author: WALKER, J.

text:
    HEMAN CONSTRUCTION COMPANY v. J. DENNISON LYON, Trustee, et al., Appellants.
    Division Two,
    March 28, 1919.
    1. PUBLIC IMPEOVEMENT: Advertisement for Bids: Absence from Ordinance. Where a charter provision for advertising for bids for a public improvement is ample in itself to give notice to the public of the proceeding and to afford an opportunity to contractors to bid. for the work, and that provision is minutely observed, tax bills for such improvement are not void on account of the omission from the ordinance authorizing the improvement of a provision directing the manner' in which the advertising was to be done.
    2. -: -: -: Jurisdiction. A city charter containing ample provisions for advertisement for bids for the construction of a public improvement and those provisions being in all things complied with, absence from the ordinance ordering the improvement of a requirement to advertise for bidders did not, through lack of jurisdiction, render invalid a contract entered into by the board having the work in charge.
    3. -: Delay: Rejection of Bids. A delay in letting a contract for a public improvement and in completing the work, if time is not of the essence of the contract and the delay was not caused by the contractor, but by successive rejections of bids by the board, acting in good faith, in attempts to secure lower prices, although unsuccessful, will not invalidate the tax bills issued in payment of the work.
    4. SEWER: Constructed in Sections. Under the charter of the City of St. Louis tax bills issued in payment "for the construction of a section of a joint district sewer are not void because the ordinance is not comprehensive of the work of constructing the entire sewer.
    5. -: -: Different Charter Methods: Legislative Discretion. Where one section of a city charter provides one possible method of constructing a joint district sewer and another section another possible method, the municipal assembly has a discretionary power to adopt either, especially if a ruling that the method prescribed by one section must be followed would be to nullify the other section.
    6. -: -: Taxing Whole District for Sectional Sewer. A sewer district having been established by municipal authority, it is. the duty of the proper city officials to provide adequate sewers therein as needed, to be paid for by the entire district, and the presumption will be indulged that they will perform this duty as speedily as the needs demand; -therefore tax bills issued for the construction of a section of the sewer will not be void on the sole ground that the entire sewer plan was not definitely ascertained and provided for in advance.
    7. -: -: -: Constitutionality. An ordinance which taxes all the property of a district for the construction of a section of a sewer is not unconstitutional and is immune from collateral attack on that ground, unless it is affirmatively shown that the power to enact such ordinance, having been granted to the municipal assembly by the Legislature, has been exercised arbitrarily, fraudulently and oppressively.

      8. ^-: Cost in Excess of Estimate. Absent from tbe charter of a restriction of the cost of a sewer to the estimated cost, and absent any showing of bad faith, the tax bills are not void for that the actual exceeded the estimated cost.
    9. -: City’s Portion of Cost. The failure of the city to specifically appropriate enough money to pay its share of the cost of the sewer to be constructed, prior to the letting of the contract, does not invalidate the tax bills issued against private property-benefited, the burden of such property-owners being in no wise increased even though the city never pays its share.
    Appeal from St. Louis City Circuit' Court. — lion. Leo S. Rassieur, Judge.
    AFFIRMED.

      C. R. Skinker for appellant.
    (1) The trial court erred in holding the tax bills valid, because the ordinance authorizing the work for which they were issued contained no direction to advertise for bids. Sec. 27, Art. 6, St. Louis Charter 1902. The words “the same” in that section refer to the antecedent “ordinance authorizing the doing of the work.” 2 Kent’s Comm. (14 Ed.) sec. 555; Coke on Litt. (1 Am. Ed.) secs. 20b, 38b; Smith v. Boyd, 101 N. Y. 472. Comparison of Section 27 with its predecessor under former charter as construed by the courts shows that the amendment thereof by the Charter of 1902 abolishes the previous judicial construction • for which respondent contends here. Plummer v. United States, 224 U. S. 144; State v. Railroad, 242 Mo. 359; State v. St. Louis, 153 Mo. 22; Brewing Co. v. Canandaigua, 44 N. Y. Supp. 320. The doubt in construction must be resolved in favor of appellants. St. Louis v. Realty Co., 259 Mo. 136; Albers v. St. Louis, 268 Mo. 360; Re Clark’s Will, 270 Mo. 362; Gould v. Gould, 245 U. S. 153. The failure to obey this command of Section 27 invalidates •the bills. Eyermann v. St. Louis, 265 Mo. 529; Ruggles v. Collier, 43 Mo. 376'; St. Louis v. Clemens, 43 Mo. 404; Riley v. Oppenheimer, 55 Mo. 374; Saxton v. St. Joseph, 60 Mo. 153; Leach -v. Cargill, 60 Mo. 316; Trenton v. Coyle, 107 Mo. 193; Nevada v. Eddy, 123 Mo. 546; Ver-din v. St. Lonis, 131 Mo. 97. (2) The trial court erred in holding the tax bills valid, because: (a) Two years, four months and twenty-four days elapsed between the assembly’s direction to the board to let a contract for the work and the letting thereof. Barber Co. v. Brick Co., 170 Mo. App. 503. That was an unreasonable delay, invalidating the bills. Freeh v. Lewis, 218 Pa. 144; Scan-nell v. Fountain -Co., 161 Mo. 606; Wickwire v. Elk-hart, 144 Ind. 305; Goodwyn. v. Chevely, 4 Hurt & N. 633. (b) The delay in completing the work was likewise fatal to the bills. (3) The trial court erred in holding the bills for part of the work valid, because there was no ordinance specifying the whole work and prescribing that it should be contracted for and done in parts. Sec. 28, Art. 6, Charter 1902. This provision is mandatory and in the interest of taxpayers. Superviors v. United States, 4 Wall. 445; Galena v. Amy, 5 Wall. 705; Steines v. Franklin County, 48 Mo. 178; State v. King, 136 Mo. 309. The, intent of Section 28 was to specify the whole work to be ultimately completed. If not so specified by ordinance, the doing of only part thereof does not justify issuance of tax bills for the part. St. Louis v. Clemens, 49 Mo. 552; Kiley v. Cranor, 51 Mo. 541; Independence v. Gates, 110 Mo. 385; Bloomington v. Reeves, 177 Ill. 161; Spaulding v. Wesson, 115 Cal. 441; State v. Chamberlain, 37 N. J. L. 388; Water Co. v. Paterson, 65 N. J. L. 472; State v. Elizabeth, 37 N. J. L. 334; Kansas City v. Railroad, 230 Mo. 369. Such an ordinance is jurisdictional and its absence invalidates the bills. Tarkio v. Clark, 186 Mo. 298; Pash v. St. Joseph, 257 Mo. 332; Delmar Co. v. Lewis, 271 Mo. 324. (4) The trial court erred in holding valid the tax bills issued for part only of a work whose full completion was not guaranteed by ordinance as required by charter, because the enforcement of such-bills would take appellants’ property without due process of law guaranteed by Secs. 21 and 30, Art. 2, Mo. Constitution, and the Fourteenth. Amendment to U. S. Constitution. A tax based upon a benefit not rendered or guaranteed violates both constitutions. Jaicks v. Oppenheimer, 175 S. W. 972; State v. Elizabeth, 37 N. J. L. 334; Same case, 40 N. J. L. 274; St. Louis v. Allen, 53 Mo. 55; Verdin v. St. Louis, 131 Mo. 26; Eyermann v. St. Louis, 265 Mo. 529. It would be a taking in substantial excess of the benefit rendered prohibited by the Federal Constitution. Norwood v. Baker, 172 U. S. 279. The uncertainty whether the entire work will be completed, and .what that entire work is, requires the court to hold the bills violative of the Fourteenth Amendment. Harvester Co. v. Kentucky, 234 U. S. 216; Collins v. Kentucky, 234 U. S. 634; Seeding Co. v. Kentucky, 236 U. S. 660. (5) The trial court erred in holding the tax bills valid because the city has failed to specificially appropriate by the ordinance authorizing the work enough money to pay its share- of cost, prior to the acceptance of plaintiff’s bids. Sec. 28, Art. 6, Charter 1902; Mister v. Kansas City, 18 Mo. App. 226'; Perkinson v. St. Louis, 4 Mo. App. 322; Keating v. Kansas City, 84 Mo. 415. The ordinance and contract to do the work were an entirety and the failure in this respect invalidated the whole contract. Kansas City v. O’Connor, 82 Mo. App. 660; Warren. v. Commissioners, 181 Mass. 8; Railway v. South Bend, 227 U. S. 551. The city could not validate the contract let without authority, by making subsequent appropriations. Graves v. Saline, Co., 161 U. S. 374; Dennis v. Brotherhood, 119 Mo. App. 221; Dickey v.~ Holmes, 109 Mo. App. 721; Railroad v. Chicago, 174 Ill. 442; Hampton v. Clinton, 36 Vroom 158; Bayha v. Taylor, 36 Mo. App. 444; Barton v. Kansas City, 110 Mo. App. 39; Bowditch v. Boston, 168 Mass. 243; Warren v. Commissioners, 183 Mass. 6.

      Rodgers & Koerner for respondent.
    (1) All the advertising for bids required by the charter was had. City Charter, Amendments of 1901, art. 6, sec. 27; Bambrick Bros. v. Campbell, 27 Mo. App. 460. (2) Delay in letting of the contract is no defense to the special tax hills. Jaieks v. Middlesex Inv. Co., 201 Mo. Ill; Jones v. Paving Co., 174 Mo. App. 393. (a) If any explanation for the delay in letting the contract were required, it is found in the fact that bids were advertised and received three times before the work was let. (b) The charter conferred on the Board of Public Improvements full power and authority to reject all bids and re-advertise. City Charter, Amendments of 1901, art. 6, sec. 27. (3) It was not necessary to provide by one ordinance for the construction of all the sewers in the joint sewer district, where same was to be done in sections. City Charter, Amendments of 1901, art. 6, sec. 22. But in this instance the ordinances providing for sections one and two, adopted simultaneously, did in fact provide for the whole joint district sewer. (4) There was- a proper estimate made of the cost of doing the -work. And that the actual cost may have exceeded the estimate is immaterial. Kelly v. Morton, 175 Mo. App. 296. The charter did not limit the contract price or cost of the work to the amount of the estimate. (5) It is immaterial that the first appropriation was insufficient to pay the city’s share of the ultimate cost of the work, because that circumstance could not in any manner increase the burden of the property owner. Hill v. Swingley, 159 Mo. 45; Schneider G-ranite Co. v. Gast R. & I. Co., 259 Mo. 153.
   WALKER, J.

This appeal seeks the review of a suit tried in the circuit court of the City of St. Louis, which resulted in a judgment in favor of respondent, for the enforcement of the lien of six special tax bills against parcels of land owned by appellants. These bills had been issued by said city to the respondent, for the construction of what was designated as a Second Section of the North Harlem Joint District Sewer. Numerous special defenses were interposed. We will examine those to which the appellants call attention in their assignment of errors, which are as follows:

That the trial court erred in not finding for appellants upon the whole record; that appellants’ declarations of law should have been given; that the tax bills violated rights guaranteed under Section 21 or Section 30, Article 2, of the Constitution of Missouri, and the Fourteenth Amendment of the Constitution of the United States.

I. Appellants contend that the ordinance authorizing the work contained no provision requiring an ad- [’ vertising for bids, and that the tax bills issued thereunder were consequently invalid. This contention, more briefly put, is that the ordinance is void in not directing the Board of Public Improvements to advertise for bids in a particular manner.

"While the ordinance authorizing this work was silent as to the manner in which the advertisment for bids was to be made, the charter relative thereto, in force at the time of these proceedings, provided that: “The Board of Public Improvements shall prepare and submit to the Assembly an ordinance, with an estimate- of the cost endorsed thereon, by the president of the board, authorizing the doing of any proposed work, and under the direction of the ordinance authorizing the same, shall advertise for bids, in the papers doing the city printing, three times, the last publication to be at least ten days before the day appointed for the opening of the bids, stating the general nature of the work to be done and the time and place when the bids will be received, and shall let out said work by contract to the lowest responsible bidder. Any other mode of letting out or contracting for work shall be held as illegal and void. But when so provided in the ordinance authorizing or directing the work to be done, the advertising may be for a different period, and in other papers than those provided above.” [Part of Sec. 27, Art. 6, Charter of St. Louis, adopted Oct. 20, 1901.]

The manner of the required advertisement is thus clearly and directly prescribed, and that it was pursued as thus directed, there is no controversy. If provision had been made in the ordinance as to the manner of the advertising, it would have accomplished no purpose, unless another mode than that authorized by the charter had been indicated.

In Bambrick v. Campbell, 37 Mo. App. l. c. 465, the St. Louis Court of Appeals, in an opinion by Eombatjbe, P. J., in discussing a provision of the city charter then in force, in relation to the purchasing of supplies, held, that “where the charter prescribed that the municipal assembly shall provide by ordinance for the purchase of all articles by the commissioner of supplies by advertising for proposals, and then stated in detail the manner of advertising and the opening of bids, and the awarding of contracts, that the object of the charter was to make advertisements and bids for public work conform to this 'provision, and that the ordinance referred .to,' in the charter provision above quoted, ‘under the direction of the ordinance,’ meant an- ordinance providing for advertising which conforms in details to the charter requirement in advertising for bids for supplies; and that the object of the provision was to secure to the public the same particularity and exactness in advertisements for public work as the charter requires in advertisements for supplies. No claim is made that the board did not advertise for this work, as required by the charter provision; the only claim being that the advertisement was not provided for in the ordinance providing for the improvement.” Under this state of facts, the court held that there was no merit in the assignment as to the insufficiency in the advertisement.

The purpose of advertising is to secure competitive bids. This can be as effectively accomplished under the power granted by the charter as if prescribed in an ordinance; that the latter might, under the authority of the charter, have provided for a ddifferent manner of publicity than is required by the former, it may be admitted. Of this, however, appellants do not complain, hut simply of the absence of a provision from the ordinance directing the manner in which the. public was to be notified that bids for the work would be received. It is true that in the imposition of public burdens upon private property, the law' authorizing same should be strictly complied with, that no right the owner of the property is entitled to may be denied to him. As Ellison, J., aptly said in City of Kirksville v. Coleman, 103 Mo. App. l. c. 221: “It is well known and universally- recognized that there is nothing the law guards with more care and jealousy than it does the right, of man to demand that, before his money or property be taken from him without his consent, every provision of the law made for that purpose shall be strictly followed.” But, under the facts, that doctrine cannot be invoked here. The charter provision as to advertising was ample in itself to give notice to the public of the proceeding and as a consequence to afford an opportunity to contractors to bid for the work. Having been complied with, the appellants can not claim that its requirements were not observed, and hence no possibility of injury to them can be said to have arisen. Appellants’ complaint, therefore, must necessarily be limited to the contention that the absence of a requirement as to advertising from the ordinance rendered it invalid to the extent that the Board of Public Improvements were not authorized to proceed thereunder, through a lack of jurisdiction.

If the reasoning of Judge Rombattee, in the Barnbrick case, supra, concerning the construction to be given a charter provision in regard to advertising, almost indentical in its terms with that under consideration, is not' sufficient by parity of reasoning to settle this question adversely to appellants’ contention, then a reference to the elementary rules regulating the course to be pursued in a case of this character may with propriety be resorted to.

A municipal contract for public improvements is subject to the following general limitations and conditions: (1) the subject matter of the proposed contract must be included within the ordinance ordering the' improvement; (2) the contract must not surrender or abrogate any public function or duty; (3) it must be let and made in accordance with the method prescribed. As we have shown, a formal compliance with these general rules was observed in this proceeding, in that the ordinance possessed all of the jurisdictional features it was required to possess as to the nature and character of the improvements: [City of Poplar Bluff v. Bacon, 144 Mo. App. 476; Coulter v. Const. Co., 131 Mo. App. 267.] This being true, it cannot be reasonably App. 230; Barber Asphalt Co. v. O’Brien, 128 Mo. said that there was anything lacking to give the Board of Public Improvements full and complete jurisdiction in the premises. There is, therefore, no merit in this contention.

II. The appellants complain of delay in the letting and completion of the contract. The pertinent facts, briefly stated, are as follows: The first call for bids was promptly made upon the adoption of the ordinance, but all of these were rejected as being too high. Within a reasonable time thereafter the board again advertised ^or bids, which were again deemed excessive and rejected. Not long thereafter, a third notice was given, and this time the board accepted the best bid received and awarded the contract. There was a marked change in the conditions of labor and the prices of materials at the time of each of these bids, for which the board was not responsible. At it turned out, its attemps to secure lower prices were unsuccessful, but that it acted in good faith there is no doubt. Its discretionary power enabled it to make these different attempts, and consequently, its inability to secure the performance of the contract as low as that offered in the first bids does not impair its power in the face of the fact that it was evidently acting for the best interests of the municipality, and the public. No question can arise, therefore, although the last bid was higher than the first, as to the board’s right to re-advertise in the effort to secure more favorable terms.

Whatever delay occurred was, as the facts disclose, on the part of the city, for which the contractor was in nowise responsible. In the discussion of this question in Jaicks v. Middlesex Inv. Co., 201 Mo. 111, where an ordinance authorized an improvement to be made, and gave full authority 'for the letting of the contract for same, we held that we were unwilling to say that the contractor who, it appeared, had entered into the contract with reasonable promptitude, and had proceeded speedily to do the work in compliance therewith, should be defeated in regard of his claim therefor on account of the delay on the part of the board letting the contract, and which was not occasioned by the contractor. [Frech v. Lewis, 218 Pa. l. c. 144.] Following this ruling the Kansas City Court of Appeals in Jones v. Paving Co., 174 Mo. App. l. c. 404, held: “that the failure of an ordinance to fix the time for the completion of the work does not invalidate the ordinance and that ‘the tax bills issued in payment of the work are not void because of long delay in letting the contract for the doing of the work, if the contract was in conformity with the ordinance and the work was done and completed in compliance with the contract.’ ” To a like effect is Koch v. Shepherd, 193 S. W. (Mo.) 601.

Cases cited by appellants in support of their contention in this behalf may, from their facts, readily be differentiated from the Jaicks and Jones cases, supra, either because in the former, time was expressly made an essence of the contract, which was not the case here, or the delays were shown to have been destructive of competitive bidding, and thus opened the door to fraud and favoritism. To this class belong the case of Metropolitan Paving Co. v. Girard Inv. Co., 194 Mo. App. 661; Barber Asphalt Co. v. K. C. Brick Co., 170 Mo. App. 503; Marshall v. Wisdom, 127 Mo. App. 640, and others of like tenor. We overrule this contention.

III. Appellants insist that the tax hills are void because the ordinance is not comprehensive of the entire work of constructing the sewer, Provisions that such work shall he contracted for and done in sections. The charter provision regulating this proceeding is as follows: “When the extent and character of a joint district sewer is such as, in the opinion of the Board of Public Improvements, render its division into sections advisable, an ordinance or ordinances directing and authorizing the construction of one or more sections may be passed, and when the work in any such section is fully completed, special tax bills to the amount of the cost of such section shall be issued as herein provided.” [Sec. 22, Art. VI., Charter of St. Louis, in force at the time of this proceeding.]

Pursuant to this provision, the Board of Public Improvements, after entering upon its records a resolution that “the extent and character of the Joint District Sewer is such as to render its division into sections advisable,” recommended two separate ordinances, authorizing the construction of the first and second sections of said sewer. The city’s estimated part of the cost of each of these sections was endorsed on each of these respective ordinances as required by another section (28) of the charter. Prom the fact of these endorsements, appellants urge that the section requiring same (28) must apply in its entirety. This section is as follows: “Every ordinance requiring work to be done shall contain a specific appropriation from the proper revenue and fund for such part thereof as may be payable by the city, based upon an estimate of cost, to be endorsed by the President of the Board of Public Improvements on said ordinance, for the whole of the cost of the proposed work. Provided, however, that when the work contemplated by such ordinance is of such magnitude that the total cost thereof would exceed the amount of money then in the city treasury, and available for such purpose, the ordinance may provide for the whole work, which shall prescribe that it shall be contracted for and done in sections or parts as the Assembly shall, from time to time, appropriate the money to pay for the same. But in all such cases the work to be done in sections or parts shall be limited to the amount appropriated for the doing of such sections or parts, and in this manner ultimately to complete the work specified. ” [Sec. 28, Art. VI., Charter of St. Louis, in force at the time.]

It is the contention of appellants that the word “may” should be construed as “shall” in the provision, “that the ordinance may provide for the whole work.” It is evident from their respective provisions, that Section 22 provides one possible method of procedure, and Section 28 another possible method, and that either may be adopted. Whichever course is pursued, the endorsement of the cost required by Section 28 must be made. The result of appellants’ contention would be to hold Section 28 mandatory, and to annul Section 22, This would violate the fundamental canon of construction which requires that both sections should stand if possible, and that a discretionary power should be left in the city assembly in the enactment of ordinances to follow the method pointed out in one or the other.

Appellants contend further that while the work may be done in sections, it can only be as a part of a definitely ascertained whole, and that the entire plán or scheme must be provided for in advance. Otherwise, they say, the whole district will be taxed for a sewer which benefits only a part, with no assurance that it will be extended so as to benefit all the district alike. Following the reasoning of the respondent, which we deem sound, in replying to this contention, the answer may be made that the sewer district having been established, it is the duty of the proper city officials to provide adequate sewer facilities within the district for all of its territory as such sewers are needed which will be paid for by the entire district. This conclusion is based upon the well established presumption, not only that public officials will do their duty, but that they will do it as speedily as the needs of the district demand.

In McGhee v. Walsh, 249 Mo. 266, we held that where a district had been created, sewers may be constructed in a part thereof, and the whole district taxed therefor, as it is presumed that when sewers are needed in a part of a district not reached by the first section, they will be constructed at the cost of the entire district. This ruling we regard as decisive of the matter here at issue.

IV. Subordinate to and akin to the foregoing contention, appellants urge that the ordinance authorizing this improvement is void as being unconstitutional in that it taxes all the property of the district for a sewer which benefits only a part. Practically the same argument is adduced by appellants here as is urged in the preceding contention. The ruling, therefore, in McGhee v. Walsh, supra, is equally applicable here as in the foregoing.

Besides, it cannot be said that the property would not be benefited which is not directly adjacent to the sewer. Much territory will, according to common experience, be drained which is not so situated. However, that is not a legitimate matter of controversy. The action of the municipal assembly in assessing all of the ground within the sewer district, having been entrusted by the State Legislature to the city assembly, the action of the latter will be held to be immune from collateral attack unless it be affirmatively shown that such action was exercised arbitrarily, fraudulently, and oppressively. [Prendergast Const. Co. v. Goldsmith, 273 Mo. l. c. 191 and cases; McGhee v. Walsh, supra.] There was no such showing.

Y. It is further contended that the actual exceeded the estimated cost, and that the tax hills were thereby rendered void. This question has received consideration in the case of Kelley v. Morton, 179 Mo. App. 296, where the estimated cost was only 42 per cent of the actual cost. In relation thereto, the court said: “Where the statute does not restrict the amount of the final assessment to the amount of the preliminary estimate, the latter is advisory merely (citing cases). Being advisory only, it cannot, by reason of its being a poor or inaccurate estimate, defeat and render invalid an assessment. Unless the statute is violated, it would be unjust to deprive the contractor of the rewards of his work, after he has honestly and faithfully performed his contract, merely because the advice given by the city’s engineer was not accurate. As said in Sheridan v. Fleming, 93 Mo. l. c. 325, ‘the contractor has nothing to do with the estimate; and to say that he must go unpaid because of a mistake of the commissioners in a matter over which he has no control is manifestly unjust. The law contemplates no such results.’ ”

The charter then in force did not limit the contract price to the amount of the estimate. In the absence, therefore, of any showing of other than good faith, the contractor should not be deprived of his right to be paid for what can, at the utmost, only be construed as an error of judgment.

VI. It is contended by the appellants that the failure of the city to specificially appropriate enough money to pay its share of the cost of the section of the sewer to be constructed prior to the letting of the contract, invalidates the bills. If, for any reason, the city does not pay its share for the improvement as finally ascertained, appellants have no ground of complaint, as their burden is not thereby increased. The amount they are required to pay is determined by the proportion which, their property hears to the area of the entire district.

In Schneider Granite Co. v. Gast R. & I. Co., 259 Mo. l. c. 167, the city appropriated more than sufficient funds to pay its share for the improvement, and it was contended that the liability of the property owners was limited to the difference between the total cost and the city’s oppropriation. We held this to be incorrect, and that the appropriation did not fix the amount to be paid by the city, but merely designated the fund from which it should be paid. The language of the court in that regard being: “It is true that it was necessary for the ordinance to make an appropriation for paying the city’s part, but this provision. cannot fix the city’s proportionate part. It can only provide the funds out of which the proportionate part (otherwise fixed) can be paid.” The doctrine thus announced is applicable under the facts at bar. The burden of the cost of the inprovement which the city is required to pay, and the burden which the property owner shall pay, are entirely independent of each other.

The exercise of that discretion with which the legislative department of the city was vested in authorizing an improvement of the character here in question was within reason, [St. Louis v. United Railways, 263 Mo. l. c. 455; State ex rel. v. K. C. Term. Ry. Co., 260 Mo. 489; Am. Tob. Co. v. City of St. Louis, 247 Mo. 374; Newcombe v. Kramer, 189 Mo. App. 538.] The appellants were denied no substantial right and suffered no material injury. They were only required to bear a burden regularly imposed under the authority of the law. Of this they cannot complain..

The judgment of the trial court is, therefore, affirmed.

All concur.


source: Caselaw Access Project

author: WILLIAMS, P. J.

license: Public Domain

text:
    PAUL TURNBOW, by ORAH TURNBOW, His Next Friend, v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division Two,
    April 4, 1919.
    1. JURY: Motion to Quash Panel. If the trial court did the very thing which defendant sought to accomplish hy his motion to quash the first panel of eighteen jurors summoned to try the case, he cannot on appeal complain of that action.
    2. -: -: No Exception. If defendant failed to save an exception to the action of the court in overruling his motion to quash the panel of jurors selected according to certain provisions of the statutes, he cannot complain of the ruling on appeal.
    3. CONTINUANCE: No Exception. The action of the trial court in overruling an application for a continuance will not he reviewed on appeal, if no exception thereto was saved.
    4. JUROR: Misconduct: Viewing Scene of Accident. The ruling of the trial court that the conduct of the juror in viewing the scene of the accident where plaintiff was injured did not amount to misconduct will he deferred to on appeal unless it substantially appears that there was error in the finding. Where there was no material dispute in the evidence concerning the place of the injury, the dimensions of the street and the location of the car tracks, and they were all plainly shown hy a hlue-print map introduced hy appellant, its interests could not have been prejudiced by the conduct of a juror who during the trial, after an adjournment for the day, went to the street crossing where the accident occurred and looked at the place — the fact not having been made known to the court until after verdict.
    5. CROSS-EXAMINATION: Impeachment: Reading from Deposition. In reading from a witness’s deposition, for the purpose of laying a foundation for his impeachment, the questions and answers which when read together develope the conflict between his testimony on the witness stand and his testimony preserved in the deposition, should he read in formulating the question to he propounded to the witness, and then opposite counsel should be permitted to interpose his objection. It is not proper to permit opposite counsel to interfere at every disconnected question and answer read from the deposition. •
    6. EVIDENCE: Exhibit of Injured Leg 'to Jury. The exhibition of the plaintiff child’s injured limbs to the jury, after his feet had been amputated above the ankles and a physician had testified that because the bones were growing faster than the skin a further amputation would be necessary, was not error. Such evidence, when material to the issues, is admissible, subject to the exercise by the court of a sound discretion to prevent unnecessary abuse.
    7. CONTINUANCE: Amending Petition. It is not an abuse of the court’s discretion upon an amendment by interlineation of the petition, to deny to defendant a continuance, after having stated that ample time would be given defendant to obtain testimony to' meet the allegation if such was desired.
    8. INSTRUCTION: To Disregard Plaintiff’s Injuries. An instruction that the jury are to first determine whether defendant was negligent and whether plaintiff’s injuries were .the result of such negligence, before considering the extent or character of his injuries, is one in favor of defendant, especially where the plaintiff was a three-year old child who toddled into the street and was struck by defendant’s street car.
    9. -: Broader Than Petition: Anticipated Peril. If the petition charged that hy reason of the motorman’s negligence “in failing to stop said car or to control the speed thereof when plaintiff’s . peril near the track over which its said car passed was seen or by the use of ordinary diligence on his part could have been seen,” etc., an instruction which tells the jury that if the motorman “after he might reasonably have anticipated that said child would approach said car and be injured thereby,” did not, by” the use of the word “anticipated,” enlarge the allegation of negligence contained in the petition.
    10. -: Common Error. Appellant cannot be heard to cdmplain of the use of a word in respondent’s instruction which he used in his own.
    11. REMARKS OF COUNSEL: Proper Reply to Unjustifiable Insinuation. "Where counsel, for appellant subtly insinuated, without justifiable ground, that the deposition which plaintiff had used to impeach his witness had been tampered with, he is in no position to question the propriety of the reply of counsel for plaintiff that he was trying to fool and mislead the jury.
    12. EXCESSIVE VERDICT: $30,000. Plaintiff, when three years of age, had both feet so severely crushed by a street car as to render necessary their amputation just above the ankle joints, and by reason of the fact that the bones have grown faster than the skin a further operation removing two inches of the bones will be necessary; and the fact of his age and that a further operation will be necessary distinguish his case from all others. He is now able by aid of artificial limbs to walk about and go to school'. Held,, that a verdict for $30,000 should be reduced to $25,000 and interest from date of judgment.

      13. - — : Definite Rule. No definite general rule as to what is a just amount of damages in a personal injury case can he stated. Each case must turn upon its f^cts.
    Appeal from Jackson Oircnit Court. — Hon. Willard P. Hall, Judge.
    Affirmed.

      Clyde Taylor and L. T. Dryden for appellant.
    (1) The appellant did not have a trial before a legal, qualified jury as provided by law. Sec. 7323, R. S. 1909; State, v. Austin, 183 Mo. 478 : State v. Haney, 151 Mo. App. 251; Berry v. Trnnlc, 185 Mo. App. 495; See. 30, Art. 2, Mo. Constitution. (2) The court should have granted a new trial in this case because of the misconduct of the juror Jos. Rothenberg in going to the scene of the accident during the course of the trial. Easley v. Mo. Pac. Railway, 113 Mo. 236; 29 Oye. 801, sec. 3. (3) The court erred in permitting respondent’s counsel to offer certain evidence and interrogate the witness, on cross-examination, as to certain statements claimed to have been made by said witness in his deposition taken in the case, (a) This evidence was incompetent. Showen v. Ry. Co., 191 Mo. App. 292; Bris-coe v. Laughlin, 161 Mo. App. 80; Ebert v. Street Railway Co., 174 Mo. App. 45; Van. V'erth v. Loose, Wiles Cracker & Candy Co., 155 Mo. App. 299; Kitchen v. Railway Co., 59 Mo. 518; State v. Cooper, 83 Mo. 698; State v. Bowen, 247 Mo. 584; State v. Hughes, 71 Mo. 633; Sinclair v. Telephone Co., 195 S. W. 558. (b) The strictures placed upon appellant’s counsel by the court was prejudicial to the rights of the appellant. Shepherd v. Brewer, 248 Mo. 148. (c) The respondent having offered the witness, as a witness in this case in the first trial, thereby made him his witness throught the entire case and could not therefore impeach him. Dunn v. Dunnaker, 87 Mo. 597; Helling v. United Order of Honor, 29 Mo. App. 309; State to use of Guthrie v. Martin, 52 Mo. App. 511; King v. Ins. Co., 101 Mo. App. 163; Chandler v. Fleeman, 50 Mo. 239; Baker v. St. Ry. Co., 181 Mo. App. 392; Bigham y. Tins-ley, 149 Mo. App. 467; Caldwell v. Bank, 109 Mo. App. 23; Spnrgin Grocer Co', v. Frick, 73 Mo. App. 133; State Biurke, 132 Mo. 372. (4) Tke court committed highly prejudicial error in permitting the stumps of respondents legs to he exhibited to the jury. Railway v. Clausen, 50 N. E. 680. (5) The court should li»™ granted the appellant a continuance in this case and erred in overruling appellant’s application therefor upon permitting respondent to amend his petition by interlineation, by inserting the following words, “That on account of said injuries other and further operations will be necessary to be performed on Paul Turnbow’s legs.” Sec. 1961, R. S. 1909. (6) The court erred in giving instruction P-1, at the instance of the respondent. Conway v. Met. St. Ry. Co., 161 Mo. App. 501; Beave v. Transit Co., 212 Mo. 331; Hufft v. Railroad, 222 Mo. 1. c. 303. (7) The respondent’s counsel madp highly improper and prejudical statements in his closing argument to the jury, which were timely objected to by appellant and by the court overruled. Churchman v. Kán-sas City, 49 Mo. App. 366; Brown v. Railroad Co., 66 Mo. 588; Hayes v. The Town of Trenton, 108 Mo. 123; Haake v. Milling Co., 168 Mo. App. 177. (8) The verdict is grossly excessive and so mush' so as. to clearly show bias, prejudice and passion upon the part of the jury. Lessenden v. Mo. Pac. Railway, 238 Mo. 247; Yost v. Union Pacific Railway, 245 Mo. 219; Brady v. Railway Co., 206 Mo. 509; Farrar v. Met. St. Ry. Co., 249 Mo. 210; Applegate v. Railway, 252 Mo. 173; Campbell v. United Rys. Co., 24c> Mo. 158; Waldhier p. Railway, 87 Mo. 48; Markey v. Railroad, 185 Mo. 364.

      John N. Southern and Brewster, Kelly, Brewster & Buchholg for respondent.
    (1) The jury that tried this cause was a legal jury under the statutes applicable thereto. Secs. 7323, 7324, R. S. 1909. The action of the juror in going to the scene of the accident during the course of the .trial could not have prejudiced tlie rights of defendant. Hoffman v. Dunham, 202 S. W. 431. (2) Sherman was placed upon the witness stand by the defendant. The questions and answers read to him from his deposition on cross-examination contradicted his testimony given at the trial, and hence were competent. The court had a right to see that the trial was conducted in an intelligible manner and that several questions could be read to the witness at one time, without an objection being made between each question, in order that the witness and jurors might get the proper connection. (3) It was proper for the court to permit the stumps of plaintiff’s legs to be exhibited to the jury. Lamport v. Gen. Accident Fire & Life Ins. Co., 197 S. W. 191. (4) The court should not have granted defendant a continuance upon plaintiff amending his petition, unless he was satisfied by the affidavit or otherwise that defendant was prejudiced by said amendment and that he could not safely proceed to trial. The granting of a continuance rests in the discretion of the court. Sec. 1961, R. S. 1909. (5) Instruction C-l given by the court of its own motion was a correct statement of the law. (6) There were no improper or prejudicial statements contained in the closing argument of plaintiff’s counsel. The argument objected to by the defendant was in response to an argument made by defendant’s counsel. (7) The verdict is not excessive in view of the age of plaintiff at the time he was injured; the nature of the injuries he received, the present high cost of living and the low purchasing power of the medium of exchange. Hays v. Railway, 183 Mo. App. 608; Peaslee v. Transfer Co., 120 Minn. 352; Miller v. Hampton, 201 S. W. 854; City of Kennett v. Katz, 202 S. W.'558. (8) The verdict should have been for respondent on the testimony of the motorman for appellant. Simon v. Railway, 23 Mo-. 78; Turnbow v. Dunham, et ah, 272 Mo. 67. (9) The verdict was for the right party under all the testimony in the case and should be affirmed. Turnbow v. Dunham, 272 Mo. 53; Cytron v. Eailway, 205 Mo. 720; Simon v. Eailway Co., 231 Mo. 74; O’Keefe v. U. S. Ey. Co., 124 Mo. App. 624; E. S. 1909, seo. 2083. '
   WILLIAMS, P. J.

Plaintiff, an infant boy, three years of age, sues by bis next friend to recover for the loss of both feet.

The injury is alleged to have been caused by the negligence of the defendant in the operation of one of its street cars upon a street crossing in the city of Independence, Missouri.

Trial was had in the Circuit Court of Jackson County, at Independence, resulting in a verdict and judgment for plaintiff in the.sum of $30,000. Defendant has duly appealed.

This is the second appeal. The opinion upon the first appeal is reported in 272 Mo. 53.

No attack is made upon the sufficiency of the evidence to support a recovery. The evidence in the main is the same as upon the former appeal and is set forth in 272 Mo. at page 53 et seq. It is therefore unnecessary to restate the same here.

Plaintiff’s instruction No. P-1, which was given, is as follows:

“The court instructs the jury that if you believe and find from the evidence that on the 29th day of March, 1912, Paul Turnbow was a child about three years of age and that the said Paul Turnbow wandered or went upon Lexington Street in Independence, Missouri, and upon that part thereof east of Union Street and between the curb on the south line of Lexington Street and the car tracks of the defendant, and if you further believe and find from the evidence that at said time and place the street car in question was approaching a point opposite the place where said child was in said street, and if the jury further believe and find from the evidence that said child approached said car and came in contact therewith and his feet and legs were run over by the wheels of the hind truck thereof and crushed and injured, so that it was necessary to amputate his feet, if you believe and find from the evidence that it was necessary to amputate them; and if the jury further believe and find from the evidence that the motorman operating said car saw, or, by the exercise of ordinary care, could have seen the said Paul Turnbow in said street and aproaching said car and in or approaching a place of imminent peril, if you believe and find from the evidence he was in said street and was approaching said car and approaching a place of imminent peril, in time, by the exercise of ordinary care and with reasonable safety to the passengers on the said car to have stopped said car and to have prevented the injuries to said Paul Turn-bow; and if you further believe and find from the evidence that said motorman could reasonably have anticipated that said child would be likely to approach and come in contact with said car and be injured thereby; and if you further believe and find from the evidence that said. motorman did not stop said car, after he saw, or by the exercise of ordinary care, could have seen said child in said street and approaching said car, if you believe and find from the evidence he was in said street and was approaching said car, and that said motorman saw, or by the exercise of ordinary care could have seen him there, and after he might reasonably have anticipated that said child would approach said car and be injured thereby, if you find that he should reasonably have so anticipated, but continued to run said car over and upon said tracks until the said Paul Turnbow was injured, as aforesaid; and if you further believe and find from the evidence that it was negligence upon the part of said motorman to so continue to run said car, if you believe and find from the evidence he did so continue to run it, and that the injuries to the said Paul Turnbow, if any, were caused bv said negligence of said motorman, if any, in so running said car, then your verdict should be for the plaintiff and against the defendant.”

Instruction No. 0-1 given by the court of its own motion is as follows:

“The court instructs you that it is your duty in considering the evidence, deliberating upon and determining the facts in this case, to first decide upon the question as to whether under all the facts and circumstances there is or is not any negligence upon the part of defendant’s motorman, as defined to you by other instruction. Until this question of negligence has been determined by you, you have no right to take into consideration the nature, character or extent of the alleged injuries to plaintiff, or the amount, if any, that the plaintiff is entitled to recover, because of such injuries. If the plaintiff is not entitled to recover, that is, if he has not shown to your reasonable satisfaction by the greater weight of the credible testimony upon the question of liability that he should recover at your hands, then you should not and must not in your deliberation at all consider to what extent, if any, he has been injured.
“Plaintiff was permitted to exhibit the stumps of his legs to you in order that you might see and consider them in determining the nature and extent of his injuries. You should not be influenced by the nature and extent of plaintiff’s injuries in deciding whether or not defendant is liable for said injuries, as explained to you in these instructions.
“Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and decide it according to the evidence and the instructions.”

When the ease was called for trial appellant filed a motion to quash the panel of eighteen jurors, summoned to appear at the Independence Division of the Circuit Court of Jackson County, for the reason that said jury “has not been drawn, selected, summoned and qualified in the manner and way provided by law. ’ ’

The panel thus sought to be quashed was summoned to appear before the said circuit court at the court bouse in Independence, Missouri. This seems to have been the established practice in that regard, and had never before been questioned until the motion to quash was filed.

By reading what was said then and what is now said in appellant’s brief we gather the idea that appellant’s objection to the panel was that it was not a part of a large panel which had originally been summoned to appear at one of the divisions of the circuit court of said county, there to be distributed in part to each division of said circuit court (including the nine divisions sitting’ at Kansas City and the one division sitting at Independence) as needed for jury use in the respective divisions — (as is provided, according to appellant’s contention, by Sections 7318 and 7323, Revised Statutes 1909).

The court overruled the motion to'quash and thereupon plaintiff’s counsel made the following request:

“.Mr. Brewster: In view of Mr. Dryden’s position that the eighteen jurors constituting this present panel are not properly drawn, or drawn according to law, and in view of the fact that the objection has never been made in any other' case, and the fact’that I represent a minor some six years of age, I am willing to try this ease so that there will be no question of any kind left in the record. I therefore ask the court, in view of Mr. Dryden’s motion, to send over to Kansas City and have a panel of eighteen men called to try this case.”

Thereupon, and apparently with an intent to keep the above question out of the case, the court ordered the sheriff to bring twenty-three jurors from the large panel which had been originally summoned to appear at Kansas City.

After some delay twenty-three -jurors from the large panel originally summoned to appear before a specified division at Kansas City were brought before the division of the court sitting at Independence.

Thereupon appellant filed a second motion to quash —this time directed at the twenty-three jurors brought from Kansas City. This second motion to quash was by the court overruled, but no exception was saved by appellants to the court’s ruling thereon, the record (bill of exceptions) showing what occurred upon the overruling of the second motion to quash being as follows:

“The Court: The motion is overruled.
“Mr. Dryden (Counsel for appellant): I want to make an application for continuance.”

Such additional statement of facts as shall become necessary to an understanding of the issues will be made in connection with the points discussed.

I. Appellant seems now to complain of the court’s action in failing to use the original panel of eighteen jurors after he had first made an order overruling the motion to quash this panel.

Appellant is certainly now in no position to complain of the action of the court in failing to use the first panel of eighteen, because this is the exact result (as to that panel) which appellant attempted to accomplish by his first motion to quash. The court (as to this first panel) having in effect done the very thing requested by appellant, appellant should not now be heard to complain.

No exception having been saved to the overruling of the second motion to quash, it follows that the questions arising upon that ruling have not been properly preserved for review.

II. It is contended that the court erred in overruling appellant’s first motion for a continuance. Concerning this point it is sufficient to say, that appellant saved no exception to the overruling of the motion.

III. Neither did the court err in refusing to grant a new trial on the ground of misconduct on the part of one of the jurors. In the motion for a new trial appellant alleged that at some time before the verdict was rendered one of the jurors went down to the street crossing where the injury occurred. In support of this allegation the affidavits of one of appellant’s motormen and one of appellant’s conductors were attached to the motion. The affidavits state that on a certain evening after adjurnment of court they saw one of the jurors standing on the street near where the accident occurred and the juror stated that “he was down looking at the place;’’ that the affiant did not inform appellant of this fact until, after the verdict.

It is extremely doubtful if this question has been properly preserved for review (See Feary v. St. Railway Co., 162 Mo. l. c. 106 and cases cited). But be that as it may we desire to make the following observations relative to the merits of the point made.

There was no material dispute in the evidence concerning the location of the scene of the injury or of any of the dimensions of the street or of the location of the street car tracks. A large blue print was introduced in evidence by the appellant showing this Street crossing, the location of the tracks thereon, and of the adjoining and near-by buildings. The entire situation is shown so plainly by this blue print that it would appear that little additional information would be gained by a personal view of the situation. Under such conditions we are unable to see wherein appellant’s interest could in the least have been prejudiced by the conduct of the juror.

Respondent’s counsel state in their brief that the scene of the' accident was necessarily passed each day by all the jurors in going to and from Kansas City and the Independence Court House. Whether or not this was true the record before us does not disclose, but it is true that the learned trial judge who passed upon this question was familiar with the surrounding circumstances and he was also in a better position than we to determine what if any effect such conduct may have had upon the verdict. He overruled appellant’s contention in this regard, and the situation presented is not such as will warrant this court in saying that he abused a sound discretion in so ruling.

The correct rule here applicable was stated in Dysart-Cook Mule Co. v. Reed, 114 Mo. App. 296, l. c. 307, as follows: “His (the trial court’s) ruling in such matters should be deferred to by an appellate court unless it substantially appears that he has erred in finding there was or was not misconduct on the part of one or more of the jurors.”

IV.. The appellant offered as a witness upon this trial its motorman who was operating the car that injured plaintiff. Upon the first trial plaintiff had used the motorman as his witness. It also appears that the motorman’s deposition had been taken before the first trial.

. Upon the present trial the motorman in his examination in chief stated that as he moved the car across the street where the injury occurred he last saw the plaintiff standing “right next to the curb.”

Upon the cross-examination of this witness plaintiff’s counsel asked the witness in substance if he had not testified in his former deposition that he last saw plaintiff standing- between the curb and the car track a “few steps” or a “step or two” out from the curb.

The location of the plaintiff when the front end of the car passed him was a very material issue upon the trial. The closer plaintiff, an infant three. years old, stood to the .tracks as the front end of the car passed, the greater would be the likelihood of. his coming-in contact with the rear trucks of the car. .

It was therefore entirely proper as an impeaching question that the witness be asked if. on .a former occasion he had not sworn that he last saw the boy closer to the car than he now stated.

When the plaintiff’s attorney began to lay the foundation for impeaching this witness he said: “When your deposition was taken I will ask you if these questions were not asked you and if you didn’t give these answers?”

Appellant’s counsel objected, stating that he didn’t want more than one question and answer in each question. The court then ordered plaintiff’s counsel to conform to the request.

This was tried for two or three questions, the appellant interposing objections to each question. Plaintiff’s counsel objected to this manner of interfering with his cross-examination and the court ruled in effect that plaintiff’s counsel should first be permitted to ask his entire question and that then appellant could interpose such objections as he saw fit to the whole or any portion of the question.

Appellant’s counsel objected to this, and the court said:

“.Mr. Dryden, you understand I am making this ruling for the purpose of conducting this trial. Now I am going to permit the questions and answers to be read so that the jury will get the whole thing together in a connected form. Then if you want to call attention to what I have already said, permitting all the objections heretofore made to be considered as made to every single question and answer, I will permit you to move to strike out every single question and answer, but I will not, and I want you to understand it, I will not permit you to constantly interrupt the reading of this deposition.” (Plaintiff’s counsel was merely reading from the deposition as an aid in formulating the impeaching question.)

Appellant now contends that this statement of the court constituted reversible error. We are unable to agree with this contention.

It should be borne in mind that appellant’s counsel was not at this time offering in evidence a deposition but was merely laying the foundation for impeachment, by asking 'him if be made certain answers to certain questions asked bim when bis deposition was taken. There were nine short questions and answers which when read together developed the former conflicting testimony which plaintiff claimed the witness had given.

It is therefore apparent, that appellant’s counsel had no right to constantly interfere with plaintiff’s counsel in formulating his question. But the proper procedure was to first permit counsel for plaintiff to finish his entire question and then permit appellant’s counsel to interpose any objection he saw fit. The ruling 'of the court permitted this to be done and at the close of the entire question appellant was permitted to interpose its objections.

Appellant’s rights were in no manner prejudiced by the court’s action in the above regard.

Y. It is contended that the court erred in permitting plaintiff to exhibit his injured limbs to the jury.

One of the facts at issue in the case was whether further amputations of the injured limbs would be necessary. The surgeon who performed the operation when plaintiff’s feet were amputated testified that the limbs were amputated just above the ankle joint and that due to the fact that the bone grew faster than the surrounding skin the bone now pressed against the skin at the place of amputation; that this was a frequent occurrence in cases of this kind among persons under eighteen years of age and that it would be necessary later to operate again on each leg and remove about two inches of the end of the bone. The doctor stated that the pressure of the end of the bone against the skin was plainly visible. Thereafter plaintiff’s injured limbs were exhibited to the jury in order that they might see the exact appearance of the end of the amputated limbs.

We have no hesitancy in saying that the exhibition of the injured limbs to the jury did not constitute error.

The general rule is that evidence of this kind is admissible, when material to the issues, subject, however, to the right of the trial court in the exercise of a sound discretion to prevent unnecessary abuses in the offering of such evidence. [2 Wigmore on Evidence, sec. 1158 and numerous cases therein cited. See also cases cited in 5 Wigmore on Evidence (2 Ed.), sec. 1158; 17 Cyc. 292.]

VI. During the trial plaintiff was permitted to amend his petition by interlining the following words: “That on account of said injuries other and further operations will be necessary to he performed on Paui Turnbow’s legs.” Appellant thereupon filed a motion for a continuance alleging surprise, etc. The court overruled the motion for continuance hut at the time stated: “I think under the allegation of the petition as to permanent injuries, it was entirely competent to introduce the evidence of further operations. I will say this, Mr. Dryclen (Appellant’s counsel), that if you want the opinion of other physicians I will give you ample time in which to get the testimony of other physicians as to the necessity of further operations. The application for continuance is overruled.” (Italics ours.)

Appellant’s reason for wanting a continuance as shown by the wording of his motion was in order to have time to “procure evidence to show that no such amputations or operations will be necessary.” There is no showing in this record that the time which the court offered to grant appellant was not sufficient for this purpose and we are therefore unable to say that the trial court abused its discretion in the matter. [Peterson v. Railway, 211 Mo. 498, l. c. 516-7.] The point is therefore disallowed.

VII. We find no error in the giving or refusing of instructions.

Instruction C-l (see instruction in statement of facts), given by the court of its own motion, was favorable rather than prejudicial to the appellant. We find corroboration of this view in the conduct of appellant’s learned counsel upon the trial. In his address jury (which is set forth in the bill of exceptions herein), we find that at that time he thought well enough of this instruction to read it to the jury as a part of his address. We concur with appellant’s first impression of this instruction and therefore disallow his present contention. Whether the plaintiff (had he lost below) could have based error upon this instruction we need not now pause to inquire.

Plaintiff’s instruction P-1 (see statement) did not enlarge the allegations of negligence contained in his petition, as contended by appellant. Appellant contends that the word “anticipated” as used in the instruction enlarged the allegations of the petition. The petition among other things alleged “that by reason of the said negligence of defendant’s agents and employees in failing to stop said car or to control the speed thereof when plaintiff’s peril near the track over which its car passed was seen or by the use of ordinary diligence on their part might have been seen” etc. This was sufficient in scope to' include the meaning conveyed by the word “anticipated” as used in the instruction.-But even though appellant’s theory, that it enlarged the allegation of the petition, be conceded arguendo as being correct, yet by use of the conjunction “and” in the instruction the only effect of inserting the portion, now attacked, would be to place- an additional burden upon the plaintiff, of which the appellant would have no just ground for complaint.

Another reason why the use of the word “anticipated” in the plaintiff’s instruction would not be error in the case at bar is, that appellant used'the same word and meaning in its instructions.

Further complaint is made of the court’s action in refusing other instructions requested by the áp-pellant. It would serve no useful purpose to copy the several instructions into this opinion. We have carefully examined the same and are clearly of the opinion that in so far as any of the appellant’s refused instructions contained correct statements of the applicatory law the same had' been fully covered by appellant’s instructions which were given.

VIII. Appellant contends that the respondent’s counsel made improper and prejudicial statements in his argument to the jury. Appellant’s counsel in arguing the case to the jury, after mentioning* the fact that the motorman had denied that he had Ustifled in the manner shown by his deposition, called attention to the fact that the pages of the motorman’s deposition from which respondent’s counsel had read'did not correspond with the pages of the copy which he (appellant’s counsel) had kept. Respondent’s counsel thereupon asked appellant’s counsel if every question he had read to the witness were not also in the copy kept by appellant. To this appellant’s counsel replied: “I don’t know. I didn’t follow you. Now gentlémen (addressing the jury) that (the fact that the pages in the two copies of the deposition did not correspond) is a mighty singular thing.” (Parenthesis and italics ours.)

In reply to appellant’s argument on the above point respondent’s counsel (addressing the jury later), said: “Now gentlemen, let’s be fair. A lawyer who tries to fool a jury makes the greatest mistake that can be made by a lawyer any time anywhere. Dryden knew as you saw when I was reading that deposition, Dryden kept interrupting me saying: ‘What page are you reading from? I can’t find the page: they seem to be numbered differently.’ I said ‘I will find it for you.’ You saw me find it for him, you saw me point out the page. You saw him bow his head, and say, ‘Yes, I have it now,’ and he made no objection that it was not in his deposition, and it was all in the deposition that he had. Then why try to fool and flimflam and-bamfoozle a jury of Jackson County men? When lawyers get it into their heads that that is the way to try a law suit, to try to fool a Jackson County jury, just then will they learn the true purpose of their profession.”

We are of the opinion that appellant is in no proper position to challenge the propriety of the above argument. It was provoked in a way by the argument of its own counsel in subtly insinuating that there was something wrong with the deposition. From the evidence we find no foundation for the insinuation that the deposition had been tampered with, and the above argument which was made in reply to such insinuation did not, we thing, go beyond the bounds of legitimate argument.

IX. It is contended that the verdict is excessive.

The evidence shows that plaintiff, when three years of age, had both feet so severely crushed under the wheel of a street ear as to render necessary the amputation of both feet just above the ankle joints, and that later (by reason of the fact that the bone has grown faster than the skin) it will be necessary to perform further operations removing about two inches from the ends of.the bone in each leg. From the evidence it further appears that plaintiff is now able, with the aid of artificial limbs, to walk about and go to school, but that the use of the artificial limbs causes more or less pain and chafing of the limbs.

We have, carefully reviewed the authorities in this State, as well as the many authorities cited in L. R. A. (N. S.) 1915F, at page 308 et seq., upon the question of excessive verdicts. A review of the authorities will at once convince the researcher that no definite general rule can be stated. Each case must, to a very large degree, turn upon its own facts.

In the case of Farrar v. Railroad, 249 Mo. 210, l. c. 227, the injured person was a young married woman. The injury sustained was the loss of a portion of the left lower leg and foot. The verdict was by remittitur ordered reduced by this court to the sum of $10,€00:

In the case of Waldhier v. Railway Co., 87 Mo. 37, the injured person was a young man seventeen years of age. The injury sustained was the loss of the “lower extremities of both legs.” The verdict was ordered reduced by remittitur to the sum of $20,000.

In the case of Markey v. Railroad, 185 Mo. 348, l. c. 364, damages for the loss of both legs below the knees by a man forty-five years of age were, by remitti-tur, ordered by this court reduced to the sum of $20,009.

In some of the cases reviewed the court in arriving at the amount of remittitur has laid stress upon the fact that the instruction on the measure of damages told the jury that if they found for plaintiff they might allow damages not exceeding a certain amount (usually the amount asked in the petition). [Applegate v. Railroad, 252 Mo. 173, l. c. 202; Lessenden v. Railroad, 238 Mo. 147, l. c. 264.]

In the case at bar, however, the instruction on the measure of damages does not contain the feature which has been criticised in the above line of cases.

We find no case dealing with the exact situation we now have under review. The fact that the plaintiff was only three years old at the date of the injury and the further fact that an additional surgical operation will have to be made distinguish this ease from the Waldhier and Markey cases, supra, and from any other case which this court 'has been called upon to decide.

The age of the injured person and the necessity of further surgical operations are undoubtedly elements which enter into the computation of the amount of damages, and while we are of the opinion that those elements.in the present case would justify a recovery of a greater amount than was permitted in the Waldhier and Markey cases, supra, we are still of the opinion that the additional features of the present case would mot justify a recovery of $10,000 more tiran was permitted to stand in those cases.

The whole matter carefully considered we are of the opinion that the present verdict for $30,000 is excessive by $5000.

If, therefore, the plaintiff will, within ten days, enter a remittitur of five thousand dollars, the judgment will stand affirmed in the sum of $25,000; both the remittitur and affirmance to be as of the date of the original judgment; otherwise the judgment will be reversed and the cause remanded for new trial.

All concur.