author: BURGESS, P. J.

text:
    GEORGE W. McMURTRY, Appellant, v. FAIRLEY et al.
    Division Two,
    March 6, 1906.
    1. APPEAL: Abstract: No Index: Questions Involved. Where the abstract has no index and does not otherwise strictly comply with the rules in that it omits the testimony of certain witnesses, but does set forth so much of the record as seems necessary to a full and complete understanding of the only questions presented for determination by the appellate court, the appeal will not be dismissed.
    2. MINOR: Process: Partition. Service in 1866 upon a minor, there being several defendants, by “reading the summons in his presence and hearing,” was not service of process in accordance with the statute then in force. And a judgment rendered by the court based thereon was and is void as to him.
    8. -: -: Guardian Ad Litem: Partition. A minor named as a defendant in partition if not served in accordance with the statute then in force is not brought into court, and the court is without authority to appoint a guardian ad litem for him, and the acts of such guardian and the judgment of the court as to him are void and of no affect.
    4. -: -: Life Tenant: Partition: Limitations: Thirty Years. The Statute of Limitations does, not begin to run as to the remainderman during the life of the life tenant. And where, by will, the owner of land gave it to his wife for life and after her death to her children, and partition was begun in 1866 and her minor child was joined therein as one of the defendants and service of process was obtained against him by “reading the summons in his presence and hearing” and a guardian ad litem was appointed for such minor and judgment was rendered and the land sold, and thereafter the purchaser and the wife joined in a deed and their grantees have held undisputed possession ever since, the judgment and sale as to the minor were void, and he is not bound by limitations until ten years after the death of his mother, it matters not how old-he was at the time of the partition judgment and sale, nor how long the purchasers from his mother have held possession, for the possession of the life tenant is exclusive and can never be adverse to the remainderman. Nor does the thirty-year Statute of Limitations have any application to such a case.
    Appeal from Washington Circuit Court. — lion. F. B. Bearing, Judge.
    Reversed and remanded.

      Merrifield W. Huff for appellant.
    (1) The service of summons in the partition suit gave the court no jurisdiction over appellant in this cause and the judgment as to him was void. Fischer v. Siekmann, 125 Mo. 165 ; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Higgins v. Beckwith, 102 Mo. 456; Payne v. Masek, 114 Mo. 631; Shaw v. Gregorie, 35 Mo. 342; Westmeyer v. Gallenkamp, 154 Mo. 34. (2) The thirty-year Statute of Limitation is no bar to plaintiff in this case. Shumate v. Snyder, 140' Mo. 87; Howell v. Jump, 140 Mo. 457; Fischer v. Siekmann, 125 Mo. 178; Colvin v. Hauenstien, 110 Mo. 575; Thomas v. Link, 113 Mo. 67; Neill v. Howell, 111 Mo. 273; Sherwood v. Baker, 105 Mo. 473; Hickman v. Link, 97 Mo. 582.

      Dinning, Hamel & Dinning for respondents.
    (1) The appeal ought to he dismissed because appellant has wholly failed to comply with rules twelve and thirteen of this court, in the following particulars, to-wit: Appellant has not filed in this court an abstract of the record, printed in fair type, with a complete index at the end thereof, setting forth so much of the record as is necessary to a full and complete understanding of the questions presented to this court for decision ; nor has' he served respondent with a copy of the abstract of the record within thirty days before the day on which the cause is set for hearing, nor has he served such copy to this date. Manual v. Railroad, 86 Mo. 499; Whitehead v. Railroad, 176 Mo. 475; Clements v. Turner, 162 Mo. 466; Brand v. Cannon, 118 Mo. 595; Butler County v. Graddy, 152 Mo. 441; Walser v. Wear, 128 Mo. 652; Halstead v. Stone, 147 Mo. 649; Western Storage and Warehouse Co. v. Glasner, 150’ Mo. 426; Lawson v. Mills, 150 Mo. 428; Rule 16 of this court; sec. 863, R. S. 1899; Garrett v. Coal Co., Ill Mo1. 279; Long v. Long, 96 Mo. 180 ; Murrell v. McGuigan, 148 Mo. 334; Snyder v. Free, 102 Mo. 325; Craig v. Scudder, 98 Mo. 664; Bank v. Iron Co., 97 Mo. 38; Flannery v. Railroad, 97 Mo. 192; Jayne v. Wine, 98 Mo. 404; McQueen v. Groff, 105 Mo. App. 165; Mink v. Chesney, 110 Mo-. App. 334; Supreme Court Rules 11 and 12. (2) Concede for the sake of argument that appellant is right that “the service of summons’in the partition suit gave the court no jurisdiction over appellant.” Yet we do not concede that the judgment in the partition case was void as to him. Le Burgeoise v. McNamara, 82 Mo. 189; secs. 48, 49, G. S. 1865. A guardian ad litem, appointed by the court has the authority to enter the appearance of a minor, or make any contract in reference to said minor that he could make if .he was an adult. Payne v. Masek, 114 Mo. 637. . This is in the face of the statutes quoted aforesaid. These statutes gave the court at the time of the partition sale in question the authority to appoint a guardian, and gave that guardian the authority which a minor would have if an adult, and there never has been a time when an adult could not enter his appearance, and there never has been a time when it was held that the filing of an answer was not an appearance.
   BURGESS, P. J.

The purpose of this suit is to have ascertained and determined the estate, title and interest of the plaintiff and defendants herein, respectively, in and to one hundred acres of land in Washington county, being the southwest comer of a tract of land confirmed to Joseph McMurtry in the United States Survey No. 2122, in township thirty-five, range one, east of the fifth principal meridian, and known as the John McMurtry tract, of which plaintiff alleges he is the owner in fee of an undivided ninth interest, and that the defendants are the owners of the other undivided eight-ninths, but that defendants refuse to recognize plaintiff as a joint owner of said premises.

Defendants, in their answer to plaintiff’s petition, deny that plaintiff is the owner in fee of any interest whatever in said land, and allege that they are the owners in fee of the entire tract, and admit that they refuse to recognize plaintiff as a joint tenant of said premises. The answer concludes with a prayer that the court ascertain and determine the estate, title and interest of the parties to this suit respectively in and to the real estate in question, and to adjudge by its decree that the title to said real estate is in defendants.

. The trial resulted in a judgment for defendants, from which plaintiff appeals.

Plaintiff testified in his own behalf substantially as follows:

“Q. You are the plaintiff in this cause? A. Yes, sir. Q. When did your father die? A. In 1855. Q. How old were you? A. I was 18 months old. Q. How many children did he leave? A. Eleven (one child horn after his death). Q. How many of them died before they came of age? A. I do not know. Q. He left yourself and ten other children? A. Tes, sir. Q. Any of them die unmarried? A. Yes, sir; three of them. Q. When did your mother die? A. Eight years ago the 21st day of last December. Q. You know this property sued for? A. Yes, sir; I was raised on it. Q. How long did you live on that property? A. I lived there until I was 19 years old. Q. Was your mother living there at that time ? A. Yes, sir. ’ ’

His cross-examination was as follows:

“Q. Where did you live? A. St. Louis, Mo. Q. What day were you horn? A. September 25,1853. Q. Then you are now 49 years old? A. Yes, sir; 48 and one-half. Q. What was the date of your majority? A. 1874. Q. You have -never received anything off that land or been treated as a co-tenant? A. No-, sir. Q. Who has been in actual posession? A. H. S. Barger all the time after he purchased at partition sale until my mother and he sold to Jas. F. Bennett. Q. He sold it more than twenty years ago ? A. Yes, sir. Q. Bern nett took possession after he bought it ? A. Yes, sir. Q. Your mother joined in deed to Bennett? A. Yes, sir. Q. Mr. Bennett took charge and occupied it how long? A. 12 or 15 years. Q. Where were you living all that time? A. Part of time in Iron county. Q. This is first suit you ever brought for your supposed rights? A. Yes, sir. Q. Have you been there lately? A. Last summer. Q. You knew Bennett was there during all these years? A. Yes, sir. Q. You knew he was claiming it all? A. I don’t know, I know I was claiming one-eighth of it. Q. You laid by and didn’t call for it? A. Yes, sir. Q. You have never been in possession of the premises? A. No, sir. Q. Never paid any taxes? A. To he sure I haven’t.”

The will of John McMurtry was offered in evideuce. By this will, which was duly probated and recorded in Washington county, the testator left the above real estate to his wife for her natural life and provided that at her death the same should descend to and vest in her and her children, share and share alike.

Plaintiff then offered in evidence the record of a partition suit of H. S. Barger and Lucinda Barger v. James Kirkpatrick and others. This suit was begun in 1865. The petition in this cause alleged that plaintiffs and defendants were owners in common of the property described in the present petition. That Lucinda Mc-Murtry owns a life estate in same and that plaintiffs own five-ninths of same and defendants own each one-ninth. Plaintiff was made defendant.

In this cause summons were issued. The return as. to the plaintiff was as follows: “Served the within summons on within named . . . and George W. Mc-Murtry by reading same in their presence and hearing. Done in the county of Washington and State of Missouri on the 20th day of April, 1865. James C. Libley, sheriff.” A guardian ad litem was appointed for George W. McMurtry, judgment was rendered, and the land sold for $150 to plaintiff, H. S. Barger.

It was admitted that H. S. Barger married appellant’s mother, and that Lucinda Barger and Lucinda McMurtry are one and the same person.

Defendant offered in evidence deed from H. S. Barger and wife to James F. Bennett, dated February 23,1883, recorded in book 29, page — , conveying land in dispute.

Deed from James F. Bennett to F. T. Grisham, dated December 10, 1896, recorded in book 41, page 9, conveying same land.

Deed from F. O. Griskman and wife to defendants, dated August 15, 1900, recorded in book 44, page 320, conveying the same lands.

Defendants then proved that some one of above parties had been in exclusive possession of the property since the death of plaintiff’s father.

At the end of the case the plaintiff ashed the court to declare the law applicable to this case as follows:

“The court declares as a matter of law that the plaintiff in this cause was entitled to bring his action any time within ten years after the death of his mother,, to whom the property was left by the will of plaintiff’s, father, and the court further declares that such time within which suit might be brought was not shortened* by the suit in partition by which the mother’s life estate was conveyed to H. S. Barger.”

This instruction was refused, to which action of the court plaintiff saved his exception and the court rendered its decree, vesting the title to the whole tract in the respondents, holding that at the time his suit was. brought the appellant had no right, title, interest or estate in the said real estate or any part of it and enjoined appellant from asserting any right, title, interest or claim therein and adjudged the costs against appellant.

To this decree appellant excepted and on same day filed his motion for a new trial on the ground that the court refused his instruction, that the judgment was against the evidence, that it was against the law, that the judgment should have been for the plaintiff and that the evidence showed that the plaintiff was entitled to-one-ninth of the property sued for.

This motion was overruled, and exception duly saved. The case is before us on plaintiff’s appeal.

Defendants insist that this appeal ought to be dismissed because the plaintiff has failed to comply with rules twelve and thirteen of this court, in that he has not filed an abstract, printed in fair type, with a complete index at the end thereof, setting forth so much of the record as is necessary to a full and complete understanding of the questions presented to this court for-decision. The case is brought to this court by a complete transcript, and when such is the case, Rule 12 of this court provides that “the appellant shall make out and deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing,, and shall in like time file ten copies thereof with the clerk of this court. ’ ’

Rule thirteen provides that “the abstract mentioned in Rules 11 and 12 shall be printed in fair type, and shall be paged, and have a complete index at the ■end thereof, and shall set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision. . . . 'The evidence of witnesses shall be stated in a narrative form, except when the questions and answers are necessary to a complete understanding of the evidence.” *

What plaintiff calls his abstract, and which does in fact embrace the substance of the pleadings, the evidence, instruction asked, and the finding and judgment of the court, as well also as the taking of the appeal by plaintiff, was served upon counsel for defendants on the 16th day of September, 1905, while the cause was set for hearing on the 16th day of October, 1905. The service was, therefore, thirty days before the cause was set for hearing, and was a compliance with rule twelve in that respect. But the document is not a complete abstract, and fails in that regard to comply with said rule. That plaintiff has not complied strictly with rules twelve and thirteen of this court is apparent from a glance at the record and what he calls his abstract, especially in that it has no index at the end thereof, does not set out the ■evidence of plaintiff, who testified in his own behalf, in narrative form, but by question and answer, while the testimony of W. F. Bennett, a witness for defendants, is not set out at all; but the document does set forth so much of the record as seems necessary to a full and complete understanding of practically the only question presented by this appeal; that is, as to whether the Statute of Limitations is a bar to this proceeding. The record is unusually short, and with the aid of plaintiff’s statement and the index to the records we find no difficulty in understanding the issue involved. No injury can result to defendants from the failure of plaintiff to comply strictly with said rules, and we are disinclined, under all the circumstances, to impose upon plaintiff the penalty of a dismissal of his appeal.

From the record the following facts appear:

John G. McMurtry, the father of the plaintiff, died in 1855, in Washington county, in possession of the property in dispute.

He was the father of eleven children, and one child was born to him after its father’s death. He left a will by which he conveyed the property in dispute, describing it, to his wife Lucinda McMurtry during, her natural life “for the support and education of his children. And at the death of my said wife my land above mentioned and all other property as may then remain unexpended to be equally devided with my eleven children and to their heirs and assigns forever. ’ ’ One child was posthumously born.

Lucinda McMurtry, the widow, afterwards married Henry Shufflebarger, who afterwards had his name changed to H. S. Barger.

In 1866 H. S. Barger and wife, the former having purchased the interest of a number of the heirs, began a suit in partition against the remaining heirs of John G. McMurtry, asking that his property be sold in partition. In this suit the present plaintiff, being then a minor, was made a party defendant, and he was served by the sheriff of the county by “reading the summons in his presence and hearing. ’ ’ This was on the 20th day of April, 1865. A guardian ad litem having been appointed for the plaintiff, the suit proceeded to judgment, and the property was sold and bought in by H. S. Barger for $150.

In the partition suit plaintiffs alleged that they and the defendants were the owners of the land in dispute, subject to the life estate of Lucinda McMurtry. Plaintiffs further stated that they'were entitled to five-ninths of the tract of land, some of the heirs having died without issue, and that defendants were each entitled to one-ninth, “subject to the rights of Lucinda Barger, who holds a life estate in said land. ’ ’

After this sale H. S. Barger and his wife remained in possession of the property up to the time they sold the same, after which time Barger’s grantees remained in possession until the institution of this suit and the property was at that time in the possession of the defendants in this case, who hold under Barger. Lucinda Barger died in 1895. All the remaining heirs who were minors at the time of the partition suit have conveyed their interests respectively to defendants or their grantors and the present plaintiff is the only party whose interest is or can be in' dispute.

John O. McMurtry was the absolute owner of the land in question at the time of his death, and the execution of his will is not disputed. There were eleven children named in his will, and one child was subsequently born; but before the partition suit was begun three of the children had died; so that each child was entitled to one-ninth of the estate. This is admitted by the petition in the partition suit, as is also the fact that the estate of each was a fee, subject to a life estate in Lucinda Barger, formerly Mrs. McMurtry. So that, both by the admissions in the partition suit and by the language of the will, it is shown that at the time of the partition suit in 1865 the plaintiff was entitled to one-ninth of the estate, subject to the life estate of his mother who was at that time the wife of H. S. Barger.

■While plaintiff was named as a defendant in said partition suit, he was then a minor, and was not served with process in accordance with the statute in force (G. S. 1865, p. 654), therefore not properly in court, and it is only after an infant defendant is brought into court in this way that a guardian ad litem can legally be appointed. [G. S. 1865, p. 652, par. 8; R. S. 1899, sec. 558.] The court, therefore, was without authority to appoint a guardian ad litem for plaintiff in that suit, and the acts of such guardian as to him were void and of no effect. [Payne v. Masek, 114 Mo. 637; Fischer v. Siekmann, 125 Mo. 165; Wright v. Hink, 193 Mo. 130.]

The judgment of partition being void as to the plaintiff, his interest in the land was in no way affected by reason thereof, and as the mother had only a life estate in the land, under the will, she did not hold adversely to him, and the Statute of Limitations did not begin to run against plaintiff, as remainderman, in favor of those holding under her, until after her death, December 21, 1895. Until plaintiff’s mother died he could not maintain an action for possession against those in possession holding under her, because her life estate intervened between plaintiff and his right of possession ; nor did the sale of the land under judgment in the partition suit of H. S. Barger and Lucinda Barger, his wife, against the heirs of John G. McMurtry, and the purchase of it by the said H. S. Barger and others, deriving title by purchase or otherwise, put the Statute of Limitations in motion against plaintiff, for the reason as stated that he was not entitled to the possession until after the death of his mother. Under the will of John G. McMurtry, his wife Lucinda was given the title to the land for her natural life, which, of course, entitled her to its exclusive possession during that time, and those deriving title through her acquired no greater rights than she acquired under the will. Her possession was in no way adverse to plaintiff; nor did the possession of any person or persons, holding- under her, become adverse to plaintiff during her lifetime. “No principle of law is better settled than that the possession of the tenant for life is not adverse to that of the remainderman, and that such tenant cannoff by his dealings with the estate, make his or his grantees’ possession adverse to the remainderman, so as to start the Statute of Limitations against him during the life estate.” [Fischer v. Siekmann, supra; Colvin v. Hauenstein, 110 Mo. 575; Thomas v. Black, 113 Mo. 66; Null v. Howell, 111 Mo. 273; Hickman v. Link, 97 Mo. 482.] The record discloses that plaintiff’s mother, the life tenant, died December 21,1895. This suit was begun on the 4th day of December, 1901, less than six years after plaintiff’s cause of action accrued. From what has been said it must needs follow that the thirty-year Statute of Limitations has no application to this case, and cannot be invoked as a defense to this action.

For the refusal of the court to declare the law as asked by plaintiff the judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    SMOOT v. KANSAS CITY, Appellant.
    Division Two,
    March 6, 1906.
    1. NEGLIGENCE: Amount of Damages: Limited by Petition. An instruction which permits the jury to award plaintiff for medical services an amount in excess of the damages for such services fixed by the petition is erroneous. And where the petition fixes the damages for loss of time at a definite sum the instruction is erroneous if it does not limit the amount of recovery for loss of time.
    2. -: --: Unlimited Instruction: Remittitur. An instruction, erroneous in not limiting the amount of plaintiff’s recovery for loss of time to the amount claimed in the petition, may be cured by a remittitur, in either the trial or appellate court, where the court can reasonably, estimate the excess in the verdict or judgment and it is apparent that no injury will be done defendant by entering such remittitur. But where it is impossible to ascertain precisely how much the verdict may have been increased by the erroneous instruction, the error cannot be cured by a remittitur. And in determining whether or not injury would be done by a remittitur, the court will consider the evidence, especially where it is sharply contended that the verdict is excessive, and the case is by no means a one-sided one, and the instruction is a roving one, permitting the jury to speculate as to the damages.
    3. PHYSICIAN: Witness: Observation. Observations and information acquired by a physician after the relation of physician and patient has been established are not competent; but observations made by him before that relation was established are competent, and a physician, in the employ of defendant, can testify whether or not, when he arrived on the scene of the accident, plaintiff was spitting blood, if he saw that before he made any examination of plaintiff and before he undertook, as a physician, to determine by observation his condition with a view of treating him.
    4. NEGLIGENCE: Weight of Evidence. This court will not convict the trial court of error for refusal to give an instruction withdrawing one element of injury or damages from the jury on the ground that there was no evidence to sustain it, if there was some evidence on the subject. It is for the trial court, and not the court of review, to award a new trial on the ground that the verdict was contrary to the preponderance of the creditable evidence.
    Appeal from Pettis Circuit Court. — Row. George F. Longan, Judge.
    Reversed and remanded.

      Edwin G. Meservey, W. H. H. Piatt and James W. Garner for appellant.
    (1) The court erred in giving instruction 4 upon the part of respondent, because said instruction disregards the prayer for damages in respondent’s petition, because it permits respondent to recover for loss from his means of livelihood without any limitation as to the amount when the petition places the same at $250, and permits a recovery for surgeon’s hire for $350, when the petition limits the same to $200. Maupin v. Triplett, 5 Mo. 423; Hay ton v. Hope, 3 Mo. 54; Til-ford v. Ramsey, 43 Mo. 410; Pope v. Salsman, 35 Mo. 362; Reed v. Crane, 89 Mo. App. 670; Carter v. Shot-well, 42 Mo. App. 663; Wright v. Jacobs, 61 Mo. 19; Crews v. Lackland, 67 Mo. 619; Waddingham v. Hulett, 92 Mo. 528; Lester v. Eailroad, 60 Mo. 265. (2) There can be no remittitur entered in this case because of the excess, if any, allowed on the item of loss of time which cannot be calculated from the evidence. Creve Coeur Lake & Ice Co. v. Tamm, 90 Mo. App. 202; Slattery v. St. Louis, 120 Mo. 183; Hughes on Instructions (Ed. 1905), sec. 106. (3) The court erred in refusing instruction 11 asked by the appellant which withdrew from the jury, in estimating damages, any considera-' tion of hernia, for the reason that there was not sufficient evidence upon which to base the same, and there was no evidence connecting it with the injury. Eailroad v. Eailroad, 118 Mo. 599.

      H. J. Latshaw, Jr., Chas. E. Yeater and E. M. Per-due for respondent.
    (1) The contention of appellant is that the court erred in excluding the testimony of Dr. Monahan, in regard to the doctor’s knowledge and opinion relative to respondent’s injuries and especially concerning the doctor’s knowledge of whether or not respondent was spitting blood while under the doctor’s observation and examination at the scene of the accident. The court did not err in sustaining respondent’s objections to this testimony. Sec. 4659, E. S. 1899; Mellor v. Eailroad, 105 Mo. 455; Gartside v. Ins. Co., 76 Mo. 446; James v. Kansas City, 85 Mo. App. 20; Smart v. Kansas City, 91 Mo. App. 586; Hayworth v. Eailroad, 94 Mo. App. 215; Kling v. Kansas City, 27 Mo. App. 231; Arnold v. City, 85 S. W. 106. (2) On the opening day of this term of this court, respondent filed a motion on diminution of record, asking this honorable court for a writ of certiorari, directed to the clerk of the circuit court of Pettis.county, ordering him to send to the Supreme Court the amended petition upon which this case went to trial. Owing to the fact that this motion has not yet been acted upon by this honorable court, and owing to the fact that the time is about up within which respondent is permitted, under the law, to file this brief and argument, respondent will now reply to appellant’s contention that appellant’s instruction on the measure of damages was not in harmony with the allegations on the estimates of damage in said amended petition. Taking it for granted, therefore, that the petition which appellant claims this case went to trial upon, contained the statements he alleges were in said petition, viz: That said petition placed a limitation of $200 upon the amount respondent has obligated himself for <Ioctors’ and surgeons’ care, and $250 for loss from his means of livelihood, while said instruction limited said doctors ’ bill to $350 and placed no limit on the amount for time lost. Respondent’s reply is: If all this had been true, respondent would have had the right, upon motion at the close of the trial, to have amended his petition to correspond with the evidence and said instruction, and a refusal of the trial court to allow respondent to so amend under the conditions would have been held by this court to be an abuse of discretion. Moreover, with the permission of this court, respondent has the right, under the practice, to amend his petition in the Supreme Court so as to make said petition correspond with the evidence and said instruction. Wherefore, respondent hereby asks permission to make said amendment, providing, of course, this court finds that the petition set forth by appellant is the petition upon which trial was had, and providing, also, that this honorable court finds said discrepancy, if any, to be material. If, for any reason, this court does not see fit to grant respondent’s said request to amend, then respondent’s reply to this contention of appellant is: The highest computation that the jury could have put upon the time lost, under the evidence, would not equal the amount claimed in respondent’s petition. Respondent is, therefore, unable to see how appellant could have been injured, even if all that appellant claims be true. In regard to the item on doctors’ bills, suffice it to say, that if the petition placed the damages on that item at $200, and the instruction at $350, there is no way of figuring by which appellant could have been damaged by said mistake for over the sum of $150. This amount, or any other amount that this court may in its wisdom, and its sense of equity, decide that respondent should remit, will be gladly and speedily complied with. Magrane v. Railroad, 183 Mo. 119; McLean v. Kansas City, 81 Mo. App. 72. Furthermore, it is very doubtful if appellant is in a position to now raise this objection. Freirsmutb v. McKee, 86 Mo. App. 64. Moreover, the judgment in the case at bar is so plainly for the right party, that even though the court may believe some error crept into the instruction above referred to, we believe this court will, in accordance with its past rulings, decide that the judgment should be affirmed, being so clearly and' palpably for the right party. Magrane v. Railroad, 183 Mo. 119; Cass County v. Bank, 157 Mo. 133; Jones v. Brownlee, 161 Mo. 258; King v. King, 155 Mo. 406.
   FOX, J.

This cause is here upon appeal from a judgment of the Pettis Circuit Court against defendant in the sum of five thousand dollars. The amended petition, upon which this proceeding rests,- was filed at the May term, 1902, of the Pettis; Circuit Court, and is as follows:

“For cause of action against defendant, plaintiff states that on July 25th, 1900, and at all times herein mentioned, defendant was and still is a municipal corporation of the first class, of the State of Missouri, organized and existing under a special charter as by law provided, with all the powers, privileges, and liabilities incident thereto.

‘ ‘ That at all said times, and for a number of years prior thereto, Brook street and especially that portion thereof hereinafter referred to, was a public street and thoroughfare of and within said defendant city, and at all said times there was a public sidewalk on the west side of said Brook street, and especially that portion thereof in front of number 2235 Brook street, and said sidewalk was, with the knowledge, consent, and invitation of defendant, used as a general public sidewalk for the purposes of travel, at all said times.

“Plaintiff further states that on said 25th day of July, 1900, and for a long time prior thereto, defendant carelessly and negligently maintained said sidewalk on said Brook street, and especially that portion thereof in front of said number 2235 Brook street, namely, about 273 feet south of the southwest corner of said Brook street and Twenty-second street, and allowed the same to be maintained and to remain in a dangerous and defective condition in this, to-wit: The stringers of said sidewalk at said point were rotten and decayed and were broken, dilapidated and insecure. The boards of said sidewalk at said point, and for several feet on both sides thereof, were loose, decayed and broken, and some of them entirely missing, and defendant carelessly and negligently failed to maintain barriers, light, or other warnings at or near said point of said sidewalk to warn pedestrians of said defect and dangers at said time, namely, said July 25th, 1900, and for a long time prior thereto.

“Plaintiff says that defendant knew of said defects, and all of said defects on said July 25th, 1900', and for a long time prior thereto, or by the exercise of ordinary care and caution on its part, could have known thereof at all said times, and in reasonable time to have remedied said defects prior to said July 25th, 1900', by the exercise of ordinary care and caution, but defendant carelessly and negligently failed to do so.

“Plaintiff states that on or about said July 25th, 1900, at about the hour of 9 p. m. thereof, he was lawfully walking in a southerly direction over and upon' said sidewalk on said west side of Brook street, and as lie reached a point of said sidewalk about said 273 feet south of the southwest corner of said Brook street and said Twenty-second street, the same being directly in front of said number 2235 Brook street, he stepped his left foot in a hole in said sidewalk, where two of said boards and parts of another one of said boards were out and missing, owing to the defects above set forth, and he was thereby thrown violently into said hole and upon said sidewalk and against said sidewalk upon the ground, greatly injuring him in this, to-wit: Plaintiff’s left leg and knee and left arm and elbow were wrenched and bruised; three ribs of the left side of plaintiff’s body were fractured; plaintiff’s back and spine and spinal cord were wrenched and his entire nervous system shocked; and plaintiff’s heart and lungs were injured, but plaintiff does not know, and for that reason cannot state the nature of said injuries to his heart and lungs; and plaintiff was ruptured in his left side, producing hernia.

“Plaintiff says that all of said injuries are permanent, and that on account of said injuries he has been compelled to obligate himself for large sums of money for doctor’s and surgeon’s hire, namely, $200', and will so long as he lives be compelled to obligate himself for large sums of money for said items, on account of said injuries; and that, on account of said injuries, plaintiff has been compelled to lose time from his means of livelihood, to his damage in the sum of $250, and that he will, so long as he lives, be.compelled to lose time from his means of livelihood, on account of said injuries; and plaintiff further says that, on account of said injuries he has suffered, and will so long as he lives, suffer great physical pain and mental anguish, all to his damage in the sum of twenty-five thousand dollars, for which amount, together with costs, he asks judgment against the defendant.”

To this petition defendant on the 16th of June, 1902, filed the following answer:

“Comes now the defendant, Kansas City, and for its answer to the petition of plaintiff admits that it is a municipal corporation duly organized and existing according to law, but denies each and every other allegation in said petition contained.

“For a further answer to said petition, defendant states that at the time and place where plaintiff claims to have been injured he so carelessly and negligently conducted and demeaned himself that the injuries, if any, received by said plaintiff as alleged in said petition were caused and directly contributed to by his own fault and negligence.

“Wherefore, defendant prays that it may go hence without day and have judgment for its proper costs in this behalf sustained. ’ ’

1 It is not essential to the proper determination of the legal propositions involved in this proceeding to burden this opinion with a detailed statement of the testimony developed at the trial. It is sufficient to say that plaintiff introduced evidence tending to show the defective sidewalk and that by reason of such defects he was injured. Also testimony tending to show the nature and character of .such injuries. On the part of the defendant the testimony tended to contradict that of the plaintiff, and that the plaintiff did not receive the injuries complained of and that whatever injuries were received they were not of a permanent nature.

The testimony to which proper objections and exceptions were presented, as well as the instructions complained of, will he given due consideration in the course of the opinion.

Upon the submission of this cause to' the jury upon the evidence and instructions of the court, they returned a verdict finding the issues for the plaintiff and assessing his damages at the sum of $5000. Motions for new trial and in arrest of judgment were timely filed and by the court overruled, and judgment entered in accordance with the verdict. From this judgment the defendant prosecuted his appeal to this court and the record is now before us for review.

OPINION.

Upon this record the complaints of appellant may thus be briefly stated: .

1. That the trial court erred in giving instruction numbered 4.

2. The court erred in admitting evidence of subsequent repairs upon the alleged defective sidewalk.

3. The court erred in refusing instruction numbered 11, which withdrew from the consideration of the jury the question as to whether or not plaintiff was suffering from hernia as a result of the injuries received by him, at the time of the accident.

We will treat these assignments of errors in the order as herein indicated. Instruction numbered 4 complained of is as follows:

“The court instructs the jury that if you find for plaintiff, then in estimating the amount of damages to be awarded him, you may take into consideration such sums of money, if any, that you may find and believe from the evidence plaintiff has obligated himself for on account of doctor’s and surgeon’s hire in treating the injuries, if any, in evidence, and allow him such an amount, not to exceed $350, for said items as would be reasonable compensation for said services, if any; and if you further find and believe from the evidence that plaintiff will in the future, on account of said injuries, if any, be compelled to pay out or obligate himself for doctor’s or surgeon’s care, you may also take that fact into consideration, and allow him therefor such an amount as, under the evidence, would be reasonable compensation for said futúre services, if any; and if you further find and believe from the evidence that plaintiff has, on account of said injuries, if any, been compelled to lose time from his means of livelihood, you may also take that fact' into consideration, and allow him therefor such an amount as, under the evidence, would reasonably compensate him for said loss of time, if any; and if you find and believe from the evidence that plaintiff will in the future be compelled, on.account of said injuries, if any, to lose time from his means of livelihood, you may also take that fact into consideration, and allow him such a sum therefor as will, under the evidence, reasonably compensate him for said future loss of time, if any.

“And if you further find and believe from the evidence that plaintiff has, on account of said injuries, if any, suffered physical pain or mental anguish, you may take that fact into consideration, and allow him such an amount therefor as, under the evidence, will reasonably compensate him for said physical pain, if any, or mental anguish, if any; and if you further find and believe from the evidence that plaintiff will in the future suffer either physical pain or mental anguish, on account of said injuries, if any, you may also take that fact into consideration and allow him therefor such an amount' as you may believe, under the evidence, will reasonably compensate him for said future physical pain, if any, or mental anguish, if any, not to exceed in all the sum of twenty-five thousand dollars.”

This instruction is manifestly erroneous in this, that it authorizes a recovery for doctor’s and surgeon’s hire in any sum not exceeding three hundred and fifty dollars; when in the petition upon which this cause was tried, it was alleged that the damages for those items were only the sum of two hundred dollars. It is also erroneous in not limiting the amount of recovery for loss of time from his means of livelihood to the amount claimed in the petition. It will be noted that the petition only claims the sum of two hundred and fifty dollars for loss of time from his means of livelihood.

The verdict in this case was for the siim of five thousand dollars. There was no remittitur in the trial court of any part of such recovery, nor was there any offer of that hind. It is suggested, however, that the errors of this instruction can he cured in this court by an entry of remittitur, and the question with which we are confronted upon this instruction is, whether or not upon the disclosures in the record of this cause this court should adopt that course. There is no dispute as to what the law is upon this proposition. It is well settled and there is no conflict in the cases by the appellate courts of this State as to the proper rule. The fundamental rule to be deduced from all the authorities upon the question of entering a remittitur, either in the trial court or in the appellate court, is that where the court can reasonably estimate the excess in the verdict or judgment and that it is apparent that no injury can be done the defendant by entering such remittitur then a remittitur will be permitted. Ice Co. v. Tamm, 90 Mo. App. 189, is a well-considered case upon this proposition, and all of the authorities-are fully and exhaustively reviewed. It was ruled in that case that it was no longer an open question as to the power of the courts to permit a remittitur to be entered in cages where verdicts were excessive, and the learned judge very appropriately announced that “undoubtedly the courts have and constantly exercise this right in cases where the amount of the excess is exactly calculable from the evidence, ’ ’ and it is made clear from that case that, so far as the power of the court to permit the entering of a remittitur is concerned, there is no dispute, but the difference of opinion exists as to when this duty should be exercised, and the learned judge, upon that question, said: “But a wide difference of opinion exists as to their- duty when unjust damages have been awarded in instances where there is no positive criterion for determining what the damages ought to be; that is, in actions for personal injuries, other cases sounding in tort and, we suppose, those in contract for unliquidated and uncertain damages. [Loyd v. Railroad, 53 Mo. 509; Waldhier v. Railroad, 87 Mo. 37; Furnish v. Railroad, 102 Mo. 438; Nicholds v. Plate Glass Co., 126 Mo. 55; Burdict v. Railroad, 123 Mo. 221 (in which the authorities on the subject are reviewed); Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 141 Mo. 97; Chitty v. Railroad, 148 Mo. 64.] All those decisions concede the trial'court’s power to permit such an amendment of the verdict and thereupon refuse a new hearing, because the trial judge is largely concerned with the facts. He must review, the finding on them and set it aside if unsupported, in his opinion, by the weight of evidence. But there are exceptional cases in which an 'excessive verdict cannot be thus cured even at nisi prius. If the jury were erroneously charged concerning the measure of damages and, in obedience to the court’s instruction, included in their assessment of damages improper elements, and it is impossible to ascertain precisely how much the verdict was increased thereby, a remittitur is insufficient to redress the error, which can only be done by granting a new trial.”

The case of Slattery v. St. Louis, 120 Mo. 183, was an action to recover damages for injury to property. In that case the following instruction was given: “If the jury believe that the building of the bridge in Twenty-first street in front of plaintiff’s premises had occasioned a loss of rent to plaintiff between September, 1890, and October 12, 1891, the date of beginning of this action, the jury will include in their verdict, if they find for plaintiff, the amount of such loss of rent as is shown by the evidence. ’ ’ This instruction was in no doubtful or uncertain terms condemned by this court, and it was expressly ruled that the error of it was not cured by entering a remittitu,r. Burgess, J., in treating of that instruction, thus announced the rule: “The plaintiff was not entitled to recover damages to her property and at the same time damages for the loss of rent. It is clear that, if the entire property ha.d been taken or rendered useless and of no value, she could not have recovered, in an action for damages to the property, also what it would have rented for up to the time of bringing the suit. ‘ In an action for a negligent injury to real property, the rule of damages generally adopted is to allow to the plaintiff the difference between the market value of the land immediately before the injury occurred, and the like value immediately after the injury is complete. ’ [2 Shearman & Redfield on Negligence, sec. 750.] To the same effect is Pinney v. Berry, 61 Mo. 359. The measure of damages was the difference between the value of the property immediately before the injury and immediately afterwards, as its market value was affected by reason of the erection of the bridge. [Spencer v. Railroad, ante, p. 154; Kansas City v. Morton, 117 Mo. 446; Hickman v. City of Kansas, ante, p. 110.] The error in this instruction was not cured by the remittitur of the sum of $258.72, as it is impossible to determine from the evidence what amount was allowed by the. jury for damages occasioned by the loss or decrease in the rental value of the property. ’ ’

Applying the rules as thus indicated by the cases heretofore cited, should this court undertake to cure the error of instruction numbered 4 by ordering that a remittitur be entered? Upon a careful consideration of the entire record we have reached the conclusion that it should not. The record in this cause presents an action for personal injuries, and it is clear that there is no positive criterion for determining what the damages ought to be, nor can this court determine what elements of damages were considered by the jury in arriving at their verdict. They were directed by instruction 4, without any limit being fixed, to assess the damages for the loss of the time by the plaintiff from his means of livelihood, and it would be simply pure guess-work by this court, as was said in Slattery v. St. Louis, supra, as to what amount was allowed by the jury for damages occasioned by the loss of such time.

It is manifest from this record that the main controversy in this cause is as to the nature and character of plaintiff’s injuries and the amount he is entitled to recover. The question of the verdict returned in this cause being excessive is sharply presented by the disclosures of the record.

We have read in detail all of ‘the evidence developed at the trial of this cause and it is apparent that, upon the question as to the nature and character of the injuries received by plaintiff, this is by no means a one-sided case, and while this court will not undertake to retry the case upon purely a question of fact, nor determine upon which side the evidence preponderates, yet where there is an erroneous instruction given directing the jury as to their authority to assess damages, this court will consider all the evidence and say whether or not the ends of justice would be best subserved by having the case resubmitted to a jury upon instructions which are free from any error. The original petition in this case was filed July 25th, 1900; it did not allege or in any manner mention any such injury as hernia; nearly two years after that time, on May 8th, 1902, the petition was amended by interlineation, still no intimation or allegation that hernia was the result of any of the injuries complained of, and on May 28th, 1902, be filed the amended petition upon which this case was tried in which, for the first time, it was alleged that he was suffering from hernia as a result of the injuries received. During the progress of the trial at Sedalia the court appointed Dr. Overstreet and Dr. Evans of that city to make an examination of the plaintiff in respect to the injuries complained of in the petition. ’'They testify that there was no hernia and that the plaintiff was not suffering from any such trouble, and also testified that they found no enlargement or displacement of the heart and no pleura or lung trouble, and that so far as the fractured ribs were concerned they were so completely healed that they were unable to determine whether or not they had ever been fractured. In view of these disclosures of the record it is highly important that this cause be submitted to a jury upon instructions which in no way give them a roving commission to sneculate as to the amount of damages sustained by the plaintiff.

This brings us to the consideration of the complaint by appellant of the exclusion of testimony by Dr. Monahan. ' Dr. Monahan was introduced by the defendant. He was assistant police surgeon of Kansas City. He stated that he was not on the city pay-roll, but said: “I handled the rich and poor alike, that is, those that could pay me paid me, and those that could not pay me I gave them the attention just the same.” He was working under the city police surgeon and rendered services in cases of accident to persons regardless of whether or not he was to receive any pay from the person. Dr. Monahan went to the place of this accident and he saw the plaintiff sitting- on the edge of the sidewalk. The error complained of is specially directed to the exclusion of the answer to this question. “Q. I will ask you, doctor, if you saw the plaintiff spit any blood while on the sidewalk or in the street before getting into the ambulance on Brook street?”

The action of the court in excluding the answer to the question as above indicated, was doubtless predicated upon section 4659, Revised Statutes 1899, which precludes any physician or surgeon from testifying concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon. The provisions of this section have frequently been invoked in the trial of causes in this State. The meaning, object and purpose of this statute are nowhere better stated than in Gartside v. Ins. Co., 76 Mo. l. c. 451. It was there ruled that

it was intended by the provisions of this statute to “cast ‘the veil of privilege,’ of secrecy over information acquired by a physician while professionally engaged in the sick chamber, and necessary to enable him to prescribe. Information acquired by a physician from inspection, examination or observation of the person of the patient, after he has submitted himself to such examination, may as appropriately be said to be acquired from the patient as if the same information had been orally communicated by the patient.” It was further said by the learned judge writing the opinion in that case, that it was ‘ ‘ doubtless true that a physician learns more of the condition of a patient from his own diagnosis of the case than from what is communicated by the words of the patient; and to say that while the mouth of a physician is sealed as to the information acquired orally from his patient, it is opened wide as to information asquired from a source upon which he must rely, viz., his own diagnosis of the case, would be to restrict the operation of the statute to narrower limits than was ever intended by the Legislature and virtually to overthrow it.” [Smart v. Kansas City, 91 Mo. App. 586; Streeter v. City of Breekenridge, 23 Mo. App. 244.]

It will be observed under the rule above indicated that in order to render observations and opinions acquired by a physician privileged the relation of physician and patient must first be established. As was ruled in the Gartside ease, after a patient has submitted himself to an examination by the physician, then information acquired by observation •would be excluded on the same ground that a direct communication by the patient to the physician would be. So far as the question propounded in this case goes it does not appear whether or not the information desired from Dr. Monahan as to the spitting of blood was from observation prior to any sort of examination of the plaintiff. It is clear that when Dr. Monahan first appeared upon the scene of the accident if he observed the plaintiff and that he was not at that time spitting blood, there is no reason why such testimony should be excluded, for that is prior to any submission by the patient to the examination of the physician, and so far as this record is concerned, as to that particular question, it nowhere appears that this was information from an observation by Dr. Monahan after he had commenced an examination of the patient. The question was simply as to whether or not he saw the plaintiff spitting any blood while on the sidewalk or in the street before getting into the ambulance on Brook street. The learned trial judge, when this witness was before him, very intelligently and clearly expressed his doubts upon the proposition. He said: “As to this evidence of the witness, Dr. Monahan, if the witness was only asked to testify and the purpose was only for him to testify to what he saw, what he heard or learned from the patient on the sidewalk, or on the street, at the time he was picked up by the ambulance, it was done in a public place and in the presence of others, there would be a very serious question in my mind whether they would be entitled to protection and be entitled to be considered as confidential communications. However, I do not think that is the important testimony, and cannot be very important, because all of the evidence that has gone before shows that there was no special examination made, except the undoing of the shirt and feeling of the heart or place complained of, and then the patient was put in the ambulance and taken to the hospital, as I remember, either there or the station, where an examination was had and the patient treated. I am satisfied that that evidence would be absolutely incompetent. Anything that this physician learned at the hospital when he did make the examination, upon which he made his prescription and made his diagnosis, would be incompetent, would come within the rule laid down by the statute, that is, it is a privileged communication and information that the physician is not allowed to disclose if the other party objects. As I say, the first part of it presents a very serious question in my mind. However, as that is not very important and is not the main point in this witness’s testimony, I am going to exclude the entire testimony and hold that the witness is not competent to testify to anything that he learned from this witness either by talking to him and asking him questions or by making an examination of the body.”

It is sufficient to say upon this proposition that upon .the retrial of the cause if it appears that the relation of physician and patient had been established and that the plaintiff had submitted himself for examination by Dr. Monahan, then any information acquired by observation after that time would be incompetent. But on the other hand, if prior to the establishment of this relationship the doctor observed the patient and acquired information from such observation, we know of no rule of evidence that would make such information privileged.

Appellant complains that the court committed error in the admission of testimony in respect to repairs upon the sidewalk subsequent to the date of the accident. We have examined the disclosures of the record upon that question and it is not shown that any such testimony was admitted, nor does it appear that, to the question which appellant construes as having reference to subsequent repairs, there was any timely objections and exceptions. It is conceded that any testimony of any subsequent repairs upon this alleged defective sidewalk would be inadmissible; therefore, upon a retrial of this cause any testimony offered along that line should be promptly excluded.

This brings us to the final contention of appellant, that th© court erred in refusing instruction numbered 11. This instruction was as follows:

“The court instructs the jury that there is no evidence in this case to sustain the allegation that plaintiff received a hernia by falling upon the sidewalk at the time and place alleged in his petition and in assessing his damages, if any, you cannot consider such hernia, if any, which plaintiff may now have, and the same is withdrawn from your consideration. ’ ’

It is sufficient to say of this assignment of error in the refusal of this instruction that this court would not be warranted in reversing the judgment on that ground alone. The record discloses at least some evidence that the plaintiff was suffering from hernia as a result of the injuries received by the accident complained of in this proceeding, and even though it be conceded that the preponderance of the evidence upon this subject is upon the side of the defendant, yet under the firmly-established rule of this court, we will not undertake to weigh the testimony or determine upon which side the evidence preponderates. The distinction between the trial court and the court of review in respect to awarding new trials upon the ground that the verdict is ’against the weight of evidence, must be borne in mind. The trial court has the witnesses before it; can observe the manner and conduct of the witnesses while upon the stand, and upon a motion for new trial it is especially the province of the trial court to review the testimony, and it has the unquestioned right to set aside the verdict and grant a new trial if, in its judgment, the verdict is against the weight of the credible evidence in the cause. In this court we simply have the disclosures of the record with at least sufficient evidence to have authorized the submission of the question to the jury, with no opportunity of judging of the credibility of the witnesses by their appearance, conduct or manner upon th© witness stand, and the cause comes to this court, not only with the approval of the jury, but with the approval of the judge presiding at the trial; hence, follows that well-established rule by this court, that where there is any substantial evidence tending to prove any essential fact embraced in the pleadings, this court will not undertake to disturb tbe action of the court in submitting such issuable fact to the jury upon proper instructions. The awarding of a new trial upon the ground that the verdict is against the weight of evidence is especially the province of the trial court; for as was said in Ice Co. v. Tamm, supra, the trial judge deals with and is largely concerned with the facts of every case that is tried before him. It is by no means, as has been repeatedly announced by this court, the province of a court of review to undertake to weigh the testimony or to adjust the conflicting statements of the witnesses testifying in the cause; hence the ruling upon this contention must be adverse to appellant.

We have given expression to our views upon the record in this cause. There is nothing remaining to be done except to announce the conclusion, which is, that for the reasons indicated herein, the judgment should be reversed and the cause remanded for a new trial, and it is so* ordered.

All concur.


author: GANTT, J.

text:
    ELLIOTT, Appellant, v. JACKSON COUNTY.
    Division Two,
    March 6, 1906.
    PROSECUTING ATTORNEY: Chief Deputy in Jackson County: Salary: Official Acts. The statute provided that in counties having between 100,000 and 300,000 inhabitants the prosecuting attorney “shall be entitled to such a number of deputies and assistants, to be appointed by such official, as the county court may deem necessary, and such deputies and assistants shall be divided into classes as follows: Class A, chief deputy; Class B, assistants or deputies. . . . Class A shall be paid $1,500 per year, class B $1,200 per year. . . . The appointment and number of deputies and assistants, not expressly fixed by this article, shall be subject to the approval of the judge of the criminal court.” The prosecuting attorney appointed two chief deputies, with the approval of the criminal judge, and when one of them resigned he appointed plaintiff (who had been an assistant in class B, as shown by the record) a chief deputy in Class A, but no record was made by the court in term time approving this appointment. The county court refused to pay plaintiff $1,500, but did pay him $100 each month, the salary prescribed for deputies in Class B. Held, that the statute plainly provides for only one chief deputy, and as another held that position when plaintiff was appointed thereto, and continued to so hold it, the appointment of plaintiff was without authority of law, and he cannot recover the extra $25 for the months he served as chief deputy. Held, also, that the approval of the judge of the criminal court of the appointment of two chief deputies does not affect the validity of the appointment, because the statute itself fixes the number at one. Held, also, that plaintiff’s official acts as assistant prosecuting attorney are not affected by this suit, which is simply one for salary.
    Transferred from Kansas City Court of Appeals.
    Aeeirmed.

      Geo. N. Elliott pro se.

    (1) It is the settled law in this State that, in an action for fees, or for salary, the title to- public office cannot be determined. Quo warranto is the exclusive-proceeding in this State by which title to public office can be tried and determined, except in contested elections which are determined by special statutory proceeding. Sec. 4457, R. S. 1899; St. Louis County Court v. Sparks, 10 Mo. 121; State ex re-1, v. Auditor, 34 Mo. 383, 36 Mo. 70; State ex rel. v. Auditor, 35 Mo. 146; Beck v. Jackson, 43 Mo. 119; Hunter v. Chandler, 45 Mo. 457; State ex rel. v. Auditor, 48 Mo. 217; State ex rel. v. Auditor, 52 Mo. 512; State ex rel. v. Vail, 53 Mo. 108; State ex rel. v. Seay, 64 Mo. 89; State ex rel. v. John, 81 Mo. 17; State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. May, 106 Mo. 508; State ex rel. v. Meek, 129 Mo. 431; State ex rel. v. Hostetter, 137 Mo. 639; State ex rel. v. Aloe, 152 Mo. 479; State ex rel. v. With-row, 154 Mo. 397; Arnold v. Henry, 155 Mo. 54; State ex inf. v. Lund, 167 Mo. 228; State ex inf. v. Evans, 166 Mo. 347; State ex inf. v. Talty, 166 Mo. 529; Dickinson v. City of Butler, 27 Mo. App. 14; State ex rel. v. Wear, 37 Mo. App. 334; State ex rel. v. Police Com’rs, 89 Mo. App. 223. (2) (a) In this State the law is also settled that a de facto public officer in possession of the office is entitled to the emoluments of the office until his authority is revoked by proper proceedings. In the case at bar the trial court had the right to determine whether or not plaintiff, for the time in question, was a de facto assistant prosecuting attorney class “A” in possession of the office with color of title and performed its duties. On affirmative finding of these facts plaintiff was entitled to judgment. State ex rel. v. Draper, 48 Mo. 213; Hunter v. Chandler, 45 Mo. 457; State ex rel. v. Clark, 52 Mo. 598; State ex rel. v. John, 81 Mo. 13; Bates v. St. Louis, 153 Mo. 29; State ex rel. v. Walbridge, 153 Mo. 292; Dickerson v. City of Butler, 27 Mo. App. 14. (b) That there cannot be an officer de facto where there is no such office de 'jure has been held in a few of the earlier decisions in this State, as, for instance, in: Ex parte Snyder, 64 Mo. 58; State v. 0 ’Brian, 68 Mo. 153; Ayers v. Latimer, 57 Mo. App. 83; Jester v. Spurgeon, 27 Mo. App. 477. But these decisions are not in accord with the true rule in this State at the present time, and they were rendered on a state of facts in each case which did not involve questions of public policy, making it necessary to uphold the acts of a de facto public officer for the public good. The following decisions hold to the better rule that often, through motives of public policy, to preserve the organization of society, it is necessary to recognize a de facto officer where even the office itself, de jure, does not exist: State ex rel. v. Sutton, 3 Mo. App. 388; Adams v. Lindell, 5 Mo. App. 197; Fleming v. Mulhall, 9 Mo. App. 73; Conway v. St. Louis, 9 Mo. App. 490; Shaeffer v. Bernero, 11 Mo. App. 564; City v. Stoddard, 16 Mo. App. 177; Simpson v. MeGonegal, 52 Mo. App. 540; Walker v. Ins. Co., 62 Mo. App. 223; State ex rel. v. Land Co., 84 Mo. App. 40; Adams v. Lindell, 72 Mo. 198; Perkins v. Fielding, 119 Mo. 159.

      John A. Sea for respondent.
    (1) The law contemplates bnt one chief deputy in the office of the prosecuting attorney of Jackson county. Sec. 3286, R. S. 1899; Laws 1893, p. 168.- (2) The judge of the criminal court has no authority to fix the number of deputies or assistants for the prosecuting attorney, except in Class B. Secs. 3286, 3287, R. S. 1899; Laws 1893, p. 168. (3) In construing a statute, its words must be taken in their plain, ordinary meaning, and to construe the word “chief” so that two (or more) can each be highest and change the word “deputy” to “deputies” would be to give a meaning to these words found nowhere in the English language, and do violence to a fundamental rule of construction of statutes. Randall v. Garnette, 78 Mo. App. 609; State ex rel. v. Auditor, 36 Mo. 66; sec. 4160, R. S. 1899. (4) In the construction in which they are used ‘ ‘ deputies or assistants” mean one and the same thing, i. e., deputies ; as it grants special privileges, it should be strictly construed. Bovard v. Railroad, 83 Mo. App. 498. (5) No person can be a de facto officer unless there is an office to fill. Appellant could not be a de facto chief deputy, as that office was already filled by its proper officer, duly qualified and acting as such de jure. State ex rel. v. Dorton, 145 Mo. 304.
   GANTT, J.

This is an action brought by. the plaintiff, as attorney at law, for balance of salary, which he claims is due him as assistant prosecuting attorney of Jackson county, for the months of February, March, April, May and Juné, 1896,-amounting in the aggregate to one hundred and twenty-five dollars, with interest on the same from July first, 1896. In his petition he alleges that Jackson county in the year 1896 contained a population of more than one hundred thousand and less than three hundred thousand inhabitants; that on about the first day of January, 1896, he was appointed assistant prosecuting attorney, in Class A of said Jackson county, by W. T. Jamison, the prosecuting attorney of Jackson county, and that said appointment was approved by the judge of the criminal court of Jackson county, and thereupon plaintiff was duly commissioned and qualified and entered upon the performance of and performed the duties of said assistant attorney, Class A, from the first day of January, 1896, up to and including the first day of December, 1896; that the salary of said office established by law for said time was $1,500 per year, payable by the defendant Jackson county, to the plaintiff in monthly installments of $125; that during said time the said W. T. Jamison, as prosecuting attorney, made up and presented to the county court of Jackson county, for allowance and payment, a monthly pay roll, including $125 for plaintiff, for every month of said year of 1896; that the county court of the defendant, Jackson county, refused to allow and pay plaintiff for the months of February, March, April,May and June, the full installment of $125 a month, but allowed and paid plaintiff the sum of $100 per month for said five months, which was accepted by plaintiff on account; that the sum of $25 per month for the said five months amounting-to $125 is still due plaintiff from the defendant, on said salary account, with interest from July 1,1896.

The answer of the county was a general denial of all the allegations in the petition, except that the defendant county contained a population of more than one hundred thousand and less than three hundred thousand inhabitants, and then set up the following defense: “The defendant further answering states that in the year 1896, W. T. Jamison was the duly qualified and acting prosecuting attorney of Jackson county, and as such he appointed George A. Neal as assistant prosecuting attorney in Class A, which appointment was approved by the judge of the criminal court of Jackson county, Missouri; that said George A. Neal occupied said position from the month of February, 1895, until on or about the first day of July, 1896, and that during the months mentioned in the petition, to-wit, February, March, April, May and June, the county court of Jackson county recognized said George A. Neal as the only assistant prosecuting attorney in said county in Class A, and as such paid him his salary as said assistant in Class A, for and during said months, and said Neal was the only assistant prosecuting attorney of said county in said Class A, during said months. The defendant, for further answer and defense, states that in the month of August, 1900, plaintiff presented his claim here sued on, to the county court of said Jackson county, and on the 29th day of August, 1900, said court took up said claim for hearing and after considering the same, rendered the following judgment thereon, to-wit: ‘In the matter of the claim of George N. Elliott. Now this matter coming on to be heard and the court having considered the same,, finds in favor of the county, for the following reasons: First, the county does not owe the debt. Second, the claim has heretofore been adjudicated in this court, and the claim refused and denied. ’ Defendant says that by said proceedings in the county court and by judgment aforesaid on the claim here sued on, the said claim and cause of action of plaintiff has been finally adjudicated, and defendant pleads the said judgment and adjudication in bar of this action as an estoppel of the prosecution of this cause. And defendant further answering says that during the months of February, March, April, May and June, the county court recognized as the chief deputy and assistant in Class A, to the prosecuting attorney, said George A. Neal, paid him the salary of such assistant, to-wit, $125 per month, for each of said months. The county court recognized'as an assistant in Class B, to said prosecuting attorney, the plaintiff herein during all of said months and paid him the salary of $100 per month, which plaintiff accepted for each of said months, and plaintiff became and is estopped to deny that he was in said Class B of assistants to said prosecuting attorney during said months. Plaintiff has been paid all to which he was entitled and defendant owes him nothing. ’ ’

The jury was waived and the cause was tried by the circuit court of Jackson county, at the January term, 1901, and judgment rendered in favor of the defendant. A motion for a new trial was filed, heard and overruled and the plaintiff appealed to the Kansas City Court of Appeals, and that court, at the March term, 1903, transferred the cause to this court because the county of Jackson is a party to the suit.

No declarations of law were asked or refused by the circuit court, and no special finding of facts was made by the said court. It seems to be mutually conceded by counsel, however, that the judgment of the circuit court was based on the ground that section 3286, Revised Statutes 1899 (Laws 1893, p. 168) contemplated and provides for but one chief deputy in the office of the prosecuting attorney of Jackson county, and that the judge of the criminal court had no authority to fix the number of deputies or assistants for the prosecuting attorney, except in Class B, and that, as the record shows that at the time for which plaintiff seeks pay for his services George A. Neal was holding the position of chief deputy, Class A, under Prosecuting Attorney Jamison, the duly qualified acting prosecuting attorney of Jackson county, it was manifest that plaintiff was not entitled to the salary for said months of the chief deputy in Class A. The statute upon which plaintiff bases his claim is the act of 1893, now article 2 of chapter 27, Revised Statutes 1899, which fixes the fees for certain officers in counties having a population of one hundred thousand or less than three hundred thousand. Section 3286 provides: “Each of the above-named officers [among others, prosecuting attorney] in any such county shall be entitled to such a number of deputies and assistants to be appointed by such official as the county court shall deem necessary for the prompt and proper discharge of the duties of their various offices, and such deputies and assistants shall be divided into classes as follows, and be paid in the same manner as the officers: Class A, chief deputy; Class B, assistants or deputies; and Class C, office clerks or copyists. Class A shall be paid $1500 per year; Class B, $1200 per 'year; Class C, $900 per year. ’ ’ Section 3287 provides: ‘ ‘ The appointment and number of deputies and assistants of the clerk of the criminal court, the marshal and prosecuting attorney, not expressly fixed by this article, shall be subject to the approval of the judges of the criminal court of the county, and such deputies and assistants shall not exceed the number determined by said judges to be necessary aids for the performance of the duties of said offices respectively.” It is admitted by the plaintiff that the prosecuting attorney, Jamison, on the 9th of February, 1895, appointed George A.. Neal assistant prosecuting attorney in Class A, and that Mr. Neal during the year 1895 and up to July, 1896, performed the duty of deputy prosecuting attorney in Class A, and was paid the salary of $1,500 a year in monthly installments, up to the first day of July, 1896. It is also admitted that plaintiff was appointed assistant prosecuting attorney in Class B, in 1895, and acted and performed the duties of assistant in Class B, until about the first day of January, 1896, when Mr: James S. Botsford resigned his position as assistant prosecuting attorney under said Jamison, whereupon said plaintiff was appointed by said Jamison to deputy ship in Class A, in January, 1896, but no record was made by tbe court in term time approving this appointment of Mr. Elliott, the plaintiff. There is no record entry of plaintiff’s appointment except the one appointing him deputy or assistant in Class B. Under these circumstances the county court refused to pay him the salary prescribed for the chief deputy in Class A, or $1,500, but did pay him for each month $100, the salary prescribed for deputies in Class B. The plaintiff now insists on this appeal that he is entitled to recover that portion of the salary of chief deputy in Class A, which the county court refuses to pay him. We think that section 3286 of the statute plainly provides for only one chief deputy in Class A for the prosecuting attorney, and that as Mr. Neal had already been appointed deputy in Class A, and was holding that position when the prosecuting attorney attempted to make another chief deputy in Class A, the appointment of the plaintiff in that class was without authority of law and the county court properly refused to pay him the salary of chief deputy, and that the judgment of the circuit court was unquestionably correct. The number of deputies in Class A was specifically fixed by the statute and was limited to one chief deputy; nor will it avail the plaintiff that the prosecuting attorney with the approval of the criminal court had in 1895 appointed two chief deputies in the persons of Mr. Neal and Mr. Botsford. When Mr. Botsford resigned, Mr. Neal remained the only chief deputy which the statute permitted, and there was no authority in the prosecuting attorney to appoint another chief deputy until Mr. Neal resigned his position on the first day of July, 1896. The statute (section 3287) only permitted the judge of the criminal court a discretion as to the appointment and number of deputies for the prosecuting attorney when the number was not expressly fixed by the statute, but the statute fixes clearly and distinctly that the prosecuting attorney shall appoint only one chief deputy in Class A, and therefore, the attempt to appoint more than one assistant in that class was clearly beyond the power of the prosecuting attorney, even with, the approval of the court, so as to entitle him to the salary fixed for the one chief deputy. The dire results which plaintiff anticipates from this construction of the statute, to-wit, that all of his official acts as assistant prosecuting attorney, would be null and void, cannot follow; that plaintiff was an assistant prosecuting attorney and all his acts as such valid at least as to the third persons, is not a question in this case. The question is one simply of salary and whether under the pleadings and evidence in this case he was entitled to the salary of chief deputy. As we understand the judgment of the circuit court it simply adjudged that inasmuch as the prosecuting attorney had one chief deputy de jure and de facto, there was no authority to appoint plaintiff chief deputy, and require the county court to pay him the salary of chief deputy in spite of the plain statutory provision for the payment of the fees of the prosecuting attorney and his deputies. Having reached this conclusion, it is unnecessary to pass upon any other contention in the case.

The judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.