author: SMALL, C. PER CURIAM:

text:
    W. R. HALLOWAY, E. BOEGER and W. B. ROGERS, TRUSTEES OF THE STRAFFORD DAIRY ASSOCIATION, v. MOUNTAIN GROVE CREAMERY COMPANY, Appellant.
    Division One,
    March 5, 1921.
    1. CONTEACT: Unilateral: Termination. A contract whereby one party agrees to receive during a fixed period from another property delivered from time to time and pay therefor certain prices, but by which such other party does not agree to deliver any particular quantity of such property, is unilateral and may be terminated by either party at any time by notice thereof to the other party.
    2. -: -: -: Eevivor. Where a unilateral contract has been terminated by one party, who notifies the other that he will thereafter buy from him the property mentioned in the contract at prices named from time to time in such notices, the continued delivery of such property by' the other party does not revive such contract, even though he continues to insist that such deliveries are made under the original contract.

      3. -: Alteration: Accepting Benefit. One who accepts tlie benefit of a radical alteration in an original contract made by tbe other party to it, accepts the whole alteration and is bound thereby, whether the original contract was binding or merely unilateral.
    4. -: Payment in Full: Acceptance: Protest. He who with full knowledge accepts a payment made by one party as in full of a claim 'about which there is a bona-fide dispute between the parties, is bound thereby, as an accord and satisfaction, ¿sven though he protests at the time that more was due.
    Transferred from the Springfield Court of Appeals.
    Reversed.

      V. 0. Goltrane for appellants.
    '(1) The contract sued upon is unilateral and void for want of mutuality so far as it was executory. The Strafford Dairy Association was not obligated to furnish any certain or definite amount of cream. In fact, they do not agree to do anything. Campbell v. Handle Co., 117 Mo. App. 19; Hudson v. Browning, 264 Mo. 58; Iron & Rail Co. v. Railroad, 148 Mo. App. 173; Jones v. Durgin, 16 Mo. App. 370. (2) Plaintiffs cannot recover in this action for the contract price, even upon the theory that the writing constituted a valid contract between the parties. Assuming the existence of such contract defendant fully performed up to the time it repudiated the agreement, and as to that part of the agreement which was executory it had a legal right to repudiate it by subjecting itself to a suit for damages. Thereafter, plaintiff could not perform and recover on the contract. One party to a contract has no right to proceed to execute it after .he has been notified that the other party thereto has repudiated it. His remedy is an action for damages for the breach, and his duty is to minimize the damages, not to increase them by proceeding to perform the contract. Advertising Co. v. Wilson, 186 Mo. App. 498; Catalogue Co. v. Car Co., 120 Mo. App. 575; Frederick v. Willoughby, 136 Mo. App. 244; Printing Co. v. Cutlery Co., 143 Mo. App. 518. (3) After June 2, 1914, defendant did not accept cream or agree to pay for the same under the contract sued upon. This ' is not only shown by all of the evidence but plaintiffs’ petition alleg’es that defendant “ continued during’ the remainder of the term and life of said contract to repudiate the same.” Plaintiffs are therefore estopped from claiming that defendant accepted this cream under this agreement. On the other hand, the evidence of plaintiffs as well as that of defendant shows that the defendant made a new proposition, namely, to submit prices from time to time that it was willing to pay, and also in addition to such prices to pay two cents commission. Prices were submitted by defendant to plaintiffs from time to time, the cream was shipped to plaintiffs, they knowing at the time that defendant was not intending to purchase under the contract sued on, defendant on each shipment paid’ for the cream upon the basis of these card prices, and plaintiffs accepted the money, knowing that defendant was intending by such payment to pay the full amount due. In addition to this plaintiffs accepted an entirely new term and benefit in defendant’s i second proposition, namely, the two cents commission per pound of butter fat. The controlling fact is not in dispute that they knowingly and deliberately accepted benefits accruing by reason of defendant paying the two cents commission, (a) One who accepts a benefit under an agreement' “must adopt the whole of it, conforming with all of its provisions and renouncing every right inconsistent with them. ’ ’ Pox v. Windes, 127 Mo. 502; Beaver v. Bank, 177 Mo. App. 105; Sage v. Finney, 156 Mo. App. 30; Wood v. Trust Co., 265 Mo. 525. (b) Plaintiffs should not be allowed to accept the benefits and repudiate the burdens. Dry Goods Co. v. Bank, 81 Mo. App. 46; Willow Springs C. Co. v. Mountain Grove C. Co., 197 S. W. 916; Hamill v. Talbott, 81. Mo. App. 210. (4) Where parties have entered into a contract, even a written one, and afterwards a new or modified contract is made, the old contract is thereby abrogated and abandoned. Tbe substitution of tbe new contract for tbe old one is a sufficient consideration. Carman v. Harrah, 182 Mo. App. 365; Gamhart y. Finney, 40 Mo. 463. (5) Plaintiffs of tbeir own accord accepted tbe second proposition made to them by defendant and have taken tbe advantages which resulted to them by acting under the second proposition, having received the compensation which was to be paid under its terms. Having done this they are estopped from denying the validity of the substituted agreement, nor does the fact that in making this second contract the plaintiffs protested that they had rights under the first and that they were going to hold defendant to the first agreement, better their position. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences. United States v. Lamont, 155 U. S. 303, 39 Law Ed. 160; Cotton-Oil Oo. v. Ashburn, 81 Fed. 331; Torry v. Hardy, 196 S. W. 1102. (6) Defendant had an absolute legal right to repudiate the contract. The undisputed evidence is that defendant did repudiate the contract and continued to refuse to recognize it. (a) We have the contract sued upon entirely abrogated and the defendant making a new proposition to the plaintiffs. The offer was that if plaintiffs would send their cream to defendant, defendant would pay therefor the same prices that it was paying at other stations, plus two cents commission. Plaintiff association accepted this offer by sending the cream in response to defendant’s proposal and accepting the money that was tendered in payment therefor, and also accepted two cents per pound commission, an entirely new term in the agreement, and is holding, and not willing to give up, the benefits derived by reason of defendant’s paying this commission. Lees-ley Bros. v. Fruit Co., 162 Mo. App. 195; Lungstrom v. German Ins. Co., 48 Mo. 204; Allen v. Chouteau, 102 Mo. 323. (b) There is no conflict in the testimon}7 as to these overt acts of acceptance or asquiescence, no countervailing evidence and no impeachment of any witness. The facts stand admitted. Their legal effect alone remains, and that is a question for the court to decide and not for the, jury. May v. Crawford, 1.50 Mo. 527. (c) Where the testimony given in behalf of plaintiff establishes the truth of the facts set up as new matter in the answer, and these facts are sufficient to preclude a recovery upon the part of plaintiff, it becomes the duty of the trial court, as a matter of law, to direct a verdict in favor of defendant. Torrey v. Hardy, 196 S. W. 1100. (7) The instructions given by the court are incorrect. School Board v. Hull, 72 Mo. App. 403: Lightfoot v. Hurd Co., 113 Mo. App. 612; Adams v. Helm, 55 Mo. 468; Goal Oo. v. St. Louis, 145 Mo. 651.

      L. L. Collins and Hamlin & Hamlin for respondent.
    (1) Without conceding the contract at bar is unilateral, and whether it is or is not, does not enter into-this case, because this contract was fully carried out by the respondent. Even should it be conceded that this is a unilateral contract, it does not follow at all that respondent after fully executing the same on its part should not recover, but on the contrary, after having executed it, it can recover. Typewriter Co. v. Realty Co., 220 Mo. 522; 6 R. C. L. p.‘ 687, sec. 94. (2) Whether this contract be unilateral or not the conclusion is that a nude unilateral agreement, supported by a valid consideration because the promisee has performed, is enforceable, and for its breach the promisor must respond in damages. Williams v. Tiedemann, 6 Mo. App. 274. (3) Respondent delivered the goods, giving appellant to fully understand and know that respondent was expecting of it the price theretofore ag’reed upon and under these circumstances appellant received and accepted the commodity delivered to it. And the very act of appellant in receiving this butter fat knowing at the time that respondent expected the Elgin price therefor, and knowing at the time that respondent had refused to accept from it any sum less than the Elgin price, made itself liable to respondent for the Elgin price. Dove v. Pansier, 132 Mo. App. 669; Bahrenburg v. Pruit Co., 128 Mo. App. 526. (4) It cannot he disputed that had respondent received for its butter fat the price fixed in the written contract, then it would have received the amount sued for in addition to what it did actually receive, and not having’ received the amount sued for, it was entitled to a verdict for that amount, unless the amount it did receive was received in full for the butter fat sold and delivered by it to appellant, and this was a question for the .jury. Bahrenburg v. Pruit Company, 128 Mo. App. 526; Perldns v. Headley, 49 Mo. App. 562; Dry Goods Co. v. Goss, 65 Mo. App. 55; Mfg. Co. v. Heinz, 120 Mo. App. 477. (5) Respondent by receiving checks from appellant from time to time, is not estopped to maintain this suit. No accord and satisfaction was created thereby. A creditor does not, by voluntarily accepting^ a part of what is due him, release the remainder. Perkins v. Headley, 49 Mo. App. 562.
   SMALL, C.

Appeal from the Circuit Court of Greene County.

The plaintiffs- are trustees of a voluntary association of dairymen, and the defendant is a corporation engaged in buying cream. The following agreement was executed by the parties:

“Mountain Grove, Missouri, Mar. 7, 1914.
“CONTRACT.
“Ozark Dairy Association,
“Stratford, Missouri,
“Gentlemen:
“We agree to pay the following iwice for your cream for one year, beginning the 1st day of April, 1914, and ending the 1st day of April, 1915. We will pay flat Elgin price P. O. B. Straf-ford for the entire year for all first grade cream and three cents less for second grade cream.
“Second grade cream is cream testing below 25 per cent individually or testing below 30 per cent on composite test. Also all foamy, old clieesey and dirty cream witli bad odor is to be classed as second grade cream.
“All prices to be based on Elgin market, unless the Elgin board should be dissolved, in which case the price to be based on some other market mutually agreed upon by both parties. All payments to be based on your weights and tests. The shortage if over 1 per cent may be deducted by us, when so proved short by our representative at your station on any regular receiving da?.
“We further agree to furnish acid, cans for shipping and 'report sheets, and agree to pay for all cream as soon as possible after receiving report, and also agree to pay three cents per can drayage. All cream is to be bought on Tuesdays and Fridays as far as possible. We further agree if we contract with the organization at any other point, at a higher price we will pay you the same.
“Mountain Grove Creamery Co.,
“Per H. W. Jensen, Pres.
“Strafford Dairy Association,
“By E. Bohger,
“By W. R. Haixoway,
“By W. B. Rogers.”

The petition, after pleading this agreement, alleged “that in accordance with said contract entered into as aforesaid with the defendant the plaintiffs delivered to defendant a great amount of cream or butter fat, on different dates between the first day of April, 1914, and the first day of June, 1914, and the said defendant received said cream and paid for it in accordance with said contract, to-wit: the prices fixed and paid for like cream at Elgin, Illinois, up to said date; that on June 2, 1914, and long prior to the time for expiration of said contract the defendant repudiated said contract and refused to pay plaintiffs the prices for their cream as by said contract provided and failed and refused to comply with the terms of said contract by paying plaintiffs for their cream the market price for such cream as fixed by the market at Elgin, Illinois, and continued during the remainder of the term and life of said contract to repudiate the same and refused to pay as in said contract provided, but continued to receive and accept during the life of said contract plaintiffs’ cream or butter fat, but paid plaintiffs on the same, prices therefor greatly less than the price for such cream fixed by the Elgin market, and paid plaintiffs prices fixed by defendant ant] not by the Elgin market, and which prices so paid plaintiffs were greatly inferior to the prices agreed upon and specified in said contract and fixed by the Elgin market; that plaintiffs refused to abandon the terms of their said written contract with defendant hut fully carried out and fulfilled all their part of said contract and upon the date aforesaid, to-wit: June 2,1914, or shortly there-. after plaintiffs notified defendant that they would continue during the life and term of said contract to furnish the cream as they by said contract had agreed to do and would expect and demand of- defendant to fully comply with its part of said contract, but plaintiffs charge and aver that the defendant has wholly failed to comply with and carry out its part of said contract in this, to-wit: by failing to pay plaintiffs at Strafford, Greene County, Missouri, for their cream or butter fat so sold and delivered by them to defendant, the prices for such butter fat as specified in said contract and fixed by the Elgin market; that between the date of June 2, 1914, aforesaid and April 1,1915, the date of expiration of said contract plaintiffs sold and delivered to defendant 24,-967.6 pounds of butter fat; that the prices paid plaintiffs by defendant therefor was one thousand six hundred forty-three dollars and eleven cents less than plaintiffs should' have been paid under the terms of said contract, and the prices fixed by said Elgin market; . . . for which sum, with interest plaintiffs prayed judgment. ’ ’

The answer, after admitting defendant denied liability on said agreement, was as follows:

- “For another and further answer defendant states that for some time prior to and until on or about May 28,1914, it had been purchasing cream from the Strafford Dairy Association, for which association plaintiffs bring this suit, on the basis of the Elgin, Illinois, cream or butter-fat market, and that said association was represented by one I/. A. Webster in the collection and ship-ing of such cream, the collection of the money paid by defendant therefor, and in the correspondence connected with said business, that on or about said May 28, 1914, defendant notified said Webster and said association that this defendant would no longer purchase cream upon the basis of the Elgin market as it had been purchasing the same, but would put the Strafford Dairy Association upon the same basis as all other stations patronized by defendant, and that defendant would pay after said date for cream at Strafford the same rate that it was paying at other stations and would also pay two cents commission on each pound of butter fat purchased at said station; that thereafter defendant furnished said Straf-ford Dairy Association with quotations each week as to wThat it was paying that week for cream at other stations and what it would be willing to pay at Strafford, and all cream mentioned in plaintiffs’ petition was furnished in response to said quotations and with the knowledge and understanding that defendant was paying and would only pay the amounts mentioned in said quotations, and was accepted by defendant with the understanding that it was furnished upon the basis of such quotations; that defendant would not have accepted said cream at a higher price than mentioned in said quotations plus said commission; that each week thereafter defendant upon each shipment of cream paid said association upon the basis of said quotations in full for the amount received, and further paid said association two cents commission on each pound of butter fat, and said association accepted the same. Wherefore, defendant says that plaintiffs are not entitled to recover.”

The reply traversed the new matter in the answer.

• There was no dispute as to the material facts which were, in substance, as follows:

The defendant received and paid for all the cream delivered according to the price fixed in said agreement until about June 1, 1914, when defendant notified said association that it would no longer purchase cream under said agreement, but would pay them thereafter the same price it paid others, including two cents per pound of butter fat, for the tester — the person then in plaintiffs’ employ who tested the cream. The plaintiffs had theretofore themselves paid said tester one cent per pound of butter fat for his services. Upon receipt of this notice, the association promptly replied that they would not consent to any change in said original agreement, but would continue to supply defendant with cream at the price fixed therein for the time therein specified. But defendant refused to recede from its position and at stated periods sent cards to said association showing the price it would pay for cream thereafter. There was no claim, however, that said association was obligated to farther supply defendant cream at any price. After receiving these cards plaintiffs continued to furnish defendant with cream and to insist that they were entitled to the price therefor fixed in said agreement of March 7, which defendant persistently denied and refused to pay, but sent the association checks for the cream it received at the prices named in such cards, including two cents per pound of butter fat for the tester, which the association regularly received and kept, except the two cents for the tester which they paid over to him in full for his services, and no longer considered him in their employ. But all the while the association demanded the price fixed in said agreement. This course of business continued — each maintaining a firm stand by his guns— until the expiration of the year mentioned in said agreement. Thereupon, this suit was brought.

Under instructions given by the court, the jury returned a verdict for the amount sued for, being the difference between the card prices received and the price in said agreement. Among other instructions, the defendant requested a demurrer to the evidence, which was refused.

An appeal' was duly lodged in the Springfield Court of Appeals, where the judgment of the circuit court was affirmed. On motion for re-hearing', FakbibgtoN, J., asked that the case be certified to this court, because the decision was in conflict with the following cases: Lightfoot v. Hurd & Co., 113 Mo. App. 612; Adams v. Helm, 55 Mo. 468; St. Joseph School Board v. Hull; 72 Mo. App. 403. The cause was accordingly so certified. The opinions of the Court of Appeals will he found in 209 S. W. 325-331.

I. The.first question is, was the said agreement of March 7, 1914, a valid contract or an unilateral agreement which was not binding on either party? On this point all the judges of the Springfield Court of Appeals agreed that it was unilateral and could be receded from by the defendant, except in so far as it became executed, under the ruling of this court in Hudson v. Browning, 264 Mo. l. c. 65. In that case, the authorities are collected and reviewed, and it was held, "that where one party agreed to buy a certain number of ties at certain prices, but the other party did not bind himself to furnish any particular number, the agreement, so far as it was executory, was not binding upon either party. It is evident the same rule must apply to the agreement between the parties here. The dairy association did not agree to furnish any particular amount of cream and could have gone out of business or refused to supply any and defendant would have been remediless. Consequently, we hold, that said agreement, not binding plaintiffs, was not binding on defendant, and defendant had a right to cease receiving cream thereunder and to so notify plaintiffs, and upon giving such notice, said agreement was at an end.

II. We also hold, that there was no evidence that said agreement was ever thereafter renewed or acted on or executed in any way by defendant. While it is true, defendant received cream thereafter, which the association tendered under said agreement, yet, defendant at all such times denied that said agreement longer existed, and before plaintiffs supplied such cream .notified plaintiffs that it would not pay the agreement price therefor, but only’the price shown on the cards sent the plaintiffs. There was therefore neither an express nor implied revivor of said agreement nor recognition thereof in any way by the defendant. But, it is said, that plaintiffs refused to recognize the defendant’s right to withdraw from said agreement, and continued to ship cream, which defendant continued to receive, knowing that plaintiffs asserted that said agreement was still binding. But the association’s mere assertion after said agreement was no longer binding that it was still binding, did not revive it nór make it binding on defendant. Plaintiffs could not sua sponte keep said agreement alive against defendant. Defendant did nothing, after it notified plaintiff that said agreement would no longer be adhered to, to lead plaintiffs to believe it was still in existence, and that plaintiff could supply cream thereunder and would receive the price therein fixed. On the other hand, defendant continued at all times to insist that said agreement was ended and that it would only pay certain card prices of which defendant notified plaintiffs in advance from time to time before they shipped the cream. Indeed, the petition itself not only admits but distinctly alleges that defendant at all times thereafter repudiated said agreement, that is, refused to take or pay for cream thereunder. There was, therefore, no acceptance of cream under said agreement by defendant, nor execution thereof after it withdrew therefrom. The plaintiffs’ case, therefore, fails because they sued for the price contained in said agreement, for which defendant was not liable.

Tlie most that can be said is that there never was any agreement or meeting of minds as to the price to be paid after defendant notified said association of its refusal to go on with said original agreement, and if plaintiff had never been paid anything for cream subsequently delivered, it could recover the value thereof, but not any special contract price. So that, defendant’s demurrer to the evidence should have been- given.

III. ' Another feature is this — and it is the point upon which the learned appellate judge certified the case here: There was not simply a failure or refusal to pay the price fixed for cream in the agreement of March 7th, but after June 1st, a radical change in another respect was made. Thereafter, defendant paid the cream tester two cents per pound of butter .fat for his services in testing the cream in addition to the card price paid the association for the cream, and included this tester’s commission in the checks sent the association for the cream. The association regularly received and paid over such commission to said tester as full payment for his services and no longer considered him in their employ. Whereas, while both parties transacted business under said agreement on March 7th, the tester was paid one cent commission per pound by the association and he was considered in their employ. This, in effect, was a radical change in the original agreement, and on the undisputed facts the plaintiffs carried it out —got whatever benefit there was in it by no longer having the tester in their employ and no longer being liable to him for his services. Under such circumstances, it availed the plaintiff naught to protest and insist on the original contract. “Saying they would ne’er consent,’’’ they did consent to the change, in so far as the tester was concerned and received whatever advantage accrued to them thereby. Under such circumstances, it is well settled, that plaintiffs wore bound by the whole alteration made, whether the original agreement was a binding contract or mere unilateral agreement.

“He who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions and renouncing every right inconsistent with them, . . . A person cannot accept and reject the same instrument, or having availed himself of it as to part, defeat its provisions in any other part, and this applies to deeds, wills and all other instruments.” [Fox v. Windes, 127 Mo. l. c. 511-12; Sage v. Finney, 156 Mo. App. l. c. 42-3.]

Y. There was, at least, a bona-fide dispute between the parties, and plaintiffs with full knowledge that defendant was paying to them the card prices and commission to the tester in full aH its liability to them for the cream they furnished, received and kept the money. The mere fact that they protest-

ed at the time that there was more due did not prevent their acceptance of the money from operating as accord and satisfaction. “If one accepts a payment upon condition that it is to be received in full satisfaction of his claim, his entire claim is satisfied, even though he filed a written protest at the time of accepting the amount paid, notifying the debtor that he would insist on the balance claimed.” [Coal Co. v. St. Louis, 145 Mo. 651; St. Joseph School Board v. Hull, 72 Mo. App. 403; Lightfoot v. Hurd & Co., 113 Mo. App. 612; Adams v. Helm, 55 Mo. 468.]

The result is, the judgment of the circuit court is reversed.

Brown and Ragland, CC., concur.

PER CURIAM:

The foregoing opinion of Small, C., is adopted as the opinion of the'court.

All of the judg’es concur, except Goode, J., not sitting.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    FLORENCE L. GATY, Appellant, v. UNITED RAILWAYS CO. of ST. LOUIS.
    In Banc,
    March 5, 1921.
    1. NEW TRIAL: Newly Discovered Evidence. To justify the granting of a new trial on the ground of newly discovered evidence, such evidence must he not only material but of such character and weight that, upon another trial, it would probably produce a different result.
    2. -: -: Discretion of Trial Court. The trial court has a large discretion in the matter of granting new trials on the ground of newly discovered evidence, the sound exercise of which is to be encouraged; but this discretion is subject to review by the appellate court on appeal.
    3. -: -: -: Evidence in This Case. In this case the newly discovered evidence upon the ground of which the trial court granted a new trial is examined and analyzed, and it being in the opinion of the Supreme Court highly improbable that it would have changed the result, the trial court’s action in- granting a new trial on that ground is disapproved.
    4. NEGLIGENCE: Pleading: Evidence: Conclusion of Expert. Where the petition in a suit for personal injuries alleged that plaintiff’s “right leg and knee and knee joint and the bones, muscles and ligaments thereof were greatly strained, bruised, torn, and injured and her said knee and joint thereof was made stiff and immobile and is permanently injured” and that as a result plaintiff suffered great bodily pain, etc., and defendant on cross-examination of plaintiff’s medical witnesses tried to show that the swelling, tenderness, immobility, of plaintiff’s knee, .at the time of the trial and for some time preceding it, was not caused by the street car collision complaind of, the court properly refused to strike out the answer of one of such witnesses that plaintiff was “suffering from a disease of the knee joint'superinduced by the injury.”
    5. -: Instructions: Assuming Facts. In a suit for damages for personal injuries charged to have been received by plaintiff by reason of a collision between one of defendant’s street cars, on which plaintiff was a passenger, with another, of defendant’s cars, an instruction which says that “if the jury find from the evidence that plaintiff was a passenger in one of said cars and by reason of. said collision plaintiff was injured, then,” etc., is not erroneous as assuming that plaintiff was injured.

      6. -: -: Stating Maximum Damages. In a suit for damages for personal injuries an instruction which tells the jury that if they find for plaintiff they should assess her damages at such sum or sums as they believe from the evidence will he a fair compensation to her “not to exceed the sum of $25,000” is not erroneous as containing a judicial hint that the court would approve a verdict for the amount stated.
    7. -: -: -: Mentioning Amount Claimed. Under our practice it is not ordinarily reversible error to give an instruction mentioning the amount of the damages claimed in the petition and warning the jury not to exceed it in their assessment.
    8. -: Excessive Damages: New Trial Sustained on Other Grounds. Where the evidence falls short of' showing, in a personal injury case, that plaintiff’s nervous system was permanently injured and also that the function of her knee was permanently impaired, a verdict for $12,000 is excessive, and a motion for new trial on that ground is properly sustained, although the trial court sustained it on the ground of newly discovered evidence.
    10. -: -: -: Remittitur: In Appellate Court. Where. the trial court grants a new trial to the defendant on the ground of newly discovered evidence, and the Supreme Court disapproves of this action but finds that defendant was entitled to a new trial on the ground of excessive damages, it cannot reverse the order granting a new trial and order a remittitur, so that plaintiff, if he elect to *do so, may have judgment for the remainder. It can only affirm the order granting the new trial.
    Appeal from St. Louis City Circuit Court-. — lion. Thos. C. Hennings, Judge.
    Affirmed.

      1). Franklin Garber and Claude D. Hall for appellant.
    (1) Motions for a new trial on ground of newly-discovered evidence are regarded with, a jealous eye and construed with strictness by the courts. They should he tolerated, not encouraged; viewed with aversion rather than favor; granted as an exception and refused as a rule. Tootle & Co. v. Lysaght & Co., 65 Mo. App. 139; State v. McLaughlin, 27 Mo. Ill; Cook v. Railroad .Co., 56 Mo. 380; State v. Sansone, 116 Mo. 1; Grocery Oo. v. Hotel Co., 183 Mo. App. 429; State v. Bybee, 149 Mo. 632; Porter v. Stock Yds. Co., 213 Mo. 372; Blair v. Paterson, 131 Mo. App. 122. (2) Before a new trial can be granted on newly-discovered evidence, applicant must be held to tbe strictest accountability for failure to obtain tbe requisite evidence in tbe first instance. Miller v. Wbitson, 40 Mo. 97; Shaw v. Besch, 58 Mo. 107; James v. Life Assn., 148 Mo. 1; Stahl-man v. Rys Co., 183 Mo. App. 144; Aaron v. Street Ry., 159 Mo. App. 307; Eidson v. Street Ry., 209 S. W. 577; Knox v. Ry. Co., 199 Mo. App. 64; Bowen v. Matlack, 188 S. W. 99; State v. Morgan, 96 Mo. App. 346; Jones v. Furnishing Co., 77 Mo. App. 474. (3) Where there is no statement in the affidavit that the verdict is unjust, or that the defense has merits, the motion should be overruled. Culbertson v. Hill, 87 Mo. 553. (4) In order to sustain a motion on the ground of newly-discovered evidence, it must appear that the evidence is material. Goff v. Mulholland, 33 Mo. 203; Mayor of Liberty v. Bums, 114 Mo. 426; King v. Gilson, 2:06 Mo. 264; Winn v. Grier, 217 Mo. 420; State v. Miller, 144 Mo. 26. (5) To sustain a motion for a new trial on this ground, the newly-discovered evidence must not be merely contradictory. Boggs v. Lynch, 22 Mo. '563; Stahlman v. Ry. Co., 183 Mo. App. 144. (6) The newly-discovered evidence must not be merely cumulative. Gardner v. Ry. Co., 167 Mo. App. 605; State v. Nickens, 122“Mo. 607; State v. McLaughlin, 27 Mo. Ill; State v. Welsor, 117 Mo. 570; State v. Nettles, 153 Mo. 464; Bed Co. v. Ry. Co., 148 Mo. 478; State v. Bybee, 149 Mo. 632. (7) The evidence must be such as to produce a different result upon a retrial. Stephens v. City of Macon, 83 Mo. 345; Lyons v. Met. St. Ry. Co., 253 Mo. 143; State v. Sansone, 116 Mo. 14; Madden v. Realty Co., 75 Mo. App. 358; State v. Estes, 209 Mo. 306. (8) This court will reverse the decision of the lower court and give such judgment as ought to be given. Sec. 2083, R. S. 1909; Smith v. White, 165 Mo. 590; Bragg y. Street Ry. Co., 192 Mo. 366. (9) Tlie court did not err in permitting Dr. Iiorwitz to testify that the disease in plaintiff’s knee joint was superinduced by the injury. It was perfectly proper for this witness to state his conclusion, as he was shown to be a physician and surgeon of experience with reference to such matters, and that he had been treating the plaintiff for some time. Fullerton v. Fordyce, 144 Mo. 519; Halfenstein v. Med-art, 136 Mo. 595; Laughlin v. Railway, 275 Mo. 473; Torreyson v. Rys., 246 Mo. 703. Again, there was no objection made and exceptions saved to this testimony. ■Higgins v. Jasper. 134 Mo. App. 1; State v. Scullin, 1.85 Mo. 709; Ross v. Pants Co., 241 Mo. 296. And the exception must be taken immediately. Moran v. Stewart, 246 Mo. 462. Not only was this testimony admissible, but the defendant’s counsel himself brought out this testimony in his examination of Dr. Horwitz. And the rule is, that a party litigant cannot complain of testimony over his objection where evidence of the same character has been admitted without objection, or where he himself introduces like evidence. Masonic Mutual v. Lackland, 97 Mo. 137; Laughlin v. Railway, 275 Mo. 474. (10) There is no merit in respondent’s argument that the verdict was excessive. The trial judge did not assign an excessive verdict as a ground for sustaining the motion for a new trial. The plaintiff received injuries of a serious and permanent character. Plaintiff is a single woman, and at the time of trial was 36 years of age and earning $66 a month as a stenographer in the postal service. As a result of the collision she was knocked unconscious and was in a dazed condition for several-minutes thereafter; her face was cut and bleeding, and her leg was so injured she could hardly get off of the car; her knee and upper part of the right leg was injured; she could hardly get home; she limped so; her limb bothered her; she kept getting, worse right along;' was constantly under the care of physicians down to the date of trial. On January 29th, subsequent to the accident, which was on the 19th day of December previous, her limb was so sore and tender that it was necessary to put her leg in’ a cast. Her whole limb was swollen, and on the last of March she'had to get crutches. Though the cuts on her forhead were healing she was put to bed for six weeks; she was very nervous.

      Charles W. Bates, T. E. Francis and Albert D. Nortoni for respondent.
    (1) The trial court did not err in granting defendant a new trial on the ground of the discovery by defendant, subsequent to the trial, of evidence which tends to show that plaintiff’s injuries did not result from the street car collision, but resulted from an automobile collision, for the following reasons: (a) Since defendant’s motion for a new trial on this ground was addressed largely to the trial court’s discretion, the sustainment of the motion should not be set aside by this court, unless the trial court clearly abused its judicial discretion; and any doubt on this point should be resolved in defendant’s favor. McPherson v. Harvey, 183 S. "W. 654; Insurance Co. v. Curran, 45 Mo. 145; Coleman v. Cole, 96 Mo. App. 33; Cook v. Railway Co., 56 Mo. 384'; Allen v. Railway Co., 167 Mo. App. 505. Since the trial court adjudged the verdict unjust, it was its duty, and it had the right, to grant a new trial under the circumstances, and this court should encourage the trial court in the performance of that duty, and heretofore has done so in like cases. Devine v. St. Louis, 257 Mo. 475; McCarty v. Transit Co., 1.92 Mo. 401; Rickroad v. Martin, 43 Mo. App. 603; Reid-Murdock & Co. v. Lloyd & Moorman, 61 Mo. App. 648; Iba v. Railway Co., 172 Mo. App. 141; Lorenzen v. Railroad, 249 Mo. 187; Taylor v. Ry. Co., 163 Mo. 194. (b) The trial court did not,'in sustaining defendant’s motion for a new trial, abuse its judicial discretion, for the reason that defendant made a substantial showing entitling it to a new trial on the ground of the newly discovered evidence. McPherson v. Harvey, 183 S. W. 654; Rv. Co. v. Ransom, 5 Ga. App. 740; Davis v. Sim, 92 Kan. 264; Mason v. Meloan, 165 Ky. 582; Thornton v. Rhode Island, 67 Atl. 451; Spencer v. Erie R. Co., 75 Atl. 155. (c) The newly discovered evidence was not cumulative. Chlanda v. Transit Co., 213 Mo. 268. (d) The admission of plaintiff, that she sustained severe injuries in an automobile collision, is original evidence, for the reason that she was a party to the record, and, since defendant filed her affidavit, there was a showing that it could he produced on a new trial. Southern Bank v. Nichols, 202 Mo. 324; Bank v. Epstein, 221 Mo. 303. (2) The trial court did not err in granting defendant a new trial, and its order granting defendant a new trial should, therefore, he affirmed, for the reason that it erred in admitting the testimony .of Dr. Horwitz that plaintiff suffered from a “disease” of the knee joint, since such “disease” was an element of special damages not pleaded and was not shown to he a necessary result of the injuries pleaded in the petition. Hall v. Coal & Coke Co., 260 Mo. 371. (a) The court will not reverse the order of the trial court in granting a new trial if it can be sustained upon any ground of the motion for a new trial, even though not sustainable upon the ground specified of record. State ex rel. Hartman v. Thomas, 245 Mo. 71. (3) The trial court did not err in granting defendant a new trial, and its order granting a new trial should, therefore, be affirmed, ‘for the reason that it erred in admitting the testimonjr of Dr. Horwitz, that the “disease” in plaintiff’s knee joint, from which she suffered, “was superinduced by” the injury, thus permitting the witness to state a mere conclusion and to invade the province of the jury. De Meat v. Storage Co., 231 Mo. 630; Castanie v." United Rys., 249 Mo. 196; Jackmann v. Ry. Co., 187 S. W. 787; Deiner v. Suttermeister, 266 Mo. 521; Rusk v. Pryor, 190 S. W. 1038; Henson v. Kansas City, 210 S. W. 16; Willis v. Ry. Co., 199 S. W. 738; Smart v. Kansas City, 208 Mo. 202; Glasgow v.'Met. St. Ry. Co., 191 Mo. 347; Roseoe v. Railroad, 202 Mo. 576. (4) The trial court did not err in granting defendant a new trial, and its order granting a new trial should, therefore, he affirmed, for the reason that the verdict was so grossly excessive as to he indicative of the fact that it was, and because it was, as a matter of fact, the result of hias and prejudice on the- part of the jury against defendant. Cook v. Glohe Printing Co., -22;7 Mo. 614; Partello v. Ry. Co., 217 Mo. 661; Chitty v. Ry. Co., 148 Mo. 82; Gurley v. Ry. Co., 104 Mo. 234; Adams v. Ry. Co., 100 Mo. 570. (a) The verdict was grossly excessive. Nicholds v. Glass Co., 126 Mo. 68; Adams v. Ry. Co., 100 Mo. 555. (b) There was no evidence of permanent injury: Wilbur v. Elec. Ry. Co., 110 Mo. App. 697.
   ELDER, J.

This is an action for damages for personal injuries alleged to have been received by plaintiff in a collision betweén two of defendant’s street cars, in one of which she was a passenger.

On December 19, 1916, the defendant was engaged in operating various lines of street railway in the City of St. Louis. On that date plaintiff boarded and became a passenger on one o± defendant’s cars, it being of the type known as a “pay as you enter” car, receiving passengers at the rear end. Near the entrance there was a small space, enclosed with an iron railing, in which the conductor stood to receive fares. After plaintiff had paid her fare and while standing in the vestibule, holding to the iron rail enclosing the conductor’s booth, not having had time to reach a seat, the car in which she was riding was run into by another of defendant’s cars. The vestibule was partially demolished and the car itself derailed. Plaintiff was knocked, or thrown, down by the impact and was unconscious for a minute or so. - When she got up, or was helped up, she was in a dazed condition. She got out of the car and walked about thirty or forty steps. She then took another car and rode a distance, en route home, transferred to another line on which she rode a short distance, and then got off and walked four blocks to where she lived. So far the facts seems to be conceded. The nature and extent of plaintiff’s injury, if any, resulting from the collision, were the subject of the controversy at the trial below.

The petition alleges that, as a direct result of the collision, plaintiff “was violently thrown and knocked down and about in said car and was renderd unconscious thereby, her nerves and nervous system were greatly shocked and injured, her head and face was cut and lacerated, her right leg and knee and knee joint and the bones, muscles and ligaments thereof were greatly strained, bruised, torn, and injured and her said knee and joint thereof was made, and is, stiff and immobile and is permanently injured; that as a direct result of said injuries, caused and occasioned by the negligence of defendant, its agents and servants, as aforesaid, plaintiff states that she has suffered great bodily pain and mental anguish and will in the future suffer such pain; that she was made, and is, very restless, nervous and suffers from loss of sleep, and will in the' future suffer from nervousness as a direct result of said injuries; that as a direct result of said injuries she has been disabled from carrying on her duties, that of clerk in the United States post office, at said City of St. Louis, and her earnings amounting to $75 per month have been lost to her, and she will in the future be deprived of and suffer a loss of earnings by reason of such disability and injuries so negligently inflicted upon her in the manner, and by the means aforesaid.”

The answer is a general denial.

With respect to her alleged injury and the resulting impairment of her earning capacity, plaintiff’s evidence, which is of a substantial character, tends to show the following:

At the time’of the collision in which' she claims that she was injured, plaintiff was thirty-five years of age, unmarried, living with her mother, brother and sister, and being in the employ of the United States as clerk and sten-grapher in the Post Office at St Louis at a salary of $800 a year. Prior to that time her general health was good and had been all her life. She had not theretofore suffered from nervousness in any respect, nor had her right leg or knee ever pained her or caused her the slightest annoyance in any way.

As an immediate result of the collision, plaintiff received two slight cuts or abrasions on the left side of her head, suffered nervous shock and experienced severe pain in her right leg and knee. The pain in her limb was so great that she had difficulty in getting home. On arriving there she gave way to a spell of hysterical crying before she could tell her mother what had happened. The next morning Dr. O. T. Upshaw was called. He found no external evidences of injury of any kind, except an abrasion on her head, but she was extremely nervous and complained of pain in her leg and knee. He treated her for the nervousness and prescribed a liniment for her limb. He continued to treat her. for three or four weeks, making local applications of various kinds to the leg and knee and having plaintiff wear an elastic stocking and knee protector. Her pain and. nervousness, however, remained unabated and she began to limp. During this time, under his advice, she continued at work, having to remain at home for a day or two from time to time. On January 29th following, plaintiff put herself under the professional care of Dr. Plarry Up-shaw, her mother’s family physician. He found her limb at that time slightly swollen at the knee,, that there was retarded motion and extreme pain upon pressure, or upon forced motion. He thought best to immobilize the knee by putting it in a cast and confining plaintiff to her bed, and this he did for a period of four weeks. About March 1st the cast was taken off but the knee continued swollen and on the advice of Dr. Upshaw plaintiff put hot pads to the leg and rubbed it with alcohol. When moving about she used crutches. This treatment gave no results and about the first of June Dr. Upshaw turned her over to an osteopathic physician. During the time that Dr. ITarry Upshaw was treating plaintiff, she was extremely excitable, trembling whenever he attempted to do. anything to her knee, and her nervous condition became so extreme as to verge on hysteria. On cross-examination Dr. Upshaw said that there must have been some other condition which produced the swelling of plaintiff’s knee than traumatism, otherwise the swelling would have disappeared when the knee had been put into a cast.

Dr. Josephine De France, the osteopath to whom the case' was referred, found the knee joint stiff, the cartilage seeming to be locked between the two large bones of the leg. It was subjected to osteopathic treatment from June until the latter part of September without result. These treatments were then discontinued. Plaintiff next consulted Dr. A. E. Horwitz, a specialist in bone surgery. He began treating her on October 10, 1917, and at the time of the trial in January, 1918, she was still under his care. On his first treatment, Dr. Horwitz found plaintiff’s knee joint somewhat swollen and rigid and the motion only about one-third of what it would have been had it been normal. There was tenderness around it and she complained of its paining her. At the time of the trial these conditions had not yielded to his treatment. Plaintiff could bear her weight on her limb, but could not use it in walking. On the witness stand, Dr. Horwitz was asked whether in his opinion, plaintiff would ever be able to have “the full and complete and normal use of her limb and knee.” He answered: “I doubt it.” On being asked what he treated the knee for, he answered, “my diagnosis was tuberculosis of the' knee joint.” Defendant objected that that was a matter of' special damages and was not pleaded. The question was withdrawn, the answer stricken ont by the court and the jury cautioned to disregard it. This witness further testified, without.objection, that the rigidity of the joint which he found could have been caused by either an injury or disease. It co'uld have been produced by injury followed by disease. He was then asked if the condition of the knee as he found it could have been brought about by an injury. His answer was, “my interpretation of that would he that it was disease of the joint coming from an injury; that the disease was superinduced by the injury.” Defendant moved that the answer be stricken out on the ground that “it is just another way of bringing in something that is not pleaded.” The motion was overruled. On cross-examination, the witness further testified that he found the knee in a diseased condition, and that such condition, if caused by an injury, would have developed within a month or two after the happening of the injury.

Plaintiff was unable to do any work after February 1, 1917. At the time of the trial she had incurred, for medical treatment, an expense of approximately $560.

Defendant’s evidence may be briefly summarized as follows:

Six radiographs were taken of plaintiff’s knee; two on January 26th; two on June 12th; one on September 14th; and one on September 20th- — all in the year 1917. None of them, according to the experts who testified on the subject, showed any injury to, or dislocation or fracture of, either the bones or ligaments of the joint. They disclosed nothing whatever that was abnormal.

Plaintiff was examined on three different occasions by a surgeon in the employ of defendant and at two different times by a physician appointed by the court. On the day of the accident and within an hour or two thereafter, Dr. J. J. Pussier, at the instance of defendant, called on plaintiff and made an examination. He found that she had an abrasion over the left eye and that she complained of pain • in the left temple and in her right leg’. He found no objective symptoms of an injury to either her left temple or right leg. Dr. Carl J. Young, another of defendant’s surgeons, made an examination of plaintiff on January 10, Í917. To him she complained of pain in her right knee. He discovered a slight tenderness over two of the muscles; otherwise there were no signs of injury. He found “nothing the matter with the bone, no limitation of motion, no dislocation, nothing wrong.” On March 14, 1917, Dr. J. T. Turley, also at the instance of the defendant, examined plaintiff. He found her to be extremely nervous, verging on a state of hysteria, the right knee slightly swollen, pain upon motion and the motion limited. Plaintiff was next examined on October 29th by Dr. Ohas. Gr. Chaddockj a specialist in nervous and mental diseases, who was appointed by the trial court for .that purpose. His examination, he said, did not reveal any material or organic injury to plaintiff’s nervous system. On January 4, 1918, Dr. James B. Prichard, another of the court’s commissioners, examined her. He found the knee joint to show some stiffness and that plaintiff complained of pain on movement beyond a certain limit. She also complained of pain upon deep pressure at a little point on either side of the knee. He found nothing else wrong. There was no swelling of the joint. Plaintiff’s leg, then under the treatment of Dr. Horwitz, had been in a plaster cast for several weeks. Dr. Prichard gave it as his opinion that the condition of the knee that he found was the result of it having been immobilized for a considerable length of time. In reply to hypothetical questions, he expressed the further opinion, (that, as no objective symptoms of injury to the knee developed for approximately • a period of six weeks after the accident, the accident did not primarily cause the condition of the knee .that he found, but that the same was probably due to the previous osteopathic manipulations. He further testfiiecl that he found no indications of disease of the joint and that in his opinion plaintiff*would recover the normal use of the limb.

The court gave two instructions for plaintiff, as follows:

“No. 2. If the jury find from the evidence that plaintiff was a passenger in one of said cars and by reason of said collision plaintiff was injured, then the mere fact of, said collision of the two cars is presumptive evidence of negligence on the part of defendant’s agents and servants and the' defendant is liable in this suit and your verdict must be for the plaintiff, unless you further find that plaintiff was guilty of any want of ordinary care or prudence which directly contributed to her injury.
“No. 7. If the jury find for the plaintiff they should assess her damages at such sum or sums as they believe from the evidence will be fair compensation to her, not to exceed the sum- of $25,000.”

The jury returned a verdict for the plaintiff, assessing her damages at $12,000. In due course the defendant filed a motion for a new trial containing numerous assignments of error, including the claim that the verdict was excessive, but which was sustained on the single ground of newly discovered evidence. The evidence men'tioned in the motion for new trial alleged to have been discovered since the trial of the cause consisted of “a verified written statement made by plaintiff November 7, 1917, wherein she stated that on October 21, 1917, she sustained severe injuries due to a collision between two automobiles, in one of which she was a passenger,” and the testimony of Drs. H. L. Nietert and Olney A. Am-brose that in their opinion “plaintiff could not have received the said severe injuries on October 21, 1917, without causing further injury to the right knee, due to the severe impact of the two automobiles, as aforesaid.” The verified statement referred to in the motion, which was filed therewith as an exhibit,'was a forma] release signed by plaintiff and her brother, Walter W. Gaty, dated November 7, 1917, by which in consideration of $48.10 they released Dr. Nietert from all liability “now accrued or hereafter to accrue ... in any way arising from any and all injuries, losses and damages by us or our property sustained or received on or about the 21st day of October, 1917, through an accident which occurred . . . when our Stewart Truck in which we were riding was struck by an automobile, owned and operated by Dr. H. L. Nietert, his agents and servants, causing our truck to be damaged, and causing us to sustain severe injuries.” The release evidently followed the regular form used by the company that was carrying Dr. Nietert’s casualty or liability insurance, In support of the motion the affidavits of Drs. Nietert, Ambrose and Scherck were filed. Dr. Nietert stated that “a machine belonging to him was in a collision with an automobile truck in which plaintiff:, Florence L. Gaty, was riding, which impact was a severe one; that following said collision, affiant made a physical examination of said Florence L. Gaty, and, on said examination, affiant found that said Florence L. Gaty, had received a blue spot on the inside of the left knee and abrasions and bruises on the right arm.” Dr. Ambrose stated that he was present in court and heard the plaintiff testify on direct examination concerning the accident and injuries alleged to have been received by her on December 19, 1916; that he had read the affidavit of Dr. Nietert; and that it was his opinion, based on the facts therein recited, that it would have been impossible for plaintiff “to -have received the second injury wthout causing further injury to the right knee.” Dr. Scherck’s affidavit was to the same effect. In further support of the motion,' defendant introduced the deposition of Dr. Horwitz. He testified that he had not heard that plaintiff was hi an automobile accident until after the trial and that the information caused him surprise. On cross-examination, he stated that he fully examined plaintiff’s right'knee on October 10th and again on October 26th, and that the condition on the latter date was practically the same as on the former one.. In opposition to the motion plaintiff filed the affidavits of Walter W. Gaty and herself. Walter W. Gaty stated that, “he was driving an automobile truck, accompanied by his sister, Florence L. Gaty, and while in the act of leaving an oil station at Kingshighwav, an automobile owned by Dr. Nietert ran into our car, hitting it square on the side, but the impact was not sufficient to upset our truck; in fact, I was not thrown out of my seat. I was not injured other than a slight hump on my nose; my sister was thrown up against me and her left limb struck the brake handle, bruising her left limb, and her right arm struck the steering wheel.” He further stated that he expended $43.10 for repair of the truck and $5 for the use of another while the repairs were being made, totaling $48.10, upon the payment of which the American Auto Ins. Co. he executed the release to Nietert, and that neither he nor his sister made any claim for personal injuries. Plaintiff’s affidavit was to the same effect as that of her brother. In addition she stated that she called the attention of their family physician, Dr. Upshaw, to her slight bruises, but he declined to prescribe treatment because they were inconsequential.

Prom the order granting a new trial plaintiff appeals.

I. To justify the granting of a new trial on, the ground of newly discovered evidence, such evidence must be not only material but of sucli character and weight that upon another trial it would probably produce a different result. [State v. McLaughlin, 27 Mo. 111; Mayor of Liberty v. Burns, 114 Mo. 426; Goff v. Mulholland, 33 Mo. 203: King v. Gilson, 206 Mo. 264; Shaw v. Besch, 58 Mo. 107; Stahlman v. Railways Co., 183 Mo. App. 144.] It is claimed by defendant that the after discovered evidence in the present case meets this essential requirement because it tends to show that plaintiff suffered injury to her right knee long after the alleged one for which she sues. But does it? An analysis of that evidence will assist in answering, this pertinent question. The only parts of it that could he construed as furnishing any proof whatever of a second or later injury to plaintiff’s right knee are the release to Dr. Nietert signed by her and her brother and the testimony of Drs. Ambrose and Scherck, as disclosed by their affidavits. The release makes not reference to plaintiff’s knee, but it does recite that the automobile collision caused “us to sustain severe injuries.” The face value of this recital as importing verity is immediately discounted when it is recalled that it is the language of a claim agent or adjuster who has but one purpose in mind, that of relieving his company of all liability, “now accrued or hereafter to accrue.” When it is shown that the small sum paid for the release was merely to reimburse the owner of the disabled truck for money expended for its repair and for rental of another machine, it ceases to have any evidential value in so far as it asserts that the givers of the release suffered “severe injury.”

Drs. Ambrose and Scherck say that they heard the evidence relating to the condition of plaintiff’s right knee introduced at the trial, that they read Dr. Nietert’s affidavit in which he stated that the impact, referring to the automobile accident, was a “severe one” and that following the collision he had made a physical examination of plaintiff and found “a blue spot on the inside of the left knee and abrasions and bruises on the right arm.” Based solely on these circumstances, they gave it as their opinion that plaintiff necessarily suffered a further injury to her right knee in the automobile accident. In considering what weight could be accorded this opinion evidence, the first thing that- occurs to us is that the learned experts are willing to hazard a grave opinion on remarkably meager data. And even when considered in the light of all the facts disclosed by the evidence touching the automobile accident and its consequences, these opinions could have but little probative force. It seems to us that had all the evidence which it is claimed tends to show a second and later injury to plaintiff’s right knee been offered at the trial of the canse, it is highly improbable that the result would have been different. And in passing it should he said that the evidence of which respondent seeks to have the benefit by another trial does not directly or by necessary inference show any increase of plaintiff’s nervous condition after the automobile collision.

We are not unmindful of the rule that accords the trial court a large discretion in the matter of granting new trials on the ground of newly discovered evidence, nor of the policy that encourages the sound exercise of such discretion; notwithstanding, we are of the opinion that as to that ground a new trial was improvidently awarded in the instant case. [Stahlman v. Railways Co., 183 Mo. App. 144.]

IT. Taking up other assignments in defendant’s motion for a new trial, now urged as presenting grounds sufficient to sustain the court’s action, we Come first to the refusal of the court to strike out the answer of the witness Horwitz, that plaintiff was “suffering from a disease of the knee joint superinduced by the injury.” Defendant moved to strike this out on the ground that disease of the joint was not pleaded. Additional objections are now urged, but, as they were not made at the time the evidence was received, they were waived and cannot now be considered. A. mere question of pleading is all, therefore, that is involved in this specification. The petition alleges that plaintiff’s “right leg and knee and knee joint and the bones, muscles and ligaments thereof were greatly strained, bruised, torn, and injured and her said knee and joint thereof was made stiff and immobile and is permanently injured,” and that as a result plaintiff suffered greatly bodily pain, etc. Defendant, in the cross-examination of plaintiff’s medical witnesses, endeavored to show that the condition of plaintiff’s knee at the time of the trial and for a considerable period preceding it, viz., the swelling, tenderness and immobility, was not caused by the street car collision because these objective symptoms did not manifest themselves for a period of five or six weeks after the collision.- The testimony under consideration was pertinent, therefore, as tending to show that the condition of the knee was caused by the injury received, through the intervention of disease which it superinduced. No effort was made to show that the disease was of itself a distinct or independent injury, or that it had had or would have, any other effect than that of causing plaintiff’s knee to be “stiff, immobile and permanently injured,” as mentioned in the petition. Such being the purport and effect of the evidence, it seems entirely clear that the allegations of the petition were broad .enough to warrant its reception. This conclusion is not in conflict with the doctrine discussed and followed in the case of Hall v. Coal Co., 260 Mo; 351, 371, cited by defendant, where, in a suit for personal injuries, a recovery for impotency was denied under a petition in which no reference was made to such a condition.

III. .Respondent to sustain the motion for new trial, criticizes plaintiff’s instruction No. 2 on the ground that it assumes that plaintiff was injured, and No. 7 on the ground that it contains a judicial hint that the court would approve a verdict for $25,000. A reading of 'instruction No. 2 as a whole makes it apparent that respondent’s counsel are merely hypercritical. The contention as to this instruction is without merit and is accordingly disallowed. As to the alleged fault in No. 7, it is sufficient to say that under our practice it is not ordinarily reversible error to give an infraction mentioning the amount of damages claimed in the petition and warning the jury not to exceed it in their assessment -(Lessenden v. Railroad, 238 Mo. 247, l. c. 264); and that there is nothing in the language of this instruction or in the situation presented by the evidence to make of this an exceptional case.

TV. . Respondent’s last insistence is that the verdict is excessive. If plaintiff’s nervous system were per-manetly injured, or the function of her knee permanently impaired, it probably could not be said that $12,000 is an excessive award of damages. But in this respect the evidence falls short. There was nothing in the nature of the injury itself, so far as the evidence discloses, that warranted the jury in finding that its consequences were lasting. As to the expert evidence, only three witnesses gave testimony in respect to this phase of the case. They were Drs. Chaddoek and Prichard, commissioners appointed by the court to make physical examinations of plaintiff, and Dr. Horwitz, her physician, who was treating her at the' time of the trial. Dr. Chaddoek, a specialist in nervous and mental diseases, found no evidence whatever of any material or organic injury to plaintiff’s nervous system. Dr. Prichard discovered no symptoms of either injury or disease of the knee. The stiffness and pain on deep pressure which he found, he attributed to the previous long confinement of the joint in a plaster cast. He was of the opinion that she would recover the normal use of the limb. Dr. Horwitz, who diagnosed the condition of the knee as disease superinduced by injury, when asked whether plaintiff would ever recover the normal use of the knee, answered, “I doubt it.” If his diagnosis was correct, he was better able than the jury to form a judgment as to the duration and after effect, if any, of the disease, yet he was unwilling to hazard a fixed opinion.

While in the nature of things it would not be possible for a complete recovery of plaintiff from her injuries to instantly occur immediately following the trial, without the intervention of a miracle, still the jury, so far as the evidence was concerned, could only conjecture when such recovery would take place, if at all. And, under the evidence, the jury were not justified in taking into consideration future consequences of -plaintiff’s injuries in the assessment of her’ damages. [Wilbur v. Railway, 110 Mo. App. 689, and cases cited.] With such elements eliminated the verdict is clearly excessive.

V. Appellant asks, in the event we hold that the damages assessed by the jury are excessive, that we reverse the order of the lower court awarding the defendant a new trial, and oi’der a remittitur, so that if she elects so to do, she may have judgment for ^le remainder. This is our settled practice, in cases where the verdict cannot be otherwise impeached, in appeals from final judgments. [Cook v. Globe Printing Co., 227 Mo. 471, 542.] In this case, however, we cannot order an affirmance of the judgment on the condition of a remittitur being entered. There is no judgment before us. An order granting a new trial, by necessary implication, if not expressly, sets aside the verdict and judgment. An appeal from such an order' does not annul or vacate it; it merely suspends its operation and effect during the pendency of the appeal so far as further affirmative proceedings in the cause are concerned. And in this court the only thing before us for consideration is the propriety of the order.

Upon appeal from an order sustaining a motion for a new trial, if, in our opinion, the reasons of the trial court are insufficient, the verdict must stand, unless the party in whose favor the new trial was granted affirmatively shows that it was properly set aside on other grounds. [Candee v. Railway Co., 130 Mo. l. c. 154; Haven v. Railway Co., 155 Mo. 216.] We are not confined to a consideration of the particular ground on which the trial court based the order. If the respondent brings to our attention other grounds of the motion, which, on the record, entitled him to a new trial, we affirm the order despite the invalidity of the ground upon which the trial court acted. If neither the one specified by the trial court, nor any of those suggested by respondent is valid, we reverse the order. In this case the defendant was not entitled to a new trial on the ground of newly discovered evidence, hut was on the ground of the ex-cessiveness of the verdict, set up in the motion.

Entertaining the views herein indicated, we therefore hold that the order of the trial court granting defendant a new trial should .he affirmed. It i(s so ordered.

All concur; D. E. Blair, Jin result.