author: RAGLAND, C. PER CURIAM:

text:
    JAMES P. NEWELL, Public Administrator in Charge of Estate of A. J. ODEGAARD, v. BOATMANS BANK, Appellant.
    Division One,
    December 1, 1919.
    1. DORMITORY: Athletic Club. A seven-story brick building, the west half of which was occupied by an athletic club, having a kitchen and dining room on the third floor, a banquet hall and ten sleeping rooms on the fourth floor, thirty-six sleeping rooms and a library on the fifth floor, thirty-nine bed rooms on the sixth floor, having in all sleeping accommodations for one hundred and twenty-five persons, in which seventy persons were sleeping at the time of the fire, was a dormitory within the meaning of Section 10668, Revised Statutes 1909, and was required to be equipped with fire escapes as provided by Sections 10666, 10667 and 10668.
    2. DEATH IN DORMITORY: Insufficient Fire Escapes: Proximate Cause: Res Ipsa Loquitur. When fire safety-appliance laws are violated, and death, unexplained except by the physical facts, occurs as a result of fire in a building not equipped with the required appliances, but which is by law required to be so equipped, the case should go to the jury under the rule of res ipsa loquitur, although there is no positive evidence that the death was due to a lack of such appliances. Even though there was no physical obstruction between the room in which deceased was sleeping and a near-by exit to a fire escape, unless the fire barred the way, yet if no person sleeping in other rooms opening on the corridor escape by said exit, and there is further evidence from which it may be inferred that had there been the required appliances at another part of the corridor he might have escaped, the rule applies, and the jury must determine the proximate cause of his death.
    3. NEW TRIAL GRANTED: Weight of Evidence: Appellate Practice. Where under the facts in evidence the rule of res ipsa loquitur required the case to go to the jury, and they returned a verdict for defendant, the action of the trial court, granting to plaintiff a new trial on the ground that the verdict was against the weight of the evidence, will not he disturbed on appeal.
    Appeal from St. Louis City Circuit Court. — lion. John W. Calhoun, Judge.
    Remanded eor new trial.

      Lehmann & Lehmann and Fauntleroy, Cullen & Hay for appellant.
    (1.) The building was not a hotel or a dormitory, but was a “club house,” for which the number of fire escapes should be determined by the building commissioner of the City of St. Louis. Hence the plaintiff in resting his action upon the theory that the building was a hotel or dormitory, proceeded upon the wrong theory and was not entitled to go to the jury. R. S. 1909, secs. 10666, 10667, 10668. (2) There was no evidence proving or tending to prove that the failure of the bank to construct and maintain additional fire escapes was the proximate cause of the death of deceased. The facts themselves show lack of proximate cause. Armaindo v. Ferguson, 55 N. Y. Supp. 769; Radley v. Knepfly, 104 Tex. 130. (3) The facts of this case bring it within the class referred to by this court in the case of Burt v. Nichols, 264 Mo. 1, wherein the court said: “We can readily appreciate, a case’ wherein the facts themselves show lack of probable cause.”

      Watts, Gentry & Lee for respondent.
    (1) That the identical building in question falls within the provisions of the statutes which were violated, was held by this court recently in the case of Ranus v. Boatman’s Bank, 279 Mo. 332. (2) Sufficient facts were shown to justify the court in submitting to tho jury the question as to whether or not the violation of the statutes was the proximate cause of Odegaard’s death. Burt v. Nichols, 264 Mo. 1. (3) This court will defer to the discretion of the trial judge in granting a new trial on the ground that the verdict is against the weight of the evidence.
   RAGLAND, C.

John Odegaard lost his life in the fire which destroyed in the early morning of March 9, 1914, the building occupied by the Missouri Athletic Association. He was about thirty-two years of age, had never been married, and left no relatives in this State. Aged parents, dependent upon him for support and to whose support he was contributing at the time of his death, survived him, and were living in the City of Chicago. This suit was instituted by the public administrator of the City of St. Louis, having in charge his estate, and wherein he seeks to recover damages against defendant as owner of the building for having negligently caused the death of his intestate, in that, it had not prior to the fire equipped said building with suitable and safe fire escapes and balconies as required by the statutes of this State. The defendant answered by way of general denial. An affirmative defense was also pleaded, but it seems to have been abandoned.

The building in question was a seven-story structure situated at the northwest corner of Fourth Street and Washington Avenue in the City of St. Louis. ■ The east half of the building up to the third story was occupied by the defendant as a bank, and was fireproof. The remainder of the building was not fireproof, and was occupied by the Missouri Athletic Association for its various club activities. The kitchen and dining room were on the third floor; a large room used for a banquet hall and dancing and about ten sleeping rooms were on the fourth floor; thirty-six sleeping rooms and a library were on the fifth floor; and thirty-nine bed rooms were on the sixth floor. Some of these rooms were equipped with two beds, so that the sleeping accommodations above the second floor were sufficient for as many as one hundred and twenty-five persons. About seventy persons were sleeping in this part of the building at the time of the fire. Working accommodations were also provided for one hundred and twenty persons above the second floor. There was a three-or-four-story building occupied as a seed store on the west side of defendant’s building and immediately adjacent to it; there was a spiral fire escape on the south side on Washington Avenue, near the southwest corner of the building, which connected with landings at openings into the fifth and sixth stories; there was a stair fire escape on the east side on Fourth Street, near the north end of the building, which extended from the seventh floor, and passed windows in each story all the way down; and there was a metal stairway enclosed in a brick shaft outside of the main wall of the building on the north side and adjoining the projecting ell, which extended from the seventh down to the first floor, and with which each story communicated by a door. To get to it from the fifth floor it was necessary to go from a lobby through what was known as the linen room. There was sufficient blank wall on the Fourth Street side near the southeast corner of the building for a fire escape to have been placed there without passing any window.

The alarm was turned in about 1:55 a. m., and the fire chief arrived on the scene approximately three minutes later. He first observed flames pouring out of the windows in the second and third stories on the south and east sides, the heat being more intense on the east or Fourth Street side. About twenty minutes thereafter the entire east wall went down, carrying with it the major portions of all the floors. The north, south and west walls were left standing, and the rooms adjoining the south wall, as well as most of the floor of the corridors immediately adjoining them, remained intact. The fire must have originated on the floor separating the second and third stories. After it got under headway the central stairway and the central elevator shaft operated as huge chimneys through which masses of flame and smoke shot upward, pouring out in great volumes into the adjacent halls and corridors on each floor. Up and down these corridors men were running to and fro, uttering cries, in vain efforts to escape. No one got out of the building by way of the Fourth Street fire escape, because the flames coming from windows below the sleeping quarters by which it passed made Its use impossible. A few found their way out down through the enclosed stairway and some jumped from the windows on the west side on to the seed store roof. Some half dozen persons came down the Washington Avenue escape, but, so far as the evidence discloses, only one from the fifth floor, a man who occupied Room 1, which had a window opening directly on to the balcony leading to the escape.

The accompanying plat shows the plan of the fifth floor. Odegaard occupied Room 2 the night of the fire. It will be observed that the east-and-west corridor, into which his room opened, had two windows at its west end, through which, apparently, a person could go on to the balcony or landing leading to the Washington Avenue fire escape, and that but a few steps would have sufficed to have taken him from the- door of his room to these windows. There were double sliding doors between Rooms 1 and 2, but they were kept locked and the occupant of Room 2 had no key. From some hearsay evidence, to which no objection was made, it appears that the door from Room 1 into the corridor was locked at the time of the fire and during its progress. This was probably true. An examination of the plat will further disclose that before the partitions were burned the smoke could not get into the east corridor until it had passed up and down the -west corridor and around through the north and the south corridors. In this connection it may be said that the occupant of Room 9 tried the Fourth Street fire escape and. found it too hot, then went west in the north corridor running east and west to the west corridor running-north and south, at this point he found that he could not go south in this corridor on account of the flame and smoke issuing from the elevator shaft and stairway. Occupants of the sixth floor on the north and west sides experienced similar conditions. The body of the occupant of Room 3 was.found just inside the door of his room; it was not burned, but from its appearance he died from suffocation. Room 4 was not occupied.

The deceased was last seen alive, so far as the evidence discloses, when he left the dining room a few minutes after eleven o’clock the night of the fire, .stating to friends that he was tired and was going to bed, and bidding them goodnight. After the fire, and when the firemen were able by means of the Washington Avenue fire escape to go into Rooms 1 and 2, which were scorched and burned but still intact, as was the corridor leading to the fire balcony on the west side, they found deceased’s watch, jewelry and the clothes that he had worn the previous day placed in the room in the same way that he usually disposed of them on retiring, and the bed had the appearance of having been occupied, but his body was not found in any of these rooms on the south side, nor in the corridor. The evidence does not show where his body was found, but a body that was taken from some part of the ruins was identified as his from certain characteristics it was known to possess, principally that of an enlarged knee joint.

The cause was tried to a jury and a verdict for defendant returned. The court sustained a motion for a new trial on the sole ground that the verdict was against the weight of the evidence. From the order granting a new trial defendant has appealed. For reversal of this order it relies on two propositions: (1) that the building in question was not a “dormitory” within the meaning of Section 10668, Revised Statutes 1.909, which prescribed for buildings so used a minimum number of fire escapes, and plaintiff, having based his action upon the theory that it was a dormitory, was not entitled to go to the jury; and (2) that there was no evidence proving or tending to prove that the failure of the bank to construct and maintain additional fire escapes was the proximate cause of the death of deceased, that the facts themselves show lack of proximate cause.

I. The case of Ranus v. Bank, 279 Mo. 332, was to recover damages for a death that occurred in this same fire and on the same ground of negligence alleged here. In that case the same question as to the character of the building was presented as here, and a^eY a fn]i consideration we held that the use that was made of the building in part constituted it a dormitory within the meaning of said Section 1Ü668. With that ruling we are entirely satisfied. In that case it was conceded, as it is in this, that the building was not equipped with fire escapes in compliance with Sections 10666, 10667 and 10668, Revised Statutes 1909.

II. In support of its second contention appellant points out “that deceased’s room was No. 2; that he was occupying it at the time of the fire, that it was within a few feet of a fire escape, which was accessible either through the folding doors into Room 1 or-through the hall running straight from Room 2 to the balcony at the end thereof; that these rooms and the fire escape and immediate environs were measurably intact after the fire; that the body of Odegaard was not found in his room or at any point between his room and the fire escape.” From this it draws the conclusion, “that deceased, with the means of escape at hand, failed to avail himself of them; that not lack of facilities of escape, but failure to use those supplied, caused his death.” Appellant is slightly inaccurate in its statement of the facts. It does not appear that the fire escape was accessible to the deceased through Room 1. The sliding doors were certainly locked, and it is probable that the door opening from Room 1 into the corridor was also locked. HoAvever, so far as the evidence discloses, unless the ■ fire itself barred the way, there was no physical obstruction between the deceased and the exit to the balcony at the west end of the corridor. What efforts, if any, he made to reach it cannot be known. If any saw him, their voices are also silent. The presumption is that he tried to escape, to live rather than die. It may be that some temporary barrier prevented his leaving the building by this window. It may be that at the time he was aroused and started from his room the smoke and gas and flame, coming through the elevator shaft and stairway, had so'filled the south end of the west corridor and the west end of the south corridor that he could not make his way through it, and that the east end of the south corridor and the east corridor were still comparatively free from smoke and gas, in Ahich event he no doubt went east in the south corridor seeking a way out, and had there been a fire escapo at the southeast corner of the building attached to the blank wall, or had the one on the east side near the north end been so placed as not to have passed windows, he probably would have escaped. These are possible inferences. One thing is reasonably certain, and that is, that not a single person on the fifth floor escaped through the exit leading to the fire balcony at the west end of the south hall. The facts of this case bring it squarely within the rule announced in Burt v. Nichols, 264 Mo. 1, viz: “When fire safety-appliance laws are violated and death, unexplained except by the physical facts, occurs by fire in the burning of a building not equipped with the required appliances, but which is by law required so to be, the rule of res ipsa loquitur should be invoked to take the case to the jury, where all inferences pro and con and all matters of contributory negligence can be resolved under proper instructions by the triers of fact.” There was evidence, therefore, to take the case to the jury on the issue of proximate cause. Whether their verdict should have been set aside on the ground that it was against the weight of the evidence was a matter that lay wholly within the discretion of the trial court.

The order granting a new trial is affirmed and the cause remanded.

Brown and Small, CG., concur.

PER CURIAM:

The foregoing opinion of Ragland,

C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    A. M. WHITWORTH et al., Appellants, v. T. N. DAVEY.
    Division One,
    December 1, 1919.
    1. USURY: Commissions Paid Trustee. In determining whether the money demanded and paid to the holder of notes secured by deed' of trust, the commissions paid to the trustee, who had advertised the property for sale, but did not sell it because of the payment of the notes, cannot be charged against the payee.
    2. -: Fixed By Statute. In the absence of a law limiting the rate of interest, there can be no usury; and unless the rate exceeds the applicatory statutory maximum, there is no usury in a particular case.

      8. -: Eight Eer Cent Compounded Semi-Annually: Recovery: Applicatory Statutes. A stipulation in the written contract that interest shall be compounded semi-annually is void, under Section 7185, Revised Statutes 1909, which says that “interest shall not be compounded oftener than once a year;” but though the contract calls for eight per cent interest, to be compounded semiannually, the payor of the note cannot under Section 7182 recover back the excess paid, for that section in express terms applies only to the “three preceding sections,” which say nothing concerning a semi-annual compounding of interest. Section 7182 does not purport to give a cause of action for a violation of Section 7185. A compounding of interest oftener than once a year, in violation of said Section 7185, is illegal, but is not, of itself, usury.
    4. -: -: In the Aggregate: Suit For Compound Interest. A right of action under Section 7182 must be grounded on usury actually paid to the creditor, and the test of usury under the section is the payment of interest in excess of the applicable statutory rate; and though the six-months coupon interest notes provide for eight per cent interest from maturity, yet if a computation discloses that the amount paid on the notes does not aggregate a sum equal to the amount of the principal note with interest at eight per cent, compounded annually, there can be no recovery under Section 7182 of a supposed excess paid.
    5. -: Compound Interest. The payment of compound interest in excess of the written contract rate does not constitute usury, unless the total amount paid exceeds the amount which could lawfully be exacted under the written obligation.
    Appeal from Jasper Circuit Court. — Hon. Joseph D. Perkins, Judge.
    Affirmed.

      Frank L. Farlow for appellants.
    (1) Under tlie contract made on March 14, 1.910, the amount due the defendant on April 1,1911, would he the amount of the two first coupons, $724.76. But the plaintiffs were required to pay $739.90, or $15.14 usury. This $15.14 was the interest at eight per cent for six months on coupon one, and was compounding the interest oftener than once a year at the contract rate named in the note. Under the law the court should have allowed the defendant only six per cent per annum, instead, of the eight per cent provided for in the usurious contract, and which the defendant had enforced by exacting and receiving such usurious interest from the plaintiffs. When no rate of interest is agreed upon, six per cent is allowed as legal interest. Sec. 7179, E. S. 1909. Parties may agree in writing for interest not exceeding eight per cent per annum, on money due or to become due on contract. Sec. 7180, E. S. 1909. Sec. 7182, E. S. 1909, prohibits the taking of more than the legal rate of interest. (2) The contract in this case, being the obligation and coupons, show on their face that a usurious contract for interest was made, and the payment under the evidence show that the interest was collected, demanded and exacted by the defendant, and if this is tx-ue, then under the law, the interest should not be figured at the contract rate, but at the legal rate of six per cent per annum payable annually. The rule for testing the question whether or not this contract was usurious, on its face, is whether if performed, it would result in securing a greater rate of profit on the subject-matter than is allowed by law. This contract in providing for interest on the coupons at eight per cent, which was enforced by the defendant, gave him $15.1.4 more the first year than he was entitled to and was usurious. Kreibohm v. Yancey, 154 Mo. 67; Coleman v. Cole, 158 Mo. 260; State ex rel. v. Boatman’s Savings Institution 48 Mo. 189; Missouri E. E. S. v. Sims, 179 Mo. 686; Bank v. Donnell, 172 Mo. 385. The transaction itself, not the intention of the parties, determines the question of usury. Osborn v. Frederick, 134 Mo. App. 449. (3) The contract under consideration in this case, having been shown to be usurious, and the defendant having been shown to have exacted and received usury under it, that avoids the contract, as to interest, and the legal rate of six per cent applies, and the amount due the defendant for the use of the money must be estimated upon the basis of six per cent, the legal rate of interest. Arbuthnot v. Assn., 98 Mo. App. 382; Osborn v. Frederick, 134 Mo. App. 449; Seaver v. Eay, 137 Mo. App. 78; Holmes v. Building Association, 166 Mo. App. 719; Cowgill v. Jones, 99 Mo. App. 390. (4) Our statute forbids the taking of more than eight per cent per annum interest, and if the holder takes more than this amount it is usury, and avoids the contract, and he is only entitled to have and retain six per cent legal interest. Machiné Co. v. Tomlin, 174 Mo. App. 512. (5) The effect of charging usury is that if it is charged or exacted upon a usurious contract, then the holder only recovers the principal actually loaned with legal interest; that is, six per cent. Western Storage Co. v. Glassner, 169 Mo. 38; Little v. Pump Co., 122 Mo. App. 620; Osborn v. Payne, 111. Mo. App. 29.

      Paul N. Davey and R. A. Mooneyham for respondent.
    (1) A contract tainted with usury is not void, and courts will enforce them, first stripping them of their usury. Adler & Sons Clo. Co. v. Corl, 155 Mo. 154; Cowgill v. Jones, 99 Mo. 390; Ferguson v. Soden, 111 Mo. 208; Farmers & T. Bank v. Harrison, 57 Mo. 503; Montany v. Eock, 10 Mo. 506; 1 Story, Eq. Jur. (12 Ed.), sec. 301; Webb v. Allington, 22 Mo. App. 559; Peter Shoe Co. v. Arnold, 82 Mo. App. 6. The principal Whitworth note was accompanied by six coupon notes, each being a separate instrument. Only the three semiannual .coupon notes were tainted with usury. The principal note and the three annual notes were valid promissory notes, containing no unlawful clause, upon either of which a suit could have been brought and a separate judgment obtained. The principal note bore interest at the rate of eight per cent per annum on its face, so also did the three annual notes. The contract as a whole was severable. (2) Contracts in writing for the payment of interest are governed by the same rules that apply to other written contracts as to their construction and operation. U. S. Mortgage Co. v. Sperry, 138 H. S. 313; Martin v. Murphy, 16 111. App. 283; Webb v. Bailey, 89 Iowa, 247. (3) A contract clause to compound interest semi-annually has no other effect upon the contract than to render that particular clause void. Our Supreme Court in the case of Storage Oo. v. Glasner, 169 Mo. 46. (4) A usurious clause in a contract does not constitute usury. It is only when the total amount actually paid exceeds the principal and lawful interest that anything can be recovered as usury, and then only the amount of such excess. Lawler v. Vette, 166 Mo. App. 349; Citizens’ Nat. Bant v. Donnell, 172 Mo. 415'. (5) It is only where no annual rate of interest was ever expressed in the contract, or where the rate expressed therein exceeded the rate prescribed by the lawful contractual rate, and purging the contract of the unlawful rate expressed would result in a failure of expression, that courts can or will presume and apply the' legal presumptive rate of six per cent. Secs. 7179, 7181, 7182, R. S. 1909; Long v. Loan Co., 252 Mo. 167.
   BLAIR, P. J.

This cause was heard in the Springfield Court of Appeals (185 S. W.-241), and was certified here because one of the judges deemed the opinion to be in conflict with decisions of this court.

On March 14, 1910, appellants executed a note for $8650, payable April 1, 1913, to L. N. Manley, with interest “from date at the rate of eight per cent per annum payable semi-annually according to the tenor and effect of the interest coupons hereto attached and bearing even date herewith.” Six coupons notes were executed. The first was for $378.76 and represented the interest on the principal note from March 14, 1910, to October 1, 1910. Each of the five remaining coupons was for $346, six months’ interest on the principal note. The five fell due, respectively, on April 1, 1911, October 1, 1911, April 1, 1912, October*!, 1912, and April 1,1913. Each coupon note was expressed to bear interest at eight per cent from maturity. April 11, 1911, new notes were given to cover the interest to April 1, 1911. Each of' these drew interest at eight per cent compounded annually. June 18, 1912, appellants made the first cash payment $1539.97. A second cash payment of $717.53 was made April 29, 1913. May 7, 1914, a final payment of $9413.79 was made. Of this sum $87.75 was for publication of trustee’s notice of sale and trustee’s commission, which was paid directly to the trustee, who had advertised a sale but did not actually make it because the debt was discharged by payment on the day set therefor. The sums paid respondent were, therefore, $1539.97, on June 18, 1912; $717.53, on April 29, 1913, and $9326.94, on May 7, 1914.

The petition alleges that the “bond or obligation and coupons . . . was and is usurious and unenforceable on its face in requiring the plaintiffs to pay more than eight per cent per annum, payable semiannually for the money loaned to them; and in compounding interest oftener than once a year,” and that by reason thereof respondent was entitled to no more than his principal and six per cent simple interest, whereas he demanded and was paid the sum of $718.91 in excess of that amount. Judgment for that amount and for costs, expenses and a reasonable attorney’s fee is prayed. The trial court gave judgment for defendant.

I. We agree with the 'Court of Appeals (185 S. W. 1. c. 247) that the sums paid the trustee for eommissi°ns and expense of publication of notice cannot be charged against respondent.

II. The petition alleges and appellants’ evidence shows that the overpayment, which they contend resulted from a usurious exaction, was made to cover semiannual interest upon interest. As pointed out by the Court of Appeals, this is an action under Section 7282, Revised Statutes 1909. This section provides for the recovery by the payor of any sum paid in • excess of the rates prescribed by the “three' preceding sections” These sections provide that (1) in the absence of an agreed rate, six per cent shall be collectible on moneys due on written contracts and accounts and in other cases in which interest is agreed to be paid, but the rate is not fixed; (2) the parties may agree, in writing, for the payment of interest, not exceeding eight per cent, ‘ on money due or to become due upon any contract,” and (3) interest upon judgments upon contracts bearing more than six per cent shall bear the contract rate, and other judgments shall bear six per cent.

In 1845 (R. S. 1845, secs. 6 and 7, p. 615) provisions permitting the compounding of interest once a year were enacted. Section 7185, Revised Statutes 1909, reads as follows:

“Parties may contract, in writing, for the payment of interest upon interest; but the interest shall not be compounded oftener than once a year. Where a different rate is not expressed, interest upon interest shall be at the same rate as interest on the principal debt. ’ ’

Under these sections it is lawful for parties to contract in writing for interest at the rate of eight per cent per annum, compounded annually. In this day and age, in the absence of a law limiting the rate of interest, there can be no usury. [Newton v. Wilson, 31, Ark. 484.] Further, unless the rate of interest exceeds the applicable statutory maximum, there is no usury in a particular case. [Black’s Law Dictionary; Webster’s International Dictionary; Parkham v. Pulliam, 45 Tenn. 497; Rosenstein v. Fox, 150 N. Y. 354; Kreibohm v. Yancey, 154 Mo. 67.] The interest contract in this case is in writing and it fixed an eight per cent rate, to be compounded semi-annually. The provision for compounding oftener than once a year was void. [Western Storage Co. v. Glasner, 169 Mo. l. c. 46, 47.] Section 7182, Revised Statutes 1909, under which this action is brought, gives a right of action, by specific reference, solely for violation of Sections 7179, 7180 and 7181. It does not purport to give a cause of action for a violation of Section 7185, which prohibits compounding interest oftener than once a year. Compounding interest in violation of Section 7185 is illegal but it is not, of itself, usury. Such is the necessary effect of the ruling in Western Storage Co. v. Glasner, supra, and that rule has the support of reason and the great weight of authority. [Webb on Usury, sec. 127; Tyler on Usury, p. 243; Mowry v. Bishop, 5 Paige’s Ch. l. c. 103; Palm v. Fancher, 93 Miss. 785; 33 L. R. A. (N. S.) 295 and note.] The collection of compound interest is the sole basis of the charge of usury in this case. The right to compound interest is a creature of the statute. Courts denied it, not because it constituted usury, but on the ground that it was harsh and oppressive and “tended to usury.” A computation discloses that the amounts paid on the notes do not aggregate a sum equal to the amount of the principal note with interest at eight per cent, compounded annually. In view of this fact and of the principles stated, there can be no recovery in this case under Section 7182, since every right of action under that section must be grounded on usury actually paid to the creditor, and the test of usury under that section is the payment of interest in excess of the applicable statutory rate.

III. With most of the opinion of the Court.of Appeals we agree. In our opinion, it fell into error, when it held, as we understand its holding, that a payment of compound interest constitutes usury in every case in which it exceeds the written contract, although the total amount paid does not exceed the amount which could lawfully be exacted and paid on a written obligation. Other than the semiannual compounding feature of the contract, there is no suggestion that there was any trick, fraud or intent to cover up or secure usurious interest. This disposes of the only question raised by appellants.

The judgment is affirmed. All concur.


author: GRAVES, J.

text:
    LILLIAN KRINARD v. CLARENCE M. WESTERMAN, Appellant.
    Division One,
    December 1, 1919.
    1. NEGLIGENCE: Inferred from Pacts. If the legitimate inference which may be drawn from the facts establish the negligence alleged, the case of negligence is made.
    2. -: —p—: Malpractice: Operation By Surgeon. Plaintiff was afflicted with a fibroid tumor of the uterus, and applied to defendant to remove it, and in the operation he cut a hole in her bladder, and tied off one of the ureters. Plaintiff alleged that these things were negligently done, and the defendant asserted that they were necessary because the parts were diseased and cancerous. The evidence shows that immediately after the operation he pronounced it a perfect success, and did not for a month inform plaintiff that he had made an incision in the bladder, and then when informed that there was a constant flow of urine he told her that he had done so in order to remove the diseased parts and that there would have to be a second operation, although he had all along told her and her friends that she was getting along nicely. When the necessity for a third operation arose, she suggested that a famous surgeon be called to assist, at which he became enraged. Both before and after this third operation she was examined by other physicians who found no evidence of diseased or cancerous conditions. The evidence showed that the tieing of the ureter would kill the kidney, and that prior to the operation the kidney was healthy and normal, and after-wards it had no life in it. Held, that negligence could be inferred from these facts, and the court committed no error in submitting the case to the jury. .
    3. -: Malpractice: Degree of Physician’s Skill. A physician or surgeon undertaking the treatment of a patient is required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing, practicing in similar localities. It is not sufficient that he use the degree of skill possessed by reasonably skillful surgeons or physicians “in the community in which he is practicing.”
    4. -: -: Degree of Specialist’s Skill. A physician holding himself out as having special knowledge and skill in the treatment of particular diseases, and sued as such, is bound to bring to the discharge of his duty as such specialist, not merely the average skill possessed by general practitioners, but that special degree of skill and knowledge possessed by physicians who are specialists in the treatment of such diseases, in the light of the present state of scientific knowledge.
    5. -: -: Measure of Damages: Future Operation. Where there is evidence that the needless cutting of one of the ureters causes the corresponding kidney to die, that about fifty per cent of dead kidneys produce infection, and that such infection makes necessary a major operation, accompanied with pain and is expensive, it is not error, in instructing the jury on the measure of damages, that they may take into consideration what suffering plaintiff may endure in the future for operations she may hereafter be required to have performed.
    6. -: -: -: -: Use of Word “May.” The instruction should limit defendant’s liability for future pain to reasonable certainty and not bare possibility, and consequently the use of the word “may” is liable to mislead the jury; but courts, take an instruction as a whole, and if the word “may” as used with its context does not appear misleading, its use will not constitute reversible error.
    7. -: -: -: Surgeon's Fees. Evidence that plaintiff, as a result of her injuries, had paid definite sums of money and that she had stated accounts for other expenses incurred but not paid, is definite enough to support an instruction that the jury allow her the money she had expended for physicians, nurses and medicines, especially where the jury are definitely told that she had neither paid nor had a statement of the amount she owed other physicians and that those items were not included in the sum named as the aggregate of her expenses incurred.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Affirmed.

      Watts, Gentry & Lee for appellant.
    (1) The court erred in overruling the demurrer to the evidence. There was no evidence offered from which the jury would have been justified in finding that the defendant negligently cut, punctured or tore the plaintiff’s bladder, nor was there any evidence offered from which the jury would he justified in finding that the defendant either cnt or tied oft one of plaintiff’s ureters, or that he negligently failed to promptly repair the bladder. The most that could be said of plaintiff’s evidence is that it tends to show that she suffered from conditions which might possibly have been brought about by the doing of one of the aforesaid •negligent acts, but, at the same time, the plaintiff’s evidence clearly showed that there were other causes, not in any way resulting from any negligence of the defendant, which could equally well have produced the conditions shown. Where an injury may have resulted from one of two or more causes, for some of which the defendant would be liable, and for other of which he would not be liable, the jury should not be allowed to speculate and guess that it came from defendant’s negligence. Goransson v. Ritter Co., 186 Mo. 300; ICane v. Railroad, 251 Mo. 1; Caenefelt v. Bush, 198 Mo. App. 491; Crawford v. O’Shea, 145 Pac. (Wash.) 579; Ewing v. Goode, 78 Fed. 442; Coombs v. James, 144 Pac. (Wash.) 536; Merriman v. Hamilton, 103 Pac. (Ore.) 406. All a physician or surgeon is required to do is to possess and use such skill and judgment and use such care as a reasonably skillful man of his profession in his community would have and use, and mere error in judgment does not make him liable. Spain v. Burch, 169 Mo. App. 106; Vanhooser v. Berghoff, 90 Mo. 487; Gore v. Brockman, 138 Mo. App. 231; Granger v. Still, 187 Mo. 216; Martin v. Courtney, 75 Minn. 255; Staloch v. Holm, 100 Minn. 276. (2) Instruction 1, given at plaintiff’s request, was erronous because it permitted the jury to find the defendant guilty of negligence if he did not exercise the degree of care and skill exercised by physicians and surgeons anywhere in the world, whereas it should have been limited to the degree of skill and care exercised by physicians practicing in the same locality where the defendant resided. Vanhooser v. Berghoff, 90 Mo. 487; Cozine v. Moore, 141 N. W. (Iowa) 421. (3) The instruction on the measure of damages contains glaring errors, clearly entitling the defendant to a new trial, even if the plaintiff was entitled to go to the jury. First, The jury were authorized by the instruction to allow compensation to plaintiff for her suffering — not only suffering resulting from operations which had been performed before the trial, but also for suffering that might result from operations that she “may hereafter be required to have performed.” The evidence showed that there was nothing like a reasonable probability that an operation for the removal of plaintiff’s left kidney— which was the only further operation under discussion— would have to-be performed. A plaintiff may recover such damages — in a case like this — as are reasonably • certain to accrue in the future, and may not recover for a bare possibility. Wilbur v. Eailroad Co., 110 Mo. App. 698; Bigelow v. Eailroad, 48 Mo. App. 367; Chilton v. St. Joseph, 143 Mo. 192; Batten v. Transit Co., 102 Mo. App. 285; Albin v. Eailroad, 103 Mo. App. 308; Ballard v. Kansas City, 110 Mo. App. 391; Schwend v. Transit Co., 105 Mo. App. 534; Barr v. The City of Kansas, 121 Mo. 30; 2 Shear. & Eed. on Neb. (4 Ed.), sec. 743. Sutherland on Damages (3 Ed.), sec. 123, and sec. 944, vol. 3; Joyce on Damages, sec. 244; Voorheis on Measure of Damages, sec. 46, p. 75; Watson on Damages for Personal Injuries, secs. 302, 303, p. 385. Second. The other glaring error in that instruction is that, in its second subdivision, it permits a recovery on account of expenses incurred for surgeons’ fees, when there was not a particle of evidence offered tending to show the value of such surgeons’ fees. Plaintiff expressly stated that she had not' received any bill from Dr. Ernest, Dr. Caulk or the Mayos for their services. Dr. Judd testified that he did not know what his charges were without looking them up. He did not look them up. This portion of plaintiff’s instruction on the measure of damages permitted recovery of an item as to which there was no evidence to show what damage the plaintiff had suffered on account thereof. To include such an item in an instruction on the measure of damages is universally held to be reversible error. Morris v. Grand Ave. Ry. Co., 144 Mo. 500; Robertson v. Wabash Railroad, 152 Mo. 382; Moellman v. Lumber Co., 134 Mo. App. 485; Waldopfel v. Transit Co., 102 Mo. App. 529; Duke v. Railroad, 99 Mo. 347; Rhodes v. City of Nevada, 47 Mo. App. 499; Smith v. Railroad, 108 Mo. 251; Nixon v. Railroad, 141 Mo. 440; Davidson v. St. L. Transit Co., 211 Mo. 320; Gibler v. Ter. Assn., 203 Mo. 220.

      O’Neill Ryan and Gug A. Thompson for respondent.
    (1) (a) The case went to the jury on two (of the three) charges of negligence, to-wit, that defendant negligently cut, punctured, or tore the bladder, and that he negligently cut, or tied off, the ureter. Under all the facts and circumstances in evidence the jury was justified in concluding that one or the other of these charges had been established, and, as a proximate result, that the plaintiff had sustained the grave injuries complained of and proved beyond any question. It was not a matter of mere speculation or conjecture. The legitimate inferences from all the evidence warranted the deduction that there was the causal 'connection between one or the other of the acts of negligence charged and the injuries suffered. Fetter v. Casualty Co., 174 Mo. 266; Laesing v. Travelers Ins. Co., 169 Mo. 281; Kelly v. Railroad, 70 Mo. 607; Nevinger v. Haun, 197 Mo. App. 427; Fausette v. Grim, 193 Mo. App. 585; Coffey v. Tiffany, 192 Mo. App. 455. (b) On a demurrer to the evidence the most favorable construction should be given of which it is capable in favor of plaintiff and every reasonable inference therefrom taken as true. Hall v. Coal Co., 269 Mo. 365;-Stauffer v. Railway Co., 243 Mo. 316. (c) Inferences of fact in favor of defendant cannot be allowed to overthrow inferences of fact in favor of plaintiff. Maginnis v. Railroad, 268 Mo. 675. (d) If men of reasonable intelligence would differ as to which of several causes, to be legitimately inferred from the evidence, caused the damage complained of, the case should go to the jury. Powers v. Transit Co., 202 Mo. 280; Dakan v. Mercantile Co., 197 Mo. 258; Hurlbut v. Railroad, 130 Mo. 667. (e) If the evidence — the legitimate inferences or deductions therefrom — tends to prove that the injuries complained of “might, could or would” have followed the act of negligence charged, that question is one for the jury. De Mae v. Storage Co., 231 Mo. 619; McDonald v. Railroad, 219 Mo. 477; Sharp v. Railroad, 213 Mo. 578; Glasgow v. Railroad, 191 Mo. 364; Taylor v. Railroad, 185 Mo. 256. (2) Instruction 1, telling the jury that in performing the operation it was the defendant’s “duty” to exercise reasonable skill and care, that is, such skill and care as an ordinarily skillful and careful surgeon is accustomed to exercise and use in like surgical operations, under like circumstances,” is proper. Ghere v. Zey, 128 Mo. App. 366; Wheeler v. Bowles, 163 Mo. 407; Vanhooser v. Berghoff, 90 Mo. 490; Logan v. Field, 75 Mo. App. 600; Robertson v. Wenger, 131 Mo. App. 224; Logan v. Field, 192 Mo. 54. (3) Appellant’s first objection to instruction on the measure of damages is without merit. Dean v. Railroad, 199 Mo. 395; Sang v. St. Louis, 262 Mo. 454; King -v. St. Louis, 250 Mo. 510; Whitworth v. Shurk, 197 Mo. App. 415; Brown v. Barr, 184 Mo. App. 456; Welborn v. Met. St.' Ry. Co., 170 Mo. App. 351. (4) Likewise, appellant’s second objection to said instruction because of its reference to surgeons’ fees is without merit. Because (a) defendant expressly waived at the trial the necessity that plaintiff state the amount of such fees she had paid, and (b) plaintiff, having incurred such expenses, was entitled to recover therefor, and if defendant desired to limit the recovery to a nominal amount he should have tested out his right to do so by asking an instruction to that effect. State ex rel. v. Reynolds, 257 Mo. 19; King v. St. Louis, 250 Mo. 514; Sang v. St. Louis, 262 Mo. 454; Carter v. Wabash Railroad Co., 193 Mo. App. 234; Bell v. United Rys. Co., 183 Mo. App. 345. “The court will not sacrifice the ends of justice upon the sharp edge of technicality.” Sherwood v. Grand Avenue Ry. Co., 132 Mo. 345. ■ ■
   GRAVES, J.

Action for alleged malpractice. Defendant is a physician and surgeon in the City of St. Louis, and plaintiff is also a resident of said city.

By the petition it is alleged that plaintiff was .troubled with a fibroid tumor of the uterus, and went to defendant for an operation for its removal. It is averred that defendant had represented to plaintiff that he was specially skilled in the performance of such operations, having performed 500 operations of like character. The charge of negligence is thus stated:

“That on the 13th of November, 1915, pursuant to said employment, the defendant performed said operation upon the plaintiff, but that he performed the same negligently, carelessly and unskillfully in this, to-wit: first, that he cut, punctured or tore a large hole in plaintiff’s bladder; second, that he failed and neglected to mend the bladder at once; third, that, either during said operation or during one of the operations thereafter performed by him and hereinafter referred to, he so cut or tied off or so damagéd plaintiff’s left ureter as to cause it entirely to lose its functions and to atrophy and to cause plaintiff’s left kidney also to lose its functions, to atrophy and become lifeless.”

The petition then alleges two succeeding operations, as indictated above, and their failure, and further alleges that plaintiff had to undergo three other painful operations by other surgeons in an attempt to remedy the trouble occasioned by the alleged negligence of defendant. The petition thus closes:

“Plaintiff says that immediately because and by reason of defendant’s negligence, carelessness and unskillfulness, aforesaid, her blader has been permanently injured and in part destroyed so that the urine flows constantly and unnaturally from her bladder. That her left ureter and left kidney have been rendered useless and lifeless. That she has been compelled to undergo five serious and painful surgical operations since defendant’s first operation upon her on November 13, 1915, and, as aforesaid, will be compelled to endure further operations. That she has suffered, still suffers and -will continue throughout her life to suffer, most intense, excruciating and continuous mental and physical pain, anguish, torture and distress; that her nervous system has been wrecked; that she has been and will continue to be compelled to expend large sums of money for medi- ' cines, nurses, railroad fare, hotel, hospital and surgeons’ fees. That she is permanently disabled, is an invalid and will continue to be an invalid the remainder of her life. That she has lost and will continue to lose the earning' of her work and labor and will continue to suffer intense ■ physical and mental pain. ’ ’

Then follows a prayer for damages in the sum of $25,000.

The answer admitted that defendant was regularly licensed and practicing physician and surgeon, and held himself out as such; the answer also admits that he performed the operation first mentioned by plaintiff •for the removal of a fibroid tumor; admits that he cut • the hole in plaintiff’s bladder, but was not negligently done, but that it became necessary for him. to make such cut in removing the tumor. The answer also admits the two subsequent operations for the purpose of closing the hole, but avers that they were unsuccessful for the reason that the parts were diseased. All other matters were denied.

The reply specifically placed in issue all new matter contained in the hnswer. Upon a trial before a jury the plaintiff obtained a verdict for $15,000, and from a judgment entered thereon the defendant' has appealed.

The assignments of error made here cover the • refusal of the court to sustain a demurrer to the evidence ■ of pláintiff, and the giving of instructions 1, 2, 3 and ' 4, for plaintiff. . ■ .

The further facts can he best detailed in connection with the several assignments of error.

I. The first assignment of error is the failure of the trial court to sustain defendant’s demurrer to the evidence. This goes to the sufficiency of the facts. It should be stated at the outset, that, although the defendant’s professional conduct was on trial and in the balance, he did not testify himself, nor did he offer other testimony in his behalf. The case went to the jury on the evidence adduced for plaintiff. Dr. Mansfield and two nurses, and other parties, were present at the operation.

The case was submitted to the jury upon two of the alleged negligent acts, i. e. (1) the negligent cutting of the bladder, and (2) the negligent cutting or tying off of the ureter. Were there facts showing negligence as to either of these? Plaintiff in her instructions having abandoned the other charge of negligence, it is not here for review.

It stands admitted that defendant did cut a hole in plaintiff’s bladder. Plaintiff says he negligently did it, and defendant says that he purposely did it, because the degenerated condition required it to be done. Negligence may be inferred from the facts. If the legitimate inferences which may be drawn from the facts established negligence, the case of negligence is made. Now for the facts, as to whether or not this hole in the bladder was intentionally and necessarily made, or negligently made.

At the solicitation of the plaintiff a Mrs. O. D. Rizer was in the operating room during the whole time of the operation. She was plaintiff’s friend. Mrs. Rizer testifies that after the operation the defendant showed her the parts which had been removed. That she asked him if the operation was a success, and he replied: “That is a perfect operation, perfectly successful.” Not a word was said about cutting the bladder at that time. Nor did the defendant tell the plaintiff about it for a long time thereafter, and then only when plaintiff complained about the constant flow of urine, and. told him that she believed that he had injured her bladder. This was a month after the operation, and then for the first time the defendant said that he had cut the bladder, and taken out the diseased portion, and there would have to be a second operation. During all this month he was telling plaintiff and her friends that plaintiff was getting along nicely.

In addition to these facts, when the necessity arose for the third operation, and plaintiff wanted that eminent physician, Dr. Mudd, called in to assist, the defendant became enraged and mad, and used some rather forceful language, with the result that the third operation was performed without the presence of Dr. Mudd. The very conduct of the defendant tended to show his guilt. But this is not all. Plaintiff was examined both before and after these operations by different physicians. None of these found any evidence of a cancerous or diseased condition. The fact is that, as shown by the experts, a cut of this kind is hard to cure, and it took three operations at Mayo’s Hospital to get the cut closed. But the surgeons there found no diseased or cancerous condition. The experts further say that if it had been cancerous, the condition would return, notwithstanding the cut. In our judgment the evidence justified the submission of this ground of negligence.

Now as to whether the evidence tended to show that defendant negligently cut or tied the left ureter. The left ureter connects the left kidney with the bladder. Upon this ground of negligence, the evidence shows that the cutting or tying of the ureter would kill the kidney. The evidence further tended to show that this woman had been normal in all these parts, but that now there was a left kidney, but no life in it. Before the operation plaintiff had not been bothered with kidney troubles. A fair inference from these facts would indicate that defendant had destroyed this left uterer in. one of Ms operations. The operation he attempted to perform was a delicate one, and required skill. He proved not to be equal to the task.

We think the court committed no error in submitting the case to the jury by the overruling of the defendant’s demurrer.

What is said above also disposes of appellant’s third and fourth assignments of error. These assignments simply go to the effect that the court erred in giving instructions two and three for the plaintiff, because there was no sufficient evidence upon which to base them. The instructions are not otherwise criticized. Upon the demurrer, supra, we have held that there was evidence upon which each of these instructions could be predicated. These assignments of error must likewise fall.

II. It is next urged that there was error in giving plaintiff’s instruction number 1. This instruction reads:

“The court instructs the jury that it is admitted that defendant as a surgeon undertook, on November 13, 1915, to operate on the plaintiff and remove a fibroid tumor and remove the uterus, and the court instructs you that in performing this operation it became and was his duty to exercise reasonable skill and care as an ordinarilly skillful and careful surgeon is accustomed to exercise and use in like surgical operations under like circumstances.”

The contention is that the instruction fixed the wrong standard of efficiency, in this, that the instruction covered the whole world’s physicians, whilst the defendant’s efficiency should have been guaged by “the degree of skill possessed by reasonably skillful surgeons in the community in which he is practicing• We are cited to Vanhooser v. Berghoff, 90 Mo. 487, but that case does not cover the fine distinction urged by distinguished counsel in this case. On the other hand in that case, the opinion at pages 490-491, does say: “Under the ■ law his contract is not one of warranty that a cure will be effected, but only that be possesses and will use reasonable skill, judgment and diligence, such as is ordinarily possessed and employed by members of the same profession.”

Other cases (from other jurisdictions) cited by appellant do not discuss the doctrine contended for here at all. Why they should have been cited we do not understand. We find but three cases authorizing the doctrine contended for by appellant.

This doctrine limits the skill of the operating surgeon to that degree of skill possessed by reasonably skillful surgeons “in the community in which he is practicing.” The cases we find are Nelson v. Harrington, 72 Wis. l. c. 597; Wurdermann v. Barnes, 92 Wis. l. c. 208, and Pike v. Honsinger, 155 N. Y. 201.

So far as we find the only other limit along the line contended for by appellant, is the rulings which limit the skill of the operating surgeon to that of reasonably skillful surgeons in similar communities. [22 Am. & Eng. Ency. Law (2 Ed.), p. 890.] This annotator says:

“The skill and care of physicians in the particular locality or neighborhood is not the standard, but that ordinarily possessed by physicians practicing in similar localities. [Gramm v. Boener, 56 Ind. 497; Whitesell v. Hill, 101 Iowa, 629; Pelky v. Palmer, 109 Mich. 561; McCracken v. Smathers, 122 N. C. 799.] ”

Besides the cases cited by the writer of the above, as announcing the same doctrine, there might be added the fallowing: Hawthorn v. Richmond, 48 Vt. l. c. 559; Small v. Howard, 128 Mass. l. c. 132 and 136; Dunbauld v. Thompson, 109 Iowa, 199; Dorris v. Warford, 9 L. R. A. (N. S.) p. 1090; Kelsey v. Hay, 84 Ind. l. c. 193; Reeves v. Lutz, 179 Mo. App. l. c. 64; Hales v. Raines, 146 Mo. App. l. c. 241.

Some of these cases urg*e as a reason for the rule that the operating surgeon or physician might have in his immediate vicinity only quacks, and his skill would be measured by theirs. Hence they say that he must possess the skill of the reasonably skillful surgeon in similar communities. This rule appears to be more reasonable than the one contended for by appellant in this case.

On the other hand, in.Wheeler v. Bowles, 163 Mo. 1. c. 406, we have a very similar instruction to the one given in the instant case, and it met with the approval of this court, when at page 410, we said: “Indeed, we may remark,that we have rarely found a fairer set of instructions in a negligence case. Surely defendant has no right to complain of them.”

In the very early case of West v. Martin, 31. Mo. 375, we find that this court approved of an instruction for the plaintiff which contained this language: “then he was bound by the law to use the ordinary skill of his profession in the treatment of said case.” The defendant had been called to treat a broken thigh for the plaintiff. To see just what we did approve, I sent for the old files in the case. So that we have made the test “the ordinary skill of his profession” in that ease. The approved instruction in the Wheeler case, supra, contains this clause: “or failed to exercise such care and skill, as is used by the average members of his profession under like conditions and circumstances.” It is not far from the rule in West’s case. In one it is the “ordinary skill of his profession,” and in the other, “such care and skill as is used by the average members of his profession.” There is also added in the last case the phrase “under like conditions and circumstances.” These words, we take it, do not 'change the situation materially. In Longan v. Weltmer, 180 Mo. l. c. 328, where the instruction fixed the required skill as “ordinary care and skill,” the instruction passed muster here and the plaintiffs’ judgment was affirmed.

So far as we can find, up to the Longan case, supra, this court had never fixed any qualifications to what was said in the West and Wheeler cases, supra, but in Grainger v. Still, 187 Mo. l. c. 213, Marshall, J., quoted, with approval, the following from 22 Am. & Eng. Ency. Law (2 Ed.), p. 799:

“The standard by which the degree of care, skill, and diligence required of physicians and surgeons is to be determined is not the highest order of qualification obtainable, but is the care, skill, and diligence which are ordinarily possessed by the average of the members of the profession in good standing in similar localities, regard being also had to the state of medical science at the time.”

The Springfield and St. Louis Courts of Appeals have followed this rule to the extent of including the phrase “in similar localities.” Save and except what we find in the Grainger case, supra, this court has never adopted this particular phrase, although it is approved by several courts as indicated above. In 30 Cyc. 1570, the measure of skill required is thus stated:

“A physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing, practising in similar localities, and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning, and to act according to his best judgment.”

Prom it all, we can safely say that the contention made by appellant’s learned counsel cannot be sustained. There should be no limiting to the local vicinity of the practitioner. The weight of authority is against that doctrine.

The instruction criticized is a good one under the West and Wheeler cases, supra. In the Wheeler case the skill required is: “such care and skill as is used by the average members of his profession under like conditions and circumstances.” It is likewise good under the Longan case, supra. But the point was not specially at issue in either of those three cases. It was not urged, as here. Nor was this point an issue in Grainger’s case, supra. On the whole, we are disposed to adopt ■ the rule as given in 30 Cyc., supra, which seems to have caught the judgment of our courts of appeals.

By this we do not mean to criticise the instruction in the Wheeler case, supra. The phrase “under like conditions and circumstances” is broad enough to cover “in similar communities.” [Ghere v. Zey, 128 Mo. App. 1. c. 366.] So that the instruction in the instant case is correct.

But even though the instruction was technically wrong this does not avail the defendant in this case. The plaintiff sued the defendant as a specialist in this line of operations. Her petition so avers, and her evidence so shows. The rule applicable to defendants’ case is stated thus in 30 Cyc. at page 1571.:

“A physician holding himself out as having special knowledge and skill in the treatment of particular diseases is bound to bring to the discharge of his duty to a patient employing him as such specialist, not merely the average degree of skill possessed by general practitioners, but that special degree of skill and knowledge possessed by physicians who are specialists in the treatment of such disease, in the light of the present state of scientific knowledge.”

The instruction complained of imposed a lesser degree of skill than was required of him as a specialist in this class of operations. The petition avers: “That he represented to the plaintiff that he was specially skilled in the performance of such operations, having performed five hundred such operations.”

The proof accorded with the averment of the petition. Having been given an instruction requiring a lesser degree of skill, the defendant is in no position to complain.

III. A more serious question is raised on the instruction as to the measure of damages. This instruction (in material parts) reads:

“If you find for plaintiff under the other instructions given because of the hole cut, punctured or torn in the bladder (if you find that said bladder was so cut, punctured or torn), and the loss of the left ureter and left kidney (if you find that ureter and kidney were lost), or because of either, theu you will assess the damages as follows:

“First. In such sum as you find will be reasonable compensation to her for the mental and physical pain and suffering you find she has endured, if any, and that you believe she will in the future endure, if any, as a result thereof, including what suffering she endured, if any, or may endure in the future, if any, in necessary operations she has had performed, or may hereafter he required to have performed, as a result of the negligence of the defendant (if you find he was negligent under the other instructions given), and including any permanent impairment or disability, if any, to plaintiff that you may believe will follow, and directly caused thereby.

“Second. In such sum as you find from the evidence will compensate plaintiff for money, if any, she has reasonably and necessarily expended, or expenses, if any, she has reasonably and necessarily incurred for medicines, nurses, railroad fares, hotel, hospitals, and surgeons’ fees in endeavoring to remedy her physical condition which you find resulted from the negligence of the defendant (if you find he was negligent under the other instructions given you), if you find defendant liable under the other instructions given.”

The italicized portions are the portions criticized. Of these in order. A clear statement of the rule is made by Black, P. J. (who always expressed his ideas clearly), in Barr v. City of Kansas, 121 Mo. l. c. 30. Judge Black said:

“The plaintiff, in these personal injury cases, may recover damages suffered up to the date of the verdict, and also such damages as will be suffered in the future, but no allowance for future damages should be made, except for such as it is reasonably certain will result from the original injury. [2 Shear. & Red. on Neg. (4 Ed.) sec. 743.] The question whether future damages will, with reasonable certainty, flow from the injury is one for the jury. But it does not follow that the witness must be interrogated in language which would be proper and appropriate in an instruction. The object of the examination is to get the opinions of persons competent to express an opinion on the subject, and the different shades of opinion which the physicians may entertain, leaving it to the jury to say whether future damages are reasonably certain. Here there was evidence that the plaintiff received severe and permanent injuries to the spine and womb. In such cases the most that any physicians can say as to the effect of the injuries on the life of the injured person, however experienced or learned in his profession, is to give his opinion as to the probable consequences. An opinion being expressed, it becomes a proper subject for cross-examination, and in the end it is for the jury to determine the question as to the degree of certainty.”

The reasonable certainty of future sufferings must be determined by the jury, is the rule here announced. Of course if there is no evidence upon which to submit this question to this jury, it should not have been submitted. So in this case the real matter for consideration is as to whether or not there was sufficient evidence to submit the question of future sufferings, and the question of future sufferings from a future operation. As to future sufferings from what had been done, up to the date of trial there is no question. There was sufficient evidence for the submission of that matter. But it is urged that the evidence was insufficient upon the proposition of there being a reasonable certainty of a future operation, to include the future sufferings upon the occurrence of that operation. Upon this question counsel for appellant quotes from one doctor, but omits a part of his testimony. He also omits material testimony of another. The future operation referred to in the instruction was the one for the removal of the dead kidney. As to this Dr. Caulk, among other things, said:

“Q. What might result from the present condition of that left kidney? A. Infection.
“Q. And if infection should result would it be necessary that she have an operation to have the kidney removed from the body? A. Chances are she would. ’ ’
Upon the same question Dr. Judd, among other things, said:
“Q. The connection between the kidney and the bladder is called the ureter? A. Ureter; yes, sir.
“Q. If that connection is in any way destroyed, Avhat is the result upon the kidney? A. The kidney dies.
“Q. It loses its function? A. Yes.
“Q. Is it necessary to have it removed if it is dead? A. Not necessarily.
“Q. A patient may live with a dead kidney? A. Yes, sir.
“Q. Would it be advisable to have it removed? A. Not unless it was making trouble.
“Q. Would it be liable to make trouble? A. I presume about fifty per cent of the dead kidneys make trouble.
“Q. That requires an operation? A. Yes, sir.
“Q. It is what you call a major operation, is it not? A. Yes, sir.
“Q. That would entail expense and pain and discomfort and all that to the patient?”

This evidence sufficed to allow the question to be submitted to the jury. For aught AAe knoAv the jury may have made no award to plaintiff upon these matters. If there Avas sufficient evidence upon which to submit the matters, then it was a question for the jury. We rule that there was sufficient evidence.

But appellant urges that although there might be evidence upon which to submit to the jury the question of the reasonable certainty” of the future operation and suffering consequent thereupon, yet this instruction as to “future sufferings” uses the word “may” throughout. Our courts have continuously criticism the use of this word, but have never made the criticism so strong as to base a revversal thereon. [See Reynolds v. Transit Co., 189 Mo. l. c. 421; Dean v. Railroad, 199 Mo. l. c. 395, and cases cited.] Personally I have thought these criticisms just. [Garard v. Coal & Coke Co., 207 Mo. l. c. 257.]

The trouble with the use of the word “may” in such connections is that the jury might give to it the meaning of “bare possibility” instead of “reasonably certain.” But this court has never reversed for the use of that word. Instructions as to future sufferings and damages should, in some appropriate way carry the idea “reasonable certainty.” However, we have usually taken the whole instruction, and if the word “may” as used in the context does not appear positively misleading, we have said that it was harmless.

The present instruction says: “In such sum as you find will be reasonable compensation to her for the mental and physical pain and suffering you find she has endured, if any, and that you believe she will in the future endure, if any, as a result thereof.” Note the use of the word “will” as to future pain and sufferings. So that when the whole instruction is read, we do not feel that we should reverse the case on account thereof, in view of our previous rulings.

It is next insisted that the inclusion of the phrase “and surgeons’ fees” in the second paragraph of the instruction was error.- Appellant urges that this refers to the fees at Mayo’s Sanitarium, Rochester, Minn., and that there was no evidence as to their value. It is true that there is no evidence as to the value of these services. It was openly stated by plaintiff that she had not paid for the operations at Mayo’s and had not received their bills therefor. She also stated that she had not paid Dr. Ernst for the X-ray picture, nor Dr. Caulk for his services. The plaintiff had a list of items that she had paid, and receipts for most payments, as is indicated by the evidence. After she spoke of the doctors whose hills she did not have, she gave the following testimony:

“Q. Leaving out the hill of the Mayos and leaving out the bill of Dr. Caulk, which you say you have not received, and Dr. Ernst — that is for the X-ray? A. Yes, sir.
“Q. Just leaving those aside, tell the jury what your other items of expense were? A. Well, besides the .Mayos bill—
“Q. Well, just leave the Mayos hill out of consideration, and leave Dr. Caulk’s and Dr. Ernst’s hills out. A. Well, these others are $1690.
“Q. Well, give the items there, Miss Krinard? Mr. Gentry wants you to give the items of that. A. Well, I am afraid I haven’t those, Mr. Thompson.
“Q. Have you the items? A. I have not. These are all the receipts and these are things I have no receipts for. You see, I have no receipt for that (indicating papers). No, Mr. Thompson,-1 haven’t those here.
“ Q. Well, you have down here ‘ Drugs — prescriptions, $25.50.’ A. That is just what is on that paper; I have no receipt for, you understand.
“Q. And you have ‘Incidentals.’ What do you mean by that? A. Those are expenses that came up during my illness that my people paid, don’t you know.
“Q. You have that as $75? A. Yes.
Q. Well, can’t you tell us what that is any more definitely than that? A. Well, it is very hard to say. They got me everything for my comfort. I had to buy cotton, I don’t know how many dollars’ worth of cotton that it was. I had fifteen or twenty dollars’ worth of cotton. And besides I had to buy urinal vessels and many, many things that were necessary.
“Q. You have here, ‘Nursing $90.’ What was that for? A. I brought that in for this reason: My sister who waited upon me was losing her time at the office. Her time was worth twice more than that. She stayed with me, the only sister I had with me at the time that waited on me, and she did the nursing, saved a nurse, and so I put down $90 for nursing.
“Q. Over what period of time was that? A. For the four months.
“Q. ‘Transportation, board and room at Rochester $374.95.’ Is that correct? A. Yes, that is correct.
“Q.' By ‘transportation’ you mean your railroad ticket? A. Yes. I kept track of every cent to have it just right.
“Q. ‘St. Mary’s Hospital.’ What hospital is that? A. That is the hospital at Rochester.
“Q. ‘$66.’ Is that what you paid-them? A. Yes, sir, three weeks’ board.
“Q. And you have here, ‘Use of operating room $5. What was that? A. That was when I was taken there for one of the operations — the second operation — I was taken to the operating room.
“Q. That is just for that one operation? A. Yes, sir, just for that one operation.
“Mr. Gentry: “I don’t believe I heard the details of that examination and I will waive further details of it. Just let her go on with her statement of the total amount she paid.
“Witness: Well, everything is there.
“Mr. Thompson: ' Q. You have kept an accurate account of your expenses? A. Yes, sir. I have receipts for all the others, but I simply put those down. Here are the receipts to show for everything except those, I haven’t the receipts for those.”

It clearly appears, from other testimony that Dr. Bartlett examined the plaintiff and Dr. Raines treated her, after defendant’s operations, and before she went to Mayos’ Sanitarium. She said that she had paid all her expenses, except Ernst, Caulk and Mayos. She had the items before her, and was being questioned in detail about each, when counsel for defendant waived the details and asked that she state it in a lump sum, which she did as $1690. In these items were at least two physicians and .surgeons — Rains and Barlett. This was sufficient to justify the inclusion of the phrase objected to by defendant now.

In addition to this, it is clear that the counsel for the plaintiff made it clear to the jury that the hills of Ernst, Caulk and Mayos were not to he considered. The specific statement in the record makes it clear that no jury would consider those items, when plaintiff had been directed to omit them, „ because she did not have them.

On the whole this portion of the instruction is good, under the evidence. From it all, it follows that the judgment should he affirmed, and it is so ordered.

All concur.


author: Richardson, Judge,

text:
    The State, Appellant, v. Nelson et al., Respondents.
    1. A justice of a county court is not authorized to let to hail a person indicted for a bailable offence unless the indictment is pending in his county.

      Appeal from St. Clair Circuit Court.

      Ewing, (attorney general,) for the State.

      Wright, for respondents.
    I. The recognizance is void and the demurrer was properly sustained. The indictment was for a felony and was pending in the St. Clair circuit court, and a justice of the county court of Dallas county had no right to let the prisoner to bail. (State v. Ramsey, 23 Mo. 327.)
   Richardson, Judge,

delivered the opinion of the court.

The defendant Nelson was indicted in the circuit court of St. Charles county for a felonious assault. The writ was issued to the sheriff of Dallas county, where the defendant was arrested and let to bail by a justice of the county court of the latter county.

A recognizance is void if not taken by a competent court or officer ; (26 Mo. 213 ;) and the only question in this case is whether a justice of the county court can let to bail a defendant indicted for a bailable offence unless the indictment is pending in his county. The statute provides (R. C. 1855, p. 1179, § 33) that “where the indictment is for a bailable offence, the defendant may be let to bail by the court in which such indictment is pending, or, if such court be not sitting, by the judge thereof, or by any judge or justice of the county court of the county in which the indictment is pending.” “ Where the indictment is for a misdemeanor the sheriff may himself admit the defendant to bail,” &c., (§ 34,) but “ no court or officer other than those specified in the last two sections shall let to bail any person indicted for any offence.” (§ 35.) In our opinion the recognizance was void and the demurrer was properly sustained to the scire facias.

Judge Scott concurring, the judgment will be affirmed. Judge Napton absent.


author: Scott, Judge,

text:
    The State, Respondent, v. Andrews, Appellant.
    1. The act regulating dram-shops, approved December 13, 1855, (E. C. 1855, p. 683_) and the act to tax and license merchants, approved December 11, 1855 (E. C. 1855, p. 1077, § 22,) did not affect the validity of an unexpired grocer’s license granted previous to May 1, 1856.
    2. The revised code ot 1855 repealed the third section of the aet of March 25, 1845, (E. C. 1845, p. 542); consequently a grocer, under an unexpired license granted previous to May 1, 1856, might permit intoxicating liquor sold by him after May 1, 1856, to be drank at a place under his control.

      Appeal from Polk Circuit Court.

    Wright, for appellant.
    I. The court erred in permitting the State to give evidence of a selling in less quantity than a quart and by the drink. (State v. Arbogast, 24 Mo. 368.)
    II. The court gaye improper instructions on the part of the State and refused proper instructions asked by the defendant. There was no law at the time the indictment was found, nor at the time the defendant sold the liquor by the quart, prohibiting the seller from permitting it to be drank at a place under his control.

      Ewing, (attorney general,) for the State.
    I. Evidence of sale in less quantities than a quart was properly admitted because the offence consisted in a sale of any quantity and permitting the same to be drank at a place under defendant’s control. (Groceries and Dram-shops, R. C. 1845, p. 542; State v. Cooper, 16 Mo. 552; Chitty Crim. Law, 295 ; 1 Greenl. § 63, 65 ; 2 Russell, 791-2.)
    II. The. grocer’s license in evidence was issued under the act of 1853, (Sess. Acts, 1853, p. Ill,) to continue for one year. The indictment was therefore properly framed under the act of 1845, and evidence as to permitting the liquor to be drank at a place under defendant’s control was competent and relevant. (State v. Andrews, 26 Mo. 174.)
   Scott, Judge,

delivered the opinion of the court.

On the 1st of November, 1855, the defendant, in pursuance to the provisions of the act of 1845 concerning groceries and dram-shops and the amendatory act of 1853 (Sess. Acts, 1853, p. Ill) obtained a license as a grocer. By the second section of the act of 1845, a grocer was defined to be a person permitted by law to sell goods, wares, merchandise and intoxicating liquor in any quantity not less than a quart; and his license continued in force one year. The third section of the act of 1845 concerning groceries and dram-shops, prohibited any grocer from selling intoxicating liquors in a less quantity than one quart, and from suffering them, when sold by him, to be drank at his grocery or at any place under his control. The revised code of 1855 took effect May 1, 1866. By the dram-shop law contained in that code it was enacted, that no person shall directly or indirectly sell intoxicating liquors in any quantity less than one gallon, without taking out a license as a dram-shop keeper. In the case of the State v. Andrews, 26 Mo. 172, it was held that this last provision did not affect licences obtained under the acts of 1845 and ’58, which had not expired.

The defendant was indicted for having sold a quart of whisky in June, 1856, and permitting it to be drank at a place under his control without a license for such sale. The evidence sustained the charge as to the selling and permitting it to be drank at a place under his control. It will from this be seen that at the time of sale the defendant’s license as a grocer was in force.

When the revised code of 1855 took effect, the laws of the code of 1845 were repealed and with them the third section of the act concerning groceries and dram-shops. Now it is maintained for.the State that, although the code of 1845 was repealed on the 1st of May, 1856, yet, as to the licenses granted under that code and continuing in force after its repeal, the third section of the act of 1845, above cited, continued in force so as to punish grocers dealing in virtue of those licenses for a violation of it. The legislature could not revoke a license which had been sold and paid for, but they could repeal a statute which punished a violation of the law under which it had been granted. The argument is founded on the idea that the third section of the act of 1845 was a part of and so inseparably connected with the license, that the license would give that section vitality so long as it continued in force. The second section of the act of 1845 defined a grocer as has been stated. The third section was separate from and independent of the second section. It was as though it had been placed in another act. If the third section had been placed in the act concerning crimes, and that act had been repealed, could a grocer have been punished for a violation of it ? Can it make a difference that it is placed in the same act which grants the license ? If one purchases from the legislature the privilege of carrying on a business for a stated term, and at the time of the purchase there is a law regulating the exercise of the privilege and making the abuse of it penal, if that law is repealed whilst the right to exercise the privilege continues, how can its abuse be punished after the repeal of the law ?

I do not see how the indictment in this case could reach the offence of suffering liquor to be drank at the place of sale or other place under the control of the grocer. That is not the offence set forth in the indictment. The charge is for selling a quart of whisky and permitting it to be drank at a place under the control of the defendant without having a license authorizing the sale of said liquor. Under such an indictment, if a license to sell is produced, is it not an answer to the charge ? It is obvious that where the offence intended to be punished is only the suffering the liquor to be drank at the place of sale, the indictment must be differently framed from one charging a sale without a license.

Reversed;

Judge Richardson concurs. Judge Napton absent.


text:
    The State, Defendant in Error, v. Andrews, Plaintiff in Error.
    1. Under an indictment, founded on the act, approved December 13, 1855, regulating dram-shops, (R. C. 1855, p. 682,) charging that the defendant unlawfully sold a quantity of spirituous liquor, to-wit, one pint of whisky, without having a dram-shop keeper’s license or any other authority for that purpose; it might be shown that the defendant sold a quantity of whisky less than a pint; it would not be a fatal variance.

      Error to Polk Circuit Court.

      Wright, for plaintiff in error.
    There was a variance in the proof and allegation. The indictment in this case is similar to the indictment in the case of the State v. Arbogast, 24 Mo. 363.

      Ewing, (attorney general,) for the State.
    The offence consists in selling in any quantity less than a gallon without a license. It is not necessary to prove the exact quantity as charged. (State v. Cooper, 16 Mo. 552.) The circumstance which in point of law is essential to the offence is a sale in any quantity less than a gallon, and if the proof corresponds to the allegation in this respect, it will suffice. (1 Ohitty Or. Law, p. 293; 2 Russell, 791-2, 788-9.)
   Richardson, Judge,

delivered the opinion of the court.

The indictment charges that the defendant unlawfully sold a quantity of spirituous liquor, to-wit, one pint of whisky, without having a dram-shop keeper’s license or any other authority for that purpose. The proof was that the defendant sold less than a half-pint of whisky. It was objected that there was a fatal variance, and that a conviction could only be had on proof that the defendant sold the exact quantity stated in the indictment.

The first section qf the dram-shop act (R. C. 1855, p. 683) prohibits any person from selling intoxicating liquors in any quantity less than one gallon without taking out a license as a dram-shop keeper. It is an offence to sell any quantity less than a gallon, but the exact quantity is not material; (State v. Cooper, 16 Mo. 551;) and as a general rule an indictment will be sustained “ if the proofs correspond with the allegations in respect of those facts and circumstances which are in point of law essential to the charge.” (1 Chitty Crim. Law, 293.)

In the case of the State v. Arbogast, 24 Mo. 363, the defendant was charged with selling intoxicating liquors in a quantity-than one quart, to-wit, one half pint of whisky. The circuit court quashed the indictment, and the only question before this court and the only one decided was whether the indictment was good. The indictment was held to be sufficient, which reversed the judgment, and the observations in the opinion as to the kind of evidence which would be required to support the indictment were foreign to the only question really decided or before the court.

The judgment will be affirmed ;

Judge Scott concurring. Judge Napton absent.


text:
    The State, Respondent, v. Andrews, Appellant.
    1.State v. Andrews, ante, p. 14, affirmed.

      Appeal from Polk Circuit Court.

   Scott, Judge,

delivered the opinion of the court.

This case is like that of State v. Andrews at this term, in

which I wrote the opinion. Reversed;

Judge Richardson concurs. Judge Napton absent.


author: Richakdson, Judge,

text:
    Cravens et al., Appellants, v. Faulconer et al., Respondents.
    1. It is not necessary, in order to give validity to a will, that the testator should actually sign the same in the presence of the attesting witnesses.
    2. The attesting witnesses must subscribe their names to the will in the presence of the testator; but it is not necessary that they should subscribe in the presence of each other.
    3. In a statutory proceeding to contest the validity of a will, the burden of proof rests upon the defendants; consequently they have the right to open and close the case to the jury.

      Appeal from Clinton Circuit Court.

      Adams, for appellants.
    I. Under our statute of wills, the subscribing witnesses must sign at the time the will is signed by the testator. (R. C. 1855, tit. Wills, § 4,18,19, 20, 80 and 33.)

      II. Even if the witnesses could attest or sign the will at a subsequent time upon an acknowledgment by the testator that he had signed it as his will, still the law requires that the witnesses themselves should sign at the same time; for they are not only to attest the corporal act of execution by the testator, but must attest his soundness of mind at the time. (R. C. 1855, tit. Wills, § 4, 18, 30 and 33 ; Withington v. Withington, 7 Mo. 589; Walker v. Walker, 2 Scam. 294.)
    III. But whether the witnesses can sign at separate times or not, still the respondents were bound to call two of the subscribing witnesses, if to be had, and prove by them that the testator was of a sound mind when he signed the will, and therefore the second instruction asked by the appellants was improperly refused. (R. C. 1855, tit. Wills, § 4, 18, 19, 20, 30 and 33 ; Withington v. Withington, 7 Mo. 589 ; Heyward v. Hazard, 1 Bay, 335 ; 2 Scam. 294.)
    IY. The appellants were the plaintiffs below, and they had the right to open and conclude the argument to the jury. This is the universal practice, and it was error in the court to refuse them this privilege. It gave an undue advantage to the respondents to which they were not entitled.

      Hall, for respondents.
    I. It is not necessary that the witnesses should attest the will at the time the testator signs it, nor is it necessary that they should attest it at the same time. (1 Jarman on Wills,-115 ; 2 Greenl. Ev. \ 676 ; 4 Kent, 580; 3 G-reenl. 59 ; R. C. 1855, p. 1567, \ 6.) The second instruction asked by plaintiffs was properly refused. It is based on the supposition that both witnesses must attest the will at the time it is signed. The third instruction was also properly refused.
    II. The defendants were properly permitted to open and close. The issue before the jury was “ whether the writing-produced was the will of the testator or not.” That is the issue and the only issue allowed by the statute in cases of this sort. The defendants affirmed: the plaintiffs denied. (1 G-reenl. Ev. § 77 ; Hawkins y. Simmes, 13 B. Mon. 269; Rogers y. Thomas, 1 B. Mon. § 30 ; Act concerning Wills," R. 0. p. 1571, 1572.) Even if the court below erred in awarding the opening and closing the case to the defendants, it is not such an error as this court will notice. (Wade y. Scott, 7 Mo. 515.)
   Richakdson, Judge,

delivered the opinion of the court.

This was a proceeding to contest the validity of the will of Nelson Eaulconer, and the only questions in the case are, whether the testator must actually sign his will in the presence of the attesting witnesses, and whether it is necessary for the witnesses to subscribe their names to the will in the presence of each other.

The fourth section of our statute of wills directs that “ every will shall be in writing, signed by the testator, or by some person by his direction in his presence; and shall be attested by two or more competent witnesses subscribing tlicir names to the will in the presence of the testator and it is almost a transcript of the English statute of 29 Char. II, which requires all devises and bequests of land to be in writing and signed by the testator or by some person in his presence and by his express direction, and to be attested and subscribed in the presence of the devisor by three or four witnesses. It is manifest that the provision of our act in question was borrowed from the British statute, which has so often been under the consideration of their courts that it has become well settled by a long continued and uniform construction, which we can not disregard. The witnesses must subscribe their nanjes in the presence of the testator in order that they may not impose a different will on him, but it is not necessary that they shall attest the very act and factum of signing by the testator. Though he must do some act declaring it to be his will, no particular form of words is required; and it is uniformly held that it is not necessary that the testator shall actually sign his name to the will in the presence of the attesting witnesses; but the acknowledg-meiit by the testator that the name signed to the instrument is his. or that the paper is his will, is sufficient. (1 Jarman on Wills, 72; 1 Powell on Devises, 83 ; 4 Kent, 516; 2 Greenl. Ev. § 676.)

It was once supposed that the acknowledgment by the testator must take place in the simultaneous presence of all the witnesses, but it has long since been decided and uniformly held in England, until the statute of 1 Yict. and by the American courts in construing similar provisions to ours, that it is not necessary to the due execution of a will that all the attesting witnesses shall subscribe their names at the same time or in the presence of each other. (1 Jarman on Wills, 72 ; Powell on Devises, 110 ; 4 Kent 516 ; 2 Greenl. Ev. § 676; Deney v. Deney, 1 Metc. 342.) It is the business of the subscribing witnesses not merely to attest the corporal act of signing by the testator, but to “ try, judge and determine whether the testator is compos to sign and though the heir has the right to have the sanity of the testator proved by all the witnesses whom the statute has placed about his ancestor, it has never been held that the witnesses must subscribe in the presence of each other. The case in 2 Scam. 294, cited by the plaintiffs, is not in point,-for it depends on the statute o£> Illinois, which is essentially different from ours.

The eighteenth section of our statute, cited by the plaintiffs to support their view, in our opinion warrants a contrary inference. The seventeenth section provides, that if any witness shall be prevented by sickness from attending at the time any will may be produced for probate, or resides out of the state or more than forty miles from the place where the will is to be proved, the court or clerk shall issue a commission directed to any judge, &c., authorizing him to take and certify the attestation of such witness. And the eighteenth section prescribes what the witness shall prove, namely, that the testator signed the writing annexed to the commission as his last will, or that some other person signed it by his direction and in bis presence; that he was of sound mind, and that the witness subscribed his name thereto in the presence of the testator. It is not required to be proved that the witness subscribed his name in the presence of the other witnesses ; and if the testimony of each witness is taken separately under the directions of the seventeenth section, and proves no more than is required by the eighteenth, a will would be established though it did not appear from the testimony of either of them that all of them signed at the same time, or in the presence of each other.

The only issue in the case under the thirtieth section of the statute was whether the writing produced was the will of the testator or not, and as the onus was on the defendants, they had the right to open and close the case. (1 Greenl. Ev. § 77.)

Judge Scott concurring, the judgment will be affirmed. Judge Napton absent.