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    JOY NEFF, by Next Friend, EDWIN NEFF, v. CITY OF CAMERON, Appellant.
    Division One,
    July 3, 1908.
    1. STREET: Due Care: Negligence. Due care to discover and remedy defects in a sidewalk varies somewhat with the location of a street and the use it is put to — for instance, whether the adjoining blocks were sparsely or thickly settled.
    2. IMPUTED NEGLIGENCE: Differentiation, In considering the subject of imputed negligence, it should be observed that there is a wide difference between the wilful injury by the parents to their little child, which, as an independent, intervening and proximate cause, resulted in the child’s injury, and the mere negligent taking of their child to walk on a defective sidewalk where the child was injured by a loose board which flew up when her mother stepped upon it and injured the child.
    3. -; parent as Child’s Agent. The whole doctrine of imputed negligence has been thoroughly exploded. It was founded on the theory that the parent is the keeper and agent of a child of tender years. But that theory is unsound. The parent is the agent of the law, and not of the child. Negligence of the parent cannot be imputed to an infant where the infant sues in its own right for a wrong done to the child.
    4. -: Elementary Principle. It is elementary in the com- , mon law that one who has suffered wrong may have his amends, indemnity or reparation from anyone participating in that wrong, whether the injured one be an adult or an infant, and anyone participating in or contributing to that wrong is responsible for the entire damage done.
    . 5. INSTRUCTION: Undue Prominence to Isolated Facts: Correcting Wrongful Argument. In a suit by a two-year-old child for injuries resulting from her mother’s stepping on a loose board on a sidewalk in a sparsely settled part of the defendant city, defendant’s counsel, in the fervor of argument, insisted that, as plaintiff’s parents knew the condition of the walk it was their duty to complain to the city, and exploited the absence of such complaint as a defense. Thereupon the court instructed the jury that even though the plaintiff’s parents knew the sidewalk was not reasonably safe for travel thereon, that fact was no defense. Held, that, if no such argument had been made, the instruction might be bad as singling out and giving-undue prominence to one or two facts, and as being argumentative in tone, but under the circumstances it was well enough.
    G. -: Word in Different Senses: Injury. A material word should not be used in two different senses in the same instruction, especially in the same clause; and if confusion may thereby be produced in the jurors’ minds, the instruction becomes misleading, and is presumably erroneous. So that where ■the instruction, reduced to small verbiage, in effect told the jury that if the original injury to plaintiff’s knee was aggravated by the development of resulting active tuberculosis (theretofore latent) then the defendant was responsible for the injury to the injury caused by and the proximate result of the injury, it is held that the uses of the word “injury” in an important instruction was so confusing as, under the circumstances, to require a new trial.
    7. EXCESSIVE VERDICT: Negligence Cases. It is of the greatest concern that damages be kept within fairly conservative bounds in personal injury cases. Full compensation for injuries received through negligence is, in the abstract, impossible. Justice to the plaintiff means also justice to defendant. The award must not rest on sentimental or extravagant grounds.
    8. -: $10,000. A child two years old was walking along the street of a city of the third class, with her mother, who stepped on a board of the sidewalk, and it flew up and struck the child below the knee, causing a slight but painful bruise. The physician recommended a hot compress and rest. Thereafter she was treated by domestic remedies, such as compresses, liniments, etc. Within a few months radical bone trouble developed in the knee, and surgeons removed portions of the diseased bone, performing operations at intervals. The leg is shortened, wasted, and deformed, but the evidence does not satisfactorily show that the injuries may not be so overcome by development and growth as to leave her some substantial use of her leg. Hel4, that a verdict for $10,000, while an unusually heavy one against a small town, is not so excessive as to require a reversal, were the trial scrupulously free from prejudicial incidents.
    9. EVIDENCE: Admission: Statement of Plaintiff’s Mother. Testimony by a witness that she heard the mother of plaintiff, a two-year-old child, who sues for injuries alleged to be due to a defective sidewalk, state that plaintiff fell off of a box and thereby received her injuries, is not competent on any theory, the mother being dead and having never testified. The mother not being a party to the suit, her admission did not bind the plaintiff child.
    10.---: -: Of Next Friend: Impeachment. Admissions of plaintiff’s next friend, to the effect that she fell off a box and thereby injured her leg, are not binding against her in a suit by her through him as next friend against the city for-injuries caused by a board' of a defective sidewalk flying up and hitting her leg. But if he gives testimony tending to show the child’s injuries were due to the defendant city’s negligence, his admissions may be used for purposes of impeachment.
    11. ———: Newly Discovered: New Trial. Where defendant’s counsel had been forewarned by the excluded testimony of a witness that it was family talk that plaintiff fell off of a box and was thereby injured and was not injured in the way alleged in the petition, but did not inquire of plaintiff’s father, her next friend, while he was on the stand, whether he had made such statements, affidavits setting out that witnesses heard him make such statements and urging them, as newly-discovered evidence, as grounds for a new trial, do not show diligence.
    12. REMARKS OF COUNSEL. Statements by plaintiff’s counsel in his argument to the jury that a change of venue was not taken by plaintiff and that defendant denies its corporate existence, when such statments are not supported by the evidence, are unfair. And statements that, “Defendant thought they would drag us up here and put us to additional expense,” and that, “You gentlemen have noticed that for the last few days defendant’s attorney has been objecting and has been overruled,” thereby implying that the court was on plaintiff’s side, are prejudicial. And if the court, upon objection, declined to stamp its seal of disapproval upon such line of ■argument, or by remarks seemed to lend its approval to the hurtful statements, it cannot be said that an unusually large verdict for plaintiff was not swollen by these prejudical incidents.
    Appeal from Andrew Circuit Court. — Hon. A. D. Burnes, Judge.
    Reversed and remanded.

      F. B. Ellis, J. A. Clark and J. A. Saunders for ■appellant.
    (1) All persons must use ordinary care in going over a sidewalk. This applies to the parents as well as to children when the child is being guarded by the parent. The city of Cameron was only required to keep its sidewalks in a reasonably safe condition for ■persons whom they might reasonably expect would use such walk. They are not insurers against accident to -children, no more than they are to adults. If parents knowingly permit their children to play in a dangerous place, or knowingly lead them in a careless manner, and the child is injured by the wilful conduct of the parent or its negligence, it cannot recover. Cannevant v. Stuyvesant, 33 N. T. Supp. 53; Reed v. Railroad, 27 N. W. 77; 1 Thompson on Negligence, secs. '300, 316; Gunn v. Chicago, 97 111. 66; Stilson v. Railroad, 67 Mo. 671. The city was not an insurer against -accidents to children such as this, and an instruction which eliminated this proposition is error, and should ■not have been given. Nixon v. Railroad, 141 Mo. 425; Heberling v. Warrensburg, 204 Mo. 604; Railroad v. Devore, 52 IT. S. App. 77; Towers v. Railroad, 58 S. W. 439. (2) The verdict is absolutely excessive, • and is not the result of cool deliberation of a jury. This child was only two years old. The damage to its health was speculative; it was only made lame by this injury, and the injury at first only slight. This child, is incapa"ble of earning anything until, say, it is fourteen years 213 Sup — 23 of age, and then its earnings go to the father and not to the child until eighteen. Chitty v; Railroad, 166 Mo. 443; Nichols v. Plate Glass Co., 126 Mo. 55; Adams v. Railroad, 100 Mo. 555; Devoy v. Railroad, 192 Mo. 221. (3) The argument of counsel for respondent was improper, and calculated to mislead and create a prejudice against appellant, which argument was duly objected to and excepted to by appellant. McDougal v. Cash, 45 Mo. App. 66; Massengale v. Rice, 94 Mo. App. 430.

      Pross T. Cross and R. H. Musser for respondent.
    (1) 1. The negligence of the parent cannot be imputed to the child. Boland v. Railroad, 36 Mo. 484; Winters v. Railroad, 99 Mo. 509; Brill v. Eddy, 115 Mo. 596; Profit v. Railroad, 91 Mo. App: 369; Robinson v. Cone, 22 Yt. 213; Whirley v. Whitman, 1 Head 610; Birge v. G-ardiner, 19 Conn. 507; Railroad v. Hanlon, 53 Ala. 82; Railroad v. Mahoney, 57 Pa. St. 187; Roanoke v. Shull, 97 Ya. 419'; Railroad v. Manson, 30 Ohio St. 470; Railroad v. G-roseclose, 88 Ya. 267; Bottoms v. Railroad, 114 N. C. 699; Railroad v. G-ravitt, 93 Ga. 369; Bamberger v. Railroad, 95 Tenn. 18; Westbrooke v. Railroad, 66 Miss. 560; Wyrnore v. Mahaska County, 78 la. 396; Ives v. Weldon, 114 la. 476 ; Bradshaw v. Frazier, 113 la. 579; Western Union Tel. Co. v. Hoffman, 80 Tex. 420; Evansville v. Senhenn, 151 Ind. 42; Railroad v. Eadie, 43 Ohio 98; Railroad v. Wilcox, 138 111. 370; Railroad v. Kowalski, 92 Fed. 310'; Jacksonville Electric Co. v. Adams (Fla.), 39 So. 183; Railroad v. Herrklotz, 104 Ky. 400; Railroad v. Young, 57 Kan. 168; Shippy v. Au Sable, 85 Mich. 280; Huff v. Ames, 16 Neb. 139; Carney v. Railroad, 72 N. H. 364; Railroad v. Schuster, 113 Pa. St. 412; Eskildsen v. Seattle, 29 Wash. 583; Dicken v. Salt Co., 41 W. Ya. 511. 2. Negligence on the part of plaintiff’s parents would be a defense in this case only in the event that such parents’ negligence was the sole cause of the injury, and that the negligence of defendant in keeping the walk in a dangerous condition did not in any degree proximately contribute to produce such injury. Defendant’s negligence was the proximate cause of the injury. Vogelgesang v. St. Louis, 139 Mo. 127; Hull v. Kansas' City, 54 Mo. 598; Bassett v. St. Joseph, 53 Mo. 290-; Benjamin v. Railroad, 133 Mo. 274; Vogel v. City of “West Plains, 73 Mo. App. 588. 3. Defendant further contends that instruction II was error on account of singling out issues not submitted and as a comment on evidence. But we submit that if the instruction was correct ás a proposition of law, it was properly given, since defendant’s answer sought to and did make an issue before the jury as to the responsibility of this infant for its parents’ negligence. (2) Plaintiff cannot be held responsible for the negligence of either parent or physician in the treatment of her injury, or for a subsequent injury which aggravates the first, but in either case it becomes the result of the first injury. Elliot v. Kansas City, 174 Mo. 554; Conner v. Nevada, 188 Mo. 161. (3) The verdict is not excessive. This child is not only crippled and deformed for the rest of her life, but she will suffer great pain in the future, and, as shown by the doctors, in all probability the trouble will break out anew, and require more operations and probably amputation of the limb. In actions for personal injuries it is the policy of tide law to leave the determination of the damages to the judgment of the individual jurors, and not to interfere, unless it is manifest that the verdict is the result of passion or prejudice. And this rule will be adhered to even though the award of the jury may seem large. Hanlon v. Railroad, 104 Mo. 381; Dimmett v. Railroad, 40 Mo1. App. 654. And the fact that such injury cannot be measured by a definite money standard should make courts cautious, in such cases, in disturbing verdicts because excessive. Wills v. Railroad, 44 Mo. App. 51.
   LAMM, J.

Iii an action for $25,000 damages grounded on negligence, plaintiff recovered $10!,000, and defendant city appeals.

Cameron is a city of the third class with a north- and-south street named Orange. On the east side of Orange was a four-foot wooden sidewalk made of stringers laid lengthwise and boards nailed crosswise. On April 15, 1903, Joy Neff was about two years old. On that day, according to plaintiff’s evidence, while led by her mother, she was walking- on this sidewalk. The 'mother stepped on a loose board. It flew up and struck her on the left leg just below the knee-cap, causing (apparently) a slight but painful bruise. The child suffering, that evening a doctor was called who recommended a hot compress and rest. She received no more personal medical or surgical attention for several months, but her leg was treated by domestic remedies, compresses, liniments, etc., and she did not do well. She was kept in bed, and, when up, limped and complained. Eventually, in the course of some months, radical bone trouble developed in her knee. Surgeons were called and more than one surgical operation was performed at intervals, removing portions of diseased bone.

On the 17th of December, 1904, she brought suit by her father as next friend, her petition alleging she was unable to use her left leg, will be a cripple for her natural life, that her ability to earn a livelihood was permanently destroyed, that her general health and nervous system were-permanently injured, her leg was shrunken and wasted away, etc., and she was disfigured for life. That said sidewalk, at the point and time in question, had been allowed through defendant’s negligence to become old and rotten, the nails rusted and broken, the boards loose from the stringers, etc. That • such dangerous conditions were long known to the city or would have been known by the exercise of reasonable care, but were negligently allowed to remain after the city had time to do repairs, etc.

The answer admits defendant is a city of the third. class and puts in issue the other averments of the petition. It nest invokes the doctrine of “imputed negligence” as a defense, alleging that if the child was injured it was not on account of defendant’s fault, but on account of the negligence of her parents who had charge of her at the time and who permitted her to walk upon', the sidewalk, which sidewalk could not be made reason-: ably safe for a child of so tender years to walk upon ‘with reasonable safety. By way of further defense, it avers that if the child was injured at all it was only slightly injured. That, if the injury afterwards became permanent and serious, it was on account of want, of proper treatment by the parents and attending physicians. That the child being incompetent to care for herself, the parents failed to properly care for her or to furnish her competent medical and surgical attendance. In short, that the after-complications arose from the negligence of the parents to the child and of the physician in failing to attend her and give her due surgical treatment after he knew of the character of her injury.

The case was taken on defendant’s application to Andrew county by a change of venue, where it was tried with the aid of a jury, resulting in the aforesaid verdict.

At the trial it was contended that Orange street was not a public thoroughfare of the city of Cameron'. The testimony took a wide range on that issue; for instance: "Whether it had ever been platted as a street. Again, whether it was a 'de facto street through dedication, acceptance, etc. The clear weight of the testimony was that it had not only been platted, but that it had been improved and treated as a public street of Cameron in charge of the street commissioner. Public work had been done on it from year to year and it was in nse as a public street for a long time before tbe accident. So, too, the sidewalk in question bad been there for several years, and tbe city bad assumed jurisdiction to canse it to be repaired when occasion called and to reconstruct it.' True, on one side of tbe street for a half dozen blocks there were not many bouses and that section of Cameron was shown to be sparcely settled, but that phase of tbe matter only went to show due care to discover and remedy defects. It «being manifest that what is due care somewhat shifts with tbe locality of tbe street and tbe use it is put to. On tbe issue of street or no street, plaintiff made a good case.

Evidence was put in pro and con on tbe condition of tbe sidewalk. Tbe details of it are useless for appellate purposes. A case for tbe jury on tbe issue of defendant negligently allowing a defective sidewalk to remain for some months before tbe accident, was made out so strongly that the merits are with tbe plaintiff on that issue. It was clearly for tbe jury and that phase of tbe case needs no further attention.

Any other material facts essential to tbe determination of questions made on appeal will appear in connection with tbe consideration of such questions.

Here, error is assigned:

(1) In refusing certain instructions; (2) in giving certain instructions; (3) because tbe verdict is excessive and can only be ascribed to passion and prejudice; (4) because plaintiff was allowed to introduce a plat of tbe town of Cameron in evidence (this assignment seems abandoned in defendant’s brief); (5) in excluding tbe declarations and admissions of tbe child’s parent as to how she was injured; (6) finally, that one of plaintiff’s learned counsel made prejudicial remarks in bis argument to tbe jury.

I. Defendant asked and was refused instructions lettered A to H inclusive. Instruction A was a command to tbe jury to find for tbe defendant. Tbe only theory, if any, on which it was allowable was that of “imputed negligence,” exploited in the answer.

Instructions B to H inclusive carefully and elaborately put phases of that doctrine to the jury. Instruction A may therefore be considered with the others.

In brief and in printed as well as oral argument here, defendant’s counsel insist that the negligence of the parents of the child in taking her upon the sidewalk with knowledge of its defects and in not caring properly for her injuries must be imputed to the child or must be taken as the approximate cause of the serious character and permanency of her injury and, hence, is a good defense.

In the evolution of their argument things are said which might be applicable to a case in which the parents had willfully wronged their child in such sort that their willful and intentional act was an independent, intervening, proximate and sole cause of her present condition. To avoid misunderstanding it is better to state that what we shall say hereafter is not applicable to such a case and what counsel have said on that score is inapplicable to the case at bar. There is no such case here on the facts.

What the plaintiff’s parents did in this case, at worst, was to negligently take their child to walk on a defective sidewalk. The proof had no tendency to ■ show that they had the intention of injuring it in the .sense of committing a willful wrong against it. As to their negligence in treating the child' or in providing medical attention, the same may be said. As inferentially shown they were miserably poor and misfortune pursued them. The father was a cripple and the mother incurably ill with consumption. Under the proof the child itself seems a waif, a leaf tossed to and fro by the winds of adversity. Doubtless they did the best within their knowledge and power, and the testimony from expert men of science (with which the record abounds) does not show that medical skill would have-averted the conditions subsequently developing in her knee. The ease is simply one where the negligence of' the parent is attempted to be imputed to the child as a bar to her recovery. The attempt of learned counsel in effect, then, is to incorporate into the law of the land, as legal precepts, the sayings that the sins of fathers-are visited upon their children (Westbrook v. Railroad, 66 Miss. l. c. 569), and that the child’s teeth must be set on edge because the father has eaten sour grapes. [Railroad v. Snyder, 18 Ohio St. l. c. 109]. But the whole doctrine of imputed negligence has been as thoroughly exploded as any heresy ever was. It was originally f ounded on (what, for want of a better expression, we may call) a fiction of the law that the one in whose-care the infant is, is its keeper and agent and, in respect to third persons, “His act must be deemed that of the infant, his negligence the infant’s negligence.” But the theory of agency is flatly unsound. The custodian of an infant is the agent of the law, and not the agent of the infant. It is elementary in the common-law that the one who has suffered wrong may have his amends, indemnity or reparation from any one participating in that wrong. [Bragg v. Railroad, 192 Mo. l. c. 359, et seq.] Thus, if A and B wrong 0, C may recover his damages from either A or B or from both. As put by Bishop (Bishop on Non-Contract Law, sec. 573), “A person who has done any part of a wrong-working harm to another, or even contributed his will to it, is responsible to him in damages for the entire harm, however many • other individuals, forces, and things may have co-operated in bringing about the mischief.”

Of the doctrine of imputed negligence, that author incisively says (Sec. 582, Id.): “Now, this new doctrine of imputed negligence, whereby the minor loses-his suit, not only where he is negligent himself, but. where his father, grandmother, or mother’s maid is negligent, is as flatly in conflict with the established system of the common law as anything possible to be suggested. The law never took away a child’s property because its father was poor or shiftless or a scoundrel, or because anybody who could be made to respond to a suit for damages was a negligent custodian of it. But, by the new doctrine, after a child has suffered damages, which, confessedly, are as much his own as an estate conferred upon him by gift, and which he is-entitled to obtain out of any one of several defendants who may have contributed to them, he cannot have them if his father, grandmother, or mother’s maid happens to be the one making a contribution. In these and other respects, it is submitted, the established principles stated in a preceding section [Sec. 573, supra] are conclusive of the proposition that the doctrine now in contemplation does not belong to the common law.”

Referring to Hartfield v. Roper, 21 Wend. 615 (the parent case in United States holding to the theory of imputed negligence) and to the English doctrine on that behalf, Beach says (Beach on Con. Neg. (3 Ed.), sec. 127): “The rule of imputed negligence, as applied to persons non sui juris, is an anomaly. The English law on this point presents an extraordinary illustration. On the one hand it is held that the negligence of a person having charge of a child is the negligence of the child, and imputable to it, when the child comes into a court of justice and asks damages for an injury negligently inflicted upon it by the defendant. But, per contra, when a donkey is carelessly run down in the highway, where he is negligently exposed, the defendant is held liable, and though oysters are negligently placed in a river-bed, it is an injury redressible at law in damages for a vessel negligently to disturb them. It appears, therefore, that the child, were he an ass or an oyster, would secure a protection which, is denied him as a human being of tender years, in such jurisdictions as enforce the English or the 'New York rule in this respect.”

In at least three states where the doctrine of Hart-field v. Roper, supra, was once followed, Indiana, Minnesota, and Illinois, it is now repudiated. [City of Evansville v. Senhenn, 151 Ind. 42; Mattson v. Railroad, 95 Minn. 477; Railroad v. Wilcox, 138 Ill. 370.]

The leading case on the opposite theory is Robinson v. Cone, 22 Vt. 213, Redfield, J., speaking for that court. That case is followed generally throughout the United States, as shown by the brief of plaintiff’s counsel.

Nearly half a century ago this court in a case argued by eminent counsel chose to follow the lead of Robinson v. Cone. Referring to Hartfield v. Roper, Wagner, J., says in Boland v. Railroad, 36 Mo. l. c. 490: “The reasoning of the learned judge (Cowen, J.) on infantile responsibility is certainly harsh and repugnant to justice. We think the doctrine enunciated by Judge Redeield much more sound and in entire consonance with justice and reason.” In the case of Still-son v. Railroad, 67 Mo. 671, there are observations made which defendant’s counsel rely on in the case at bar as supporting their view. But the Stillson case was reviewed in Winters v. Railroad, 99 Mo. 509. High respect for Judge Napton — a respect bottomed on his signal and fruitful labors on this bench embalmed in the pages of our reports and upon the consensus of' the opinions of his contemporaries, coming down to us as a cherished tradition of the Bar of Missouri-caused his observations on the doctrine of imputed negligence to be treated with great tenderness in the > Winters case. But enough was said there to show that this court re-announced the doctrine of the Boland case, and distinguished the Stillson case, holding in effect that what was said on the question of imputed negligence was not necessary to a decision and, therefore, became obiter. Such was the view of Ellison, J., in a well-reasoned ease, Profit v. Railroad, 91 Mo. App. l. c. 376, et seq.

The Stillson case is put somewhat on the doctrine . of Railroad v. Stratton, 78 Ill. 88. Learned counsel/ for plaintiff point out that the authority of Railroad' v. Stratton is much shaken, if not overturned, in a later case in the Supreme Court of Illinois — tl^e Wilcox case, supra. It is not too strongly put, to say that the doctrine of this court is settled that negligence of the parent cannot he imputed to an infant where the infant sues in its own'right for a wrong done. [Brill v. Eddy, 115 Mo. l. c. 606; Stotler v. Railroad, 200 Mo. l. c. 143, et seq.] If the parent sues in his own right, a radically different situation is presented.

The instructions were properly refused and the point is ruled against defendant.

II. Error is assigned in the giving of instructions. None hut two need attention. During the hotfoot and fervor of the argument, defendant’s counsel (as we gather) took the position that, as the parents of plaintiff knew the condition of the walk, it was their duty to complain to the city. We infer from the scant record that the absence of such complaint was exploited as a defense. At this point, the court, to parry the force of that line of argument, gave the following: * ‘ The court instructs the jury that even though they may find from the evidence that the father or mother, of plaintiff knew that the sidewalk in question was not reasonably safe for travel thereon, if you find it was so at the time they went thereon with plaintiff, yet that fact is no defense in this case.” Under the circumstances, we deem that instruction not reversible error. The fact pointed out was no defense under the facts here. If no such argument had been made, the instruction might be bad in singling out and giving undue prominence to one or two facts, and as being argumentative in tone. But considering the occasion of it and the office it was intended to fill, it was well enough.

Plaintiff asked and was given the following:

“The court instructs the jury that if they find for the plaintiff under instruction numbered one, given on her behalf, and that she was injured as therein stated, and if you believe from the evidence that at the time she received such injury she had a tubercular tendency or had latent tuberculosis in her system, and that said injury caused said tubercular tendency, or latent tuberculosis, to develop in and become active-in her injured leg or knee, and that the development of said latent tuberculosis or tubercular tendency was the natural and proximate result of said injury and thereby aggravated said injury to her left knee and leg, then defendant is responsible for any injury or damage arising or accruing to plaintiff on account of such tubercular development so eaused by and the natural and proximate result of such injury.”

Some of the expert testimony tends to show that the present grave conditions of the child’s knee was caused by the active development of tuberculosis. Some-of the doctors were of the opinion that there was a latent tendency to tuberculosis in the knee before the blow, which sprang into pernicious life and activity through it. Some of them said that tuberculosis is not hereditary, but that one person gets it from another through “contagion.” One of the said doctors did not know whether the one theory or the other is true and would like to know. One testified to his mind there was no present tubercular condition. There is a unanimity of opinion to the effect that whether there was-a latent disease in the knee before the blow and resulting original injury, or not, yet that its present serious. ■condition would naturally result from a blow or a lick, which injured the outside covering of the bone.

In this condition of the proof, plaintiff was entitled "to an instruction on the theory that if tuberculosis was latent in the knee prior to the lick; and. the lick received from the board directly caused it to become active and that activity, in natural and reasonable sequence, produced the inflammation, diseased bone, and stiff and crippled condition, if any, disclosed by the proof, then plaintiff was entitled to recover for such aggravation •of the latent tubercular tendency as naturally and solely resulted to the knee from the blow. If, on the other hand, that aggravation was solely caused by something independent of the blow and original injury and which (as a new and independent cause), intervened after the blow, then the above rule of law self-evidently ■ought not' to apply, and plaintiff could not enhance her damages by the aggravation. Now, the instruction in •question is not drawn with clearness and precision. It uses the word “injury” in several senses. It is first used several times in the sense of the original harm to the knee by the lick of the board. But subsequently the same word is used as meaning the aggravation of the original injury — the latter part of the instruction reading: “And thereby aggravated said injury to her left knee and leg, then defendant is responsible for any injury or damage arising or accruing to plaintiff on account of such tubercular development so caused by •and the natural and proximate result of such injury.”

The primary office of an instruction is to lay down to the plain men in the box, who use plain fireside language in reasoning, a plain rule of law to guide them in arriving at a just result on the facts they find to exist. Jurymen are not skilled in differentiating the use of the same vital word in different senses in the •same instruction; though such word may be properly •used and properly understood in different senses by minds drilled in etymology. The instruction in hand covers the very heart of the case. It should therefore have been drawn with precision, so that it would throw out a full and clear, not a confused or misleading, light. Stripped of mere large verbiage, it in effect told the .jury that if the original injury to her knee was aggravated by the development of resulting acting tuberculosis '(theretofore latent) then defendant was responsible for the injury to the injury caused by and the proximate result of the injury. We may only guess what effect that singular pronouncement had on the jury’s mind in producing their anxious verdict. It may have been bad — presumably was. We think, on this record, it was error to give it.

At another trial this instruction should be redrafted so as to clearly announce the correct rule-of law — by using any material word in only one allowable sense.

III. Is the verdict so excessive as to indicate passion and prejudice in the jury? Error is assigned in that behalf. Absent elements of evil intent and malice, as here, the verdict challenges judicial solicitude and scrutiny as an unusually heavy one against a small town for injuries to a child’s leg not resulting in amputation, and which (while grave) the testimony does not satisfactorily show may not be so far overcome by her growth and development as to leave her some substantial use'of her limb, and which the testimony does not show will with reasonable certainty entirely destroy her earning capacity when she becomes an adult.

Our statutes put a modest and conservative limit on liability for a death loss; and, whatever may be the rule in other jurisdictions, this court has always deemed it of the gravest concern that damages should be kept within fairly conservative bounds in personal injury cases. Full compensation for injuries received through negligence is impossible, in the abstract. The best courts can do is to see to it that results attained do not shock the judicial' conscience. Justice to the plaintiff must be tempered with — nay, means— justice to defendant as well. The burden of such judgments ultimately rest-s upon innocent taxpayers. So that, while the law renders its indemnity and amends to the injured plaintiff, it does so in a reasonable and not in a sentimental or extravagant way.

In a trial scrupulously free from prejudicial incidents, we are not going to say the verdict, large as it is, might not stand. But, as pointed out in another paragraph of this opinion, the trial was not free from such incidents — incidents that may well have inflamed the jury, hurried it beyond the point of fairness and left their mark in a swollen verdict — incidents constraining us to be of mind the verdict is excessive.

IY. At the trial, a witness for defendant, Mrs. Hull, was on the stand. Asked if she knew how Joy got hurt, she said she did. Asked how, she replied, “Pell off a box. Q. Pell off a box? A. Yes, sir.” Inquired of by the court whether she saw that, she answered, “No, sir.” At this point the court sustained a motion to strike out that testimony from the record. The jury was then excused, and, while out, it was ascertained from the witness that the child’s mother told her she fell off a box and hurt herself. On that disclosure being made, defendant’s attorney, Mr. Ellis, asked the court to rule that the statement of the mother to that effect was competent. The court declined to so rule and counsel saved an exception. The jury came in and the witness proceeded with her testimony, barring the excluded statement of the mother. The court also instructed the jury there was no evidence plaintiff fell off of a box and hurt herself. That the testimony of Mrs. Hull relating thereto had been stricken out and must be disregarded. Here, it is contended that error was committed in excluding that statement.

The mother, some months after Joy’s injury, died of consumption. On this record there is no soundness in the assignment. The mother not being a party to the suit, her admission did not bind her child; and under no known legal principle was it admissible in ■evidence.

In this connection, we may as well dispose of a question raised in the motion for a new trial. That motion alleges defendant has discovered new testimony, unknown to it at the trial, to-wit, that Edwin Neff (the child’s father and next friend), told divers persons in 'the city of Cameron a short time after the accident is said to have taken place that his little girl fell off of a box and hurt herself. Supplementing that allegation in the motion, was the affidavit of one Albert Stacker who deposed that he worked with Neff as a painter ■during the spring and summer of 1903, and during that time Neff told affiant Joy fell off a box and hurt her knee.

Observe there is no diligence shown. Therefore, however material the testimony, the motion "for a new trial could not have been sustained, absent such showing. Not only so, but Neff’s statement was not admissible as that of a party to the suit. For some purposes a next friend may bind the plaintiff by his conduct in court. But he is no such agent of the plaintiff ■as would make his prior statements.admissible on the merits 'of the case against his ward. In this instance, however, Neff was a witness. His deposition was taken and read. He testified he was present at the time Joy was hurt by her mother’s stepping on a loose sidewalk board. In fine, his testimony tended strongly to show liability on the part of the city. Afterwards during the course of tbe trial, he was produced in person upon the stand by plaintiff and tendered as a witness for the purpose of cross-examination by defendant’s counsel. Any admission of his that his child fell off the box and hurt her knee was of vital significance by way of impeaching his testimony read to the jury from his deposition foisting liability on defendant by a lick from a board negligently left loose in a sidewalk. But counsel declined to cross-examine him. The testimony of Mrs. Hull had forewarned them of the family talk that the child was injured by falling off a box. Why they did not sift his conscience or cross-examine him to lay the foundation for his possible impeachment we may only guess. The premises considered, we see no error in the ruling of the court on the motion for a new trial because of newly-discovered evidence.

At another trial the city, if it so desires, can put itself in a situation to be legally entitled to impeach Neff’s testimony if the same is used to get another verdict.

Y. Finally, error is assigned on prejudicial remarks made by counsel for plaintiff in their closing argument to the jury. Plaintiff’s counsel in their brief say we should not consider these remarks because the attention of the trial court was not called to them in the motion for new trial. But we do not read the motion in that way. It is not as specific and full as it should have been, but it does call the court’s attention to error of the character indicated in broad language as definite as has been held sufficient in such motions in directing attention to error in ruling on admissions or exclusions of testimony, or in giving or refusing instructions.

The record shows that, arguendo, one of plaintiff’s learned counsel used the following language to the jury: “The plaintiff didn’t bring this case to Andrew county.” Again: “They deny that the city of Cameron is a city of the third class. ’ ’ • Again: “You gentlemen notice that for the last few days Mr. Ellis has been objecting and has been overruled.’ ’ Again: ‘ ‘ They thought they would drag us up here and put ns to additional expense.” These remarks were severally objected to. The court made only the ruling hereinafter indicated. As to the remark that, “The plaintiff didn’t bring this case to Andrew county,” the court said: “That is the record and you gentlemen introduced it yourselves yesterday by putting Mr. Musser on the stand to prove the papers in this case.” As to the remarks, “They deny that the city of Cameron is a city of the third class,” the ruling of the court was: ‘ ‘ The answer is in evidence. ’ ’

Now, the trial answer, and the only one in the record, shows that defendant admitted it was a city of the third class. Counsel had no right to throw an aspersion on the good faith of the city’s defense, by stating it denied its very corporate existence. The jury may or may not have recalled the verbiage of the answer. It was the duty of the court to have corrected counsel in no uncertain way.

For some purpose, we cannot clearly make out, one of plaintiff’s counsel was called as a witness for defendant. He was handed a bundle of papers and asked, in substance: What are those papers? He answered: “These are the original papers.” He then proceeded without further question to make an inventory by enumerating, thus: “Here is the petition, the defendant’s answer, subpoenaes, application for change of venue by defendant” — At this point he was interrupted and did not finish his voluntary inventory. Asked why he got those papers and brought them, his answer was: “Tes, we brought over the answer filed by you gentlemen denying Cameron was a city of the third class and everything alleged in that petition. ’ ’ -

The application for a change of venue was not read to the jury. No answer was read to them showing that defendant denied it was a city of the third class. It is on such a record that the court permitted counsel to say that plaintiff had not taken the case to Andrew county for trial. In strictness, the testimony (not responsive to the question) did not show that. It merely showed that defendant had taken a change of venue. There might have been more changes of venue than one. But, on broader grounds, we do not choose to shut our eyes to the purpose and danger of that line of argument. It could have no result except to prejudice the jury and the court should have instantly stamped the seal of its disapproval upon it. The same may be said of the remark: “You gentlemen notice that for the last few days Mr. Ellis has been objecting and has been overruled. ’ ’ What, may we ask, did that mean except this: “Yon notice, gentlemen of the jury, that Ellis is wrong in the way he is trying this case. You see, gentlemen, we have the court with us, and that makes the path of duty plain to you.” That was a mischievously unfair argument and the court in its own dignity and right should have stopped counsel even though no objection was made. Suppose learned counsel had told the jury that the court was favorable to plaintiff’s view of the case and thus have put into the jury’s mind the personal views of the court to weigh down the scales of justice against defendant city? Would that not be a reproach of the law? Yet how much less harm was it to call the attention- of the triers of fact away from the facts and fasten it upon the rulings of the court with which they had no concern? Counsel had odds enough in their favor. A little child, to whom the honest human heart goes out in sympathy, a permanently crippled knee resulting from the proved negligence of the town, was this not enough inducement to a play of forensic eloquence striking every chord of sentiment in a juryman’s breast, without projecting the personality of the learned judge on the bench into the controversy? In Wojtylak v. Coal Co., 188 Mo. l. c. 285, et seq., it was said that incidents of like character appeal strongly to judicial discretion. In Bragg v. Railroad, 192 Mo. l. c. 366, it was said: “It cannot be denied that in the everyday administration of the law through the courts, enough flotsmi and jetsmn may be lodged in the current of a trial to turn the stream of justice awry.”

But we have pursued the matter far. In our opinion, the interest of exalted and refined justice will be well subserved by reversing and remanding this case for a new trial. It is so ordered.

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


source: Caselaw Access Project

author: CRAVES, J.

license: Public Domain

text:
    AMELIA PORTER v. ST. JOSEPH STOCK YARDS COMPANY, Appellant.
    Division One,
    July 3, 1908.
    1. NEGLIGENCE: Demurrer: Conflict of Testimony: Car-Repairer: Flag on Switch Track. Where two witnesses swore positively that a flag was on the switch track, between the switch entrance and the stationary car under which deceased was working, and defendant’s witnesses swore equally positively that no flag was there, as the rules of the company required, the settlement of the conflict in the testimony was for the jury, and the court cannot sustain a demurrer to the evidence on the ground that deceased was guilty of contributory negligence in not placing a warning flag on the track.
    2. -: ———: Actual Notice: Unreasonable Evidence. It is unreasonable that a car-repairer, at work under the second of two stationary cars, after he had placed his flag on the switch track, as the rules of the company required, and after one car had been kicked in on the track and he had' been told by one of the switching crew that other cars would soon be pushed in on the track, would have remained in the place of danger under the car until he was killed within five minutes of the alleged warning. And where the member of the crew who swore he so notified him is contradicted on every other material point, even upon the point that a car had been kicked in on that particular track prior to the ones which caused the car-repairer’s death, and that too by two others of the train crew, the reasonableness of the testimony of that one witness is to be passed upon by the jury, although he was not contradicted on the point that he gave deceased actual notice.

      3. -: Instruction: Preponderance: Evenly Balanced. Where' the jury were told in two instructions given that the burden rests upon plaintiff to prove her case fry a preponderance of the evidence, it was not error to refuse a third which told them that if they find the evidence evenly balances or that it preponderates in favor of defendant, plaintiff cannot recover.
    4. -: -: Wrong Theory: Contradictory of Defenses. Where defendant throughout the trial made two defenses, namely, that there was at no time a flag on the switch track between the switch entrance and the car under which deceased was working, and that one of its train crew notified deceased, after a car had been kicked in, that other cars would be switched' on to the track, it was not error to refuse to instruct the jury that if deceased had placed a flag in front of the cars on the track, yet if said flag was knocked down by the car kicked in, and deceased with knowledge of that fact placed himself under said stationary car without again putting up a' flag to warn the train crew that he was working about the car, plaintiff cannot recover, provided he knew they intended to switch other cars upon said track — -the proviso being covered by another instruction given.
    5. NEW TRIAL: Newly-Discovered Evidence. Affidavits by witnesses who were present and testified, to the effect that a material witness for plaintiff was not present at the place of the accident, do not show diligence. Ordinary prudence would have prompted counsel to inquire of affiants who were present at the accident, and if the particular witness was there.
    Appeal from Buchanan Circuit Court. — Hon. Henry M. Ramey, Judge.
    Affirmed.

      Thomas F. Ryan for appellant.
    (1) The court erred in overruling the demurrer ashed by defendant at the close of all the testimony. (2) The court erred in refusing instruction é ashed by defendant. (3) (a) The court erred in refusing to give instruction 8 ashed on the part of defendant. Not only was there evidence to support this theory of the defense, but the uncontradicted evidence was that the deceased, immediately before he was injured, was warned that other cars were to- he pushed in upon the same track. If the deceased, with this knowledge, then placed himself in a place of danger which resulted in his injury, he certainly could not recover in this case. If there was any evidence tending to prove this fact, then defendant was clearly entitled to have that issue submitted to the jury under proper instructions. Riddens v. Riddens, 29 Mo. 470; Devitt v. Railroad, 50 Mo. 302; Kraft v. McBoyd, 32 Mo. App. 399; Cahn v. Reed, 18 Mo-. App. 131. (b) The court erred in refusing to give instruction 9 asked on the part of defendant. Defendant was entitled to have this instruction given if there was any evidence upon which it could be based. The law clearly gave defendant the right to have the jury consider its theory of defense as made out by the evidence under proper instructions. Every fact stated in this instruction was proven beyond controversy. The refusal of this instruction was clearly error and that error was not cured by the giving of the other instructions in this case. The other instructions given were general instructions and none of them covered the particular issue and facts to which the jury’s attention was asked to be called by this refused instruction. Defendant was entitled to have its theory of defense submitted to the jury, and the court erred in-refusing to submit a defense which- was supported by evidence. Van Horn v. Railroad, 198 Mo. 491; Dae v. Car Co., 112 Mo. App. 489 ; Allen v. Railroad, 183 Mo. 435.
    Brewster, Ferrell & Mayer for respondent.
    (1) The court properly overruled defendant’s demurrer offered at the close of all the testimony. The jury, the triers of the facts, found, as they had a right to find, that Criss was wrong when he swore the flag was not up when the first car was kicked in, and the jury had a right to disbelieve the improbable story of the conversation with Porter as related by the same witness. Boone v. Railroad, 20 Mo. App. 235; Gregory v. Chambers, 78 Mo. 298; Kenney v. Railroad, 80 Mo. 573; Milliken v. Com. Co., 202 Mo'. 637. (2) The court ■did not err in refusing defendant’s instructions 8 and 9. Giving these instructions the most favorable construction for defendant, they stated, in substance, that if Porter, prior to the time he received the injuries, had knowledge that defendant intended to switch cars in and upon track 8, then plaintiff could not recover. There was no evidence that Porter had such knowledge, except that Criss testified that he warned Porter. In ■appellant’s brief it is insisted that Porter had knowledge because he was warned by Criss, and apparently this is the only evidence of Porter having knowledge which the writer of appellant’s brief could call to the attention of this court. Therefore, the question to submit to the jury was: Did Criss warn Porter? This was the simple, straightforward and direct question, based on the evidence, and in keeping with the theory upon which the case was tried. And the trial court, by giving defendant’s instruction 7, fully and fairly submitted the question of warning to the jury. As applied to the evidence in this case, and the theory upon which the case was tried by appellant, instructions 8 and 9, which were refused, were repetitions of instruction 7, which •was given, and, therefore, 8 and 9 were properly refused. Blanton v. Dold, 109 Mo. 77; Crawshaw v. Summer, 56 Mo. 517; Maxwell v. Railroad, 85' Mo. 95. As to instruction 9, there was absolutely no evidence that Porter was not killed when the first car was kicked in, much less that he knew that the first car kicked in had knocked down his flag, except that Criss testified (not that he told Porter the flag had been knocked down, •for Criss swore no flag was ever up) that he warned Porter that defendant was not through switching on ■track 8.
   CRAVES, J.

Plaintiff is the widow of Cyrus 0. Porter, who came to his death by being run over by a car under which he was at work as a car-repairer for the Hammond Packing Company. The widow brought, this action for the statutory penalty of $5,000', within the period prescribed by statute.

' Defendant'is a corporation running and operating-stockyards in St. Joseph, Missouri, in connection with which are several main and a number of switch railroad tracks, over which the defendant by and through regular switching crews moves cars from place to place in its yards and to the near-by packing-house plants. The Hammond Packing Company, for which deceased was working as a car-repairer, had a near-by plant. Among the number of switch tracks upon which cars were placed was one numbered 8. Upon this track were standing several stationary cars. Under one of these cars, Porter wént for the purpose of making some repairs. The evidence tends to show that it was the second car. It also appears that there was a rule or custom which required car-repairers, before going under a car, to put up a flag between the stationary cars upon the track, and the switch leading into such track, so as to notify the switching crew that he was under the car. This rule or custom stands admitted in the record. When such flag was so placed it was the duty of the switching crew to give notice to the car-repairer before moving the cars from the track or placing others thereon. In the petition it is charged that the deceased placed the signal flag in the proper place before going under the car to work, but that defendant, notwithstanding the fact that it was thus notified of the dangerous situation of deceased, carelessly and negligently backed, in a string of cars upon such side track, without notice to deceased, and negligently caused the same to violently strike the car under which deceased was working, thereby inflicting upon him injuries from which he then and there died. The answer is a general denial and a plea of contributory-negligence. Upon trial before a jury a verdict for plaintiff in sum of $5,000 was returned and judgment duly entered. After an unsuccessful motion for a new trial, defendant brings the case here by appeal. As defendant urges that a demurrer to the evidence should have been sustaind, further statement of the evidence will follow at the proper point. This sufficiently states the case.

I. At the' close of the evidence the defendant interposed a demurrer to the testimony. The refusal to sustain this demurrer is urged as error upon the part of the trial court. This contention is urged more strongly upon the ground that Porter was actually warned that cars would be pushed in on the track, and incidentally on the ground that no flag of warning was set up by Porter.

(a). This accident occurred very shortly after 12:30 p. m. on May 17, 1905. At 12:30 a whistle was sounded as a signal to the men to return to their work. Two witnesses, Boyer and Teat, testify that they saw Porter as he started to his work upon a car that was located upon track 8, place a proper signal flag in between the rails of’ track 8, between the stationary cars thereon and the switch lead and near to the switch lead. They also testify that they saw a flag lying between tracks seven and eight as they returned from the place where Porter was killed. Boyer further testified that he noticed the hole in the ground where the flag had been and from which it had been knocked by the moving car or cars. These two witnesses, it is true, are flatly contradicted by most if not all of the switching crew. This contradiction, even though by the greater number, would not authorize a demurrer upon that question. This became a question for the jury. [Rinehart v. Railroad, 204 Mo. l. c. 276, and eases cited therein.]

(b) It is next urged that the defendant first kicked In one car upon track 8, then pushed in some cars on track 5, then, within four or five minutes from the time it lacked in the one car upon track 8, it shoved in on track 8 some five or six cars coupled to the engine, at which time Porter was killed. By one Criss it is shown that when the first car was kicked in on track 8, he saw Porter, and was asked by Porter if they were through switching upon that track, and he informed Porter that there were other cars to be put in there, and that they were not through as yet. Most of the witnesses agree that there was one car kicked in first, followed by the engine and five or six cars four or five minutes later. However, the engineer, Niles, witness for the defendant, disagrees with this view, and describes the movements of his engine thus:

“Q. How long after you pulled into the yards before you went onto track eight? A. We had been on seven switching, on five, come lback to seven and then on eight.
‘ ‘ Q. After you got through switching the cars on track seven how near to the lead did the west end ■of the cars extend, the stationary cars there?
“The Court: Car you left on track seven? A. I ■don’t know.
“Q. Did you notice where they were located? A. No.
“ Q. Do you know how many movements you made there with your engine before you kicked the car in on track eight, single car? A. Didn’t kick no car in on track eight, kicked it on five, went back in on seven, kicked in on seven and went back on eight light.
“ Q. What were you doing at the time Porter was Injured? A. Shoving in on track eight.
“Q. How many cars were you shoving in? A. Five or six, I don’t know.”
And witness Boyer, for plaintiff, although saying several times that the one car was kicked in upon track 8, upon cross-examination said:
“Q. Then you didn’t know whether they kicked it in on seven, or eight, or nine? A. No, sir, I didn’t know at that time. ’ ’

The evidence is therefore divided upon the question as to whether or not this first car was kicked in upon ■track 8, or upon some other track. All of defendant’s witnesses say that there was no flag there at any time, hut this is disposed of above and we mention it now only in so far as it affects the testimony of Criss. The contention of defendant is, even though there might have been a flag, it was knocked down by this first car, and none was shown to have been put up later. It also contends that deceased saw the first car and therefore knew that his flag was displaced, and was further notified that other cars were to be pushed in upon that track. Defendant urges, that under the undisputed testimony of Criss, the deceased was guilty of such contributory negligence as would preclude a recovery and' for that reason the demurrer should have been sustained. Porter’s lips were sealed and of course there is no denial in terms of the alleged warning given by ■Criss, or that he knew his flag was down. But on the other hand, Criss is flatly contradicted upon other material points, and it is not certain whether this first car was placed on track 8 or 7. Criss swears that there was no flag at any time and in this is contradicted. He swears that there was one car kicked in on track 8 first and in this he is contradicted by Niles, the engineer. There is a presumption that Porter, the deceased, exercised ordinary care for his own protection, and in the face of Criss’s alleged warning that they were going to put in other cars upon track 8, we find him under a car in a place of danger, within less than five minutes of the alleged warning. This is unreasonable' to say the least. With these facts before the court, isn’t the reasonableness of Criss’s story a question to be passed upon by the jury who had opportunity to see the demeanor and conduct of the witness upon the stand? We think SO'. The testimony for plaintiff, with the presumption aforesaid, made a strong prima-facie case. [Gannon v. Gas. Co., 145 Mo. 502; Davidson v. Railroad, 211 Mo. l. c. 359.]

There was no error in overruling the instruction in the nature of a demurrer.

II. It is next urged that there was error upon the part of the trial court in refusing instruction numbered 4, asked by defendant. This instruction reads: ‘ ‘ The court instructs the jury that the burden of proof is on the plaintiff and it is for her to prove her case by a preponderance of the evidence; if you find that the evidence bearing upon the plaintiff’s case evenly balances or that it preponderates in favor of the defendant, then the plaintiff cannot recover. ’ ’

In this connection it must be noted that the court gave for defendant instructions numbered 2 and 5. Instruction number 2 after reciting the negligence pleaded by the plaintiff in her petition winds up thus: ‘ ‘ The court therefore instructs you that the burden rests upon the plaintiff to prove these facts by a preponderance of the evidence to your Satisfaction, and unless they are so proven your verdict must be for the defendant.”

•Instruction number 5 reads thus: “The court instructs the jury that you are not warranted in finding a verdict for plaintiff in this case from the evidence alone that the plaintiff’s husband, while repairing a car on side track number 8, received injuries which resulted in his death, and that said injuries were caused by the backing of a string of cars in charge of the servants of the defendant and against the car which the plaintiff’s husband was repairing; but the court instructs you further that to entitle the plaintiff to recover the burden rests upon her to prove to your satisfaction that at the time said string of ears were so pushed by the servants of the defendant against the car which plaintiff’s husband was repairing there was then a signal flag placed by the husband of the plaintiff in front of said ear which he was repairing for the purpose of giving a signal or notice 'to the servants of the defendant that he or some one was repairing one of said stationary cars, and unless the plaintiff prove this fact to your satisfaction by a preponderance of the evidence, then your verdict must be for the defendant.”

It will be observed that in two instructions for the defendant the plaintiff was required to prove her case by a preponderance of the evidence and to the satisfaction of the jury and that unless she had so' established her case the verdict must be for the defendant. With these two instructions given there was no error in refusing number 4. If the evidence must preponderate in her favor before she could recover, the jury would be advised that she could not recover if it were evenly balanced or preponderated the other way.

III. The next contention is the refusal of the court to give instructions numbered 8 and 9, as follows :

“8. The court instructs the jury that if you find from the evidence that the deceased, Cyrus O. Porter, prior to the time he received the injuries which resulted in his death, had knowledge that the servants of the defendant intended to switch cars in upon track number eight, and that the deceased, Cyrus 0. Porter, with such knowledge, placed himself in a position where lie was liable to be injured by tbe movement of said cars, tben the plaintiff cannot recover in tbis case and your verdict should be for tbe defendant.
“9. Tbe court instructs tbe jury that although you may believe,from tbe evidence that tbe deceased bad placed a flag in front of tbe cars on track number eight, yet if you further find from tbe evidence that after said flag was so placed it was knocked down by a car kicked or shoved in by tbe servants' of tbe defendant, and that tbe deceased with knowledge of tbis fact placed himself under said stationary cars without putting up a flag or signal to warn tbe servants of tbe defendant that be was working about said cars, tben plaintiff cannot recover in tbis case, provided tbe deceased knew that tbe servants of defendant intended to switch other cars in and upon said track.”

Instruction number 8 thus refused is fully and fairly covered by instruction number 7 which was given. Number 7 reads: “Tbe court instructs tbe jury that if tbe deceased, Cyrus 0. Porter, shortly prior to tbe time he received tbe injuries which resulted in bis death, was warned and notified by tbe servants of tbe defendant that tbey intended to switch cars in upon number eight track and that tbe deceased, Cyrus 0. Porter, after being so warned and notified, placed himself in a position of danger, where be was liable to be injured by tbe movement of said cars, tben tbe plaintiff cannot recover in tbis case and your verdict should be for tbe defendant.”

Nor was there error in refusing instruction number 9 for tbe reason that defendant throughout made but two defenses to tbis action. It introduced evidence upon but two theories. First, it claimed there never was a flag there, and, secondly, it claimed that Criss notified Porter that tbey were not through switching. The defendant having adhered in its evidence strictly to these two theories, tbe refusal of tbis instruction was not error. rr'b', theory of plaintiff was that there was a flag placed and defendant disregarded the signal. Further, the last part of the instruction is predicated upon the knowledge of deceased • that other cars were to he switched in upon that track,, which question is fully covered by instruction number 7.

IV. The next and last point urged is the failure of the trial court to sustain the motion for new trial on the ground of newly-discovered evidence.- Of this, learned counsel for the defendant in his brief says:

“We candidly admit that these affidavits alone would not have justified the court in granting a new trial in this case, but we say .that, when you consider the unsatisfactory and apparently untruthful evidence of these witnesses, justice would have been better sub-served had the court sustained the motion and given the defendant an opportunity to meet this testimony,, which was not only a surprise to the defendant, but which the defendant had no reason to anticipate.”

The trouble with these affidavits is the failure to show proper diligence. The effect of the newly-discovered evidence was to show that Boyer was not present at the time of the accident. This they propose to prove by Davis and other witnesses who were actually used by the defendant in the trial. .The only excuse offered is that counsel for the defendant did not know or learn from the witness Davis that Boyer was not present. With Boyer on the stand as a witness,-ordinary prudence would have prompted counsel to inquire of his witnesses who were present, and as to whether or not Boyer was there. The candid statement of counsel in his brief here as above quoted is commendable. The credibility of these witnesses, however, was for the jury.

The case should be and is affirmed.

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


author: LAMM, J.

text:
    JAMES G. GRACEY, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    July 3, 1908.
    1. OFFICER: How Determined. One method of determining what is an office is to go to the written law creating the position and determining its duties, and discern from it the legislative intent as evidenced by its words.
    2. -: -: Charter: Deputy Elevator Inspector. The city charter defined the term “officers” to “include all persons holding any situation under the city government or its departments, with an annual salary or for a definite term of office,” and gave the municipal assembly power by ordinance to create any office it deemed necessary; and the ordinance authorized the mayor to appoint an inspector of boilers and elevators, and authorized said inspectors "to employ, by and with the consent of the mayor, five deputy inspectors,” and provided that the inspector and his deputies “shall hold their office for the term of four years, and be paid for their services the sum of $1,200 each per annum,” and required them to give a bond in the sum of $5,000, and the charter provided that “any appointed officer may be removed by the mayor or council for cause.” Plaintiff was appointed deputy inspector, and the appointment approved by the mayor, but his written appointment is silent on his term, He filed an oath and gave the required bond, and served for something over three years and was then summarily dropped, without any hearing or the assignment of a cause, and now sues for his salary for the balance of a four-year term. Held, that he was, by the plain language of the charter and ordinances, an officer, and could be removed only in the way provided by the charter. '
    3. -: -: General Definition: Employ. Under the general definition of a public officer, plaintiff was an officer of the city, and that, too, although the word “employ” is used in the ordinance authorizing the inspector “to employ five deputy inspectors.” The word “employ” is of wide meaning, and taken with its context in this -case conveys the idea of selecting and intrusting with a public duty.
    4. -: Removal. A public officer of a city cannot, under the charter of St. Louis, which provides for removal by the mayor or council for cause, be removed during his term and stripped of his official emoluments, except for cause and on due process of law — that is, on due charges made and due hearing had on due notice given.

      5. -: -: Salary. A public officer is entitled to his salary during his term of office, independent of his performance of its duties.
    6. -: -: Abandonment. Mere silence of the deputy officer on being told by his chief that when the head of the department is changed he also goes, or a mild protest on his part when he is relieved of the duties of the office by the assignment of another thereto, and his failure to institute mandamus to compel his reinstatement or quo wwrranto to test the other’s title, do not amount to an abandonment of the office or to an acquiescence in his dismissal.
    7. -: -: Limited by Bond. A person appointed to an office having a fixed term is entitled to the entire term, unless removed for cause, etc. The fact that the written appointment did not define his term but used general language and the fact that his bond recited that his official term ended before the end of the term fixed by law, did not affect his right to the entire term. The law cannot be added to or pared down by any recital in the bond.
    8. -: ———: Settlement: Other Employment. By accepting payment of all moneys due him up to the time of his wrongful dismissal and by thereafter accepting other employment alleged to be incompatible with his duties as a public officer, the officer did not surrender his right to be paid the legal salary pertaining to the office for the remainder of the term. By accepting what was due him an officer does not jeopardize his right to the salary for the unexpired part of the term of which he was wrongfully deprived, and he is not required to be idle in order to preserve his right of action.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Reversed and remanded (with directions).

      James B. Van Slyke for appellant.
    (1) The court erred in declaring that under the law and the evidence plaintiff was not entitled to recover against the city, because plaintiff’s appointment was for a definite period, and at an annual salary; therefore he was and became under the charter and ordinance provisions of the city an officer and entitled as snch and conld be dismissed only for canse. State ex rel. v. Police Commr., 14 Mo. App. 300; affirmed by Supreme Court, 88 Mo. 144; State ex rel. v. Brown, 57 Mo. App. 190; State ex rel. v. Walbridge, 62 Mo. App. 199; State ex rel. v. City, 90 Mo. 19; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Hawes, 177 Mo. 387; State ex rel. v. Longfellow, 93 Mo. App. 370; State ex rel. v. Walbridge, 153 Mo. 197; State ex rel. v. Carr, 3 Mo. App. 6; City of Houston v. Estes, 79 S. W. 848; City of Plouston v. Lubbock, 79 S. W. 851; City of Houston v. Johnson, 79 S. W. 1199; Everitt v. Swan, 57 Pac. 716; Kendall v. Raybauld, 13 Utah 226; Larson v. St. Paul, 86 N. W. 459-; Andrews v. Portland, 79 Maine 484; Emmett, Mayor v. New York, 128 N. Y. 117; Stradler v. City of Detroit, 13 Mich. 346; Commissioner v. Johnson, 124 Ind. 145; Dillon Mun. Corp. (3. Ed.), sec. 235. (2) Plaintiff, by reason of term, salary and duties was a city officer. State ex rel. v. Maroney, 191 Mo. 531; Mechera’s Public Offices and Officers, secs. 2-10, 38, 386, 454; Throop', Public Officers,, secs. 2, 187, 304; Municipal Corporations, Abbott, secs. 598-9, 617-8, 621. (3) Plaintiff being a city officer and not having- been removed for cause, he is entitled to be paid his salary for the unexpired term. State ex rel. v. Walbridge, 153 Mo. 197.

      Chas. W. Bates and Benj. H. Charles for respondent.
   LAMM, J.

On the 18th of February, 1905, plaintiff sued for $483.33, for his unpaid official salary from June 9, 1903, to November 4th of that year, with interest from the last date, as deputy inspector of boilers and elevators in the city of St. Louis under due appointment. The theory of his petition is that, by virtue of his appointment under the charter and ordinances. of said city, lie was an officer for a term of four years from date of appointment, November 4, 1899', at an annual salary of $1,200. That on the 9th day of June, 1903 (without cause and unlawfully), he was dismissed cr discharged, in the sense that he was denied his right to perform his official duties and refused his salary for the remainder of his term.

At the close of the evidence, the trial court gave defendant a peremptory instruction. Thereupon plaintiff took a nonsuit with leave. His timely motion to set it aside was denied. Thereupon, he brings the case here because the Supreme Court has jurisdiction “in cases where a county or other political subdivision of the State is a party,” etc. (sec. 12, art. 6, Const.), it having been uniformly held that, in a constitutional sense, a city within a county is not a “political subdivision of the State, ’ ’ but that the city of St. Louis, by virtue of sections 20, 22 and 23 of article 9 of the Constitution, was such political subdivision. [Kansas City v. Neal, 322 Mo. 232.]

The pleadings may be passed, with the general remark that they were broad enough in averment to admit evidence on all points raised here. The tendency of the material oral testimony, and those provisions of the charter and ordinances of the city of St. Louis vital to the controversy, will sufficiently appear in connection with the determination of questions made by counsel pro and eon.

I. Was plaintiff an officer? It is insisted he was an officer of the City of St. Louis, subject only to removal for cause during his term; contra, by defendant, that plaintiff was a mere employee subject to removal at pleasure. The question lies at the door, and is of the very essence, of the controversy. Oral testimony and official records and documents were put in evidence on the point, but the following admissions of the answer will take the place of some of it, viz.:

“Defendant . . . . admits that the plaintiff was appointed a deputy inspector of boilers and elevators on or about tbe first day of November, 1899', by William J. Castanie, wbo was then Inspector of Boilers and Elevators in and for tbe defendant city, by and with tbe consent of tbe Mayor of tbe said city, and that on or about tbe 4th day of November, 1899, tbe plaintiff qualified by giving a bond in tbe penal sum of five thousand dollars, and that he entered upon the performance of his duties as such deputy inspector and continued to perform tbe same up to and including tbe 12th day of June, 1903.”

Plaintiff’s written appointment was silent on bis term. It was directed to the Mayor and in general terms appointed him deputy elevator inspector and bears tbe Mayor’s approval. In tbe “official oath book” of defendant city appears plaintiff’s oath, narrating that be was appointed “to tbe office of elevator inspector of tbe city of St. Louis” and that be possessed ‘ ‘ all of tbe qualifications prescribed for said office” and would support tbe Constitution of tbe United States, of Missouri, tbe charter and ordinances of tbe city and would faithfully demean himself “in said office.” It was shown that bis bond was approved by tbe Mayor and tbe city council, and certified by tbe city counselor to be in due form. Tbe following clause of it is pertinent to tbe question now up: “Now, if tbe said James Gr. Gracey shall faithfully, skillfully and impartially perform all the duties of his said office and shall fully account for and pay into tbe city treasury all moneys received by him as said deputy inspector of boilers and elevators, then this obligation to be void; otherwise to remain in force.”

Plaintiff put in and relies on tbe following charter and ordinance provi sions:

Section 43, article 4, charter of St. Louis:

“Sec. 43. Oath of City Officers — Bond of Same.— Every officer of the city and his assistants, before entering upon the duties of his office, shall take and subscribe to an oath or affirmation before some judge or justice of the peace or the register, that he possesses all the qualifications prescribed for his office by the charter; that he will support the Constitution of the United States and of the State of Missouri, and the charter and ordinances of the city of St. Louis, and that he will faithfully demean himself in office; and every officer of the corporation when so required by law or ordinance, shall, within fifteen days after his election or appointment, and before entering upon the discharge of the duties of his office, give bond to the city in such sum as shall be designated by ordinance, conditioned for the faithful performance of his duties, and that he will pay over all moneys that belong to the city as provided by law. If any person elected or appointed to an office shall fail to take and subscribe such oath . or affirmation, or give bond as herein required, his office shall be deemed vacant. For any breach of the condition of said bond, suit may be instituted thereon by the city or by any person in the.name of the city of St. Louis, for the use of such person or persons.
“Officers Defined. — The ..term ‘officers,’ whenever used in this charter, shall include all persons holding any situation under the city government or its departments, with an annual salary or for a definite term of office; and the term ‘fiscal officers,’ whenever used, shall include all persons engaged in any relation in the collection and disbursement of the city’s money.”

Section 45, article 4, charter of St. Louis:

“See. 45. Poiuer of Assembly to Create Offices.— The assembly shall have power, by ordinance passed by a vote of two-thirds of the members elect of each house, to create any other office which it may deem necessary, and to. provide for the manner of filling the same.”

Section 5, article 4, charter of St. Louis:

“Sec. 5. Suspension or Removal of Officers.— Any elected officer may he suspended by tbe Mayor and removed by tbe council for cause, and any appointed officer may be removed by tbe Mayor or council for cause. In either case the Mayor shall temporarily fill tbe vacancy, except as hereinafter provided.”

Section 2196, McQuillin’s Municipal Code of St. Louis:

“Sec. 2196. Inspector of Boilers and Elevators— Appointment and Qualifications. — The Mayor shall appoint, by and with tbe consent of tbe council, an inspector of boilers and elevators, who shall be a practical mechanical engineer, and competent to test and inspect steam boilers and elevators and all steam-generating apparatus under pressure. [Ord. 18375, amendment — w.] ”

Section 2197 of same:

“Sec. 2197. Five Deputy Inspectors to be Appointed — Qualifications.—Said inspector of boilers and elevators is authorized to employ, by and with tbe consent of tbe Mayor, five deputy inspectors, who shall possess tbe same qualifications as tbe inspector of boilers and elevators and perform tbe same duties. [Ib.] ”

Section 2199 of same:

“Tenure of Office. — Tbe Inspector of Boilers and Elevators and bis deputies and clerk shall bold their office for tbe term of four years, and until their successors are duly appointed and qualified.”

Section 2214 of same:

“Deputy Inspectors to Devote Entire Time — Salaries. — The deputy inspectors shall devote their entire time to tbe duties of their office, and be paid for their services tbe sum of twelve hundred dollars each per annum. ’

Defendant read into tbe record many ordinance provisions. "We consider the following somewhat bear upon the point in hand:

“Sec. 2212. Bonds of Deputy Inspectors. — The deputy inspectors appointed under this chapter shall give a bond in the penal sum of five thousand dollars with the same conditions as required of the inspector of boilers and elevators, and subject to the approval of the Mayor and council.”
“Sec. 2229: Inspection of Elevators — All Elevators to be Regularly Inspected. — It shall be the duty of the inspector of boilers and elevators to regularly inspect all elevators used for the purpose of carrying either passengers or freight; to see that the same are in perfect working order, and that all the parts are in good- condition and repair. And for this purpose he shall have the right to enter the premises where any such elevator may be in use. The result of such inspection shall be properly recorded in books kept for that purpose in the office of the inspector of boilers and elevators, from which place all notices, certificates, etc., shall be issued.”
“See. 2230. Elevators — Duties of Own&fi. — It shall be the duty of every person operating or using any passenger or freight elevator in any building within the limits of the city to cause the same to be inspected and examined by the inspector of boilers - and elevators at least once in three months (-excepting elevators operated exclusively by hand, which shall be inspected at least once every six months), and every such person shall apply to and procure from the inspector of boilers and elevators, within five days after such inspection, a certificate to the effect that said elevator is in a safe and sound condition, and said certificate shall be kept in public view by having the same posted as near as possible to the entrance of the elevator car. ’ ’
“Sec. 2233. Elevators not to be Operated Without Certificate. — It shall he -unlawful to run or operate any elevator within the city without first having obtained a certificate from the inspector of boilers and elevators as prescribed in the preceding section, and any user of an elevator who fails or refuses to obtain said certificate shall be deemed guilty of a misdemeanor, and upon conviction thereof, be fined not less than ten dollars nor more than one hundred dollars, and for each day such violation shall continue, after notice has been given by the inspector of boilers and elevators, or during which the person or persons so notified shall neglect or refuse to comply with the provisions of this chapter, there shall be an additional fine of fifty dollars.”
“Sec. 2234. Defects — How Remedied. — Should any defects be found to exist in any part or parts of any passenger elevator which would tend to impair the safety, or endanger life by continued use of such elevator, the inspector of boilers and elevators shall cause a written notice to be served upon the users of said elevator, which notice may contain a statement of repairs necessary to be made, and said elevator shall not again be used until a certificate in writing shall be issued by the inspector of boilers and elevators that it has been put in a safe running order and is fit for use.”
•“Sec. 2235. Notice of Changes to be Given. — The inspector of boilers and elevators shall be notified of any changes to be made by owners or users of elevators.”
“Sec. 2238. Penalty. — Any violation of the provisions of this article, for which a penalty is not provided, shall be deemed a misdemeanor, and the person, persons, copartnership or corporation guilty thereof shall, on conviction thereof, be fined in a sum not less than ten nor more than-one-hundred dollars, before the court or courts having competent jurisdiction.”

Justly interpreted, the foregoing municipal laws tell a story that even one who runs may read. It is obvious, first, that they were directed to tempering a little the pressure and hunger for the spoils of office — a hunger which, unregulated, tends to impair the public service of a great city. These laws hold out modest inducements of some degree of stability in public employment. They tend to the betterment of the civil service in quality of men and work. They respond to the idea of a reasonable regulation of tenure of office— an idea so well hammered out on the anvil of public discussion that it has come to stay so long as calm and wise judgment holds sway, and which is not beyond the pale of judicial aid. It is obvious, second, that these laws are based on the exercise of the police power. The inspectors of boilers and elevators, provided for, perform public functions under that power coming close home to the welfare and safety of the people in their daily avocations. They have a fixed tenure of office, viz., a term of four years. They are required to give bond to faithfully demean themselves in performing their services, which are to be done under the guiding and chastening sanction of an official oath. Their salaries are fixed at the annual stipend of $1,200, and their qualifications are prescribed by law. Not only so, but thereby their public position is expressly denominated and dignified as an office, and their duties as official duties. Not only so, but they come well within the charter definition of officers, to-wit, those holding situations under the city government or its departments “with an annual salary or for a fixed definite term of office.” So, too, the forms of official oath and bond prescribed by the city refer to their position as offices.

In such condition of things, courts have no judicial call to indulge in refined speculations on the mooted question of what is, or is not, a public office; for the very-good reason that, in this instance, the status of plaintiff is fixed by defendant’s own definitions and ordinance provisions. As danger lurks in mere generalizations,' one sensible method of determining what is an office is to go to the written law creating the position and determining its duties (in this instance defendant’s ordinances) and discern the legislative intent evidenced by its words. That was the plan adopted in State ex rel. v. Harter, 188 Mo. l. c. 526, et seq., and in State ex rel. v. May, 106 Mo. 488.

If, however, the question be referred to- the more general definition of public office, the result would be the same. For instance, McFarlane, J., in State ex rel. v. Bus, 135 Mo. l. c. 332, declares the sum of the matter to be “that if an officer receives his authority from the law and discharges some of the functions of government he will be a public officer.” An office has been defined as “a special trust or charge created by competent authority” — more tersely still, “ a public office is a public trust.” His oath, his bond, his liability to-be called to account as a public offender for misfeasance or non-feasance, the tenure of his position, •etc., have been said to be indicia of a public officer. [State ex rel. v. May, supra; Throop v. Langdon, 40 Mich. 682.] And the general doctrine is that the idea e-f office clearly embraces the ideas of tenure, duration, fees or emoluments, rights and powers as well as that of duty. [6 Words and Phrases, p. 4923.] It has been aptly said that the true test of public office is ‘‘that it is a parcel of the administration of government.” [2 Bouv. L. Diet., Tit. ‘ ‘ Officer. ”]

It appears, then, that whether our conclusion be drawn from a view of general principles of law, or (more narrowly) be based on a close analysis of the ordinances of defendant city, we must hold plaintiff was an officer of the city of St. Louis. And this although the word “employ” is used in section 2197. The word is of wide meaning and taken with its context conveys this idea of selecting and intrusting with a duty.

Accordingly, the point is ruled against defendant.

II. Being such officer, we are far within the law in saying that he could not be removed during his term and stripped of his official emoluments except for cause and on due process of law, i. e., on due charges made and due hearing had on due notice given. [State ex rel. v. St. Louis, 90 Mo. 19; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Maroney, 191 Mo. 581.]

In Williams v. Bagot, 3 B. & C. l. c. 786, Baxley, J., said: “It is contrary to common justice that a party should be concluded unheard. ’ ’ In Queen v. Archbishop, 1 El. & El. 545, Lord Campbell said: “It is one of the first principles of justice that no man should be condemned without being heard.” In Meade v. Deputy Marshall, 1 Brock. 324, Mr. Chief Justice Marshall said: .“It is a principle of natural justice, which courts are never at liberty to dispense with, unless under the mandate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard.” See, also, Womach v. St. Joseph, 201 Mo. l. c. 482.

In this case the very theory of defendant’s answer is, and all the facts show, that plaintiff’s official term was construed by defendant to be one at pleasure, and he was wrongfully treated accordingly. Hence, we hold that in the eye of the law (since the city may not profit by its own wrong) plaintiff remained in office and was entitled as of right to his official salary until the end of his term, unless he lost that right on grounds now to be examined.

HI. Are there any such valid grounds'?

Under this head counsel contend, as we grasp it, that:

(a) Plaintiff abandoned his office; in effect, resigned by acquiescing in bis removal, taking no steps to oust bis successor, try title, etc.

(b) Next, that because of tbe terms of Ms bond (hereinafter pointed out) his term ended on the 7th day of April, 1903, or as soon thereafter as his successor was appointed and qualified — in tMs instance, on the 12th day of June, 1903. Wherefore, it is argued, plaintiff is estopped.

(c) Next, that by receipting for his pay to June 12th, 1903, he must be held to have made final settlement with the city.

(d) And, next, that plaintiff after removal and during the remainder of his term, took employment incompatible with his- duties as deputy boiler and elevator inspector, hence cannot recover.

Of these, in order.

(1) The testimony shows that plaintiff did not bring mandamus or sue his successor for his salary nor bring quo ivarranto to test the right of his successor to office. Some stress is laid on those omissions, but they are quite beside the case. The question is: Is he entitled to the remedy sought?

There is no testimony worth the name that he, in effect, resigned his office by abandoning it or by acquiescing in the action of the city. Defendant put in evidence tending to show the action taken had been decided upon without notice to or consultation with plaintiff. The first he heard of it was the bare official ipse dixit that it had been determined upon and his services were no longer required. This evidence affords no ground for the inference that such action would not have been taken except it was satisfactory to him. That he mildly bowed his head like a lamb to the official ax, and did not create a scene by blowing a trumpet of futile defiance, amounts to nothing in law, or ethics. His own testimony shows that he raised the question of his right in a manly, if deferential, way. He asked Ms chief this: “Are you aware I have got five months and a half to go yet?” His chief replied: “Mr. Gracey, I have looked into that and I find that when the head of a department goes, the deputies go with him. ’ ’ To that plaintiff replied: “You take a different view of it than I do.” This was not a protest as “deep as a well nor so wide as a church door, ’ ’ hut, like Mercutio’s wound, “ ’tis enough, ’twill serve” — if protest were demanded at all — and on that score, to my mind, it ill becomes a great city to seek to excuse, palliate or justify its own wrongful action by hiding behind the mere meek silence of its victim. There may he cases where the end of an official term is the result of negotiation and acquiescing; and cases where, standing on an equality, or where inquiry is made and response is demanded, the silence of one shows consent in what the other does; and cases of out and out abandonment amounting in effect to resignation; hut the law of those cases does not concern us in this case.

Here plaintiff was not “removed,” as that term is understood in the law. What was done was not legally done and therefore had no legal effect. Another was assigned his duties and that other was paid by the city. That was the city’s affair, if it chose to take such course with its attending consequences. Plaintiff remained in office, and the point is controlled by the general proposition of law that his right to the salary during his term, until legally removed, was independent of his actual performance of any duties whatever.

In State ex rel. v. Walbridge, 153 Mo. l. c. 203, Brace, P. J., said: “The legal right to the office carried with it the right to the salary. The board by its wrongful act could not deprive him of this legal right. The right of a public officer to the salary of his office is a right created by law, is incident to the office, and not the creature of contract, nor dependent upon the fact or value of sendees actually rendered.” [Citing an array of authorities to sustain the proposition.]

That an individual, in the shoes of plaintiff, may sue for his salary is the general doctrine. [Dill. Mun. Corp. (3 Ed.), sec. 235; Stadler v. Detroit, 13 Mich. 346.]

The point is ruled against defendant.

(2) But, it is argued that plaintiff’s bond shows that his official term ended on April 7th, 1903, or as soon thereafter as his successor was appointed. The record shows the bond so recited. To accentuate this view, we are pointed to the written appointment of plaintiff which ommitted defining the official term, but used general language. It is contended that such facts create an estoppel and bar recovery. Is there substance in that view? We think not; because:

In Stadler v. Detroit, supra, a provision of the charter of that city made the term of office of the marshal two years. Plaintiff was appointed marshal by an order of the council limiting his term to one year and his bond recited his appointment for that term. At the expiration of the year, without his consent, he was removed and another was appointed to the office who entered upon and performed his duties. In an action brought to recover his salary for the‘second year, it was held that by virtue of his appointment he was entitled to hold office for two years and to receive the salary for the full term; that the recital in the bond was surplusage; and that the appointment of another to the office was not equivalent to plaintiff’s removal and did not divest him of the office.

In the course of his opinion, Cooley, J., said: “The term of the office being for two years, the council had no power to limit it to one, by their resolution of appointment; and we have no' doubt the appointment of the plaintiff was a valid one for the full statutory period. The fact that the term was stated in his official bond at one year, can make no difference; such a recital was surplusage, and the bond, so- far as appears from the record, was valid for the whole time. ’

To the same effect is Shaw v. City of Macon, 21 Ga. 280.

This court has lately been over that ground instate ex inf. v. Corcoran, 206 Mo. 1. In that case, Col. Prather had been appointed jury commissioner under a statute fixing his official term at “four years from and after the first day of May in the yea’r of his appointment. ’ ’ He died during his incumbency of the office and Mr. Corcoran, on January 5th, 1904, was appointed by the circuit judges of St. -Louis by a written-' appointment limiting his term as follows: “To hold' and to exercise the duties of said office for the remainder of the term of the said John G. Prather, deceased,, late jury commissioner, which said term was for a period of four years from and after the first day of May, 1903.” That ease was In Banc and we all agreed that-the limitation in the appointment was not effective; that the statute controlled and must be read into the-appointment.

The reason of the thing lies with that view. Otherwise, the law may be pared down or added to- at will.. Otherwise, official tenures, wisely prescribed by law, become a mere matter of dicker and compact, and all the mischiefs struck down by the law enter again-through such open door. Nor do- we perceive any estoppel in the case.

The point is ruled against defendant.

(3) Neither is there substance in defendant’s-, contentions relating to a final settlement on June 12th,. 1903, and to plaintiff’s accepting employment incompatible with his duties as deputy boiler and elevator-inspector. When plaintiff was paid up to June 12th,. 1903, he received no more than his own. No man is put in jeopardy by that. Observe, there was no compromise sought or attempted, no dispute threshed out: and settled, no final settlement in any fair sense, and no consideration for a release. His name was on the pay roll for June for a certain amount, covering twelve days of service. He would be in hard lines if he might take that amount (it being confessedly dffe) without thereby impliedly giving final acquittance, either for the rest of June or the months following. There are cases where by accepting one thing plaintiff waives other things. A case of that kind is State ex rel. v. Messerly, 198 Mo. 351, where K, a justice of the peace, was entitled to fees under the general law or entitled to a salary in lieu of fees under an act of the Legislature (held unconstitutional). He received the salary and afterwards sued for the fees. This, it was held, he might not do.

It has been held that one" may not hold two' offices whose duties are incompatible. Defendant finds solace in that proposition and learned counsel argue that this plaintiff, in his search for employment during the balance of his term, took a temporary position as a hoisting engineer; that such position was incompatible with his duties as deputy boiler and elevator inspector; and, therefore, he cannot recover. There is no merit whatever in that notion. Plaintiff did not hold two incompatible offices. There is not an iota of testimony tending to show that if defendant city had allowed him to perform his services as a deputy, inspector of boilers and elevators, he could not have taken up his work instantly, with an eye single to the service of his master. Plaintiff did not have to idle, or starve, in order to preserve his right of action.

Other questions are discussed, but we do not deem them material. This case is submitted with three companion eases. Stipulations are filed in those cases which contemplate (1) that this court should reverse and remand with directions to enter up judgment for plaintiff, or (2) reverse and remand for a new trial, or (3) affirm — as may be done' in tbe case at bar.

If sncb stipulation bad been filed in tbe case at bar, we would reverse and remand witb° directions to •enter judgment for plaintiff — tbis because tbe trial ■court erred in not setting aside tbe nonsuit and erred in giving tbe peremptory instruction; and on tbis record we think plaintiff would have been entitled to a peremptory instruction himself. But as tbe stipulation is not filed in tbe case at bar and as tbe case was pending before a jury at tbe time of tbe nonsuit, we are of tbe mind that it would be better practice to reverse and remand with directions to set aside tbe nonsuit and proceed with the cause in accordance with tbis opinion. It is so ordered.

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