author: RAILET, C. PER CURIAM:

text:
    IN RE ESTATE OF C. F. BOWARD: O. F. LIBBY, Administrator, v. H. W. BOWARD, Appellant.
    Division Two,
    May 26, 1921.
    1. HOMESTEAD: Eights of Widow, Heirs and Creditors: What Law • Governs. When the owner of a homestead dies, leaving a widow and minor children and creditors, the rights of all these parties must be determined by the law in force at the time of the death.
    2. -: -: -: Sales By Probate Court: Law of 1895. Under the homestead law of 1895 (Laws 1895, page 186, Section 3620, R. S. 1899), the probate court had no legal right to order the sale of the homestead property, subject to the homestead rights of the widow and minor children, for the payment of debts of the dece'ased contracted after the acquisition of such homestead, unless legally charged thereon in the life-time of the deceased; and ■ its order authorizing such -sale was coram non judice.'
    Appeal from Linn Circuit Court. — Hon. Fred Lamb, Judge.
    Reversed.

      Bailey & Hart for .appellant.

      (1) The death of Charles F. Boward occurred in 1900 and the petition for sale was not filed until 1918, hence the matter was so stale that the court should not have considered the petition for sale. Gunby v. Brown, 86 Mo. 253. (2) The agreed statement of facts shows that Charles F. Boward died in the year 1900; hence Section 3620, R. S. 1899 (being the homestead law enacted in 1895) would control and fix the rights of the parties in this action, and the appellant contends that under this section the real estate in question passed on the death of the widow of Charles F. Boward to the heir of Charles F. Boward and did not become subject to sale for the payment of the debts of Charles F. Boward. Armor v. Lewis, 252 Mo. 578; Keene v. Wyatt, 160 Mo. 1. (3) The homestead law is a complete code in itself and it is not necessary to refer to the statutes of descent for a settlement of the question of the disposition of a homestead. Armor v. Lewis, 252 Mo. 578. (a) This court has uniformly ruled that under the Act of 1895 the homestead cannot be sold subject to the rights of the widow and minor children. Brayless v. Cox, 153 Mo. 242; In re Estate Powell, 157 Mo. 151; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568. (b) The courts of other States having similar statutes hold that the homestead passes to the heir freed of the debts of the ancestor. In re Coulson, 95 Iowa, 696, 64 N. W. 755; Stewart v. Black, 45 S. C. 61, 22 S. E. 774; Scott v. Cunningham, 60 Texas, 566 ; Miller v. Finnegan, 6 L. R. A. 613. \ /'LSé

      C. G. Bigger and O. F. Libby for respondent.
    (1) Upon the death of Charles F. Boward in the year 1900, his homestead in the property which he then owned, was, by the homestead statute then in force, extended in his widow and minor son during the minority of the son and the life or widowhood of the widow, and upon the termination of the homestead interest, by the minor arriving at his majority and the death of the widow, the homestead property passed to the heirs of the said Charles F. Boward, by descent, subject to the payment of demands proven and allowed against his estate in the course of the administration thereof. The widow died in the year 1918, and the son had arrived at his majority a number of years prior to her death. Therefore, upon the death of the widow, the homestead was terminated and the real estate became assets for the payment of demands proven and allowed against the estate of said Charles F. Boward, and the order of sale made by the Probate Court, after the death of the widow, was fully warranted by the homestead statute of 1895, which governs in this case. Sec. 3620, R. S. 1899; Laws 1895, p. 185; Poland v. Vesper, 67 Mo. 727; Broyles v. dox, 153 Mo. 242; Keen v. Wyatt, 160 Mo. 1; Balance /. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568. (2) Since, under the homestead statute of 1895, Sec. 3620, R. S. 1899, an application for an order to sell, and the sale of the homestead property to pay debts of the deceased, was postponed until after the death of the widow and the homestead interest thereby terminated, the Tagel demand and the order of the Probate Court for the sale of the real estate to pay the same was not stale, and administrator was not guilty of laches in awaiting the termination of the homestead interest before making application for said order of sale, as he acted as soon as the statute permitted. Authorities, supra; Barlow v. Clark, 67 Mo. App. 340.
   RAILET, C.

Both counsel for appellant and respondent have filed clear and intelligent statements in this court, and there appears to be no disagreement between them as to the facts. We accordingly adopt respondent’s statement, which reads as follows:

‘ ‘ Charles F. Boward died, intestate, in Linn County, Missouri, on August 8,1900, leaving surviving him, Sophrona E. Boward, his widow, and one minor son, H. W. Boward, the appellant herein, and seized and possessed of a house and lot in the City of Brookfield, in said Linn County, which premises then as well as now, was of about the value of $1000. The title to said premises was acquired and the deed thereto recorded some time prior to the death of said Boward. From the time said premises were acquired and up to the time of the death of said Boward, he, with his wife and minor son, occupied the same as a homestead, and after his death the same passed to and was occupied as a homestead by the widow and minor son until the son attained his legal majority, and thereafter by the widow until her death which occurred in August, 1918. After the homestead was acquired and the deed thereto recorded, the said Charles F. Boward became indebted to one Con Yagel, which indebtedness was still outstanding and unpaid at the time of the death of said Boward in the year 1900.

“After the death of said Boward, the respondent herein, O. F. Libby, was by the Probate Court of Linn County, Missouri, appointed administrator of the estate of the deceased, duly qualified and since which time has been, and is now so acting. The administrator upon assuming the duties of his office ascertained that the deceased left no personal estate except his household goods and furniture, which were claimed hv the widow and were turned over to her as her absolute properly. It was also ascertained by the administrator that the said Boward owned no real estate at the time of his death except the house and lot which was then his homestead.

“The debt due from the deceased to the said Con Yagel, was duly presented to and allowed by the Probate Court as a demand against the estate of said deceased and assigned to the fifth class of demands. There were no other debts or demands allowed against said estate. The administrator believed that under the homestead law then in force (Laws of 1895, page 185, Sec. 3620, R. S. 1899), the sale of said property to pay said allowed, demand would have to be postponed until the termination of the homestead therein, by the minor reaching his majority and the death of the widow.

“The widow died at Linn County, Missouri, in August, 1918, and the son, who is the appellant herein, having become twenty-one years of age some years prior to the death of his mother, the homestead interest'in said premises was thereby terminated, and soon thereafter the administrator filed his petition in the Probate Court for an order of sale of said real estate for the purpose of paying the demand of Yagel. The petition for the sale was duly sustained and the sale ordered by the Probate Court. From this ordei", the said H. W. Boward, appealed to the Circuit Court of Linn County, Missouri, and upon a hearing of the matter in that court, the order of sale made by the Probate Court was in all things sustained, and the appellant brings the case to this court by appeal. It is conceded by the appellant that the proceedings in the Probate Court for the sale were in all respects regular and are not called in question.”

Letters of administration were granted to Mr. Libby by the Probate Court of Linn County, Missouri, on September 13, 1905.

The demand of Con Yagel was allowed in the Probate Court on December 13, 1905, for $428.55.

A petition for the sale of the property in controversy was filed in the Probate Court of Linn County, Missouri, at the November Adjourned Term, 1918. The order of sale was made by the Probate Court on February 24, 1919.

Appellant alleges in his statement, that no question arises as to the regularity of the proceedings, and all the facts are admitted in the record, so that there are presented on this appeal but two questions: First; was the claim so stale as to preclude the order of sale? Second; did the property which was the homestead of Charles F. Boward in his lifetime, upon the death of his widow, become subject to the payment of his debts or immediately pass to his son, Henry F. Boward?

Judgment was entered in behalf of respondent, on June 25, 1919. Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

I. It is conceded, that Charles P. Boward, the owner of the land in controversy, died on August 8, 1900; at the time the Con Yagel debt in question was contracted, well as prior thereto, said Charles P. Boward, with his wife and this defendant, who was then a minor, held and occupied the land aforesaid, worth about $1000, as their homestead; that the Yagel debt was not secured by a lien of any kind on said land.

It is contended by both parties to this litigation, that the rights of all the parties in interest, must be determined by the law which was in force on August 8, 1900, when Charles F. Boward died. This contention is sound and supported by our former rulings, some of which are as follows: Brown v. Brown’s Admr., 68 Mo. l. c. 390; Register v. Hensley, 70 Mo. l. c. 194; Davidson v. Davis, 86 Mo. 440; Burgess v. Bowles, 99 Mo. 543; Quinn v. Kinyon, 100 Mo. l. c. 553; Linville v. Hartly, 130 Mo. 252; Keene v. Wyatt, 160 Mo. l. c. 9; Brewington v. Brewington, 211 Mo. 48; Bushnell v. Loomis, 234 Mo. l. c. 384-5; Balance v. Gordon, 247 Mo. l. c. 131; Wright v. Hetherlin, 277 Mo. l. c. 112, 209 S. W. 871; Regan v. Ensley, 222 S. W. l. c. 774.

In Balance v. Gordon, 247 Mo. l. c. 131, Judge Lamm, in clear and explicit language, declared the law of this State, in respect to above matter, as follows:

“Under the doctrine of the Bushnell-Loomis case, we hold that the rights of creditors, as well as those of the widow and minor children, must be measured by the law in existence at the death of the householder.”

Pursuing this subject further, we will endeavor to point out in the succeeding proposition, the law as it existed in this State on August 8, 1900, when Charles P. Boward died.

II. In 1895, the General Assembly passed an Act (Session Acts, 1895, p. 186), a part of which, was carried into the Revision of 1899, as Section 3620, and which reads as follows:

“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the paj^ment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitld thereto.”

The section above quoted, was in full force and effect on the 8th day of August, 1900, when Charles P. Boward departed this life. The rights of the parties to this litigation must, therefore, be determined under the Act of 1895 supra. In construing the latter Act, it is well to take an inventory of the homestead as it existed immediately prior to the laAV of 1895.

In 1875 the Legislature passed a law (Session Acts, 1875, pages 60-1), which authorised the probate court to sell the homestead property, for the payment of debts contracted after the acquisition of same, subject to the homestead rights of the ividow and minor children. On the death of the widow, and at the majority of the youngest child, the purchaser under the probate sale, would take the fee simple title to said property. The foregoing construction of the Act of 1875 is sustained by tbe following authorities: Wilson v. Wilson, 255 Mo. l. c. 535; Balance v. Gordon, 247 Mo. l. c. 128; Robbins v. Boulware, 190 Mo. 33; Keene v. Wyatt, 160 Mo. 1; Anthony v. Rice, 110 Mo. 223; Poland v. Vesper, 67 Mo. 727.

As the homestead property is exempt from execution and attachment, for debts acquired subsequently to the acquisition of the homestead, it is manifest, that the Legislature, in the enactment of Section 3620, R. S. 1899, intended to cut off the right to sell the homestead property for the payment of debts subsequently contracted, even if the youngest child has reached his majority and the widow is dead. In other words, we have held in legal effect, that when Charles Boward died on August 8, 1900, the title to the homestead real estate at that time, became vested in his heir or heirs, subject to the homestead rights of the widow and minor children, free from the payment of debts contracted after the homestead was acquired. This conclusion is clearly sustained by the following authorities: Broyles v. Cox, 153 Mo. 242; In re Powell’s Estate, 157 Mo. l. c. 156; Keene v. Wyatt, 160 Mo. 1; Balance v. Gordon, 247 Mo. l. c. 127; Armor v. Lewis, 252 Mo. l. c. 574, 578; Ehlers v. Potter, 219 S. W. l. c; 916.

Upon a careful review and consideration of this subject, we are well satisfied with the conclusion reached in the foregoing cases, and hold, that- under the Act of 1895, as it stood on the 8th day of August, 1900, the Probate Court of Linn County, Missouri, had no legal right to order a sale of the property in controversy for the payment of the Yagel demand.

The petition of this court, in respect to above matter, is strongly supported by the subsequent legislative construction placed upon Section 3620, R. S. 1899, by the General Assembly, in 1907, when it passed an amendatory Act (Laws 1907, p. 301), which authorized the probate court, under the circumstances of this ease, to order the sale of the homestead property subject to the rights of the ividow, provided the heirs of the husbaAid were persons other than his children, etc. It is manifest, that the Legislature, recognizing the law as declared by this court, which precluded a sale of the homestead property absolutely under the Act of 1895, concluded to modify the same, by allowing said property to be subjected to the payment of creditors’ demands, where the heirs of the husband were not his children.

Upon a reconsideration of this entire subject, the author of this opinion, is noiv satisfied that the observations indulged by him in the way of criticism, of Armor v. Lewis, 252 Mo. 568, and Balance v. Gordon, 247 Mo. 119, in Fields v. Jacobi, 181 S. W. l. c. 68, are not well grounded, and should be withdrawn, as we are now in full accord with the views expressed in said opinions.

ÍII. In view of the conclusion heretofore reached, it is not necessary to consider the alleged staleness of the Yagel demand. According to our conception of the law, the respective judgments of the Probate Court and circuit court, authorizing the sale of the property in controversy for the payment of above demand, are coram non judice. We accordingly reverse the case without remanding same.

White and Mosley, CCi, concur.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby adopted-as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. HENRY STREUTKER, Surety, Appellant.
    Division Two,
    May 26, 1921.
    1. SCIRE FACIAS: Forfeited. Recognizance in Felony Case: Civil Proceedings: Jurisdiction of Appeal. A proceeding by scire facias against a surety on a forfeited bail bond for the appearance of the defendant in a prosecution for felony is a civil proceeding auxiliary to the prosecution of the defendant for the felony, and therefore, the Supreme Court has jurisdiction of an appeal from a judgment against the surety, even though it be in an amount less than the limit of the court’s jurisdiction in an ordinary civil case.
    2. ---: -: -: -: Compliance with Rules. Section 4106, Revised Statutes 1919, requiring the appellate court, on an appeal in a criminal case, to consider errors whether assigned or not, does not apply to an appeal by a surety from a judgment rendered against him in a proceeding by scire facias on a forfeited bail bond given for the appearance of a defendant in a prosecution for felony, because such section applies only to appeals authorized by Article 15, Chapter 25, Revised Statutes 1919; nor is such judgment “on any indictment or information” within the meaning of Section 4086 of said article; nor is such appeal by such surety an appeal by the defendant in an indictment or information. Hence on his appeal such surety must comply with the rules of the appellate court in order to secure a review of the proceedings against him, and failing so to do, his appeal will be dismissed.
    Appeal from St. Louis Circuit Court. — Hon. Vital W. Garesche, Judge.
    Appeal dismissed.

      Jesse W. Barrett, Attorney-General, and J. Henry Garuthers, Special Assistant Attorney-General, for respondent.
    Appellant lias filed no brief herein. Scire facias is the proper remedy to enforce recognizance after forfeiture. 6 C. J. 1057-58; State v. Caldwell, 124 Mo. 509; State y. Hoeffner, 124 Mo. 488.
   WHITE, C.

This is a proceeding by scire facias upon the alleged forfeiture of a recognizance wherein Emmett J. Carroll, charged with the crime of forgery, was principal, and Henry Streutker, appellant was his surety.

The transcript of the record which was sent here shows that the cause against Carroll was pending in the Circuit Court of St. Louis, June 20, 1919, was assigned to Division No. 10 of that court, and on October 14,1919, was continued to the next term of court. The record recites that on October 17, 1919, the defendant failed to appear; a forfeiture was declared and scire facias ordered. The scire facias was issued on tbe tenth day of November, 1919. December second, 1919, the defendant’s surety, Henry Streutker, appeared and filed his answer. January 23, 1920, the proceeding was continued until the next term of the court. The record then shows that on March 12, 1919, (evidently a clerical error for March 12, 1920) Henry Streutker, not having sufficient reason shown why the State of Missouri should not recover it's debt and costs according to the terms of the bond, it was ordered that judgment be entered against him for the sum of $1500. The record recites that Streutker filed his motion for new trial March 16, 1920; it was overruled March 22nd; March 29th, Streutker filed his affidavit for appeal, and the appeal was allowed to this court. There being no bill of exceptions the motion for new trial does not appear in the record. The answer of defendant Streutker is not copied in the transcript of the record.

I. The appellant has filed in this court no assignment of errors, no brief, and -made no appearance. If this case is to be treated as an appeal from a judgment on an indictment or information it would be the duty of this court to consider.all that appears in the record and to determine whether any error has been committed, in obedience to Section 4106, R. S. 1919, regardless of that failure of the appellant. Otherwise it should be treated as a civil case and the appeal should be dismissed for failure.

The reason why this court has assumed jurisdiction of proceedings by scire facias to forfeit bail bonds and recognizances where the amount is less than seven thousand five hundred dollars, is stated in the case of State v. Hoeffner, 137 Mo. 612, l. c. 614-615, where the court said :

“If the charge was a felony then the proceedings in that case would be a continuation of the prosecution for felony, and this court would have jurisdiction to make effective, that charge, on the familiar principle of law that where jurisdiction of the main question attaches, every incident necessary to make that jurisdiction effectual follows as a matter of law. ’ ’

In the case of State v. Epstein, 186 Mo. 89, Judge Gantt expressed it in this way, l. c. 98:

“As an appeal upon the main charge of felony must be heard in this court, so also must the auxiliary proceeding thereon be heard in this court on appeal.”

The above cited cases were approved in the late ease of State v. "Wilson, 265 Mo. l. c. 10. It will be noticed that the reasons given by this court for retaining jurisdiction of such cases is because it is auxiliary to a felony of which it had jurisdiction, not because the case in itself confers jurisdiction. The court which has jurisdiction of the felony case must retain authority to enforce any judgment which is rendered in that felony case..

The judgment fixes no punishment and requires no appearance of the judgment defendant. In form it is a money judgment for which execution may issue, not against the person of the defendant but against his property. In effect and form it is a civil case.

II. But whatever view may be taken of the nature of the proceedings there can be no room to say that Section 4106, Revised Statutes 1919, requiring this court to consider errors whether assigned or not applies, because that section applies only to appeals authorized by Article 15, Chapter 25, Revised Statutes of 1919. Section 4086 of that article provides that “in all cases of final judgment rendered on any indictment or information, an appeal to the supreme court or court of appeals shall be allowed to the defendant.” This is not a judgment rendered upon any indictment or information, and the defendant in an indictment or information has not appealed. The surety on a recognizance lias appealed from a judgment against him in this collateral proceeding. He must comply with the rules of this court in order to secure a review of the proceeding. Having failed to do so, the appeal should be dismissed. It is so ordered.

Bailey and Mozley, CG., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author:
RAILEY, C. PER CURIAM: DAVID E. BLAIR, J.
      WALKER, J.

text:
    THE STATE v. GLEN EDELEN, Appellant.
    Division Two,
    May 26, 1921.
    1. RAPE: Cross-Examination of Defendant: Extrinsic Matters. Where defendant, in a prosecution for rape, had testified in chief, in regard to his association With the ^prosecutrix on several occasions preceding the time of the alleged rape and had also testified that on the night in question he had left the main road while returning from a picture show, where he had been with the prosecutrix, because it had been freshly worked and travel thereon was difficult and that he and prosecutrix stopped on the way and he had sexual intercourse with her while he was upon his knees in the front part of the automobile, but that he did not force her, it was very prejudicial to defendant’s rights and was reversible error for the trial court to permit the State to exhibit to the defendant, in the presence of the jury, the clothing worn by the prosecutrix on the night in question “and to cross-examine the defendant in relation thereto and also in relation to certain marks said to have been upon various parts of the body of the prosecutrix, none of these matters having been testified to by defendant in chief and the truth of some of them being assumed in the State’s question, although there was evidence contradicting some of these assumed facts and the defendant was standing upon the general issue. [David E. Blair, J., dissenting.]
    2. -: Striking Out Evidence: Conclusion of Witness. In a prosecution for rape, where a physician had testified in chief, at the instance of the State, that he noticed some discolorations of prosecutrix’s clothing, it was error for the trial court to refuse to strike out his answer to a question as to what under his opinion made these discolorations that he “thought she had heen mistreated,” as this was a mere conclusion of the witness and defendant was not bound to anticipate such an answer being given.
    3. -: Instructions: Comment on Evidence. In a prosecution for rape, it was error for the trial court at the instance of- the State, to instruct the jury that in determining whether or not the defendant forcibly ravished the prosecutrix they might take into consideration the physical strength, ability and power of the prosecutrix and the defendant at the time of the alleged offense, the physical condition of the prosecutrix and the condition of her clothing immediately after the time it was charged the act complained of was committed, together with all the testimony and other facts and circumstances in the case, because such instruction was a palpable comment on a portion of the evidence and was in violation of Section 4038, Revised Statutes 1919, and unduly emphasized certain facts in evidence.
    Appeal from Clark Circuit Court. — Hon. N. M. Pettingill, Judge.
    Reversed and remanded.

      J. A. Whiteside, T. L. Montgomery and Perry 8. Rader for appellant.
    (1) The information in this case was insufficient. State v. Coleman, 186< Mo. 151; State v. Minor, 193 Mo. 597, 604; State v. Atchley, 186 Mo. 197; State v. Dawson, 187 Mo. 601. (a) In its concluding clause the prosecuting attorney does not charge that the information is made “upon his oath.” (b) An indictment for murder is fatally defective unless it contains a conclusion. 22 Cyc. 243; 14 R. C. L. p. 163, sec. 12; State v. Stacy, 103 Mo. 15; State v. Ulrich, 96 Mu. App; 691; State v. Wilson, 143 Mo. 334; State v. Rector, 126 Mo. 330, 341; State v. Cline, 264 Mo. 418. (c) The constitution requires that an indictment inust have a conclusion. Art. 6, sec. 38; State v. Stacy, 103 Mo. 15. (2) The information in this case was not sworn to by the prosecuting attorney, nor - by any other person. It was therefore no. information, performed no function, was a mere “scrap of paper,” did not conform to the law and should have been quashed as requested by defendant upon his motion to. quash timely filed. Secs. 3849, 3850, 3851, R. S. 1919; State v. Brown, 181 Mo. 225; State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 433; State v. Schnettler, 181 Mo. 187; State v. White, 55 Mo. App. 359. (a) The question that the information “is not verified by the prosecuting attorney, or any one else” and that “it is not verified as the law directs” Avas raised by a motion to quash, which it set out on page.six of the printed abstract. That was the proper way to raise the question. State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 4'45; State v. Brown, 181 Mo. 229. (b) There was a separate affidavit of Golda Hoffieditz filed with the clerk of the circuit court, and the information states that it is based “upon the affidavit of one Golda Hoffieditz, herein filed. ’ ’ But that is not sufficient. The information is not sworn to, and in order to be a sufficient information it must be sworn to by some one. This court has really never passed upon this question. (3) The defendant was cross examined by counsel employed to assist the State upon matters not brought out or referred in his examination in chief all against defendant’s objection at the time. This is reversible error. R. S. 1919, sec. 4036; State v. Sharp, 233 Mo. 284; State v. Grant, 144 Mo. 56; State v. Bell, 212 Mo. Ill; Státe v. Hathom, 166 Mo. 229; State v. Hudspeth, 150 Mo. 31; State v.- Byle, 177 Mo. 659; State v. Pfeifer, 267 Mo. 23; State v. Swearengen, 269 Mo. 185. (4) The answer of Dr. Bridges that he thought from an examination of prosecutrix’s garments that “she had been mistreated” was a mere conclusion of the witness, and prejudicial error. This answer could not have been apprehended by defendant’s counsel. It was a conclusion that the witness thought the charge in the information was true. The State was endeavorng to prove that prosecutrix had been mistreated. The answer would not have been more damaging if the witness had testified: “I thought she had been forcibly ravished. It assumed to decide for the jury the very fact which the law required them alone to decide. The question did not suggest the answer, and the court erred in not striking it out. State v. Evans, 267 Mo. 164. (5) The sixth instruction given for the State is a clear comment on the evidence and the giving of it is a violation of the statute, and reversible error. R. S. 1919, sec. 4038. (a) It is but a comment upon the facts and directs the minds of the jurors to such facts, giving them prominence and invades the province of the jury, against the direct command of the statute. R. S. 1919, sec. 4038; State v. Homes, 17 Mo. 380, 382; State v. Gates, 20 Mo. 404; State v. Reed, 137 Mo. 138; State v. Grugin, 147 Mo. 55, 56; State v. Higgerson, 157 Mo. 401. (b) It assumed material facts, in issue, to be true, thus invading the province of the jury, as to the comparison of the physical strength of the prosecutrix and the defendant, the condition of the clothing-in evidence, and should have been refused for that reason. State v. Dillihunty, 18 Mo. 331, 332; State v. Marsh, 171 Mo. 523, 529; State v. Bonner, 178 Mo. 432; State v. Langley, 248 Mo. 554; State v. Mills, 272 Mo. 534; State v. Hilber, 149 Mo. 485.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
    (1) The information contains a sufficient charge of rape. State v. Goodale, 210 Mo. 282; State v. Martin, 195 S. W. 732. (2) The motion to quash was properly overruled. The information is verified as required by. law. (a) The information is supported by a sufficient affidavit, filed therewith, of a person competent to testify in the case. Sec. 3849, R. S. 1919; State v. Lawborra, 250 Mo. 304; State v. Stewart, 274 Mo. 655; State v. Schnettler, 181 Mo. 185. (b) The information shows on its face that it. is predicated upon the affidavit of such person. State v. Schnettler, 181 Mo. 185; State v. Hunter, 181 Mo. 339. (3) Appellant’s demurrer to the evidence at the close of all the evidence in the case was properly overruled. There was substantial evidence to sustain the information. State v. Wooley, 215 Mo. 687; State v. Hardelin, 169 Mo. 585; State v. Coneelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228.
   RAILEY, C.

On November 25, 1919, t'he Prosecuting Attorney of Clark County, Missouri, filed with the clerk of the circuit court, in vacation, an information, which, omitting caption, reads as follows:

“Now,comes James H. Talbott, Prosecuting Attorney, within and for the county of Clark, and State of Missouri, basing his information upon the affidavit of 011(3 ^°^a Hoffeditz, herein filed, gives the court to understand and be informed that one Glen Edelen, on about the 24th day of August, 1919, at and in the county of Clark and State of Missouri, in and upon one Golda Hoffeditz, unlawfully, .violently and feloniously, did make an assault, and her, the said Golda Hoffeditz, then and there unlawfully, forcibly, ana against- her will, feloniously did ravish and carnally know.

“Contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State.

“James H. Talbott, Prosecuting Attorney with and for the county of Clark and State of Missouri.”

The affidavit, mentioned in the information, without caption, reads as follows:

“Golda Hoffeditz, being duly sworn on her oath states that one Glen Edelen, on or about the 24th day of August, 1919, at and in the county of Clark and State of Missouri, in and upon one Golda Hoffeditz, unlawfully, violently and feloniously, did make an assault, and her, the said Golda Hoffeditz, then and there unlawfully, forcibly, and against her will, feloniously did ravish and carnally know.

“Contrary to the form of the Statutes in .such cases made and provided against the peace and dignity of the State.

“Golda Hoffeditz,

“Subscribed and sworn to before me this 17th day of November, 1939.

“James M. "Wadmore, Clerk of the Circuit Court of Clark County, Missouri.”

On December 1, 1919, defendant filed a motion to quash said information, which was overruled by the court.

On December 3, 1919, defendant was arrainged, and entered a plea of not guilty.

On December 3, 3919, appellant was placed on trial before a jury.

The State’s Evidence, in a general way, tended to show the following facts:

Prosecutrix, Golda Hoffeditz, 19 years of age, lived with her parents on a farm. Appellant, 22 years of age, lived with his mother on a farm about two miles and a half distant from the said prosecutrix. Both lived in the vicinity of the town of Eevere, Clark County, Missouri. On the night of August 23, 1919, appellant, in a Ford touring car, took prosecutrix to Farmington where they attended a picture show. They left Farmington on their trip homeward about eleven o’clock p. m., returning the same route they had gone until they reached the town of Anson at which place appellant grabbed the wheel and turned into another and different route which was hilly and not much travelled and on which route there were few, or no houses and which' led through, along and over private ways and a road that was narrow with brush on either side. Here, according to the testimony of prosecutrix, appellant stopped the car, and while in the front part of said ear forcibly ravished prosecutrix. Pie then took prosecutrix to her home arriving there about two-thirty a. m., August 24. Here appellant left prosecutrix at the gate continuing on to his home. When they got to the gate at prosecutrix’s home, appelasked her if he could come hack and prosecutrix answered, £ £ Try it if you want to get run off the place. ’ ’ Appellant said if he could not come hack he wanted his ring; whereupon prosecutrix returned his ring, received from appellant her ring and went upstairs and called her mother. She informed her mother of appellant’s treatment of her and exhibited her torn and blood-stained clothing and wounds she sustained. When prosecutrix came down stairs to breakfast that morning she made complaint to her father. She didn’t eat any breakfast. The testimony showed that she had a scratch on her chest, mark across her back and stomach, her arms were red from her wrists to her elbows. There was a mark on her wrist and her knees were discolored. Her private parts bore bruises. Dr. McConnell, the family physician, was called the afternoon of August 24, and made an examination of prosecutrix. He, in company with Dr. Bridges, made an examination of her later in the day. Dr. McConnell testified that he found a discoloration on her back; that she complained of tenderness of the chest and knees; that he had theretofore treated her for the flu which left her in a nervous condition; that he saw no discoloration about her private parts that would indicate that anything had happened; that there was some laceration of the female organs and a slight bloody secretion. Dr. Bridges testified that prosecutrix had some marks on her body; that a mark on her knee had begun to discolor; that there was a scratch on her shoulder; that her foot was bruised; that her private parts were tender with the serum mucus coming from the vagina.

The testimony, on the part of appellant, was to the effect that on several occasions shortly preceding the night of August 23, 1917, he had taken prosecutrix to Farmington, sometimes alone with her, at other times in company with his brother and sister of his deceased wife; that on these occasions appellant and prosecutrix would ride with their arms about each other and would stop and ££visit” on the way; that on these occasions he would have his arms around prosecutrix, feeling her body; that she would sit in his lap and permit him to hug and kiss her. Appellant admits that on the night of August 23, in returning home from Farmington, he left the main road at Anson, because it had been freshly worked and made travel thereon difficult. He testified that he and prosecutrix stopped on the way and that he had sexual intercourse with her while he was upon his knees in the front part of the car, but that he did not force her. The testimony further shows that at this time prosecutrix weighed about 93 pounds and appellant about 160 pounds.

Such other parts of the testimony, the instructions, rulings of the court, etc., as may be deemed necessary or important, will be considered in the opinion.

On December 4,1919, the jury found defendant guilty and assessed his punishment at imprisonment in the penitentiary for twenty-five years. Defendant, in due time, filed his motions for a new trial and in arrest of judgment. Both motions were overruled, and on the following day, the court rendered judgment and passed sentence upon appellant in conformity to the terms of the verdict. Thereupon defendant duly appealed the cause to this court.

1. On December 1, 1919, appellant filed his motion to quash the information heretofore set out, upon four grounds, two of which, read as follows:

“1. Because the information is not verified by the prosecuting attorney, or anyone else.

“2. Because the information is not based upon the official oath of the posecuting attorney.” . . .

The information was not sworn to by either the prosecuting attorney or any other person. It purports on its face to, tó be based on the affidavit of Golda Hoffeditz, which contains substanDally the same facts as are set out in the information. The affidavit of tUe prosecutrix sitpra, was sworn to and filed with the information. The sufficiency of the latter, is properly challenged by the motion to quash. It is strenuously insisted by appellant, that the trial court committed reversible error in overruling his motion to quash said information. We will postpone a consideration of this subject, until we determine whether it is necessary to reverse and remand the cause for a new trial upon some other ground. If it should become necessary to reverse and remand the case, the subject-matter of above complaint can be obviated by the filing of an amended information covering the foregoing objection.

II. Appellant assigns as error, the action of the court in overruling his challenge, as to the qualification of certain jurors to sit in the trial of the case. This proposition, like the preceding one, would not Pr°bably arise upon a re-trial of the cause and, hence, will be postponed until other questions, hereafter mentioned, are determined.

III. Appellant earnestly contends, that with the sanction of the trial court, his constitutional and statutory rights were ruthlessly stricken down by counsel employed to assist the State, who compelled him, under the ruling of the court, and against his protest, ‘to testify before the jury, as to prejudicial matters not brought out or referred to in his examination in chief. We were much impressed with the sepiousness and importance of this charge, at the oral argument in this court, and will endeavor to set out the substance of the testimony, with the rulings of the court, in respect to this matter, ivhile considering same.

While the prosecutrix was upon the stand, the clothes and underclothes, which she claims to have worn, were produced before the jury, each item identified, some of which were torn, and some had spots on them.

The cross-examination of defendant was conducted by Mr. Hartzell. The first three pages of same, taken literally from the transcript on file, read as follows:

“Q. Do you know how the prosecuting witness got that black and blue mark six inches long and half an inch wide on her back.

“Defendant’s counsel objects because this is the defendant and there was no evidence about it in his examination in chief.

“By the Court: The objection is overruled.

“To the overruling of' which objection defendant’s counsel did then and there at the time duly except and saves herein his exception.

“Q. Do you know how that black and blue mark on the back of the prosecuting witness about 6- inches long and from a half to an inch wide got there? A. No, sir.

“0. You don’t know how she got that ? A.. I do not

“Q. Do you know anything about a scratch on her breast? A.. No, sir.

“Q. You don’t know how she got that, A. No, sir.

“Q. Do you know about the mark on her foot?

A. No, sir.

“0- Do you know how she.gut that? A. No, sir.

“Q. Do you know anything about the mark on her knee? A. No, sir.

“Q. Do you know how she got that? A. No, sir.

“Q. Did you ever see those clothes before? A. Yes, sir.

“Q. Where did you see them last? A. On Goldie Hoffeditz.

“Defendant’s counsel obiects because this is the defendant, and was not examined about it.

“By the Court: The objection is overruled.

“To the overruling of which objection defendant’s counsel did then and there at the time duly except and saves herein his exception.

“0. Look at the garment I now show you as spoken of as the dress of the prosecuting witness did she have that on that night? A. She did.

“Q. Do vou know anything about that hole in the dress? A. No, sir.

“Q. Look at the garment called the skirt — did you see that that night?

“Defendant’s counsel objects because this is the defendant and for the same reasons.

“By the Court: The objection is overruled.

“To the overruling of which objection defendant’s counsel did then and there at the time duly except and saves herein his exception.

“A. Yes, sir.

“Q. Look at the garment spoken of as the skirt — did you see that that night?

“Defendant’s counsel objects because this is the defendant, and for the same reasons.

“By the Court: The objection is overruled.

“To the overruling of which objection defendant’s counsel did then and there and at the time duly except and saves herein his exception.

“A. No, sir.

“Q. Did you know of that condition that night? A. No, sir.

“Q. Did you see it that night? A. No, sir.

“Q. Look at the garment known as the drawers in the record — have you seen that before?

“Defendant’s counsel objects because this is the defendant, and for the same reasons.

“By the Court: The objection is overruled.

“To the overruling of which objection defendant’s counsel did then and there at the time duly except and saves herein his exception.

“A. No, sir.

“Q. Peel of them and see if you ever felt them that night ?

“Defendant’s counsel objects because this is the defendant, and for the same reasons.

“By the Court: The objection is overruled.

“To the overruling of which objection defendant’s counsel did then and there at the time duly except and saves herein his exception.

“A. Yes, sir, I probably did.”

Practically all of that part of the cross-examination above quoted, including the clothes exhibited in connection with same, related to matters which had not been brought out or' referred to in chief. In addition thereto, the truth of the matters referred to in said questions, was assumed, although defendant was standing upon the general issue, and with some evidence contradicting some of the assumed facts. By way of illustration, the first question above • quoted, reads:

“Q. Do you know how the prosecuting witness got that black and blue mark six inches long and a half an inch wide on her back?”

This question improperly related to matters not referred to in chief and it assumed that the alleged marks upon the body of prosecutrix existed, in the face of the general issue pleaded by defendant.

The evidence, in regard to the matters above referred to, had been placed before the jury in detail. It is evident from the dramatic way in which the above questions were propounded, and the answers obtained, with the sanction of the court, that they were very prejudicial to the rights of defendant, and' had much to do with the extent of the punishment in this case. We feel constrained to observe, after reading the above examination, that the questions propounded, were intended to browbeat and discredit defendant before the jury, and evidently had the desired effect. The foregoing cross-examination of defendant, in respect to matters not brought out or referred to in his direct examination, was not only prejudicial, but in direct conflict with our Organic and Statutory law. [Section 23 of Art. 2, Constitution; Section 4036, R. S. 1919; State v. Drew, 213 S. W. 106-7; State v. Bowman, 272 Mo. l. c. 501, 199 S. W. 161; State v. Goodwin, 271 Mo. l. c. 81, 195 S. W. 725; State v. Swearengin, 269 Mo. l. c. 185, 190 S. W. 268; State v. Pfeifer, 267 Mo. l. c. 30, 183 S. W. 337; State v. Kyle, 177 Mo. 659, 76 S. W. 1014.] The above cross-examination of defendant was not only improper, but the dramatic manner in which the prosecutrix’s clothes were paraded before the jury as a part of this improper cross-examination, was well calculated to intensify a feeling of prejudice against appellant.

IV. Appellant complains of the ruling of the trial court in refusing to strike out a part of the testimony of Dr. Bridges. The latter testified in chief, a^ instance of the State, that he noticed discoloration on some of prosecutrix’s clothing. The following then occurred:

“Q. Under your opinion, what made those discolorations on those garments? A. I thought she had been mistreated.” (Italics ours.)

The court, thereupon, overruled defendant’s motion to strike out the above answer, as simply a conclusion of the witness.

While the question, as asked, might properly have been objected to on the ground that the answer of the witness would be an invasion of the province of the jury, yet, the defendant was not bound to anticipate, that the witness, in answering the question, would, in legal effect, give it as his opinion that defendant had raped the prosecutrix. Under the circumstances, the trial court should have sustained defendant’s motion to strike out said answer.

V. Appellant complains of the action of the court, in giving to the jury at the instance of the State, instruction numbered 6, which reads as follows:

“The court instructs the jury that in determining whether or not the defendant forcibly ravished the prosecuting witness you may take into consideration the physical strength, ability and power of the Pfoseciiting witness and the defendant at the time of the alleged offense, the physical condition of the prosecuting witness and the .condition of her clothing immediately after time it is charged the act complained of was committed, together with all the testimony and other facts and circumstances in the case.” (Italics ours.)

The foregoing instruction, is a palpable comment on a portion of the evidence given in behalf of the State. "Why should the court emphasize the fact that the jury ought to consider the physical strength of defendant and the prosecutrix, as well as the latter’s clothing, etc., leaving in the background, the substantial evidence tending to show that the prosecutrix, at the preliminary trial, testified to a different state of facts from what her evidence disclosed at the trial? Why was it necessary for the court to call especial attention to the matters aforesaid, and yet fail to advise' the jury to consider the conduct of the prosecutrix while with defendant on prior occasions? Instruction 8, given in behalf of defendant, properly advised the jury to consider all the facts in evidence. This was sufficient, without emphasizing the above facts, as indicated in said instruction. The giving of same, was not only unfair to defendant and a violation of our statute (Sec. 4038, E. S. 1919), but in contravention of the law, as declared in numerous decisions of this court, some of which are as follows: State v. Adkins, 225 S. W. l. c. 982-3; State v. Fish, 195 S. W. l. c. 998; State v. Malloch, 269 Mo. l. c. 239, 190 S. W. 266; State v. Rogers, 253 Mo. l. c. 412, 161 S. W. 770; State v. Shaffer, 253 Mo. l. c. 337, 161 S. W. 805; State v. Mitchell, 229 Mo. l. c. 697, 129 S. W. 917; State v. Rutherford, 152 Mo. l. c. 133, 53 S. W. 417; State v. Reed, 137 Mo. l. c. 139, 38 S. W. 574; State v. McCanon, 51 Mo. 160.

In State v. Adkins, 225 S. W. l. c. 982-3, we reversed and remanded "the cause on account of the giving of an instruction very similiar tó the one above mentioned.

VI. Other matters have been briefed by appellant’s counsel, including the validity of the information, etc., but as these questions are not likely to arise on a retrial of the case, we have not deemed it necessary to pass upon same.

On account of the errors heretofore pointed out, the cause is reversed and remanded for a new trial. White and Mosley, GO., concur.

PER CURIAM:

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

All of the judges concur; Blair and Walker, JJ., in separate opinions.

DAVID E. BLAIR, J.

(concurring). — I am unable to agree with the conclusion reached in paragraph three of the majority opinion. In the statement of facts it appears that defendant had testified that he and the prosecutrix stopped on the way home and that he had sexual intercourse with her, but did not f°ree her. With this admission from defendant it was proper to ask defendant for an explanation of the condition of the body of prosecutrix and 'of the clothing which she testified she wore on the night of the alleged assault. The questions may be objectionable on the ground that they assumed the truth of the matters referred to therein, but no such objections were made thereto by defendant. The objections made were that the various questions were improper cross-examination of the defendant.

Even though the defendant had not been asked in direct examination to explain the condition of prosecutrix and her clothes, if the bruises were received by her and her clothes were torn at the time of the alleged assault, such facts tended strongly to contradict defendant’s testimony that prosecutrix willingly yielded to him. As was said in State v. Foley, 247 Mo. l. c. 638, “Can he be asked by his counsel ‘to tell what happened there;’ actually tell part of it, and then take refuge in the statutory privilege? We think not. The State need not categorically follow what was said in his chief examination.”

I agree with the conclusions reached in paragraphs four and five of the majority opinion and therefore concur in the result reached by the learned Commissioner.

WALKER, J.

(concurring). — I concur in the majority opinion with the modification that it should hold that the motion to quash the information was properly overruled. Although neither the affidavit of the prosecuting attorney, nor the prosecuting witness was endorsed on the information the latter alleges that it was based upon the affidavit of the prosecuting witness which was filed with the clerk and is to the same effect as the information. This procedure constitutes a sufficient compliance with the. requirements of Sections 3849 and 3850, Revised Statutes 1919, and has met with the approval of this court in State v. Schnettler, 181 Mo. 175, 185.


author: DAVID E. BLAIR, J.

text:
    MIRIAM H. PHILLIPS v. TRAVELERS INSURANCE COMPANY OF HARTFORD, Connecticut, Appellant.
    Division Two,
    June 3, 1921.
    1. ACCIDENT INSURANCE: Burden of Proof. The burden is on plaintiff, in a suit on an accident insurance policy against bodily injuries effected directly and independently of .all other causes, through external, violent and accidental means, to show that the insured accidentally received such injuries and that they caused his death directly and independently of all other causes.
    2. -: Inference from Fall. The presence of a fresh bruise upon the insured’s forehead will authorize the jury to infer a fall; but it does not necessarily follow that such fall was accidental, where there is positive and uncontradicted evidence that the insured was in a diseased condition and that a cerebral hemorrhage took place, and the fall may as readily be attributed to the hemorrhage as to an accident.
    3. -: -: Accident: Proximate Cause: Inference Upon Inference. It is not 'sufficient that because of a fresh bruise upon the insured’s forehead an inference may be drawn that he fell and that the fall was accidental, there being no eye witnesses; in order to permit a recovery on an accident policy, a further inference that the fall was the proximate cause of his death must be indulged, and that inference cannot be allowed, for that would be equivalent to establishing a fact by building inference upon inference.
    4. -; -: Cerebral Hemorrhage. The blood pressure of insured, sixty years of age, had become high. In the evening he visted some friends, who resided in the third-story of an apartment, and dined with them. Something after eight o’clock he bade them goodnight and started down the two flights o£ stairs. A few minutes later he was found on his knees at the foot of the stairs, holding a door knob and trying to raise himself in that way, his only words being, “My eye, my side; don’t try to lift me.'’ He then lapsed into apparent unconsciousness, was removed to a hospital and died in about four hours. There was a slight bruise or abrasion on his forehead near the right eye. A postmortem examination showed no injury to the brain or its coatings, but did reveal a severe hemorrhage in the brain; and a later autopsy tended to show arterial sclerosis in an advanced stage, enlargement of the muscles of the heart and chronic Bright’s disease, but no evidence of injury to the skull or the brain or the membranes covering the brain. Held, that the bruise on the forehead does not exclude the hemorrhage as the cause of the fall, and the undisputed evidence being that cerebral hemorrhage caused his death and there being no evidence that external violence caused injury to the brain or brain covering or the hemorrhage, the inference that the fall was caused by accident and that it. was the proximate cause of his death is purely speculative, and a demurrer to the evidence should have been sustained.
    5. —--: Inference Upon Inference. The rule that inference cannot be builded upon inference to establish a definite and ultimate fact necessary to be established in order to sustain a verdict, applies to actions on accident insurance policies.
    Appeal from St. Louis City Circuit Court. — Hon. Moses Hartmann, Judge.
    Reversed.

      Jones, Hoclcer, Sullivan d> Angert for appellant.
    (1) This insurance policy was an Illinois contract, because each renewal was a new contract. Grocery Co.' v. Fidelity Co., 130 Mo. App. 430; Stokel v. Heywood, 1 Ch. Div. (Law Rep. 1897) 459; Palmer v. Ins Assn., 128 N. E. (111.) 501. (2) The burden was on the plaintiff to prove that death was due to accidental means. Laissig v. Protective Assn., 169 Mo. 272; Brunswick v. Ins. Co., 213 S. W. (Mo.) 48. (3) The unexpected result of an intended act is not “accidental means.” Riley v. Acc. Assn., 152 .N. W. 617; Acc. Assn. v. Barry, 131 U. S. 121; Maryland Casualty Co. v. Spitz, 246 Fed. 817; Rock v. Travelers Ins. Co., 172 Cal. 462; Smith v. Travelers Ins. Co., 219 Mass. 147; Life & Acc. Co. v. Schmaltz, 66 Ark. 593; Atlanta Acc. Assn. v. Alexander, 104 Ga. 711; Newman v. Ry. Acc. Assn., 15 Ind. App. 33; Ludwig v. Acc. Ins. Co., 1.30 Minn. 510; Shoyer v. Life & Ace. Ins. Co., 68 N. H. 577. (4) A finding that death was the result of bodily injuries effected through accidental means cannot be reached in this case but by an inference, based upon an inference, or a presumption based upon a presumption, which'is not permissable. Yarnell v. Kansas City Ry. Co., 113 Mo. 580; Swearingen v. Wabash Ry. Co., 221 Mo. 644; Hamilton v. Kansas City Ry. Co., 250 Mo. 714; Atherton v. Ry. Mail Assn., 221 S. W. (Mo.) 756; Wright v. United Commercial Travelers, 188 Mo. App. 457; Whitesides v. Ry. Co., 186 Mo. App. 619; United States v. Ross, 92 U. S. 283;-Globe Indemnity Co. v. Gerisch, 163 111. 625; Keefer v. Life Ins. Co., 201 Pa. 448. (5) Where undfer the evidence it is uncertain whether death was due to an accidental injury or to disease, the 'plaintiff cannot recover. Warner v. Railroad Co., 178 Mo. 134; State ex rel. Bush v. Sturgis, 221 S. W. 91; Atherton v. Ry. Mail Assn., 221 S. W. 756; Ins. Co. v. Murray, 90 S. E. 620; Transylvania Casualty Co. v. Allen’s Admr., 209 S. W. 44; Carnes v. Traveling Men’s Assn., 106 Iowa, 281. (6) Death from accident aggravated by pre-existing disease, or from pre-existing disease aggravated by accident is not death from “accidental means, independent of all other causes.” (a) Under the Illinois decisions, whose rules control this case. Crandall v. Casualty Co., 179 111. App. 330; Robinson v. Ins. Co., 192 111. App. 475; Moore v. Assn., 166 111. App. 38. (b) Under the accord of American judicial utterance. Natl. Masonic Assn. v. Shryock, 73 Fed. 755; Casualty Co. v. Shields, 155 Fed. 54; Casualty Co. v. Morrow, 213 Fed. 595; Travelers’ Ins. Co. v. Fulton, 79 Fed. 423; Commercial Men’s Assn. v. Parks, 179 Fed. 794; Aetna Life Ins. Co. v. Ryan, 255 Fed. 483; Acc. Ins. Co. v. Patterson, 213 Fed. 595; Postal Clerks ’ Assn. v. Scott, 155 Fed. 92; Stokely v. Fidelity Co., 193 Ala. 90; Stanton v. Travelers’ Ins. Co., 83 Conn. 708; Binder v. Natl. Masonic Assn., 127 Iowa, 25; Aetna Life Ins. Co. v. Bethel, 140 Ky. 609; Thomas v. Fidelity Co., 106 Md. 299; Jiroch v. Travelers’ Ins. Co., 145 Mich. 375; White v. Life and Acc. Ins. Co., 95 Minn. 77; Ward v. Aetna Life Ins. Co., 85 Neb. 471; Aetna Life Ins. Co. v. Dorney, 68 Ohio St. 15; Maryland Cas. Co. v. Glass, 29 Tex. Civ. App. 159. . (7) The insurance was against death by accident alone, and not against death due to accident and existing disease. Under such a policy there can be no inquiry into proximate cause, where both such causes contribute. White v. Life & Acc. Ins. Co., 95 Minn. 77; Commercial Travelers’ Ins. Co. v. Fulton, 79 Fed. 423; Commercial Men’s Assn. v. Parks, 179 Fed. 794; Aetna Life Ins. Co. v. Ryan, 255 Fed. 483; Crandall v: Casualty Co., 179 111 App. 330.

      Fordyce, Holliday & WMte for respondent; John S. Lord and Wilbur B. Jones of counsel.
    (1) The trial court properly refused motions at the close of plaintiff’s case and at the close of all the evidence to direct the jury to find a verdict for defendant, (a) That physical infirmity may be a necessary condition to the accidental result does not deprive an injury of its distinction of being the sole producing cause, under a policy insuring against death only from bodily injuries effected directly and independently of all other causes through external and accidental means. Campbell v. Aetna Life Ins. Co., 222 S. W. 778; Fetter v. Fidelity Co., 174 Mo. 256; Beile v. Protective Assn., 155 Mo. App.' 629; Driskell v. Ins. Co., 117 Mo. App. 362; Goodes v. United Com. Travelers, 174 Mo. App. 330; Hooper v. Ins. Co., 166 Mo. App. 209; Greenlee v. Casualty Co., 192 Mo. App. "303; Wright v. United Com. Travelers, 188 Mo.App. 457; Baehr v. Union Casualty Co., 133 Mo. App. 541; Ry. Acc. Assn. v. Coady, 80 111. App. 563; Fessenden v. Travelers Ins. Co., 205 111. App. 108; Continental Casualty Co. v. Lloyd, 165 Ind. 52; Hall v. Acc. Ins. Co., 16’Ga. App. 66; Thornton v. Travelers Ins. Co., 116 Ga. 121; Fidelity & Casualty Co. v. Meyer, 106 Ark. 99; Modern Woodmen v. Shyrock, 54 Neb. 250; Mfgrs. Acc. Co. v. Dorgan, 58 Fed. 945. The fall was the proximate cause of Mr. Phillips’ death, and any disease of his organs that may have been found was the remote cause, or rather a condition Cases above cited. Plaintiff made out a prima-facie case by showing that Mr. Phillips had a fall, that a bruise was found upon his forehead thereafter, and that death was caused by' a cerebral hemorrhage due to an arterial rupture. Whether he first fell and ruptured an artery which produced the cerebral hemorrhage, or the hemorrhage occurred first and caused the fall, were questions of' fact for the jury. Cases above; Moon v. Commercial Travelers, 96 Neb. 65; Taylor v. Acc. Assur. Corp., 208 Pa. 439. (b) The evidence was amply sufficient to submit the issue to the jury as to whether or not Mr. Phillips had a fall which produced the arterial rupture, or the fall was caused by the rupture and the consequent cerebral hemorrhage. The fact that he was found in a fallen position at the foot of the stairs struggling to regain his feet; that he complained of pain in his side and eye, and that thereafter a bruise was found over his eye, and he vomited, made a prima-facie showing that the bruise and the vomiting were due to accidental means. U. S. Mutual Ace. Assn, v. Barry, 131 U. S. Ill; Lamoreux v. 111. Comm. Men’s Assn., 212 111. App. 263; Acc. Ins. Co. v. Fielding’, 35 Colo. 19; Cronldiite v. Ins. Co., 75 Wis. 116; Licldeider v. Iowa Assn., 166 N. W. 363; McEwen v. Life Ins. Co., 129 Pac, 598; MacDonald v. Met. St. Ry. Co., 219 Mo. 468. (3) As the defendant alleged in its answer that Mr. Phillips died from the disease of arterio-selerosis, the burden was on the defendant to prove it. . Fetter v. Fidelity & Casualty Co., 174 Mo. 269; Beile v. Protective Assn., 155 Mo. App. 644; Anthony v. Mercantile Assn., 162 Mass. 354. (4) From the facts and circumstances appearing in evidence in this case the accidental character of the fall is clearly proven. Taylor v. Acc. Assur. Corp., 208 Pa. 439. When plaintiff showed in addition to tire facts above stated, that Mr. Phillips’ arteries had been tested and found strong; enough to withstand a certain pressure, that they would not rupture within a few hours under a lesser pressure while walking downstairs, and that a fall and the injuries received would account for the necessary sudden increase of blood pressure, plaintiff went beyond what the above cases hold is sufficient to make out a prima-facie case.
   DAVID E. BLAIR, J.

This is a suit by the beneficiary on a policy of accident insurance. It is admitted that said policy insured Milton C. Phillips, therein and herein ref erred to as the “insured,” against bodily injuries effected directly and independently of all other causes, through external, violent and accidental means, and that in case of death the principal sum, with accrued accumulations, amounted to $7,500, was in full force and effect at insured’s death and was payable to plaintiff, the respondent here, if she is entitled to recover under the terms thereof. The death of said insured occurred at Chicago, Illinois, on August 2, 1916. The policy was issued to insured in 1904 while he was a resident'of the State of Wisconsin. He moved to Chicago about 1913, and consent of defendant to such removal was evidenced by a rider attached to said policy of insurance. Plaintiff is the daughter of insured, and was a resident of Ohio at the time the case was tried.

Insured was a man about sixty years of age at the time of his death. He had been engaged in the practice of law in Wisconsin, and had moved to Chicago to engage in business with his sons in that city. For some reason, stated by some of the witnesses to be on account of failing health, insured had been talcing a vacation during the summer months of 1916, and had largely given up active office work and had taken up outdoor exercises, including golf.

There is some evidence that his blood pressure had become high. On the evening before his death he visited friends in Chicago, a Mr. and Mrs. Vaughan, had dined with them and afterwards remained an hour or two visiting and chatting with them. The Vaughans lived in a third-story apartment, and insured had climbed two flights of stairs to roach thoir apartment. About 8:30 he started to leave, and the Vaughans bade him goodnight at the top of the stairs leading to their apartment. Mrs. Vaughan suggested to her husband, after insured had started away, that he get his hat and go with him. She then went out on the porch and, failing to observe insured go out on the street below, became alarmed and followed her husband down the stairs leading up to their apartment. At the foot of the same and on a landing she found her husband bending over the insured, and sat down beside him on a step and directed her husband to summon assistance. The only words spoken by insured, as shown by the testimony, were, “My eye, my side; don’t you try to lift me.” He then lapsed into apparent unconsciousness. Mr. Vaughan testified that he found insured on his knees on the landing, holding the door knob and trying to raise himself in that way, with his hat and newspaper on the floor. He was carried up stairs to the apartment of the Vaughans and physicians attempted to treat him there. His sons were also summoned, and soon thereafter he was removed to the hospital, where he died about four hours after he was stricken. Some of the witnesses testified to a slight bruise or abrasion on the forehead of the insured in the region of his right eye.

A ppst-mortem examination on the body of the insured was made by a T)r. Reinhardt, coroner’s physician for Cook County. This post-mortem extended only to opening the skull and examining the brain. It showed no injury to the skull or- to the brain, but did reveal a severe hemorrhage in the brain. The body was then shipped to Wisconsin for burial, where it was exhumed about twenty-six days later. An autopsy Avas performed thereon by Dr. Wells' of Chicago. The testimony of the doctors performing and attending this autopsy tended to show the presence of arterio-sclerosis in an advanced stage, enlargement of the muscles of the heart and chronic Bright’s disease, and that there was no evidence of injury to the skull or the membranes covering the surface of the brain or the brain itself. Dr. Wells testified that he looked for and observed no bruise on the forehead.

The trial below resulted in a verdict for plaintiff in the sum of $8,568.75, that sum representing the face of the policy, with admitted accumulations and interest from September 30, 1916. After unsuccessful motion for a new trial, the defendant appealed.

The above constitutes only a general outline of the facts. Such further facts as are necessary to a complete understanding of the issues involved in the case avíII be outlined more extensively in their proper place in the opinion.

A number of assignments of error are made by appellant and urged as ground for reversal of the judgment beloAv. We Avill only consider the demurrer at the close of plaintiff’s evidence and at the close of all the evidence, since our conclusion thereon disposes of the case.

A careful study of the evidence offered by plaintiff in the light of the decisions of this State has convinced us that the plaintiff offered no substantial evidence authorizing submission of the case to the jury, and that plaintiff’s evidence was not helped out by evidence offered by the defendant.

Many pages of the record are filled with testimony tending to show that insured appeared to be in ordinarily good health during the few weeks' preceding his death, as well as before that time, and that he was active and able to work, played golf and climbed two flights of stairs frequently without apparent difficulty or distress, and that there was nothing in his appearance or actions to indicate that he was not in good health for a man of his age. Evidence to the contrary appears by' defendant’s witnesses, and some of the plaintiff’s witnesses threw doubt about his good- health to a certain extent. There was ample evidence from these lay witnesses that he appeared reasonably vigorous and healthy.

However, the uncontradietcd testimony of the physicians who held or witnessed the two autopsies (part of whom were called as witnesses by plaintiff) is -to the effect that .insured was not a healthy or vigorous man. With one voice these physicians agreed to the presence in his body of seriously diseased conditions. It is certain he was suffering from chronic Bright’s disease and arterio-sclerosis in an advanced stage, with corresponding enlargement of the heart muscles. It is also -shown beyond question that death was caused by cerebral hemorrhage. In spite of the testimony touching the appearance of insured given by lay witnesses, there can be no doubt that he was a victim of at least two deadly maladies.

The vital question for decision by the jury was whether the insured’s death was caused by accident or was the result of disease. The burden was on plaintiff to show that insured received bodily injuries effected directly and independently of all other causes through external, violent and accidental means, which caused his death.- There can be little doubt in this case that if' an accidental fall of insured be conceded, it was not of such a nature as to cause his death independently of the diseased condition. Appellant contends that under such a situation plaintiff cannot recover under the law of Illinois, which appellant claims is controlling. But we pass that issue without discussing or deciding it here, although it presents an interesting question for examination and determination.

There were no eye witnesses, or at least none testified, to the events which transpired from the time insured bade the Vaughans goodnight at the top of the stairs until he was found- by Mr. Vaughan on his knees on the landing apparently trying to raise himself by the door knob. No sound of fall, outcry or other noise was heard by any witness. . Part of the witnessed testified to the presence of a bruise or abrasion on insured’s forehead and there is sufficient evidence on that point to justify a finding by the jury that such bruise did exist. When Mrs. Vaughan reached the scene he complained of his eye and his side, and so far as was shown these were the last words that he uttered.

From the presence of the bruise on his forehead the jury was doubtless authorized to infer a fall. Such was not a necessary conclusion, however, for the reason that the bruise was of such a superficial character that it might have been caused by insured bumping or rubbing his head against the door in attempting to pull himself up, or possibly by a fall in attempting to raise himself from the floor.

But from the inference of the fall drawn from the presence of the bruise, it does not necessarily follow that such fall was accidental rather than the result of the hemorrhage of the arteries of the brain. The physical condition of the insured was such that his fall could just as well have been caused by cerebral hemorrhage, conceding that such fall occurred. With the positive and uncontradicted evidence of the diseased condition of insured and that an actual cerebral hemorrhage took place, it is not proper to build upon the inference of a fall from the fact of a bruise the further inference that such fall was the result of accident rather than disease. The fall can be as readily attributed to disease as to accident from tbe evidence before us and it devolves on plaintiff to show that it was due to accident.

Furthermore, if the jury be permitted to indulge the inference of a fall and the further inference that such fall was accidental, yet must an additional step by inference be taken and that is that such fall was the proximate cause of death of the insured. There is evidence that a fall might have caused a rupture of an artery of the brain and brought about the cerebral hemorrhage. None of the physicians undertake to testify as a fact that the hemorrhage was produced by the fall. They simply say that it might have been so produced. No evidence of injury to the outer covering of the skull or to the skull itself, or to the dura mater or to the membranes covering the brain or to the brain itself was found by the physicians. It is in evidence that a jar, not sufficient to injure these parts, could still be heavy enough to rupture a blood vessel in the brain of one in the condition of insured ; or that the effort expended by him in attempting to avert a fall might produce the same result. But the conclusion cannot be avoided that a finding that such fall caused the death is, after all, an inference.

The courts of this State have many times declared that inference cannot be builded upon inference to establish a fact necessary to be proven in a case on trial. [Hamilton v. Railroad, 250 Mo. 714, l. c. 722; Swearingen v. Wabash Railroad, 221 Mo., 644, l. c. 659; Yarnell v. Kansas City Railroad, 113 Mo. 570, l. c. 579; Click v. Kansas City, Ft. Scott & Memphis Ry. Co., 57 Mo. App. 97, l. c. 105.]. The above are negligence cases. The rule applies to any sort of case where a definite and ultimate fact must be found as a basis of recovery. It has frequently been applied in suits on accident policies, as for example, Wright v. United Commercial Travelers, 188 Mo. App. 457; Atherton v. Railway Mail Assn., 221 S. W. 752. Further citation of authority is useless. We find no contrary authority on the proposition that inference cannot be piled on inference to prove a fact.

Plaintiff cited a number of cases -where there were no witnesses to the accidental character of the injury, but in all such cases, so far as we understand them, the fundamental fact of injury or fall was clearly shown by direct proof or the strongest hind of circumstances. In Fetter v. Fidelity & Casualty Co., 174 Mo. 256, there was no question that insured fell against a table. The issue was whether that fall or his diseased condition caused his death. In Goodes v. United Commercial Travelers, 174 Mo. App. 330, a stool slipped and caused insured to fall. Such fall was heard by his wife. Blood flowed from his nose and ears immediately. In MacDonald v. Railway, 219 Mo. 468, the question at issue was whether the death of the deceased was due to accident or disease. The accidental injury was clearly shown. It was due to the wreck of a grip car. In Greenlee v. Casualty Co., 192 Mo. App. 303, deceased rose from his bed and went into the bath room and his wife heard him fall and groan and he stated he slipped and fell. It was not necessary in that case to infer the fall and that it was due to accident rather than the disease of meningitis with which deceased was afflicted. In Lamoreux v. Ill. Commercial Men’s Assn., 212 Ill. App. 263, the marks on the body, the. position of the body with reference to the automobile, ¡and other facts, showed circumstantially, but well nigh conclusively, that deceased was cranking his automobile, and while doing so was struck by the crank in attempting to start the engine. The jury was authorized to find as a fact that the mark on the body was caused by the crank. Numerous other causes on this point are cited by plaintiff, but nothing can be accomplished by discussing them further.

Counsel say in their brief that: “There is direct proof of the fall and its effect. The inference of the accidental character of the fall is properly based upon all of the circumstances preceding, accompanying and following Mr. Phillips’s fall on the- stairway. The accidental character of the fall is proved by circumstantial evidence, as it is necessary to prove many facts in the trial of cases where direct evidence is not available. Proof by circumstantial evidence is not mere presumption.”

We are unable to agree with plaintiff that there is direct proof of the fall. There is no proof whatever on this point except the evidence of the bruise on insured’s forehead. Complaint as to' the eye and side does not exclude the hemorrhage as the cause of the fall. It is true that “proof by circumstantial evidence is not mere presumption.’ ’ But that would only be true where such circumstances clearly pointed to the accidental character of the fall and tended to exclude the theory that it resulted from a stroke of apoplexy. The advanced stage of the sclerotic condition of insured’s arteries, the undisputed evidence of cerebral hemorrhage causing death, the positive proof that there was not the slightest evidence of external violence causing any injury to skull or brain covering, argues just as strongly, to say the least, that insured’s fall, if he did fall, was caused by disease, as that it was caused by accident. That such fall was caused by accident is speculation. It certainly is nothing more than mere inference.

It appears that there was no substantial evidence to establish the essential facts that there was a fall, that such fall was accidental, and that such fall, or the efforts to avert the same, caused the insured’s death. The proof having failed at this point, there was no issue of fact to submit to the jury, and the defendant’s demurrer to the evidence should have been sustained. Let the judgment . of the trial court be reversed.

All concur.


author: GRAVES, J.

text:
    FRANK HART REALTY COMPANY, a Partnership, Composed of FRANK HART et al., v. GEORGE L. RYAN, Appellant.
    Division One,
    June 6, 1921.
    1. ORAL CONTRACT: Sale of Lands: Full Performance: Agent's Commission. An oral contract to sell a designated tract of land at a designated price for an agreed commission is fully performed , when the/ agent produces purchasers who are ready, able and willing to purchase at the stipulated price; and when that is done the agent’s agreed commission is due, as much so as if the seller executed the deeds and received ' the money. The performance of such a contract is not dependent upon the acceptance of the purchasers by the seller, nor upon his change of mind as to the price after the purchasers have been .produced by the agent.
    2. -: -: Substituted Contract. When the agent p/roduced a buyer for the land, ready, able and willing to buy at the stipulated price, and the seller demanded more and refused to sell, the contract was breached, and the transaction at an end. If thereafter another agency contract was substituted, recovery by the agent for his commission must be under the last or substituted contract. But in this case, there was no agency contract substituted for the prior contract fully performed by the agent.
    3, -: —--: -: Attempted Adjustment. Where the agent produced buyers able, ready and willing to buy at the stipulated price, and the seller demanded a higher price and refused to sell, and thereupon the agent notified him that his commission was due, and thereupon the seller agreed to take the original stipulated price, but one of the buyers refused, and the agent then agreed to take his place as. a purchaser, upon condition that he was to receive credit for a certain amount for what he had previously done,, but said agreement failed, there was not a substituted agency contract, but an attempted purchase by the agent and the two others, and an attempted adjustment of the amount due the agent from the seller under the agency contract; and that attempted adjustment, having failed, does not prohibit the agent from recovering his commissions already due under the fully performed agency contract.
    4, -: -: —■-: Erroneous Instruction. Where plaintiff’s first instruction, in accordance with the petition and the contract alleged, asked for a definite sum on the theory that the agency contract to sell had been fully performed, his second instruction based on the theory that under a subsequent adjustment contract he was entitled to a less sum, which was not pleaded and evidence of which went in without objection, was erroneous, because outside of the scope of the pleadings, hut it was harmless, since the jury returned their verdict under the first instruction for the amount due under the agency contract.
    5. JUROR: Qualifications: Matter of Exception. Testimony heard in support of an issue raised for the first time in the motion for a new trial, to the effect that a juror had married a niece of one of the plaintiffs, is not different from affidavits in support of the same kind of an issue, and cannot avail. The qualification of a juror is a matter of exception, and if no inquiry is made concerning his relationship to the parties at the time of his examination, and no objection is made or exception saved, the verdict cannot he overthrown by evidence in support of the motion for new trial, although under the statute he should have been excused if objection to his qualifications had been timely made.
    Appeal from Stoddard Circuit Court. — Hon. W. S. G: Walker, Judge.
    Affirmed.

      Wammack é Welborn for appellants.
    (1) Do tlie undisputed facts constitute an abandonment, a modification or a substitution of the so called Monday sale for the one claimed to have been made on Saturday? It is our contention that they do, and if so, the judgment can not stand, for it is the law that under such a state of facts the plaintiff must declare on the modified or substituted contract and predicate recovery thereon. Carman v. Harrah, 182 Mo. App. 376; Gifford v. Willman, 187 Mo. App. 38; Car Co. v. Mill Co., 227 S. W. 74. (2) The mere substitution of one contract for another is a sufficient consideration to support the new contract. Welch v. Mischke, 154 Mo. App. 735; Koslosky v. Bloch, 191 Mo. App. 260; Smith v. Crane, 169 Mo. App. 708. (3) The question of a modified or. substituted contract is for the court to determine as it involves a question of pleading.

      J. L. Fort for respondent.
    (1) .The doctrine of altered or modified contracts has no application to an executed or performed contract. Car Co. v. Mill Co., 227 S. W. (Mo.) 74; 13 C. J. 590; Henning* v. Company, 47 Mo. 431; Lanitz v. King, 93 Mo. 519; Brigham v. Company, 220 S. W. (Mo.) 915. The contract between respondents and appellant by which appellant promised to pay respondents a commission if they would find a purchaser for his land ready, able and willing to buy the same, was fully performed on Saturday, and their commission was earned when they found Sherwood, Minton and Thompson as purchasers and brought them face to face with appellant. (2) There was nothing in respondents’ pleadings justifying the giving of evidence or instructions respecting the Monday transactions. State v. Ellison, 270 Mo. 654, 195 S. W. 724; Martin v. Company, 227 S. W. 132; Wenzlick v. Company, 224 S. W. 60; Hassenbach v. Kleissle, 224 S. W. 75; Smith v. Black, 231 Mo. 690. The cases above cited hold that jurisdiction is the right to decide points in issue under the pleadings — not issues outside of the pleadings. This being true, yet both appellant and respondents gave evidence and asked and received instructions from the court relating to the effort to sell this land on the following Monday. The evidence thus offered was not objected to by either appellant or respondents, and on the issue of the efforts made on Monday to sell this land respondents were beaten and they have not appealed, and they are entirely unable to see upon what principle appellant may now, in this court, derive any advantages from the errors which he, along with respondents, invited the trial court to commit, and in which appellant came out in the flying colors of victory.
   GRAVES, J.

Because of diverse views entertained by the judges of the Springfield Court of Appeals, this cause reaches us upon certification from that court. The plaintiff is a co-partnership engaged in the sale of real estate. Defendant owned 458 acres of land near Dexter in Stoddard County. The diverse views of our learned brothers of the Court of Appeals call for the real issues in the case, as such issues are made by the pleadings. After alleging the co-partnership of plaintiff, giving the names of the co-partners, and describing the real estate, owned by defendant, the petition then proceeds:

“That on or about the — day of May, 1917, the plaintiff entered into a contract with the defendant, not in writing, whereby it was agreed that if plaintiff would procure a purchaser for the defendant’s said real estate, which was located about one quarter of a mile in a southeastern direction from said City of Dexter, he, the defendant, would pay the plaintiff two and one half per cent of the amount realized on the sale of said real estate, and at $125 per acre, there being 458 acres of said real estate, and at $125 per acre would amount to $57,250, and that two and one half per cent of said amount amounts to $1,431.25.

“That after the making of said contract the plaintiff immediately went to work to procure a purchaser for said, farm, who was ready, able and willing to purchase the same at the agreed price and sum of $57,250, and that plaintiff did, on the 13th day of May, 1918, secure a purchaser for said farm, who was ready, able and willing to pay the defendant the sum of $57,250, for said farm on such terms and conditions as the defendant had agreed to sell the same, in consequence of which there became due from the defendant to the plaintiff the sum of $1,431.25, which sum is now due and ówing by the defendant to the plaintiff, and payment whereof has been refused by the defendant, though he had been requested to pay the same to the plaintiff.

“Wherefore, plaintiff prays judgment against the defendant for the sum of $1,431.25, with six per cent interest thereon from the 13th day of May, 1919, together with costs of suit.”

The answer was a simple general denial. Plaintiff had a verdict for the snm of $1,425, upon which a judgment was entered. From such judgment the defendant appealed.

I. It is admitted by defendant that the plaintiffs were at one time authorized by him to sell the lands for him at $125 per acre, and that he agreed to pay the commission of two and one half per cent upon the aggregate amount of sale. He lived in Indiana, and came to Dexter shortly after receiving a telegram notifying him that the land had been sold. Whilst admitting that plaintiff had been authorized to sell the land at $125 per acre on an agreed commission of two and one half per cent, the defendant urged that the authority had been withdrawn some time before the sale. This therefore became a controverted point. Defendant arrived at Dexter, on Thursday, and the three men who had been procured as purchasers by piaintiff were ready and' willing to buy at the stipulated price, but defendant demanded $60,000 for the land. This was upon Saturday, and this sale was lost through the act of the defendant. In the record and briefs this is called the Saturday transaction. . . *

On Monday plaintiffs notified defendant that inas much as buyers (who were ready and willing to buy, and who were responsible) had been found, he would have to pay the commission. In this situation, defendant told plaintiffs to see their prospective buyers, and that he would take the price of $125 per acre, or $57,250, instead of the $60,000 demanded by him Saturday. Plaintiff failed to get one of the three parties (who were ready and willing upon Saturday) to further consider the trade. According to plaintiffs’ evidence it was then agreed that the plaintiff firm should take the place of the third purchaser, and that the land was to be divided, and each purchaser was to be only liable for his part. Further plaintiff firm was to have credit on their purchase for $1000 for what they had done. This sale fell through, according to the view of plaintiffs by reason of the fact that defendant demanded that the three purchasers should stand responsible for the whole of the land, and not for their respective shares. This was also a controverted question. In the record, this latter deal is denominated the Monday’s transaction. This sufficiently covers the facts for the questions involved.

II. The majority opinion of the Court of Appeals affirmed the judgment. The dissenting judge took the view that by the Monday’s transaction there was a substituted contract, and for that reason there could be no recovery on the refusal of defendant to sell on Saturday at the price of $125 per acre. The general rule °f law Is, that where one contract has been submitted for another, the. recovery must be under the substituted contract. This, because the rights of the parties would be measured by their last agreement. In the case at bar, the question is whether or not the facts show a substituted contract. The petition clearly declares upon an agreement to sell this farm at $125 per acre for a commission of two and one half per cent. Such a contract is fully performed when the real-estate agent procures purchasers, who are ready, able and willing to purchase at that price. The performance of such contract is not dependent upon the acceptance of the purchasers by the seller, nor is it dependent upon his change of mind as to the price per acre, after such purchasers have been produced by the commission of the real-estate agents were as fully earned that defendant made such a contract of agency with plaintiffs, and further tending to show that plaintiffs performed their part of the agency contract by producing purchasers ready, able and willing to purchase, and judging from the verdict the jury believed this evidence. But when the defendant raised the price to $60,000, these purchasers declined to buy.. This ended, at least for the time, that transaction. It was a closed transaction, when upon Saturday, the defendant dedined to take $125 from the three purchasers. The conunission of the real-estate agents were ás fully earned then, as if the defendant had made the deed or deeds and received the money.

Counsel for defendant urge here (although no such contention was made in the Court of Appeals) that there was a substituted contract made on Monday. This contention here was the outgrowth of the views of the dissenting judge in the Court of Appeals. Whether or not there was a substituted contract might be raised by the simple general denial, but it would have been fairer tactics to have pleaded it by way of -defense. We need not discuss the pleadings, because the evidence went in as to both transactions, and in without objection, so far as the printed abstract shows. Evidence as to the Monday’s transaction came from both sides. Considering all the facts there was no substituted contract in this case. We must not confuse the two attempted land contracts, or contracts of sale with the agency contract between plaintiffs and defendant. The original contract was, that if plaintiffs sold defendant’s land for $125 per acre, they were to have a commission of two and one half per cent of the selling price. This was the agency contract, and the contract sued upon herein. This contract was fully performed on Saturday when the purchasers were produced. Does the Monday’s doings constitute a new agency contract1? We think not. Let us take the facts for a moment. Plaintiffs notified defendant that claimed their commission, or would claim it. In this position he asked them to get their three purchasers together, and he would close the deal at $125 per acre, the sale that he repudiated on Saturday. The agents found that one of their three men was not then willing to buy, and this new contract on Monday, was not an agency contract to sell land, but a contract to sell between buyers and sellers. In the Monday transaction the present parties plaintiff were purchasers, and according to their version were to receive $1000 on their purchase price, by reason of what they had done before. In other words the defendant was on the ground selling his' lands himself, and his former agents were becoming purchasers of a part of the lands, and as part payment they were to be allowed $1000. This falls short of a substitution-for the original agency contract. Had this last sale gone through it would have amounted to an adjustment of the amount due under the agency contract, but as it did not, it can in no way effect it. The facts fail to show a substituted agency contract. At most the Monday’s transaction shows an attempted purchase from defendant of his land by his former agents, and two others. What he agreed to allow them under the agency contract, in this attempted contract of sale, can not bind them here, because the purchase failed.

III. As suggested the evidence of the Monday’s transaction came from both sides,- and came in without objection. In fact the printed record shows no objection to the introduction of evidence. For the plaintiff the case went to the jury upon two instructions. The first placed the case to the jury under the petition, and the contract therein pleaded. The second was based on the theory that the plaintiffs were entitled to $1000 for the alleged sale on Monday. Defendant’s instructions took advantage of the evidence introduced as to Monday’s transaction, on the theory that the purchasers must be such as would buy the place as a whole, and be responsible for this contract collectively, and not otherwise.

. It is urged that this second instruction was.beyond the scope of the pleadings, and this is true. ' It was based upon an unpleaded agreement, but was it harmful? Defendant did not object to all this Monday’s transaction, evidently upon the theory that it tended to show a failure of plaintiffs in furnishing purchasers who would contract for the farm as a whole and be collectively bound on the contract, and defendant availed himself of this evidence in carefully wording his instructions. It is clear that the jury found under the contract pleaded, and not under this second instruction which limited the right of recovery to $1000. So neither the instruction nor the evidence upon which it was based influenced the jury. It is not every improper instruction which works harm, and this one does not appear to have worked harm. They followed the first instruction (which was clear cut and concise upon the contract pleaded) and the evidence given in support of it. Defendant did not ask an instruction upon the substitution of contracts, but made a general fight against any and all liability. Under the facts we feel constrained to hold that the broadening of the issues by this instruction (done without objection) was at least harmless, and we so rule.

IV. ’ As a last contention it is urged that one of the jurors selected to try the case had married a niece of one of the plaintiffs. This juror, had the fact' appeared on an examination of the jurors, should have, and no doubt would have, been excused by the court. [Sec. 7283, R. S. 1909, the statute then in force.]

The record shows no examination of the jury by counsel. By this we mean the record of the case prior to the the motion for new trial. For the first time the qualification of this juror was raised by the motion for new trial. The court heard evidence upon the issue made in this motion. From this evidence it appears that appellant’s counsel asked no question when the jurors were being qualified, nor does it appear positively that plaintiffs’ counsel asked any questions of them as to their relationship. It is made clear that neither counsel for plaintiff nor defendant knew of the relationship. This evidence on the motion we have given as a gratuity. The qualification of a juror is a matter of exception, and there was no exception saved to the selection of this juror on the panel of jurors. [State v. Brewer, 109 Mo. l. c. 652; City of Tarkio v. Cook, 120 Mo. l. c. 11.]

Evidence heard in support of an issue thus raised for the first time in a motion for new trial, is nor different in effect from affidavits in support of the same kind of an issue. We have universally ruled that the question can not he presented in this way, hut on the contrary that it is a matter of exception.

The foregoing concludes the substantial points made in this appeal. There being substance in none of them, it follows that the judgment should be affirmed, and it is so ordered.

All concur.