author: GRAVES, J.

text:
    THE STATE ex rel. ARTHUR J. SCHMOHL v. JAMES ELLISON et al.
    In Banc,
    February 9, 1916.
    CONTRACTS: Insurance Policy and Supplement: Construing Together. Where hy.the main policy an insurance company promised to pay ten thosuand dollars to insured’s mother in case of his accidental death “while a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps, or running-board of railway or street railway cars),” and in the concurrent and separately signed supplement, supported by the one stipulated premium and 'attached to said main policy, promised to pay to insured five thousand dollars in case of the death of his mother “while riding as a passenger in a railway passenger car,” the court cannot, in a suit by the insured to recover for the accidental death of his mother, which occurred as she was attempting to pass, in the nighttime, from one car of a fast moving train, across the unvestibuled platforms, to another car, consider the two contracts as one, and so construe them together as to hold that, though the covenants are independent and divisible, the words “while riding as a passenger in a railway passenger car,” standing alone, mean while riding anywhere on the car, but when read in connection with the words contained in the main policy they do not mean while riding on the platform of a passenger car, hut only inside the car; and by so construing the two instruments together, and thereby reaching the conclusion that the insured could not recover, the Court of Appeals violated the rule announced in Trabue v. Insurance Co., 121 Mo. 75, and Owings v. McKenzie, 133 Mo. 325. The subject-matters of the two contracts are distinct, and they cannot be held to be one contract for the purpose of limiting the language of the one by the terms of the other.

      Certiorari.

    Judgment quashed.

      Robert A. Brown and A. Leonard Guitar for relator.
    (1) The opinion and decision of the Kansas City Court of Appeals in construing the language “while riding as a passenger in a railway passenger car” to mean while riding as a passenger on the inside of a passenger car, construed the contract most favorably to the insurance company instead of to the.insured, in direct opposition to and in conflict with the controlling decisions of this court, which hold that all such contracts must be construed most favorably to the insured. Bruner v. Wheaton, 46 Mo, 367; Mathews v. Modern Woodmen, 236 Mo. 342; Shoe Co. v. Casualty Co., 172 Mo. 149. (2) The decision of the Kansas City Court of Appeals, in holding that relator could not recover, and in construing the words “while riding as a passenger in a railway passenger car” to mean while riding as a passenger inside of a passenger car, is in conflict with the decisions of the St. Louis Court 'of Appeals of this State. Styx v. Indemnity Co., 175 Mo. App. 171; Hays v. Benevolent Assn., 127 Mo. App. 195; Bradshaw v. Benevolent Assn., 112 Mo. App. 435. The decision of respondents,' being in conflict with the decisions above cited, establisies different rules of law in different parts of the State and renders this court ‘ ‘ supreme in name only. ’ ’ Section 8 of Amendment of 1884; Section 3, article 6, Constitution of 1875. This court has said that the Constitution means just what it says, and that it is the duty of this court to see that the laws of the State are uniform, and to that end to exercise its authority through the writ of certiorari. State ex rel. y. Broaddus, 238 Mo. 201; .State ex rel. v. Broaddus, 245 Mo. 135. (3) In holding that the supplemental contract of insurance under consideration should be construed in the light of the conditions and provisions of the contract of insurance issued to the relator, .the respondents set aside and held for naught the decisions of this court, which held that before contracts may be read and construed together in order to determine the proper construction to be placed upon the provisions thereof, such contracts should be between the same parties, intended to accomplish the same purpose and executed in the course of the same transaction. Owings v. McKenzie, 133 Mo. 334; Kennedy v. Broderick, 216 Fed. 138; Trabue v. Ins. Co., 121 Mo. 84. (4) The words “while riding as a passenger in a railway passenger car,” used in the insurance supplement, mean “while riding in, on or upon a railway passenger car.” Such words must be given the meaning they ordinarily bear, and if there be any doubt as to the meaning of the language used in an insurance policy every doubt must be resolved in favor of the insured. Andrews v. State, 70 S. E. Ill; Ins. Co. v. Muir, 126 Fed. 926; King v. Ins. Co., 28 S. E. 662; Berliner v. Ins. Co., 53 Pac. 918; Theobold v. Assurance Co., 26 Eng. L. & Eq. 432; Barber v. Ins. Co., 165 111. App. 239; DePue v. Ins. Co., 166 Fed. 183; Ramsey v. Ins. Co., 160 Mo. App. 238.

      O. G. Mosmcm and Vinton Pike for judgment defendant.
    (1) The question before the Court of Appeals was: Was Mrs. Schnxohl “riding as a passenger in a railway passenger car,” while she was attempting to pass from one car to another of a rapidly moving train? The question was not new or unusual. It has been before the courts of New York and the Federal courts of this circuit. In Aetna Insurance Company v. Vandecar, 86 Fed. 282, the terms of the policy were “while riding as a passenger in a passenger conveyance using steam.” Vandecar was on the platform steps when he was hurt. The appeal was heard by Sanborn, Thayer and Riner, JJ. The majority held that Vandecar ?s accident was not within the'terms of the policy. -They did not stick to the letter merely, but gave the terms a reasonable interpretation, as the courts of this State have always done in such cases. The words used ‘ ‘ clearly indicated the intention of the parties,” and that they meant to stipulate for indemnity while the insured was riding in an exceptionally safe place. “One who rides as a passenger in a passenger conveyance using steam, occupies such a place. But one who rides on, but not in, such a conveyance, whether on the platform, or on top of the ear, or on the machinery beneath it, occupies a very dangerous place, ’ ’ and the parties neither agreed nor intended to agree to insure one who rode in such a position. The same question was also before the court in Van Bokkelen v. Travelers Insurance Company, 54 N. Y. S. 307, affirmed by the Court of Appeals, 60 N. E. 1121. There the terms were “while riding as a passenger in any passenger conveyance.” Mrs. Schmohl was insured as a passenger or traveler. The supplement applied “solely and exclusively to passengers or travelers,” and “the position that the company is not liable cannot be controverted. ’ ’ This utterance of this court was in the case of Brown v. R. P. Assnr. Co., 45 Mo. 225, and it is the last and only utterance of this court directly to the point. In Banta v. Casualty Co., 134 Mo. App. 222, the St. Louis Court of Appeals cited the Yandeear and Yan Bokkelen cases with approval. (2) “In” is a word used to express the relation of presence, existence, situation, inclusion, action, etc., within limits, as of place, time, condition, circumstances, etc. In this policy it.expressed the relation of place, and means “within the bounds or limits of; within; as in the house; in the city; to keep a subject in mind.” Cent. Diet. “On,” as used of place or position, with regard to the upper and external part of something. Cent. Diet. “In the whole; in guard, and the like” are archaic, now more commonly expressed by on. Idem. A statute required an officer to post a notice in his office, and he returned that he had posted it at his office. “This is a clear non-compliance with the statute, too apparent and substantial to require further consideration than mere mention.” “Certain it is that these words (in and at) are not synonymous, and may have very different meanings, depending upon their connection.” Hilgers v. Quinney, 51 Wis. 71.' “The definition of ‘in’ by Webster is ‘within;’ ‘inside of;’ and with such meaning the preposition is commonly and generally used.” Verdine v. Olney, 77 Mich. 320. See also New York v. Second Ave. R. Co., 31 Hun, 245. “ ‘In’ signifies the quality of being interior.” Scales v. Mas. Pro. Assn., 70 N. H. 491. “When we think merely of the local or geographical point, we use at; when we think of inclusive space, we employ in.” Stand. Diet. At. (3) Judge Thayer’s dissenting opinion in the Yandeear case very aptly and decisively requires Mrs. Schmohl to have been inside the four walls of the car to be within the protection of the policy supplement. He objected to a literal application of the terms, because to his mind it put too much stress on a single word; and lie would take more latitude in considering the circumstances — a course which in most cases would conduct the court.into difficult complications. But as the facts in this case are clearly-settled and stated, he would have had no difficulty in concluding there could be no recovery. This was his view of what the policy meant. (4) In construing contracts the plain written terms are to be given effect, whatever the result may he. ‘ ‘ The rule that an insurance contract is to be construed most strongly against the insurer is to be resorted to only where the language or some of the terms of the contract, after the use of such helps as are projuer, remain of doubtful import.” Foot v. Ins. Co., 61 N. Y. 571. “The prime rule for the construction of contracts is that the intent of the parties as disclosed by their language be given effect.” Hanna v. Land Co., 126 Mo. 1; Knapp v. Publishers, 127 Mo. 53. “A contract of insurance differs in no respect from other contracts, as to the rules for their interpretation.” Renshaw v. Ins. Co., 103 Mo. 604. Verba fortius accepkmtur contra proferentem is not exclusively a canon of this court. It is as liberally applied in New York and the Federal courts as in this State. 9 Cyc. 590, 501; Matthews v. Ins. Co., 154 N. Y. 449; Rickersori v. Ins. Co., 149 N. Y. 307. The Kansas City Court applies the rule every day. Newman v. Standard Accid. Co., 177 S. W. 803; Still v. Ins. Co., 172 S. W. 625; Ins. Co. v. K. C. El. L. Co., 171 S. W. 580; Matthews v. Modern Woodmen of America, 236 Mo. 326. The words here are clear and unambiguous. So the courts had said in the cases above cited, and so says relator. But relator asked the Court of Appeals to consider them doubtful or indefinite, and then in the language of the St. Louis Court of Appeals, “to seize upon them with violent hands and distort them so as to include a risk clearly excluded by the insurance contract.” Mitchell v. Accident Co., 179 Mo. App. 7. He stipulated that the court should “first construe the terms of the policy and supplement.” “Previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the subject-matter of a contract, and the sense in which the parties may have used particular terms, but not to alter or modify the plain language .which they have used.” Brawley v. U. S., 96 U. -S. 174; Merriam v. U. S., 107 U. S. 443; The Calabria, 24 Fed. 607. It is not necessary that the parties to each instrument be the same, if the instruments are known to all the parties. McDonald v. Wolff, 40 Mo. App. 309.
   GRAVES, J.

Certiorari to the Kansas City Court of Appeals. The case may be stated in small compass. Judge Johnson of the Court of Appeals in an opinion filed, thus states some of the substantial facts:

“This is an action on a policy of accident insurance issued by defendant, June 7, 1912, and in force at the time of the injury and death of the assured. The defense is that the cause of the injury was one for which the policy provided no indemnity. A jury Avas waived, the cause was submitted on agreed facts, judgment was rendered for plaintiff and defendant appealed.
“Defendant, for a premium paid by the plaintiff, Arthur J. Schmohl, and upon his application, issued to him an accident policy in which Iris mother, Anna Schmohl, was named as beneficiary and which, in its ‘Schedule of Indemnities,’ provided for the payment of $10,000 to the beneficiary in the event of his death resulting, from injuries sustained ‘while a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps, or running-board of railway or street railway cars.) ’ Attached to this policy and as part of the obligations assumed by defendant in consideration of the stipulated premium, was a supplementary policy in which Anna Schmohl, the mother, was the assured and plaintiff the beneficiary. The undertaking of defendant in this ‘supplement’ was ‘to insure Anna Schmohl, the mother of the insured under policy No. F. B.-4420, issued to Arthur J. Schmohl against loss resulting from bodily injuries effected directly and independently of all other causes through external, violent and accidental means (suicide, sane or insane not included) while riding as a passenger in a railway passenger car or vessel licensed for the transportation of passengers, provided in either case by a common carrier and propelled by mechanical power.’
“Mrs. Schmohl was accidentally killed in Germany, June 20, 1913, while riding as a passenger on a passenger train, and this suit is for the recovery of the indemnity provided in the supplementary policy.
“Mrs. Schmohl, accompanied by her friend, Frau Pauline Frank, became a passenger on a train running from Esslingen to Nuertingen. The cars were similar in interior arrangement to the ordinary American passenger coach, but the train was not vestibuled and the platform at the ends of the cars were unenclosed. Where two cars were coupled together there was -rather a wide space between the platforms which was spanned by a sheet iron folding bridge slightly arched. A person in going from one car to the next would cross this bridge which was not provided with guards. On the inside of the door of each car a notice was posted which read: ‘Stepping onto the platform and step-board while the car is in motion is forbidden. ’ “Mrs. Frank testified that before boarding the train, Mrs. Schmohl spoke of not feeling well, that she was cold, ‘that everything around her seemed to dance in a circle, and that she had a feeling as if spiders were running up her legs.’ After the train started and while they were seated in a car, Mrs. Sehmohl declared her intention of going to the next car, to see if a mutual friend who was intending to go on that train were there. Mrs. Frank testified, ‘I dissuaded her from doing so, saying that passengers were forbidden to leave the car while the train is in motion and that a penalty is attached to doing so.’ This warning was disregarded, Mrs. Sehmohl replying that ‘she always does it in America,’ left her seat and proceeded to the platform. Mrs. Frank observed her as she disappeared through the door. No one saw her fall from the train and, as stated in the agreed facts, ‘it does not appear and is not known by what means or from what cause deceased fell or was thrown from said platform or steps.’
“It is agreed that ‘after she had passed through the door on to the platform and while on the platform aforesaid, she fell or was thrown from the train to the ground, receiving injuries from which she instantly died.’
“The only reasonable inference that may be drawn from the disclosed facts and circumstances is that the assured accidentally fell or was thrown by the motion of the train while she was endeavoring to pass from one car to another. The burden is upon plaintiff to show that the cause of his mother’s death was accidental and violent. The latter fact being conceded, the existence of the former will be presumed in the absence of proof to the contrary. In showing a violent cause plaintiff made out a prima-facie case of an accidental cause. [Insurance Co. v. McConkey, 127 U. S. 661; Travelers’ Ins. Co. v. Melick, 65 Fed. 178; Paul v. Travelers’ Ins. Co., 112 N. Y. 472; Lovelace v. Travelers’ Protective Assn., 126 Mo. 104; Collins v. Fidelity & Casualty Co., 63 Mo. App. 253; Phelan v. Travelers’ Ins. Co., 38 Mo. App. 640; Young v. Railway Mail Assn., 126 Mo. App. l. c. 335; U. S. Mutual Accident Assn. v. Barry, 131 U. S. 100; Beile v. Protective Assn. of America, 155 Mo. App. 629.]
“It is conceded the accident occurred while Mrs. Schmohl was riding upon a moving train on the open platform or unguarded bridge and, therefore, while she was not in the interior of a passenger ear, and the principal question for our solution is whether or not she was ‘riding as a passenger in a railway passenger car’ within the meaning the supplementary policy was intended by the parties to give to that term.”

Later on in the opinion the learned jurist takes up both provisions in the two policies, and ultimately holds that the words used in the supplemental policy restricts the right of the beneficiary therein, relator herein, to recover only for such accident as might have occurred to relator’s mother whilst actually within the car in- which she was riding. This holding of course defeated relator’s action, for the reason that the accident occurred while on the platform of the car, and' not whilst the deceased was within the car. The ruling, it is averred, is contrary to our rulings, and hence the case is here.

It will be observed from the statement of this case, that there can be but two possible questions. First, whether the Court of Appeals was wrong in holding that the two contracts must be considered as one, and, secondly, if right in this construction, whether or not their views upon the merits of the case is diverse from views previously expressed by this court. Of course, there would also be the question as to whether or not the construction of the language in the supplemental contract was in accord with the views of this court. This case was tried upon an agreed statement of facts which is not set out in the opinion, yet the substance thereof is so set out. The learned judge of the Court of Appeals says:

“The weight of authority supports the view that such expressions in an accident policy as ‘riding in or on a public conveyance’ operated by a common carrier for the transportation of passengers should be construed as extending the liability of the insurer to injuries- received while the insured is upon the platform of a moving train. The term ‘public conveyance, ’ when applied to a passenger train on a steam railway, refers to the train, and not to any particular unit which enters into its composition. A passenger is in or on a public conveyance when he is riding as a passenger inside a car, on the platform of a car, or as in the Berliner case (Berliner v. Ins. Co., 53 Pac. 918), when he is riding on the locomotive by invitation. And we agree with Judge Thayer’s view in the Vandecar case (Aetna L. Ins. Co. v. Vandecar, 86 Fed. 282) that to construe the word ‘in’ used in the phrase ‘in a passenger conveyance’ as meaning only inside a passenger car, is highly technical and, in our opinion, ignores the significance that should be attached to the selection by the insurer of the word ‘conveyance’ which, generally, is understood as referring to the entire train. As he well observes, people in ordinary conversation employ the terms ‘by train,’ ‘on a train’ and ‘in a train’ as synonymous, and it would be just as sensible to say that ‘in a train’ requires the insured to be inside a passenger car as to say that ‘in a passenger conveyance’ was intended to have no other meaning. All rules for the judicial interpretation of language employed in written contracts are merely a means to an end, and the end being to ascertain and enforce the mutual intention of the parties. Such intention is to be gathered from the whole instrument by weighing and giving proper consideration to all pertinent stipulations and expressions. Since the ordinary man who makes contracts is not expert in orthography, words should be given their common everyday meaning and definitive refinements should be ignored.
“With these rules in mind we turn to the policy to gather from all its terms and provisions the expressed mutual intention of the parties with respect to the liability defendant 'assumed for injuries Mrs. Schmohl might receive, while traveling on steam railways. While the covenants in the supplementary policy were independent and divisible, both policies were parts of the same transaction, were supported by a single consideration and were one contract. In substance, defendant agreed to insure plaintiff and his mother for the stated premium and prescribed the terms upon which it would become liable as an insurer for personal injuries to each. To plaintiff it said: ‘If your death results from injuries you received while a passenger in or on a public conveyance provided by a common carrier, including the platforms of railway cars, we will pay your mother $10,000,’ expressly granting to plaintiff, who is a young man, permission to ride on the platform of cars, but as to injuries the mother might receive, the liability defendant assumed-was hedged about by most restrictive language. Not only was no express permission given her to ride upon car platforms while the train was in motion, but the broader term ‘in or on a public conveyance’ employed in the principal policy was narrowed in the supplementary policy to ‘in a railway passenger car.’
“If common sense is to prevail, as it should, in the construction of contracts, can there be any reasonable doubt that defendant clearly provided for immunity from liability except for injuries this comparatively old and inactive woman might sustain while riding inside a passenger car? Circumstances alter cases. As shown, ‘in,’ ‘on’ and ‘by’ may be used as synonyms and so may ‘in’ and ‘inside.’ The context and disclosed contractual purposes must often decide. Plaintiff’s interpretation of ‘in a railway passenger ear’ gives that phrase the same meaning and scope as the phrase employed in the principal policy to define the liability for injuries to plaintiff, with its express permission to him. to. ride on car platforms.- Obviously the parties did not intend the liability of the insurer should be the same in either event, but did endeavor to restrict liability for injuries to Mrs. Schmohl to those she might receive while riding inside a passenger car.
“Thp learned trial judge erred in rendering judgment for plaintiff. The judgment is reversed.”

This portrays clearly the views of the Court of Appeals. They are (1) that the two contracts must be construed together to get the intent of the supplemental contract, and (2) when thus construed together, the meaning of the latter is that no recovery can be had, unless the accident occurred whilst the deceased was “in a passenger car” and not while she was on the platform thereof. "We have, therefore, first, the question, whether under our rulings the Court of Appeals was right in holding that the two contracts must be construed together, and secondly, if they must be so construed, whether or not the construction given violates our holdings. There may also be the further question, whether or not, if the Court of Appeals erred in holding that the two instruments must be construed together the said court was in error, according to our rulings, in giving to the supplemental contract the construction given. The questions we take up in order.

It will be observed that the Court of Appeals says that the supplemental contract was attached to the principal contract. -Copies of the two contracts are in the record. As a matter of fact they are on separate sheets, but this much we can gather from the statement of facts given by the learned judge who wrote the opinion. The two papers refer to different subject-matters, i. e., one to indemnity for the accidental injury of Arthur J. Schmohl, and the other to indemnity for an accidental injury to Anna Schmohl. In the principal policy the obligation to pay is from the insurance company to Anna Schmohl, whilst in the latter the obligation is upon the part of the insurance company to Arthur J. Schmohl. The contracts are separately signed — the main contract by the insurance company and Arthur J. Schmohl; the “Supplement,” as it is headed and styled, is signed by the insurance company and Anna Schmohl. In these regards the two instruments are wholly separate and distinct, creating entirely different obligations and liabilities. The only things in common are (1) that the two instruments were executed at the same time and (2) that a single premium seems to have covered both contracts. What proportion was to carry the one or the other does not appear. The Court of Appeals says: “While the covenants in the supplementary policy were independent and divisible, both policies were parts of the same transaction, were supported by a single consideration and were one contract.” The italics are ours. The court might have added that the covenants were not only independent and divisible, but were very different. The two contracts do not cover the same subject-matter, and as a fact create different and distinct causes of action. They are executed by different parties, and the holding that they constituted one contract for the purpose of limiting the language of the one by the terms of the other was error. Not only was it error, but it was in violation of our rule in Trabue v. Insurance Co., 121 Mo. 75, wherein we held that although the two subject-matters of insurance were in fact covered by one policy or contract, yet we should separate the provisions of the contract, as we found the same applicable to the different subject-matters of insurance. The subject-matter of the two contracts here are as distinct as they were there. The ruling is likewise violative of our rule in 0wings v. McKenzie, 133 Mo. 323, where we discuss the doctrine as to what is necessary to make two instruments executed at the same time, one contract.

The Court of Appeals concede in the opinion before us that, unless they can limit the meaning of the language used in the supplemental contract by the language found in the main contract, then the words used in the supplemental contract' "while riding as a passenger in a railway passenger car” are broad enough to entitle recovery for an accident happening on the platform of such a car. Holding as we do that such court could not call these two instruments one contract for the purpose of limiting the meaning of this. language in the contract sued on in this case, it follows that by their own concession the opinion is wrong. Their holding is predicated solely on the ground that they, could give this language a limited meaning by reading.it in connection with the other contract. Standing alone they say the plaintiff is entitled to recovery, and on that proposition cite and discuss the cases.- If they entrench upon the decisions of this court in holding the two instruments to be one contract, as we hold, it necessarily follows that their judgment should be quashed, and it is so. ordered. Other questions raised become immaterial under the above views.

All concur, except Bond, J., who dissents.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    THE STATE ex rel. FRANK C. O’MALLEY, Administrator of Estate of MARGARET O’MALLEY, v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    February 9, 1916.
    1. MECHANIC’S LIEN: Sufficient Description. A description of materials furnished by a dealer in lumber when made in abbreviations and trade terms known and understood to be in use in the trade, is a compliance with the statutory requirement that “such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien” shall be filed; and a decision of the Court of Appeals so holding is in harmony with Henry v. Plitt, 84 Mo. 1. c. 241.
    2. —:-:-: Evidence of Items: Consolidation. The mere fact that the lien account consolidates in one undated item several charges which show that each was for lumber of the same grade, quality, character and price, and which in the aggregate include the identical quantity of material and the identical amount charged in the consolidated bill, the whole being otherwise lienable matter, is not an objection the owner can urge against the lien claimant, even to the extent of avoiding the consolidated item, there being no proof of bad faith or of resulting injury to any one.
    3. -: -: -: -: As Affecting Whole Account. In no event can the consolidation of a few items of the lien account, the aggregate amounts and charges being equal to the amounts and charges of the consolidated items, invalidate the whole lien account, whatever may be its effect upon the items so consolidated.
    4. -: -: -: Excess in Summation. The fact that the aggregate of the items in the bill of particulars exceeded those of the large lien account by the insignificant sum of $2.46 is of no consequence.
    5. - — : -: -: Dates. The absence of dates in connection with particular items in a lien account is not important, when it appears from the account that the materials were furnished between given dates which fall within the beginning and close of the account.

      Certiorari.

    Writ quashed.

      Frank C. O’Malley for relator.

      Robert W. Hall for respondents.
   BLAIR, J.

Relator was the defendant in the circuit court of the city of St. Louis in a mechanic’s lien suit in which judgment went for him. The plaintiff in that court, The Banner Lumber Company, appealed to the St. Louis Court of Appeals, which reversed the judgment and remanded the cause for new trial; whereupon relator sued out this writ of certiorari, bringing here the record of the Court of Appeals.

In his brief, relator confines the questions be raises to those he asserts arise out of the facts stated in the opinion of the Court of Appeals. Not being asked to go beyond the opinion of that court for the facts, the question whether we can do so is not involved. Relator contends that the Court of Appeals failed to follow designated controlling decisions of this court upon the question as to (1) the sufficiency of the description in the lien paper, or account of plaintiff’s demand, of the materials furnished; and (2) the sufficiency of the evidence offered in support of the lien account. The facts pertinent to each of these contentions, as here presented, will be stated in connection with the discussion of the questions of law raised for decision.

The Court of Appeals, in its opinion, describes the lien statement or “account of the demand,” in so far as it concerns the issue here, as follows: “It” (the lien statement) “sets out that the plaintiff, with a view to avail itself of the benefits of the mechanic’s lien statute, ‘files the account below set forth for the work and labor done and materials furnished by it under contract with J. J. Robson, contractor,’ etc. Then follows the description of the property, with the statement that the account filed is ‘as per itemized bill attached hereto and marked “Exhibit A.”’ Then follows ‘Exhibit A’' which sets ont the account of plaintiff with Robson, the contractor. It is dated April 1, 1908, and is on office stationery of the Banner Lumber Company. The various columns are headed ‘date,’ ‘pieces,’ ‘ sizes,’ ‘length,’ ‘feet,’ ‘prices,’ ‘amount,’ ‘total.’ The account contains a long list of debit items expressed chiefly by abbreviations and trade terms. Among a number of credit items appear cash credits on account of ‘lumber,’ ‘millwork,’ and ‘lath,’ respectively.”

Except as hereafter noted, these are all the facts appearing from the opinion of the Court of Appeals bearing upon the character of the lien statement or account so far as concerns the description of the materials furnished. Upon these facts, after discussing and quoting from numerous decisions, the Court of Appeals held: “It would appear that the lien account here in question sufficiently reveals the material for which the lien is sought to apprise the owner and the public of the nature thereof and to disclose that the demand is one within the lien law.”

Relator insists this conclusion is in conflict with certain decisions, including the following decisions of this court: Mitchell Planing Mill Co. v. Allison, 138 Mo. 50; Grace v. Nesbitt, 109 Mo. 9; Rude v. Mitchell, 97 Mo. l. c. 373.

The principle announced in those cases which relator contends is contravened by the decision of the Court of Appeals in the record before us is that “the account which this law contemplates is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. The account may consist of one or more items. It may be all on one side or mutual in its showing. To be valid, it must disclose on its face that the demand is a sort within the terms of the lien law. When it calls for a just and true account, it means a fairly itemized account showing what the' materials are and the work that was done and the price charged so that it can be seen from the face of the account that the law gives a lien therefor.”

The specific complaint relator makes is that the “lien paper does not show on its face what it is for.” This objection in the circumstances of this case amounts to a complaint that the Court of Appeals’ description of the lien account shows that the account did not describe the materials furnished in the manner required by the statute as construed in the cases cited.

The real objection relator makes to the lien account is that the account does not sufficiently set out the character of the materials furnished; and the sole question this objection presents, when the Court of Appeals’ statement of facts in this connection is analyzed, is whether a description of materials furnished when made in abbreviations and trade terms is a compliance with the statutory requirement that a “just and true account of the demand” shall be filed. [Sec. 8217, R. S. 1909.]

In Henry v. Plitt, 84 Mo. l. c. 241, and Lumber Co. v. Edward B. Stoddard Co., 113 Mo. App. l. c. 314, 315, it was held that the use of abbreviations and trade terms in the description of the items of the account was permissible. In Henry v. Plitt, an item reading “May 8, 1880 — 3, 2, 12, 16, 96. . . . 17% . . . $1.68,” under a heading indicating that the figures related to lumber, was held sufficient, the court saying the figures were “known by business men to mean, when applied to a lumber accjunt, that on the eighth day of May, 1880, there were furnished three pieces of lumber 2x12 inches in thickness and width and sixteen feet long, aggregating ninety-six feet of lumber, which at $17% per thousand, result in. $1.68 for the value thereof. ”,

We have the record in that case before us. The heading of the account which is there said (84 Mo. l. c. 241) to show “that the figures relate to lumber” reads as follows:

“Henry, Barker & Coatsworth.
“Wholesale and Eetail Dealers in Lumber, Lath, Shingles, Doors, Sash, Blinds, Moulding, Lime, Plaster, Hair, Cement, Building Paper and Paints.
“Sold to J. S. Southerland & Co., contractors with Mr. A. M. Plitt, Kansas City, Mo.”

Then follows the account of several pages, a large per cent of the items in which are similar to that set out in the opinion. In that case, as in this, the account was upon a bill head or stationery which first stated the name of the lien claimant and then disclosed the character of its business. In that case there was an express statement that the claimant was in the lumber business. In this, there appears an equivalent disclosure, in that the heading shows that the claimant is a lumber company; that it is a corporation is apparent from its bringing the suit as it did; being a business corporation its name, necessarily, designates its business. [Sec. 3339, R. S. 1909.]

Prom the facts stated by the Court of Appeals it is clear the lien account in this case is well within the rule announced in Henry v. Plitt, supra.

Further, it is stated in the opinion of the Court of Appeals that the purpose of the suit was to enforce a lien for labor and materials ‘ ‘ for the erection of certain buildings. ’ ’ In view of the fact that no point was made upon it, we are at liberty to assume that the lien account contained a statement of that character, describing the buildings.

Prom what has been said, it appears, therefore, that The Banner Lumber Company, a corporation engaged in the lumber business, filed this lien account for the purpose of fixing a lien upon certain described property for materials used in the construction of designated buildings, and that the items of the lien account are for materials which are described in abbreviations and trade terms known and understood by business men as in use in the trade in which plaintiff’s name disclosed it was engaged. The Court of Appeals so held, in effect. That this sort of description of the materials is, in such circumstances, sufficient under the statute (Sec. 8217, R. S. 1909) we have no doubt, and so held in the Plitt case. The lien account contemplated by the law “is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien.” [Mitchell Planing Co. v. Allison, 138 Mo. l. c. 56.] These liens “ should not be defeated on mere technical grounds.” [Rude v. Mitchell, 97 Mo. l. c. 374.] The statute is remedial “and should he construed with reasonable liberality.” What is requisite is a “substantial compliance with all the requirements of the statute, according to its reasonable intent.” [Grace v. Nesbitt, 109 Mo. l. c. 17.] These decisions are those which relator insists are opposed to the decision of the Court of Appeals upon the question before us. We discover nothing in them contrary to the conclusion reached by the court in Henry v. Plitt, supra, and think that case exactly in point, correct in principle and decisive'of the question. There is ample authority outside this jurisdiction supporting the same proposition. Other decisions of the courts of appeals approach the same ruling closely. The case of Dwyer Brick Works v. Flanagan Bros., 87 Mo. App. 340, need not be critically examined since it is apparent it is distinguishable from this case.

Relator’s second contention is, in substance, that there is no substantial evidence tending to support the lien account. This insistence is grounded upon the following facts. In the circuit court, plaintiff attached to the petition an account marked “Exhibit A,” and referred to in the petition as “a bill of particulars.” The Court of Appeals finds this exhibit differed in some respects from the lien account. In the first place, it contained items of the value of $2.46 in addition to those appearing in .the lien account. Also, it contained more items than the lien account; this resulting from the subdivision in the exhibit of some of the items of the lien account. Illustrating this, the Court of Appeals says the ninth item in the lien account was undated and for 7790 feet of star yellow pine flooring. In the exhibit this item was “subdivided into six items, which are scattered through the latter account,” and the resulting items are given dates. There were several instances of this sort, though it is fairly inferable that relatively a small number of items were affected. The evidence taken before the first referee was directed to the proof of the various items as set out in the exhibit attached to the petition. The referee’s report being set aside, the petition was amended so as to conform it exactly to the lien account. The cause was then referred to a second referee and submitted to him upon the evidence taken before the first referee. Relator contends there was, consequently, a total failure of proof, since, he says, plaintiff “by proving one account necessarily disproved the truth and justice of his own lien paper.” The Court of Appeals decided against him on this question, and he urges this holding conflicts with the decision in Coe v. Ritter, 86 Mo. l. c. 287. In that case plaintiff brought ejectment, claiming under a deed of trust recorded August 9, 1873. Defendant’s title depended upon a sale under a judgment in a mechanic’s lien suit in which the claimant had judgment on September 21, 1874, upon a lien account, the first item in which was charged as of September 2,1873, over three weeks after the trust deed was recorded. Neither the trustee nor the beneficiary in the trust deed was a party to the proceeding. On the trial, defendant offered to show, contrary to the dates of the lien account, that the materials, upon the furnishing of which the lien depended, were actually furnished, in part, prior to the recording of the trust deed under which plaintiff claimed. Upon those facts, this court held, in substance, that the tenure of those interested in land ought not to be made to depend upon extrinsic evidence coming from the mere memory of (perhaps) interested witnesses, as against a permanent record designed to set out the facts. And the court concluded that, “a lienor must stand or fall by the lien which he files, and the date's and items which he specifies, and is not at liberty to defeat or postpone a prior lienor or incumbrancer by matter in pais.” Relator here relies upon this last quoted sentence..

What the court said in that case is to be understood and applied in the light of the facts before it. That case is wholly unlike this, and that holding has no sort of bearing upon the question relator raises in this. There is no question here as to priorities between liens and incumbrances. This is simply a suit by the lien claimant. Relator endeavors to lift out of the opinion in Coe v. Ritter a statement applicable to the facts of that case and apply it broadly to a case in which the facts are wholly different. His contention, in the last analysis, is based upon the assumption that the exhibit attached to the original petition materially differs in its substance from the lien account. The fact that the aggregate of the items in the bill of particulars exceeded those of the lien account by the insignificant sum of $2.46 is of no consequence. Relator is in no position to complain that the lien account did not contain all the items for which a lien might have been maintained. There is no suggestion of bad faith, and bad faith could not easily be predicated upon an .omission to include in the lien account items for which a lien might have been had but was not asked.

So far as concerns the items in the exhibit which seem to be consolidated in the lien account, if appears from the statement of the Court of Appeals that the aggregate amounts and charges are equal to the amounts and charges of the consolidated items in the lien account. In no- event could the consolidation of a few items in this manner invalidate the whole lien account, whatever its effect upon the items so consolidated. [Walden v. Robertson, 120 Mo. l. c. 44, 45; Allen & Co. v. Mining & Smelting Co., 73 Mo. l. c. 693.] Further, the absence of dates in connection with particular items in a lien account is not important when, as here, it appears from the account that the materials were furnished between given dates which fall within the beginning and close of the account. [Ittner v. Hughes, 133 Mo. l. c. 691.] We are also of the opinion that the mere fact that the lien account, in the manner shown here, consolidates in one undated item several charges which show .that each was for lumber of the same grade, quality, character and price and which, in the aggregate, include the identical quantity of material and the identical amount charged in the consolidated item, the whole being otherwise lienable matter, is not an objection the owner can urge as against the lien claimant even to the extent of avoiding the consolidated item, there being no proof of fraud or bad faith or suggestion of resulting injury to any one.

“These betterment statutes are remedial.in their character,- and, when reasonable and not oppressive, are to be liberally construed. ... A fair and substantial compliance with the statute is all that is required. ’ ’ [Walden v. Robertson, 120 Mo. l. c. 43; Mc-Dermott v. Claas, 104 Mo. l. c. 23.]

Because of the errors it pointed out, the Court of Appeals properly reversed the judgment, and because the evidence fell short of proving a few of the items of the lien account, as the Court of Appeals held, it was necessary to remand the cause. Delator’s argument that the remandment without a direction of judgment for respondent conclusively shows that the Court of Appeals found the evidence insufficient to support any judgment for plaintiff in the lien suit does not impress us. Our writ is quashed.

All concur, Bond, J., in result only.


author: GRAVES, J. WALKER, J.

text:
    THE STATE ex rel. FLAVEL B. TIFFANY et al. v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    February 9, 1916.
    1. CERTIORARI: Quashing Judgment of Court of Appeals. The Supreme Court has constitutional authority to quash the judgment of a court of appeals in any case wherein its judgment has been the result of its refusal to follow the last previous ruling of the Supreme Court upon any matter of law or equity involved in the case.
    2. -: -: Statement of Facts. Upon certiorari directed to a court of appeals, the Supreme Court can confine itself to the facts found by that court; this, upon the presumption that, where that court has undertaken to state the facts, it has stated all the facts of record upon the question in issue.
    3. EVIDENCE: Admission: Undenied Statement of Another. A defendant cannot be charged with an undenied damaging voluntary statement made by a party out of his presence, when to deny it would require him to shout his denial up a stairway to a woman in the employ of his co-defendant.

      Held, by WALKER, J., dissenting, that visual and immediate physical presence is not necessary to authorize the application of the rule which renders testimony in regard to a damaging statement competent, and construes silence, under a proper condition, to be an admission of the truth of such statement; hearing and understanding, and not mere proximity, are the tests of the admissibility of such testimony.
    . 4. -: -: -: Silence; Impertinence: Personal Security.* A failure by a defendant to reply to a damaging statement cannot be held to be an admission of its truth and is not admissible in evidence: first, if made under such circumstances as affords him no opportunity to reply, for instance, if the denial must he shouted up a stairway; second, if it is a voluntary statement made by the office girl or other mere employee of a co-defendant, who may have adverse interests, and therefore not demanding a denial; third, if voluntarily made by a stranger (that is, a person not a party to the action) and, therefore, an impertinence; and, fourth, if made under such circumstances that the defendant, as a matter of personal security, has a right to ignore it.

      Held, by WALKER, J., dissenting, that, where two physicians had offices on different floors of the same building and the one below had treated the patient of the other, and when, the officer came to serve the summons on them in the ac- “ tion for civil damages by the patient, the one below called up the stairs to the office girl of the other, to know if she had a record in the case, and she replied that she had and that the patient was the school teacher into whose eye he had dropped iodine and put it out, the answer was not a voluntary statement, nor an impertinence, but made by one whose authority to give it was recognized by the physician, and should have been admitted as evidence of • his acquiescence therein.
    5. -: -: Probative Force. A failure to deny or to reply to a voluntary statement made by a stranger to the action to a defendant, is the weakest of all evidence in probative force, and is not admissible as an admission of its truth except when made under such circumstances as point clearly to the necessity for a reply.

      Certiorari.

    Record quashed.

      Fred A. Boxley, Denton Dunn and Scarritt, Scarritt, Jones ■& Miller for relators.
    (1) The legal relation of Dr. Howard to plaintiff, as well as to Dr. Tiffany, upon this record was that of an independent contractor and therefore, the demurrer of Dr. Tiffany should have been sustained on that ground. Plaintiff’s evidence shows Dr. Tiffany never treated her nor was he present at such treatments. Hillsdorf v. St. Louis, 45 Mo. 95; Myers v. Holborn, 58 N. J. 193; Keller v. Lewis, 65 Ark. 578; Pearl v. Railroad, 176 Mass. 177; Hagarty v. Railroad, 100 Mo. App. 424. (2) The ruling of the Court of Appeals justifying the admission of the testimony of the deputy sheriff as to' Dr. Howard’s momentary silence, his lack of an instantaneous and smart repartee, to the remark of a young girl upstairs, and giving to it the probative effect of an admission on the part of Dr. Howard that he put iodine in plaintiff’s eye and thereby put it out, is grievous error and runs counter to the decisions of this court. State v. Hamilton, 55 Mo. 520; Phillips v. Towler, 23 Mo. 401; State v. Young, 99 Mo. 666; Bank v. Nichols, 43 Mo. App. 385; Adams v. Railroad, 74 Mo. 553; Wojtylak v. Coal Co., 188 Mo. 260; Greenleaf on Evidence (16 Ed.), sec. 198; Larry v. Sherburne, 2 Allen (Mass.), 34; Whitney v. Holton, 127 Mass. 527; Carter v. Buchannon, 3 Ga. 513; Newman v. Commonwealth, 28 Ky. L. Rep. 81.

      W. M. Williams, Atwood & Hill and Park <& Brown for respondents.
    (1) We are confronted with a proposition which the Court of Appeals was not called upon to decide, and as to which there is no ground of conflict between the decisions of the Court of Appeals and this court. In the brief filed in the Court of Appeals the point was not raised that Dr. Howard was an independent contractor or that Dr. Tiffany was not plaintiff’s physician. We will allow the defendants to answer this question themselves. Dr. Tiffany told plaintiff that plaintiff was in fact his patient. Dr. Howard testified that he assisted Dr. Tiffany when the latter was in the city and attended to' his practice when he was ont of the city. At the time of these occurrences in February, 1909, he says he was employed upon a salary by Dr. Tiffany and acted for him in his stead during his absence. Dr. Tiffany says: “My assistant, Dr. Howard, and the office girl gave me a little history of the case.” The Court of Appeals finds that Dr. Howard was merely the agent of Dr. Tiffany, and this is strictly in accord with Logan v. Weltmer, 180 Mo. 332, where it is held that a physician is liable for the negligence of his salaried assistant. (2) The testimony of deputy sheriff Wofford was admissible. There is no conflict whatever between the ruling of the Court of Appeals and either of the cases cited by defendant. The Court of Appeals could not have ruled otherwise in view of rulings in similar cases, viz., State v. Lovell, 235 Mo. 353; State v. Burk, 234 Mo. 578; State v. Walker, 78 Mo. 388; Nelson v. Nelson, 90 Mo. 463. This court has never in similar circumstances excluded the implied admission, but has always held that where a declaration affecting a party’s interest has been made to such party by one immediately concerned upon a matter of which the party has personal knowledge the party’s silence is an acquiescence implying an admission of the truth of the declaration. It is no objection that the admission may be in the form of a conclusion of fact. Sparr v. Wellman, 11 Mo. 230; Brookfield v. Drury College, 139 Mo. App. 339. Where a party is charged with a wrong, under circumstances which would naturally require an innocent man to speak, his silence is taken as an implied admission. There are no decisions of this court distinctly on the point, but we call attention to the following decisions of courts of high authority: Cross Lake Logging Co. v. Joyce, 83 Fed. 991; Given v. Railroad, 24 Ky. L. R. 1796; Sumner v. Gardiner, 184 Mass. 433; Va. Chem. Co. v. Kirven, 130 N. C. 161; In re Snowball's Estate, 157 Cal. 310. Implied admissions in the nature of conclusions were received in Puett v. Beard, 86 Ind. 107; Oliver v. Railroad, 43 La. Ann. 804; ITolston v. Railroad, 116 Ga. 658; Smith v. Duncan, 181 Mass. 435. The declaration of Rose McAllen was made in the ordinary course of her business and duty to defendant Tiffany and was receivable against him. Miss McAllen, the declarant, was in charge of the office of defendants. ■ She was the medium of communication between plaintiff and Dr. Tiffany. She received the plaintiff, introduced her to Dr. Howard, made the notations in the book, and kept the records of the office. In other words, she was the recording officer of defendants’ business. Defendant Tiffany, the owner of the business and the prospective recipient of a healthy fee, was not personally attending to his practice but was off on a pleasure trip, leaving Dr. Howard to attend to the professional work, and Miss' McAllen to keep the records and attend to the business. On Dr. Tiffany’s return and the consultation which occurred February 16, 1909, it was Miss McAllen’s record which was examined. After a prima-facie agency has been shown, declarations of the agent made in the prosecution of the agency are admissible against the principal. Peck v. Ritchey, 66 Mo. 114.; Northrup v. Insurance Co., 47 Mo. 435; Phillips v. Railroad, 211 Mo. 419; Hilbert v. Railroad, 20 Idaho, 54; Railway Co. v. Rhodes, 121 Pac. 769; Anvil Mfg. Co. v.-Humble, 153 U. S. 540; Hall v. Herter Bros., 90 Hun, 280, 35 N. T. Supp. 769; Express Co. v. Plarris, 120 Ind. 73; Transportation Co. v. Leyson, 89 111. 43; McGowan v. Supreme Court, 104 Wis. 173, 185.
   GRAVES, J.

Original

action in certiorari, the purpose of which is to have quashed and for naught held, the judgment of the Kansas City Conrt of Appeals, affirming a judgment of the circuit court of Jackson county in the case of Mary Coffey v. Flavel B. Tiffany and Joseph W. Howard. In the circuit court the judgment was originally for $10,000, but for some reason not made clear by the record, the plaintiff voluntarily remitted principal and interest so as to make the judgment after remittitur just $7500. The appeal thereupon went to the Kansas City Court of Appeals. This is one of a series of cases in certiorari pending in this court about the time the case of State ex rel. v. Robertson, 264 Mo. 661, was set for hearing. As a result, in the Robertson case, supra, we were accommodated with a wealth of briefs in an insignificant case, and among these were briefs and arguments from counsel in the case at bar. These of course went largely to the question of the jurisdiction of this court. We state this because we have in this case extended briefs upon the same question. The Court of Appeals affirmed the judgment of the circuit court, and in so doing it is charged that such court has ignored the last rulings of this court upon several questions therein involved. These questions we can take, so far as necessary, in proper order. The facts pertinent to each question had best be stated therewith.

Since the case of State ex rel. v. Broaddus, 238 Mo. 189, it has been the custom of counsel to attack that ruling at each change in the membership of this court. The briefs upon the question of jurisdiction in the case at bar were prepared at a ,. . . . . , time when a very vigorous attack was being made upon the right of this court to quash the record of the Court of Appeals in a case wherein their pronouncement upon a given question of equity or law was at variance with the last previous rulings of this court. This virulent attack was the occasion of bringing into prominence the very small matter in issue in case of State ex rel. v. Robertson, 264 Mo. 671. In that case the question of the right of this court to thus superintend the several courts of appeals, was fully, and we trust finally, settled. With the ruling in the Robertson case, supra, we are satisfied, and this question as argued in the briefs and oral arguments in the case at bar is ruled against the respondents. We hold, as we did, in the Robertson case, supra, that this court has the constitutional authority to quash the judgment of the Court of Appeals in any case wherein such judgment has been the result of a refusal by such Court of Appeals to follow the last previous ruling of this court upon any matter of law or equity involved in such case. The members of this court may differ and be divided upon what we will consider in determining whether or not the Court of Appeals has failed to follow our last previous rulings, but we are firmly fixed upon the question of our constitutional authority to act, and in the interest of harmony and unanimity of opinions in this State, it would be almost criminal negligence for this court to decline to use the authority expressly given, and perform the duty thus imposed. We can add nothing upon this question to what was said in the Robertson case, supra, and pass the question with a re-affirmance of the doctrine announced in that case.

In the disposition of this case, as I see the law, it will not be necessary to tread upon any disputed grounds. In other words, we can confine ourselves to the facts found by the Court of Appeals in its opinion. By this we mean .that where the court has undertaken to state the facts, we can presume that it has stated all the facts of record upon the question in issue. This we can do because the court is presumed to have done its full duty. It may be a violent presumption (in fact), and a glance at the record in this case has convinced us of the violence of the presumption in the particular case, as we shall point out later. However, within well defined legal rules, we are justified in saying that the presumption is that the Court of Appeals has fully stated the facts upon the question involved.

During the course of the trial, the process server, who served the summons upon Dr. Howard, was permitted to testify to facts which thS trial court considered tantamount to an admission of negfigence by Dr. Howard. This evidence wag objected to by both defendants. It was excluded as to Dr. Tiffany and admitted as against Dr. Howard. The opinion thus describes the facts: “She brought this suit August 18, 1909, six months after the injury. The summons was served by a deputy sheriff who was introduced as a witness by plaintiff, and testified to what occurred at defendant’s office when Dr. Howard was served. Dr. Tiffany was not in and after the papers were served on Dr. Howard, he and the witness went down stairs (the offices were on two floors), when Dr. Howard called upstairs to the clerk who had received plaintiff, and asked if she ‘had a record of the Mary Coffey case.’ The clerk answered that she had and that plaintiff ‘was the school teacher that he dropped iodine in her eye and put it out.’ Dr. Howard, who was standing by the side of witness, said nothing. Each defendant objected to this testimony and the court sustained the objection of Dr. Tiffany, but overruled that of Dr. Howard. ’ ’

Prom the fact that this finding of facts does not say that the young woman spoken to was in the view and presence of Dr. Howard, and the process server, Mr. "Wofford, we are justified in the conclusion that she was not in the actual presence of either, at the time. We said that the actual records in a case might make it appear to be a violent presumption to say that we would presume that the Court of Appeals had stated all the facts. As demonstrating that matter, and for no other purpose, we quote from the actual evidence ’of the process server:

“Q. You went up there to serve the writ at Dr. Tiffany’s office? A. Yes, sir.
“Q. Who did you see there? A. Dr. Howard, at the first. Dr. Tiffany was not there.
“Q. Dr. Tiffany was not there the first time? A. No.
“Q. What did you say to Dr. Howard, or what did you give him, if anything? A. I served the petition, and the writ attached.
“Q. Who else was there? A. Some young woman^ acting as an office girl, or typewriter, or something, or bookkeeper.
“Q. Do you know her name? A. I heard Dr. Howard call it. It seems to me, ‘Rose,’ ‘Miss Rose,’ referred to her as ‘ Miss Rose. ’
‘‘Q. Miss Rose McAllen? A. I don’t believe I heard him say ‘Miss McAllen,’ but ‘Miss Rose.’
‘‘Q. Did you give Dr. Howard a copy of this summons and the petition? A. I did.
Q. What, if anything, did he say when you gave it to him?
‘‘Mr. Scarritt: We object on behalf of Dr. Tiffany, as secondary evidence, as hearsay, and not as tending to sustain any of the issues raised by the pleadings, and irrelevant and immaterial.
‘‘The Court: The objection, so far as Dr. Tiffany is concerned, will be sustained.
‘‘To which ruling of the court the plaintiff at the time excepted and still excepts.
‘‘Mr. Scarritt: We make the same objection on behalf of the defendant, Dr. Howard.
‘‘The Court: Objection overruled.
“To which ruling of the court the defendant at the time excepted and still excepts.
“A. He didn’t say anything to me.
“Q. Did he say anything to anybody else? A. Not at that time. After we started to go downstairs he, the doctor, either called the young lady or spoke—
“Mr. Scarritt (interrupting): Same objection to this conversation that is now in process of being made on behalf of Dr. Tiffany, that we made before.
“The Court: The same ruling as before.
“To which ruling of the court the plaintiff at the time excepted and still excepts.
“Mr. Scarritt: We make the same objection on behalf of the defendant, Dr. Howard.
“The Court: Same ruling as before as to Dr. Howard.
“To which action and ruling of the court the defendant at the time excepted and still excepts.
“A. (Continuing) After we started downstairs, he either called to her up the stairway or through a speaking tube, and asked her if she had any record of the Mary Coffey case, and — shall I go ahead?
“Q. What did she say to him?
“Mr. Scarritt: We object on behalf of the defendant, Dr. Tiffany, as being secondary evidence, and a declaration not made by the defendants or either of them, or by anyone having any personal knowledge of the transaction referred to; it calls for a statement that was impertinent, under the circumstances, and it deserves no notice — that is on behalf of Dr. Tiffany.
“The Court: It may be understood you will renew your objections to all of this testimony, and that I will make the same ruling, without you doing so.
“Mr. Scarritt: This is a fuller objection, it is calling for a different conversation than the former question — that is the reason we make the objection now. It is calling for a statement, as I understand it, through a speaking tube.
“ (Question read.)
“The Court: Where was Dr. Howard?
“The Witness: Standing on the steps.
“The Court: Did you see him?
“The Witness: Yes, I was right alongside of him.
“The Court: Did you hear her answer?
“The Witness: Yes.
“The Court: Objection overruled.
“To which ruling of the court the defendants at the time excepted and still except.
“A. He asked her if she had a record of the Mary Coffey case. She said she had; that that was the school teacher that he dropped iodine in her eye and put it out. ’ ’

It will be noted that the process server was not definite whether the alleged conversation was held by talking to the girl up the stairway or through a speaking tube. The “speaking tube” portion of the facts is omitted by the Court of Appeals and in a close case might be of much importance, but with the view that we have of the disclosed facts in the opinion, it is not so material in the instant case. We have already said we can presume that the court found all the facts in its opinion, and from that finding, as it does not specifically appear that the girl was in the actual presence of Dr. Howard and the process server, we will take it as a fact that she was not. The facts found show the girl "to have been in the office, and they do not show her to have changed positions after the service of process and this alleged conversation. By the facts found, the girl being in the office and the alleged conversation being on the stairway, the girl could not well have been in the actual presence of either Dr. Howard or the process server. Of course, the actual testimony of the witness makes this point clearer. This testimony, however, we have cited for illustration rather than use.

We start then with the proposition that it does not appear from the facts found in the opinion that the girl, who made the statement sought to be fastened upon Dr. Howard, as an admission, was in the actual presence of either Dr. Howard or the process server, Wofford, at the time. This is material in measuring the duty of Dr. Howard as to a denial of this voluntary statement of the girl. The" question asked by Dr. Howard did not call for such an answer, and hence we say that the statement charged to the girl (and denied by her) was purely voluntary, and in no way called for by the question. Dr. Howard only asked if the girl in Tiffany’s office had a record of the .case. It should be borne in mind that Dr. Howard was only treating this patient for Dr. Tiffany, in his absence. In other words, that she was Dr. Tiffany’s patient and the history of the case had been preserved by Dr. Tiffany’s office girl. In other portions of the opinion it appears that this office girl arranged with plaintiff for Dr. Tiffany, as Dr. Tiffany’s patient. Vide plaintiff’s statement of the arrangement made over the telephone as found in the opinion.

Under these facts the questions are (1) was there error in the admission of this testimony as tending to show that Dr. Howard admitted his negligence, and (2) was such ruling violative of previously pronounced doctrines of this court upon like or similar questions ? We have no hesitancy in saying that the admission of this evidence was error, nor have we any doubt that its admission contravenes the announced law of this court, as well as other courts. Under the facts and-rules of law, Dr. Howard was undér no obligations to engage (at long range and with a party out of his sight and presence) in a dispute with the girl over a voluntary statement of hers, and one wholly irresponsive to the question asked. She was not asked what the record would show but merely if she had kept a record. The Court of Appeals gets mixed upon the matter. They quote from the evidence and say that Dr. Howard asked the girl if she “had a record of the Mary Coffey case.” This is the question that the Court of Appeals says he asked and this is borne out by the actual record. ' In undertaking to reason out a duty upon the part of Dr. Howard to deny this voluntary statement of the girl, that learned court later on says: “The question asked by Dr. Howard called for information kept by her in the course of her employment for the benefit and future use of her employers, and her answer was in direct response' to that question.”

Here the argument of the court misstates the facts it had previously found, and upon this misstatement of the facts the competency of this evidence is made to turn. Howard at no time asked for the contents of the record and his question in no way called for any such reply.

We do not deny the rule that under given circumstances an admission may be implied from silence, but what we do say is that no court has gone so far as to hold that a man must deny a mere voluntary statement made by a party out of his presence, when to deny it would require him to hurl his denial to a woman out of his presence and in the employ of a co-defendant. And further when he would be required to hurl his denial up a stairway. In State v. Hamilton, 55 Mo. l. c. 522, it is said: “It is not in all instances, where declarations are made in the presence and hearing of a person, that those declarations can be given in evidence against him; they frequently call for no reply and sometimes they are impertinent and deserve no notice.”

In State v. Young, 99 Mo. l. c. 674, one Craft said to Wilson, the marshal having Young, the defendant, in custody, in the presence of Young, “You have got your right man; you don’t have to go any farther to get him.” The evidence was held incompetent, and among other things the court said: “The defendant had the right, therefore, to treat the remark of C-raft as a mere impertinence and best answered by silence.” So in the case at bar. The girl was not in the presence of Howard, .and he was in no position to enter into any controversy with her. Her remark was a mere voluntary one, not called for by the question asked, and above all was made by the employee of his co-defendant. It amounted to a charge of criminal negligence, it is true, but because Dr. Howard, situated as he was, chose to treat such a charge, coming from that particular source, with silent contempt, should not permit such remarks to go in as evidence of an admission of guilt.

In State v. Young, supra, this court has cited with approval the case of Commonwealth v. Kenney, 12 Metc. (Mass.) 235. In that case Chief Justice Shaw, with his usual analytical mind, thus states the rule: “If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes a reply, wholly or partially admitting their truth, then the declaration and the reply are both admissible; the reply, because it is the act of the party, who will not be presumed to admit anything affecting his own interest, or his own rights, unless compelled to do it by the force of truth; and the declaration, because it may give meaning and effect to the reply. In some cases, where a similar declaration is made in one’s hearing, and he makes no reply, it may be a tacit admission of the facts. But this depends on two facts: First, whether he hears and understands the statement, and comprehends its bearing; and, secondly, whether the truth of the facts embraced in the statement is within his own knowledge, or not; whether he is in such a situation that he is at liberty to make any reply; and whether the statement is made under any circumstances, and by such persons, as naturally to call for a reply, if he did not intend to admit it. If made in the course of any judicial hearing, he could not interfere and deny the statement; it would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law. So, if the matter is of something not within his knowledge; if the statement is made by a stranger, whom he is not called on to notice; or if he is restrained by fear, by doubts of his rights, by a belief that his security will be best promoted by silence; then no inference of assent can be .drawn from that silence.”

This approved rule by this court contains several ideas of importance here. It shows that a person is not always called upon to speak. First, if the party making, the statement is a stranger, he is not called upon to reply. The word stranger as here used has reference to a party other than a party to the suit or controversy. There is also the further idea that the party need not act if he thinks his security will be best subserved by silence. In other words, the question of whether a person is called upon to make a reply is wholly dependent upon the circumstances, and we reiterate that neither this court, nor any other court, has ever held that it was required of a person charged with an act to answer a voluntary statement of the employee of a co-defendant, when such employee was not even in the presence of the party, and when to reply he would have to hurl his reply up a stairway to a woman in the office of a co-defendant, whose interest might be diverse to him.

In State v. Glahn, 97 Mo. l. c. 694, it is said: ‘■‘The statement of the witness Lon Wheeler that he thought the man could be found in the field who committed the murder, should be excluded. It is true this statement was made in the presence of defendant, but it was not such a statement as called for action or reply on the part of defendant. Silence did not therefore amount to an admission. [1 Greenl. Ev., sec. 197.]” We cite this because it approves the rule stated in an older volume of Greenleaf on Evidence. It approves that rule, and makes it the rule of this court.

Section 197 of volume 1 (14 Edition) of Greenleaf on Evidence, so far as material, reads: “Silence cmd acquiescence. Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in. the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from this passiveness or silence, (b) The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but also as would properly and naturally call for some action or reply, from men similarly situated.”

This rule emphasizes the matter of the circumstances of the alleged statement. This is one of the crucial questions in this case — were there circumstances such as to call for a reply? We have outlined and the Court of Appeals have outlined them. The Court of Appeals wholly disregarded this rule as to the surrounding circumstances, when they held that Dr. Howard had to herald up a stairway a reply to a voluntary statement made by the employee of a co-defendant, and especially the rule which allows such a person to consider his own personal security in refusing to make a reply.

In one of plaintiff’s briefs in the case, it is stated that Dr. Howard stated in evidence that he used dionin in. plaintiff’s eye, and that dionin would produce congestion. If the girl did answer down the stairway, it may have been that Dr. Howard understood her to say dionin and not iodine, as the process server claims to have understood it. We mention this only as a circumstance in the case, which circumstances should be considered with others before a court should permit such evidence to stand as tending to show an admission of negligence. The opinion shows that the very record book of which Dr. Howard made inquiry was put in evidence, and that it corroborated Dr. Howard as to the drugs used.

Our learned brothers of the Court of Appeals failed to follow the rule approved by this court in the cases, supra, when they said that this evidence was competent under the circumstances and facts which they have set out in the opinion.

In the very early case of Phillips v. Towler’s Administrators, 23 Mo. l. c. 403, we recognized the extreme danger in admitting such testimony as was admitted in this case. In that case we said: “The court erred also in allowing the remarks of Robert Towler, made in the presence of the intestate, to go to the jury. They were to the fact that ‘the girl had burned plaintiff’s stable, and confessed it.’ The intestate, it seems, made no reply, and this was received as an admission of the fact on his part, impliéd from his supposed acquiescence in what was thus said in his hearing. In regard to these admissions inferred from acquiescence in the verbal statements of others, on the maxim, ‘Qui tacet consentiré videtur,’ it has been most justly remarked, that nothing can be more dangerous than this kind of evidence, and that it ought always to be received with caution, and never admitted at all unless the statements be of that kind that naturally call for contradiction — some assertion made to the party with respect to his rights, which by his silence he acquiesces in. [Moore v. Smith, 14 S. & R. 392.] A distinction is taken between declarations made by a party interested and a stranger, cmd it has been determined, that, while what one party declares to the other, without contradiction, is admissible evidence, what is said by a third'person may not be so (Child v. Grace, 2 Car. & Payne, 193); and we are also told that the silence of the party, even when the declarations are addressed to himself, is worth very little as evidence, when the party has no means of knowing the truth or falsehood of the statement. [Hayslep v. Gymer, 1 Ad. & El. 162-5.] The allowance of the proof here was palpably wrong.”

We have underlined one clause peculiarly applicable. The courts draw the distinction, under the circumstances of the case, as between statements made by parties interested and strangers. If John Jones had a claim against me and in a statement openly said I owed him for certain reasons, and I declined to make any reply, that is one case. But if some third person, having no connection whatever with John Jones, said to me, You owe John Jones for certain reasons, that is another case. Between the two the books generally, and the cases in this State, draw a distinction. It is an impertinence for one not interested to tell me that I am liable to John Jones. Such impertinences require under our rules, no answer. It is likewise just as much of an impertinence for a stranger to the- controversy to say to me, You owe John Jones by reason of your negligence. There can be no distinction drawn between the two supposed cases. All considered, there' are not less than two and perhaps three expressed rulings of this court set at naught by the ruling-of the Court of Appeals in this case. These we have tried to outline, supra, thus: (1) the physical situation of the parties did not demand a denial; (2) the relationship of the girl to the co-defendant, who might have adverse interests, did not demand a denial; (3) the statement, if made (a matter we seriously doubt) was one not called for by the question, and was therefore purely voluntary, and in the highest degree an impertinence; and (4) Dr. Howard, even if in a physical situation, where a protest might seem to be expected, still had the right to consider his own interests in the controversy and for that reason alone decline to reply. All these doctrines are recognized by this court, and all are ignored by the ruling of the Court of Appeals in this case.

Thus, in the very recent and most excellent work, 1 R. C. L. p. 478, it is said: “Intimately connected with admissions that are implied by -the acts or conduct of the party are admissions by silence.or acquiescence. If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes no reply, it may be a tacit admission of the facts stated; depending upon whether he hears and understands the statement, and comprehends its bearing, whether the truth of the facts embraced in the statement is within his own knowledge, whether the circumstances are such as to afford hum am opportunity to act and speak freely, and whether the statement is made under such circumstances and by such persons as naturally to call for a reply if he did not intend to admit it. So, if the matter is- of something not within his knowledge, or if the statement is made by a stranger whom- he is not called on to notice, or if he is restrained by fear, by doubts of his rights, or by the belief that his security will be best promoted by his silence, then no inference of assent can be drawn from silence.”

Bear in mind that “a stranger” as used in all these rules means one not a party to the suit or controversy. Bear in mind that the circumstances surrounding the parties are material. Bear in mind that he can refuse to reply because he may deem his security to be best subserved by silence. In either of such instances no inference of assent, can be drawn from a failure to reply. The case at bar is stronger. The physical situation of the girl and Dr. Howard was not such as to call for a reply. The voluntary statement' would justify- silence upon the ground of self-security. The relationship of the girl to a co-defendant with apparent adverse interests would prompt silence. These doctrines of law are recognized by the rulings of this court, as we have pointed out. They were ignored by our learned brothers of the bench. It requires no “grey mule” case. It is only necessary for us to find that the general doctrines of law or equity as announced by this court upon similar questions have been contravened.

In fact, und-er the weight of general authority evidence of this character is considered to be so weak in probative force that it is rarely ever admitted, The circumstances must point very clearly to the necessity for reply, before it can be admitted at all. The books look upon it (admission by his silence) as the weakest of all evidence in probative force, but yet as most dangerous to a defendant in the trial. That the verdict in this case could not have been obtained without this prejudicial evidence, I have little doubt. That the unlettered.(scientifically speaking) process server misunderstood iodine for dionin, I have little doubt, if the talk took place at all. All the circumstances of the case point that way. However these last few lines are beside the question, and only serve to show that even strict legal rules may at least sometimes work out righteous results. For the reasons aforesaid, the judgment of the Court of Appeals should be quashed.

It is urged with, much force that the facts found fail to show any causal connection between the injury proven, and the acts of the defendants or either of them. There is much substance in the contention, and if we had in the Court of Appeals opinion all of the facts upon the issue, I would feel constrained to discuss it, notwithstanding our ruling in paragraph two, supra. That ruling disposes of the judgment of the Court of Appeals, and leaves the case so that such court will have to award a new trial nisi, and this, coupled with the further fact that on such new trial further evidence connecting the acts of the defendants with the injury may be introduced, we, personally, prefer not to give expression to our views upon the recited facts in the opinion upon that question. In this case we are confining ourselves to the facts stated in the opinion, although we have read the whole record, and have our own impressions as to the facts therein. Let the record of the Court- of Appeals be quashed.

It is so ordered.

Woodson, G. J., and Faris and Blair, JJ., concur; Walker, J., dissents in opinion filed; Bond, J., dissents, because he thinks this court without jurisdiction; Bevelle, J., not sitting.

WALKER, J.

(dissenting) — I do not concur in the majority opinion.

The limiting of the review of this case in the majority opinion to an examination of the opinion of the Court of Appeals is in accord with the qualified power granted by certiorari to the Supreme Court under the Constitution (Art. VI, sec. 6, Andt. 1884) to supervise the rulings of such courts, and is not subject to objection.

The field of operation of the writ under the power granted by the Constitution is much more limited than at common law. This court would have no power to quash a judgment of a Court of Appeals on account of its nonconformity with our last previous ruling, if it were not for the constitutional provision which authorizes a review only under the conditions therein prescribed. The sole source of the Supreme Court’s power in this regard being in the provision of the Constitution referred to and the same relating only in any given case to the judgment of the particular court of appeals, we must look to the opinion of said court upon which the judgment is based and which of necessity contains the rulings and the reasons for the rendition of the judgment to determine whether cause exists for the issuance of the writ. To extend our examinaton further would be to question the integrity of the judgment of the Court of Appeals, the appellate jurisdiction of which, except as to the question of excess, is complete in the class of cases to which the one under review belongs. More than this, it would constitute an usurpation of appellate jurisdiction by the Supreme Court properly belonging to the courts of appeals and render them intermediate courts of review, instead of tribunals of final jurisdiction within the meaning of the Constitution. As we have indicated, the review in the case at bar in the majority opinion, being confined to proper constitutional limits, other matters may appropriately engross our attention.

It is urged that the office attendant was not personally present when she made the damaging statement to Dr. Howard in response to his inquiry to which he made no reply; that she was not his employee, but that of his co-defendant, Dr. Tiffany; that her statement was not in response to Dr. Howard’s inquiry, and hence was a mere impertinence and that he was not called upon to reply thereto. In view of all of which it is held that the ruling of the Court of Appeals in approving the admission of testimony in regard to this matter was error and authorizes a review by this court of the opinion of said court, provided, of course, its opinion is not in accord with the last previous ruling of this court on the subject.

Visual and immediate physical presence is not necessary to authorize the application of the ruling which renders testimony in regard to a damaging statement competent and construes silence, under a proper statement of facts, to be an admission of the truth of such statement.

So far as the matter of personal presence is concerned, proximity within a distance sufficient to permit the hearing and understanding of what is said is all that is required. The person making the statement, therefore, should be so situated that the one in whose hearing it was made and whose duty it may be' to reply to same may be enabled to hear and understand the statement and thus comprehend its meanng. It is not contended that Dr. Howard did not hear and understand the statement. If this fact were not conceded the circumstances would justify no other conclusion. He made the inquiry in regard to the case he had treated and of which she had kept the record. She heard and understood him, because she replied thereto, designating the patient. That he heard and understood her is evident from the testimony of the deputy sheriff who was in his immediate presence when the reply was made, and who not only heard but comprehended what she said. In the face of these facts, what did it matter whether the attendant was within the sight and touch of Dr. Ploward when she made the statement or in Dr. Tiffany’s office in another room?

The cases may he examined in vain for an authority holding that a damaging statement of the character here under consideration is not admissible because not made in the immediate presence of one whose duty it may have been to deny the same. This is true because, as we have stated, hearing and understanding are the tests of admissibility'and not mere proximity.

The fact that the office assistant was not an employee of Dr. Howard, but of his co-defendant, is urged in the majority opinion as a reason why he was not required to deny her statement. The rule regulating the admission of evidence of the character here under consideration does not in reason, and should not, require that the person making the damaging statement shall bear any relation to the person whose duty it may have been to deny the statement, to avoid the implication which the law permits that silence indicates acquiescence. The test of admissibility is not the relation of the parties, although this may and often does afford opportunities for an understanding of the matter not otherwise obtainable; but did the person making the statement, irrespective of any relation, have such a knowledge of the subject as to enable him or her to speak understanding^' in regard thereto? Let it be conceded that the office assistant was the employee of Dr. Tiffany. Dr. Howard, on account of his professional relation, must have had a general knowledge of the case concerning which he made the inquiry. She must have had a particular knowledge of same, on account of her custody and keeping of the records of - the office. Her knowledge and understanding of the matter, therefore, could in nowis-e have been different or more complete had she been in his employ instead of that of Dr. Tiffany. In addition, the inquiry made by Dr. Howard is, in itself, proof of her possession of such information in regard to the case as to render testimony concerning the statement, as preliminary to showing his silence, clearly admissible. If she did not possess this knowledge, for what purpose was the inquiry made, especially in view of the Doctor’s general knowledge of same and his connection therewith?

The specific inquiry which evoked the statement around which this controversy centers was made by Dr. Howard to the office assistant in his asking her “if she had the record in the Mary Coffey case.” She replied “that she had and that the patient was the school teacher that he had dropped iodine in her eye and put it out.” It is announced in the majority opinion that .this reply was not responsive to the inquiry and hence it was not incumbent on the Doctor to deny same.

A statement may be irresponsive so far as it relates to the inquiry which prompted it, but this does not measure the duty as to the denial of same by one whose rights are thereby affected and whose silence may import an admission as to the truth of the statement. The measure of duty demanding a denial depends upon whether the rights of' the person concerning whom the statement is made is affected thereby. If such statement is adverse and is made by one who is enabled from knowledge of the facts to speak understandingly, then a denial is incumbent upon the person referred to.

Here the statement was not made by a stranger, but by one who, on account of her relations, was familiar with the ease. The statement had reference to a matter with which the Doctor was also familiar, otherwise he would not have made inquiry for further informaton in regard to same. In addition, and of prime importance in determining whether or not the statement may be regarded as an impertinence, it is evident that it had reference to the Doctor’s rights and if unchallenged could not be construed otherwise than as adverse to his interest. His duty, therefore, to deny same was plain.

The Court of Appeals pertinently savs in regard to this phase of the case:

“Had the charge come from an impertinent stranger, no admission of its truth could be implied from the silence of the accused. It did not come as an impertinence, but in answer to a question asked by the accused of the young woman who was a sort of factotum in the office of defendants, received their patients, inquired into their business and kept the office record of cases treated by defendants. The question asked by Dr. Howard called for information kept by her in the course of her employment for the benefit and future use of her employers, and her answer was in direct response to that question. It purported to give him the facts relating to the history of the case as she had received them from him, and it would have been most unnatural for him not to deny such a charge if it were false, no matter who was present. It was just as though she had said: 'You told me you put out the woman’s eye and that is the history of the case in this office.’ A charge of that kind, if false, would bring a denial from any man under any circumstances. The evidence was properly admitted.”

In Commonwealth v. Kenney, 12 Metc. (Mass.) 237, it is announced that where a damaging declaration is made in one’s hearing and he makes no reply, his silence may be held to be a tacit admission of the truth of the declaration under these conditions: that he heard and understood the declaration and comprehended its meaning; that the truth embraced therein was within his knowledge; that he was at liberty to make a reply; that the declaration was made under such circumstances and by such a person as to demand a reply, if he did not intend to admit it.

"We realize that we are not required to go beyond our own cases to determine the admissibility of testimony in a case submitted for our determination, as is the one at bar. But to avoid citations to numerous authorities we have found it most convenient to em.-' ploy the summary found in the Massachusetts case, as embodying all the essentials of our own rulings. In no other case have we found a clearer or more concise statement of the conditions which must be present to authorize the admission of testimony in regard to a statement demanding a denial. A comparison with the facts in the case at bar discloses the presence of all the conditions declared to be necessary in the case cited.

The following cases are either discussed in the majority opinion or are cited by the petitioners for the writ herein as in conflict with the rulings of the Court of Appeals in the admission of this testimony: State v. Hamilton, 55 Mo. 520; Phillips v. Towler’s Admr., 23 Mo. 401; State v. Young, 99 Mo. 666; Adams v. Railway, 74 Mo. 553; Wojtylak v. Coal Co., 188 Mo. 260; Shake v. Mullins, 101 Mo. 517; State v. Glahn, 97 Mo. 679. We will review them in their order to enable it to be determined, from a fair statement of the facts in each, whether they contravene the ruling under review.

In State v. Hamilton, supra, the remarks received in evidence were not, as in the instant case, directed to the defendant, and hence did not charge him with any offense. The Hamilton case is referred to and. distinguished by the Court of Appeals as presenting a different state of facts from those in the case at bar.

In Phillips v. Towler’s Admr., supra, a remark was made in the presence of the owner of a slave that the slave had burned the building in controversy and had confessed, to which the owner made no response. It was not shown that the owner had any personal knowledge of the transaction and, of course, the remark made no charge against him. His silence under these circumstances, being the silence of one not personally accused, could in no sense be held to be an acquiescence in the truth of the statement.

In State v. Young, supra, the remark charg’ed to have been made in the presence of the accused was made while the latter was under arrest and therefore in no position to make a denial. Further than this, the remark was made by a mere stranger, who is not shown to have had any knowledge of the case, and while made in the presence of the accused, it was not addressed to him and was therefore no more than an impertinence which did not require a denial.

Adams v. Eailroad, supra, instead of containing a ruling adverse to that of the Court of Appeals, is an authority in support of same. The Adams case holds that the declarations of an agent are admissible as evidence against his principal only when made while transacting the business of the principal and as a part of the transaction which is the subject of the inquiry in the suit in which they are offered. The office attendant, in the case in controversy, was engaged in the transaction of Dr. Howard’s business and was therefore his agent when she was asked by him if she had the record in the Coffey case, and her reply was made in response to this inquiry; that the inquiry was a part of the entire transaction is evident from the fact that the deputy sheriff had just served a summons upon Dr. Howard in the suit brought by the plaintiff for the injury about which the inquiry was made.

In Wojtylak v. Coal Co., supra, there is no ruling which by remote inference can be said to sustain the petitioners ’ contention.

In State v. Mullins, supra, the declaration charged to have been made was in a judicial proceeding and hence not within the rule.

In State v. Glahn, supra, it is held that the rule m regard to admissions inferred from acquiescence in the verbal statements of others has no application except when the statement calls for action or reply on the' part of the defendant. With this statement of the rule we have no fault to find, but we question the propriety of its application to the facts at bar, except to sustain the ruling of the Court of Appeals. If there ever was a case calling for action or reply it was in the one now under consideration. Dr. Howard was familiar with all the facts, he had been the principal actor in the case, he knew from the service of the summons then made by the officer that the plaintiff had asserted in a court of law her right to damages for the injuries he was alleged to have inflicted; when, therefore, the declaration as to his liability was made by the attendant that he had dropped iodine in the eye of the school teacher (meaning plaintiff) and put it out, his duty, to avoid the application of the rule as to the inference the law permits to be drawn under such circumstances, became imperative to deny the truth of the declaration.

The decision of the Court of Appeals admitting the testimony in question did not contravene any previous ruling of this court on the subject. More than this, it is in accord with the strong current of authority elsewhere. There is, therefore, no authority for the exercise of our supervisory power. [2 Wigmore on Ev., sec. 1071; 2 Mod. Ev., Chamberlayne, secs. 1418-1433 ; 2 Jones Com. on Ev., sec. 289; and Wigmore on Ev., sec. 1071, containing reference to latest cases.]

In view of the reasons stated and the conclusions flowing therefrom, it follows that our writ should be quashed, which will result in an affirmance of the judgment of the Court of Appeals.