source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    ORA W. STID v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    July 7, 1911.
    1. MOTION FOR NEW TRIAL: Sufficient Specifications' of Errors: Review on Appeal. ' The motion for a new trial in a law case need only he in general terms, and need not point out specifically the evidence admitted or excluded, or the instructions given or refused. If it recites that the court erred “in giving each of the instructions given at the request of plaintiff” the instructions for plaintiff on defendant’s appeal are for review on all points and for all purposes. And if it recites that the court erred in admitting incompetent evidence for plaintiff and in refusing to admit competent evidence for defendant, the rulings of the court in either respect are, for review on defendant’s appeal.
    2. -: -: Error in Instruction: Not Assigned in Brief: Consideration. Where there has been saved an exception to the giving of an instruction for respondent, and the motion for a new trial assigns the giving of such instruction as error, the court on appeal will consider any error the instruction contains, whether such error is assigned in appellant’s brief or not. ■ The instruction may not be vulnerare to the assignments made by appellant in his brief, but if an exception was saved to the instruction and the giving of it was challenged by the motion for a new trial, such exception goes to the whole matter of. the instruction and it may be condemned for any error apparent to the appellate court.
    5. INSTRUCTION: Verbose. An instruction set out, in the statement, setting forth at length the pleaded facts, is condemned for its verbosity, which is held to be sufficient to mislead any average jury.
    4. —;-: Conflicting: Negligence: No Light. An instruction given for plaintiff directing the jury to consider the darkness of the night and the absence of a light upon the car which plaintiff stumbled upon, is in conflict with one given for defendant telling them that there is no evidence tending to show that the accident was caused by insufficient lights in the yards where the accident occurred.
    6. -: No Evidence: Absence of Light. Where plaintiff’s evidence shows that the absence of light did not induce his fall against the moving car, but does show that he carried a lantern to enable him to properly do his work, an instruction for plaintiff directing the jury to take into consideration the darkness of the night and the absence of light from the car, should not be given, and an instruction for defendant telling the jury that there is no evidence that the accident was caused by insignificant light should be given.
    6. -: -: Purpose of Alighting from Train: Switch-man: Allegation and Proof. Where there is no evidence that the injured switchman alighted from the train “for the purpose of signalling the engineer in charge of said engine when the rear car of said train had passed said switch and to throw said switch that said car. might be run in on said track” no instruction incorporating those words should be given, although they were a part of the petition. An instruction cannot outrun the proof, whatever may be the pleadings.
    7. -: Damages: Amount Sued For. It is not error to tell the jury in a suit for tort that if they find for plaintiff they are authorized to assess his damages at an amount not in excess of the formal damages laid in the petition. An instruction telling the jury that if they find for the plaintiff “they will assess his damages at such sum, not exceeding twenty-five thousand dollars, as they may believe from the evidence,” etc., is not reversible error. But held hy Graves, J., that such an instruction is an intimation to the jury that a verdict for the full amount asked for would he approved, and therefore misleading and prejudicial.
    8. NEGLIGENCE: Demurrer to Evidence: Switching Cars: Gravity Yards. Two crews were switching cars in a switch-yard in which were several tracks. The main line was higher than the nearest switch track, which was nine feet distant— some of the evidence showing it was from 12 to 18 inches higher, and other testimony that it was only 7 or 8. The roadbed sloped, and as the train passed on the main track the foreman directed the plaintiff switchman to get off. He did so and stumbled down the embankment, and fell against a ear passing on the switch, and was injured. Held, that if the yard is a gravity yard, that is, yards in which the switch-tracks at certain points must be lower than the level of the main tracks, so that cars will not run from the switch to the main track; and if the construction was the ordinary and usual construction for such yards, plaintiff cannot recover. But the evidence is so scantily developed on both sides that the court cannot with propriety determine whether or not a demurrer thereto should have been sustained; and in view of the fact that the judgment must he reversed because of error in the instructions, the cause is remanded for new trial.
    Appeal from Jackson Circuit Court. — Hon. E. P. Gates, Judge.
    Reversed and remanded.

      Elijah Robinson and R. T.-Railey for appellant.
    (1) Defendant’s demurrer to the evidence should have been sustained by the trial court, as there was no substantial evidence upon which to submit the case to the jury. Powell v. Railroad, 76 Mo. 80; Commissioner v. Clark, 94 U. S. 284; Bank v. State, 10 Wall. 639; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo. App. 123; Zurfluh v. Railroad, 46 Mo. App. 636; Peffer v. Railroad, 98 Mo. App. 291; Railroad v. Shirtie, 97 Pa. St. 450. (2) The court committed error in excluding the defendant’s evidence tending to show that the tracks in question were constructed in the usual way in which railroad tracks are constructed in railroad terminal yards. (3) The court committed error in giving plaintiff’s instruction number 1. a. It assumed that at the time of the accident the plaintiff was in the exercise of ordinary care. b. It submitted to the jury the question as to whether plaintiff fell and tumbled 'down the. embankment; when there was no evidence upon which to submit any such issue, c. It submitted to the jury the question as to whether plaintiff knew that the sidetrack was lower than the main line track, when the evidence shows that he either knew that fact or was guilty of negligence in not knowing it. d. Said instruction was calculated to mislead the jury. Peck v. Eitchey, 66 Mo. 121; Comer v. Taylor, 82 Mo. 341; Strong v. Hunt, 94 Mo. 475; Sweeney v. Eailroad, 150 Mo. 385; Plummer v. Milan, 70 Mo. App. 598; Linn v. Bridge Co., 78 Mo. App. Ill; Orscheln v. Scott, 79 Mo. App. 541; 11 Ency. Plead. & Prac. 116; Iron Co. v. Peck, 112 111. App. 444; Eailroad v. Mason, 13 111. App. 72; Clark v. Kitchen, 52 Mo. 316; Donahue v. Eailroad, 83 Mo. 560; Chouteau v. Iron Co., 82 Mo. 73; Greer v. Parker, 85 Mo. 107; Price v. Breckenridge, 92 Mo. 378; Cole v. Long, 1 Mo. App. 215; Young v. Eidenbaugh, 67 Mo. 57; Bank v. Lonergan, 21 Mo. 46; Legg v. Johnson, 23 Mo. App. 590; Estes v. Shoe Co., 155 Mo. 577; Commission Co. v. Hunter, 91 Mo. App. 333; Pleasants v. Fant, 22 Wall. 116. (4) The court committed error in giving plaintiff’s instruction number 2; because said instruction amounted to an intimation on the part of the court that any sum not exceeding $25,000 would be satisfactory to the court. Bryan v. Acee, 27 Ga. 87; Glasscock v. Shell, 57 Tex. 224; Willis v. McNeill, 57 Tex. 478; Fordyce v. Nix, 23 S. W. (Ark.) 967; Gilbertson v. Eailroad, 43 N. Y. Supp. 782-4; Railroad v. Austin, 69 111. 428; Railroad v. May, 33 Til. App. 366; Rost v. Brooklyn Heights, 41 N. Y. Supp. 1069.

      L. H. Waters and Frank Hagerman for respondent.
    (1) The servant is entitled to safe instrumentalities, including tracks, bridges, etc. Bowen v. Railroad, 95 Mo. 277; Bale v. Railroad, 63 Mo. 458; Gribson v. Railroad, 46 Mo. 167; Tuttle v. Railroad, 48 Iowa 236; Woods, M. & S., p. 687, sec. 329; Patterson v. Railroad, 76 Pa; St. 389. And a suitable and safe place to work. Sullivan v. Mfg. Co., 113 Mass. 398; Woods, M. & S., p. 695, sec. 334. The master is bound to take all reasonable precautions for the servant’s safety. Woods, M. & S., p. 721, sec. 352. The side track as built and maintained was a constant menace to the switchmen. Railroad v. Swett, 45 111. 201; Railroad v. Reichart, 87 Tex. 536; Railroad v. Walker, 93 Oa. 462. The fact that the flat car, at the place of injury and 746 feet from the east end of the track was still moving at a great rate of speed is evidence of its negligent construction. (2) If the injury was caused by the concurring force of defendant’s negligence and some other force for which it was not responsible, defendant is nevertheless responsible, as its negligence is one of the proximate causes of the injury. Brash v. St. Louis, 161 Mo. 438; Newcomb v. Railroad, 169 Mo. 422. (3) The evidence justified plaintiff’s first instruction. Plaintiff did tumble down the embankment, was knocked down by the flat car and then rolled back under the car, and he did not know that the side track was lower than the main track, and his want of knowledge was not the result of his negligence. (4) The instruction as to the measure of damages properly limited a recovery to the damage claimed in the petition, and has .uniformly been approved by our courts. (5) The court did not exclude any evidence offered by defendant as to whether the tracks in question were constructed in the usual way in which railroad tracks are constructed in terminal yards. Witness Conn was asked: • “Is it an unusual thing for tracks to be as much lower than the main tracks'? A. Well, it is in new yards, it is not unusual for them to be a great deal, or more difference than that.” This question had no reference to terminal yards and the answer was not responsive to the question.
   GRAVES, P. J.

The petition in this case is somewhat verbose, and but few statements therein go to matters of negligence, but that a full statement of the case may be presented, it is best to outline all the charges of the pleadings, as well as the evidence. Beginning, therefore, with the petition, or rather the amended petition upon which the case was 'tried, the following, epitomized, is the contents thereof: (1) that defendant is a Missouri railroad corporation; (2) that said defendant had and maintained switch yards in the East Bottoms near the corporate limits of Kansas City, Jackson county, Missouri; (3) that in such yards were a number of tracks on each side of the main track for the purpose of switching cars; (4) that at said time, defendant had in its employ two switching crews, each consisting of a foreman, engineer and switchman, which crew was in charge of a switch engine; (5) that it was the duty of such crews to switch cars as the business of the company re* quired; (6) that at the date of the accident, plaintiff was a member of one of said crews to switch and transfer cars as the business of defendant demanded; (7) that plaintiff had been in the employ of defendant as switchman in one of said crews but one day prior to the accident; (8) that one Ferguson was his foreman and in control of plaintiff and other members of his crew; (9) that plaintiff met with his accident on the night of October 10, 1904. The petition, in addition to the matters aforesaid, in this language then charges:

‘ ‘ That on the night of said last mentioned day and after dark of said day, plaintiff and the crew of which he was a member were proceeding with a train consisting of an engine and ten cars eastwardly through said yards on said main line, for the purpose of transferring some of the cars of said train to a side track of defendant on the north of said main line.
“That plaintiff and said foreman were then and there riding on said engine of said train, and that before reaching the switch of said side track on which said cars were to be transferred said foreman got off of said engine, and when said engine reached said switch, the plaintiff, by the direction of said foreman and in pursuance of his duty under said employment, got off said engine on the south- side of said track of said main line, that he might and could signal the engineer in charge of said engine, to stop when the rear car of said train had passed said switch, and to throw said switch and then to signal said engineer to back in upon said side track, and to repeat to said engineer any signals given by said foreman, for said engineer.
“Plaintiff further states that there was then and there a side track of defendant on the south side of said main line, and that said side track was about eight feet from and about two feet lower than the track of said main line, and that the road bed of said main line then and there sloped down and towards said last mentioned side track. That plaintiff got off of said engine on the south side of said engine, and as he stepped therefrom and out of the way of the cars of said train, he fell and stumbled, without fault on his part, down the said slope of the road bed of said main line to the north rail of said last mentioned side track, and before he was able to recover himself and get away from said side track, a flat car of defendant came west upon said side track at á rapid and dangerous rate of speed and struck plaintiff and knocked Mm down and ran upon and against plaintiff and crushed, bruised and injured his legs and back, and that Ms left leg was thereafter and because of said injuries amputated just below the knee, and that his right leg was because of said injuries thereto and is permanently injured and disabled.
“Plaintiff further states that he entered defendant’s employment as switchman, as aforesaid, on the night before he was injured, as aforesaid, and that he did not know at the time he was injured, as aforesaid, that said yards were insufficiently lighted, nor that said side track was then and there lower than said main line, and did not then and there know that the road bed of said main line sloped down and towards said side track, and that he did not at the time he got off of said engine and fell and stumbled, as aforesaid, know that said flat car was coming in on said side track. That there was then and .there no light upon said flat car and no one upon or in charge thereof, and that the moving cars of said train made so. much noise that he could not and did not hear the approach of said flat car, and that he then and there did not know that said flat car was upon said side track until it struck him,-as aforesaid.
“That said yards were then and there insufficiently lighted. The defendant then and there knew that said yards were insufficiently lighted and that said side track was two feet lower than the track and road bed of said main line, and that said yards were then and there not a safe place for plaintiff to work, in the discharge of his duties as such switchman, and that said side track was two feet lower than the track of said main line and was in an unsafe and dangerous condition for that reason, and so plaintiff says that defendant was negligent in failing to have its said yards properly lighted and in having and maintaining said side track lower than the track and road bed of said main line.”

Plaintiff prayed for damages in the snm of $25,000, with allegations as to special damages for loss of time and medical attention.

The answer after some specific admissions was (.1) a general denial, and (2) a plea of contributory negligence. Reply, a general denial.

Such are the issues made by the pleadings. Upon trial before a jury, the plaintiff had a verdict for $16,000, upon which in due course judgment was entered and from such judgment the defendant has appealed. The sufficiency of the evidence to sustain the verdict is challenged and hence a full statement of the facts proven is required.

Omitting the testimony as to the character of his injuries, which were very serious, plaintiff in his own behalf testified substantially as follows:

That there were two main lines of track in the East bottom through these yards; that the east-going main track was on the south side of the yards and west-going track on the north side of the yards; that there were a number of side tracks upon either side of these main tracks; that at the date of the accident and at the place of the accident the switch track just south of the south main track was' “from fourteen to eighteen inches or two feet- lower” than the main track; that on the night of the injury he went to work about seven o ’clock p. m.; that he was injured on his first-trip through "the yards; that he was on the south main line track running east; that to the south of this was the switch track which was lower; that he and Ms foreman, Ferguson, were riding upon the front board of the switch engine:

In chief, he then describes the accident:
“Just before I stepped off, the foreman says to me, he says: ‘We’ll get off here,’ he says, ‘and throw In some ears in this elevator.’ So he stepped off first, and I rode on to the switch; as I got off at the switch, I got off right opposite the switch, on the south side of the track, and as I got off, the force of me, and the train running, forced me over this little embankment, just far enough to get hit by this box car, which met me at the time.
“Q. Where? A. On that switch.
“Q. Switch or side track? A. Side track.
“Q. As you got off the car the engine was moving — you got off of the engine? A. Tes, sir.
“Q: And the momentum- — ■
“Mr. Robinson: I object to Col. Waters leading the witness.
“Q. Iiow did you come to stumble, fall, -or get -down to the side track?
“Mr. Robinson: I object to that; the witness has never said that he stumbled or fell.
“The Court: State what happened, if anything.
“A. I stepped off, off the embankment; if the main line track had not been higher than the side track, and sloping, I don’t think I would have fallen down — I would not have fallen down..
“Q. How? A. I could not have fallen down, if the bank — could not have fallen down that bank or stumbled down.
“Q. State do the jury, now, what occurred to you when you reached that side track? A. I got caught by this flat car and it knocked me down and ran over me.
“Q. Which way was it going? A. West. ■
“Q, And your train was going east? A. My train was going east.
“Q. Before it struck you, state to the jury whether or not you had seen that flat car? A. I could not see it, no.”
Further on in chief, he said:
“Q. Now, Mr. Stid, state to the jury how it struck you and where ? A. It struck right in the side.
“Q. What was the result of that, how did it hurt you? A. It knocked me off, and I rolled over; if the-bank had not been gradually sloping down, why, I would have never rolled in under the car, probably.’
“Q. How did it hurt you? A. It ran over both-legs.”

It would appear that there was a moving flat, car on this switch or side track, which had been pushed in by the other switching crew. It also appears that, plaintiff had been raised and lived near the East bottom yards, and was there before the yards were established. He says, however, that his knowledge of the-relative height of the two tracks was obtained whilst he was there that night, and after his injury, which injury consisted in both legs being run over by the flat car, and one of which was so injured that it had to-be amputated.

On cross-examination he made the following statements and admissions:

“Q.- Now, you stepped off the engine, and the force of stepping off took you over near enough to the side track that the car that was coming struck you? A. Tes, sir.
“Q. And you went over involuntarily, from the force of getting off of the engine? A. Tes, sir.
“Q. And it struck you just as you got off? A. Just as I got off, why, I got far enough over for the car to hit me.
“Q. Do you remember of testifying this way in your deposition? ‘How long -was it from the time-you stepped off the engine until you got hurt? A. Right then.’ A. Tes, sir. '
“Q. Just then? A. Tes, sir.
“Q. ‘Tou either ran or slid down onto the-other track just as you got off, and the other car ran over you?’ This is correct? ‘A. I was not clean on the track when the car hit me.’ This is correct? A. I was not clean on the track when the car hit me.
“Q. You just got close enough for it to hit you in the side? A. Yes, sir.
“Q. You weren’t down when the car struck you? A. No, sir.
“Q. The car knocked you down? A. The car knocked me down.
“Q. ‘It didn’t make any difference whether you heard that car or not? A. Whether I heard it or not? Q. I mean after you got off, inasmuch-as you did .get off, the question as to whether you could have heard the car would not have made any difference, because you did not go down there voluntarily? A. No, sir.’
“Q. ‘And if the car had made ever so much noise, you could not have kept from going down? A. No, sir.’ You mean by that that you could not have kept from going over the embankment? A. No, sir.
“Q. In other words, all there is to it, the -car was moving and you jumped off, you were on the engine, .and in jumping off, you did so with such force that you ran along two or three steps and got close •enough for the other car to strike you? A. Yes, sir.
“Q. And you illustrated it when your deposition ■was taken, by saying when you got off of a street car you walk two or three steps before you can stop, if the ear was moving, did you not? A. Yes, sir, I had. . . .
“Q. A man could get off of the engine, step off this way, and hold to it, and could run along by the ■side of the engine, could he not? A. Certainly.
“Q. If you had done that, you would not have been over nest the ear, would you? .A. Everybody •don’t do that.
“Q. Answer my question. You could have done that, could you not? A. I do not think I could.
“Q. You had hold of the engine when you got off? A. Yes, sir.
“Q. How many steps did yon take to get over to the other car? A. One or two.
“Q. One or two? A. Yes, sir.
“Q. Didn’t yon take more? A. I do not think I did, I didn’t know.
“Q. Yon don’t know how many you took? A. I don’t know how many I took, no.”

Upon the part of the defendant it was shown that the yards in question were what were known as gravity yards; that the difference between the height of the main track and the side track was from eight to twelve inches; that by actual measurement, it was seven to eight inches; that in such yards and especially when new, as was this, such difference in the height of the tracks was not unusual; that this particular side track upon which plaintiff was injured gradually sloped down from its junction with the main track; that such construction was necessary in order to prevent cars from running back towards the main track after they had been switched therefrom; that the slope from the main track to the side track was a gradual one; that the space between the rails of the two tracks was nine feet, and covered with cinders from the engines; that such space, whilst sloping, was level; that plaintiff had a lantern at the time of accident ; that the car which struck him was run at a distance of two car-lengths, or about seventy feet. It also appears that no one was on the moving flat car which struck the plaintiff, nor -were there any lights thereon.

Defendant’s demurrer' to the evidence was overruled and for the plaintiff the case was submitted to the jury upon two instructions, that read thus:

“1. If the jury find and believe from a preponderance of the evidence, that is, from the greater weight of the credible evidence in this case, that the defendant, on October 19, 1905, had constructed and maintained yards for tjie use of its railroad in the bottom east of Kansas City, Missouri, and near the corporate limits of said city and known as defendant’s East Bottom Yards, and that the main line of defendant’s road then and there ran through said yards, and that a number of side tracks of defendant were then and there on either side of said main line and connected with said main line so that cars could be switched from said main line to said side tracks and from said side tracks to said main line; and if the jury further believe and find from the evidence that defendant then and there had in its employ switching crews and that it was the duty of said crews to switch and transfer cars to and from said tracks and that each of said crews had in its charge a switch engine; and if the jury further believe from the evidence that plaintiff was then and there in defendant’s employ as a switch-man of one of said crews and engaged as such in the work of operating defendant’s said railroad, and that one Ferguson was. then and there foreman of said crew and entrusted by.defendant with the superintendence and control of plaintiff and the other members of said crew in their work; and if the jury further believe from the evidence that on the night and after dark of said 19th day of October, the said crew of which plaintiff was a member was proceeding east on said main line and through said yards with a switch engine and a train of cars for the purppse of transferring some of said cars to a side track on the north side of said main line, and that as said engine passed the switch connecting said side track and said main line the plaintiff alighted from said engine on the south side of said main line by the direction of said foreman for the purpose of signalling the engineer in charge of said engine when the rear car of said train had passed said switch, and to throw said switch that said car of said train might be run in on said side track; and if the jury further believe from the. evidence that there was then and there a side track of defendant, which defendant before then had constructed, on a part of its said yard and which then and there was about nine feet south of said main line, and that said side track was from twelve to eighteen inches lower than the road bed and track of said main line and that plaintiff, as he alighted as aforesaid from said engine and while in the exercise of ordinary care, fell and stumbled down the embankment of said main line and near to the north rail of said side track, and that as plaintiff so fell and tumbled and before he was able to recover himself and get away from said side track, a flat car of defendant came west on said side track and struck plaintiff and crushed and bruised plaintiff’s legs and he was, without fault on his part, injured thereby; and if the jury further believe from the evidence that because of said injuries, plaintiff’s left leg was thereafter amputated just below his knee and his right leg was so crushed and bruised that it was and. is thereby permanently disabled; and if the jury further believe from the evidence that plaintiff did not know that said road bed and track of said main line-was higher than the track of said side track and that he could not and did not hear the approach of said flat car because of the noise of the said train on said main line and that he did not and could not see said flat ear because of the darkness of the night and because said car had no light upon it and because while plaintiff was on said engine said flat car was below him, and if the jury further believe from the evidence that defendant was negligent in the construction and maintenance of its said main line track and its side track and that the said yards at the time and place where plaintiff was so injured was not a reasonably safe place for plaintiff to work- as such switch-man because the track and road bed of said main line were higher than the track and road bed of said side track, and that defendant had constructed said main line and side tracks as aforesaid, and that plaintiff did. not then and there know that said side track south of said main line wás lower than said track and road bed of said main line, then plaintiff is entitled to recover.
“2. If the jury find for the plaintiff they will assess his damages as such not exceeding twenty-five thousand dollars as they may believe from the evidence that he has sustained; in estimating his damages the jury may take into consideration any evidence as to any pain and suffering he may have endured on account of said injuries, the extent of said injuries, and any evidence as to any loss of time because of said injuries, and any evidence as to any expense he may have necessarily incurred for medical treatment in being treated for said injuries.”

I. The record in this case is not at all satisfactory. It would be hard to say which side is responsible. It certainly could be improved upon, to say the least. Vagueness and verbosity characterize both pleadings and instructions, and extreme scantiness of proof upon vital questions characterizes the evidence. The briefs are scant upon salient issues and lucid upon matters largely immaterial. The respondent of course is only required to meet the questions urged by appellant and his conduct as to briefs could not be criticised.

In a case of this moment it behooves the court to pass judgment with full consideration. The motion for new trial is on the blanket order rather than one specific in terms. This practice we have never condemned,- but rather encouraged. Such motion need only be in general terms and need not point out specifically the evidence admitted or excluded, or the instructions given or refused. If the motion recites, as does this one, that the court erred “in giving each of the instructions given at the request of the plaintiff,” the instructions of plaintiff for all points and purposes are here for review.

So, too, if the motion recites that the court erred in admitting incompetent evidence for plaintiff and also erred in refusing to admit competent evidence for the defendant, such questions are for review in the appellate court.

The impropriety of instruction numbered 1 given for the plaintiff is urged in the briefs. Defendant .says that such instruction is erroneous, and assigns some reasons therefor. That it is erroneous we have no doubt, but as to the reasons assigned in the briefs, all of them may not be tenable. But be this as it may this instruction is properly challenged in .the record, and the court may seek its own reasons for condemning it, if it be one which should be condemned. The reasons assigned here may be bad, but if there has been an exception to the action of the trial court in giving the instruction, such exception goes to the whole matter and the instruction may be condemned here for any reason which is apparent to this court. If no exception had been taken to the giving of the instruction the question of its legal propriety would not be here.

This instruction to our mind is bad for several reasons:

(a) . Its verbosity is enough to mislead any average jury. In tins case the issues of negligence are few and simple, and there was' no necessity for the long recitation of pleaded facts, contained in this instruction. A very short, concise instruction would have clearly presented the issuable matters, without leaving a jury to become confounded in a labyrinth of immaterial detail.

(b) . It directly conflicts with an instruction given for the defendant. For defendant the court gave the following among other instructions:

“The court instructs the jury that there is no evidence in this case tending to show that the accident was caused by insufficient lights in defendant’s yards, where the accident occurred.”

To our mind this instruction was properly given. Plaintiff carried a lantern for the purpose of enabling him to properly work. And further the evidence given by the plaintiff shows that the absence of light did not. induce his fall. Instruction number one for plaintiff authorizes the jury to consider the question of light as a matter of moment in determining the liability of the defendant. Such instruction uses this language: “and if the jury further believe from the evidence that plaintiff did not know that said road bed and track of said main line was higher than the flat car because of the darkness of the night and because said car had no light upon it and because while plaintiff was on said engine said flat car tvas 'below him.”

We have italicized the language which conflicts. One instruction says that there is no evidence tending to show that the absence of light had anything to do with the injury, but by the other the jury are directed to consider the darkness of the night and the absence of a light upon the car which occasioned the trouble. These two theories are inconsistent and cannot stand. They are in logic and reason as far apart as the north and south pole.

(c). There are things submitted in the instruction upon which there is no proof whatever. For instance the instructions, among a mass of things, say: “And that as said engine passed the switch connecting said side track and said main line the plaintiff alighted from said engine on the. south side of said main line by the direction of said foreman for the purpose of signalling the engineer in charge of said engine when the rear car of said train had passed said switch and to throw such switch that said car of said train might be run'in on said track.”

There is not a line of testimony that the plaintiff alighted for such a purpose. We have placed in italics the portion upon which there is no -evidence. This instruction was evidently written to conform to the numerous allegations of the petition and without reference to the evidence. Instructions must conform to' the pleadings and evidence. They cannot submit matters beyond the purview of the pleadings, although such may appear in the evidence, nor on the other hand can they submit matters pleaded, but which are beyond the pale of the proof. To submit such matters-tends to confuse the issues before the jury. Other delinquencies in this instruction might be pointed out, but these are sufficient. For the errors in this instruction the cause must at least be reversed and remanded.

II. Instruction numbered 2 given for plaintiff is criticised by learned counsel for the defendant. He says that it contains an intimation from the court that. $25,000 damages would not be out of the way. This contention is based upon the following language in the instructions: .“If the jury find for the plaintiff they will assess his damages at such sum not exceeding twenty-five thousand dollars, as they may believe from the evidence that he has sustained.”

We have italicized the objectionable clause.

Defendant is not without authority upon this point.

In Rost v. Brooklyn Heights R. Co., 41 N. Y., Supp. 1069, the New York Court said: “The tendency of juries to award a verdict for the plaintiff with large damages in this class of cases is as well established as any fact can be, and it is quite proper for courts, in view of this condition, to caution juries in restraint of. the tendency. Frequent embarrassment is found in sustaining for the full amount verdicts in negligence cases upon any fair consideration of the evidence. The charge in this case authorized the jury to award damages to the full amount claimed, $60,000, and nowhere is the charge in tins respect qualified. The final charge of the-court is, after the colloquy with counsel, that the jury should give to the full damages that will be adequate to the money loss sustained, and the only limitation which the court placed upon what would be the full and adequate money loss was the sum demanded in the complaint. By calling attention to the amount of the demand in the complaint, and accompanying it by the statement that they could award no more, it left the jury at liberty to award that sum. The rule of law upon which the damages were to be measured was correctly stated by plaintiff’s counsel — that they should be adequate compensation for the injury. The learned judge emphasized this by the statement that the jury could give full damages adequate to the money loss. Without passing upon the question whether technical error was committed in the charge which was the subject of the exception, we are of opinion that the charge conveyed to the jury a wrong impression as to the extent of what would be adequate compensation, which may have led them to award the very large verdict which they did— a verdict which seems excessive in amount, based upon any fair construction of the evidence. Upon the whole case we are satisfied that this verdict may have, and quite likely did, proceed from other considerations than those presented by the testimony, and that justice requires the ordering of a new trial. ’ ’

In that case the instruction read “Sixty thousand dollars has been claimed in this complaint. You can not give any more than that.. You will- not give any more to this plaintiff because this defendant is a corporation, nor will you give any less because it is a corporation. You will not give anything to this plaintiff out of pure sympathy, either- by way of giving’ her a verdict at all or by way of increasing the amount, because of sympathy alone. - By that I do not mean to say that you are to harden- your hearts, and to be unkind and unfeeling, because nothing of that kind is required of you; but I want to impress upon you that your duty is, under the law, to give only the pecuniary damages sustained by rea-son of this hurt, if you decide to give her anything. ... You will give her whatever you find that damage has been. If you decide to give her anything, to the full amount, without any reservation, giving her all that she is entitled to by way of compensation for the pecuniary or money loss she has sustained by reason of the hurt that has come to her.”

In Railroad v. May, 33 Ill. App. l. c. 369, the court says: “There is a further objection to said instructions. All of them contain the significant suggestion to the jury that the damages to be awarded are not to exceed the sum of $5000. The verdict is for just $5000. The instruction numbered six does limit the damages to those sustained up to the commencement of this suit, and therefore we must conclude that damages for any permanent injury, which in cases like the present usually constitute the most important basis for allowing damages, were not estimated by the jury in reaching the verdict. The conclusion is almost irresistible that the ‘damnable iteration’ of the phrase ‘five thousand dollars’ in all the instructions relating to damages had the effect of inducing the jury to fix on just that sum:”

The Supreme Court of that State has likewise announced itself. In Railroad v. Austin, 69 Ill. l. c. 428, that court said: “But it is complained, by appellants, improper instructions were given for the plaintiff, and proper ones refused to the defendants. In examining the instructions, which are very voluminous on both sides, and for the most part given as asked, we have directed our attention to the fifth and tenth instructions given for the plaintiff, which we- are satisfied should not have been given, and which, being given, might have contributed very much to the finding of the jury. The fifth is,in these words: ‘The jury are instructed that, by the statute of Illinois, the plaintiff in this case cannot recover more than five thousand dollars, and if they believe from the evideuce, that the plaintiff is entitled to recover they will render a verdict for no more than that amount.’ By all the rules of philology, that is but telling the jury they must render a verdict for five thousand dollars. It is true, the jury did not render such a verdict, but was it not a strong, persuasive argument addressed to them by the court to render a large verdict? The court says to the jury, in effect, You cannot render a verdict for more than five thousand dollars, but it is expected you will render a verdict for that amount. Such an instruction could not fail to have had an improper influence on the jury, and, in a doubtful case like this, the verdict, rendered either way, not subject to be disturbed, to tell the jury they must find to the extent of the law, was improper, and ought to prejudice the finding.”

In a later New York case, Gilbertson v. Ry. Co., 43 N. Y. Supp. l. c. 784, the Supreme Court of New York said: “Upon the termination of'the judge’s charge, the counsel for the plaintiff made the following request: ‘I ask your honor to charge the jury that, taking all the elements into consideration, the jury may award her compensation, fair, reasonable, and just, to any amount not exceeding thirty thousand dollars.’ This the court charged, and the defendant excepted. This was an intimation to the jury that, under the evidence which had been produced upon the trial, they would have had the right to render a verdict for $30,000 which was clearly not the fact; and this intimation upon the part of the court' in regard to the nature of the evidence may have affected their consideration, and may have been in some degree the cause of the large verdict which was rendered. Such a charge was eminently calculated to mislead the jury, and to cause them to regard the evidence of the injuries sustained as of greater gravity than its actual purport required. The learned court did not charge that the plaintiff claimed $30,000, and that the jury were entitled to award such sum as the evidence justified not exceeding that amount, but did charge them that they might award $30,000; clearly intimating that such a verdict might be upheld upon the evidence in the case.”

So, too, says the Supreme Court of Georgia in Bryan v. Acee, 27 Ga. l. c. 92: “A verdict for two thousand dollars, under the evidence, would, in our judgment, have been excessive, and yet the court charged the jury that if they should believe the plaintiffs were entitled to exemplary damages, the law left it to their discretion ‘to say what the amount should be, and they could find any amount they thought, proper, provided they did not go beyond the amount claimed in the declaration.’ We must suppose that this charge of the court exerted an influence over the mind of the jury, as to the amount of damages, especially when they found a verdict for more than double the value of the property, proven by any witness. Believing that the charge of the court was. wrong, and to the injury of the party, we are bound, to grant a new trial. In all other respects, we think the charge was unexceptionable, at least it was so in the opinion of two of the members of the court.”

To like effect is a decision from Texas, Willis & Bro. v. McNeill, 57 Tex. l. c. 478, whereat the court says: “Although it is common to use such expressions as that objected to in the thirteenth assigned', error in charges to the jury, and they may be said to-be authorized by that part of the pleadings in which the plaintiff alleges the amount of his damages, yet. the practice is subject to objection. It is a well known fact that it is the almost invariable rule with the-pleader, as a mere matter of form, to place the general allegation of damage at an amount far exceeding-any reasonable calculation. When, therefore, the jury-are told that, if they find for the plaintiffs, they are-authorized to give damages not exceeding the amount- of formal damages thus laid in the pleadings, they may’ tahe such an expression as an intimation upon the part of the court that the evidence authorized a verdict for the full amount claimed

Along the same line is the opinion of the Supreme Court of Arkansas in Fordyce v. Nix, 23 S. W. l. c. 969, whereat Wood, J., said: “The trial court should not have told the jury, however, that if the conduct of the appellant was wilful, etc., ‘they may allow him additional vindictive or punitive damages,’ ‘not exceeding the amount sued for,’ the objection being to the words, ‘not exceeding the amount sued for.’ Verdicts of juries in actions sounding in exemplary damages, while they cannot exceed the amount claimed in the complaint should nevertheless in. each case be reasonable and commensurate with the wrong done, as shown by the evidence adduced. The amount claimed in the complaint is frequently so exorbitant and disproportionate to the facts proven as of itself to suggest prejudice; and to tell the jury in such cases that they might find in any amount, not exceeding the amount claimed, woitld be tantamount to saying that they would be justified in finding an excessive verdict. The Supreme Courts of Georgia and Texas have condemned instructions containing this language. [Bryan v. Acee, 27 Ga. 87; Willis v. McNeill, 57 Tex. 465.] ”

That such an instruction as given in this case is liable to mislead a jury we have no question. Personally we think that it is reversible error, but such does not seem to be the rule of this court. In a review of our cases in Lessenden v. Mo. Pac. Ry. Co., — Mo. —, just handed down at this sitting of the court, Valliant, J., goes fully into the question. Yielding to what I think is an erroneous holding upon the part of our court, the objection to this instruction will have to be overruled. I can but repeat that .such an instruction is an intimation to the jury that their finding for the full amount would meet with the approval of the court and that such an intimation in a case of this kind is sufficient for the average jury.. In this case it is true the full amount was not given,, but the amount given would be one 'of grave concern were it a record without other error.

III. It is urged that the trial court erred in refusing to grant a demurrer to the whole evidence. Defendant’s evidence did not assist the case made by plaintiff. Reduced to a final analysis, it occurs to us that plaintiff’s case turns upon the question as to whether or not defendant furnished .to him a reasonably safe place within which to work. That such' question is determined by the further question whether or not it was negligence upon the part of defendant to have its side track lower than its main line track, and if it was negligence, then whether such negligence was the proximate cause of the injury. Defendant urges that under the plaintiff’s evidence it is not clear that such condition was the cause of the injury, but that from the plaintiff’s own statement he could have alighted from the engine by holding on to the hand rail, in such a manner as to have obviated contact with the flat car. "Whether plaintiff made a case is a close question under the facts. Upon the present record we should .say not, but there is so much which was not developed upon either side, that we will not provide a further inquiry. For instance it is shown in the evidence that this yard is what is known as a gravity yard. That is to say, as we infer from the record, the switch tracks at certain points must be lower than the level of the main track, so that cars will run down the switch tracks, and not run back. The inference from the facts shown is that it is usual in gravity yards to have these switch tracks lower, and the difference of height between the two would depend upon the length of the switch. Part of the evidence indicates that the difference at this point was from 12 to 18 inches, whilst on the other hand it was shown to he 6 or 7 inches. Bnt be this as it may the evidence in this record is so scantily developed we hardly feel like passing definitely npon the question as to whether or not plaintiff made a case for the jury. We prefer to leave that for further developments upon both sides. If these are gravity yards, and if the construction was the ordinary and usual construction for such yards, then there is no case for plaintiff, but. this point is not developed, except inferentially by either side. Plaintiff makes no proof of unusual construction for gravity yards, and defendant contents itself with scantily proving that they are gravity yards, without developing the point.

We are inclined to think that justice will he sub-served by reversing and remanding the case. It is-so ordered.

Woodson, J., concurs in all except the order remanding the cause; Lamm, J., concurs; ValUant J., concurs in result.


author: BROWN, J.

text:
    JEFFERSON BANK v. MERCHANTS REFRIGERATING COMPANY, Appellant.
    Division Two,
    July 8, 1911.
    1. JUDGES AS JURY COMMISSIONERS: Increase of Salary. The statute (See. 7319, R. S. 1909) which constitutes the judges of the circuit court of Jackson county and the judge of the court having jurisdiction in felony cases a board of jury commissioners, is not subject to attack on the ground that it increases the salary of said judges during the terms for which they were elected, in a civil suit in which a motion to quash the panel of jurors is filed. Whether such judges receive an increase of salary contrary to the Constitution, by rendering services as jury commissioners, does not affect the validity of their acts as such commissioners.
    2. -: -: Validity of Acts Not Dependent on Salary. When the law requires specific service to be performed by a public officer, he must perform that service regardless of whether any provision has been made to pay him therefor. Even though that part of the statute which gives to each of those judges a special salary of $1500 per year in payment of their services as jury commissioners is invalid, they would still be required to perform said services, without compensation, and their acts in drawing and selecting jurors could not be challenged in a suit on a check.

      3. DEPOSITION: Read By Adversary. Plaintiff has the right to read, a deposition taken by defendant, and, in the argument of his counsel to the jury, they have the right to refer to the fact that it was taken by defendant, and to make a truthful recital of the testimony therein.
    4. INSTRUCTIONS: When Not Considered. When upon the admissions of the parties and the undisputed facts proven, the plaintiff was entitled to an instruction directing the jury to return a verdict in his favor, errors in the instructions will not be considered on defendant’s appeal.

      5. CHECK: Purchaser or Indorsee for Collection. Where the evidence is undisputed that the bank permitted the payee of a check drawn by defendant to deposit the same and to draw out the whole amount thus deposited on the same day the deposit was made, the defendant is not entitled to have the issue of whether or not the check was indorsed to the bank for collection submitted to the jury, for these facts constituted the bank a purchaser of the check for value. And the fact that the payee was a purchaser is further established by the fact that every business day for nearly three weeks the payee had deposited checks in said bank and oii the same day the deposits were made was permitted to check out the amounts so deposited.
    <5. --: -: Printed Notice: Waiver. And where such a course of dealing has been established by the undisputed facts, it will be held that the bank waived an indorsement printed on the cover of the deposit book of the payee 'of the check to the effect that the bank only received out-of-town checks subject to collection.
    7. -;-; Consideration: General Indorsement: Notice. A general indorsement on a check constitutes the bank with which it is deposited by the payee a purchaser, for value, without notice that it was issued without consideration.
    8. -: -: Letter to Drawee. The fact that the plaintiff bank in which the payee deposited a check wrote a letter to the bank on which the check was drawn stating that it inclosed the check for collection, is no probative evidence that the plaintiff received and held such check for collection. The same kind of a letter would have been written if plaintiff had been the owner of the check.
    9. -: -: Demand of Payment. A bank which has paid a check is entitled to demand payment from both the maker and indorser or payee; and a demand of payment from the payee is not evidence that the bank was not the owner of the check.
    Appeal from Jackson Circuit Court. — Hon. Hermann BrumbacJc, Judge.
    Affirmed.

      Clement A. Lawler for appellant..
    (1) The court erred in overruling defendant’s motion to quash the jury panel. The law under which said panel was drawn is unconstitutional in that it violates Sec. 8 of Art. 14, of the Constitution of Missouri. State ex rel. v. Smith, 87 Mo. 158; County v. Henderson, 119 Mo. 32; Stanbury’s Case, 8 Wall. (U. S.) 33; Heslep v. Sacramento, 2 Cal. 580; Stockton v. County, 11 Cal. 113; State v. Brewer, 49 Ala. 130; Throop on Public Officers, sec. 478; Evans v. Trenson, 24 N. J. L. 764. (2) The court erred in refusing to discharge the jury as requested by defendant and again in refusing to strike out the deposition of Kroeger and continue the cause as requested by defendant. The remarks of plaintiff’s counsel in reference to said deposition were improper and prejudicial. Chowning v. Parker, 104 Mo. App. 674; Gibson v. Zeibig, 24 Mo. App. 65; Levels v. Railroad, 196 Mo. 606; Williams v. Railroad, 123 Mo. 573; State ex rel. v. Claudius, 1 Mo. App. 551; 1 Thompson on Trials, secs. 955, 958, 960; Berry v. State, 10-Ga. 511; Marble v. Walters, 19 Mo. App. 134; Haynes v. Trenton, 108 Mo. 123.

      Leon Bloch and Bloch-& Sullivan for respondent.
    (1) The law under which the jury was drawn and impaneled is eonstituitonal. State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Bus, 135 Mo. 325; State ex rel. v. Rombauer, 101 Mo. 499; Cunningham v. Railroad, 165 Mo. 270. The only ground upon which the constitutionality of this statute is attacked here is that said statute is contrary to the provisions of Sec. 8 of Art. 14, of the Constitution, reading: “The compensation or fees of no state, county or municipal of-' ficer shall be increased during his term of office.” A circuit judge is not a state officer. His is an office under the state or under the authority of the state. State ex rel. v. Rombauer, 101 Mo. 499. A state officer is one whose duties are co-extensive with the boundaries of the State. Ibid; State ex rel. v. Dillion, 90 Mo. 229; State ex rel. v. Bus, 135 Mo. 325. A circuit judge is not a county officer because his duties extend over an entire circuit which frequently embraces several counties. Of course, a circuit judge is not a municipal officer. State ex rel. v. Bus, 135 Mo. 325. Plence being neither a state, county nor municipal officer, Sec. 8 of Art.- 14, relied upon by appellant, does not apply. This compensation is for extra services; hence the law is constitutional. Cunningham v. Railroad, 165 Mo. 270. Duties which are not judicial may be performed by a judicial officer. State ex rel. v. Higgins, 125 Mo. 364. The payment or non-payment of this additional compensation to the judge is no concern to the litigant; that is a matter between the judge and the state or the county. Cunningham v. Railroad, 165 Mo. 270; State ex rel. v. Wilder, 105 S. W. 272. Furthermore, even though that provision of the statute providing for the additional compensation be unconstitutional, that would not render the other provision ^ of +bn statute appointing the judges jury commissioners and providing the' method for drawing ■and impaneling the jury unconstitutional. A part of a statute may be unconstitutional without rendering the whole statute void. Shively v. Lankford, 174 Mo. 535; Birch v. Plattsburg, 180 Mo. 413; State v. Swagerty, 203 Mo. 518; State v. Bockstruck, 136 Mo. 336. (2) Even if the check had been endorsed “for collection” yet the bank having in pursuance of the prearranged mode of dealing placed the amount thereof to the credit of the Produce Co., and the latter having drawn against the same as cash, this made the bank a purchaser of the title for value, even though the bank had the right, upon non-payment of the check, to charge it back to the Produce Co. Áyres v. Bank, 79 Mo. 421; Dymock v. Bank, 67 Mo. App. 97; Kavanaugh v. Bank, 59 Mo. App. 540; Bank v. Roll, 60 Mo. App. 585; Flannery v. Coates, 80 Mo. 444; Armstrong v. Bank, 133 U. S. 433. (3) Even though some slight error crept into the instruction, yet under the’ pleadings,' admissions of counsel and uncontradicted evidence, the court would have been justified in peremptorily instructing the jury to find for the plaintiff. Ayres v. Bank, 79 Mo. 421; Dymock v. Bank, 67 Mo. App. 97; Kavanaugh v. Bank, 59 Mo. App. 540; Bank v. Eoll, 60 Mo. App. 585; Hendley v. Eefinery Co.-, 106 Mo. App. 20; Bank v. Bennett, 114 Mo. App. 691; Bank v. Hainline, 67 Mo. App. 483; Mosby v. Comm. Co., 91 Mo. App. 500; Brewery v. Lindsay, 72 Mo. App. 591; Hawes v. Mnlholland, 78 Mo. App. 493; Wolff v. Campbell, 110 Mo. 114. (4) The court did not err in refusing to strike out the deposition of Kroeger and continue the cause as requested by defendant. The remarks of plaintiff’s counsel referring to said deposition were in no way prejudicial. State v. Emory, 79 Mo. 461; Yawter v. Hultz, 112 Mo. 633; State v. Punshon, 133 Mo. 44; Franklin v. Eailroad, 188 Mo. 534.
   BROWN, J.

Action against drawer of dishonored bank check. From a judgment for plaintiff, defendant appeals.

On July 15, 1904, plaintiff was a banking corporation in the city of St. Louis, Missouri; defendant was a business corporation of Kansas City, Missouri; and a third corporation, the Mound City Produce Company, was a business corporation of St. Louis, Missouri.

On the last mentioned date, defendant issued and mailed to the Mound City Produce Company a negotiable bank check for the sum of $1491.25, payable by the National Bank of Commerce, Kansas City, Missouri. This check was received by the Produce Company on July 16, 1904. July 17th fell on Sunday; and on July 18, 1904, said Produce Company transferred this check, by unrestricted indorsement, to the plaintiff, and deposited same in the plaintiff bank, together with other checks and items, amounting to more than $10,000. On the same day, said Produce Company drew its checks on the plaintiff bank to an amount exceeding all of its deposits, including the check above mentioned; which checks were on that day honored and paid by the plaintiff bank. The check so issued by defendant was forwarded by plaintiff to Kansas-City on said 18th day of July, 1904; but on July 19, 1904, and before said check could be presented for payment by the agent of the plaintiff bank, defendant directed the National Bank of Commerce to refuse payment on the same; which was accordingly done, and the check protested for non-payment.

Whereupon, plaintiff sued defendant for the amount of the check, alleging that it became- the purchaser thereof for value.

Defendant resisted payment of the check on the following grounds:

(1) . That is was never at any time indebted to the Mound City Produce Company in any sum whatever ; and that the issuance and delivery of said check to said Produce Company was a mere oversight or mistake of the defendant, and therefore the check was issued without consideration.

(2) . That plaintiff is not the purchaser of said check for value.

(3) . That plaintiff is not the real party in interest in this cause.

(4) . That said check was only indorsed to plaintiff for collection; that the real title to said check was retained by the Produce Company.

Defendant asks a reversal of the judgment for the reason that the trial court committed error in refusing to quash the panel of the petit jury which tried this cause, on the ground that the law which makes the judges of the circuit court of Jackson County, jury commissioners, is in violation of section 8, article 14, of the Constitution of Missouri.

Defendant also complains that the trial court committed reversible error in allowing plaintiff to read in its behalf a deposition taken by defendant; and to refer to said deposition as the evidence of one of defendant’s witnesses.

Defendant further complains of the instructions given on behalf of plaintiff, and the refusal of the court to give certain instructions asked by defendant; but the conclusions we have reached in this cause will render it unnecessary to consider whether or not these instructions were in proper form.

The only evidence in any way tending to support defendant’s answer was a printed indorsement on the cover of the deposit book of the Produce Company, containing these words: “This bank in receiving-out of town checks and other collections, acts only as your agent; and does not assume any responsibility beyond •due diligence on its part, the same as on its own paper. Jefferson Bank;” together with a letter written by plaintiff bank, transmitting the check to the National Bank of Commerce, of Kansas City, which is in the following words:

■“National Bank of Commerce,
'Kansas City, Missouri.
“Dear Sirs:
“I enclose for collection and return items stated below.
“Yours respectfully,
“W. E. Berger, Cashier.”

Defendant neither proved nor offered to prove that plaintiff bank had any notice that the check had been issued by mistake or without consideration before it received said check and allowed the Produce Company to collect the amount thereof through checks issued on the plaintiff bank.

I. The Act of 1905 (Sec. 7319, R. S. 1909) which constitutes the judges of the circuit court of Jackson county and the judge of the court in that county having jurisdiction in felony cases, a board of jury commissioners, is not subject to attack on the grounds assigned by the defendant, to-wit: that it increases the salary of said judges during the terms for which they Avere elected.

This law casts upon such judges the duty of selecting and draAving juries to try cases pending before them and provides a special salary for such serAdces. Whether such judges receive an increase of salary contrary to section 8 of article 14 of our Constitution, for services rendered as such board of jury commissioners, does not in the least affect the validity of their acts as such jury comissioners. When the law requires a specific service to be performed by a public officer, he must perform that serAdce regardless of whether any provision has been made to pay him for same. [Williams v. Chariton County, 85 Mo. 645; State ex rel. v. Wofford, 116 Mo. 220; State ex rel. v. Brown, 146 Mo. 401.]

The compensation of judges of trial courts is regulated by statute, and if that part of section 7319, Revised Statutes 1909, which gives to such judges a special salary of $1500 each per year for acting as jury commissioners is invalid, then said section stands as though said judges had been required to perform those duties without compensation; and their acts in drawing and selecting jurors could not be challenged. Their right to collect such special salary is not before us, and we express no opinion on that point.

II. The contention of defendant that the trial-court erred in allowing plaintiff to read the deposition of a witness taken on the part of defendant, and in allowing plaintiff’s attorney to refer to said deposition as having been taken by defendant, must be overruled. Plaintiff had the right to read said deposition.. [McClintock v. Curd, 32 Mo. 411; Watson v. Race, 46 Mo. App. 546.] The mere reading of the deposition itself disclosed the fact that it was taken on behalf of the defendant. The remark of plaintiff’s attorney was merely a truthful recital, or description of the document he was about to read, and affords no ground of complaint on the part of defendant.

III. We find it unnecessary to discuss the instructions given in this case, because on the admissions of the parties and the undisputed facts as proven, the plaintiff was entitled to an instruction directing the jury to return a verdict in its favor.

We are not able to see how defendant could be entitled to submit to the jury the issue of whether or not the check was indorsed to the plaintiff for collection; because the evidence is uncontroverted that plaintiff allowed the Produce Company to draw out the whole amount of the check so deposited, on the very day of said deposit; and this constituted the plaintiff a purchaser of said check for value. This conclusion is also sustained by the course of dealing between plaintiff and the Produce Company, from which it appears that on every business day between the 1st and 18th of July, 1904, the said Produce Company deposited checks in the plaintiff bank, and was allowed by plaintiff to check out the amounts so deposited on the very days the deposits were made. In view of this course of dealing, we are warranted in holding that the indorsement printed on the cover of the deposit book of the Produce Company, to the effect that plaintiff only received out-of-town checks subject to collection, had been waived by plaintiff bank; a right it unquestionably had. The question of whether ór not a check is received for collection or is purchased outright by a banker usually arises where the indorsements on the check are of a restrictive nature; such, for instance, as where the indorsement shows that it is merely made for the purpose of collection. However, in this case the indorsement was general, and upon the hneontroverted facts proven, constituted the plaintiff a purchaser for value without notice that the check was issued without consideration. [5 Cyc. 498; Ayres v. Farmers and Merchants Bank, 79 Mo. 421; Kavanaugh v. Bank, 59 Mo. App. 540.]

We do not consider the fact that plaintiff wrote a letter to the Kansas City Bank stating, that it inclosed this check for collection as any evidence that it held such check only for collection. The same kind of letter would have been written if plaintiff had been the owner of the check; so that letter has no probative effect as indicating that the plaintiff was the mere agent of the Produce Company for collection of the check. Neither is the fact that the plaintiff demanded of the Produce Company that it pay the check, any evidence that plaintiff was not the owner thereof. Plaintiff had a right to hold both the maker of the check and the indorser 'thereof for the amount it had paid.

There was no reversible error committed in the trial; the judgment is for the right party; and it is therefore affirmed;

Kennisb, P. J., concurs; Ferriss, J.,absent.