author: BLAIR, C.:

text:
    CLAUDE H. LYONS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    December 6, 1913.
    1. LAW OF FORUM: Injury in Kansas: Trial in Missouri: Laws of Kansas not Pleaded nor Proved: Missouri Laws to be Applied. .In an action in Missouri to recover damages for personal injuries suffered in Kansas, the laws of Missouri are to be applied when the laws of Kansas are neither pleaded nor proved.
    2. NEGLIGENCE: Humanitarian Doctrine: Collision with Street Car. Where plaintiff was injured by a collision between his ' buggy and a street car at a crossing, and the motorman testified, in substance, that he saw the horse before the plaintiff could have seen the car and that he realized; from the horse’s speed, that a collision was imminent, and where there is evidence also that the motorman could have seen, and, in the exercise of reasonable care, ought to have seen the horse before he actually did see him but that he was not keeping his eye upon the track, having turned to look into the car, and where there was evidence too that he could safely have stopped the car after reaching the point from which he says he first saw the horse and before reaching the point of collision, there was no error in submitting the case to the jury on the humanitarian theory.
    3. -: -: -: Instructions. Where plaintiff’s first and second instructions contain a correct announcement of the humanitarian doctrine, the defendant is in no position to complain because of their conflict with instructions given at its instance on the subject of contributory negligence which ignored the humanitarian doctrine.
    4.,-: -: Witness: Speed of Car. Where a witness testified that he had frequently ridden in street cars, noticing their speed, and had had occasion to estimate it at times, he was qualified to testify as to the speed of a street car which struck a buggy he was driving.
    5. -: —-: -: Stopping Car: Qualification as Expert. Where a witness at one time had been in defendant’s employ as a motorman and conductor for more than a year and was familiar with cars of the class to which the one which injured plaintiff belonged, had operated cars of that class, knew their equipment and the methods of stopping them, had also seen the tracks at the place where the accident occurred, and had been over the curve there several times and knew there was a grade at that point, there was no error in permitting him to testify respecting the distance within which the car could have been stopped.
    6. EVIDENCE: Hypothetical Questions. Hypothetical questions asked of the physicians who treated plaintiff and of the surgeon who operated on him held correct.
    7. —-: Of Examining Physician. The petition alleges that plaintiff’s left kidney was crushed and that he was otherwise injured internally. There was evidence that the condition of the kidney, as disclosed by an operation, was probably due to traumatism resulting in a “fracturing in to the urinary or secreting parts of the kidney” followed by a leakage into the fatty tissues surrounding the kidney, 'and that the kidney seemed to have been “fractured” or “cracked” within its covering. Held, that a doctor’s testimony as to an examination of plaintiff’s urine six weeks after the injury and one week before the operation, which disclosed an excess of blood cells, which, the witness said, meant that blood was getting into the urine, was properly admitted.

      8. -: Connecting Plaintiff’s Condition with the Injury Alleged. Where the record shows that the physicians who treated plaintiff and the surgeon who operated on him testified that the condition they discovered was due to traumatism (an injured or wounded condition) and that the injury received in the collision between the car and the buggy could, in their opinion, have caused the condition; where too there was no evidence that plaintiff had suffered any other injury which could have produced the condition and the surgeon testified that he had never known such condition to be present in a spontaneous case, i. e., a ease of disease, defendant cannot successfully contend that there was no evidence that the condition of plaintiff’s kidney was the result of the collision.
    9. NEW TRIAL: Newly Discovered Evidence. Held, that; in the facts and circumstances set out in the opinion, the trial court properly refused to grant a new trial on the ground of newly discovered evidence.
    10. JUDGMENT: Excessive: Remittitur. Plaintiff was injured by a collision between defendant’s street car and a buggy in-which he was riding. The circumstances of his injury and its results, including the “fracture” of a kidney, an operation upon it and much pain and suffering which still continue, are fully set out in the opinion. Held, that a judgment of $17,500 for pláintiff will be affirmed provided he file a remittitur to the amount of $7,500. [BOND, X, dissenting.]
    Appeal from Jackson Circuit Court. — Eon. Walter A. Powell, Judge.
    Affirmed (as modified).

      John E. Lucas and Charles N. Sadler for appellant.
    (1) The court erred in overruling the demurrer interposed at the close of plaintiff’s evidence and renewed at the close of the case on the ground that under the pleadings and the evidence there could he no recovery, (a) The evidence does not support the allegations of the petition. Plaintiff must plead and prove every fact necessary in order to entitle him to recover. R. S. 1909, sec. 1794. A general denial puts in issue every allegation in the petition. R. S. 1909, sec. 1806. In actions for personal injuries, the law of the state, where accident occurs, governs. Newlin v. Railroad, 222 Mo. 391; Chandler v. Railroad, 127 Mo. App. 34; Rahn v. Railroad, 129 Mo. App. 686. Common law not presumed to exist in Kansas. Mathieson v. Railroad, 219 Mo. 542. (b) Under the laws of Kansas, the demurrer should have been sustained, on account of plaintiff’s negligence. Mason v. Railroad, 27 Kan. 83; Railroad v. Schmidt, 67 Kan. 8; Zirlde v. Railroad, 67 Kan. 77; Railroad v. Withers, 69 Kan. 620; Railroad v. Holland, 60 Kan. 209; Lamb v. Railroad, 73 Kan. 220; Bressler v. Railroad, 86 Pac. 472; Burgess v. Railroad, 83 Kan. 497; Railroad v. Clinkenbeard, 72 Kan. 559; Dyerson v. Railroad, 74 Kan. 528; Libby v. Railroad, 77 Pac. 541; Campbell v. Railroad, 55 Kan. 536. (e) There was no evidence to justify a submission of the case to the jury, under the laws of Missouri, upon the humanitarian doctrine. McGanley v. Transit Co., 179 Mo. 583; Theobald v; Railroad, 191 Mo. 395; Riggs v. Railroad, 216 Mo. 304; Senn v. Railroad, 108 Mo. 151; Veatch v. Railroad, 129 S. W. 406; Markowitz v. Railroad, 186 Mo. 350; Grout v. Railroad, 125 Mo. App. 552; Mockowik v. Railroad, 196 Mo. 550; Graefe v. Transit Co., 224 Mo. 262; Warner v. Railroad, 178 Mo. 134; Boring v. Railroad, 194 Mo. 544; Dey v. Railroad, 140 Mo. App. 468; Hawkins v. Railroad, 135 Mo. App. 535; Cole v. Railroad, 121 Mo. App. 613; Ross v. Railroad, 125 Mo. App. 617; Bennett v. Railroad, 122 Mo. App. 710; Barnard v. Railroad, 137 Mo. App. 684; Cohn v. City, 108 Mo. 393; Roberts v. Tel. Co., 166 Mo. 371; Roenfeld v. Railroad, 180 Mo. 565; Gourley v. Railroad, 35 Mo. App. 92; Heinzle v. Railroad, 182 Mo. 554.. (d) The plaintiff was guilty of contributory negligence. Rose v. Railroad, 113 Mo. App. 605; Boyd v. Railroad, 105 Mo. 371; Kinlen v. Railroad, 216 Mo. 164. .Cases under (c), supra. (2) The court erred in giving instructions on behalf of plaintiff. Frank v. Railroad, 57 Mo. App. 186 ; Boyce v. Railroad, 120 Mo. App. 168; Davidson v. Transit Co., 211 Mo. 320; Ingles v. Railroad, 145' Mo. App. 241; Mammerberg v. Railroad, 62 Mo. App. 363; Detrick v. Railroad, 143 Mo. App. 180; Conway v. Railway, 143 S. W. 516; Rnsli v. Railroad, 157 Mo. 504; Smart v. Kansas City, 91 Mo. App. 586; Young v. Railroad, 113 Mo. App. 636. (3) The court erred in refusing to give instructions asked by defendant. Cases supra. (4) The jury disregarded the instructions of the court and the evidence in the ease. Allen v. Transit Co., 183 Mo. 432; Boyd v. Transit Co., 103 Mo. App. 303; Fleisehman v. Miller, 38 Mo. App. 177; Gessley v. Railroad, 26 Mo. App. 156. (5) The court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of plaintiff. Taylor v. Railroad, 150 Mo. 51; Glassgow v. Railroad, 191 Mo. 358; Taylor v. Railroad, 185 Mo. 255; Smart v. Kansas City, 91 Mo. App. 586; Young v. Railroad, 113 Mo. App. 636; Browning v. Railroad, 106 Mo. App. 729. (6) The verdict is excessive. Stoetzelle v. Swearingen, 90 Mo. App. 693; Taylor v. Railroad, 185 Mo. 239; Haynes v. Trenton, 108 Mo. 123; Newcomb v. Railroad, 182 Mo. 687; Stolze v. Transit Co., 188 Mo. 581; Bragg v. Railroad, 192 Mo. 331; Waddell v. Railroad, 213 Mo. 8; Briscoe v. Railroad, 222 Mo. 104; Wellman v. Railroad, 219 Mo. 126. (7) The court erred in refusing to consider affidavits of newly discovered evidence. State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 315; Folding Bed Co. v. Railroad, 148 Mo. 478. (8) The court erred in refusing to sustain the motion for new trial herein. Lehnick v. Railroad, 118 Mo. App. 616; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 336; Fugler v. Bothe, 117 Mo. 502. (9) The court erred in refusing to sustain the motion in arrest of judgment. Cases under point 1.

      John T. Barker and Sparrow, Page é Rea for respondent.
    (1) The court did not err in refusing defendant’s demurrer. Plaintiff made a strong case and is entitled to recover. Ellis v. Eailroad, 234 Mo. 657; Moon v. Transit Co., 237 Mo. 425; Childress v. Eailroad, 141 Mo. App. 667; Holden v. Eailroad, 177 Mo. 469; Eckhard v. Transit Co., 190 Mo. 618; Cytron v. Transit Co., 205 Mo. 720. (2) Plaintiff did not plead nor prove the law of Kansas, neither did defendant; therefore the case was properly tried under the laws of Missouri. Coleman v. Locksinger, 224 Mo. 14; McDonald v. Ins. Co., 154 Mo. 618; Biggie v. Eailroad, 140 S. W. 602; Bank v. Com. Co., 139 Mo. 124; Atwater v. Brokerage Co., 147 Mo. App. 447; Gimochio v. Eailroad, 155 Mo. App. 168; McManus v. Eailroad, 118 Mo. App. 566; Kollock v. Emmert, 43 Mo. App. 566; 16 Cyc. 1084; Telegraph Co. v. Crawford, 35 L. E. A. (N. S.) 930; Parrott v. Eailroad, 34 L. E. A. (N. S.) 261. (3) It was not error to permit nonexperts to testify as to the speed of trains. Moon v. ■ Transit Co., 237 Mo. 425; Ellis v. Railroad, 234 Mo. 684; Lynch v. Eailroad, 208 Mo. 1; Stotter v. Railroad, 200 Mo. 128. (4) The affidavits for- new trial were properly stricken out and their contents were not set out in the motion for new trial and they were filed more than four days after verdict and at a different term of court. Winn v. Grier, 217 Mo. 420; Carlton v. Munroe, 135 Mo. App, 172; Bunton v. Thomas, 134 Mo. App. 64; Obert v. Strube, 51 Mo. App. 621; Hesse v. Seyp, 88 Mo. 66; State v. Bowman, 161 Mo. 88; State v. McCullough, 171 Mo. 571; State v. Williams, 199 Mo. 137; State v. Nagle, 136 Mo. 50; King v. Gibson, 206 Mo. 264. (5) Plaintiff’s injuries are permanent and he will be helpless the rest of his life; the verdict is not excessive. Corby v. Telephone Co., 231 Mo. 417; Gordon v. Railroad, 222 Mo. 516; Clark v. Eailroad, 234 Mo. 396; Seullen v. Eailroad, 184 Mo. 695; Markey v. Railroad, 185 Mo. 348; Copeland v. Railroad, 175 Mo. 650; Fullerton v. Fordyce, 144 Mo. 519; The Fullerton, 167 Fed. 1; Tel. Co. v. Engler, 75 Fed. 102; Morgan v. Railroad, 95 Cal. 501; Holland v. Railroad, 18 111. App. 418; Shaw v. Railroad, 74 Mass. 45; Howe v. Railroad* 62 Minn. 71; Schultz v. Railroad, 46 N. Y. Sup. Ct. 211; Wallace v. Oil Co., 12 N. Y. Supp. 425; Tuthill v. Railroad, 30 N. Y. Supp. 959; Dorsey v. Railroad, 66 Tex. 148; Hohn v. Railroad, 1 Tex. Civ. App. 36; Grover v. Rochester, 39 Hun, 5; Fisher v. Railroad, 38 111. App. 33; Bishop v. Railroad, 48 Minn. 26; Harrold v. Railroad, 24 Hun, 184; Dooley.v. Railroad, 86 Ga. 294; Leseth v. Chicago, 43 111. 480; Collins v. Council Bluffs, 32 Iowa, 334; Alberti v. Railroad, 43 Hun, 421; Thompson v. Railroad, 64 Miss. 584; Porfert v. Railroad, 72 Tex. 344; Wilcox v. Railroad, 33 111. App. 450; Ehrman v. Railroad, 14 N. Y. Supp. 336; Roth v. Depot Co., 13 Wash. 525; Murray v. Railroad, 7 N. Y. Supp. 900; Erickson v. Railroad, 32 N. Y. Supp. 915; Woodbury v. District of Columbia, 5 Mackey, 127; Hall v. Railroad, 46 Minn. 439; Solen v. Railroad, 13 Nev. 106; Walker v. Railroad, 63 Barb. 260; Schneider v. Railroad, 15 N. Y. Supp. 556; Solarz v. Railroad, 29 N. Y. Supp. 1123; Ewing v. Railroad, 7 Tex. Civ. App. 8; Sears v. Railroad, 6 Wash. 227; Smith v. Whittier, 95 Cal. 279; Woods v. Trinity Parish, 21 D. C. 540; Friedman v. Railroad, 41 111. App. 270; Brazill v. Railroad, 78 Tex. 314. (6) Plaintiff’s instructions' properly declare the law and are more than fair to defendant and if defendant’s instructions are in conflict defendant cannot complain. Moore v. Transit Co., 193 Mo. 411; Heagy v. Lead Co., 101 Mo. App. 361; Hunt v. Lead Co., 104 Mo. App. 377; Weston v. Mining Co., 105 Mo. App. 702; Crawford v. Dappler, 120 Mo. 362; Anderson v. Terminal Co., 161 Mo. 411; Ellis v. Railroad, 234 Mo. 679; Berry v. Railroad, 214 Mo. 604. (7) Plaintiff’s instructions are practically copiecl word for word from the following eases approved by this court; Ellis v. Railroad, 234 Mo. 657; Cytron v. Transit Co., 205 Mo. 720 ; Moon v. Transit Co., 237 Mo. 425; Eckhard v. Transit Co., 190 Mo. 281; Eppstein v. Railroad, 197 Mo. 736-. (8) The verdict was for the right party and^ should be affirmed. Where-apparent justice has been done appellate courts will not interfere. Sec. 2082, R. S. 1909; Freeland v. Williamson, 220 Mo. 217; Stumpe v. Kopp, 201 Mo. 412; Mann v. Doer, 222 Mo. 54; Logan v. Field, 192 Mo. 54; O’Keefe v. Railroad, 124 Mo. App. 613; Cross v. Gould, 131 Mo. App-. 585-.
   BLAIR, C.:

This is an action for damages for injuries plaintiff alleges he received when one of defendant’s cars collided, at the crossing of Fifth street and Haskell avenue, Kansas City, Kansas, with a buggy in which plaintiff and his brother-in-law were riding. The negligence charged in the petition is (1) negligent, careless and reckless speed; (2) a negligent, careless and reckless- failure to give warning of the car’s approach to the crossing; and (3) that defendant’s servants in charge of the car did not employ proper care to either slacken speed or stop the car after they saw, or by the exercise of reasonable care could have seen, plaintiff on said crossing. Then follow allegations as to the injuries suffered. The answer was a general denial. There was a judgment plaintiff for $17,500, and defendant appealed.

I. It is contended that since Kansas was the scene' of the injury there was no cause of action unless the laws of Kansas gave it, and that, as a consequence, pleading and proof of the law of Kansas giving a cause of action in the circumstances was an indispensable prerequisite to a recovery. No law of Kansas was pleaded or proved by either party.

In Thompson v. Railroad, 243 Mo. l. c. 349, plaintiff sought damages for personal injuries received in Arkansas, and this court unhesitatingly held that since' “no statute or other law of Arkansas” was pleaded, the applieatory law was that of the forum; and in Biggie v. Railroad, 159 Mo. App. l. c. 351, the rule was stated to.be that in a case of this kind “in the absence of a showing to the contrary, it will be presumed the laws of a sister State are the same as our own.” There is a difference between these two principles (Cherry v. Sprague, 187 Mass. 113; 67 L. R. A. 33 and note), but it is not of a character such as materially to affect the qiiestion raised in this case, and need not be discussed. Under both views the trial court was right in trying the case under our law.

The cases cited by defendant’s counsel (Mathieson v. Railroad, 219 Mo. l. c. 542, and Newlin v. Railroad, 222 Mo. l. c. 391, 392) were both actions founded on Kansas statutes, pleaded and proved, and must be read in the light of that fact. So read they furnish no support for the present contention. In the former the court, after saying the action was on the statute and a change of front would not be permitted, further held that the common law would not be presumed to be in force in Kansas. In doing so, however, it approvingly cited and quoted from cases in this State which lay down the rule adopted and applied in Thompson v. Railroad, supra. Properly understood that decision is no authority for saying that a plaintiff, injured in Kansas, who brings in the courts of this State an action for damages for injuries actionable under our general law of negligence, will, at the close of the trial, be turned out of court because he does not plead and prove the laws of Kansas applicable to the facts. In such case, unless defendant properly invokes the laws of the sister State, the law of Missouri is to be applied.

This conclusion renders unnecessary discussion of those assignments of error which proceed upon the assumption that the law of Kansas applies, and leaves for consideration only those rulings which are asserted to be erroneous when judged by the law of this State. These will be considered in the subsequent paragraphs.

II. It is insisted that there was no evidence which justified the trial court in submitting the case ^ie orL the humanitarian theory. On this phase of the case there was substantial evidence of the following pertinent facts: Defendant’s double tracks are laid east and west along Haskell avenue; Fifth street runs north and south, and at the intersection of the street and avenue the latter “jogs” south to such an extent that east of Fifth street its south line is quite or almost on a line with its north line west of Fifth street; in passing eastward across Fifth street defendant’s tracks curve to the south, the curve beginning a little west of the west line of that street, to such an extent that the south or eastbound track approaches very near the curb on the south side of Haskell avenue, the sidewalk at that point being quite narrow; there is a two-story building on the southwest corner of the intersection of the street and avenue, and it and the awnings thereon as placed at the time of the accident so obstructed the vision of one coming from the south on Fifth street that he could not see defendant’s tracks for any considerable distance west of the west line of that street until he had reached a point about fifteen or sixteen feet south of the south track; west of Fifth street the tracks are laid on a very perceptible up grade, estimated as three or four per cent; the accident occurred at about 11:30 a. m.; a mist or drizzle of rain was falling but there is no evidence this was of a character to obscure the vision. Plaintiff and his brother-in-law, the latter driving, were in a one-horse buggy-traveling north along the center of Fifth street which, at this point, is sixty or sixty-five feet wide between the property lines; as the vehicle, approached the tracks its speed was slackened and its occupants listened for cars and looked both east and west but neither saw nor heard a car nor- heard any warning of one’s approach. Their view of the track west of Fifth street was obstructed by the building above referred to until the horse reached a point very near the track. Plaintiff testifies that when the vehicle reached a point where he could see to the west down Haskell avenue thirty or forty feet he looked in that direction but saw no car. At this time the horse was in five or six feet of the track and moving steadily ■toward it in a trot, and his speed is variously estimated by the witnesses at from two and one-half to ten miles per hour. At the moment the horse reached the south rail of the track or just after his front feet passed over it plaintiff and his brother-in-law, for the first time, they say, saw the car — then ten or twelve feet west of the west property line of Fifth street and thirty-five or forty feet from the horse. The car was moving at the rate of twelve or fifteen miles per hour. Plaintiff testified that at this juncture the motorman’s face was turned toward the rear of the car, in the center of which the conductor, who was the only other occupant, was standing. Hedrick, who was driving the horse, saw the car at the same moment plaintiff did and immediately attempted to turn the horse to the right so as to get him off the track but this effort was unsuccessful, and the fender of the car “picked up” the horse and the car struck the left, front wheel of the buggy and broke it, so that the axle fell, and plaintiff, who was riding upon the left side of the buggy, was brought down against the car, and the horse, buggy and occupants were dragged or carried in this position thirty or forty feet before the car was stopped. The motorman testified that he “had on a full head of power up to about the property line ’ ’ on the west side of Fifth street and that the car was moving twelve op thirteen miles per hour; that when he first saw the horse and buggy approaching the track the car was ten or twelve feet west of the west property line of Fifth street, and the horse’s head was eight or ten feet south of the track and the horse was approaching the track at the rate of eight or ten miles per hour. On cross-examination the motorman further testified as follows:

“Q. What is a blind crossing? A. Where you can’t see only to a certain extent. Q. To,that extent then it’s more dangerous than the open crossing? A. Certainly, I just said that. Q. And you, as a motorman running on that line, appreciated that fact that morning? A. Yes, sir. Q. And when you approached that crossing it was your duty as a motorman to have your ear under control, expecting to see people crossing? A. Yes, sir. Q. You knew that was your dut> that morning? A. Certainly. Q. A person approaching from the south and driving north over this railroad track, on account of the conditions which you have detailed could only see a very little distance up the track, you think, Mr. Trembley? . A. I wouldn’t know what you would call a little distance. Q. Well, just a short distance then. The building is an obstruction, isn’t it, Mr. Trembley? A. Yes, sir. Q. Now then, you are very familiar with that crossing? A. I am. Q. Now, then, when the horse’s head was about eight feet south of the track, as you told Mr. White you first saw it, the men in the buggy couldn’t see the car at all, could they, Mr. Trembley? A. Not in the position' they were in. Q.. Naturally you, on the car, could see the horse’s head first? A. Yes, sir. Q. Now, when you saw the horse’s head, going at that speed, you knew he was going to try to cross the track, didn’t you? A. No, I did not. Q. What did you think the horse was going to do? A. Well, I didn’t know. O- He was going pretty fast? A. Yes, sir. Q. Within eight feet of the track, going at the rate of speed he was going, you knew it would be very difficult to stop him after he got on the track? A. Certainly. Q. So you knew he would likely be at the crossing when you got there? A. Yes. Q'. And you knew if he was on the crossing when you got there, there would be a collision Á. Yes, sir. Q. When you were ten or twelve feet west of the property line you first discovered the horse’s head? A. Yes, sir. Q. You say ten or twelve feet west, that’s just an estimate? A. Yes, sir. Q. You are not pretending to give me the exact feet now? A. No.”

He further testified that the horse traveled to the track from the point where he first saw him in about the same time the car traveled to the point of collission from the point about thirty-five feet west thereof, from which point he first saw the horse’s head; that the occupants of the buggy could not see the car as soon as witness could see the horse and that the horse was nearly on the track before the occupants of the buggy could see the car. He said he had given the usual warnings of the car’s approach to the crossing and again sounded the gong as soon as he saw the horse, denied turning his face from the front after reaching the point twelve or fifteen feet west of the west line of Fifth street, and declared he used every effort to stop the car after he discovered plaintiff’s peril.

There was evidence that the car could have been stopped safely in twenty-five or thirty feet and that at the moment the car struck the buggy the motorman was setting the brake.

There was evidence which conflicted in several respects with that set out but it is to be disregarded in determining the question presented by the contention now being considered.

It was said in Ellis v. Metropolitan Street Railway, 234 Mo. l. c. 680, 681, in which there was evidence that the plaintiff,’apparently oblivious to danger, drove upon the track and the vehicle he was in was struck and he was killed, that the duty of the motorman “did not commence merely when the horse’s feet were actually on the south track. It commenced at such time as a prudent motorman could see that he [plaintiff]' was intent on pursuing his journey across the track, oblivious to danger from the car. Then was when he came within the danger zone, and at and after that time the motorman, whose duty it was to see him, was not entitled to supinely await the event to see if the boy would save himself. He was obliged to act on reasonable appearances, put his car under control (if not already so), slack it, if he could, and stop it if necessary and if it could be done. . . . If the conduct and actions of a party approaching a street railway track would lead a motorman of ordinary prudence to conclude that' such party was going upon the track in front of the car, the right of the motorman to act on the presumption that the person would stop before going on the track ceases.”

In the case of Holden v. Railway Co., 177 Mo. l. c. 463, 464, the facts were that the injury occurred at a busy street crossing; that plaintiff was driving east on Pine street in a one-horse stake-wagon and was moving down grade in a trot at the rate of five to seven miles per hour and when the horse was four or five feet from the track he looked and saw a ear coming rapidly about twenty-five feet away; the driver turned the horse diagonally across the street towards the north and after reaching the north crossing of Pine street, while one wheel of the wagon was on the car track, the car struck the wagon and plaintiff was injured.

In discussing the duty of the motorman in that case, this court (l. c. 470) said: “We take it, that if the motorman discovered that the vehicle was approachi'ng this crossing at a negligent rate of speed, and that he further observed that they were negligent in not looking out for the approach of the car, then, notwithstanding the negligence of the plaintiff, it was the duty of the motorman to so regulate the speed of the car, if in his power, as to avoid the infliction of any injury. In other words, the mere negligence of the plaintiff, in approaching and crossing the track, would not justify the infliction of ¿n injury, if by the exercise of reasonable care and caution, it could be avoided. The servant will not be permitted to assume that a person is aware of the approach of the car and will stop, in due time to avoid injury, and at the same time admit that he knows that .the person was not performing his duty in that respect, in ignoring the violent ringing of the bell, giving no attention or notice to the approach of the car.”

The same principle was approved in Eckhard v. Transit Co., 190 Mo. l. c. 618, 619; Moore v. Transit Co., 194 Mo. l. c. 12, 13; Powers v. Transit Co., 202 Mo. l. c. 281, and many other cases.

In view of the fact that in this case the motorman testified, in substance, that he saw the horse before the plaintiff could see the car and that he realized, from the horse’s speed, that a collision was imminent and that there is evidence he could have seen and, in the exercise of ordinary care, ought to have seen the horse before he actually did see him but that he was not keeping his eye upon the track, having turned to look into the car, and also evidence that with the appliances at hand he could safely have stopped the car after reaching the point from which he says he first saw the horse and before reaching the point of collision, there was no error in submitting the case to the jury upon the humanitarian theory.

Numerous cases are cited as supporting a contrary conclusion. An examination of them discloses that some are cases in which pedestrians stepped suddenly upon the track in front of street cars or railroad trains; in others the facts were that persons and vehicles wére negligently on the tracks, and there was no evidence they could have been seen in time for the injury to have been avoided; in others there was nothing in the manner in which the injured person approached the track to indicate he would not or could not stop before going in front of the car or train; in others the person was injured while walking on the railroad track, nothing indicating an obliviousness to danger; others turn upon the absence of any substantial evidence to show that the injury could have been avoided after the injured person’s peril was or ought to have been discovered. A detailed discussion of the eases cited is deemed unnecessary. A careful examination of them discloses that they are not opposed to the rule as above quoted and applied.

III. The first instruction for plaintiff is said to be erroneous (1) in- that in connection with the submission of the humanitarian theory, ^ court, among other things, told the jury that it was the duty of the motorman, after discovering a vehicle in danger, “to use all reasonable effort consistent with the safety of persons on board to avoid colliding with them,” and (2) in that it.does not permit the jury to consider plaintiff’s contributory negligence.

The first objection is answered by the authorities quoted in the preceding paragraph. The clause objected to correctly stated the motorman’s duty in the circumstances premised.

The second objection is argued on the theory that the instruction conflicted with certain instructions given for defendant on the subject of contributory negligence.

It is not contended (except in the feature already mentioned) plaintiff’s first and second instructions do not correctly formulate and apply the humanitarian doctrine. In fact they contain a correct announcement of it. Defendant is in no position to complain because of their conflict, if any, with instructions given at its instance on the subject of contributory negligence which ignored the humanitarian doctrine. [Ellis v. Metropolitan St. Railway, 234 Mo. l. c. 679.] It is suggested the jury disregarded these last mentioned instructions. There is nothing to indicate they were ignored except in so far as they conflicted with correct instructions given for plaintiff. To that extent they should have been ignored.

IV. (1) Another contention is that the witness Hedrick, who was driving the buggy, was erroneously permitted to testify as to the speed of the car. He testified he had frequently ridden in street cars and noticed their speed and had had occasion to estimate it at- times. Defendant’s trial counsel was tendered an opportunity to examine witness further as to his qualification and declined to do so, but objected that the witness had not “qualified as a speed expert.” There was no error in overruling this objection and permitting Hedrick ‘ to testify. [Moon v. Transit Co., 237 Mo. l. c. 431, 432.]

(2) There was no error in permitting the witness Lentz to testify respecting the distance within which the car could have been stopped. This witness • at one time had been in defendant’s employ as a motorman and conductor for more than a year and was familiar with defendant’s cars of the class to which the one which injured plaintiff belonged, had operated cars of that class, knew their equipment and the methods of stopping them; he also had seen the tracks at the place where the accident occurred, had been over the curve there several times and knew there was a grade at that point. Contrary to counsel’s contention in his brief, the hypothetical question included the fact that the car was approaching the curve at Fifth and Haskell, the fact that it was moving up grade, and the fact that rain had been falling and it was drizzling at the time. There was no error in connection with the admission of this testimony.

(3) Exception was saved to the ruling permitting hypothetical questions to be propounded to physicians offered as witnesses. No authorities are cited and objections of a rather general character are made in the brief. The physicians who had treated plaintiff’s injuries and the surgeon who operated on him were the witnesses to whom the hypothetical questions were propounded. The object of these questions was to elicit testimony as to whether the'condition of plaintiff’s left kidney could have been due to the collision with the car. The question hypothesized the facts of the accident, as .detailed by the plaintiff and his brother-in-law, and in each instance, the inquiry, in effect., was whether the conditions the witness actually discovered could have been the result of the accident. There was no error.

(4) It is urged it was error to permit Dr. De-Lamater to testify as to the results of an examination of plaintiff’s urine six weeks after the in-an<^ 0]ae week before the operation occurred. The testimony was that the examination of the urine disclosed an excess of blood cells in the urine which, the witness said, meant that blood was getting into the urine. It is insisted this testimony was not within the allegations of the petition. It was alleged that plaintiff’s left kidney was crushed and that he was “otherwise injured internally.” There was evidence that the condition of the kidney which the operation disclosed was probably due to traumatism resulting in a “fracturing in to the urinary or secreting parts of the kidney” followed by a leakage of the urine into the fatty tissues surrounding the kidney; and that the kidney seemed to have been “fractured” or “cracked” within the eap-sule or covering which incloses it. The examination •of the urine was simply one of the methods adopted which disclosed the condition of the kidney and led to the operation plaintiff underwent. The evidence was relevant to the issue whether plaintiff’s kidney was •crushed as alleged.

(5) It is also insisted that there was no evidence that the condition of plaintiff’s kidney was the result of the collision. The record shows that the physicians who treated plaintiff and the surgeon who operated upon him testified that the condition they discovered was due to traumatism (an injured or wounded condition) and that the injury received in the collision of the car and buggy, in their opinion, could have caused the condition discovered. There was no evidence plaintiff had received any other injury which could have produced the condition the surgeon found. The surgeon testified he had never known the condition he foundIte be present in a'“spontaneous case,” i. e., a case of disease. The contention is not well founded.

V. Error is assigned on the trial court’s refusal to grant a new trial on the ground of newly discovered evidence. The motion for new trial neither stated the evidence discovered nor gave the names of any witnesses nor stated the diligence used before the trial. The affidavit of counsel filed with the motion was to the effect that counsel had heard, prior to the day the motion for new trial was filed, that plaintiff had been engaged in a fight in Denver, Colorado, after he was injured and four months before the trial, but when this information first came, to counsel Ms affidavit did not disclose. It is stated, however, that he first learned on the day the motion was filed that one Tuder was an important witness and would state 'that plaintiff and. his brother had a fight in which plaintiff claimed his injury was aggravated. Tudor’s affidavit was filed. In this it was stated- affiant was told that plaintiff and his brother were figh ting and when affiant went to the room plaintiff looked pale, excited and nervous; and plaintiff and one Waddell, who was present, told affiant plaintiff’s brother was intoxicated and had attacked him, whereby plaintiff’s injuries were aggravated. Affidavits of plaintiff, his brother and Waddell were filed by plaintiff, and in all it was sltated that no altercation between plaintiff and his brother had occured, and "the physician whom Tudor swears he called to attend plaintiff made affidavit that he found plaintiff suffering from a cold and “found no marks or bruises on plaintiff or anything that would indicate he had had a fight.” Subsequently and at the succeeding term of court, - and several weeks after the trial,, affidavits as to plaintiff’s condition prior to the date of his injury were filed-. In none of these is there anything to indicate, that plaintiff’s kidney was previously affected. A motion to strike out these affidavits was immediately filed, and plaintiff filed counter-affidavits, of numerous persons tending to-show plaintiff, prior to his injury, was a strong, active, healthy man. The court struck out the affidavits at which the motion mentioned was aimed.

The facts in this connection have been fully, set out because of the earnestness of the insistence of counsel for defendant that this ground for the motion should have been sustained.

The applicable, rule has been recently discussed, and applied (King v. Gilson, 206 Mo. l. c. 278 et seq.; Winn v. Grier, 217 Mo. l. c. 461) and it is clear the ruling in this case is justifiable on the simple ground that the motion was insufficient'in so far as the ground relating to newly discovered evidence is concerned.

In addition, the court would have been fully justified in putting its ruling on the ground that the probative force of the affidavits defendant filed was so slight and that of the counter-affidavits so great that there was no reasonable probability that a different result would have been produced by any evidence the affidavits disclosed defendant could have obtained.' [Devoy v. Transit Co., 192 Mo. l. c. 218.]

VI. Finally, it is urged that ¡the verdict is excessive. In so far as the argument is directed to^ the question whether the injury to the kidney was the result of the collision with defendant’s car it need not be considered further than to say there is full and ample evidence justifying a finding against defendant on that issue and the jury found that way.

There is evidence tending to show that prior to his injury plaintiff was a strong, active man. He was thirty-seven years old and engaged in the real estate business in Kansas City. His injury did not immedi-. ately disable him but caused much pain. A few hours afterward plaintiff took to his bed where he remained for six days and nights, suffering great pain. Thereafter, for a week, he was able to go to his office for an hour or two each day though suffering considerably during this time. During ¡this week he was examined by Dr. McDonald. There was no external wound or' bruise. On June 29th, thirteen days after he was injured, plaintiff again was confined to his bed and Dr. McDonald was called. Subsequently, July 27th, Dr. DeLamater was also called into the case. He testified he found plaintiff suffering agonizing pain over the left kidney and extending down the ureter to the abdomen. On August 3rd, other treatment having failed, plaintiff was operated on by Dr. Hill. The operation was a serious one. An incision was made in the left side and the kidney exposed, “the lymphatic capsule was dissected loose” and found to he hard and compressed, and the capsule was then stripped and the interior (of the kidney) was opened and a drainage tube put in place in the kidney through, which the urine was discharged out of the back for about four .months. The operation necessitated the handling of two spinal nerves which of itself caused pain which would require 'two weeks or more to disappear. Plaintiff was in the hospital for six weeks. The operation relieved the prior particularly painful symptoms and plaintiff’s condition was considerably improved when he [eft the hospital. The result of removing the fatty tissues or capsule around the kidney was to deprive the kidney of supporit so that it hangs lower than it should and this interferes with the kidney’s function and produces pain. This condition is permanent unless corrected by another operation. From the time he left the hospital until the following January (1909) plainltiff was confined to his bed most of the time and suffered considerably. In August, 1909, a year after the operation on plaintiff, Dr. Willetts examined him and found him “exceedingly nervous, bordering on a state of melancholia almost, a nervous exhaustion; very much depressed, very weak, a good deal of pain in the left side, radiating forward over the abdomen. ’ ’ In October, 1909, plaintiff went Ito Denver and returned suffering much pain and was nervous and troubled with insomnia. Dr. Willetts visited plaintiff frequently during the winter, every day for a time, and says he suffered a great deal of pain, was nervous and much depressed, and for only a few weeks before the trial (February, 1910) was able to be out much. Plaintiff’s left leg still swells and pains him, and walking is painful. His condition was still painful at the time of the trial. Physicians testified his injury was of a permanent character.

The trial court heard the evidence and saw the plaintiff at the trial and approved this verdict. That court was then in a better position to judge of the fairness of the verdict than this court can be now. [Gordon v. Railroad, 222 Mo. l. c. 539.] This is particularly true because of the nature of plaintiff’s injury and the character of its effect upon him. There was ample evidence plaintiff had suffered a great deal of physical pain and mental anguish and that he was doomed to further suffering. One of his vital organs has been permanently and painfully injured, and after a serious operation by a skilled and experienced surgeon that organ yet fails to perform properly its natural function, with the result that plaintiff suffers considerable pain which he must endure in the future also unless he submits to a second operation and his kidney is restored to its proper position. This alternative itself is a trying one and one which is to be considered in determining the question as to the excessiveness of the verdict. Plaintiff’s left leg is also in such a condition that it pains him when he walks. He has been weakened, generally, by his injuries and sufferings, and there is testimony (his own and that of his physician) that opiates and bromides are frequently, if not usually, necessary to induce sleep. His nervous system has been affected until he has been upon the verge of melancholia. -It is difficult for this court to say that such injuries and suffering in the past and the pain the future threatens are more than compensated by this verdict — particularly in view of the character of plaintiff’s injuries and the fact that the verdict was returned by a jury and approved by a trial judge who saw the plaintiff in court and heard the witnesses. In some eases the injuries are of a character that does not give trial courts much advantage in determining the justness of the amount the jury allows. In such cases this court has, more freely than in others, reduced judgments in its opinion too large. In this case the plaintiff’s appearance at the trial is an element of much greater importance than it could well be in ease of the loss of a limb: and like injuries. In this case plaintiff’s disability resulting from his injury, while not complete, is very considerable and his suffering has been great, and, it seems, will continue at least until another serious operation is performed which may effect his recovery and might, it is reasonably inferable, result in his death. With a dilemma of this kind before him and injury and suffering of the kind described behind him, it would, on this record, be venturing a good deal to hold that the jury and trial court with the plaintiff before them went materially astray in the sum they allowed plaintiff. The judgment should be affirmed.

Brown, C., concurs. ■

PER CURIAM.

In the foregoing opinion of Blair, C., Bond, J., concurs; Woodson, P. J., and Lamm and Graves, JJ., are of the opinion that the judgment is excessive in the sum of $7500, and that it should be reduced to the sum of $10,000. A majority of the court being of the opinion that the judgment should be reduced to ten thousand dollars, to bear date of the original judgment, it is, therefore, ordered that if the plaintiff will, within ten days from this date, remit the sum of seven thousand and five hundred dollars as of the date of the original judgment, then the judgment after such remittance will be affirmed in the sum of ten thousand dollars as and of the date of the original judgment; otherwise the judgment is reversed and cause remanded.

Bond, J., dissents from this disposition of the case.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    WILLIAM HOMER FERRELL v. JENNIE FERRELL et al., Appellants.
    Division One,
    December 6, 1913.
    1. CONTRACTS: Construction: Partition of Lands: Arbitration: Specific Performance. An agreement to meet in the future and partition lands, or, in the event of failure so to partition, to select three disinterested men to “act as arbitrators and appraise the value of each acre,” is not a contract of partition, nor is it, in the alternative, a contract to submit the partition of the land to arbitration, and it is not an agreement of which specific performance can be enforced.
    2. -: Agreement to Name Arbitrators: Cannot be Specifically Enforced. An agreement to name arbitrators cannot be specifically enforced.
    3. ACTIONS: Submission to Arbitration: Works Dismissal When. Even though it be granted that the submission to arbitration of the subject-matter of a pending suit “may be made to work a dismissal of the suit,” yet the dismissal can only be enforced by a plea in abatement exhibited puis darrein continuance and it can have no application where, as in the case at bar, there was (1) no suit pending when the agreement was made; (2) no “tribunal” was constituted for the settlement of the controversy; and (3) the defendants, instead of exercising their right to have the suit dismissed, asked by their plea that it proceed so that they might be granted affirmative relief.
    Appeal from Buchanan Circuit Court. — Ho». G. A. Mosmcm, Judge.
    Affirmed.

      Charles G. Grotv for appellants .
    . The contract entered into and referred to in this case is clearly a contract for the conveyance of real «state, that is for the parties to divide; the real estate in which they all had an interest in common, and to execute deeds to each other for .a division of same, conveying all their undivided interest in the parcels assigned to each person and as the contract is fair, just and reasonable and the appellants at all times being willing to carry out and perform their part, the other parties to the suit should be required to perform. Kirkpatrick v. Pease,.202 Mo. 493. Contracts for the division of real estate owned in common have been recognized by all the courts where the question has been presented. 30' Cyc. 154. It is clear from a reading of the testimony of Mrs. Ferrell, together with the fact that suit for partition was instituted on August 7, after the parties had agreed to meet and divide the real estate, that the parties to the contract other than appellants were not in good faith, attempting to carry out and perform the terms of the contract signed by them. Mrs. Ferrell claims that commissioners were agreed upon before they entered into a contract specifically providing that the commissioners or arbitrators should not be agreed upon until after the meeting on the first day of August, and she claims to have had this oral agreement with Ettie Finney and Elbe Finney before the contract was signed and executed by all the parties, so that even if it was true that such an agreement was had, it was merged in the written agreement which evidenced the only agreement between the parties. This is a contract entered into in good faith by the appellants with respondent and we' cannot express ourselves upon the conditions shown by this record as forcibly and eloquently as our position is expressed by Judge Lamm in the Kirkpatrick case, supra, and especially on page 494. In good conscience this contract should be specifically performed by respondents and we respectfully ask the court to reverse this case with instructions to enter a decree requiring the specific performance of the contract between the. parties.

      C. C. Ferrell and' Charles H. Mayer for respondent.
    (1) Inasmuch as the appellants have not incorporated in their bill of exceptions the contract as •offered in evidence this court will not say that the lower court committed error in sustaining respondent’s objection to the introduction of the contract. (2) The •court committed no error in holding that it could not enforce specific performance of the alleged agreement, and that therefore said alleged agreement was no defense to this suit. Strohmaier v. Zeppenfeld, 3 Mo. App. 429; King v. Howard, 27 Mo. 21; Hug, Admx., v. Yan Burkleo, '58 Mo. 202; Biddle v. Ramsay, 52 Mo. 153; St. Louis v. Gas Light Co,, 70 Mo. 69; Bales v. Gilbert, 84 Mo. App. 679. The court did all it could do toward doing what both appellants and respondent wanted done; that is, appointed three commissioners to make partition of, the land, and that the judgment should be affirmed.
   BROWN, C.

Suit was brought to the September term, 1909, of the Buchanan Circuit Court. The plaintiff is the only son of A. J. Ferrell, deceased. The defendants are Jennie Ferrell, his widow, and Ettie Finney, Effie Finney, Lora Brownell and Nola Ferrell, his only daughters, the plaintiff and defendants being his only heirs. The suit is to partition about five hundred acres of land in Buchanan county of which he died seized.

The defendants Ettie and Effie Finney filed a joint answer in which was pleaded as the only defense a contract signed by all the parties to this suit, which, omitting signatures, is of the following tenor:

“This agreement made and entered into by and between Mrs. Jennie Ferrell, Mrs. Eittie Finney, Mrs Effie Finney, Mrs. Lora Brownell, Homer Ferrell, and Nola Ferrell, the heirs of A. J. Ferrell, deceased, witmesseth:

“Whereas, the said A. J. Ferrell died January 12,. 1909, leaving certain valuable real estate and personal property

“And whereas, each of the undersigned are one of the heirs of said A. J. Ferrell, being entitled each to one-sixth (1-6) of said estate of A. J. Ferrell.

‘ ‘ And whereas, each of said heirs are desirous of settling' and dividing said estate without probating the same and without a partition suit or litigation.

“Now, then, it is hereby agreed by and between each of the parties hereto.

“First: All of the personal property is to be given to Mrs. Jennie Ferrell absolutely, except the money in the bank; Mrs. Jennie Ferrell is then directed by each of ns to purchase a suitable monument and cause the same to be erected at the grave of said A. J.. Ferrell, and pay for the same out of the money now in the bank and balance of money left in bank is to be divided into six (6) equal parts and .one-sixth (1-6) is. to be given to each of the undersigned.

“Second: Mrs. Jennie Ferrell is by us directed to collect all the rents, profits, or emoluments due said estate, or that may become due and to promptly divide the same into six (6) equal parts and give to the each of the undersigned .one-sixth (1-6) less all expenses incurred by her in collecting the same.

“Third: Each of the undersigned agrees to meeh at tbe home of the A. J. Ferrell homestead on the first Monday in August, 1909,- and divide and partition said real estate into six equitable, parts according to the-value of each acre thereof, each of the undersigned to-receive a quitclaim deed to one-sixth of said real estate-from the other five. In case of the failure of the undersigned to agree on an equitable partition and division of the real estate, then they are to select three disinterested men who shall act as arbitrators and appraise the value of each acre, and we then agree to abide by the decision of the arbitrators.

“Fourth: In the partition or division of said real estate as hereinbefore agreed on, the share to be allotted to Mrs. Jennie Ferrell and Homer Ferrell is to be selected out of the A. J. Ferrell homestead.

“Fifth: • The windmill now up opposite the A. J. Ferrell homestead is to- be the property of Mrs. Jennie Ferrell, and the water right, and privilege of maintaining said windmill at the same place where it now stands, and pumping water from the A. J. Ferrell homestead is to remain inviolate to Mrs. Ferrell. •

“Witness our hands this 26th day of January, 1909, at the Buchanan county, Missouri. ’ ’

This joint answer states that while the answering defendants .were at all times ready and willing to carry out the terms of the agreement, all the other parties failed and refused to do so, and prays a decree of specific performance of the contract, or that defendants be held harmless from the payment of costs, and for a receiver. The court found the facts as stated in the answer, and concluded, as a matter of law, as follows :

“The court finds that if said agreement is properly admissible in evidence it is no defense to this action.

“The court further rules that said agreement was not competent evidence in this cause, and sustains the objection made to it when offered in evidence.”

It also found that the six parties were each entitled to an undivided one-sixth interest in all the land and decreed that partition be made accordingly, appointing commissioners for that purpose. The appeal is taken from this interlocutory decree.

OPINION.

The record presents no other question than such as relate to the effect of the contract we have quoted, as a defense to the cause of action stated in the petition, and as a ground for affirmative equitable relief. The respondent, to be sure, questions whether the contract is preserved in the bill of exceptions, but it is unnecessary to discuss the point, for it is copied in the answer, and, in the state of the pleadings shown by the record before us, stands admitted. In short, the points upon which the parties rely are fully presented upon the face of the pleadings. It is not contended that the suit should abate by reason of the contract. No plea in the nature of a plea in abatement is interposed. On the contrary, the answer is framed upon the theory that the suit be continued for the purpose of enforcing against the respondent and the' defendants who stand with him, its specific performance according to its terms; SO' that the first, question which thrusts itself upon us is whether this is such a contract that its performance will be specifically enforced by the court. It provides, in substance, that the estate shall be divided into six equal parts, one to be given to each of the parties; that they are all to meet at the family homestead, occupied by the mother, on the first Monday in August; 1909, “and divide and partition saidi real estate into six equitable parts, according to the value of each acre thereof, each of the undersigned to receive a quitclaim deed to one-sixth of said real estate from the other five.” If they failed to agree, they were to select three disinterested men “who shall act as arbitrators and appraise the value of each acre;” and the parties agreed to abide their decision. It will be observed that they did not agree on any division of the real estate. — they only agreed that they would meet at a time more than six months distant for that purpose, and if they should fail, they would then select three arbitrators — not for the purpose or with power to divide the land between them, nor to indicate what part of it each or any one of them should have, but to “appraise the value of each acre.” While the knowledge of this value might be of great advantage to the parties or others charged with the division of the land, its ascertainment would fall short of being a partition. The contract, then, is' not a contract to partition the lands, but to try to arrive at such an agreement in the-future; and pointing out an alternative course should they fail. This alternative is not a contract to submit the partition of the land to arbitration, but to submit to arbitrators to be chosen the value of each particular acre. This information might be of greiat assistance to the parties in a future amicable partition of the land,, but this particular manner of obtaining it is not so indispensable and exclusive that equity will compel its manufacture and production. It enforces the specific performance of contracts already made, but will neither compel the parties to make them nor any part of them; nor will it make them for the parties.

Should we add all the requisites necessary to make' the writing in question a full-fledged contract to submit the partition of the land to arbitration, and †0 appoint arbitrators for that purpose^ we would be no nearer to a happy solution.

Nothing is better settled than that an agreement to name larbitrators cannot be specifically enforced, and this is the particular remedy.the appellants have elected to invoke. The authorities on this subject are collected and examined by this court in City of St. Louis v. St. Louis Gaslight Company, 70 Mo. 69, 102 et seq. [See also Bales v. Gilbert, 84 Mo. App. 675, 679.] In Bowen v. Lazalere, 44 Mo. 383, it was said that the submission to arbitration of the sub ject-matter of a pending snit “may be made to work a dismissal of tbe suit, ’ ’ and this has been ^Md *n °^ler jurisdictions, although against the great weight of authorities. [Thompson v. Turney, 114 Mo. App. 697.] It is placed upon the ground that by the submission the parties have selected another tribunal in which to try their difference, and thereby agreed that the suit be discontinued; but, as is held in the case cited, the dismissal can only be enforced by a plea in the nature of a plea in abatement exhibited puis darrein continuance and cannot be pleaded in bar until after a binding award. It can have no application to such a case as this because .(1) there was no suit! pending at the time the agreement was made; (2) no “tribunal” was constituted for the settlement of the controversy, that part of arrangement being left open for future action; (3) the appellants, instead of exercising their right to have the suit dismissed', asked, by their plea, that it proceed so that they might be granted affirmative relief. Each of these constitutes a complete answer to the suggestion that the case should have been dismissed.

On the other hand', if this contract is a submission to arbitration it is a statutory one under section 4822, Revised Statutes 1899, which prescribes the time and terms upon which it might be revoked, and it was revoked by the bringing of this suit. [Id., sec. 4845.]

The judgment of the circuit court is affirmed.

Blair, C., concurs.

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

All the judges concur.


author: BLAIR, C.

text:
    BELLE HERSMAN and KITTIE M. EDWARDS v. STRAUTHER G. HERSMAN, Appellant.
    Division One,
    December 6, 1913.
    1. SPECIFIC PERFORMANCE: Contract to Convey: Requisites. In order that there may be a decree of specific performance of a contract to convey lands the contract pleaded must be the contract proved; that contract must be clear and certain in its terms and must be one for the conveyance of the property; the evidence of the making of the contract must be so clear, cogent and convincing as to leave no reasonable doubt on that head; the consideration must be fair, and the acts hone in alleged performance of the contract by the plaintiff must be referable solely to the contract and explicable on no other reasonable theory.
    2. WEIGHING EVIDENCE: Deference to Chancellor. Where the trial judge did not have the witnesses before him, but decided upon a transcript of the evidence taken before another judge and upon depositions, and where the witnesses were not residents either of the county in which the case was decided or of the circuit over which the trial judge presided, he cannot be presumed to have been in a more advantageous position to weigh the evidence than is the Supreme Court upon appeal.
    Appeal from Macon Circuit Court. — Ho» Nat. M. Shelton, Judge.
    .Reversed.

      B. W. Beeson and Guthrie & Franklin for appellant.

      A. W. Mullins and F. E. Lindquist for respondents.
    Plaintiff was entitled to a decree for the property .as against the defendant without regard as to how he held the title thereto, or how he acquired it. Clark v. Cordry, 69 Mo. App. 6; Koch v. Hebei, 32 Mo. App. 103; Wright v. Tinsley, 30' Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Alexander v. Alexander, 150 Mo. 579 ; McQuitty v. Wilhite, 247 Mo. 163.
   BLAIR, C.

Defendant is a brother of the: plaintiffs and appeals from a judgment of the circuit court of Macon county devesting him of the title to a certain house and lot in Brookfield, Missouri, and vesting it in plaintiff, Belle Hersman. The original petition was filed August 15, 1907, in the circuit court of Linn county, whence the cause was taken to Macon county by change of venue, where it was heard in 1908 by a special judge. The cause was taken under advisement and at the September term, 1908, the objection being made that the special judge’s power ended with the term at which he heard the ease, it was resubmitted by agreement to the regular judge of the circuit, Hon. Nat M. Shelton, on the transcript of the evidence previously taken and some additional depositions and the oral testimony of one additional witness.

The amended petition cn which the case was finally submitted was filed by leave and to conform to the proof after the evidence had been heard by the special judge and before the case was finally submitted to the regular judge.

Plaintiffs ’ amended petition, in substance, alleged that on the 18th day of August, 1898, plaintiffs were the owners in fee of ¡a certain lot of ground in the city of Brookfield, Linn county, 'Missouri; that while the title to said real estate was taken in the names of plaintiffs, one thousand dollars of the purchase price thereof, which was $1600, was contributed by their mother, Mrs. Mary Hersman, and the remainder, $600; by the plaintiffs, each paying $300, and that in fact plaintiffs held said property in trust for the use and benefit of their mother. That on the 29th day of May, 1899; plaintiff Belle Hersman conveyed by warranty deed her interest in said real estate to her sister and coplaintiff, Mrs. Kittie M. Edwards, and that while said deed recites a consideration of $2000, in truth and in fact the only consideration therefor was an agreement between them that Mrs. Edwards should take care of their father and mother, Michael M. and Mrs. Mary Hersman, and said Belle Hersman, during the remainder of their respective lives, .all of which facts the defendant well knew. That on the 9th day of May, 1901, said Kittie M. Edwards and her husband, J. B. Edwards, by warranty deed, conveyed said real estate to the defendant, and that while the deed recites a consideration of $2000, “the only cash consideration therefor was the sum of $50, about $400 of which had theretofore been paid out by said Kittie M. Edwards for repairs on the buildings and improvements situated on said premises, and the further stipulation and agreement that said defendant would well and truly care for said Michael M. Hersman and Mrs. Mary Hersman and the plaintiff, Belle Hersman, support them, and let them occupy said property, as long as they should live, and that in consideration of the services to be rendered by said Belle Hersman, as hereinafter stated, said defendant would convey to or cause to be vested in said plaintiff, Belle Hersman, the title to said real estate and premises at the death of said Michael M. Hersman and Mary Hersman, and plaintiffs aver that the defendant acquired said property as aforesaid in trust for the use and benefit of said Michael M. Hersman and Mary Hersman and the plaintiff, Belle Hersman, and to furnish support for them during their natural lives.” That said Michael M. Hersman, on the .--day of February, 1903, departed this life at the city of Brook-field. That at the time of the making and delivery of siaid deed to the defendant, said Mary Hersman, mother of plaintiffs and defendant, was suffering.with nervous prostration, stomach trouble and other ailments, and remained sick and under the care of physicians from said time up to the time of her death, on the 10th day of June, 1907. That from the 29th day of May, 1901, up to the 10th day of June, 1907, defendant contributed about twenty-five dollars a month towards the support of said Mary Hersman and Belle Hersman, and permitted them to use and occupy said premises, and that at the time of the aforesaid conveyance of the property to defendant by plaintiff Kittie M. Edwards and her husband, it was agreed by and between plaintiff Belle Hersman and the defendant that she, the said Belle, “would nurse, care for,and wait upon said-Michael M. Hersman and Mary Hersman while they lived, the defendant providing the maintenance for them, and for which defendant would make n© charge, and at the death of said Michael M. Hersman and Mary Hersman said property should belong to and be vested in said plaintiff, Belle Hersman; and that said plaintiff faithfully fulfilled her said agreement, and in all respects discharg’ed her said undertaking and the duties she assumed. ’ ’ That the defendant, wholly disregarding his undertaking in the premises, subsequent to the death of said Michael M. Hersman and Mary Hersman, and on the 5th day of October, 1907, made a voluntary conveyance of said real estate to his son-in-law, J. L. Miller, for the purpose of defrauding-the said Belle and depriving her of any redress in the premises, and has refused and still refuses to make her any compensation whatsoever. That defendant did .not care for said Mary Hersman nor provide for her any nursing, except by said Belle Hersman, by reason whereof the said Belle was compelled to, and did, watch over, care for and nurse the said Mary Hersman, day and night, during all of said time and up to the time of her death. That since the death of said Mary Hers-man said defendant has wholly failed and refused to in any way provide for said Belle Hersman, except permitting her to reside in and occupy the said premises. That the reasonable value of tire services so rendered by said Belle Hersman from said 29th day of May, 1801, up to tbe time of tire death of said Mary Hers-man, June 101, 1907, a period of 2201 days, is $2201, and that defendant is indebted to the said Belle for said sum. That plaintiff Kittie M. Edwards says she claims no interest in the amount so claimed, but joins in the petition in ordeir that right, equity and justice may be done between said Belle Hersman and the defendant. That in equity and justice, said sum of $2201, or such part thereof as does not exceed the value of said property, should be adjudged and decreed to be a lien on the aforesaid real estate for the amount so due, and s.aid property sold to satisfy said lien.

The prayer of the petition is, “that said Belle Hersman have and recover of and from the defendant the said sum of $2201; that said amount be adjudged and decreed by order of this court to be a lien upon said above described real estate; that said real estate be sold to satisfy said lien, and that the court may make such other and further orders, judgments and decrees in the premises as may seem just. ”

Defendant’s answer to the amended petition was a general denial.

In addition to vesting the title in plaintiff, Belle Hersman, the court found against her demand for a money judgment, and found that plaintiff Kittie M. Edwards had no interest in the matter.

Michael M. and Mary Hersman, the parents of the parties hereto and six other living children, formerly lived in Illinois, where Mrs. Hersman owned a cottage which she sold in 1898, and $1000 of the proceeds, together with $600, furnished in equal parts by plaintiffs, was invested in the property in suit, plaintiffs taking the title in their names with the understanding that they were to care for their aged parents while they lived. In October, 1898, plaintiffs and their parents and the husband of plaintiff Kittie M. Edwards moved to the premises now involved and lived there together, the support of this family devolving largely upon Mr. and Mrs. Edwards. On May 29, 1899, Belle Hersman, by general warranty deed, conveyed her interest in the property to her coplaintiff, Mrs. Edwards, the real consideration for the conveyance being, according to plaintiffs, the promise of Mrs. Edwards that she would thereafter provide for and support the parents and Belle during their lifetime. The deed recited a consideration of $360, but the testimony of plaintiffs is that no money passed. Plaintiffs ’ mother was present at the time the two sisters entered into the agreement, pursuant to which Belle Hersman conveyed to Mrs. Edwards, and assented thereto. About a year after this transaction the parents became dissatisfied with, the manner in which the title to the property was held, and Mrs. Hersman expressed a desire to have the property conveyed to her. The evidence indicates this dissatisfaction was largely the result of interference on the part of other members of the Hersman family who made occasional visits to the old people. There was correspondence between various members of the family, and complaints • were made that the parents were being mistreated. There is no evidence that such was the fact. A letter written by defendant to Belle Hersman, after the dissatisfaction arose, contained the following:

“I received your letter a few days ago; glad to hear from you and to hear that everything is going to be fixed up so that it will be satisfactory to all concerned, as I know everything in the end will be for you and Kate. I was sorry that Kate felt as she did over it, as there was no one that wanted to fake: anything, away from her.....

“Now, Belle, if Kate will deed the place to me, and you folks want to stay there, it will be perfectly satisfactory to us boys; the -only thing we want is for pa and ma to live the, rest of their days in peace and quiet, and to have what they need.”

By reason of the dissatisfaction alluded to, Mrs. Edwards with her husband had a deed prepared in May, 1901, for the purpose of conveying the property to the mother, Mrs. Hersman, but before it was executed, defendant, by letter mailed to another sister, Mrs. E. Young, offered to pay Mrs. Edwards $500' for the property, or for Mrs. Edwards’ interest therein, the letter containing defendant’s check for said sum. Defendant and his letter .arrived in Brookfield simultaneously, and the same day, May 29, 1901, Kittie M. Edwards and her husband, J. B. Edwards, executed a deed conveying the property to defendant, and the latter delivered his check for $500 to- Mrs. Edwards. Mrs. Edwards testified that prior to this transaction she had paid out about $400' for improvements and repairs on the property.

With respect to what defendant said in conversations concerning the conveyance by Kittie M. Edwards to him, plaintiff Belle Hersman testified that, previously a deed from Mrs. Edwards and husband to Mrs. Mary M. Hersman, the mother, had been prepared but it was not executed; that “brother Strauther said he would not take it that way; that he did not want to, and if we would make it in his name he would provide for them (the parents) as long as they lived and at their death when they were through with it it should be mine,” i. e., Belle Hersman’s. The witness continued: “After that talk the deed was made and signed over to brother Strauther. I don’t think I know who wrote the deed; no, I cannot say. Brother Strauther told me that he would see that I was provided for. I should have provisions. I bad nothing to live on. I had nothing to buy anything for my father and mother, nothing. ’ ’ On cross-examination she testified that after defendant came to Brookfield he secured the $5-00 he. had previously sent “and the deed' was made and settled and my brother (defendant) came to the room where mother and my sister, Mrs. Edwards and Mrs. Durham and I (were) and he said, ‘Now, Ma, it is all fixed just as long as- you live. I take it in my name to save it for Belle there, none of the rest will get any.’ That is just the conversation and: I think we can prove that. ’ ’

Regarding the same conversation- Mrs. Kittie M. Edwards testified that after defendant reached Brook-field, May 29, 1901, and secured the check previously alluded to, he had thei deed prepared to himself as grantee and “he had the justice of the peace bring it to the house and he gave us the money and we signed the deed. My brother, the defendant, gave us the $500. Yes, he turned to mother and says: ‘I am going to put this property in my name so when you and pa die we can save it for Belle. "What I do for you I want nothing in return for — what I do for my parents;’ and then mother says, ‘"Who will take care of us,’ and he says, ‘I expect Belle to do so.’ Sister Belle was with us at the time.” This conversation was on the 29th day of May, 1901, the day the deed was executed. The deed had been made then and there. She further testified defendant- told her “he would not put up any money on the property unless it was in his name so he could save the property for Belle.”

Mr. J. B. Edwards, husband of plaintiff Kittie M. Edwards, testified that after the deed was made and, he thought, on the same day, either he or his wife asked who “was going to look after the folks,” and defendant said “Belle will do that.”

Mrs. Rutliff testified that some time in the spring of 1903 she heard Mrs. Mary Hersman say to defendant that “she felt sorry for Belle and she was sorry she was causing her so much trouble;” that defendant told her “not to let that worry her, he would see that Miss Belle was cared for.” This, the witness said, was a fragment of a conversation, the remainder of which she did not hear.

Mrs. Durham, a grandniece of the parties hereto, testified that on the day the deed was made she heard! defendant say to his mother, “The reason I want the deed to he made in my name was so none of the rest of the children would come in for anything at yours and father’s death ... at yours and father’s death the home shall go to Belle . . I don’t want anything for what I do for you. ’ ’ Witness said plaintiffs were present at the time this wias said.

It is clear that defendant agreed to furnish twenty-five dollars per month toward the support of his parents and sister Belle, and the evidence shows he furnished this much or more each month after the deed was delivered to him and, in addition, occasionally paid hills for fuel, medical attention, etc., amounting to a considerable sum, and also paid' the taxes and his father’s funeral expenses. Plaintiff Belle Hersman lived with the father and mother until their deaths in 1903 and 1907, respectively, and toot constant care of them. They were quite old and required much attention. The only means she and they had during the six years from May 29, 1901, to June 10, 1907, when the mother died, was the money defendant furnished. The total amount defendant furnished was about twenty-five or twenty-six hundred dollars.

It conclusively appears that on the day the deed to defendant was executed the Hersmans and Edwardses moved out of the property in suit, going to a house occupied by a sister of the parties hereto, Mrs. Young. Plaintiffs say the purpose of the removal was that Mrs. Young might aid in caring for the parents until plaintiff Belle, who was in poor physical condition, might recover her strength. •

The father, Michael Hersman, was dissatisfied at Mrs. Young’s, and defendant was notified and consented to the return of his parents and sister Belle to •the property in suit. Thereafter they occupied it until the mother, the surviving parent, died in June, 1907. Belle Plersman testified that on the day of the mother’s funeral she said to defendant, “Now, what are you going to do. I am left here all alone and nothing to do on,”'and that defendant replied, “I will tell you, Belle, I am going to sell this home,” at which witness says she fainted.’

Plaintiffs instituted this suit August 15, 1907.

Defendant testified he understood his mother had an interest in the property, having invested $1000 in it,' and that the reason the deed was made to him was that there was a judgment against his father and mother and sister Belle; that the understanding was he was to sell the property and use the proceeds for the support of his parents and that this was the reason they removed to Mrs. Young’s home when the deed was executed to him. That he sent twenty-five dollars per month to them after the deed was made, and after his father’s funeral his mother asked him if he would continue these remittances. He says he told her he would, and she then said that if he did so any interest she had in the property should be his at her death, and Belle Hersman then said, “Strauther, if you will do that I will stay here and take care of mother,” and the mother then told Belle shei, in that case, should have the personal property.

The plaintiffs ’ evidence shows Belle Hersman has the personalty.

Defendant says his sister Belle never made claim for services during the years after 1901 though be saw her a number of times and the first he heard of such a claim was when he received a copy of the notice by publication in this suit. Defendant denied the conversation attributed to him and testified that the only agreement he made was the one made at the time of his father’s death.

' With respect to material parts of the conversation with the mother and Belle, which defendant detailed, he is corroborated by a brother, John Hersman, and is fully corroborated by another brother, Joseph Hers-man.

Laura Seibert, another sister, corroborates defendant as to the same conversation, and further testifies she heard her mother say in 1907 she would ‘ ‘ die easier if Strauth would promise to take care of Belle,” but, she added, defendant “never promised.” She says the understanding was that Belle Hersman should, after the mother’s death, live with Mrs. Edwards.

After this suit was instituted and lis pendens filed defendant executed a deed to> his son-in-law in consideration of a cash payment of $500 and notes for a balance of $2000.

There is no direct evidence defendant knew of any agreement between plaintiffs and their mother made in consideration of the transfer by Belle Hersman to Kit-tie M. Edwards and no evidence he knew plaintiffs had: contributed anything to the purchase of the property. He denies any knowledge of either matter. He knew, however, that his mother had paid $1000 of the purchase price. He says he did not convey to his son-in-law in order to put the property beyond the reach of Belle Hersman but did so- as a part of his plan, then being worked out, to get his affairs in shape for easy settlement in case of his death, his health being poor.

I. Counsel for defendant contend the decree is not warranted by the evidence.

So far as the principal issue presented is concerned it is unnecessary to follow counsel through the controversy concerning the question whether the property was impressed with a trust. This is true because the decree vests the entire title in Belle Hersman; and whether defendant took title under the Edwards deed in his own right or as trustee, there being no pretense of any conveyance or devise to Belle, the only thing suggested by either pleadings or evidence which it could be contended justifies the decree is the agreement the petition alleges was made whereby Belle Hersman was to care for her father and mother during their lives in consideration of the conveyance of the property to her after they died.

In view of the fact that' the agreement is alleged to have been made between Belle Hersman and defendant and the fact that it is not alleged Mary Hers man, the mother, was a party thereto, it well might be said that the question as to defendant’s trusteeship for his mother is eliminated by the petition itself in so far as it could affect the question as to the sufficiency of the evidence to support the decree rendered.

The character of the evidence is such, however, that this phase of the matter need not be further discussed in connection with the particular question now under consideration.

The decree is one for the specific performance of an alleged oral agreement, ánd the evidence must be examined in the light of the principles applicable in such circumstances. These principles frequently have been formulated by this court (Collins v. Harrell, 219 Mo. 301 et seq.; Forrister v. Sullivan, 231 Mo. l. c. 373 et seq.; Walker v. Bohannan, 243 Mo. l. c. 135 et seq.; Oliver v. Johnson, 238 Mo. l. c. 373), and it is unnecessary to indulge in a recapitulation of them. The particular rules to be kept in mind in examining the evidence are that the contract pleaded is the one which must be proved; that the contract pleaded and proved must be clear and certain in its terms and must (in this"case) be one for the convey a/nce of the property involved; that the evidence of the making of the contract contended for must be so clear, cogent and convincing* as to leave no reasonable doubt on that head; and that the consideration must be fair, and the acts done in alleged performance of the contract by the plaintiff must be referable solely to the contract and explicable on no other reasonable theory. These principles have been approved so frequently and recently and the danger of rules less exacting has been so often pointed out that any discussion of them would serve no useful purpose. Measured by this standard the evidence in this case does not justify the decree rendered.

In the first place the evidence does not show that defendant ever made any promise to convey to plaintiff Belle Hersman upon consideration of services to be rendered the parents by her. The most that appears is that, when asked who would look after the parents, de¡fendant said he “expected Belle to do that.” “After the deed was made and signed, ’ ’ according to plaintiff herself, defendant told her “he would see that she was provided for.” In explanation of this statement plaintiff says: “I had nothing to live on. I had nothing to buy anything for my father and mother, nothing.” No witness testifies to any promise by defendant to convey to plaintiff Belle on condition that she care for the father and mother. Certainly a simple announcement by 'defendant, after the execution of the deed to him, that he would “save the property for Belle” could' not warrant the decree rendered. Besides there is other evidence tending to prove that no contract was made.

The fact that the witnesses for plaintiffs disagree somewhat as to what was said and' somewhat as to the persons present when the conversations relied upon are said to have occurred, must be considered. Further, the fact that on the very day that Mr. and Mrs. Edwards executed their deed to defendant, plaintiff Belle and the parents moved out of the property and deemed it necessary to notify defendant and procure his consent to return thereto after Michael Hersman complained he did not want to leave the old home, is of much significance and tends strongly to support defendant’s statement that the real agreement was that he was to sell the property and use the proceeds for the support 'Of the old people. In addition, the contract pleaded is rather a singular one. By it defendant was to receive nothing for the $500' he paid Mrs. Edwards, nothing for the support he was to furnish his parents and Belle Hersman, but the latter were to occupy the property until the parents died and then Belle was to get the property itself and thereafter defendant was to support Belle as long as she lived. No comment on this is necessary to, make clear the remarkable character of the contract contended for. The letter defendant wrote Belle was written in July, 1900, nearly a year before the Edwards deed was executed and its importance in the case is very slight. It is also to be noted that even if the property is worth all plaintiffs say it is, defendant’s contributions to the support of the parents and his sister amount to a sum far in excess of that value.

Defendant’s testimony concerning the agreement with his mother, made after his father’s death in 1903, to the effect that if he would continue to remit twenty-five dollars per month the property should be his, is corroborated by that of two brothers and a sister, and, in view of all the evidence, better seems to explain the acts of the-parties concerned.

The conveyance by defendant to his son-in-law, even if made to defeat the claim of plaintiff after the suit was filed, cannot supply a lack of evidence of the contract pleaded.

The learned trial judge did not, in. this case, have the witnesses before him, but decided it on a transcript of the evidence taken before another judge and upon depositions. The one witness who ‡68†|-£6(3 orally was not called to prove the contract relied upon. Neither were the witnesses residents of the county in which the case was decided nor of the circuit over which the trial judge presided, and, consequently, he cannot be presumed to have had them before him in other cases and to be thereby in a more advantageous position to weigh their evidence (an idea sometimes advanced) than is this court.

Tested by the standard fixed by the principles •stated the evidence of the agreement pleaded is insufficient and the decree cannot stand. Under the pleadings and evidence there can be no recovery, and the judgment is reversed.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, O., is adopted as the opinion of the court.

All the judges concur Bond, J., in the result.


text:
    WILLIAM A. FITZPATRICK v. W. L. GARVER et al.; CATHERINE H. GARVER, Appellant.
    Division One,
    December 6, 1913.
    EJECTMENT: Pleading: Possession: Ouster. A petition in statutory ejectment filed March. 13, 1909, stating that “on the 26th day of January, 1909, the plaintiff was the owner of and entitled to the. possession of” certain described land, “and being so entitled to the possession thereof, the defendants afterwards, on the 27th day of January, 1909, unlawfully withhold from plaintiff the possession of said premises,” will be held upon appeal to state a cause of action, there having been no demurrer or motion directed against the petition below. The statute does not require that the plaintiff, in order to maintain . his action, should ever have been in possession of the premises, any more than it requires that he should have been ousted by the defendant. It is enough that the plaintiff have the right to the possession at the time of bringing his action, and enough that the right of possession of the defendant, if he ever had one, has expired.
    Appeal from Livingston Circuit Court. — How. Arch.B. Davis, Judge.

    Affirmed.

      Lewis A. Chapman for appellant.
    The petition of the plaintiff fails to state facts sufficient to constitute a cause for action. There is no allegation in the petition that the plaintiff was the owner of and entitled to the possession of the land described in the petition at the time of the commencement of this suit, or the filing of the petition. There is no allegation that the defendant was in posession when the suit was commenced. The petition nowhere' alleges that the defendant ousted the plaintiff and entered into possession of said land and withholds the same from the plaintiff at the time- of filing suit. Plaintiff’s petition should alleg'e that at the commencement of the suit the defendants were in possession of the land to which, at that time, plaintiff was legally entitled. Alexander v. Campbell, 74 Mo. 142; Tetherow v. Chambers, 74 Mo. 183. In an action of ejectment the substantive facts required to be .alleged are that at .the. commencement of the action defendant was in possession of the property, and that plaintiff, at that time, was legally entitled to the possession of the same. Alexander v. Campbell, 74 Mo. 142. For a proper form of petition in ejectment, see Peters v. Byrne', 175' MO'. 236. Actions in the nature of ejectmeait must be brought against the occupant or party in possession of the land, and the declaration must generally allege that the defendant is in possession of the disputed property. Sedgwick .and Waite on Trial of Title to Land, sec. 432. The petition should also allege that the defendant wrongfully and unlawfully withholds the possession of the premises claimed. The necessary averments in a petition in ejectment are set forth in Sec. 2387, R. S. 1909. There can be no doubt from this section that the petition must allege the plaintiff’s right to the possession at the commencement of the suit and that at the same time the defendant was in possession, unlawfully, withholding the possession from the plaintiff.

      Karl Hirsh and Scott J. Miller for respondent.
    (1) The petition as it stands is good. R. S. 1909, sec. 2387. (2) It is the established rule that a petition which impliedly states a canse of action is good after verdict. Bank v. Scalzo, 127 Mo. 164; Bank v. Leyser, 116 Mo. 73; Mnmford v. Keet, 65 Mo. App. 505. (3) Every just intendment must be given to the petition in support of a favorable judgment thereunder. This was the evident purpose of our statute (R. S. 1899, sec. 2113, subsec. 9'), and is the doctrine of the cases on this subject above cited. Keaton v. Keaton, 74 Mo. App. 178. (4) It is immaterial on what d'ate the .ouster is alleged to. have been made by defendants as such averment is unnecessary in ejectment, and can be treated as surplusage. The case of Alexander v. Campbell, 74 Mo. 142, cited in the appellant’s brief, distinctly holds this. The opinion of Sherwood, C. J., in this case contains the following language: “. . . it would seem unnecessary, nay, forbidden, to allege that which ‘the law does not require to be proved;’ and that an entry by the defendant is not necessary, is not one of the ‘substantive facts,’ necessary for the plaintiff to prove . . .” Sec. 2382, R. S. 1909, provides that an action for the recovery of possession of premises may be maintained “in all cases where the plaintiff is legally entitled to the possession thereof.” Section 2389 prescribes what shall be proved at the trial to obtain arecovery for plaintiff — possession by the defendant and right of possession by the plaintiff, at the commencement of the action.
   BROWN, C.

This suit was begun in the circuit court for Livingston county by the filing, on 1909', of the petition, which, omitting the signature, is as follows:

“Plaintiff states, that on the 26th day of January, 1909, he was the owner of and entitled to the possession of that part of block eight of the original (Orin Garvin’s) survey of the city of Chillicothe, Missouri, beginning fifty-two feet west of the southeast corner of said block, thence west fifty-three feet to the properey of Carrie Shirley; thence north one hundred and forty-one feet; thence east fifty-two feet; thence south one hundred .and forty-one feet to the place of beginning, being the north side of Cooper street, and being so entitled to the possession thereof, the defendants afterwards, on the 27th day of January, 3.909, unlawfully withhold from plaintiff the possession of said premises to his damage in the sum of fifty dollars. Plaintiff states that the monthly rent of said premises is $16.66 2-3 per month.

“Wherefore, he prays judgment for the possession of said premises above described and for fifty dollars damage, and for the monthly rents from the 27th day of January, 1909, to the date that possession is given to him, and for Ms costs in this behalf expended.” ■

The defendant Catherine H. Garver alone filed answer, which was a general denial. The case went to trial, and upon the pleadings and evidence judgment for plaintiff and against both defendants was entered, from which this, appeal is taken by Catherine H. Garver. The record proper alone is brought here for review upon the sufficiency of the petition to sustain the judgment.

It will be noted that in the description of the land in the petition the second call for distance is fifty-three feet which makes a patent discrepancy. This is corrected to fifty-two feet in the judgment. This is not mentioned in the briefs, but seems to have been a printer’s error and will be disregarded.

The appellant insists that the petition is fatally defective, and wholly insufficient to supPort Üie judgment because it fails to state facts sufficient to constitute a cause of ac - tion. She bases this contention on the fact that it does not state that upon the very day it was filed in the office of the clerk of the circuit court plaintiff was entitled to the possession of the land sued for, and that the defendants were then unlawfully withholding its possession from him, and that it fails to lay any ouster. Her brief gives us so little light upon the process of reasoning by which she .arrives at this conclusion, that it will, perhaps, be the most satisfactory way of dealing with the question to inquire generally what the statutes prescribe in a pleading of this character. Our action .of ejectment being a statutory one we should expect the act that created it to be the repository of all that is special and peculiar in its procedure.

It (R. S. 1909’, sec. -2382) declares that the action may be maintained in all cases in which the- plaintiff is legally entitled to the possession of the premises. Section 2385 provides that it shall be prosecuted in the real names of the parties thereto', and shall be brought against the person in possession of the premises claimed. These two sections abolish the fiction by which an ouster or ejectment was an absolute prerequisite of the action. It is no longer necessary to allege that the mythical Mr. Doe entered upon the premises, where he was met by the ubiquitous Mr. Roe and politely ejected. The plaintiff became the living party entitled to possess the land, and the defendant the person who was there at the time and withheld the possession from him. The pleadings and proceedings were required (section 2388) to be conducted as in other civil actions except where in that article otherwise prescribed. In other civil actions the code requires of the petition “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” [Sec. 1794.] The statute does not require that the plaintiff, in order to maintain this action, should ever have been in possession of the premises, any more than it requires that he should have been ousted by the defendant. It is enough that the plaintiff have the right to the possession at the time of bringing his action, and enough that the right of possession of the defendant, if be ever had one, has expired. As for the evidence, it is sufficient for the plaintiff to show the same two facts, that is to say, that the defendant is in possession when the suit is brought, and that the right, as against him, to the possession is in the plaintiff. [Sec. 2389.]

The only statutory provision specially applicable to such pleading is section 2387. It provides that “it shall be sufficient for the plaintiff to aver in the petition that on some day therein to be specified, he was entitled to the possession of the premises, describing them, and being so entitled to the possession thereof, that the defendant afterward, on some day to be stated, entered into such premises and unlawfully withholds from the plaintiff the possession thereof.”

This section purports to give no hard and fast rule. It simply states the averments required to meet every case that can arise under the statute, as section 2389 states the proof which will, in every case, .authorize a recovery. There is nothing in its language that implies that an entry upon plaintiff’s possession shall be alleged where there has been no such entry, as in cases where the defendant is holding over after the expiration of his possessory right and the accrual of that of the plaintiff. Judging this petition by that rule we find that it states plainly that the plaintiff was, upon a day specified, entitled to the possession of the premises, and that being so entitled the defendant afterward unlawfully withholds from plaintiff the possession. While it might possibly have been more elegantly framed it seems to be a careful attempt to state, that the defendant was withholding the possession of the premises from plaintiff and it speaks as of the very date of its filing in the present tense. The word “withholds” implies, in the connection in which it is used,, that the defendant is retaining in his own possession that which the plaintiff claims.

The same question was before this court in’Alexander v. Campbell, 74 Mo. 142. The petition there questioned was, so far as we can see, framed on the same plan as the one now under consideration, except that the words “being in possession of said premises” preceded the charge of- unlawful withholding. The present possession of the defendant is, in our opinion, as certainly expressed in this ease by the use of the word' “withholds,” as by the words we have quoted from the Alexander petition. This pleading does not need the aid of any of our statutes relating to jeofails and amendments to sustain the judgment, but should it lack that certainty of statement which might be reasonably required to sustain it against a timely demurrer, it implies all the statutory requisites, and such uncertainty would be rendered harmless by the provisions of the eighth, ninth and fourteenth clauses of section 2119, Revised Statutes 1909; for so shadowy an objection ought to be called to the attention of the court im time to prevent the labor and expense of a fruitless trial. If this was not done by demurrer and the evidence authorized a judgment there was again an opportunity to interpose the same objection against its entry, when the defective statement could still b‘e remedied by amendment. Should this opportunity be passed, and the judgment be entered, neither party to the oversight could complain of prejudice because a matter so clearly implied had not been emphasized by amendment so as to conform to his highly specialized views.

The judgment is affirmed.

Blair, C., concurs.

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

All the judges concur.