source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    PRISCILLA KILBURN, Administratrix, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.
    Division One,
    July 11, 1921.
    1. NEGLIGENCE:' Using Crippled Locomotive Engine: Escaping Steam. The evidence showed that the engineer was the superior officer of the fireman; that it was the general railroad practice that when an engine became crippled not to proceed with the train until another was obtained from the nearest terminal shop; that after the train was under way on a regular run, it was discovered that steam in large quantities was escaping from the front end of the low-pressure cylinder on the left (or fireman’s) side; that this steam enveloped the cab, and the working place of the fireman between the cab and coal tender; that after the train had run about twenty miles and had stopped at a principal town, the engineer notified the dispatcher that the engine was crippled, but it does not appear that anything further was done towards getting another engine, although at a station thirteen miles away the company maintained terminal shops and a round-house for engines; that it was dangerous to passengers to operate such art engine, and dangerous to the engineer and fireman because escaping steam would prevent them from seeing ahead; and that the train proceeded on schedule time, and the fireman’s clothes were thoroughly wet by the escaping steam. Held, that these facts tended to show negligence on the part of the defendant; and tea timony on the part of the engineer that the engine could be safely run, that the steam did not wet him and that the fireman did not complain of being wet wheu they took off their working clothes at the end of the run, is of no value in a consideration of a demurrer to the evidence.
    2. -: - — : -: Proximate Cause of Pneumonia. Evidence . that the clothing of the fireman of a train was thoroughly wet on November 28th by the steam escaping from the engine; that he removed his overalls in the cab at the end of the run, put on dry outward clothing and went home, and his underwear was then so wet that by twisting it water ran out; that he began coughing on the 28th, and a deep-seated cold followed just after that date until the full development of pneumonia on December 6th, and that on December 13th he died from lobar pneumonia, and testimony of physicians that pneumonia often developes eight or ten days after exposure, where there are prodromal symptoms, and their testimony connecting the exposure to the steam with the pneumonia which caused his death, are evidence from which the jury could find that the superinducing and proximate cause of the pneumonia and his subsequent death therefrom was the negligence of the railroad company in failing to provide a safe engine.
    3. -: Patent Defect: Crippled Engine. Whether steam escaping . from a running engine and enveloping the cab was so patently dangerous to the fireman, obeying the directions of his superior, the engineer, that a reasonably prudent man would not undertake to work thereon, is a question for the jury, and not a matter of law for the court to determine.
    4. -: -: Assumption of Risk. ' Where steam was escaping from a running engine and enveloping the cab, and the evidence conflicts as to the duties of the fireman, and the engineer testifies that the engine could .have been safely operated, the fireman will not be held, as a matter of law, to have assumed the risk of further operation, after the danger was discovered, but assumption of risk, under such circumstances, is, at most, a question for the jury.
    5. —-: Federal Employers’ Liability Act: Invoking Safety Appliance Act: Contributory Negligence. A plaintiff who, by her petition, plants her action, for the recovery of damages for the killing of her husband while engaged in interstate commerce, upon the Federal Employers’ Liability Act, is not precluded from the benefit of the several safety statutes, if they are called into play by the facts. Said act by express reference makes the safety statutes applicable under stated circumstances by providing that “no employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee and the Boiler Inspection Act is especially applicable where plaintiff’s' husband was a fireman and was injured by steam which escaped from the defective engine and enveloped the cab in which he was at work, for Section 2 thereof is made to “apply to and include the entire locomotive and tender and all parts and appurtenances thereof,” and under such circumstances contributory negligence is not even a partial defense.
    6. -: -¡ — : -: Assumption of Risks: Contributory Negligence: Instructions./ Section 2 of the Boiler Inspection Act made it “unlawful for any common carrier, its officers or agents,” to use a locomotive in interstate commerce, unless such engine and all parts thereof were in proper condition and safe to operate in the service to which put, without unnecessary peril to life or limb, and this section is by express reference made applicable to an action based on the Federal Employers’ Liability Act; and where the facts show that the piston rod on the left low-pressure cylinder of the locomotive engine was broken off and the front end of the left cylinder had burst, and from said opening steam escaped when the train was running fast, and enveloped the cab in which plaintiff’s husband as fireman was at work, and that the use of said engine was negligently continued in the operation of the train after its defective condition became known to the engineer, who was the fireman’s superior, and such defective condition and negligent act were the proximate cause of the fireman’s death, the instructions to the jury, in an action by the fireman’s widow planted on the Federal Employers’ Liability Act, should eliminate the defenses of contributory negligence and assumption of risks.
    7. -: Measure of Damages: Diminution by Contributory Negligence. And where, under the Boiler Inspection Act and the facts, contributory negligence is eliminated from a case brought under the Federal Employers’ Liability Act, an instruction on the measure of damages which excludes any diminution of damages on account of the alleged contributory negligence of the deceased fireman, is not erroneous.
    ¡5. -: -: Conscious Physical Sufferings. Since the amendment of 1910 to the Federal Employers’ Liability Act, the plaintiff may recover for the conscious bodily sufferings of the deceased fireman after his exposure to danger and before his death.
    ’ 9. ARGUMENT TO JURY. Where counsel for plaintiff in their argument to the jury went outside the record and made unduly inflamatory remarks, but the trial court, upon objection, directed the jury not to consider them, and the size of the verdict indicates that they were not influenced thereby, the judgment will not be reversed.
    10. -: Reading From Medical Book. Counsel for plaintiff, in cross-examining physicians offered as witnesses by defendant, used several medical books, and got one of the physicians to admit that a certain passage in one of them was correct doctrine and to say that he would adopt it as an expression, of his own views, and this passage counsel for plaintiff, in his argument, was reading to the jury when the trial judge stopped him and told him he had no right to read from the book, as it had not been offered in evidence. Held, that the conduct of counsel was not reversible error.

      Appeal from Clinton Circuit Court. — Row. A. D. Burnes, Judge.
    Affirmed.

      Fred, 8. Hudson for appellant.
    (1) Instruction 1 is erroneous, because it does not properly declare tbe law. Crecelius v. Ry., 274 Mo. 687; Uowell v. Ry., 190 S. "W. 939; Ry. v. Earnest, 22$ U. S. 114. (2) Instruction 3 is erroneous, because tbe jury is told not to take into consideration the question of contributory negligence or tbe assumption of risk. Seaboard Air Line v. Horton, 233 U. S. 492, (3) Instruction 12 is erroneous, because it does not properly declare tbe rule relative to damages in a case of this character, and for the further reason that said instruction authorized a recovery for tbe physical pain and mental suffering of tbe deceased. Crecelius v. Ry., 223 S. W. 418, pars. 8 and 9. (4) Remarks of counsel in tbe opening statement relative to tbe change of venue and also in comment of plaintiff’s attorney as to tbe court’s ruling in his argument to tbe jury', were inflammatory and prejudicial and an appeal, to tbe prejudice and passion of the jury. Neff v. City of Cameron, 213 Mo. 350; Beck v. Ry., 129 Mo. App. 7; Level v. Ry., 196 Mo. 622; Blyston-Spencer v. Ry., 152 Mo. App. 142; Bishop v. Hunt, 24 Mo. App. 377; Terryson v. Ry., 129 S. W. 409; Jackman v. Ry., 206 S. W. 244. (5) Tbe verdict is tbe result of prejudice and passion and is founded on conjecture, speculation and guess and not upon tbe testimony in tbe case. Harper v. Ry., 186 Mo. App. 308; Lahnick v. Ry., 118 Mo. App. 611; Chilty v. Ry., 148 Mo. 64. (6) Tbe verdict is founded upon testimony that shows that it is just as possible and just as probable that deceased contracted pneumonia at some other time and some other place and in some other way than that charged in tbe petition. Kelly v. Ry., 141 Mo. App. 492; Warner v. Ry., 178 Mo. 125; Root v. Ry., 195 Mo. 348; Smart v. Kansas City, 91 Mo. App. ' 586. (7) The demurrer to the evidence should have have been sustained. Authorities under Points 5 and 6. (8) It was error for plaintiff’s attorney, during the temporary absence of the court from the bench, and during the ■ closing argument, to read to the jury from a booh which was not in evidence.

      Platt Hubbell and Geo. H. Hubbell for respondent.
    (1) Respondent’s instructions numbered 1 and 3 properly declare the law under the Federal Employers Liability Act and the Federal Safety Appliance Act. 8 TJ. S. Comp. Stat. Ann. (1916), secs. 8631, 8639a, 8612, 8621, 8660, 8659; Moore v. Ry. Co., 268 Mo. 31, 243 TJ. S. 311, 61 L. Ed. 741; Thornton v. Railroad, 175 N. W. (Iowa) 71; Great No. Ry. Co. v. Donaldson, 246 TJ. S. 121; Union Pac. Railroad Co. ,v. Huxoll, 245 U. S. 535, 62 L. Ed. 455; Great No. Railroad Co. v. Otos, 239 U. S. K49; Texas & P. Railroad Co. v. Rigsby, 241 U. S. 33; Cent. Yt. Railroad Co. v. White, 238 U. S. 507, 59 L. Ed. 1433,; Richey on Fed. Em. L. & Saf. App. Act, sec. 54, p. 133; Ry. Co. v. Wagner, 241 U. S. 476, 60 L. Ed. 1110; Grand Trunk Railroad v. Lindsay, 233 U. S. 42, 58 L. Ed. 838; Ann. Cas. 1914C, 168; Lancaster & Wight v. Allen, 207 S. W. 986; Salabrin v. Ann Arbor Ry. Co., 160 N. W. 552, 194 Mich. 458; Kippenbrock v. Wabash Ry. Co., 270 Mo. 479, 194 S. W. 50; Kerringan v. Ry. Co., 90 N. W. 976, 86 Minn. 407; Ry. Co. v. Campbell, 241 U. S. 497, 60 L. Ed. 1037; L. & N. Ry. Co. v. Layton, 243 U. S. 617.- (2) Respondent’s instruction number 12 properly declares the law in this case. 8 Comp. Stat. Ann. (Í916), sec. 8665, p. 9439; Ry. C<?. v. Scala, 244 U. S. 630; Ry. Co. v. Craft,.237 TJ. S. 648, 59 L. Ed. 1160; Railroad Co. v. Leslie, 238 U. S. 559, 59 L. Ed. 1478; Calhoun v. Great No. Ry. Co., 156 N. W. (Wis.) 198; Chesapeake & Ohio Ry. Co. v. Carnahan, 241 U. S. 241; Fullerton v. Fordyce, 144 Mo. 529; Doyle v. Ins. Co., 24 L. Ed. 151, 94 U. S. 535; Ry. Co. v. Barrett, 67 Fed. 218. (3) The partial and isolated excerpts from the remarks and argument of counsel are not error. Vawter v. Hultz, 112 Mo. 639; 2 Encyc. P. & P. 756, 757; Gibson v. Ry. Co., 131 N. W. 1057; Dean v. Wabash Ry. Co., 229 Mo. 455; Huckshold v. Ry. Co., 90 Mo. 558: Wendler v. Furn. Co., 165 Mo. 542; People y. Shears, 65 Pac. 295, 133 Cal. 154; State v. Frelinghuysen, 45 N. W. 432, 43 Minn. 265; Wright v. State, 38 S. W. (Tex. Civ. App.) 1004; Pennington v. State, 48 S. W.' 507; State v. Court, 225 Mo. 616; Osterfag v. Railroad, 261 Mo. 479; Torreyson v. U. Rys. Co., 246 Mo. 706. (4) The defective cylinder and the wetting of the deceased by reason of the escaping steam therefrom on the trip from Liberty to Laredo was the cause of the pneumonia and the death of Kilburn. Hartzler v. Railroad, 140 Mo. App. 665; Beauchamp v. Min. Co., 15 N. W. 64, 50 Mich. 163, 45 Am.- Rep. 30; Seckinger v. Mfg. Co., 129 Mo. 605; MacDonald v. Railroad, 219 Mo. 483; Kuenzel v. St. Louis, 278 Mo. 281; Hinkle v. Railroad Co., 199 S. W. 227; Bannister v. Jevne, 151 Pac. 546, 28 Cal. App. 123; Johnson v. Cont. Cas. Co., 122 Mo. App. 369; Bayne v. Storage Co., 148 1ST. W. 412, 5 C. C. A. 837; Hastings v. No. Pac. Ry. Co., 53 Fed. 224; 10 Am. Neg. Cas. 689; Nicholl v. Sweet, 144 N. W. 615, 163 Iowa, 683, Ann. Cas. 1916C, 661; Luisi v. Ry. Co., 136 N. W. 322; Murphy v. Railroad, 31 Nev. 120, 101 Pac. 322, 21 Ann. Cas. 502; 1 Thomp. on Negligence, sec. 154; Ry. Co., v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Hanlon v. Ry. Co., 104 Mo. 381; Ry. Co. v. Miller’s Admx., 176 Ky. 701, 197 S. W. 403, 18 C. C. A. 825; Ball v. No. Pac. Ry. Co., 173 Pac. 1029; N. T. Cent. Ry. Co. v. Gapinski, 249 Fed. 346; Tex. & P. Ry. Co. v. Howell, 56 L. Ed. 892, 224 U. S. 577; Maginnis v. Railroad, 268 Mo. 675. (5) It was not improper for respondent’s counsel to use the medical book in his argument, as it was only used in connection with the discussion of the testimony of a witness who had adopted the extract as a part of his testimony. Bradley v. City of Spickardsville, 90 Mo. App. 424;'Hayes v. Cont. Cas. Co., 98 Mo. App. 410; State v. Oakes, 202 Mo. 105; State v. Brandenburg, 118 Mo. 187.
   GRAVES, J.

Plaintiff is the widow and administratrix of Orley Y. Kilburn, deceased. She sues under the Federal Employers’• Liability Act of 1908, as amended in 1910. Orley V. Kilburn was in the employ of the defendant as fireman of engines. * By his decease he left his wife and four minor children, who were dependent upon him. Defendant operated an interstate railroad, and deceased was running as fireman on an interstate train. His run on this train (a fast passenger train) was from Kansas City, Missouri, to Laredo, ¡Missouri, via Liberty,^Missouri. The negligence averred in the petition is as follows:

“After leaving Kansas City, and before arriving at Liberty, Missouri, the piston rod on the left low-pressure cylinder of the locomotive engine of said train was broken off and the front end of the left cylinder was bursted, allowing steam to escape from said cylinder.

“Instead of changing engines at Liberty, Missouri, and instead of procuring another engine, the defendant, acting through its officers, servants and agents, negligently required the deceased, Orley Y. Kilburn, as such fireman, to continue to operate said locomotive engine and to serve as the fireman of the same all the way from Liberty, Missouri, to Laredo, Missouri; and the defendant then and there negligently failed to change engines at Liberty; and the defendant negligently failed to change engines between Liberty and Laredo, and the defendant then and there negligently failed to furnish a reasonably safe engine for the use of the deceased as such fireman between Liberty and Laredo; and the defendant then and there negligently failed to so repair and remedy said defects in said engine, in such a manner as to prevent the escape of large quantities of steam from the left side and cylinder of said engine into the cab thereof; and the defendant then and there, and thereby, negligently required said Orley Y. Kilburn to labor and work in a place which was not reasonably safe, and to operate a locomotive engine which was not reasonably safe.

“After the breaking of said piston rod, as aforesaid, said locomotive engine was' not 'in reasonably proper condition, and was not reasonably safe to operate in the service and use to which the same was put; and said locomotive engine could not be so operated without unnecessary peril to life and limb.

“All the way from Liberty, Missouri, to Laredo, Missouri, on said trip and ‘run,’ large quantities of steam and vapor rolled out of said cylinder and rolled out of said left side of said locomotive engine and passed into the cab of said locomotive engine, whereby said Orley V. Kilburn was required to inhale and breathe said steam and vapor while at work, and whereby the clothing of the said Orley V. Kilburn became thoroughly saturated with said steam and vapor and became thoroughly wet, and whereby the body of the said Orley V. Kilburn became wet and chilled; and by reason of inhaling said steam and vapor, and by reason of his clothing and body becoming saturated and wet and chilled by said steam and vapor, and by reason of said negligence and negligent acts of the defendant, the said Orley Y. Kilburn contracted pneumonia and became affected by the disease of pneumonia, as a result of which the said Orley Y. Kilburn was totally disabled from doing any kind of labor on December 5th; and was confined to his bed on and after December 6, 1915; and as a result of which exposure to steam and vapor and said disease of pneumonia caused thereby, the said Orley V. Kilburn died at Laredo, Grundy County, Missouri, on December 13, 1915.”

By the petition the date of these negligent acts are fixed as either of the date of November 28th or the date of December 2nd, of the year 1915. Damages were ashed j.n the snm of $60,000, and a verdict was obtained for $15,000, upon which the judgment appealed from herein was entered.

By answer the defendant (1) admitted that it whs a Wisconsin corporation doing business under the laws of Missouri, (2) admits that Kilburn was- on November 28 1915, its fireman on the passenger train described in the petition, known as the Southwest Limited, (3) a plea of contributory negligence, (4) a plea of assumption of risk, and (5) a general denial. The record shows no reply, but the cause-was tried as if one had been filed.

The assignment of errors cover several matters, all of which will be noted in the opinion, but the first of these is that the case should not have been submitted to the jury. Pertinent facts will follow under the points made in the course of the opinion.

I. The pertinent facts upon the demurrer may and should be grouped in three classes, (1) those bearing on the negligence of the defendant, (2) those bearing ■ upon the proximate cause of the death of plaintiff’s husband, and (3) those bearing upon the matters of contributory negligence and assumption of risk.

(1) It appears, that deceased was the fireman on ■defendant’s passenger train running from Kansas City, Missouri, to Chicago, Illinois. At 5:55 p. m. of November 28, 1915, this train left Kansas City for Chicago. The run of deceased and his engineer ended Laredo, Missouri, some eighty miles beyond Liberty, Missouri, another - station on this line of railroad. At Coburg, a station out some five miles from the Union Station in Kansas City, the defendant had and maintained a round-house and' machine-shops for its engines on this division of its road. The deceased and Ms engineer left the round-house at 4:30 of that evening, on a large compound engine, numbered 3500. The train left Kansas City at 5:55, but when a mile west of Liberty the piston rod on the lower cylinder on the left side of the engine broke, and a large portion of the front end of the cylinder was blown out. When steam was being used this permitted quantities of low-pressure steam to escape, and if the engine was running fast, this steam would envelop the cab, and working place of deceased between the cab and coal tender. There is conflict as to the amount of the escaping steam, and conflict as to how much would reach the working place of deceased. It is agreed that an engine in this, condition required more water and coal, than" if the engine had been in shape. The train stopped at Liberty. The plaintiff used as- a witness the engineer, one Dider. This witness said:

“Q. You mean steam went out of the front end of the low-pressure cylinder? A. Yes, sir.

“Q. This steam, instead of going out the stack, went out the front end of the low-pressure cylinder? A. Yes, sir.

“Q. Just tell what you did at Liberty, when you arrived at Liberty. A. Well, we arrived at Liberty. I told the fireman, ‘We will get water here, and I will go back, and tell them that we broke the left low-pressure piston, and we would go along, and do the best we could’ — told them we was ready to quit any time we got an engine to relieve us. We got along so well we practically made running time all the way along.”

In fact, with some seventeen minutes, of unforeseen stops, the train reached Laredo just nineteen minutes late. Later on the engineer says that he told the operator at Liberty to tell the dispatcher that he had blown out the lower-pressure cylinder on the left side and that he would go on and do the best they could, and for the dispatcher to keep tab upon him. The engineer took out his train without hearing from the dispatcher, or knowing that the Liberty operator actually sent tbe message. The train continued at a speed .of forty miles per hour, or near that, and landed at Laredo without further incident, other than the escaping steam.

The evidence conflicts as to the duties of the fireman, knowing as he did the condition of his engine, before leaving Liberty. Plaintiff showed that the engineer was the boss of the engine crew and that his directions went. Defendant showed that a fireman could refuse to work and stop the train for a new engine to arrive. It does not appear that any thing further was done toward getting a new engine, either from the shops at Coburg, thirteen miles from Liberty, or at any place after leaving Liberty. These are the facts bearing upon defendant’s alleged negligence.

(2) The deceased died on December 13th of lobar pneumonia. It is claimed that on this run from Liberty to Laredo (eighty miles) this escaping steam- thoroughly drenched his clothes, which occasioned a deep-seated cold, which on December 6th forced him to quit his work by reason of an attack of lobar pneumonia. He worked continuously from November 28th until the morning of December 6th, when he had to give up his engine (a freight engine upon which he was the engineer) and he returned upon a passing passenger train to his home, where he arrived about noon and shortly thereafter called his family physician, who happened also to be the local doctor at Laredo for defendant.

The evidence for plaintiff tends to show that his clothes were very wet when he reached Laredo on November 28th; that he left his overalls and jumper in his engine and they were wet throughout; that he put on a. drv suit in the cab of the enaine and went home, but the wife says that his underwear was so wet that by twisting it the water would run out. The evidence further tends to show that he had this cold and coughing from 'just after the 28th until the full development of pneumonia on December 6th. As is usual the medical experts and doctors differed as to the probability of the pneumonia having developed from the exposure on the 28th. According to some it could have and often did develop eight to ten days after an exposure, where there were prodromal symptoms, as here. The wife testified to' the fact that the cold immediately followed the exposure, and that whilst her husband kept at work, he was languid and on the nights he was at home called for water during the night, and that she had to use applications on his chest. These and other details is the line of facts upon which is predicated proximate cause of death.

(3) The alleged negligence and assumption of risk grew out of what happened at Liberty as deceased ’and his engineer took out their train from that station.

II. (1) Was there negligence upon the part of the company or its engineer (for he was the alter ego in this instance) in running this engine on from Liberty to Laredo, in its then condition? Upon a demurrer to the evidence we need only consider the plaintiff’s case from the evidence for the By an experienced engineer, used as an expert, the plaintiff showed that it was a general railroad practice when an engine was crippled as this one was shown to have been crippled, not to proceed from Liberty until a new engine was procured from the nearest terminal shop, which in this case was Coburg, some thirteen miles distance. By the same expert it was shown that it was dangerous both to the passengers, and to the engineer and fireman to operate such an engine — dangerous, because the escaping steam would prevent them from seeing ahead. The same witness, as well as many others, testify that as between the engineer and the fireman, the engineer is the superior officer. This evidence tends to show negligence upon the part of defendant, and it then becomes a matter for the jury to determine the conflict of the evidence, and there was a plaintiff. conflict in this ease. This conflict, however, was determined by the jury against the defendant. There was evidence tending to show that this engine should not have been further run in the condition in which it was in, when it reached Liberty. The engineer said it could be safely run, and he says that the steam did not wet him,' nor did deceased complain to him of being wet when they took off their working clothes at Laredo. But this is of no benefit to us on a demurrer to the evidence. The evidence of the plaintiff made a case of negligence upon the part of defendant, in its failure to get a new engine at Liberty, and in running this crippled engine from Liberty to Laredo.

(2) The evidence of the doctors also connected the exposure to this steam with the pneumonia which produced death. From their evidence the jury could well find that this exposure was the superinducing and prox_ imate cause of the pneumonia. Doctors for the ' defendant said that the exposure of the 28th was too far away from the actual development. of the pneumonia, whilst doctors for plaintiff said that the exposure caused the conditions which later developed the pneumonia, and eight to ten days was frequently required in such cases. It became a question for the jury, under proper instructions.

(3) Under the expert testimony of plaintiff the engine was so defective as to endanger the fireman and engineer, as well as the traveling public. In this state the condition would have to be so patently dangerous, that a reasonably prudent man would not undertake to work further thereon. Whether it was or not, was at least a question for the jury. We could not say as a matter of law that he was guilty of negligence in obeying the directions of his engineer. So that the demurrer was not well taken on this point.

So too we think the matter of assuming the risk was not so patent, as to declare it as a matter of law. The evidence conflicts even as to the duties of the fireman in suda cases. The engineer himself thought, aild testified that they could proceed with saf e- ' ty. Assumption of risk, like contributory negligence, was at most a question for the. jury. We conclude that the demurrer was not well taken. What we have said, supra, is purely upon the matter of the demurrer to the evidence. Whether there could be either contributory negligence or assumption or risk we discuss later.

III. The further consideration of the case requires a consideration of the pleading of plaintiff. Her petition says:

“The plaintiff is prosecuting this action under the Federal Employer’s Liability Act, an Act of Congress approved on April 22,1908, as amended on April 5, 1910; and this action arises under said Act of Congress.”

She has classified her action and is bound thereby. In her brief the Federal Safety Appliance Act and the Federal Boiler Inspection Act are mentioned, but they are not in this case, except as they may be brought in by the Federal Employers ’ Liability Act. By express terms she plants herself upon the Federal Employers’ Liability Act, and the case stated and the trial thereof must be judged by it. So in the discussion of other alleged errors, we shall proceed upon the theory that this is an action under the Federal Employers ’ Liability Act, and not otherwise. Instructions given and refused must be measured by such act. The relevancy or irrelevancy of evidence must be measured by it. In fact the case must be tried under it. But this does not mean that for given purposes in the trial the Federal Safety Appliance Act and the Federal Boiler Inspection Act may not be considered. This because several sections of the Federal Employers’ Liability Act refer to' other acts, for given purposes. Thus in Section 3 of the act it is said:

“Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

It is clear that the Federal Safety Appliance Act has nothing to do with the case, because the things thereby covered were not the things that went wrong in this case. See this act and all its amendments as Appendix G, 2 Roberts on Federal Liabilities of Carriers, p. 1593; 8 Federal Statutes, Ann. (2 Ed.) p. 1155 et seq. The only reference to a locomotive in this act is as to the brakes thereon and appliance to operate the train brake-system. Of those things no question is made in plaintiff’s petition, nor is there a showing in the evidence. It is true that this act bars assumption of risk as a defense, and it might be available in this case did the facts fit the law.

When we reach the Boiler Inspection Act, 8 Fed. Statutes, Ann. (2 Ed.), p. 1200 et seq., we have more trouble. It is an act to promote the safety of both the employees and travelers upon railroads, and by the amendment of March 4, 1915 (effective 6 months thereafter), section two of the original act was made to “apply to and include the entire locomotive and tender and all parts and appurtenances thereof.” [38 Stat. L. 1192.]

Section 3 of the Federal Employers’ Liability Act, whilst recognizing that contributory negligence is a partial defense for some actions, yet it expressly precludes it as any kind of a defense in the proviso quoted, supra, where the injury was occasioned by the violation “of any statute enacted for the safety of employees.” The Boiler Inspection Act was enacted for the safety of employees and is one of the statutes referred to in the Federal Employers ’ Liability Act. Section 4 of the last named act cuts out the defense of assumption of risk in the same class of cases, and this Section 4, mentioned, supra, makes it clear that those safety statutes should be considered in the trial of cases under the Federal Employers’ Liability Act, because it speaks of actions brought under that act. In other words, the Federal Employers’ Liability Act gives the cause of action, and by its terms draws the safety statutes, by whatever name, to it, in the determination of the matters of contributory negligence and assumption of risk. So while plaintiff planted her rights under the Federal Employers’ Liability Act she is not precluded from the benefit of the several safety statutes, if they are called into play by the facts. This because the act under which she sues by express reference makes - the safety statutes applicable under stated circumstances.

IY. We reach now the complaints of the appellant. It complains of instructions 1 and 3, because by them the defenses of contributory negligence and assumption of risk are eliminated. Section 2 of the Boiler Inspection Act as amended by the Act of March 4,1915, made it “unlawful for any common carrier, its officers or agents,” to nse an engine or locomotive in interstate commerce, unless such engine and all parts thereof were in proper condition and safe to operate in the service to which it was put, without unnecessary peril to ljfe or limb. [8 Fed. Statutes,'Ann. (2 Ed.), p. 1201, et seq.] The first instruction was predicated upon this statute, and reads:

“The court instructs the jury that, in moving interstate traffic or interstate commerce, the defendant railway company, acting through its officers, servants and agents, owed to O-rley Y. Kilburn a duty to exercise ordinary and reasonable care and caution to use, and to provide for his use, a locomotive engine having all its parts in a reasonably proper condition, and reasonably safe to operate in the service and use to which the same was put, and which locomotive engine might be so used without unnecessary peril to life and limb.

“A failure to perform this duty, if you believe from the evidence that there was such failure, is negligence as a matter of law.

“And if the jury believe from the evidence that on or about November 28, 1915, deceased, Orley V. ICilburn, was in the employ of the defendant railwa}'' company, and was serving as fireman for defendant on a passenger train known as the ‘Southwest Limited,’ numbered 26; and that said train had started and was on its way from Kansas City, Missouri, to Chicago, Illinois, for the purpose of carrying passengers from Kansas City to Chicago, and to intermediate places; and that then and there deceased Kilburn was on his trip or run from Kansas City to Laredo; and that deceased Kilburn and the defendant were then and there engaged in interstate commerce, as defined in these instructions; and that shortly before arriving at Liberty the lower and. low-pressure piston rod broke, and that the front end of the low-pressure cylinder was broken out, on the left-hand side of said engine; and that by running said engine in said broken condition, large, unusual and unreasonable quantities of steam were caused to escape from said cylinder into the left side of the cab and into the gangway between the engine and tender; and if the jury further believe from the evidence that then and there said locomotive engine was not in reasonably proper condition and was not reasonably safe to operate from Liberty to Laredo; and that said locomotive engine could not be so operated without unnecessary peril to life and limb; and if the jury further believe from the evidence that ordinary and reasonable care required that defendant railway company, acting through its officers and engineer in charge of said engine and train, provide and furnish another and different engine to haul said train to Laredo; and if the jury further believe from the evidence that the defendant railway company, acting through and by its engineer, negligently ran said locomotive engine from Liberty to Laredo with steam from the lower cylinder on the left-hand side passing into said cab and gangway; and if the jury believe from the evidence that such acts of said engineer were negligent acts, as defined in these instructions; and if the jury further believe from the 'evidence that Fireman Kilburn and his clothing were thereby caused to become wet and saturated with said steam and that he became chilled thereby; and that as a result of said wetting, saturation and chilling Fireman Kilburn was therefore caused to contract pneumonia; and if the.' jury further believe from the evidence that the death of Fireman Kilburn resulted in whole or in part from negligence, if any, of the defendant, as above mentioned, and from such wetting, saturation, chilling and pneumonia, then the plaintiff is entitled to recover, and your verdict must be in favor of the plaintiff.”

The third instruction is predicated upon the first, and reads:

“If the jury believe from the evidence that on or about November 28, 1915, the deceased, Orley Y. Kilburn, was in the employ of the defendant railway company, and was serving as fireman for defendant on a passenger train known as the ‘Southwest Limited,’ numbered 26; and that the deceased Kilburn and the defendant railway company were engaged in interstate commerce, as defined in these instructions; and if the jury further believe from the evidence that, in the way and manner described hnd stated in the plaintiff’s preceding instruction numbered 1, the said Orley Y. Kilburn was negligently caused to become wet, and his clothing saturated with steam, as described and- stated in the plaintiff’s preceding instruction numbered 1; and that, as a result of so becoming wet, and as a result of said saturation of his clothing, said Fireman Kilburn was thereby caused to contract pneumonia; and if the jury further believe from the evidence that the death of said Fireman Kilburn resulted in whole or in part from negligence of the defendant, if any, as mentioned in the plaintiff’s preceding instruction numbered 1, then, under the laws of the Government of the United States, there is no assumption of risk or contributory-negligence in this case, and the verdict must be for the plaintiff. ’ ’

If, as we have held, the Boiler Inspection Act, so far as the matters of contributory negligence and assumption of risk are concerned, is drawn into the Employers’ Liability Act, by the references to safety laws therein, then these instructions, excluding these two defenses, are proper, if the facts of the case bring it within that safety law. This Boiler Act, as amended in 1915, prohibits a locomotive, disabled in any of its parts, to be used in interstate commerce, if such use might occasion peril to life or limb. It is true there is no showing that this engine and' all its parts were not in proper condition when it started upon the interstate .journey, but the statute does not limit the duty as to condition to the time of starting. It prohibits the use of an engine out of condition in interstate commerce, and it can make no difference when that unfit condition arises. And this prohibition is not only against the carrier, but also against “its officers and agents.” The engineer with this engine at Liberty, Missouri, was at least an agent in charge of this engine, if in fact he was not the alter ego of the carrier. Under these laws and the facts shown the instructions are well enough. If the engine at Liberty, within thirteen 'miles of another engine, was not such as should have been used in interstate commerce, under the safety law, supra (the Boiler Inspection Act), then the.defenses of contributory negligence and assumption of risk are out of the case.

The use of the disabled engine from Liberty to Laredo was a matter which might have been averted by the engineer, the agent of defendant. To say the least, if by its condition (and concededly it was not in proper condition) there was unnecessary peril to either life or limb, it was a violation of the law to use it, and these two instructions properly submit the facts, and properly declare the law.

If the statute did not bar the doctrine of assumption of risk in this case, the plaintiff, under the Federal rule as to assumption of risk, might be in close straits for a case. [Seaboard Air Line v. Horton, 233 U. S. l. c. 507 et seq.]

Nor do we think that our, views conflict with Norfolk & Western Ry. v. Earnest, 229 U. S. 114, cited by appellant. The cas.e made in this appeal with which we are dealing falls within the proviso of Section 3, and the terms of Section 4 of the Employers’ Liability Act, as above stated, but in the 'Earnest case the opinion, at page 120, says that the' proviso of Section 3 was not involved in that case, and the facts of the case so show. In our case it is this proviso of Section 3 and Section 4 - of the act, which, when taken with the safety laws, cuts off the defenses of contributory negligence and assumption of risk.

Y. Going to the assignment of errors (which always limit the matters for determination here) we find that Instruction 12 is urged as being erroneous. This is the instruction on the measure of damages. jg contended that it is erroneous, in that it omits to include the diminution of damages by reason of alleged contributory negligence upon the part of the deceased. This contention has been fully answered in the paragraph above. There could be no contributory negligence in the case.

Next it is suggested that it errs in permitting the plaintiff to recover for the conscious bodily sufferings of the deceased after his exposure and before his death. The petition asks for such damages, and since the amendment of the Employers’ Liability Act of 1910, the United States Supreme Court has ruled that such damages may be recovered. [St. Louis & Iron Mountain Ry. Co. v. Craft, 237 U. S. 648; K. C. So. Ry. Co. v. Leslie, 238 U. S. 599.]

Since the amendment of 1910, the rulings have been that, if the deceased lingered along for a time before death, and suffered conscious pain, he in his life-time had a right of action for such, and this right of action, by the amendment, was transmitted to the administrator, and was a different right from the pecuniary loss suffered by the dependents. The cases, supra, hold, however, that the damages for both can and should be recoyered in the one action. These rulings, and the views we have above expressed on contributory negligence and assumption of risk, answer all the‘objections to Instruction number 12.

It should be said that the Federal cases rule that where death is instantaneous, or when there is no conscious pain suffered before death, no damages are allowable under the transmitted cause of action. Appellant cites us to our case of Crecelius v. Railway, 223 S. W. (Mo.) l. c. 418. What is there said should be read in the light of the facts. That was a case of instant death, and we announced the Federal rule in such class of cases. If there was a showing of conscious pain between the commission of the tort and the death, as here, then the rule announced in the Craft and Leslie cases, supra, applies.

YI. There are but two other matters here that call for notice. Appellant contends that counsel for plaintiff made improper and prejudicial arguments before the jury. It is true that such counsel did, at times, go beyond the record in the course of their remarks, ma-de reference to things that should not have been mentioned in the course of legitimate arguments, but upon objection, in such cases, the trial court stopped .counsel in such remarks, and several times directed the jury not to consider such arguments. If the verdict had been largely excessive, it might call for a closer scrutiny of some of this argument, but the size of the verdict does not indicate that defendant suff,ered from an unduly influenced jury, although the argument in places was inflamatory. It really appears from the size of the verdict that the jury was not inflamed by the argument, but followed the admonitions of the learned trial judge'to ignore such arguments. The, trial court cured the trouble promptly, where it could be cured, and what impressions that might have been left do not seem to have hurt the defendant. We do not condone the method of the arguments made in the case, but do not believe that the record, on this matter, when taken as a whole shows reversible error. Had the verdict been largely excessive we might have had a more serious question on this subject.

Another contention is that counsel for plaintiff, in his closing argument, read from a medical book. It appears that the trial court left his seat for á few moments, and this was done in his absence. The judge returned as defendant’s counsel were objecting and Promptly stopped plaintiff’s counsel, telling him that he had no right to read from the books, as they had not been introduced in evidence. The further facts show that counsel for plaintiff in the course of cross-examining the doctors for defendant had used several medical works, and in cross-examining Dr. Morrow, a witness for the defense, got him to admit that a certain question from one of those books was correct doctrine and to say that he would adopt such expression as his own views on the subject. It was this excerpt that counsel had read when the court admonished him to read no further. The facts all considered we do not feel that the verdict should be disturbed for this conduct of counsel.

Finding no substantial or prejudicial error in the trial of the case, the judgment is affirmed.

All concur.


author: ELDER, J.

text:
    H. S. COLES et al. v. ANNA BELFORD et al., Appellants.
    Division One,
    July 11, 1921.
    1. CONVEYANCE: Testamentary Deed. After the owner of land had signed and acknowledged a deed of gift in Illinois, conveying to her nieces her home in Springfield, Missouri, she handed it to one of them, saying, “You take this and put it in your-box and keep it and whenever anything happens you send it to Springfield and have it recorded,” the words “whenever anything happens” being further elucidated by the witness as being understood by hjm to mean “when she died.” Held, that, although by this delivery the maker may be said to have parted with dominion over the deed, her intention was that it should take effect upon her death; it was therefore testamentary in character, and did not pass a present interest in the property to the grantees.
    2. -: -: Delivery: Intent. In order to constitute a valid delivery the handing of a deed by the maker to one of the grantees must be done with the intent of passing an estate in praesenti. and if the giving of the deed into the -hands of the grantee is not done with the intent of passing the title at the time there is no delivery in contemplation of law.
    3. -: -: Retaining Possession. Retention of the management and control of property after a deed of gift conveying it to nieces is signed, acknowledged and handed to one of them, paying taxes and making improvements upon it, receiving the rents and placing it in the hands of an agent to be sold, by the grantor, are evidence that it was not her intention that the deed should take effect and pass title as a present transfer.
    4.'-: -: -: Self-Serving Evidence, in'a suit by heirs of the maker against the grantees to set aside a deed of gift, letters written by the grantor, after she had signed and acknowledged it, to a real estate agent, her banker and attorney, relating to the payment of taxes upon the property, the making of repairs and the sale thereof, are not merely self-serving statements, but competent cumulative evidence consistent with the oral testimony of the addressees who detail facts showing her continued exercise of control over the property and her intention that the deed was not to become effective until her death. Besides, the grantees, having admitted in their answer that the grantor continued to control the property after the execution of the' deed, cannot be heard to complain of such letters.
    5. —■-:-: Decree on Another Ground. The decree of the trial chancellor cancelling and annulling a deed being correct will be upheld on appeal, although he reached that conclusion on the ground that the deed “was not executed and delivered,” and the Supreme Court are of the opinion it was testamentary in character and therefore void.
    Appeal from Greene Circuit Court. — Hoto. Guy D. Kirby, Judge.
    Affirmed.

      J. 0. Patterson, A. E. Butters and Patterson & Page for appellants.
    (1) A deed, regular on its face, with acknowledgment formally correct, found in possession of the grantee, is prima-facie valid, and the burden is upon plaintiffs to show its invalidity. R. S. 1909, sec. 2818; Bohan v. Casey, 5 Mo. App. 101; Harvey v.-Long, 260 Mo. 374; Elliott v. Sheppard, 179 Mo. 382.- (2) Before a deed prima-facie valid can be declared invalid, the evidence of its invalidity should be clear, satisfactory, and convincing, and there ■ should be a decided preponderance in favor of its invalidity. Barrett v. Davis, 104 Mo. 549. (3) The recitals of the deed, together with the testimony of the notary public who took the acknowledgment, show a sufficient delivery. Harvey v. Long’, 260 Mo. 374; Cook v. Newby, 213 Mo. 471; Miles v. Robert! son, 258 Mo. 717; Standiford v. Standiford, 97 Mo. 231; Fenton v. Fenton, 261 Mo. 202; Potter v. Barringer, 236 111. 224. (4) The admission of the diary of Mrs. Wilson was error, and the letters of Mrs. Phelps after date of deed tending to show acts of ownership, though admitted without objection, have no probative force, being in the nature of self-serving statements. Elliott v. Sheppard, 179 Mo. 382; O’Day v. Realty Company, 191 S. W- 41; Townsend v. Schad'en, 275 Mo, 227.

      M. G. Smith, B. Magoon Barnes, Jay H. Magoon, Kirk Hawkins, and Wallace J. Black for respondents.
    (1) The evidence shows there was no sufficient delivery of the deed in question to divest Carrie S. Phelps of the title and vest the same in Anna and Mary Belford. Miller v. Lullman, 81 Mo. 316; Tyler v. Hall, 106 Mo. 313; Hall v. Hall, 107 Mo. 101; Tobin v. Bass, 85 Mo. 654; Staniford v. Staniford, 97 Mo. 231; Sneather v. Sneather, 104 Mo. 201. (2) Mrs. Wilson’s diary was competent evidence. Elliott v. Sheppard, 179 Mo. 582. (3) Where the evidence is contradictory and conflicting, this court has repeatedly deferred to the decision of the lower court. Jones v. Thomas, 218 Mo. 540; Brecker v. Fillingham, 209 Mo. 583; Huffman y. Huffman, 217 Mo. 182. When the question of delivery arises between a grantor and a grantee, it is to be determined by a preponderance of evidence. 1 Devlin on Real Estate (3 Ed.), sec. 263b, p. 393.
   ELDER, J.

This is a suit in equity to set aside a deed executed by Carrie S. Phelps, now deceased, conveying certain real estate located in the City of Springfield, Missouri.

Plaintiffs H. S. Coles and B. F. Shafer are nephews of Mrs. Phelps, .and plaintiff Marie Porterfield is a niece. Defendants Anna Belford, Mary .Belford and George F. Belford are nieces and nephew, respectively of Mrs. Phelps, and the remaining defendants are her collateral heirs at law.

Mrs. Phelps had a sister, Mrs. Belford, the mother of defendants Anna, Mary and George F. Belford, and a brother, Frank D. Shafer, both of whom lived near Lacón, Illinois. In November, 1909, the sister died, and Mrs. Phelps, who then resided in Springfield, went to attend the funeral. After the funeral she lived with defendants Anna and Mary Belford off and on for about two and one-half years, when she built a log cabin on the farm of her brother, near his house, and resided there np until the time of her death.

The deed in controversy is a special warranty deed, dated January 17, 1910, conveying to defendants Anna Belford and Mary Belford a house and lot iny Springfield, valued at $10',000, which -for a long time prior to November, 1909, had been occupied by Mrs. Phelps as a home. The deed purports to have been acknowledged in Marshall County, Illinois, on January 17, 1910, before defendant George F. Belford, a notary public and brother of the grantees, the acknowledgment reciting that the grantor acknowledged “that she signed, sealed and delivered the said instrument as her free and voluntary act.” The, recited consideration is $1000, hut it is conceded that the same was not paid. The instrument contains a release and waiver of the right of homestead, and warrants the promises as against all persons, claiming by, through or under the grantor. On cross-examination, over objection by counsel for plaintiffs, E. N. Ferguson, banker and advisor of Mrs Phelps in business matters, and a witness for plaintiffs, testified that the signature to the deed was that of Mrs. Phelps.

The testimony of defendant George F. Belford relative to the execution and delivery of the deed was to the effect that on Saturday, January 15, 1910, he was requested to come to the home of his sisters, Anna and Mary Belford, near Lacón, Illinois, where Mrs. Phelps was then living; tliat “Mrs. Phelps desired I should come down there and’ made a deed for her; ’ ’ that when he arrived both of his sisters and Mrs. Phelps were there, and he had some talk with Mrs. Phelps about the matter of making the deed; that on the following Monday, January 17th, the deed was written by witnesses, Anna and Mary Belford and Mrs. Phelps being present at the time; that Mrs. Phelps “had another old deed of the property, she read one and I read' the other one, she told me what to put in;” that “I had Aunt Carrie, Mrs. Phelps, to sign it, and then she acknowledged it; first b.efore that I read it over to her. ’ ’

“Q. Now after the deed was acknowledged by her as you have.stated, what did she do with it, if anything? A. She gave it to Anna Belford and said to put it in her box.

“Q. Whose box? Anna Belford’s box; she says, ‘You take this and put it in your box and keep it and whenever anything happens you send it to Springfield, Missouri, and have it recorded.’

“Q. Which one of your sisters took the paper? A. Anna, I think.—

“By The Court: She told your sister to take the deed and put it in her box? A. Yes, sir, and keep it and whenever anything1: happened to her, when she died, to send it to Springfield, Missouri, and have it recorded. .. .

“Q. Did she sign that deed in your presence? A. Yes, sir.

“Q. And delivered it to Anna Belford in your presence? A. They was sitting down by the table and she signed the deed right there; she handed the deed to me •and I wrote the acknowledgment, and I handed it back to her and she handed it to Anna Belford.

“Q. I will ask you to state to the court what her mental and physical condition was at that time, whether it was good or otherwise? A. She was in pretty good mental condition at that time, and understood everything she was doing.

“Q. What was done there in the drafting of the deed was done at her direction? A. Yes, sir, everything that was done there was done under her direction.

“Q. How old was she at that time? A. She was seventy-five or seventy-six.—

“Q. .There was no consideration paid for this deed? A. I didn’t see any paid for it.

“Q. Why did you put in the deed an alleged consideration of $1000? A. Aunt Carrie told me to put it in there; I says, ‘What will I pnt in here?’ and she said, ‘Put in $1000.’

“Q. Did she understand it was a gift? A. That is what I understood it.

“Q. Did she tell you why she wanted to make the deed? A. She said she wanted to give the property to the girls, wanted them to have it.”

There was no other evidence bearing upon the execution and delivery of the deed.

There_ was testimony for plaintiffs that on January 3,1910, Mrs. Phelps, accompanied by plaintiff Marie Porterfield, returned to- Springfield, Missouri, where they both remained until the latter part of February, 1910, and that while there Mrs. Phelps had some improvements made on the property conveyed by the deed in controversy, such as having bathroom fixtures installed and sewer connections made. There was testimony for defendants that Mrs. Phelps did not make this trip until March 1, 1910, and that during the entire months of January and February, 1910, she was at the Belford girls ’ home near Lacón, Illinois.

Carrie S. Phelps died January 14,1917. At that time defendant Anna Belford had possession of the deed in suit, and sent it to Springfield, where it was filed for record in the offic,e ,of the Recorder of Deeds for Greene County on January 18, 1917.

The foregoing for the present sufficiently outlines the facts in the case. Other matters which may be pertinent to the appeal will be referred to in the course of the opinion.

The petition alleges that Carrie S. Phelps was the owner of the property in question and had occupied the same for many years; that after her removal to Illinois she had received the rents therefrom, paid taxes and insurance thereon and made extensive repairs thereto; that there had been filed for record a deed “purporting to have been executed on the 17th day of January, 1910, by said Carrie S. Phelps, conveying said described lands to defendants Anna Belford and Mary Belford; ’ ’ that ‘ ‘ said pretended deed was acknowledged before one George F. Belford.” Proceeding-., the petition further alleges as follows:

“Plaintiff's further allege that said notary public, George F. Belford, being related to said Anna Belford and Mary Belford, grantees in said alleged deed, unlawfully combined, confederated and conspired with them, the said alleged grantees, to procure and did obtain said fraudulent conveyance and deed for the unlawful purpose of procuring the title to said described lands without paying any consideration therefor, and in truth and fact no consideration whatever was paid to said Carrie S. Phelps or to anyone for her, and by fraud and false representations made to her by said defendants, Anna Belford, Mary Belford and George F. Belford, when her mind was in such condition that she did not comprehend the nature of the act, said Carrie S. Phelps being an aged woman at the time of the consummation of the transaction, or that said alleged deed was not executed, made or acknowledged by said Carrie S. Phelps, nor delivered to Anna Belford and Mary Belford, or either of them, nor to any person for said Anna Belford and Mary Belford, and that said deed is not in fact the deed of Carrie S. Phelps.

“The plaintiffs further say that at the date of said alleged deed and the date of the purported acknowledgment thereof before George F. Belford, said notary public, said Carrie S. Phelps was not in the State of Illinois.

“The plaintiffs do not know which of the alternative statements is true but believe and allege the former statement to be true, yet they are in ignorance whether it be the one or the other.

“The plaintiff further says that all of the aforesaid acts and things committed by.defendants, Anna Belford, Mary Belford and George F. Belford were done by them with the intention and design, to cheat, wrong and defraud the'se plaintiffs and other heirs of said Carrie S. Phelps and obtain all of said real estate for their own use without any consideration therefor.”

The answer admits that Mrs. Phelps occupied the premises as her residence until her removal to Illinois; admits the subsequent receipt by her of the rents therefrom and the payment by her of taxes and insurance, and the making of repairs thereto; admits the acknowledgment and recording of “a warranty deed executed on the 17th day of January, 1910, by Carrie S. Phelps,” but denies each- and every other allegation of the petition. The answer further avers that “the aforesaid warranty deed was voluntarily made, executed and delivered by the said Carrie S. Phelps to the said Anna Belford and Mary Belford as a gift, she, the said Carrie S. Phelps, reserving verbally a life estate to herself therein. ’ ’

The reply denies the execution and delivery of the deed, denies that it was made as a gift, and denies that Mrs. Phelps verbally reserved a life estate.

The trial court found that the deed “was not executed and delivered by said Carrie S. Phelps to defendants Anna Belford and Mary Belford, or either of them, nor to any person for said Anna Belford and Mary Belford,” and entered a decree cancelling and annulling the same, divesting defendants Anna and Mary Belford of all title to the lands claimed by virtue thereof, and vesting title and ownership of said lands in plaintiffs and defendants, as heirs of Carrie S. Phelps. From this judgment and decree defendants have appealed.

I. Defendants assign as error that, “The finding and decree is against the evidence, against the weight of the evidence, and against the law under the evidence. ’ ’ The evidence wholly fails to show any mental incapacity of Mrs. Phelps as charged in the petition, nor was any particular effort made to prove Slich charge. On the contrary, the -testimony tended to show that she was fully capable of transacting business. And that point not being urged in the briefs, we shall eliminate it from consideration. And, the record disclosing no evidence of any character tending to prove the averment contained in defendants’ answer that Mrs. Phelps verbally reserved a life estate in the property, we shall also exclude that question from attention. Defendants urge, however, that the deed is prima-facie valid, that before it can be declared invalid the evidence of its invalidity should be clear and convincing, and that the evidence for plaintiffs falls short of that.

The record, comprising 250 pages, sets forth the testimony of some 26 witnesses for plaintiff and of 12 for defendants. The examination of all of said witnesses, with a few exceptions, was confined to establishing whether on January 17, 1910 (the date of execution of the deed in controversy), Mrs. Phelps was at Springfield, Missouri, or at the home of the Belford girls near Lacón, Illinois; plaintiffs zealously contending that on that day she was at Springfield and therefore could not have executed the deed as alleged, and defendants as strenuously insisting that at that time she was at the Belford home, near Lacón, in Marshall County, Illinois. Plaintiffs do not directly attack the' genuineness of Mrs. Phelps’s signature to the deed, but only do so indirectly by endeavoring to show that she was not at the Belford home when it was said to have been executed. The deed, which was introduced in evidence, appears regular on its face, with formal acknowledgment, and, from the testimony of plaintiffs’ witness Ferguson, which was not rebutted, it appears that the signature thereto was that of Mrs. Phelps. However, from the view we take of the case, the mass of testimony taken "on both sides to prove the whereabouts of Mrs. Phelps at the time the deed purports to have been executed, is besides the real question involved, which is, was there a sufficient delivery of the deed to divest Carrie S. Phelps of title and to vest the same in Anna and Mary Belford? Bearing upon the question of delivery we find only the statement of defendant George P. Belford that Mrs. Phelps gave the deed to Anna Belford, saying, “You take this and put it in your b'ox and keep it and whenever anything happens you send it to Springfield, Missouri, and have it recorded. ’ ’ True, by this delivery it may be said that Mrs. Phelps parted with dominion over the deed. However, when she said “whenever anything happens you send it to Springfield, Missouri, and have it recorded,” that language indicates that it was her intention-that the deed was not to become operative until her death. This interpretation is borne out by the further testimony of the witness George Belford, when, in response to an interrogation by the court, “She told your sister to take the deed and put it in her box?” he replied, “Yes, sir, and keep it and whenever anything happened to her, when- she died, to send it to Springfield, Missouri, and have it recorded.” Accordingly, upon authority of the adjudicated cases, the instrument was- testamentary in character, did not pass a present interest in the property to the grantees, and hence was not good as a deed, notwithstanding the intention of Mrs. Phelps that it should take effect at her death. [Huey v. Huey, 65 Mo. 689; Terry v. Glover, 235 Mo. 544; Griffin v. McIntosh, 176 Mo. 392; Murphy v. Gabbert, 166 Mo. 596; Givens v. Ott, 222 Mo. l. c. 411; Scott v. Scott, 95 Mo. 300.] Under these authorities even a valid delivery within the life time of the grantor is not shown. This evidence fails to show that the handing of the deed to one of the grantees was done with the intent - of passing an estate in praesenti, and intent is a material matter on the question of delivery. If the grantor did not give the deed to the grantee with intent of passing title at that time, then there was no delivery within contemplation of law.

As further indicative of the fact that it was not the intention of Mrs. Phelps that the deed should take effect and pass title as a present transfer, the record discloses that after the date of execution of the deed she continued, through agents, up until the time *of her death, to retain the management and control of the property conveyed, even endeavoring to find a purchaser therefor. As to this, E. N. Ferguson, banker, of Springfield, testified that Mrs. Phelps did her banking business with the banks with which he was associated; that after January 17, 1910, he received letters from her “in regard to what I considered the property worth and the advisibility of putting it on the market; I went down and looked at the property and made up my mind what I thought it was worth, and I advised her if it was my property I would sell it for that price, whatever that was; I looked around and I think I inquired of several real estate men if it was possible to sell it for the price, but I never was able to get a purchaser.” Witness identified letters written to him by Mrs. Phelps relating to the payment of taxes on the property, the relaying of a walk and the widening of an alley adjacent thereto. Mr. M. C. Smith, attorney, of Springfield, testified that he had been Mrs. Phelps’s personal counsel from 1905 until the time of her death; that she had possession and control of the property “all the time up to her death;” that in 1913 he represented her in connection with proceedings instituted for the widening of an alley adjoining the property; that in 1913 he had a new roof placed on the building, and had the barn and fence repaired; that in 1914 or 1915 he renewed an insurance policy on the building, the renewal being written in Mrs. Phelps’s name. Witness identified several letters written to him by Mrs. Phelps, relating to repairs to the property. James W. McGregor testified that he occupied the property for six or seven years from some time in 1910, renting the same from Mrs. Phelps and paying the rent to Mr. Ferguson of the Holland Bank and the State Savings Bank. Moreover, in their answer defendants admit that after about March, 1910, “the said Carrie S. Phelps rented the said property, received the rents therefor;, paid the taxes thereon, and that she procured and maintained policies of insurance payable to herself thereon and that she made such repairs to the buildings as from time to time were necessary, and that she exercised general control of said lands.”

Hence, the evidence and pleadings clearly showing that there was not such a delivery of the deed as to pass a present interest in the property conveyed, we disallow defendants’ claim of error.

II. Defendants’ remaining contention is that “the court erred in admitting incompetent, irrelevant, immaterial and prejudicial evidence on the part of plaintiffs, over the objection and exception of defendants.” One portion of the admitted evidence complained of was a diary kept by Mrs. Margaret Wilson, of Springfield, a witness for plaintiffs, containing an entry: “Jan. 21-1910. Was rather a misty day. - Took birthday dinner with Mrs. Phelps; Marie was there; also Mr. John Kelly was there. Wé had a nice turkey dinner.” Defendants argue that the diary, not being kept in' chronological order, was inadmissible. In view of our ruling that the question of the sufficiency of delivery of the deed from Mrs. Phelps is determinative of the issues presented, it is unnecessary for us to pass upon the admissibility of this evidence for the reason that the same only went to establish the whereabouts of Mrs. Phelps on the 21st day of January, 1910, which is a secondary inquiry.

Other evidence excepted to was the letters written by Mrs. Phelps to E. N. Ferguson and M. C. Smith, respectively, relating to taxes and repairs on the property in question and the prospective sale thereof. Defendants urge that these are but self-serving statements, made after the execution of the deed, and have no probative force. To this we cannot lend acquiescence. The continued exercise of general control over the property, as evidenced by these letters, is entirely consistent with' the theory that it was the intention of Mrs. Phelps that the deed was not to become effective until her death. They are cumulative towards proving that theory and were properly admitted. Furthermore, defendants' having admitted in their' answer that Mrs. Phelps continued to control the ■property after the execution of the deed, they cannot be heard to complain of evidence to the same purpose and effect.

III. A reference to the finding of the trial court shows that it found that the deed “was not executed and delivered by said Carrie S. Phelps to defendants Anna Belford and Mary Belford, or either of them.” While there was substantial evidence upon which to ^ that the deed was not executed, we are nevertheless refraining from passing upon that point, as the larger question presented is that of delivery of the deed. Holding, as we do, that the instrument was testamentary in character, and hence not good as a deed, it is unnecessary to expressly rule upon the matter of execution.

A careful review of the entire record convinces us, however, that the decree of the learned chancellor nisi, cancelling and annulling the deed, was correct. The .judgment is accordingly affirmed.

All concur.