author: BROWN, C.

text:
    CLARENCE CAMPBELL, JR., by CLARENCE CAMPBELL, his Next Friend, v. UNITED RAILWAYS COMPANY.
    Division One,
    May 31, 1912.
    1. NEGLIGENCE: Electric Wires: Maintained in Public Place: Degree of Care. It is the province of those maintaining in a public position electric wires which may become dangerously charged, to consider that danger, and, if it exists, to use every protection reasonably accessible to prevent it and the utmost care to keep such wires in a safe condition. Any neglect of these precautions is such negligence as will render the one so negligent liable in damages for personal injuries directly resulting therefrom.
    2. -: Definition. Negligence is the failure to exercise the degree of care which prudence requires under the circumstances of each particular case.
    3. -: Electric Wires: Maintained in Highway: Prima Facie Case. The defendant maintained within a public highway an electrical construction consisting of a strain and a pull-off wire running from a charged trolley wire to a post, and a guy wire which touched those wires upon the post and ran to another post standing three feet from.the ground. A circuit breaker was inserted in the strain wire which, when in order, prevented the passing of current from the trolley wire, but this circuit breaker could be rendered ineffective by lightning, and the defendant maintained no system of inspection. Finally, a small wire had been attached by a neighboring landowner to the guy post, touching the guy wire, and this small wire ran for a short distance beside a cinder path along the highway. The plaintiff was injured by an electrical current received by touching the small wire beside the cinder path. Held, that these facts constitute prima facie evidence of the negligence of defendant, that the injury to the plaintiff resulted from such negligence, and that in the absence of evidence tending to rebut the presumption so raised the plaintiff was in law entitled to a verdict.
    4. -: Verdict: Grounds of Revision by Appellate Court. In cases where there are elements of damage not susceptible of mathematical reduction to terms of money, the amount is, to a greater or less extent, a matter of opinion, founded upon the facts in evidence and such inferences as may be legitimately drawn therefrom. Whether or not the fact tends to support the inference is, in proper circumstances, a question of law, and it is upon some such grounds that appellate courts have reserved to themselves the power to judicially declare that the jury has exceeded its limit, and to refuse to sustain its action.
    5. -: -: Excessive. Where the plaintiff was, when injured, a healthy boy twelve years old, and by the injury from an electric current he lost his hand, his growth had, at the time of the trial, stopped for fifteen months, some of his teeth had fallen out and the enamel had' been destroyed while the gums had receded, his ears as well as his speech were affected, he had grown timid- and nervous and his ability to learn had been impaired, four surgical operations had been performed, the suffering was intense and his physician said that, while he seemed to be improving at the time of the trial, it was pretty hard to say whether he would recover, it is held that a verdict for $20,000 was too large by $10,000.
    Appeal from St. Charles Circuit Court. — Hon. J. D. Barnett, Judge.
    Affirmed (conditionally).

      T. E. Francis, Boyle & Priest and T. G. Bruere for appellant.
    (1) The court erred in refusing to direct a verdict, for the reason that plaintiff’s evidence and the undisputed and indisputable physical facts established, that the insulation in the wires was performing its functions perfectly until within a few minutes before plaintiff was injured, and appellant was not shown to have been guilty of negligence thereafter. Strack v. Tel. Co., 216 Mo. 601; Clonts v. Gras Co., 144 Mo. App. 582; Brown v. Light Co., 137 Mo. App. 718. The Von Treba (2091 Mo. 648), Geismann (173 Mo. 654) and Gannon (145 Mo. 502) cases are distinguishable from the case at bar in that: (a) The wire causing the injury here was not owned by defendant nor possessed or controlled by it; hence the res ipsa loquitur doctrine does not apply. Thompson on Negligence, sec. 7635; Scott v. Dock Co., 3 Hurl. & C. 596 ; 29 Cyc. 592; McNamara v. Railroad, 202 Mass. 491. (b) The pleader here specified the particular defect complained of and hence could not recover under a presumption of general negligence. Waldhier v. Railroad, 71 Mo. 514; Roscoe v. Railroad, 202 Mo. 587; Beane v. Transit Co., 212 Mo. 352.. (c) The facts showing appellant was not negligent, and which would rebut a presumption of negligence, were it a proper case it indulge in such presumption, were developed in plaintiff’s case, thus making it the duty of the court to declare the effect of such facts as a matter of law. (2) The verdict is so grossly excessive as to be indicative of bias and prejudice on the part of the jury against appellant. Brady v. Railroad, 206 Mo. 509; Phippin v. Railroad, 196 Mo. 321; Stolzie v. Transit Co., 188 Mo. 580; Devoy v. Transit Co., 192 Mo. 197; Dean v. Railroad, 229 Mo. 425.

      Randolph Laughlin and J. B. Garter for respondent.
    (1) (a) Appellant’s duty to abate the Hogg wire, arose, not at that barren and belated moment when it knew that said wire had become, actually charged with electricity, but in the more ancient and auspicious epoch when it knew (or by the exercise of ordinary care would have known) that said wire was in a potentially dangerous situation, and was apt to become charged with electricity at any time. Brubaker v. Light Co., 130 Mo. App. 449; Brown v. Light Co., 137 Mo. App. 734; Harrison v. Light Co., 195 Mo. 631. (b) This being the law, and respondent having specifically pleaded and proved a charge of negligence in accordance with this doctrine, appellant’s points 1-a and 1-b are mere academic questions, whose decision is not necessary to the decision of this case. (2) (a) If the verdict were excessive, it would be cured, not by reversal and remandment, but by remittitur. Moore v. Transit Co., 226 Mo. 707; Clifton v. Railroad, 232 Mo. 708; Cook v. Printing Co., 227 Mo. 471. (b) But the verdict is not excessive. Brady v. Railroad, 206 Mo. 509; Phippin v. Railroad, 196 Mo. 321; Stolze v. Transit Co., 188 Mo. 580; Devoy v. Transit. Co., 192 Mo. 197; Dean v. Railroad, 229 Mo. 425; Waldhier v. Railroad, 87 Mo. 37; Ma.rkey v. Railroad, 185 Mo. 348; Reynolds v. Transit Co., 189 Mo. 408; Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 141 Mo. 112; Clark v. Railroad, 234 Mo. 434. (c) The evidence of the extent of respondent’s injuries is uncontradicted, and should be taken as true, and considered with the law in view which makes the jury, in the first instance, and the trial judge, in the second- instance, the judge of the amount of the recovery. Clark v. Railroad, 234 Mo. 428; Dean v. Railroad, 229 Mo. 425. (d) We think that it should also be considered with the fact in view that living is more than twice as expensive now as it was when the early precedents were established; that it costs more than twice as much to keep an invalid now as it did then; and that the court should keep abreast of the times, and should administer justice with regard to the extrinsic conditions, as well as the intrinsic injuries, of the victim.
   BROWN, C.

This suit was instituted in the circuit court for St. Louis county November 15,1907, and was thence removed to the circuit court for St. Charles county, where it was tried September 14-18, 1908. Its object is to obtain damages for personal injuries sustained by the infant plaintiff by coming in contact with an electric wire through the alleged negligence of the defendant. The plaintiff was at the time of the injury twelve years old. The defendant operated a line • of electric railway extending from the western limits of the city of St. Louis to Creve Coeur Lake in St. Louis county, a distance of about thirteen miles. Electricity for the operation of its cars was transmitted in direct currents from its transforming stations at each end of the line hy a system of overhead construction consisting of feed and trolley wires suspended on poles. The direct transmission to the propelling motors of the car was from a trolley wire suspended as nearly as practicable over the center line of each' of the two tracks of the double track road. These, wires were of copper, three-eighths of an inch in diameter, and entirely naked, so as to admit of the continuous contact of the trolley attached to the car, and carried an electrical current of 550 volts of electromotive force.

At a point approximately in the middle of its line the road crosses, upon a curve convex to the north, a travelled highway known as the Walton Road. At this point the trolley wires were supported and held in position hy the following construction: Two poles sunk in the ground opposite each other on either side of the road, the one on the outside of the curve being so planted as to lean slightly from the track. Opposite to the outside of this, and about four feet further away from the track, a post was sunk and firmly anchored in the ground, extending about three feet above its surface. A large wire called a guy wire was then wrapped around the pole near its top, stretched tightly and wrapped around the top of the post, which was called a guy post. The poles so secured were supposed to have the strength necessary to resist the tensile strain of the wire construction between them. A wire was then stretched between the tops of the two poles, and firmly fastened at each end by wrapping aronnd them. This cross wire seems to be known as a “span wire,” and at a point above the center of each track its structure consists of a short sickle shaped piece of metal with the opening beneath, the function of which is to suspend the trolley wire. The poles along the north side of the railroad are numbered consecutively, the one in the east side of the Walton Road, .where this accident occurred, being numbered 258. It seems to be practically conceded that this post stood within the limits of the road, in which, along the same side, at various distances from but' always near to the highway limit, ran a cinder path which answered the purposes, of a sidewalk.

North of the guy post which we have described and extending, from the Walton Road east about three hundred feet was a tract of land about twenty feet wide.. This was bounded on the south by the defendant’s right of way, and on the north by the lot of Mr. George R. Hogg, which was fenced along the south side by a woven wire fence supported by cedar posts, and upon which Mr. Hogg resided. This strip had, years before, been dedicated as a public highway known as Midland Boulevard, but as that portion of the street had been practically destroyed by a railway cut just east of the Hogg premises its use had been abandoned, and Mr. Hogg determined to render it less unsightly by plowing it up and seeding it in grass; which he proceeded to do, and in April, 1907, for the purpose of keeping stray stock from the premises, he attached an ordinary wire clothes line to the defendant’s guy wire near the -top of the guy post, and stretched it to the corner of his own fence to which he fastened it, supporting the middle upon an ordinary broom stick-Whether this was in contact with the metal portion of Mr. Hogg’s fence, or was only wrapped around the cedar post at the corner, does not clearly appear.

There is some evidence that another wire called the “pull-off wire” was attached to the pole standing in the "W'alton Road and extended thence to the trolley wire over the north track at some point between that pole and the next one to the west, for the purpose of p.ulling the trolley wire to a position over the center of the track at that point, but it is admitted that either this wire or the “span wire” was wrapped around the pole in contact with the upper end of the guy wire which was intended to keep the pole in position against a strain which had been sufficient to pull up the guy post with its anchor.

So far as above described the situation was that the trolley wire charged with 550 volts of electric force was in perfect contact with a wire of equal, or at least of great, conductivity, wrapped around the top of the pole; that wrapped in contact with this was another wire called the guy wire which passed down to the post set in the ground, and in perfect contact with this was the Hogg wire which extended to Mr. Hogg’s fence, so that if the Hogg wire should be grounded, or placed in contact with the moist earth, there would be a perfect metallic circuit from the power house of the defendant where the electricity was generated, through the Hogg wire to the earth which afforded the means of restoring the electrical equilibrium, so that the ordinarily innocent clothes line would have become an instrument of great danger. It appears in the evidence that the wooden members of this construction were, of themselves, non-conductors of electricity, while water, like the iron and copper of the wires, is a conductor; so that when the wood becomes saturated with water it becomes a conductor through the property of the water which fills its cellular structure. Water adhering to or running along the surface- of the wood will also conduct the electric current. It also appears that the same phenomenon exists in case of the earth; so that a wire charged with an electric current of high tension, grounded by coming in contact with the saturated earth, will, with the heat developed at the point of contact, frequently dry the earth, and insulate itself by the condition it creates.

The testimony also shows that to modify the obvious danger of such situations as we have described, the defendant used appliances called circuit breakers, for the purpose of insulating, or electrically isolating, that portion of its system of wires which must necessarily remain charged,, from those wires which,, like the guy wire and the Hogg wire, ought not to be charged at all. These circuit breakers consisted of two strong iron hooks contained in a ball of mica, a brittle material, easily crumbled. In the manufacture of this appliance, two of these hooks are placed in such a position that their longitudinal axes correspond, and the hooked ends, in other respects ready to engage, remain separated by about one-eighth of an inch of space at the points nearest to contact, and the ball of mica is then constructed around them, perfectly filling the spaces which separate the iron surfaces of the hooks. Upon the shank of each hook, which extends beyond tho mica ball, is forged an eye through which the wire is bent and tied in place, so that the circuit breaker constitutes a section of the continuous wire, one end of it being charged with a current of electricity which cannot pass the thin film of mica which separates the conducting surfaces of the iron hooks. The evidence tends to show that one of these, either in the span wire or the pull-off wire, constituted .the only impediment to the passage of the current with which the cars were operated, directly into this Hogg wire.

These circuit breakers frequently become worthless by the fusing of the mica which frequently happens from the effect of lightning, or from some other cause 'that permits the surfaces of the hooks to come in contact, so that the appliance becomes a conductor instead of a non-conductor of electricity, and they were sometimes left in place when known to be worthless. When they were found fused it was attributed to lightning; the statement having been made by one of defendant’s witnesses that these thirteen miles of wire would exercise an attractive influence upon that class of electric discharge for a quarter of a mile on each side of the line. The evidence shows that , such guy wires are sometimes protected by wooden casings, so that the naked wires are not easily accessible.

On the afternoon of the accident plaintiff’s mother had been shopping in St. Louis and was expected home over defendant’s line about six o’clock. It had been raining since about four o’clock, and was still raining, when three of her children went down the Walton Road to meet the car and take her an umbrella. Joe, aged eleven, and Nellie, aged eight, started first, barefooted, walking in the mud in the middle of the road-Clarence, who was then twelve years old, and was wearing shoes, went down the cinder sidewalk. He suggested a race, and Joe and Nellie ran on ahead. When they got to the tracks they looked around and saw Clarence lying on his face on the cinder walk, with fire coming from his hands and feet. The Hogg wire had burned off near the fence, and fallen upon or near the path.. The plaintiff had, in some way, come in contact with it, and it is not denied that his injuries were produced by the electrical current of defendant passing from its trolley wire through either the span wire or the pull-off wire, and thence through the guy wire and Hogg wire into his body. The character of his injuries were serious, and the evidence relating to them will be further mentioned in the opinion.

Mr. W. D. Burton, “trouble man” in the employment of defendant, testified for it that he went to the scene of the accident the next morning. He said: “I saw the pull-off wire and back guy wire in contact, and knew where my electricity got out.” The petition specifically charges negligence in the following particulars: (1) In wrapping the guy wire upon the pole in contact with the wire supporting the trolley wire, and maintaining such negligent construction. (2) In not properly insulating the 'trolley wire so as to prevent the electrical current from passing therefrom into the supporting wire. (3) In not properly insulating the supporting wire so as to prevent the electric current from passing into it from the trolley wire, and therefrom into the guy wire. (4) In not properly insulating the guy wire, so as to prevent the electrical current from passing therefrom into the Hogg wire, and so as to prevent the electric current from passing into the lower portion of said wire at all. (5) In not properly inspecting and maintaining the insulation of said wires, and each of them, so as to prevent them from becoming dangerous to persons lawfully passing on and along the Walton Road. (6) In permitting the Hogg wire to be and remain attached to the guy wire for many weeks prior to said June 24, 1907, during all of which time the defendant, by its officers, agents and servants, well knew, or by the exercise of ordinary care would have known that the guy wire was in a dangerous and defective condition, and was in a position well calculated to impart its said danger to the Hogg wire, and in not compelling the abatement and removal of said Hogg wire, and in not taking steps to prevent its electric current from passing into said Hogg wire, which it well knew, or by the exercise of a high degree of care would have known, it was apt to do.

The defendant assigns error on the refusal of the court to direct a verdict for it; also its action with reference to certain other instructions asked by the respective parties.

I. The first error assigned by defendant is upon the refusal of the court to direct a verdict in its favor, on the ground, in substance, that the evidence egtablishes absolutely and indisputably tbe fact that its wires were properly, insulated, and safely performing their functions, until a few minutes before the plaintiff was injured, and that the defendant is not shown to have been guilty of negligence thereafter. Upon this assignment it is necessary to briefly refer to the facts, as well as to the law applicable to them.

Electricity is, perhaps, the most insidious as well as the most destructive of the natural forces of which we are cognizant and have availed, ourselves in the interest of the civilization of this age. It is insidious because it only manifests itself in the exercise of its destructive force. It is hidden from all the senses which constitute human apprehension until it strikes, and then its blow is so deadly that in many jurisdictions it has been selected by law as the surest and quickest, and therefore the most painless instrument available for the destruction of human life in case of judicial executions. ■ What it is, is simply a matter of speculation, for no one has ever seen it. It has been called a fluid, a form of radiation, an induced condition, and perhaps many other things, each of which is as far from expressing a' true comprehension of its-constitution as the others. All we know of it is that experts in -the science have found certain phenomena following certain conditions, and have applied them to many useful purposes in the arts and industries; but our knowledge of the subject is still so limited that we must rely on these experts for information as to the conditions which mean life or death to those who come in contact with them. In this case an innocent looking clothes line, in a place where the public had the -right to be, and where children as well as adults were likely to come in contact with it, was the destructive agent so far as any agency was visible. It drew its baleful energy from an equally innocent looking guy wire, placed in a similarly dangerous relation to those rightfully enjoying the use of the public road. There was nothing in the appearance of either to indicate danger, and the fact that they were so placed was an assertion on the part of those who had so placed them that they were harmless. The guy wire was placed in this public position by those whose calling required that they should be experts in electrical science, and upon whose skill and prudence the public must largely depend for protection. It was their province to consider, in the interest of safety, the danger that this wire might become highly charged with electricity and, if such danger existed, to use every protection reasonably accessible to prevent it, and the utmost care to keep them in such safe condition. [Geismann v. Missouri-Edison Electric Co., 173 Mo. 678; Von Trebra v. Gaslight Co., 209 Mo. 659.] Any neglect of these precautions is such negligence as will render the one so negligent liable in damages for personal injuries directly resulting therefrom.

Negligence is the failure to exercise the degree of care which prudence requires under the circumstance of each particular ease. In this case a trolley wire, charged with a deadly current of electricity, was stretched over the center of one of defendant’s railway tracks opposite the place of the accident. This was in contact with a strain wire, running across both tracks, and fastened in place by being wrapped around the top of a post on each side of its railroad. One of these posts, being on the outside of the curvature, was, in consequence of the tendency of the trolley wire to assume a straight position, subjected to greater strain than the opposite one and was consequently strengthened by a post sunk in the ground three or four feet behind it and firmly anchored and extending about three feet above the surface of the earth, from which another wire, wrapped around its top, was stretched to the top of the pole and there wrapped in contact with either the span wire, or another wire called a pull-off, wrapped around the top of the same pole, and extending to the trolley wire to hold it laterally in position. Which of these two wires was involved in this connection, and carried the offending current in this case is, under the pleadings and evidence, immaterial.

Wood, of which the pole and post were constructed, is a non-conductor of electricity; so that, had the guy wire become charged, it would not have discharged itself into the ground, being insulated by the wood of the post. The earth is also, when perfectly dry, a non-conductor, or at least very imperfect conductor of electricity, so that it would have been possible for a person standing on the dry earth to have held the guy wire in his hand without serious results. Were the earth moist, however, such a position would likely have been fatal. The only thing intended to prevent the charging of the guy wire was an insulator called a current breaker, the distinguishing characteristic of which was the insertion in the strain wire, subject to all the strain of that wire, a ball of mica containing two hooks, separated by about one-eighth of an inch of mica, which was subject to a pressure equal to the strain upon the wire, and which, if crumbled, would permit the hooks to come together and make a perfect conductor of the instrument. It was not only subject to all the longitudinal strain of the wire in which it was inserted, but also to the lateral pressure of the wind, and the shaking incident to the passage of the trolley along the trolley wire. They were also subject to be fused by. lightning, and it was stated by one of defendant’s expert witnesses that the wires of the thirteen miles of road had an attractive influence for such electrical discharges extending a quarter of a mile on each side. Although there was some evidence that another one of these instruments was placed in' the guy wire, it was not important .and would have no bearing upon the question of the negligence of defendant in maintaining the structures just described. The situation was that the defendant had placed in the public road an instrument with, which children and others were liable, in the exercise of their right to use that thoroughfare, to come in contact, and that it was, under some circumstances, liable to be charged with a dangerous current of electricity is demonstrated by the circumstances of this case. That it was the duty of the defendant to use every reasonable means available to prevent injury therefrom we have already seen to be the settled doctrine of this court. To meet this requirement of common prudence it adopted a device, the protecting material of which was easily crumbled, as was shown by experiment in court, and was necessarily subjected to frequent movement under great strain; which was subject to destruction by lightning even in such moderate atmospheric disturbances as the one that took place on the afternoon of the accident, without leaving any visible indication of its inefficiency; and was constantly liable to become useless without any alteration in its external appearance. Instead of the constant anxiety which such a condition would naturally excite, the evidence discloses no system of inspection calculated to disclose defects in this insulation, and it affirmatively appears in the evidence of the defendant that instead of controlling their use by a system of expert supervision, the boss of any one of the many working gangs of the company had the right to determine whether they should be .taken out after having become useless without substituting anything to fill the vacancy. It may be that these appliances constitute the most perfect means known in electrical construction to insulate one end of a metallic member from the other end charged with electricity, but if this is true the evidence of the defendant amply shows that care should be used in its maintenance, and to prevent the flow of fatal results from its failure to work. How this was done is illustrated by the testimony of Mr. Barton, an expert employee of defendant whose duty it was to go to the place of the accident and ascertain what was the matter. He tells in his testimony what he saw when he got there in the following words: “I saw the pull-off ruire and back guy wire in contact, and knew where my electricity got out His company had chosen that the safety of the public which had furnished it the place to plant its pole and strain its guy wire should depend upon the working of an instrument which it admits to be unreliable, when it could have broken the circuit simply by wrapping the two wires that constitute it in sepa-' rate positions upon the pole. There is ample testimony that the construction adopted wa's negligent, and the thing speaks for itself.

The company having chosen to make a continuous circuit from the current of their trolley wire to the attachment of the Hogg wire, only broken by the one or two insulating devices we have described, had created a situation that they were bound to protect against the consequences of its weakness, and the omission of any step necessary to such protection is negligence by virtue of the situation which creates the necessity. The offending guy wire being left' naked by the ’defendant it occurred to Mr. Hogg as a matter of convenience or economy to use it as a portion of his fence. He accordingly attached his piece of clothes line to it in such a way as to form a perfect contact between the two, fastening the other end to his own fence some twenty feet away. This added another element to the danger created by the railway company, by extending its zone about twenty feet along the traveled road. The defendant chose to let it remain in this condition for about two months, a time sufficient to justify us in assuming as a matter of law that by the exercise of the care which the law imposes under the circumstances it would have become aware of this change, thereby assuming the duty of exercising care appropriate to and commensurate with such new condition. It could, however, have detached the Hogg wire, or could have prevented any contact with its guy wire by casing the latter with wood to a sufficient height, which the evidence shows is sometimes done; but having neglected all such precautions it became responsible for the condition it had permitted.

Mr. Hogg’s fence was constructed of woven wire supported by cedar posts. The evidence is not clear as to whether the wire which came in contact .with the plaintiff had been fastened to one of these posts or to the wire structure, or as to whether it had been originally in contact with the wire at all, or as to whether the wire of the fence had been grounded in moist earth up to the date of the accident, so that it is by no means certain that its grounding on that day was not the result of the water which fell in considerable quantities rather than of the action of the lightning. The evidence that the wires were struck by lightning on that date consisted of the statement that the mica must have been fused because it was not performing its office ; the statement that thunder was heard at the office of the United States Weather Bureau in .the city of St. Louis on that afternoon; and the statement of one of the defendant’s conductors that he saw some lightning of the dingle-dangle kind the same afternoon, but that he did not know whether there was any thunder or not. It is not important, however, to consider this question for the case was tried by defendant upon the theory that lightning even of this kind is dangerous to its insulators, and it is therefore one of those incidents which it was the duty of defendant to take into consideration in the interest of public safety.

There being no question in this case that the electric current which injured^ the plaintiff proceeded from á naked wire maintained by the defendant in or upon the line of the public highway, which wire was, at the time, connected electrically with a trolley wire with the current from which its cars were operated, we hold that these facts constitute prima facie evidence of the negligence of the defendant, that the injury to the plaintiff resulted from such negligence, and that in the absence of evidence tending to rebut the presumption so- raised the plaintiff was in law entitled to-a verdict. The evidence being clear and undisputed that notwithstanding the use of the instruments called circuit breakers, the defendant’s guy wire was subject, by the action of lightning under ordinary circumstances, or otherwise, to become dangerously charged with electricity, it was its duty to use such othér means of protection as were reasonably accessible; that in wrapping its pull-off or strain wire in contact with the guy wire by means of which contact the guy wire was charged, and by failing to insulate the same by wooden or other non-conducting casing to a proper height, the defendant failed in the performance of that duty, and has, for that reason, not only failed to meet, but has strengthened, the prima facie case against it. The fact that the Hogg wire intervened, so that the current it carried by reason of the negligence of the defendant was the instrument of the injury, has no tendency to relieve the defendant from liability for its own wrongful act. Under these circumstances it is unnecessary to refer to the questions made by the defendant in his assignment of errors and brief upon the giving and refusal of instructions upon, the question of the right of the plaintiff to recover.

We have carefully examined the case of Strack v. Telephone Co., 216 Mo. 601, upon which the defendant seems greatly to rely, and see nothing in it which conflicts in the slighest degree with the views we have here expressed. In that case the question was whether or not the defendants had been guilty of negligence in maintaining an unused telephone wire, distant, horizontally, fifteen feet from the trolley wire of the street railway. By a severe storm the telephone wire had been broken and thrown across the trolley wire. This court very properly held in that case that there was nothing in the situation of these wires before the storm to indicate danger to the public. • Had the telephone wire been wrapped around the trolley wire a question would have been presented calling, in all probability, for a different result.

II. The real question in this case is whether the jury overstepped the boundaries of its province with respect to the amount of the verdict. No one will deny that it is exclusively within the province of the jury to pass upon questions of fact presented by the evidence, including the assessment of damages in cases where they are not liquidated by law. There are, however, many elements of damage not susceptible of mathematical reduction to terms of money. In such cases the. amount of the resulting damage is, to a greater or less extent, a matter of opinion, founded upon the facts in evidence, and such inferences as may be legitimately drawn therefrom. Whether or not the fact tends to support the inference is, in proper circumstances, a question of law,- and it is upon some such ground that appellate courts have reserved to themselves the power to judicially declare, in such cases, that the jury has exceeded its limit, however dim and shadowy it may be, and to refuse to sustain its action.

The facts in evidence affecting the amount of this verdict are substantially as follows: At the time of the accident, on June 24, 1907, the plaintiff was a “husky” youngster about twelve years old who could plow, drive horses, ride after hounds and had given no evidence of timidity in work or sport. His injury was such as might be inflicted by the passage of a current of electricty through his body from his hand to his foot. Its entry at his hand developed so much heat as to incinerate the flesh and destroy the member. It departed from his body at his feet with similar evidence of heat disturbances. So far as visible effect on the tissues is concerned, the phenomena attending its course through the body is a mystery. The trial took place about fifteen months after the injury. Although he was at a vigorous age, his growth had stopped during the time intervening between the accident and the trial. Some of his teeth had fallen out, and the enamel and enveloping membranes of their roots had been destroyed and his gums had receded, so that the roots of some of them were exposed. His ears were affected so that they gave him pain, and the tissues of the drums had relaxed so that they had become externally concave. His speech was affected. He was timid and very nervous. His power to learn had been impaired so that although he had been able to do as much of the work at school as any of the other boys, he had become nervous and fidgity, so that he could not apply himself to his books. He would study at times and then again was so nervous that it seemed as if he couldn’t study. His-physician described him as biting his fingers all the time as he came down on the cars to the trial. All these things were attributed by the doctor to low vitality resulting from the accident. His family physician said: ‘ Some people, it depends on their age, will recover, as years go on, and he might have a strain or something he wouldn’t recover its pretty hard to say. ’ ’ He was, in the opinion of the doctor, inproving at the time of the trial. Within two months immediately succeeding the accident there were four surgical operations performed on him including one by which a finger had been saved by grafting skin taken from his thigh. His suffering was intense.

The jury, in assessing the damages sustained by the plaintiff, no doubt took, into consideration the, fact of the loss of his hand', not only in an industrial sense, but with respect to its inconvenience in all the other relations of his life. They not only considered his acute physical suffering, but also the mental suffering that would probably result from both the disability and deformity; interference with his education already suffered, and which he wonld probably continue to suffer for. an indefinite time in the future; and the uncertainty as to whether or not the vitality and vigor of mind and body which had before characterized him, and must stand behind all his efforts, would ever be restored. They were undoubtedly influenced more or less by the idea that the wrongdoer should not have the right to set a value on a healthy, intelligent American lad founded upon the efficiency he might probably attain with a pick and shovel. We think the jury had the right to determine this question from the standpoint we have stated. The defendant has seen fit to leave the statements we have referred to unquestioned, and, although sharply contesting the case, and being, no doubt, as in duty bound, in close touch with matters connected with the effect of its own motive power upon the constitutions of its victims, it has chosen to leave the prognosis of the.plaintiff’s witnesses unquestioned. It only remains for us to determine whether these unquestioned facts, including the inferences which the jury might lawfully draw from them, tend fairly to support the verdict.

Considering this question as an original one in this court, we would be slow to hold that, within the limits of this verdict, we might lawfully substitute our own opinion for the unanimous opinion of the twelve men who tried the issue, whose peculiar province it was to determine such questions, and who had before them evidence which might aid us in the consideration of the same question, in the person of the boy himself. In the interest, however, of that uniformity and certainty without which legal process would become a game of chance in which our rights would be the stakes, we must defer to the course of this court so far as it tends to establish a consistent rule of adjudication.

We have not hesitated, whenever the interests of justice have seemed to require it, to exercise a revising control over the amount of the verdict in cases of this character, and it has long been onr practice to enforce that control, in proper cases, by requiring a remittitur as a condition of the affirmance of the judgment. Thus, in Waldhier v. Railroad, 87 Mo. 37, the amount of the recovery was so reduced from $25,000 to $20,000 for loss of both legs below the knee. In Markey v. Railroad, 185 Mo. 348, the recovery for a similar injury was so reduced from $35,000 to $20,000; this court in ordering the remittitur saying: “Thirty-five thousand dollars is a larger award than . . . this court has ever approved. We prefer to adhere to the conservative course that our courts and juries have pursued in the past.. If the jury had awarded the plaintiff $20,000 damages the verdict would have met our approval, but we are not satisfied that it would be just to affirm the judgment for the amount assessed.” In Stolze v. Transit Co., 188 Mo. 581, a similar reduction was made from $15,000 to $8,000 on account of the breaking of both legs. In Phippin v. Railroad, 196 Mo. 321, a like reduction was made from $12,000 to $9,000 on account of the ruin of a hand, all of which was cut away except the thumb. In Brady v. Railroad, 206 Mo. 509, $15,000 was held to be too much, and a reduction to $10,000 exacted on account of the loss of a foot.

In Partello v. Railroad, 217 Mo. 645, the plaintiff was the wife of Major Partello, the military commandant at Fort Reno, and had been accustomed, by virtue of that position, to take a leading part in the social functions at the Fort, was fond of doing her own house work, walking, and riding on horseback, and had the appearance of a strong and vigorous woman. The evidence tended strongly to show that the accident left her a helpless and incurable nervous wreck. It was said in the opinion, none of her bones were broken, and no joint dislocated or injured and there was no apparent disfigurement save a slight mark on the nose. The jury returned a verdict for thirty thousand dollars, from which she voluntarily remitted ten thousand dollars at the hearing of the motion for a new trial. The amount still remaining was held to he excessive and the judgment was accordingly reversed by this court. In Chlanda v. Transit Co., 213 Mo. 244, the plaintiff, who, just before her injury, was said by a physician who then examined her for insurance to have been “a picture of health” and “sound in all particulars,” was injured December 6, 1901. The same physician who had examined her for- insurance afterward examined her at intervals up to about July 26-, 1903, and characterized her condition as that of a physical wreck. It stood “conceded that there were no broken bones.” The verdict was for eighteen thousand dollars, and an order granting a new trial was sustained by this court, which said: “"We are of opinion the order granting a new trial may be sustained on the theory of an excessive verdict somewhat attributable to such overwrought sympathy on the part of the jury as amounts (in legal effect) to prejudice and passion. ’ ’

In Magrane v. Railway, 183 Mo. 119, this control was exercised in a case where improper elements of damage had been submitted to the jury and were presumably included, with proper elements, in their verdict; this court forcing a remittitur to cure the error. This was expressly approved and followed in Moore v. Transit Co., 226 Mo. 689, the court through Fox, J,, saying: “to the end that no injustice be done the defendant, we are inclined to require a substantial remittitur in such amount as in our opinion will fully meet the excess in the verdict by reason of any consideration which may have been given to the objectionable testimony by the plaintiff.”

In Clark v. Railroad, 234 Mo. 396, the opinion de scribes the condition of the plaintiff, injured by coming in contact with an electric wire, as follows: “He is horribly maimed and hopelessly crippled for life, and incapacitated from performing all manner of labor, not even able to feed himself.” The court, speaking through Judge Woodson, said: “The verdict was for $20,000 and for that- reason should be closely scrutinized.” It was sustained.

In Cook v. Globe Printing Company (a case in which no bones were broken), 227 Mo. 471, the court seemed to disregard the twenty thousand dollar dead line, and itself laid the damages which plaintiff ought to recover at fifty thousand dollars; twenty-five thousand of which were specially assessed as compensatory. This does not indicate that, in the opinion of.this court, the plaintiff in that case would have preferred the loss of a leg or arm or both, or the wrecking of his nervous system, to the publication of the article which was the subject of the controversy, but is more in the nature of a tribute to reputation in the abstract. It gave practical voice to the reflection of lago: “Good name in man and woman, dear my lord, is the immediate jewel of their souls.” In doing so it is barely possible that we may not have had vividly in mind another remark of the same sage to his friend Lieutenant Cassio, who complained that he had lost the immortal part of himself — his reputation. lago wisely consoled him thus: “As I am an honest man, I thought you had received some bodily wound; there is more sense in that than in reputation. Keputation is an idle and most false imposition; oft got without merit, and lost without deserving: you have lost no reputation at all unless you repute yourself such a loser.”

We have cited the foregoing cases, not for the purpose of sustaining or showing the power of this court to control the amount of the verdict, but for such hints as they contain as authorities affecting its amount. Although selected for that purpose they are far from satisfactory, not only because each case is necessarily in many respects sui generis, but because juries and even judges must necessarily have and exercise some latitude with reference to personal opinion, although the principles of law are constant.

After careful consideration we have concluded that the judgment (which is for twenty thousand dollars) should be affirmed to the extent of ten thousand, if the plaintiff within ten days after the publication of this opinion enter a remittitur in the amount of ten thousand dollars, as of the date of the rendition of the judgment below, and it is so ordered. Otherwise the judgment will be reversed and the cause remanded for a new trial.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur' except Valliant, </., absent.


source: Caselaw Access Project

author: BOND, Cl

license: Public Domain

text:
    LUTHER HIGGINS et al., Appellants, v. JEFFERSON P. HIGGINS.
    Division One,
    May 31, 1912.
    1. NEW TRIAL: Order: Record Entries. For the purpose of affording a basis for review of the action of trial courts in granting new trials, tlie law requires them to specify of record their reasons for so doing.
    2. -: Verdict: Common Law Power to Set Aside. In addition to its statutory power to award new trials upon the filing of motions as prescribed by statute, the trial court is possessed of an inherent power to set aside any verdict or judgment during the term when it was rendered, but this latter power expires after the end of the term.
    3. -: Appeal from Order: Things Reviewabie. On an appeal from an order granting a new trial it is the duty of the appellant to show that there was error in making it for any. of the reasons assigned. This, however, does not necessitate a reversal of the action of the trial court, for the respondent may call attention to any errors other than those referred to by tbe trial court, contained in the motion for new trial, as a sufficient ground to sustain tbe ruling appealed from.
    4. -: Order Discretionary: Affirmed on any Substantial Evidence. The power of tbe trial court to grant a new trial for the reason that the verdict was against tbe weight of tbe evidence is highly discretionary, and 'its ruling must be affirmed if there was any substantial evidence to support it.
    5. -: Assignment in Motion: “Against the Evidence” Equivalent to “Against the Weight of the Evidence.” , An assignment in a motion for a new trial that “the verdict is against the evidence” was sufficient to invoke the ruling of the trial court on the question of the weight of the evidence.
    6. -: Appeal: Matters Considered. In an appeal from an order granting a new trial in a will contest, the Supreme Court rules simply upon the action of the trial court in granting the new trial on the ground that the verdict was against the evidence, and refrains from any ruling on the legal effect of the evidence as a whole.
    Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.
    Affirmed and remanded.

      J. G. Wilson, A. G. Knight, C. W. Bolster, Robinson & Woods, and F. B. Ellis for appellants.
    The second assignment of the trial court in the order granting a new trial, to-wit: “The verdict is against the weight of the evidence,” is erroneous. Because no such grounds were embodied in the motion for a new trial; indeed such a contention would have been inconsistent with the defendants’ other contention, that there was not sufficient evidence to take the case to the jury, and that the court should give the peremptory instruction, which he says he should have given in his third grounds for sustaining the motion for a new trial. For this assignment assumes that there was evidence pro and eon, but that the greater weight of the evidence preponderated in favor of defendants. It is a rule of procedure and practice in this State, that no grounds will be considered for a new trial, except such as are specified in the motion for a new trial, and it has been expressly ruled in this State, that “the verdict was against the evidence” is not a specification that the verdict is against the preponderance or greater weight of the evidence. Snyder v. Railroad, 85 Mo. App. 498.

      B. E. Musser, B. T. Kesterson, Ira B. Eyde & Bon, E. M. Earber and Orton & Orton for respondents.
    (1) The court made no error in setting aside the verdict on account of his failure to direct a verdict sustaining the will, (a) There was no substantial evidence to overthrow defendants’ prima facie case as to the mental capacity of John M. Higgins to make this will.. Von De Veld v. Judy, 143 Mo. 348; Wood v. Carpenter, 166 Mo. 465; Seibert v. Hatcher, 205 Mo. 83; Defoe v. Defoe, 144 Mo. 458; Southworth v. Southworth, 173 Mo. 59; Weston v. Hanson, 212 Mo. 248; G-ibony v. Poster, 230 Mo. 106; Tibbe v. Kemp, 154 Mo. 545; Crowson v. Crowson, 172 Mo. 691; Sher v. Linderman, 153 Mo. 276. ■ (b) There was no substantial evidence of the exercise of any undue influence over the mind of John M. Higgins by either Jefferson P. Higgins or Harriet W. Higgins. Teekenbrock v. McLaughlin, 209 Mo. 543; Wood v. Carpenter, 166 Mo. 465; McPadden v. Catron, 138 Mo. 209; Riley v. Sherwood, 144 Mo. 354; Rankin v. Rankin, 61 Mo. 295; Schierbaum v. Scheme, 157 Mo. 1; Tibbe v. Kemp, 154 Mo. 545; Crowson v. Crowson, 172 Mo. 691. (2) The court committed no error in setting aside the verdict in this case as against the weight of the evidence. (a) The court has the power to set aside a verdict and grant a new trial upon a ground not contained in motion for new trial and there is nothing in plaintiffs’ contention that the statement in the motion “that it is against the evidence” does not raise that question. Lowell v. Davis, 52 Mo. App. 342; Parker v. Britton, 133 Mo. App. 270; Milling Co. v. Transit Co., 122 Mo. 290. (b) The order granting a new trial on account of the weight of the evidence will not be set aside by appellate court where there is conflict in the evidence. Easey v. Transit Co., 186 Mo. 229; Fitzjohn v. Transit Co., 183 Mo. 74; Bartlet v. Mills, 143 Mo. App. 14.
   BOND, Cl

This is an action by six of the children of John M. Higgins, deceased, against three of his children, his widow, and executors, to set aside his will on the grounds of want of testamentary capacity and for undue influence. The case was begun in Mercer county; a change of venue awarded to plaintiffs to Clinton county, where it was tried, and the jury returned a verdict against the will.

John M. Higgins died April 20, 1907. He was survived by a second wife and by nine children — five men and four women — who were born of a former marriage entered into about thirty-eight years before the death on. February 22, 1903, of his first wife. He was then about sixty years of age. All of his children had married and moved away except one, Mollie Yirden, who married within three months thereafter and also moved away. The ages of his children were between twenty-one and thirty-eight years. He then lived on his farm of about six hundred acres, six miles from Princeton. He married a second time, August 7, 1904. His second wife bore no children.

The testimony for plaintiffs tends to show that his second marriage was opposed by eight of his •children and disapproved by the other; that prior to the death of his first wife he had suffered two slight strokes of paralysis; that he .met with a more pronounced one in September, 1905, and had a final stroke in April, 1906; that the two last strokes of paralysis in an increasing degree affected Ms left arm, side and leg and twisted the corner of his month and nose and impaired his power of articulation; that after the last attack he was constantly under medical treatment and required the service of a personal attendant, and was able to walk only with a stick and crutch; that he was brought to the town of Princeton in'the fall of 1906 and resided in a home which he had purchased there and deeded to his second wife, until his death; that during this period and until the end of his life' he talked incoherently and in a rambling fashion, was forgetful of the child of one of his daughters, failed to recognize one of his children, and on the occasion of making purchases in a store which he paid for in cash, immediately thereafter offered to pay again; that he was nervously unstrung, discontented with his life in the town to which he had been taken after his last attack in order to receive certain medical treatment and to be near his physician; that he complained that one of his children, J. P. Higgins, commonly called Dug, had obtained from him a deed'to a certain piece of land and would not return it to him so that he could make an equal division of his estate; that on February 27,1907, all of his children except Dug joined in an application to the county court to have a guardian appointed to manage his estate; that'he was able to be present for a half day only at the trial, which lasted two days, and was in a condition weak and helpless and unable to talk audibly and subject to violent excitement.- The -jury returned a verdict denying the guardianship application; that within a few days thereafter, 4th or 5th of March, 1907, he executed a deed to his wife of 120 acres of land and the improvements thereon, which deed was destroyed and another exe. cuted to her for the same amount of land with no im provements on it; that this deed was made to one of the attorneys who thereafter conveyed to the wife, and was confirmed in terms by the will executed by him on the 5th day of March, 1907; that in the opinion of witnesses introduced by plaintiffs and a medical expert he did not have mental ability to transact business affairs at that time.

Plaintiffs adduced testimony tending to'show admissions made by J. P. (Dug) Higgins and the widow touching their influence over the mind ánd actions of the decéased; that by the terms of his will he devised his farm and personal property, to-wit: (1) A confirmation of his deed of gift of 120 acres of land to his wife in full of her rights as dowress; (2) a bequest of $600 in lieu of all allowances out of his personal estate to which she would be entitled under the statutes of Missouri; (3) to each of his children one dollar and certain other bequests, to-wit: (4) to his daughter Mollie Yirden eighty acres, subject to a mortgage; (5) to his son, Richard Higgins, sixty acres; (6) to his son, Jefferson P. Higgins, commonly called Dug, seventy-nine acres and a confirmation of previous deeds for 100 acres, making 179 acres; (7) to his daughter Belle Lowe one acre; (8) to his daughter May Boxley about four acres; (9) to his son Joseph Higgins three acres; (10) to his son Ed Higgins three acres; (11) to his son Luther Higgins one acre; (12) to his daughter Fannie Easter one dollar with a confirmation of a previous gift of forty acres and $200. The balance; residue and remainder of his estate he bequeathed to his children share and share alike; and thereupon appointed the executors named in the petition to carry out his will.

On the other hand, the testimony for defendants tended to prove that the testator at the time of making his will and the instruments therein referred to was mentally capable of transacting his business; that he was conscious of all the names and relationship of the persons entitled to his bounty, as well as the character, kind and location of his property; that he was aware of the purposes and provisions of the will and deeds, and specially directed the contents and provisions of each at the time they were executed; that in the opinion of the physicians who attended him after the last two strokes of paralysis and at the time of the execution of his will, he was capable of managing, directing and transacting his ordinary business affairs; that the physical weakness suffered by him had not up to that time affected his mind so as to prevent intelligent action in the disposition of his business affairs; that he was incensed against all of his children except J. P. Higgins, commonly called Dug, on account of their violent opposition to his second marriage and on account of the institution of the inquisition against him in the county court.

After the verdict against them, the defendants filed motion for new trial, assigning, among others, the following grounds: 1st. The verdict is against the evidence; 7th. In substance, that the court erred in admitting evidence as to the declarations and statements of some of the defendants, which, although withdrawn, had biased the jury and influenced the verdict; 9th, that the court erred in overruling the demurrer to the evidence offered by defendants at the close of the case.

Upon consideration of this motion the court sustained the same for the following reasons: (1) Because the court erred in admitting the declarations of Mrs. Harriett and J. P. Higgins, and their evidence was so damaging to defendants that it was not cured by an instruction to the jury that they should not consider such declarations; .(2) the verdict was against the weight of the evidence; (3) the court should have given an instruction at the close of all the evidence in the case that, the instrument offered in eyidence was the last will and testament of the deceased, John M. Higgins. Plaintiffs appealed.

OPINION.

I. For the purpose of affording a basis for review of the action of the trial courts in granting a new trial, the law requires them to specify of record their reasons for so doing. [R. S. 1909, Sec. 2023.] In addition to its statutory power to award new trials upon the filing of motions as prescribed by statute, the court is possessed of an inherent power to set aside any verdict or judgment during the term when it was rendered, but this latter power expires after the lapse of the term. [Ewart v. Peniston, 233 Mo. 695.] In the case at bar the order of the court was made after the end of the term at which the verdict was rendered and upon a motion for new trial duly filed and regularly continued. The trial judge in conformity with his statutory, duty has 1 ‘ specified of record” the grounds upon which he set aside the verdict. After some contrariety of opinion, the rule is now established in this State that on an appeal from such an order it is the duty of appellant to show that there was error in making it for any of the reasons assigned therefor. This, however, does not necessitate a reversal of the action of the trial court, for it is within the rights of respondent to call attention to a,ny other errors than those referred to by the trial court, contained in the motion for new trial, as a sufficient ground to sustain the. ruling appealed from.. In the case at bar the second reason given by the trial judge for his. action in setting aside the verdict in this case was that it was against the weight of the evidence. His power to grant a new trial for that reason is highly discretionary and must be affirmed if there was any substantial evidence to support his view. [Casey v. Transit Co., 186 Mo. 229; Peper v. Peper, 241 Mo. 260; Herndon v. Lewis, 175 Mo. 116; Haven v. Railroad, 155 Mo. l. c. 229; Thompson v. Street Ry., 140 Mo. l. c. 144; Karnes v. Winn, 126 Mo. App. 712.]

As has been shown in the preceding statement there was clear and positive testimony adduced by defendants tending to prove the mental capacity of the testator at the time of the execution of'his will, and that he was then free from undue influence on the part of either the defendant J. P. Higgins, commonly called Dug, or Harriett Higgins, his widow. Hence, it is our plain duty to affirm his ruling in that respect unless the motion for the new trial failed in substance to complain that the verdict was against the weight of the evidence.

II. Appellants claim that there is no complaint in the motion for new trial that the verdict is against the weight of the evidence. The ground stated in the motion for new trial is that “The verdict is against the evidence. ’ ’ There can be no doubt about the meaning of this assignment. By its terms the mover clearly attacks the verdict of the jury as being contrary to the evidence adduced on the trial and therefore necessarily against the weight of the evidence. The assignment might have put this logical conclusion in the form of an express statement, but it was fairly comprehended within the terms used and properly raised the question of the weight of the evidence in the mind of the trial judge. The learned counsel for appellants in support of his position cites a case from the Kansas City Court of Appeals, Snyder v. Railroad, 85 Mo. App. 498, in which case the same language was used as tliat contained in the present motion for new trial. But the ruling there was that such assignment did not support a contention that a new trial ought to have been granted because “of prejudice and partiality” on the part of the jury to be inferred because “the preponderance of the evidence against their verdict was so strong as to raise that presumption.” Clearly such a presumption could not arise from the mere fact that the “weight of evidence” was against the verdict of the jury. Hence, the mover ought to have stated a more definite ground in his motion for new trial which would have given rise to the presumption of prejudice and partiality. The Kansas City Court of Appeals held that could not he sufficiently done by the use of the same language contained in the present motion for a new trial, hut it did not hold that such an assignment as the one contained in the case at bar was not sufficient to call the trial court’s attention to the mere weight of the evidence. The citation in question does not sustain the position of appellants. Our conclusion is that the language of the motion for new trial on this point in the present case was amply sufficient to invoke the ruling of the trial court on the question of the weight of the evidence; and that having exercised this discretionary, power to grant a new trial for that reason, it must be affirmed on that ground supported as it was by the evidence introduced by defendants.

III. The evidence in this case is embraced in a large record which has been carefully considered and its general tenor epitomized in the foregoing statement of the tendency of the testimony adduced by the respective parties. We have done this in order to demonstrate the correctness of our ruling on the point presented by this appeal. The case must he retried on such testimony as may he then available which may differ in essential respects from that adduced on the former trial. No error may intervene. No appeal may he taken. We do not think we should go farther at this time than to dispose of the matter of review presented by the present appeal, and hence we refrain from any ruling on the legal effect of the evidence as a whole contained in the printed record. It will be time enough to rule on the merits of the case when that becomes a vital matter. A similar course was followed in a recent appeal from an order granting a new trial before this Division. [Groves v. Terry, 219 Mo. l. c. 599, Aff. in Peper v. Peper, supra.] A different course might be taken if this case were here on an appeal from a final judgment. [Hayes v. Hayes, 242 Mo. 155.] We accordingly rule the action of the trial court in awarding respondents a new trial for the reason that the verdict was against the weight of the evidence was properly made, and will be affirmed and the cause remanded.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Bond-, C., is adopted as the opinion of the court.

All the judges concur.


author: LAMM, J.

text:
    THE STATE ex rel. LUCINDA B. ASHTON v. JOHN F. IMEL, Judge of Probate, Appellant.
    (No. 15528.)
    Division One,
    May 31, 1912.
    1. ADMINISTRATION: Administrator Pendente Lite. The office and powers of a provisional administrator, appointed to have charge of the assets and to preserve the estate during the pendency of a suit to determine the validity of a will which had named the widow as executrix, became functus officio immediately upon a final judgment upholding and sustaining the will, and the executrix instanter became qualified to act and to resume possession of the effects.
    2. -: -: Appeal from Order by Executrix: Moot Case. Where the probate court, upon the filing of a suit contesting the will under which the wife was executrix, and the appointment of an administrator pendente lite, made an order rescinding a former order of partial distribution and requiring the widow to turn over- to said provisional administrator the personal property previously distributed to her, from which she prayed an appeal, and it being denied, she obtained an absolute mandamus compelling the appeal, the appeal of the probate judge from .this judgment of the circuit court becomes a moot case upon- a final judgment sustaining the will.

      Appeal from Buchanan Circuit Court. — Hon. C. A. Mosman, Judge.
    Appeal dismissed.

      Charles C: Crow for appellant.

      Fulkerson, Graham & Smith for respondent.
   LAMM, J.

Mandamus. This is a companion case with two others between the same parties, bearing the serial docket numbers of 15529 and 15531 respectively — all submitted on briefs at the same time.

Briefly, its history is this:

In 1906 Thomas Ashton died testate in Buchanan county, possessed of an estate (largely of corporate stocks) and leaving a widow, children and grandchildren. His widow is relator in this suit and the principal beneficiary in his will. Nominated executrix by the will and qualifying as such after its probate in common form, relator took charge and had so far progressed with the administration as to make an annual settlement and (at least) partial distribution — the latter under an order in 1907 made on a showing to the probate court that the estate was in condition to permit it. That order authorized her to make distribution according to the will and file her receipts. Pursuant thereto she distributed to herself and filed her own receipt for 150 shares of named corporate stocks, bequeathed to her by her husband’s will. In May, 1908, one of the daughters of Thomas and Lucinda, Mrs. Penfield, brought suit to contest the will. From thence on things moved off at a smartish pace. Straightway she applied to the probate court to have an administrator' pendente lite appointed during the time of the contest. That application was opposed by. the executrix, but on hearing was sustained and one Zeidler was appointed provisional administrator. Thereat the executrix made application for an appeal from his order of appointment. Her appeal was refused by the probate court. Thereat she applied to the circuit court for a writ of mandamus to coerce such appeal. On a hearing there, her w*rit was denied and she appealed to the Kansas City Court of Appeals. It, in turn, sent the case to this court. That appeal is the pioneer and principal case of the three, bore the docket number 15531 and has been disposed of by an opinion handed down at this delivery, dismissing the appeal. Going back a little to pick up another thread — Presently, on the heels of Zeidler’s appointment, the probate court made a further order in aid of Zeidler’s authority, viz., one rescinding and revoking its said order of distribution and requiring the executrix to turn over to Zeidler the corporate stocks theretofore distributed to and receipted for by her. Thereat she timely applied for and was refused an appeal to the circuit court from that order. At that stage she sued out another writ of mandamus in the circuit court to compel the probate court to grant her last appeal. Steps were taken in that case resulting in the award of an absolute writ of mandamus. From that judgment the probate judge, Imel, appeals to this court, and his appeal is the subject-matter of the instant case.

The large question discussed by counsel is, whether under the fifteenth subdivision of section 289, Revised Statutes 1909, an appeal lies from the order revoking the prior order of distribution' and compelling the executrix, who by a former order had been suspended temporarily from her functions pending the will contest, to surrender to the administrator pendente lite the corporate stock so distributed and held by her as distributee?

But, as in the principal case (quod vide), before reaching that question a preliminary matter obtrudes itself for determination, namely: As appears in the principal case, the will contest ended on February 2, 1910, in the judgment of this court affirming that of the circuit court establishing the validity of the will of Thomas Ashton and probating it in solemn form. Assuming that fact as a premise, does it not follow that the present appeal presents only an abstract or academic question? If we sustain appellant’s view, would it avail anything of substance in establishing any existing right to possession of the shares of stock?

Attending thereto, the opinion in the principal case should be read with this. For reasons there given and under the ruling there made, we conclude the present case has become, as was that, a moot case, and that this appeal should also be dismissed. To illustrate: Taking the most favorable view to appellant, if we reversed the judgment awarding an absolute writ of mandamus, the appeal to the circuit court in that event would be denied. But when denied it would leave the corporate stock rightfully in the hands of Mrs. Ashton, as executrix or as' distributee, and the probate court woud have no present power to enforce its order .turning it over to Zeidler, because his right to it no longer exists. For all practical purposes of the law, his office and powers are as dead as a last-year’s bird’s-nest, and the executrix has become qualified to act. Hence, she may hold the stock either by virtue of her office or as distributee, as the very right of the matter may be. On the other hand, if we affirm the judgment, the same conditions obtain. In that event, an appeal would be coerced, which, if finally determined in her favor, would be fruitless. It would only give her what she already has, viz., the right to hold the stock, subject to final orders winding up the estate. If victory and defeat be equivalent, why litigate ?

“ ‘But what good came of it at last?’

Quoth little Peterldn.

‘"Why, that I cannot tell,’ said he,

‘But ’twas a famous victory.’ ”

The grandfather’s idea of Blenheim, outlined to his grandson as above, is without value in meting out, justice in court. Peace hath her victories no less renowned than war, wrote Milton to the Lord General Cromwell, but we opine good must come of them at last, or they do not pass muster in an appellate court.

The point discussed by counsel having become a moot point and the case a moot case, it belongs in a moot court in some moot hall, not here— “We won’t hold a moot court.” (Per Gary, J., in Aff v. Hopkins, 57 Ill. App. l. c. 530). So say we all of us.

Let the appeal be dismissed. It is so ordered.

All concur.


author: LAMM, J

text:
    THE STATE ex rel. LUCINDA B. ASHTON, v. JOHN F. IMEL, Judge of Probate, Appellant.
    (No. 15529.)
    Division One,
    May 31, 1912.
    APPEAL: In Prohibition: Attempt to Coerce Executrix to Surrender Property Pending Will Contest. Where a final judgment establishing the validity of a will has been rendered, an appeal from a judgment of the circuit court prohibiting the probate judge from coercing the executrix to surrender and turn over to the provisional administrator certain personal property distributed under order of court to her before a suit to contest the will had been brought, will be dismissed, since the judgment upholding the will determined that said provisional administrator no longer had any legal claim to the assets of the estate, and thereafter the controversy became a moot case.
    Appeal from Buchanan Circuit Court. — Eon. C. A. Mosmcm, Judge.
    Appeal dismissed.

      W. E. Stringfelloiv and C. C. Crow for appellant.

      J. A. Graham, Hugh C. Smith, and Fulkerson & Fulkerson for respondent.
    In view of the fact that the main case, the will contest case, has been determined for more than two years, this case may well be considered a moot case.
   LAMM, J

Prohibition. The probate court of Buchanan county having appointed Zeidler administrator pendente lite in the Ashton estate, as set forth in two companion cases (15528 and 15531) between the same parties, in which opinions have been handed down at this delivery (to be read with this), and having made several orders, concerning which writs of mandamus were resorted to to compel an appeal, as further set forth in those cases, went on in spite of the pendency of those mandamus suits to coerce obedience to its last order requiring Mrs. Ashton to turn over to the provisional administrator certain shares of corporate stock. To that end it was about to put her in jail under a citation for contempt. In this emergency, she exhibited a suggestion fo>r prohibítion in the circuit court, a preliminary rule issued and was served, citing the probate judge to show cause why he should not he prohibited from adjudging her guilty and punishing her for contempt. On hearing, the preliminary rule in prohibition was made permanent and he appealed. Such is the subject-matter of this case.

There is no life left in the controversy. As appears in the companion cases, the will contest ended two years ago and the merits (the right to the possession of the stock) were settled in the judgment establishing the validity of the will. The case, therefore, falls within rulings in cases numbered 15528 and 15531, and should he ruled in the same way — the applicable precept being: Concerning similars, the judgment is the same. {Be similibus idem est judicium.)

Let the appeal be dismissed. It is so ordered.

All concur.


text:
    THE STATE ex rel. LUCINDA B. ASHTON, Appellant, v. JOHN F. IMEL, Judge of Probate.
    (No. 15531.)
    Division One,
    May 31, 1912.
    1. ADMINISTRATION: Appointment of Administrator Pendente Lite: Appeal: Moot Case. The question of whether or not, under the statutes, an appeal lies on behalf of an executrix (who has theretofore qualified and has charge of her deceased husband’s estate) from an order of the probate court appointing an administrator pending a contest of the will under which she is the principal beneficiary, will not be decided,, if long before the case is reached for adjudication there has been a final judgment establishing the validity of the will, for thereafter such question has lost all its life and substance.
    2. -: Administrator Pendente Lite: Will Contest Ended. The executrix named by the will and appointed by the court is suspended by the institution of a suit in the circuit court to test the validity of the will, and thereupon it becomes the duty of the probate court to grant letters of administration to somé other person who can serve “during the time of said contest,” but no longer; and upon a final judgment establishing the validity of the will, such provisional administrator ipso facto ceases to be administrator, and must surrender at once, and the originally appointed executrix becomes again qualified' to administer the estate; and her appeal from a judgment of the circuit court refusing to mandamus the probate court to allow her appeal from an order appointing a provisional administrator, must be dismissed, for all live questions presented by that appeal have been set at rest by the judgment confirming the will.
    3. MOOT CASE. Courts refuse to entertain jurisdiction or proceed to judgment where there is no living concrete case.
    4. -: Dependent on Extrinsic Facts. Where events have happened which make it impossible for an appellate court to grant effectual relief on appeal, the appeal will be dismissed, although such facts do not appear on the record,, but appeal extrinsically.

      Appeal from Buchanan Circuit Court. — Eon. C. A. Mosman, Judge.
    Appeal dismissed.

      Fulkerson, Graham & Smith for appellant.

      Busk £ Stringfellow and Charles C. Crow for respondent.
   LAMM, J.

Appeal from a judgment, nisi, sustaining a demurrer to an alternative writ of manda mus.

Thomas Ashton died testate in Buchanan county in 1906, seized of a considerable estate. His will, probated in common form, nominated his widow, Lucinda B. Ashton, executrix, who was also the principal beneficiary, and is relator in this suit. Presently, she took upon herself the burden of administration. After-wards Mrs. Penfield (a daughter of Thomas Ashton and relator) sued in the Buchanan Circuit Conrt to break the will, making relator a party defendant with others. These things being done, afterwards, on May 19, 1908, Mrs. Penfield filed an application in the form of a petition in the probate court of Buchanan county, asking the appointment of an administrator pendente lite. Therein she alleged, inter alia, that she had instituted a suit to contest the will and had made relator “and the other proper parties” defendants in the suit; “that summons had been issued and is in process of service by the sheriff of this county and your petitioner is proceeding with said case -and contest in due course of law.” Relator appeared to that application and filed an answer assigning reasons against such appointment. One was the pendency of a suit by Mrs. Penfield to set aside a settlement made by her with relator and the other heirs of the estate, acknowledging receiving various items of money and property, aggregating the rise of $22,U(JO in value, and in. which suit she prayed that relator be required as executrix to take charge of the notes, securities and properties mentioned in the settlement paper. By taking such position in that suit it is claimed in the answer that her present position is inconsistent with the former and with the appointment of an administrator pendente lite. Another was that the will contest was not brought in good faith for the purpose of contesting the will, but merely to harass relator and deprive her of the control of the Ashton estate until the determination of the will contest. It is claimed in the answer that to appoint an administrator pendente lite under those circumstances would be for the probate court to loan itself to Mrs. Penfield as an instrument of injustice and fraud. Other averments of the answer were that the will was valid, bore date 1878, when testator was fifty-two years old and in full mental and physical vigor and one of proponents was an infant of tender age, and another a non-resident; and that codicils were made long afterwards which had the effect to increase the holdings of Mrs. Penfield in the estate of her father under his original will. Another reason assigned for refusing to appoint an administrator pendente lite was that all the devisees under the will were not made parties to the contest suit.

On hearing, on May 27, 1908, the application was adjudged granted, and John L. Zeidler was. appointed administrator pendente lite. Thereat on the same-day relator applied for an appeal to the circuit court from that order and judgment, making the statutory affidavit and,asking that the amount of the appeal bond be fixed. Refusing to fix the penalty of the bond, the probate court refused an appeal. Thereupon relator sued out of the Buchanan Circuit Court an alternative writ of mandamus to compel the probate court to grant an appeal, the writ reciting all the foregoing facts and citing the probate judge, Imel, to show cause. Appearing to that writ, Judge Imel demurred, because: (1) The writ did not state facts sufficient to constitute a cause of action; (2) upon all the facts stated in the writ, relator is not entitled to relief by mandamus; and (3) upon all the facts stated in the writ, relator is not entitled to appeal from an order made by a probate court appointing an administrator of an estate. Presently the demurrer was sustained, final judgment denying an absolute writ followed, and relator appealed to the Kansas City Court of Appeals. That court was of opinion jurisdiction was lodged with this court and certified the case here.

The foregoing case is one of three, all of them logically related in origin and ultimate purpose, submitted on briefs at the same time in this court, bearing the serial docket numbers, 15528,15529 and 15531.

Case number 15528 is this: A day or so after the appointment of Zeidler provisional administrator, the probate court at the instance of Mrs. Penfield entered an order revoking an order of distribution made nearly a year before whereby the executrix was authorized to make distribution under the will to herself as legatee of certain shares of corporate stock belonging to the Ashton estate, which distribution she made, and filed her receipt therefor. As part of the order so revoking the executed order of distribution she was commanded to turn over to Zeidler said shares. Thereupon the executrix sought and was refused an appeal from that order. She then sued out of the circuit court an alternative writ of mandamus citing the probate court to show cause why he refused to grant her an appeal. Such steps were taken in that case as resulted in the award of an absolute writ, and from the judgment awarding such writ the probate judge appealed here. So much for case number 15528.

Case number 15529 is this: Pending said application for a mandamus, Mrs. Penfield had her mother cited in.the probate court for contempt in refusing to turn over the mentioned corporate stock to the provisional administrator, and leading to her ultimate confinement in jail if she continued recalcitrant. Thereupon the mother applied to the circuit court for a writ of prohibition to prohibit the enforcement of the foregoing order until such time as her right to an appeal be determined and fixed. A preliminary rule issuing, on final hearing a permanent writ was adjudged to go. From that judgment the probate judge appealed. So much for case number 15529.

In the briefs of counsel for Mrs. Ashton, to defeat the appeals in the last two cases, it is suggested our records show that the will contest has long since been finally disposed of by a judgment entered below and affirmed in this court sustaining the will of Thomas Ashton with its several codicils; wherefore (they say) there is no substance or life left in those appeals. Turning to our records on that suggestion, they show that Mrs. Penfield’s suit to break her father’s will was tried in Buchanan county on the 17th of December, 1908, before a jury in Judge Mosman’s division of the circuit court and a verdict came in finding the paper writings (purporting to be the will and codicils of Thomas Ashton, read in evidence, and theretofore probated ex parte in common form) constitute his last will. On the heels of that verdict, it was adjudged those writings (setting the will and codicils forth) be probated in solemn form as his last will and testament and that contestees recover their costs against contestant. From that judgment, Mrs. Pen-field appealed to this court with the result that the judgment was affirmed here on February 2, 1910, for failure to perfect her appeal.

In the instant case the question presented by relator’s counsel is single and blunt, viz.: Under our statutes, does an appeal lie on behalf of an executrix (who has theretofore qualified and has charge of the estate of her testator) from an order of the proper probate court appointing an administrator pending’ a ■will contest — such executrix being testator’s widow, a beneficiary under tbe will and a party defendant to tbe contest?

But we are of opinion there is a preliminary question demanding settlement before the question stated by counsel is reached. That preliminary question springs on the disclosures of our own records, to which our attention has been called by relator’s counsel as her representatives in the two companion cases. It may be stated in this way: The will contest having been long since finally determined and the validity of the will established once for all, has not relator’s right to a writ of mandamus to coerce an appeal, if any such right she had (which putative right sbe is seeking to enforce in her present appeal), become a mere barren or speculative claim, a mere abstract or empty, technical right? For have not events happened making useless an absolute writ of mandamus if we went on and reversed the judgment and sent the case down with directions. or for a new trial as she asks us to do? Or, if she got her writ, of what avail would it be to her?

On those questions we make these observations:

(a) In a suit to test the validity of a will (or to prove a rejected will) an issue is to be made up below whether the writing produced be the will of the testator. This is she must be tried by a jury, or (if none be required by either party) by the court. [R. S. 1909, sec. 555.] The verdict of the jury or the finding and judgment of the court is final on such issue, saving the right of granting a new trial, as in other cases, and to either party an appeal in matters of law. [Ibid., sec. 556.] If the validity of a will be contested under the foregoing statutes, the further statutory command is that letters of administration shall be granted “during the time of such contest” to some “other person.” This “other person” is directed by tbe statute to take charge of the property and administer the same according to law, under the direction of the court, “and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act.” [R. S. 1909, Sec. 21.] The statutory phrase, “during the time of such contest,” has been construed to Include the time it is pending on appeal (State ex rel. v. Guinotte, 156 Mo. l. c. 517 et seq.; Carrol v. Reid, 158 Mo. 319) — the appeal operating as an extension of the suit, even without a supersedeas bond.

By the inherent reason of the thing, the right of an executor or administrator c. t. a. to administer in accordance with the terms of the will, i. e., the wish of the testator, should be suspended during a contest. This, on the accepted theory that a will contest in this jurisdiction is in the nature of an appeal from the formal probate in the probate court, jurisdiction being lodged by the contest in the circuit court to establish the validity of the will in solemn form. It conclusively follows from that theory that such contest destroys the present efficacy of the mere formal probate in the probate court. To all intents and purposes it is thereby vacated and there is left a mere writing or scroll, but no will, until such time as it is proved anew in the contest proceeding. For such reasons the statutes referred to contemplate that the functions of the executor, who acts under the will and by virtue of his appointment in court, are to be suspended, and a competent provisional administrator, in the person of a neutral or indifferent person, is to be appointed; but mark the fact, for thereon weighty matter hangs, his appointment is special and limited. It is for that turn only, temporary and “during the time of such contest.” By analogy, his office is said to be in the nature of a receivership ; and, when the contest is at an end and the validity of the will established, his term of office expires and his right to act ends. The executor or regular administrator c. t. a. becomes again qualified to act in tbe administration of the state. So, when that time comes the provisional administrator is functus officio. He must step down and out instanter, - settle and turn over “the money and property of the estate to the executor or regular administrator,” who, by that token, comes into his own again. [R. S. 1909, sec. 21, supra; RoBards v. Lamb, 76 Mo. l. c. 194; RoBards v. Lamb, 89 Mo. l. c. 311; State ex rel. v. Moehlenkamp, 133 Mo. l. c. 138; Lamb v. Helm, 56 Mo. l. c. 432; Hawkins v. Cunningham, 67 Mo. 415.]

(b) The premises kept in mind, when on February 2, 1910, the Ashton will contest ended by finally establishing the validity of the will, relator as executrix was repossessed with the clear right to plenary possession of all remaining personal estate of Thomas Ashton to administer thereon in strict conformity to his wishes and the powers of which she was made donee by his will. All she had to do was to produce in the probate court the proper evidence of the judgment finally establishing the will. When that was done Zeidler’s right to possession as temporary administrator ceased ipso facto by virtue of the written law; and the duty of the probate court was to give effect to the mandate of the law by appropriate orders. While we have no evidence before us that an exemplification of the final judgment solemnly probating the will was filed in the probate court and that at the foot thereof appropriate steps were taken there by Mrs. Ashton to reinstate herself in her former position as executrix, with the right to possession of the estate, yet we are not left at sea in such emergency. We can presume, in the absence of a contrary showing, that the statutes were complied with, that such duty was performed and that things were rightly done in their order. The courts indulge such presumptions and apply them when there is need for it. There is a homely saying, The sweeter the cider, the sourer the vinegar. It points a melancholy fact when in family quarrels trust turns to distrust, and the tender regard of blood kin turn to dissension and acid. Will contests are usually earmarked with exceeding bitterness and activity. Certainly in such a case as this we have no call to assume that relator, armed with the advice of alert counsel, would omit an open move on the legal chess board so transparently to her advantage -as re-clothing herself with the right to possession of the estate, when thereby a person deemed by her to be an intruder in her office, would be ejected without more ado. Assuming then for the purposes of this case, that Zeidler is no longer administrator pendente lite and is at this time asserting no right to the possession of the estate -of Thomas Ashton — assuming further that relator, who retained possession in fact of the shares of corporate stock (as shown by this record), has been for two years gone legally entitled to possession of such stock by the judgment establishing the validity of the will, it becomes plain that this case is one for mere argument for the sake of it — a moot case. As Ben Jonson noticed several hundred years ago, a moot case bears the relation to a real lawsuit that fencing does to fighting. The subject-matter of the litigation being disposed of, it is clear that the substance and life are gone out of the case, and nothing is left but an empty, abstract and technical right, the decision on which may be useful in some other case, not in this; for if we held she had a right to an appeal from an order appointing Zeidler administrator pendente lite and that the court erred in refusing her an absolute writ of mandamus, we would reverse that judgment with directions to issue the writ. When the writ issued her appeal will be allowed. When her appeal thus allowed comes up for a trial anew what would it avail? At best it could only determine that a man -out of office because his term had expired, never had the right to be in; that a man who claims and could claim no present right to possession of an estate, should not have possession. In that situation the adage has play, viz.: The mountain labors and brings forth a mouse. We are of opinion the appeal should be dismissed.

(c) That conclusion is soundly buttressed on reason and authority. So far as my research teaches me, I find that courts refuse to entertáin jurisdiction or proceed to judgment where there is no living concrete question. They do not sit to determine who has the better of the argument on a mere abstract and speculative question of law, but, when advised that such stage is reached, they stay their hand. They sit to adjudicate the rights of parties in real controversies where their judgments can do some good by being carried into effect. And where, as in this case, events have happened making it impossible for an appellate court to grant effectual relief on appeal, the appeal will be dismissed, although, such facts do not appear on the record, but appear extfinsically. So, an absolute writ of mandamus will not go when it would be vain and nugatory or of no benefit to relator, the object of a writ being to prevent a failure of justice. [Mills v. Green, 159 U. S. 651; Lord v. Veazie, 8 How. 251; Bartemeyer v. Iowa, 85 U. S. 129; Security Mutual Life Insurance Co. v. Prewitt, 200 U. S. 446; Gormley v. Day, 114 Ill. 185; Aff v. Hopkins, 57 Ill. App. 529.] Missouri appellate courts have often applied the doctrine announced. [State ex rel. v. Rodman, 43 Mo. l. c. 260; Kalbfell v. Woods, 193 Mo. 689 et seq. and cases cited; Cape Girardeau, etc. R. R. v. Bridge Company, 215 Mo. l. c. 296 et seq. and cases cited; Wait v. Railroad, 204 Mo. l. c. 505 et seq.; State ex rel. v. Police Commissioners, 80 Mo. App. l. c. 224 et seq.]

The law is so firmly settled and the exposition thereon is so abundant, as seen in the array of cases, supra, that it would he space and time misapplied to quote from them. The student in jurisprudence who, not content with, its bald announcement, yearns to trace the law to its sources and fortify his mind with precedents and exposition, may consult those cases.

In the foregoing view of the case, the question discussed by counsel is reserved.

Let the appeal be dismissed. It is so ordered.

All concur.