respondent.
    (1) Appellant’s points to the effect that the trial court should have given a peremptory instruction at the close of the plaintiff’s evidence and also at the close of the whole case, have been expressly ruled against it on the same facts set forth in the bill of exceptions stenographed in the first trial, and read on the second and third trials, and such ruling is therefore res adjudicata. Bagnell Timber Co. v. Railroad, 242 Mo. 19. (2) Plaintiff’s instructions 1 and 2 of which appellant complains, are word for word the same as the declarations of law at issue in the second appeal, except the formal change in the introductory words to the ordinary form customary in jury instructions; and furthermore the same principles incorporated in plaintiff’s instructions 1 and 2 are embodied by appellant in its instructions 2, 3 and 4, and .appellant cannot change its theory in this court, nor repudiate the law announced by this court, in the second decision, which appellant adopted below. Bagnell Timber Co. v Bailroad, 242 Mo. 16. (3) Appellant’s criticism of the concluding words of plaintiff’s instruction 3 reading: “And the court further instructs the jury that they should come to their determination on such question of who was the purchaser of such railroad ties by a full consideration of all the facts and circumstances in evidence,” is exceedingly hypercritical and sophistical, and wholly without merit; and, moreover, the appellant itself used almost the same words, on the same exact issue, in its given instruction 3 to the jury; and such clause in the instructions of both parties must of course be taken and read with all the other instructions in the case. (4) The law does not require a direct promise, or any kind of a promise whatever, when a price is agreed on and the contract of sale becomes executed by delivery to the purchaser. Southwestern F. & C. P. Co. v. Standard, 44 Mo. 83; Frazier v. Eailroad, 104 Mo. App. 358; Southwestern F. & C. P. Co. v. Plant, 45 Mo. 519; Cunningham v. Ashbrook, 20 Mo 553; Glenny v. Hick-ens, 4 How. Prac. 98; Nance v. Metcalf, 19 Mo. App. 188; Martin v. Ashland Mill Co., 49 Mo. App. 2-9; Glass v. Blazer Bros., 91 Mo. App. 564; State v. Wingfield, 115 Mo. 436; Whitman Agl. Assn. v. Nat. Bailway Assn., 45 Mo. App. 90; Stresonit v. Kestling, 63 Mo. App. 62; Tiedeman on Sales, sec. 247; Baker on Sales, sec. 283; Meachem on Sales, secs. 1, 1406, 1407. (5) Eelative to the claim that the second lien notice of October 26, 1899, was inadmissible, a written admission against interest may be shown to have been a mistake of the party, or his attorney, and where a defendant has introduced a written document as an admission of plaintiff, the latter may introduce his subsequent writing on the same subject in rebuttal as corrective and explanatory of the first writing. Blair v. Marks, 27 Mo. 585; Duncan v. Matney, 29 Mo. 377; Frazier v. Ins. Co., 161 Mo. App. 716; Warfield v. Lindell, 32 Mo. 287; Allen v. Leonard, 82 Mass. 202; Wild v. B. & L. Assn., 60 Mo. App. 200; Bernstein v. Fullers Ex. Co., 137 N. Y. Supp. 910; Lexow v. Belding, 76 N. Y. Supp. 602; Gordon v. Munn, 125 Pac. 1; Mahon v. Rankin, 102 P'ac. 608; Morgan v. United States, 169 Fed. 251; Limerick v. Lee, 87 P'ac. 850; Queatham v. Modern Woodmen, 148- Mo. App. 43; Lucks v. Bank, 148- Mo. App. 382. (6) The second notice of the lien served October 26, 1899, was a claim of indebtedness for the ties to the railway company and was thus proper evidence as a demand to start interest on a sale such as this resting mainly in parol, and such notice was a legal demand when made. Sec. 7179, R. S. 1909; Williams v. Railroad, 153 Mo. 548; Van Riper v. Morten, 61 Mo. App. 440.
    STATEMENT BY THE COURT.
    This suit was brought against the defendant railroad company and the firm of Graham & Miller to recover a balance of $5422.50, alleged to be due under a joint contract made by said defendants with plaintiff for railroad ties delivered to defendant railroad company, for which the plaintiff prayed judgment and also for a lien therefor upon the roadbed and track belonging to the defendant. Process was not served upon the firm of Graham & Miller, and the cause was dismissed as to them. The answer of the railroad company denied that it had any contract with plaintiff for the purchase of these ties, either jointly or severally; and averred that its co-defendants, Graham & Miller, were its general tie contractors and that they had entered into the contract with plaintiff- — the detailed terms and conditions of which it did not know and with which it had no concern; that it paid to its said co-defendants the purchase price of the ties delivered to it by them. Issue was joined by reply, and the case was tried upon an agreed statement of facts and upon oral testimony. This stipulation while not denying the correctness of the sum claimed to be due as a balance by plaintiff on account of ties delivered to defendant railroad company and used by it, expressly recited that nothing therein contained should be construed as an admission concerning the nature of the contract or as to who were the parties to the contract under which said ties were furnished and delivered by plaintiff, and left the rights of the parties to be determined under the issues joined by the pleadings and the evidence respectively adduced by them.
    Upon the trial, the circuit court rendered a judgment against the defendant and adjudged it to be a lien upon the property described in plaintiff’s petition, from which it appealed to this court. On the hearing of said appeal, it was ruled that plaintiff was not entitled to any lien, inasmuch as the ties in question were not used upon any part of the line' of defendant railroad lying or situated within the State. It was further ruled that under the allegations of a joint contract on the part of defendants contained in plaintiff’s petition it was not entitled to a personal judgment against the defendant'railroad, for the reason that there was no proof in the record that the defendant railroad and its co-defendants had entered into the joint contract sued upon;' and the cause was reversed and remanded. [Bagnell Timber Go. v. Railroad Co., 180 Mo. 420.]
    Upon the second trial in the circuit court, the defendant had judgment, from which plaintiff appealed to this court. On the hearing of that appeal this court receded from the view expressed in its former opinion as to the necessity of proving the contract between plaintiff and the two defendants to be a joint one in order to entitle plaintiff to recover under its petition in this case, and held that a recovery might be had in this suit if the jury should find from the evidence that plaintiff made the contract to sell the ties in question with, the defendant, either jointly or severally, and that the record afforded evidence for the submission of that issue to the jury; and the cause was remanded to be tried in conformity. [Bagnell Timber Co. v. Railroad, 242 Mo. 11.] When it was again tried, plaintiff had a personal judgment against defendant, from which the present appeal has been prosecuted, where the errors assigned relate to the admission of evidence and to the giving of instructions on behalf of plaintiff and to the sufficiency of the evidence 'to show a contract of purchase between the plaintiff and defendant.
   OPINION.

BOND, J.

(after stating the facts as above).

I. There is no merit in the contention that the record fails to show any evidence tending to prove that the contract for the sale of the ties was made between the plaintiff and defendant. The record on that subject is exactly as it was when the case was last here, when it was ruled that it afforded ample evidence on which to submit that issue to the jury. This assignment of error is, therefore, ruled against appellant.

II. It is next insisted that the instructions given by the trial court were erroneous. It is a sufficient answer to say that on the last appeal this cause was reversed and remanded for the failure of the court to give two instructions set out in the opinion of the court which the trial court had refused to give at plaintiff’s instance and which this court held should have been given, and that those two instructions, except the changes necessary to transform them from declarations of law into instructions to juries, are identical with the ones which are complained of on the present appeal. We, therefore, rule this, assignment against appellant.

III. Lastly, it is contended by appellant that the court erred in permitting plaintiff to show by the testimony of its attorney, who prepared this lien claim and notice thereof as for a sale made by P^^iff Graham & Miller, that when he presented this paper to the officers of the plaintiff corporation they objected to that statement, and that though he filed the notice in this form, he afterwards went back to the office of the plaintiff, found out the facts and prepared a new notice five or sis days later, showing that the sale was made to the defendant railroad company and the said Graham & Miller as joint purchasers. Under these facts we do not think this second notice is under the ban of the rule prohibiting the introduction in evidence of a self-serving statement. The testimony discloses that the original draft of the lien claimed and notice thereof, was prepared by the attorney without full consultation which his clients and that upon the ascertainment by him of the facts as to the parties to the contract, he filed one in strict accordance with their instructions.

It would be obviously unfair to use the first draft of that document against the plaintiff without permitting it to show the second notice made for the purpose of rectifying the former and showing the real nature of its claim against defendant. This matter of filing the claim for a lien was all one transaction and did not become otherwise by the lapse of the few days necessary for the attorney to ascertain the facts before amending his claim in accordance therewith. As the defendant had used a part of this transaction, the plaintiff was entitled that the whole of it should be disclosed to the jury.

IY. This cause has been tried in conformity with the laws declared on' its last appeal. The result is the judgment must be affirmed.

All concur.


author: GRAVES, J.

text:
    THE STATE ex rel. FRANKLIN COUNTY, Appellant, v. TIBBE ELECTRIC COMPANY.
    Division One,
    May 31, 1913.
    1. PETITION: Cause of Action: Defaulting Corporation'. A petition, in a. suit brought by the State in the name of the county, charging, in the language of the statute, that defendant is a corporation and has failed to make a report to the Secretary of State, showing the location of its principal office, the name of its president and secretary, the amount of its capital stock, both subscribed and unpaid, its par value, the cost value of its property on the first day of June immediately preceding, and the amount of taxes it has paid within the last year, states a good cause of action for a judgment against defendant asking for the penalty fixed by the statute.
    2. CORPORATION: Annual Report to Secretary of State: Constitutional Statute: Not Properly Raised. A demurrer that points to no provision of the Constitution which it is alleged the statutes under which defendant is being prosecuted violate, does not raise any constitutional question. A demurrer that states the petition is founded solely upon certain sections of the statutes and that “said sections are in violation of the Constitution of the State of Missouri and null and void, and therefore that said petition does not state facts sufficient to constitute a cause of action,” does not sufficiently raise the constitutionality of the statutes named, and, therefore, the court erred in sustaining said demurrer.
    Appeal from Franklin Circuit Court. — Ron. R. Steele Ryors, Judge.
    Reversed and remanded.

      Jolm T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for appellant.
    (1) The petition follows tlie language of the statute, and is sufficient in form. Sec. 1013, R. S. 1899; sec. 3026, R. S. 1909; State ex rel. v. Land Co., 97 Mo. App. 226; Sec. 3028, R. S. 1909. (2) The second ground of the demurrer does not raise a constitutional question: (a) Such question cannot be raised by demurrer. Sec. 1800, R. S. 1909; State v. Rich, 20 Mo. 393. (b) The allégation as to constitutional violation is too general, indefinite and uncertain to raise a constitutional question. Lohmeyer v. Cordage Co., 214 Mo. 688; Street v. School Dist., 221 Mo. 671; Ash v. Independence, 169 Mo. 78; 8 Cyc. 800, see. 4 — b, note 73. (3) Statutes are always presumed to be constitutional, and will be treated as such until the contrary is shown. State v. Thompson, 144 Mo. 314; Ex parte Renfro, 112 Mo. 591; State v. Watts, 111 Mo. 553; State v. Searcy, 111 Mo. 236; 8 Cyc. 801, note 74. (4) A county being a party to this suit, vests jurisdiction in this court. State ex rel. v. Dent, 121 Mo. 162; Cor-bin v. Adair County, 171 Mo. 385.

      John W. Booth for respondent.
   GRAVES, J.

This is an action to recover the penalty provided by statute for failure of defendant to make report to the Secretary of State as required by law. The cause comes to us from the circuit court of Franklin county. The petition or information reads:

“State of Missouri ex rel. Franklin County, Plaintiff, v. Tibbe Electric Company, Defendant.
“Plaintiff states that on the first day of June A. D. 1909, and from that date up to the present time, defendant was, and still is, a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, and plaintiff states that at the times mentioned defendant was, and now is, a corporation whose stock is divided into shares, and that it was not a railroad, building and loan, or insurance corporation, nor a corporation exempted from taxation by the laws of the State of Missouri.
‘‘Plaintiff complains of the defendant herein, and for causes of action states that defendant failed to report to the Secretary of State of the State • of Missouri on the first day of July A. D. 1909, or within sixty days thereafter, the location of its principal business •Office, the name of its president and secretary, the amount of its capital stock, both subscribed and paid up, the par value of its stock at the time of making said report, the cash value of all its personal property, and of all it's real estate within this State, on the first day of June immediately preceding, and the amount of taxes, city, county and State paid by said defendant in this State for the year preceding the report.
“Wherefore plaintiff prays judgment against the defendant in the sum of one thousand dollars, and the costs of this action.
“W. L.' Cole,
“Prosecuting Attorney within and for Franklin County, Missouri.”

To the petition the defendant filed a demurrer in this language:

“Now comes the defendant in the above entitled cause and demurs to the petition of plaintiff filed in said cause, and for grounds, of said demurrer,' said defendant assigns the following, to-wit:
“1st. That said petition does hot state facts sufficient to constitute any cause of action.
“2nd. That the facts stated in said petition show that the said petition is founded solely on the provisions of sections 1013, 1015, 1016 and 1017, Revised Statutes 1899; and said defendant demurs to said petition upon the grounds that the provisions of said sections of said Revised Statutes are in violation of the Constitution of the State of Missouri, and therefore null and void, and therefore said petition does not state facts sufficient to constitute any cause of action. ’ ’

This demurrer was sustained by the court, and the plaintiff refusing to plead further, judgment was 'entered up against the plaintiff, and the appeal here is from such judgment. Sections 1013, 1015, 1016 and* 1017, Eevised Statutes 1899, are now sections 3026, 3028, 3029 and 3030, Eevised Statutes 1909. We are interested now in the first and last of the four named sections. Section 3026 reads:

“Sec. 3026. Every incorporated company, other than railroad, building and loan and insurance companies, and such .corporations as are exempted from* taxation by the laws of this State, whose capital stock is divided into shares, shall, annually, on the first day of July, report to the Secretary of State the location of its principal business office, the name of its president and secretary, the amount of its capital stock, both subscribed and paid up, the par value of its stock and the actual value of its stock at the time of making said report, the cash value of all of its personal property and of all its real estate within this State on the first day of June immediately preceding, and the amount of taxes, city, county and State, paid by the corporation in this State for the year last preceding the report.

Section 3030, supra, reads:

‘‘ Section 3030. Every incorporation to which sections 3025 to 3034, inclusive, apply, failing, within sixty days from July the 1st in each year, to make the report herein provided for, shall be subject to a fine of not less than fifty nor more than one thousand dollars for each offense, and each succeeding thirty days of such failure shall constitute a separate offense and be subject to a like fine, which said fines shall be cumulative, and one action may be maintained to recover one or more such fines, to be recovered before any court of competent jurisdiction. No suit shall be maintained for any such offense unless brought within six months from September 1st of the year in which the report is due, which date shall be the time when such right of action accrues; and it is hereby made the duty of the Secretary of State, as soon as practicable %-fter the first day of September in each year, to report to the prosecuting attorney of the county in which any such delinquent corporation may be located, the fact of its failure to make the required report, and the prosecuting attorney shall, at the first court term after he receives the report from the Secretary of State, institute proceedings in the name of the State, "at the relation of the county, to recover the fine or fines herein provided for, which shall be applied to the county revenue fund, except that for instituting and prosecuting said suits the prosecuting attorney shall receive as his compensation one-fourth of the penalty collected; and in case any such suit shall be taken to either of the Courts of Appeals qr the Supreme Court, then the Attorney-General is hereby required to assist the prosecuting attorney, and the Attorney-General shall also be entitled to one-fourth of the amount recovered from the corporation violating the law. The Secretary of State shall, whenever a corporation makes its report after the time provided by law for .the making of such report, certify that fact to the prosecuting attorney.”

This sufficiently outlines the case.

I. We are not favored with a brief by the respondent, and hence will have to take the points made by the demurrer as expressive of the views of its counsel. Going to the first point in the demurrer we have a general charge of insufficiency of the petition. The petition seems to cover the cause of action given by the statute and in the substantial language of the statute. The petition appears to have been copied from the one set out in State ex rel. v. Missouri Exploration & Land Co., 97 Mo. App. l. c. 228, except that it obviates the objection made to that petition in so far as the relator is concerned. In that case, the relator was the circuit attorney of the city of St. Louis, and Goode, J., whilst sustaining the petition, under the peculiar facts of that case, suggested that the city was the proper relator there, and in the counties that the county was the proper relator. In the case at bar the county is the relator, thus conforming to the views of Judge Goode. Under the ruling of Judge Goode the petition in this case is good, and we are satisfied with his reasoning.

II. The second ground of the demurrer cannot be sustained because the defendant points to no provision of the Constitution which is vioky those sections of the statute. It has long been ruled that a finger must be placed upon the provision of the Constitution alleged to be violated, before the question is sufficiently raised to require notice. General allegations, as here found, will not do. [Lohmeyer v. Cordage Co., 214 Mo. l. c. 688, and cases cited, and Street v. School District, 221 Mo. l. c. 671, and cases cited therein.] But for the county being the real party interested we would have no jurisdiction of this case. There was therefore error upon the part of the trial court in sustaining this demurrer, and the judgment is reversed and the cause remanded.

All concur.