author: BROWN, C. PER CURIAM.

text:
    TILLIE WESSEL, Appellant, v. C. L. LAVENDER.
    Division One,
    December 2, 1914.
    1. PLEADING: Proof: Surplusage. Proof is required of those allegations only that are necessary to a recovery, and those unnecessary to that end may be eliminated as surplusage.
    2. -: -: -: Action for Ravishing Unconscious Female: Cause of Unconscious State: Not an Issue: Instructions. Where the petition in an action for damages for ravishment alleged that the defendant, a physician, administered medicine to the plaintiff while she was sick in bed, and she having become unconscious under the influence of the medicine, the defendant had sexual intercourse with her, the cause of the plaintiff’s unconsciousness was not an issue, and the giving of an instruction requiring a finding that it resulted from the medicine was reversible error.
    5. ACTION FOR RAVISHMENT: Female’s After-agreement to Keep Silent: Her Testimony. Where there is reversible error in an instruction, a verdict for the defendant in an action for damages for ravishment will not be affirmed on the ground- that the testimony of the plaintiff, who had agreed to keep silent in consideration of a payment to be made to her by the defendant, was unworthy of belief.
    Appeal from Warren Circuit Court. — Hon. James D. Barnett, Judge.
    Reversed and remanded.

      John W. Booth, Jesse II. Schaper and J. W. Delventhal for appellant.

      T. W. Huhriede and Morton Jour dan for respondent.
   BROWN, C.

This is an action by plaintiff for five thousand dollars actual damages and five thousand dollars punitive damages for ravishing her on April 16, 1908, while she was unconscious. She was, at the time of the injury complained of, married, about thirty years old, and lived with her family, consisting of husband ■ and two children — Dalla, a girl ten years old, and Earl, a boy of six. The defendant had been their family physician for twelve years. His age is not given, but the fact that he graduated at the Washington University Medical School in 1865 indicated that he had arrived at the age of discretion. Mrs. Wessel had suffered from an ovarian trouble for which Dr. Lavender had been treating' her- It caused her much pain at times, and he had been called to relieve her, and on the particular occasion in question he was called for the same reason, and administered the usual sedative by hypodermic injection. What is charged to have occurred is stated in the petition as follows:

“That on the said 16th day of April plaintiff’s husband was temporarily absent from his home and not expected to return for a period of ebout . . . days and the defendant knew that plaintiff’s husband was so absent and was not expected to return for said period of . . . days; and so knowing, defendant being in the course of his treatment of plaintiff for her sickness in her bed room in the presence of said minor children, administered to and caused to be taken by plaintiff, under the belief, on the part of plaintiff, that the same was necessary for her proper treatment for said sickness, a dose of medicine. That defendant having administered said medicine, plaintiff being then and there sick and in bed, under the influence of said medicine, became and was unconscious, and that shortly thereafter plaintiff regained consciousness and upon regaining consciousness, defendant, then plaintiff’s physician as aforesaid, was in bed with plaintiff, engaged in the act of committing sexual intercourse upon the body and person of plaintiff; that at the time defendant was undressed and plaintiff’s minor children were absent from the room; that at the time when plaintiff as aforesaid discovered defendant in said act of violating her person, she at once separated her person from that of defendant, and thereupon defendant left plaintiff’s bed and put on his clothes and departed. ’ ’

On the trial the plaintiff testified in substance that on Monday evening April 13, 1908, she was suddenly seized with a painful aggravation of her trouble and called Dr. Lavender, who administered a hypodermic injection which relieved her. He also attended her the next day for the same purpose, but did not come Wednesday. On Thursday evening after retiring she was seized with a very painful attack and sent for Mrs. Struebe, a neighbor woman, and for Dr. Lavender. There was at the time, in addition to her own family, a young girl about fifteen years old staying in the house to assist her. She slept in a large room with two beds, one of which was occupied by this girl and her daughter, while the little son occupied the bed with her. Mrs. Struebe came and then the Doctor, who administered a hypodermic injection and sat by the bed to await its effect. It did not relieve her and he administered another. The two girls had, after the arrival of Mrs. Struebe, been sent to bed in a room across the hall and the boy had been placed in the other bed in Mrs. Wessel’s room. Shortly after the administration of the two injections she became tired and went to sleep, the Doctor then being seated at the bedside and Mrs. Struebe at the foot of the bed. She awoke with, a smothering sensation, and found the Doctor in the bed engaged in the-commission upon her of the act charged in the petition. She then said: “What in the dickens are yon doing, doctor?” and called for her daughter. The Doctor said: “The kids aren’t in here.” She then called Mrs. Struebe and the Doctor said she had gone home. She said, “You get in the hall and call those kids out of there, you call them.” He was then dressing and told her to be quiet, ■that it was not so bad. She asked him again to call the children. When he had completed his toilet he picked up his grip and she cried again two or three times to call the children, but he walked back into the kitchen and then returned to the bed and said: “Look here, Mrs. Wessel, now if you ain’t quiet I will give you another dose of medicine.” She then shut up mighty quick and kept still. He asked her how she was feeling and she said all right, and asked him again to call the children. He then went out and the two girls soon came into the room.

She further testified that the next morning the doctor called at her home,- and coming into her room, shut the door and sat down near her bed. She asked him what made him do that to her the night before. He said it was not so bad, and not to make a great big halloo about it. After some talk in which he attempted to excuse himself, she called him “You dirty,'nasty, stinking thing,” and threatened to tell her husband. He tried with much talk to persuade her not to “make a great big howl about little or nothing, ’ ’ but she kept on fussing and he kept on arguing that it would ruin his reputation and that a murder might come of it. She insisted that she was going to tell Mr. Wessel, and after the fuss had lasted quite a while he said: “Well, I am willing to pay for the dirtiness and harm: it don’t make any difference how much it will cost, if it costs me $1000', just so you won’t tell him.” She vowed and declared for a while that she would, and finally said she would see about it. He said: “All right, Mrs. Wessel,” and then after they had quarreled a little longer he went home. This talk lasted from half past six or seven o’clock that morning until half past eight or nine o’clock. In the afternoon he came back and after shutting the door asked her if she agreed to it. After they had argued a while, she said: “If you are willing to pay what I ask you, I will agree to it, to take the money.” He said: “All right, Mrs. Wessel, are you honest?” She said, “Yes, honest to Grod,” and they shook hands on it and made the agreement that he was to pay. She-was not to tell her husband or anybody else. This .final conference took about an hour. No amount, was mentioned other than stated above.

Doctor Lavender testified that at the time of his call on the night of April 16, 1908, he stayed until Mrs. Wessel had gone to sleep after the administration of the second hypodermic and then went home, and that everything she testified to as having occurred afterward was purely fabrication, without any foundation in fact, and that he never had heard of any complaint of the kind until February 6, 1909, when she came to him with a bill as follows:

“ Marthasville, Mo., Feb. 4, 1909.
“To Dr. C. L. Lavender ................. $500 for taking the advantage of me Mrs. Wm. .Wessel while I was under the influence of medicine.”
On this paper were written by Dr. Lavender the following word and figures: “2-6-08. Eeceived $60.”

Mrs. Wessel testified that when she made the bargain with the doctor he said he could not pay her until the first of the year, so that she waited until about the middle of January before saying anything more to him about it. In the meantime she was making monthly payments on the family doctor bill which he then told her had nothing to do with her bill against him, which he wanted her to make “reasonable.” This induced her to make it $500 instead of $1000. On February 4, Mr. Wessel asked her to pay the balance of $57 still due on the family bill, which she did, taking her bill along, but had no opportunity to present it. She went back on the sixth, and when she presented it he said, “What are you going to do if I don’t pay it?” They then quarreled, during which she asked him to call his wife -and threatened to tell Mr. Wessel and that it would come out, and then started to go, when he caught her by the arm and after more talk paid her $60 and marked it on the bill as it appears.

The Doctor says that she first presented the bill on February 6th and that when he refused to pay it, she presented a gun, and in terms oozy with profanity and ribaldry commanded him to pay some of it. He was scared, thought his life in danger, and gathered up $60, the same bills she had paid him two days before, which he paid, marking it on the bill, which he put in his own pocket, where he kept it until he turned it over to his attorney. He had her arrested with due promptitude on the charge of robbery growing out of the manner in which she made the collection, and she brought this suit.

Dr. Lavender testified on the trial as to the kind and quantity of the medicine administered to Mrs. Wessel on the night of the alleged assault and introduced expert witnesses who testified that it would not ordinarily produce unconsciousness. The plaintiff requested and the court gave the jury the following instructions

“1. The court instructs the jury that if they believe from the evidence that defendant on the 16th day of April, 1908, was the physician of plaintiff and as such physician gave to plaintiff one or more hypodermic injections and that within a short time thereafter plaintiff, being in bed in her home and defendant being present as such physician in the same room with plaintiff, fell asleep and that thereupon defendant, while plaintiff slept (if she did so sleep), without the knowledge of plaintiff, got in bed with plaintiff and had sexual intercourse with plaintiff against her will and without her consent — then the jury will find a verdict in this case for plaintiff, and will assess her actual damages at such sum not exceeding five thousand dollars as in the judgment of the jury will fairly compensate plaintiff for such distress of mind, shame, humiliation and wounded feelings as the jury may find plaintiff sustained by reason of such intercourse.
“3. The court instructs the jury that if they find from the evidence that defendant had sexual intercourse with plaintiff against her will and without her consent on the 16th day of April, 1908, at a time when defendant was in attendance upon plaintiff as her physician and plaintiff in bed and asleep and her husband absent from home and that at the time of such intercourse no other persons were on the premises with plaintiff and defendant, except plaintiff’s son, aged about six years, and her daughter, aged about nine years, and a girl employed about the premises, aged about fifteen years, and that on the following morning defendant returned and plead ■ with plaintiff to say nothing about such intercourse and proffered to pay plaintiff damages if she would say nothing about such intercourse and that plaintiff was thereby induced to keep silent about such intercourse, then plaintiff’s failure to make complaint to other persons of such intercourse will not defeat plaintiff’s right to recover damages in this action for such intercourse. But the jury should take these circumstances and all the other facts and circumstances in evidence in consideration in determining whether the defendant did or did not have carnal knowledge of plaintiff against her will and consent.”

At the request of defendant he gave the following instructions:

“8. The burden of proof is upon the plaintiff to show by a preponderance, that is, by a greater weight of the testimony, to the reasonable satisfaction of the jury, that the defendant engaged in the act of committing sexual intercourse upon the body and person of plaintiff against her will and while she was unconscious as a result of medicine administered to her by defendant, and unless she has so shown by the greater weight, that is, by the preponderance of the testimony, you will find for defendant.”

The verdict was for defendant.

I. The questions of fact in this case are simple, and it will assist us to reduce them to their lowest terms before proceeding to the examination of the questions of law predicated of them in this 'appeal. The wrong charged in the petition is that the defendant violated the plaintiff’s person while she was unconscious. The answer is a general denial. Both parties testify that the defendant attended the plaintiff in his capacity of physician, at her request, at the time and place of the alleged commission of the wrong so charged, for the purpose of ministering to her in physical distress, and that he gave her remedies appropriate to her condition of suffering, and sat by her side until she slept. Up to this point their versions are in perfect accord, but here they diverge. He says that when she went to sleep he went away, leaving her in that comfortable condition. She says this is not true— that she was rudely awakened and found him engaged in perpetrating the outrage of which she complains, having already committed a capital felony. There are none of those questions of consent or resistance which are fre'quent features of such dramas. The sole question is upon the truth or falsity of these respective statements of the actors.

' II. The defendant by his instruction number eight, raised the subordinate issue as to whether or not the condition of unconsciousness which is admitted to have supervened to her upon the cessation of her pain was a result of medicine' administered to her by defendant. He prepared the way by the introduction of expert testimony to the effect that the dose he said he administered would not ordinarily have caused unconsciousness. This testimony was not disputed; in fact, its effect could not be contradicted, because the defendant alone of all the world knew how much medicine he gave her. It is plain that if the cause of her unconsciousness was not in issue, but if the act charged was actually committed while she was unconscious from natural sleep induced by the cessation of her pain or otherwise, she was equally entitled to recover under the pleadings, then the giving of this instruction was highly prejudicial to the plaintiff. This raises the important question of the case.

The respondent does not contend that this limitation upon the plaintiff’s right to recover is correct as an abstract proposition. He admits that the act with which he is charged would be equally actionable had the unconsciousness charged resulted from natural sleep, as in State v. Welch, 191 Mo. 179, but he attempts to justify the instruction on the ground that the statement of the petition that the defendant administered to plaintiff “a dose of medicine,” and that “having administered said medicine, plaintiff being then and there sick and in bed, under the influence of said medicine, became and was unconscious,” implies, if it does not state, that the unconsciousness was a result of the medicine; and that it follows that there can be no recovery unless the cause of her unconsciousness is proved as charged. Admitting his construction of the petition, is respondent’s conclusion correct?

The rule is that- proof is only required of those allegations necessary to a recovery, and that those unnecessary to that end may be eliminated as surplusage. [Mehan v. St. Louis, 217 Mo. 35, 46; Frederick v. Allgaier, 88 Mo. 598, 603-4; Smith v. Fordyce, 190 Mo. 1.] The rule more specifically stated is that where a good cause of action is well stated in the pleading, all additional averments consistent therewith, whether by way of inducement, explanation or additional particulars, may be rejected as surplusage, and a recovery maybe had upon proof of the essential facts remaining. The only exception to this rule is that in those special cases when the law permits a recovery upon the statement of a legal conclusion, as upon the general allegation of negligence in a suit by a passenger against the carrier, if the plaintiff, instead of relying upon this right, undertakes to state the specific facts constituting his cause of action he will be held to have abandoned Kis general statement. This exception, it will be seen, is more apparent than real, for the pleading', so constructed and construed will then be subject to the rule we have stated. The allegation in this petition that the plaintiff was asleep' is as clearly a statement of fact as would be the allegation that she was dead. While the cause of her slumber as well as the cause of her death might in a proper case become an important question for adjudication, it is not, as we have seen, important in this case. The giving of this instruction was prejudicial error.

III. The respondent says that the judgment ought to be permitted to stand because, underlying and controlling all other questions in the case is. the fatal fact that the testimony of the plaintiff is of such a character that had the verdiet and judgment been for the plaintiff, it ought not to be permitted to stand. He says that for that reason the case should not have been submitted to the jury.

We are not usually disposed in such cases to attach much importance to the failure of a woman to vindicate her own virtue and the majesty of the law by raising the hue and cry to announce her shame and humiliation. We can understand how the natural modesty of a good woman may impel her to hide so foul a thing in her own soul, suffering the pain and humiliation alone, rather than to endure the mortification of displaying it in the arena the law has provided for such exhibitions, to curious crowds that in her outraged imagination would look upon her as polluted rather than wronged. This case, however, presents no such difficulty. According to her own relation of the affair the plaintiff, as soon as the matter was presented to her in that light, considered the financial features of the situation, with the result that she agreed, in consideration of money promised her by the one who had wronged her by the commission of a felony, to conceal the crime, and thereby herself became guilty of a felony. [R. S. 1909, sec. 4360.] When the money was .not paid and he intimated that he did not intend' to pay it, she said to him, “I am going to tell on you.” This, she says, brought him to such a realizing sense of the trouble he was in that he followed her, and caught her by the arm in the door, and paid her the sixty dollars. She then wiped the tears from her eyes on her wrist and departed. The fact that Dr. Lavender, in charging her with robbery, founded his accusation upon a threat to shoot rather than a threat to accuse him of a felony, under section 1895, Revised Statutes 1899, may not be corroborative of his version of the affair as against hers, but it at least illustrates that queer perversity of human character which sometimes prefers pure invention to equally available facts. We know of no law which disqualifies Mrs. Wessel as a witness by reason of these circumstances, or prevents the jury from considering her testimony for what they may think it worth, but even should it require corroboration, about which it is entirely unnecessary to express an opinion, it finds it in the fact that the Doctor paid sixty dollars on a fair statement of the ground on which this suit is founded, and took upon himself the burden of explaining it..

On the ground stated in discussing the defendant’s eighth instruction we are constrained to reverse the judgment of the trial court, and to remand the cause for a new trial.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion by Brown, C., is adopted as the opinion of the court.

All the .judges concur, Woodson, P. J., in result.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    C. A. FLEMING, Appellant, v. CITY OF MEXICO.
    Division One,
    December 2, 1914.
    MERCANTILE AGENT: Interstate Commerce. A mercantile agent who, as the agent of a foreign corporation, goes from house to house and obtains orders from residents for coffees, teas and groceries, and sends them to his principal in another State, which fills them by making up separate packages for each order, and sends them to said mercantile agent, who delivers them in the unbroken package to the persons who have ordered them and receives the money therefor, which he transmits to his principal, is engaged in interstate commerce; and an ordinance which seeks to punish him for engaging in .such business without a license, is unenforcible as to him or others engaged in a like business. [Following Jewel Tea Company v. Carthage, 257 Mo. 883.]
    Appeal from Audrain Circuit Court. — Ron. James D. Barnett, Judge.
    Reversed and remanded (with directions). •

      Philemon 8. Karshner and P. B. Jesse for appellant.
    (1) It is a principle established beyond controversy that “the negotiation of sales of goods that are in another State for the purpose of introducing them into the State in which the negotiation is made is interstate commerce” and is protected from local interference, burdens, or tax, by clause 3, section 8, of article 1, Constitution of the United States, which pro-, vides, that, “Congress shall have power1 — to regulate commerce with foreign nations and among the several States and the Indian tribes.” That the appellant was engaged in interstate' commerce when he solicited the orders in the city of Mexico is not open to question. Robbins v. Taxing District, 120 U. S. 489; Corson v. Maryland, 120.U. S. 502; Laloup v. Mobile, 127 U. S. 640; Asher v. Texas, 128 U. S. 129; Brennan v. Titus-ville, 153 U. S. 289; Cardwell v. North Carolina, 187 U. S. 622; Rearick v. Pennsylvania, 203 U. S. 507. (2) The delivery of goods to a buyer at his residence in one State, that have been sent in pursuance of contract by a seller in another State, is interstate commerce and subject to no state or local burdens. The right to solicit orders implies the obligation and the right to deliver the goods and the means by which the delivery is made cannot be controlled by the States. Bowman v. Railroad, 125 U. S. 479; State v. Freight Tax, 15 Wall. 275; Ferry Co. v. Pennsylvania, 114 U. S. 203; Caldwell v. North Carolina, 187 U. S. 622; Tea Co. v. Carthage, 257 'Mo. 383.

      A. G. Whitson for respondent.
    STATEMENT.
    C. A. Fleming was a sales agent of the Citizens Wholesale Supply Company, an Ohio corporation, doing business at Columbus, Ohio. He was arrested upon an affidavit filed in a police court in Mexico, Missouri, for an alleged violation of an ordinance of that city, enacted on the 29th of June, 1909, which imposed a fine of not less than ten, nor more than one hundred dollars, on any person acting as “mercantile agent” without the payment of a license fee of two dollars per day, and a fee of fifty cents to the city clerk for issuing the license. [Am. Rev. Ord. City of Mexico of 1893, sec. 57, 57a, 57b.] He was convicted and fined the maximum penalty in the police court, and the same amount upon the hearing of his appeal in the circuit court of Audrain county, from which judgment he has appealed to this court for that his defense was immunity from such prosecution under the commerce clause of the national Constitution.
    On the trial in the circuit court, by admissions of the parties of record and by suppletory evidence, the facts were shown to be, to-wit: “For the purposes of this trial it is admitted that on the 6th day of April, 1910, the said Citizens Wholesale Supply Company, a corporation doing’ business in the State of Ohio, sent its agent, C. A. Fleming, the defendant, from place to place, and from house to house, in the city of Mexico, where said Fleming took orders for tea and groceries and other articles for persons who ordered them for use in their families, and who were not dealers in coffee, groceries and such articles; the said goods were not at the time delivered, but were delivered in the future; and at the time the orders were taken the goods ordered were at the principal place of business of the Citizens Wholesale Supply Company in Columbus, in the State of Ohio.”
    The testimony was further to the effect that, when the defendant’s principal (Citizens Wholesale Supply Company) received from him the orders which he had taken, it packed the g’oods to fill such orders in separate packages, and when enough had been received for that purpose, 'assembled these separate packages in large boxes and barrels and shipped them to its agent, the defendant, C. A. Fleming, by a bill, of lading, addressed to him at the railroad station in Mexico, Missouri; that the defendant received the goods from the carrier, took them to a room at his hotel and opened the large boxes and barrels, and took out of them the separate packages of the proper size and quantity, to fill the orders of the respective purchasers, and with the aid of said orders (which had been transmitted to him of even date by registered letter or express) delivered said goods in accordance therewith to the individual purchasers; that no goods were sent to defendant by the company except to fill specific orders taken by him in this way, and no goods were sold or delivered by him except in fulfillment of said orders; that when the deliveries were thus made, the defendant collected the money and remitted it to his principal; that it was while engaged in these duties that defendant was arrested and fined in the police and circuit courts as above stated.
   OPINION.

BOND, J.

(after stating the facts as above).— Upon the admitted facts, and those shown on the trial, it is impossible to distinguish the instant case from that of the Jewel Tea Company v. City of Carthage, 257 Mo. 383. The doctrine of that case is set forth in paragraph 2 of the opinion therein, and demonstrates that the transaction in question in this case falls within the purview of the provision of the Constitution of the United States, vesting the complete and paramount power in Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” [U. S. Constitution, art. 1, sec. 8, ch. 3; Houston, E. & W. Tex. Ry. v. United States, 234 U. S. 342; Gibbons v. Ogden, 9 Wheat. (U. S.) l. c. 222.] The authorities and reason for that view are stated in extenso in the opinion in Banc in that case, and must control the disposition of the present case. Our conclusion is, that the ordinance referred to in the aforesaid statement was and is inoperative so far as the appellant (defendant below) or others engaged in like business are concerned.

The respondent did not avail itself of the leave granted until the 24th of October, to file a brief on this appeal, nor made any oral argument at the time of its submission. We have therefore been deprived of the benefit of its theory of the law, applicable to the facts shown in this record, as we were also without any similar aid on the part of respondent in the case of the Jewel Tea Co. v. City of Carthage, supra.

The judgment herein is reversed and the cause remanded with directions to dismiss the proceeding against appellant.

All concur.


author: LAMM, J.

text:
    CHARLES LOUIS TREFNY, Appellant, v. WILLIAM EICHENSEER et al.
    Division One,
    December 2, 1914.
    1. MISJOINDER: Several Causes. The statute (Sec. 1795, B. S. 1909) provides that several causes of action may be united in the same petition, whether they be legal or equitable or both, where they arise out of the same transaction or transactions connected with the same subject of action, but the causes so united must all belong to one' of the classes mentioned in the statute, and "must affect all the parties to the action.”
    2. -: -: Different Counts: One Against All: The Other Against Some. Where there are two counts joined in a petition, the petition is demurrable unless each count affects all the parties to the action. Where the first count of a petition is a bill in equity seeking relief against five defendants in clearing title to real estate and preventing threatened execution sales calculated to wrongfully cloud the title, charging a conspiracy among them designed and intended to depress the value of plaintiff’s property, and to extort money from him, and asking for a trial before the chancellor, and the second count, confessedly arising out of the same transaction, asks for damages against three of the same defendants for acts done in furtherance of a malicious conspiracy to injure plaintiff, and demands a trial by jury after plaintiff’s equitable relief prayed for in tbe first count bas been granted, the petition is demurrable, in that it is violative of tbe statute which declares that different causes of action united in tbe same petition “must affect all tbe parties to the action.”
    Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.
    Affirmed.

      F. W. Imsiepen and Andrew J. H'aver stick for appellant.
    A complaint will be regarded as stating but one cause of action although it may pray for many and various forms of relief where they are all germane to the vindication of a single primary right.” Kelly v. Hurt, 61 Mo. 463; Lincoln v. Rowe, 51 Mo. 571. “Since a bill is single and does not misjoin different causes, so long as its object is the complete enforcement of one general right, the fact that different defendants have distinct interests or liabilities with reference to that right does not render a bill multifarious.” Kelly v. Hurt, 61 Mo. 463; Lincoln v. Rowe, 51 Mo. 571; 16 Cyc. 252, note 16; 1 Story, Equity Jur. (9 Ed.), p. 377, sec. 400. “If the bill presents a common point of litigation decisive of the entire matter, it is not multifarious, although the interests or liabilities of defendants are unconnected except by such common question.” Martin v. Martin, 13 Mo. 36. “A bill is not multifarious merely because each defendant’s interests do not ex- ■ tend to all the matters of a bill with a single general object. It is sufficient if each defendant is interested in some matter involved which is connected with the others.” 16 Cyc. 251, note 34; Truss v. Miller, 116 Ala. 494; Booth v. Stamper, 10 Ga. 109; Worthy v. Johnson, 8 Ga. 236; Lenz v. Prescott, 144 Mass. 505; Curran v. Campian, 85 Fed.- 67.

      George W. Lubke, George W. Lubke, Jr., and Frank X. Hiemenz for respondents.
    We have a petition containing two counts attempting to state two causes of action, growing out of the same state of facts, one equitable and the other legal, the first of which affects all the parties to the suit and the second of which affects only a part of the parties to the suit. That this is not permissible under the statute is well settled. The statute permits as many causes of action, legal or equitable, or both, arising out of the same transaction to be joined in one petition only in the event that they affect all the parties to the action. The causes of action attempted to be stated in the petition in the case at bar, while they grow out of the same state of facts, do not both affect all the parties to the action and therefore they cannot be joined in the same petition. R. S. 1909, sec. 1795; Beattie Mfg. Co. v. Gerardi, 166 Mo. 156; Liney v. Martin, 29 Mo. 28; Doan v. Holly, 26 Mo. 186.
   LAMM, J.

Cast below on several joint and separate demurrers, plaintiff stood on his petition, refused to plead over, suffered judgment and appeals.

The demurrers on which plaintiff was made to go out of court have a common ground reading: “That several causes of action have been improperly united” in said petition. That is a statutory ground of demurrer — the fifth. [R. S. 1909, sec. 1800.] Our statutes prescribe rules for uniting causes of action in the same petition. One of them is that a “plaintiff may unite in the same petition several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First, the same transaction or transactions connected-with the same subject of action. . . . But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action.” [R. S. 1909, sec. 1795.]

Defendants maintain that the petition is obnoxious to the statutory rule just announced; hence the demurrers being levelled at that contention, it presents the single question in the case. Attend to the-record:"

Plaintiff, claiming to own certain valuable real estate in the city of St. Louis, filed his bill in equity against certain named defendants (to-wit, four,. Eichenseer, Ammen, Charles William Trefny, and Nolte, sheriff) and in aid of the bill sought and got against all the defendants a temporary injunction before the return term, restraining an alleged wrongful execution sale of said real estate. To that bill he added a second count at law which prayed damages, $5000 compensatory, and $5000 by way of smart money for malicious wrong's in the premises. This count at law in set terms involved only two of the defendants, Eichenseer and Ammen.

Presently, before the return term, he filed what he called his “first amended and supplemental petition,” bringing in a new party defendant, Eyerman, and asked a temporary injunction against him to restrain the sale of the same real estate under another execution and prayed additional relief not material here. In this “supplemental and amended petition” he added against three of the defendants, to-wit, Eichenseer, Ammen and Eyerman, a count in damages at law on the same' transaction pleaded in the first or equity count and on transactions connected with the same subject of action, laying his damages at $14,000, divided between compensation and smart money half and half. As we understand this record, a temporary injunction issued against the new party, Eyerman, and sheriff Nolte.

Presently, at the return term plaintiff dismissed one of the then defendants, Charles William Trefny, and by leave filed what he called a ‘ ‘ second supplemental petition” and by the same token brought in a new party, Pearl Byrnes. This latter petition is the one challenged by the demurrers and thereby plaintiff plants himself upon the grounds where he wishes to pitch his forensic battle. It is too long to copy and we. give our estimate of it, thus: It is in two counts — the first, a copious bill in equity seeking relief in clearing title to real estate and preventing threatened sales calculated to wrongfully cloud the title; the second, a suit at law for damages. The first brings forward the various allegations in the former petitions, connects Eichenseer, Anamen and Eyerman as co-conspirators to a common wrongful intent and design and adds new averments connecting Pearl Byrnes with the subject of the cause of action. As said, in its general scope the object of the bill was to enjoin certain levies and threatened sales under executions against the father of plaintiff (said Charles William Trefny), which said executions were levied as hereinbefore mentioned on valuable real estate claimed by plaintiff in the city of St. Louis. It runs on the theory these levies were wrongful and malicious, the product of conspiracy and were intended to depress the value and clog the alienation of plaintiff’s property by casting a cloud on his title, etc., etc., and to extort money from him. The bill further averred that defendants had been successful in making one sale under a similar execution and that defendant Byrnes had bought at such sale for and on behalf and as a “tool of” certain of her codefendants named and received and recorded a sheriff’s deed purporting to convey the property as that of a third person, to-wit, defendant’s said father. The bill also seeks to remove the cloud of that sale and the record of that sheriff’s deed and asks general relief. The second count confessedly arises out of the same transaction or transactions connected with the same subjects of action and asks $10,000 in damages for acts he characterizes as libels on his title, acts done in furtherance of a malicious - conspiracy to injure plaintiff. That there may be no question that such is the fact, plaintiff in his brief does not deny that his damages arise out of the same transaction complained of in his first count, and in his petition he solemnly demands separate trials on the two counts; the first to a chancellor, and the other to a jury after plaintiff’s equitable relief in the first count has been awarded.

Now, the parties against whom equitable relief is sought in this challenged petition are Eichenseer, Animen, Eyerman, Nolte and Byrnes, while in set terms (speaking ipsissimis verbis) the parties to the count at law are the three first, to-wit, Eichenseer, Aromen and Eyerman.

On such a record it is clear that the ruling on the demurrer was well enough, if, by heeding, we give effect to the command of the statute, supra, to-wit, that “the causes of action so united . . . must affect all the parties to the action,” and to the construction put upon it by this court.

With praiseworthy industry counsel for appellant have marshaled an array of authorities which, on one or another angle, lend countenance not only to the right of plaintiff to specific relief in equity, but to damages at law as well, on facts such as alleged in his pleading. Now, if opposing counsel were attacking the petition for that it did not state a cause of action, then these authorities would stand to be reckoned with; but they do not do that. Instead they attack the petition in another quarter by pointing to one statute making the improper joinder of causes of action in the same petition a ground of demurrer, and by pointing to another denouncing a joinder unless the causes so joined “affect all the parties to the action.” The trial judge was charged with the duty of enforcing those statutes on demurrer and learned counsel were charged with the duty of complying with them in bringing his suit. So far as we know it has always been the rule of decisión in Missouri, in construing the statutes in judgment, that A could not join a cause of action against B, O and D in one count and against C, or O and D in another. “Notwithstanding the great liberality of the present practice act in relation to the joinder of actions, it is conceived that there is nothing contained in it which gives the slightest sanction to the joining of actions in which the defendants are not the same, not in part but in the whole.” [Per Scott, J., in Doan v. Holly, 25 Mo. l. c. 359.] Judge Scott puts the reason of the rule upon the possible liability for costs in the Doan-Holly case, and the oppression springing from that view of it. In Liney v. Martin, 29 Mo. 28, the same conclusion was reached on the construction of the wording of the statute without attempting to establish or aid the rule by referring to reasons underlying it. This course, in dealing with statutes, is a sound rule of construction where there is no ambiguity in language — the applicable maxims being: Ita lex scripta est; and the other, The will (of the lawmaker) stands in place of reason — Stat pro ratione voluntas. So, in Beattie Mfg. Co. v. Gerardi, 166 Mo. l. c. 156, it was held (on the authority of thé Doan-Holly and Liney-Martin cases) that where there are two counts joined in a petition, the petition is demurrable unless each count affects all the parties to the action. In Scott v. Taylor, 231 Mo. l. c. 668, the doctrine of the Beattie-Gerardi case, supra, was construed to be “that the joinder of matters hot affecting all of the parties is impossible.” In Mann v. Doerr, 222 Mo. l. c. 12, the question was in judgment and the reason underlying the statutory provision was said to be the confusion entering through any other door and the common burdens of defense, inequitably put upon litigants.

By parity of reasoning, in the latter aspect of the case, the reasons underlying the rule against multifariousness are in point. To illustrate: Under our code there can be but one final judgment, no matter how many issues are framed in several counts. “The judgment upon each separate finding shall await the trial of all the issues.” [R. S. 1909, sec. 1971.] Agreeable to that theory is section 2097, Ibid. Now, when different causes of action are bundled in one petition in separate counts, which do not affect all the parties, it results that hazards, inconveniences and other burdens are put upon litigants in the matter of appeals and steps incident to appeals, on points where on final judgment the shoe pinches one or another litigant or one or another group of litigants which are unfair and oppressive. Assuming (as is the case) there can be no appeal except from the final and only judgment on all counts, why should parties not interested in the second count, be bound to dance attendance or cool their heels in court awaiting the vicissitudes or delays in final judgment on the second count over which they have neither concern nor control, before they can take steps to be relieved from an adverse finding and judgment on the first count? If all the parties are the same in both, this sharp inconvenience and hazard are absent. They become but usual incidents to the litigation. Otherwise, otherwise. Peradventure, in litigation the eye of the lawmaker has not rested exclusively on the welfare and convenience of plaintiffs. It has blandly rested as well upon the welfare and convenience of defendants. Why not? Plaintiffs go into court of choice; defendants are lugged in — pulled in by the ears. Agreeable to those views is the reasoning of such cases as Chaput v. Bock, 224 Mo. 73, and Peniston v. Pressed Brick Co., 234 Mo. 698, which, not unprofitably, the curious may consult.

Each and all the premises in mind, the judgment should be affirmed. It is so ordered.

All concur; Bond, J., in result.


text:
    ST. LOUIS LODGE NO. 9, B. P. O. E., Appellant, v. EDMUND KOELN, Collector.
    Division One,
    December 2, 1914.
    TAXATION: Constitutional Question: Elk’s Club Rooms Not Exempt. Premises owned by the Benevolent and Protective Order of Elks, and used for the entertainment and refreshment of the members and their guests, are not exempt from taxation under the provisions of Sec. 6, Art. 10, of the Constitution, exempting lots used exclusively for purposes purely charitable.
    Appeal from St. Lonis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Affirmed. '

      Brownrigg & Mason for appellant.

      Edward W. Foristel and Frcmk H. Haskins for respondent.
   BROWN, C.

This is a suit to cancel a tax bill issued against a lot in the city of St. Louis for city and school taxes for 1912. The lot is owned by the plaintiff and occupied exclusively by a building containing its lodge room, a hall used by the members and their wives, daughters and friends for entertainments such as dancing, card or other social parties, a rathskeller, where meals and other refreshments, including liquors, are served to the members and such guests as by the rules of the lodge they are permitted to entertain there, and an auditorium in which vaudeville and similar entertainments, including on one occasion a boxing exhibition, are given for the entertainment of the members and their guests. There are also billiard and card rooms for similar use.' No admission fee to the entertainments is charged.

The general constitution of the order to which the lodge belongs states that it is established “to inculcate the principles of charity, justice, brotherly love and fidelity; to promote the welfare and enhance the happiness of its members; to quicken the' spirit of American patriotism; to cultivate good fellowship; to perpetuate itself as a fraternal organization.” The bylaws of the .plaintiff lodge provide for the relief of destitute and unemployed Elks to the extent of ten dollars per week out of the funds of the lodge. A liberal construction has been given to this rule and by reason of the fortunate rarity of destitute Elks it has been tacitly extended to cover general charities without limit as to the amount, and in winter, and especially at Christmas time, large sums have been raised from the voluntary contributions of members to be dispensed for such purposes, and for Christmas gifts to children who, it is presumed, would not otherwise be able to partake of the pleasures of that blessed season. Their entire lodge fund, arising from membership dues and including the profits upon refreshments, except the sinking fund provided for the payment of the amount unpaid upon the property in question, has been devoted to these charities.

The lodge is incorporated under the State law providing for the incorporation of benevolent, religious, scientific, educational and miscellaneous associations.

The only question presented for our consideration is whether or not the property in question is exempt from these taxes because it is used exclusively for purposes purely charitable within the meaning of that expression as used in section 6 of article 10 of our State Constitution.

In construing this same section this court recently said: “It must be conceded to the state that whether a tax-exempting clause be viewed from the standpoint of the State down to the people, or from the standpoint of the people up to the State there must be unbending and inviolate rules which as sure words of the law are always ,to be reckoned with ; and those rules (from the standpoint of the State) are that an abandonment of the sovereign right to exercise the vital power of taxation can never be presumed. The intention to abandon must appear in the most clear and unequivocal terms (Pacific Railroad v. Cass County, 53 Mo. l. c. 27); and from the standpoint of the people they are that equality is equity in taxation.” [State ex rel. v, Johnston, 214 Mo. 646, 662.] The same rule is distinctly stated in the cases cited in that opinion, as well as in State ex rel. v. Casey, 210 Mo. 235, 248. It is a just and reasonable one, and whatever may be the doctrine of the adjudications in other jurisdictions, must be taken as the well-settled law. of this State.

There can no question as to the charitable character of the defendant lodge, nor of its disposition in that respect. While the property is used as the meeting place of the lodge where all its regular business is transacted, it also affords to the members and their families, free of cost, the most liberal facilities for social enjoyment and the entertainment of their guests, and to the unfortunate bachelor member and transient brother, for compensation, something like the culinary and table advantages of home. The surplus of its lodge funds, whatever that may be, together with large sums voluntarily contributed by its members, is dispensed, through the activities of the lodge organization, in the relief of the needy. Were the virtues of human sympathy and helpfulness grounds for the exemption of one’s property from the common burden of taxation, the plaintiff would stand upon firm ground while urging its claim for relief. There are, however, others whom we have enjoyed the pleasant privilege of knowing, who might stand upon the same ground and urge a similar claim. For them the home has not only been the instrument and abiding place of their own personal comfort, but they have opened its doors to helpless and deserted or orphaned children whom they have nurtured and educated to be good and useful citizens of the State, and have spent their income, and in some cases more, in dispensing aid to the destitute and suffering. Perhaps one of the brightest virtues of these has been the instinctive patriotism evident in their willingness to share in the burden assumed by the government in protecting them in the life they have chosen and in educating their children.

It is evident that the constitutional exemption before us has no reference to the character and activities of the owner except in so far as those activities relate to the use of the property. For instance, the san~e sentence of the Constitution we are considering exempts from taxation property used exclusively for religious worship; yet it is evident one might have family worship, in his own residence from morning until night, except at such times as he should step out for a few moments to evangelize his neighbors, without changing in the least the character of the property as his residence, or exempting it from taxation on the ground that it was used exclusively for religious worship. The worship would be an incident to the residence in the property of a pious, God fearing man, given to the observance of such duties. If on the other hand the building were a church, devoted to public worship, and the owner should reside in it in the capacity of pastor in charge and caretaker of the premises, the condition would be reversed; for the occupation would be an incident to and a part of the religious use. This distinction is clearly illustrated and interestingly discussed in State ex rel. v. Johnston, supra, and cases cited therein at pages 663 et seq.

This house is used, as the plaintiff’s secretary tells us in his testimony, for lodge and club purposes, and seems to be well and liberally calculated for that use. The constitutional exemption requires that the property be “exclusively” used for purposes “purely” charitable. This ‘ ‘ exclusive ’ ’ use implies that all other uses be excluded. This exclusion naturally applies to vaudeville, boxing, dancing, billiards and cards for the amusement of the owners. It might, under some circumstances, be said that all these things may be used to raise money for charitable purposes; but here the shoe is on the other foot. We are told in the testimony that these things are all free. No fee is charged for entrance to the shows, or to' the dances, or for billiards or cards. These must be paid for out of the funds of the lodge, and consequently constitute uses not incidental but paramount to the charities. When the lodge has used the hall for a dance, and has paid the fiddler, then charity may come for the crumbs. The exempting use must also be “purely” charitable — charity which, according to Webster, is u/mnixed with any other element. Charity is not a promiscuous mixer. Here she modestly stands outside or goes her way and waits; waits until the plaintiff has finished using the spacious and comfortable rooms for the pleasure of its members; waits until the curtain has fallen upon the last scene of the vaudeville performance on the stage; until the dancers have tired and gone home; until the billiard rooms have been deserted to the markers; until the plaintiff has paid the cost of its own entertainment, and goes out and finds her, and hands her whatever it may have left in its pocket. She gets not the use of the premises, but what remains of income to the owners after they have used it in carrying out the injunction of their organic law, by promoting their own welfare, enhancing their own happiness, and cultivating their own good fellowship among themselves. Like the Supreme Court of Wisconsin in Green Bay Lodge v. Green Bay, 122 Wis. 452, we do not find the maintaining of a club house to be a purely charitable use. Were this true, as that court remarked in its opinion, “then any number of men may organize themselves into a corporate body to provide these privileges and benefits for themselves and their guests and claim the exemption of the statute.”

After what we have said it is unnecessary to notice further the Utah case of Salt Lake Lodge v. Groesbeck, 40 Utah, 1, in which it was held that a law exempting- property of this character from taxation should be liberally construed. We are satisfied with our own rule in that respect.

The judgment of the circuit court for the city of St. Louis is affirmed.

Blair, G., concurs in result.-

PER CURIAM.

The foregoing opinion by Brown, C., is adopted as the opinion of the court.

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


author: WOODSON, P. J.

text:
    ALFRED MUNYON v. S. P. HARTMAN, Appellant.
    Division One,
    December 2, 1914.
    1. SPECIFIC PERFORMANCE: Defective Title. Where the agreement for the exchange of lands was that each party should furnish an abstract of title to the property to be conveyed by him, showing a good title in him, and if the abstract failed to show a good title in him then he should make such corrections as might be necessary to perfect it, plaintiff cannot have a decree for specific performance unless he has a good title.
    2. -: -: Admission of Defects. The institution of a suit in the circuit court and at the same term, by plaintiff, to quiet title to a. part, of the land for which he seeks a decree of specific performance of a contract to convey to him, is a solemn admission of record that he does not own a good title to the entire tract, and is a bar to his right to a decree for specific performance, where the contract to convey calls for a good title.
    Appeal from Linn Circuit Court. — Eon. John P. Butler, Judge.
    Reversed and remanded (with directions).

      Bresnehen & West for appellant.
    (1) The contract sued on required the plaintiff to furnish an abstract to his land showing a good title in him; this requires him to have a record title, one that can be shown by an abstract, and requires him to furnish an abstract showing that he has such title. Thompson v. Dickerson, 68 Mo. App. 535; Birge v. Bock, 44 Mo. App. 69; Bruce v. Williams, 102 Mo. App. 384; 6 Ballard on Real Property, secs. 15-17; Maupin on Marketable Title to Real Estate, sec. 164; 1 Am. & Eng. Ency. Law, 214. (2) The decree of court undertaking to quiet plaintiff’s title is not shown in the abstract. He agreed to furnish an abstract showing a good title, and without this decree his abstract is incomplete and fails to show any correction of the defects attempted to be cured by that decree. The court erred in decreeing specific performance of the contract sued on without proof of the plaintiff’s title. Luckett v. Williamson, 31 Mo. 54; Birge v. Bock, 24 Mo. App. 330.

      G. C. Bigger for respondent.
    (1) Under the contract sued on, plaintiff was only required to furnish to defendant a reasonably good title to the farm, and was not bound to establish his title by the record alone, but could supply defects in the record title by evidence of facts not of record, so as to make the title good and marketable. Scannell v. Am. Soda Fountain Co., 161 Mo. 606; Greffet v. Willman, 114 Mo. 106; Birge v. Bock, 44 Mo. App. 69. (2) The decree of the circuit court of Linn county had the effect of quieting the title and barring-any claim to plaintiff’s farm or any part thereof, on the part of the heirs of George M. Taylor, deceased, Annie M. Langlie or the Marceline Coal Mining and Prospecting Company. (3) The small portion of the farm occupied by a public road, and the fourteen-hundredths of acre taken off by the Santa Fe Railway Company, should not prevent a decree of specific performance. All plaintiff was required to do, was to convey to defendant the premises, substantially, contracted for. Secret Service Co. v. Gill Mfg. Co., 125 Mo. 156; Kilpatrick v. Wiley, 197 Mo. 169.
   WOODSON, P. J.

This suit was instituted in the circuit court of Linn county, by the plaintiff against the defendant, to specifically enforce a written contract for the exchange of a certain farm, subject to two certain deeds of trust, for a residence, a homestead lot, in the city of Brookfield, all situated in said county. A trial was had before the chancellor, and after hearing all of the evidence a finding of the facts and a decree of 'the court were made and entered in favor of the plaintiff, from which, after taking the proper preliminary steps, the defendant duly appealed the cause to this court for review.

The pleadings need not be set out or commented upon, for the reason that they are not assailed in any manner; thereby the concession may be drawn that they are sufficiently specific and comprehensive to cover and present the issues of fact and propositions of law presented to this court for determination.

The substance of the contract may be briefly stated as follows:

The plaintiff and defendant agreed that the former should exchange his farm, consisting of two hundred and sixty acres, subject to two deeds of trust, one to secure a note of $3500 and the other for $3950, both of which the defendant agreed to assume; and the house and lot of the defendant situated in Brookfield was to be taken by the plaintiff in full exchange for his equity in the farm.

The contract was dated September 23, 1908, and provided that each party should within twenty days from, that date furnish an abstract of title to the property to be conveyed by him, showing a good title in him, and if the abstract fails to show good title then such party should make such corrections as might be necessary for that purpose. The defendant was to pay to the plaintiff interest on the $3500 deed of trust from January 1, 1908, and on the $3950 deed of trust from September 23, 1908, until satisfied. The plaintiff was to deliver possession of the farm on January 1, 1909; and defendant was to deliver possession of the Brook-field property on the same date, but was to pay rent thereon from October 1, 1908, to January 1, 1909, at $50 per month.

The defendant furnished the plaintiff with an abstract of title to his property within a few days after the contract was executed, but the plaintiff’s abstract was not delivered until November 11,1908-, some thirty days after the expiration of the time it was to have been delivered under the terms of the contract. No objections, however, it seems, were made to the nondelivery of this abstract in time; and, therefore, that fact will receive no further consideration at our hands.

No objection was made to the abstract furnished by the defendant, but the defendant, on December 18, 1908, made many written objections to the one furnished by the plaintiff.

On January 1, 1909, the plaintiff met the defendant in Brookfield and tendered him a deed to the farm and the abstract which he had theretofore submitted to him for examination, but the defendant refused to accept the same on the ground that the abstract failed to show a good title, as required by the contract.

Without further ado, the plaintiff instituted this suit.

If I correctly understand the record, it shows that about one hundred and twelve different transfers of this property, or- some portion thereof, had been made since the title thereto emanated from the United States.

The contract of exchange and much other evidence were introduced.

Counsel for defendant presented some fifteen specific objections to various numbers of those transfers (each being represented by a number), and assigned those, as well as some five others, as grounds for a rehearing to the trial court, all of which were overruled, and a judgment specifically enforcing the contract in favor of the plaintiff was rendered, as before stated, also for $750 for rent of the Brookfield property, etc., when all of the evidence, outside of the contract of exchange, tended to show that its monthly rent was only $20 to $22.50.

At the same term of the Linn Circuit Court, at which this suit was brought, the plaintiff also instituted a suit therein against Anna M. Langlie and-Lang-lie, her husband, the unknown heirs, devisees, grantors and assignees of George M. Taylor, deceased, and the Marceline Coal Mining and Prospecting Company, a corporation, defendant, to quiet his title to certain portions (some ten or fifteen acres, the exact number not having been made clear) of the two hundred and sixty acres of land in controversy.

The defendants in the latter suit being non-residents, were notified of the pendency of the suit by publication, the validity of which is challenged by counsel for defendants.

It is charged by the defendant that the plaintiff did not have a good title to the two hundred and sixty acres of land he agreed to exchange with the defendant. for his house and lot in Brookfield, and the evidence conclusively shows that said change was true. Not only that, the institution by the plaintiff of the suit before mentioned to quiet his title to certain portions of said land, is a solemn admission of record, in the same court in which this suit was brought, that he did not own a good and clear title to that entire two hundred and sixty acres.

This evidence and the admission of the plaintiff is a perfect bar to his right to a recovery in this case. [McQuary v. Missouri Land Company, 230 Mo. 342, l. c. 364; Rector v. Price, 1 Mo. 373.] The latter case is the leading case in this State regarding the legal proposition under consideration, and has been approved many times in subsequent adjudications. The facts of those cases are not nearly so strong in favor of the defendants’ contention, as are the facts of this case.

These views render it unnecessary to consider the numerous other legal propositions presented for determination, since this view of the case fully disposes of. it.

For the reason stated, the judgment of the circuit court is reversed, and the cause remanded, with directions to dismiss the plaintiff’s bill.

All concur.


text:
    GEORGE SANG v. CITY OF ST. LOUIS, Appellant.
    Division One,
    December 2, 1914.
    1. TESTIMONY: Credibility: Theory of Expert: Contradicted by Laymen. The credit due the testimony of lay witnesses directed to establishing a fact, as against the advisory theorizing of experts, is always for the jury, not the court. It cannot be held that one of plaintiff’s testicles was not driven by the accident up into his abdomen and remained there, simply because the doctors testified they never saw or read of an accident of the kind, and that the size of the usual canal, protected, ' as it is, by muscular rings, excludes the idea that the testicle could be driven by force from nature’s sack up and along this canal, where unimpeached lay witnesses, including plaintiffs mother, testified that he was normal in this particular before the accident occurred and abnormal ever afterwards.' The testimony of the experts was merely advisory, and the issue of fact was for the jury.

      2. EVIDENCE: Future Medical Attention. Future expenses for physicians rest upon the same ground as the probable loss of future earnings. Where the evidence shows that a' hernia and a complicated, compound, comminuted fracture of the leg between the knee and the ankle, resulted from the accident; the medical testimony is that the hernia, though reduced, is likely to recur at any time, and the trouble, when once the abdominal walls are ruptured and the intestines protrude, will with reasonable certainty recur from lifting or even ordinary labor; that the bones of the leg had been somewhat crushed and this crushing made the fracture a comminuted one; that some flesh and ligaments got between the. parts of the compound fracture, and this was not discovered at first and caused suppuration and failure to knit, and after the bones were wired together it was several months healing, and at the trial, one year after the accident, there was still pain in the leg and tenderness in the wounded parts, there was sufficient evidence upon which to base an instruction authorizing a recovery “for any expense for medical services which the jury find and believe from the evidence plaintiff is reasonably certain to necessarily incur in the future by reason of his injuries and directly caused thereby;” for it is apparent from the evidence, that medical attention in the future will be reasonably certain to guard the situation or to reduce the recurring hernia or prevent strangulation.
    3. -: Best Evidence. No case calls for better evidence than the case admits of. Certain elements of damage may go to the jury though there is no line of testimony by which the fact of damage may be established with absolute certainty.
    4. NOMINAL DAMAGES: Request for Limit to Must Be Made by Defendant. If there is some substantial evidence that future medical services will be necessary, and defendant is of the opinion that it is not sufficient to support a finding of actual damages, it is its duty, if it wishes to limit plaintiff’s recovery to nominal damages on that score, .to ask an instruction to that effect.
    5. NEGLIGENCE: Damages: Modest Sum: Instruction: Elements ■ Unsupported by Evidence. Where the evidence establish serious and permanent injuries and the verdict is for a modest sum and is absorbed by referring it to’ damages plainly suffered and about which there can be no speculation, it would be trifling with justice to suppose the jury allowed anything of substance on the issue of future medical services; and though the in-' struction permits a finding for future medical services, the verdict will not be reversed on the ground that the evidence fixes no definite amount or character, of services to be rendered.

      6. NEW TRIAL: Newly Discovered Evidence. To obtain a new trial on the ground of newly discovered evidence the party asking for it must show: first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the lack of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not merely cumulative; and, fifth, that the object of the evidence is not merely to impeach the character or credit of a witness. If the facts show that twenty-four hours before the close of ■the testimony, appellant was informed of the means by which to ascertain the names and residence of the absent witnesses and made no effort to obtain their attendance until after an adverse verdict was rendered, there was no diligence, and a new trial cannot be granted because of their absence.
    Appeal from SI. Louis City Circuit Court. — Hon. Chas. Glaflin Allen, Judge.
    Affirmed.

      William E. Baird and Truman P. Young for appellant.
    (1) The instruction allowing’ for the expense of future medical services was erroneous, for, (a) There was no evidence to support it. Duke v. Railroad, 99 Mo. 347; Slaughter v. Railroad, 116 Mo. 269; Gribler v. Terminal Assn., 203 Mo.. 208. (b) Damages will not be awarded to compensate for losses not yet experienced on mere conjectural possibilities. • Sutherland, “Damages,” p. 3644; Joyce, “Damages,” see. 260; Yoorhies, “The Measure of Damages in Personal Injuries,” pp. 70, 73; Thompson, “Negligence,” secs. 7205, 7333; Strohm v. Railroad, 96 N. Y. 305; Ross v. Kansas City, 48 Mo. App. 440; Wilbur v. Railroad, 110 Mo. App. 689. (c) Damages covering expenses for future medical services will not be awarded in the absence of evidence indicating the reasonable likelihood that such expense will be incurred. Minister v. Railroad, 53 Mo. App. 276; Page v. Canal Co., 34 App. Div. (N. Y.) 618; McKenna v. Railroad, 41 App. Div. (N. Y.) 255. (2) The motion for a new trial on the ground of newly discovered evidence should have been sustained.

      Joseph A. Wright and Conrad Paeben for respondent.
    (1) The evidence fully justifies the instruction on damages as given. Sotebier v. Transit Co., 203 Mo. 702; Feeney v. Railroad, 116 N. Y. 375, 5 L. R. A. 544; Wolf v. Railroad, 67 App. Div. 613, 74 N. Y. Supp. 336; Turner v. Railroad, 158 Mass. 267; Moran v. Street Ry. Co., 74 N. H. 500, 19 L. R. A. (N. S.) 920; Parker v. Transit Co., 108 Mo. App. 465; Pentoney v. Transit Co., 108 Mo. App. 681; Lackland v. Mining’ Co., 110 Mo. App. 634; Mabrey v. Gravel Road Co., 92 Mo. App. 596. (2) Defendant asked no qualifying instruction on measure of damages, and therefore cannot now complain. King v. St. Louis, 250 Mo. 501; State -ex rel. v. Reynolds, 257 Mo. 19; Browning v. Railroad, 124 Mo. 55; Nelson v. Railroad, 176 Mo. App. 423; Jennings v. Appleman, 159 Mo. App. 12; Mabrey v. Gravel Road Co., 92 Mo. App. 596. (3) The trial court properly refused appellant a new trial on the ground of newly discovered evidence, because of a failure of diligence, and the evidence, at most, would be merely cumulative. At most, the ruling is within the exercise of a sound discretion. State v. Nickems, 122 Mo. 607; State v. Welsor, 117 Mo. 570; Porter v. Stock Yards Co., 213 Mo. 372; Dent v. Traction Co., 145 Mo. App. 70.
   LAMM, J.

Suing for personal injuries and laying his damages at $15,000, plaintiff had a verdict for $4000. In due time defendant unsuccessfully moved for a new trial and appealed.

In outline the case is this: Plaintiff, twenty-seven years old, married and earning $15 per week, at half-past six p. m., October 3,1910, during a great rain and while it was “pitch dark,” was driving a one-horse beer wagon with a canopy top, on a paved street, P'alm, in St. Louis, for the purpose of delivering a barrel and a keg of beer. Palm intersects Glasgow, then either a dirt road or partly clay and partly macadam. This intersection was not paved. In the street there was a hole, say, seven or eight feet long, two or three feet wide, and a foot or a foot and a half deep, at the time flooded with water, as were the two streets. Never having driven there before and knowing nothing of this hole, plaintiff at a sharp trot drove into it, whereby he was thrown over the footboard against the horse, and into the hole, both wheels of the wagon on his side running over his leg and the lower part of his abdomen. The existence and character of this -hole in the street and in the line of travel for a length of time sufficient to give notice to the city are not questioned. In other words, the negligence of the city, disputed below, is no longer disputed on appeal. That the issue of negligence was properly submitted on the pleadings is not controverted. So, defendant’s defense being contributory negligence, that issue was well submitted. So, the grave character of plaintiff’s injuries is not disputed — the testimony showing a complicated, compound, comminuted fracture of the left leg between the knee and the ankle. It also showed a resulting hernia, a lump hard by the groin still existing at the trial. In addition thereto a singular thing happened on plaintiff ’s theory, to-wit, one of his testicles was driven by the accident up into his abdomen and remained there at the point of the hernia. The fact of the dislocated testicle is conceded. That it resulted from the accident is strenuously controverted by defendant. We shall revert further to the evidence in the body of the opinion.

Two questions, and only two, are to be ruled, to-wit:

(a) In plaintiff’s instruction on the measure of damages are three propositions. The first allowed recovery for plaintiff’s past pain of body and mind suffered and caused by his injuries and for such pain as the jury may find and believe he is reasonably certain to suffer in the future as a direct result. The second allowed recovery of expense for medical services and medicines necessarily incurred by plaintiff and for which he became obligated by reason of his injuries and directly resulting therefrom. (The testimony tended to show the rise of $400 on this item.) Then follows this clause: “And for any expense for medical services which the jury find and believe from the evidence plaintiff is reasonably certain .to necessarily incur in the future by reason of his injuries and directly caused thereby.” The third allowed recovery for loss of earnings of his labor suffered by reason of his injuries or which he was reasonably certain to suffer therefrom in the future.

Appellant assigns error in giving that part of the instruction quoted above from the second proposition and such insistence is its first assignment.

(b) A timely supplemental motion for a new trial counts on the theory of newly discovered evidence. The second assignment of error is predicated of the overruling of such supplemental motion, the facts in judgment appearing in due course.

I. Of assignment a.

There is no complaint made of the form in which the question of future medical services is put to the jury. The complaint is narrowed to the contention there was no. evidence on which to predicate such recovery and that is the sole issue. Attend to that. The medical testimony indicates the broken leg ‘ ‘ seems to be fairly well.” When the fracture was reduced at the outset the bones did not knit blandly. It seems the bones had been crushed somewhat and this crushing made the fracture a “comminuted” one. It seems both bones of the leg were broken, hence the fracture was a “compound” one. It seems that some of the flesh and ligaments got between the parts of this fracture. This fact was not discovered at the start and caused suppuration and failure to knit, thus giving rise to a “complicated” fracture.

Subsequently a serious operation was performed in the hospital and the bones wired together. It was several months healing. There is still pain in the wounded limb, and tenderness in the parts. The injury was of a sort that permanently shortened, and gave a limp to, the leg, and up to the time of trial (over a year) had prevented plaintiff’s employment as a common laborer. Being without education, that was his only vocation.

There does not seem to have been any operation for the hernia. The doctors prescribed lying in a favorable position and rest. By such means the hernia was reduced, but the medical testimony agrees with common observation that the trouble is likely to recur. Plaintiff’s doctor in testifying, asked for an opinion whether he would have trouble in the future from this rupture, replied: “He may have at any time.” Another place the record shows these questions to the physician and his answers: “What about this rupture, will that continue in your opinion! A. I think it will. That is, I think if he strains himself it is likely to come out again. . . . Q. Does that rupture interfere with his lifting in any way in your opinion! A. Well, I think it would.”

Under the medical testimony nothing short of an operation will put the dislocated testicle in the place nature designed for it; but there is no testimony tending to. show that an operation is either necessary or advisable to protect or restore the integrity of its normal function or that its present condition is dangerous to health, inconvenient or makes or tends to make it functu's oficio.

In this condition of the record we rule as follows on the first assignment:

(1) The testimony leaves the question of the reasonable probability or necessity of medical services to replace the dislocated testicle a matter of merest conjecture. There is nothing’ to show it would be safe or better to replace it by surgical means, hence that part of the instruction on the measure of damages, allowing a recovery for future medical attention could not well stand on this part of the record.

In leaving this branch of the case we by no means rule that plaintiff is not entitled to recover substantial damages for the pain and suffering incident to the forceful dislocation of the part. It is ingeniously argued by appellant’s learned counsel that the accident did not (and could not) cause the dislocation. They rest the argument on the fact that the doctors testified they never read of or saw an incident of the kind. That the size of the usual canal, protected, as it is, by muscular rings, excludes the idea that the testicle could be driven by force from nature’s sack up and into the abdomen along this canal; but this testimony was merely advisory. We stress the fact there was testimony of lay witnesses, unimpeached save from these theories of the testifying doctors, that before the accident this man was normal in this particular and abnormal ever after. The testimony of the mother negatived the medical theory advanced, to-wit, that the progress of the testicle down had merely been arrested in the foetal stage (a common phenomenon) and that it never had been in place. That it is now dislocated and is in the region of the hernia is shown by both the lay and the medical testimony. Now, it is trite doctrine that the credit due the testimony of lay witnesses directed to establishing facts as against the advisory theorizing of the expert witnesses, is always for the jury, not the court; for to all such expert speculative theorizing the suggestion of the Melancholy Dane applies: “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy. ’ ’ If some witnesses say “it couldn’t” and some say “it did,” what then? Does such divergence make an insoluble problem in jurisprudence — put the matter in the air, in suspension like Mahomet’s coffin? Not at all. The common sense of the jury settles it.

(2) But when we come to the reasonable necessity for medical assistance in the future arising from the hernia and the leg we are of opinion there was substantial testimony upon which the challenged «lause, of the instruction on the measure of damages can rest. True, a doctor (long in prior attendance) had not attended this plaintiff for some' time before the trial, but we cannot say as a matter of law that a leg so seriously injured as to incapacitate a man from common labor for a year and which is still painful and tender will not require medical attention and medicines in the future. To the contrary it would look entirely reasonable and probable, judging’ from the tendency of the proof, that such would be the case. The same, only to a greater extent, may be said of the hernia. When some of the abdominal walls are ruptured and the intestines have once protruded, as the uncontradicted evidence showed in this case, it is common knowledge that the trouble will with reasonable certainty recur from lifting or the vicissitudes of ordinary labor. The medical testimony runs on all-fours with that idea. We know and the jury knew medical attention in the future would be reasonably certain to guard the situation, or to reduce the recurring hernia or prevent strangulation. To the common sense then of the jury, guided by their conscience, their everyday experience, their sound judgment, their oaths, must be left the question; for there is no line of testimony by which the fact may be established to an absolute certainty. To leave it to the jury is the best the law can do, for no case calls for better testimony than the case admits of. [Sotebier v. Transit Co., 203 Mo. 702; Mabrey v. Road Co., 92 Mo. App. l. c. 603; Feen v. L. I. R. R. Co., 116 N. Y. l. c. 382.] The rule is that adequate compensation may be recovered in a single action for all the natural consequences of a negligent act. That principle controls here: Future expenses from physicians rest upon the same grounds as the probable loss of future earnings. [Turner v. Boston & Me. R. R. Co., 158 Mass. l. c. 267.]

Moreover, if, in the state of the proof, defendant desired to limit the recovery for future medical services to a nominal amount, it should have tested out its right to do so by asking an instruction to that effect. [King v. St. Louis, 250 Mo. l. c. 514; State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19.]

(3) But if we were to allow appellant’s contention out and out, to-wit, that the instruction was too broad in the particular in hand, we would still not reverse the judgment, because: Here is a case where the uncontradicted proof showed liability for past medical and surgical attention resulting from the injuries in the rise of $400. The same character of proof showed that the plaintiff, as a result of his injuries, had been out of employment for over a year and that his earning capacity was $15 per week. That would make his past loss in earnings from his labor over $720, or a total on those two items of $1120. Deducting that from his verdict of $4000, we have left a bit the rise of $2800 for future loss of earnings, for a permanent injury, a shortened and limping leg, pain and suffering from a compound fracture with stibsequent complications, a hernia and a testicle dislocated by force. In the face of such facts showing a modest recovery for serious injuries, undisputed, it would be trifling with justice to suppose that the jury allowed anything of substance on the issue of. future medical services; for the verdiet is all absorbed by 'referring it to damages plainly suffered and about which there can be no speculation. In that view of it we say that the error complained of, if error at all, becomes self-evidently harmless and, hence, nonreversible.

II. Of assignment b.

Recurring to the record, a summary sufficient to an understanding of the question whether there was error in overruling the supplemental motion for a new trial, follows: The accident happened on October 3,1910. Suit was brought March 17 1911. The answer was filed April 5, 1911. The trial was begun October 16, 1911. When court arose, the testimony not being all in, the trial was laid over until the next day, the 1.7th. At the close of that day for like reason it was laid over until the 18th, when it was completed and a verdict had. By its answer defendant interposed contributory negligence as a defense- — contributory negligence with a specification, “to-wit, that plaintiff did not exercise due care in watching the direction in which he was driving.” There was a showing by the city in support of the supplemental motion to the effect that it was unaware of the accident and had no notice until suit was brought, i. e., for the rise of five months. But there was a satisfactory eountershowing to the effect that the city had immediate notice. Plaintiff and a witness driving with him testified to the effect there was a lamp post at the locus in quo, but that the lamp was not going. It seems to be conceded that at the time of the accident (6:30 p-. m.) city lamps were due to be lighted. As we read it, the light at this point was of gasoline. After plaintiff was injured he worked his way to this lamp post and held himself up by it — his horse having broken from control and passed on a ways. While in this fix, a man and his wife drove up in a buggy and, ascertaining the trouble, the man took plaintiff and drove him to his home. This man’s name was Eraffeman, but plaintiff did not know his name then or afterwards. It is not clear on what theory-plaintiff needed the testimony of this witness, as there was plenty without it, and it does not appear that he took any steps to ascertain the name or to summon the man or his wife. Nor did he conceal information. The fact that plaintiff was taken home in the buggy of some person, coming on the scene. after the accident, was known to the city long before the trial. It seems some attempt was made by the city to find out the name, and plaintiff, being inquired of, frankly stated he did not know it. Neither at that time, nor afterwards when his deposition was taken by the city, was plaintiff asked whether he knew any person who did know the name. At the first day of, and early in the trial plaintiff was on the stand in his own behalf as the first witness, and the following record was made on his cross-examination:

“Q. When yon got out of the street you say you went over to this lamp post on the northeast corner? A. I hopped over, yes. Q. And then how did you get home? A. There was a man and lady come along in a horse and buggy. Q. Who were they? A. I do not know their names, and they took me on home in the horse and buggy and went and got the nearest doctor in the neighborhood. Q. You say you don’t know who they were? A. No, I was there about twenty minutes before they came along. Q. Did you ask who they were? A. No, I did not; but the party that works in the brewery knows their names. Q. You never have seen them? A. I have seen them, yes. Q. When did you first see them? A. The night this happened. Q. I mean after? A. No, I ain’t seen them after that. Q. You don’t know where they live or anything about them? A. No, I couldn’t say where they live. Q. Who is the person at the brewery that knows them? A. Fred Brandt. Q. How do you spell that name? A. I don’t know. Q. Brandt? A. Brandt. Q. What does he do at the brewery? A. He is in the office, clerk there; as far as I see, he is writing.”

Reference having been made in the foregoing testimony to a “brewery,” it will do to say that the city knew all along that plaintiff was a driver for the Union Brewery Company of St. 'Louis. Plis petition so states and the fact stands conceded. It seems the Fred Brandt mentioned was working for the same brewery at the time of the trial and had been for a long time in some minor official capacity. It seems also he was easily accessible by telephone or messenger and that he actually knew the name and the place of residence of the Graffeman who carried plaintiff home, and of his wife. This Graffeman was a member of a well-known family, easily accessible, but, I believe, had no telephone. It is conceded by the city that after the foregoing testimony over twenty-four hours went by, it is contended by respondent that over forty hours went by, before this Graffeman was located. No inquiry was started on the first day as we read the. record, nor on the second day of the trial, and then nothing but the telephone was used. No subpoena was issued. No attempt was made to have any officer, charged with the duty of locating witnesses or summoning them, attend to that duty, but the trial flowed on unruffled to the end. Presently after an adverse verdict and judgment, the witness Graffeman and his wife were located and an affidavit was procured from each in substance to th.e effect that the street light in question was going when they came upon the scene. The city had contented itself with submitting the case on.the question of light or no light on mere negative testimony that no complaint had been made of the absence of a light at the time and place. On such record, the trial judge was of opinion that due diligence was not shown and we are óf the same opinion. If it he conceded to the city that the testimony was material on its issue of contributory negligence, as tending to show that the driver of a beer wagon drove into an open hole within the radius of the light of a street lamp, yet when it allowed the trial, to progress for a day or two to its consummation, warned of the existence of the witnesses and armed with the information that the names of the witnesess were in the possession of Brandt, it seems clear that due diligence was not used to obtain the testimony at the trial. As in the issue of negligence, so it is in diligence, to-wit, what is due diligence varies with the facts and circumstances .of each case. Let it he assumed (which is an assumption of doubtful stability) that defendant was diligent in preliminary preparation, yet here there was an emergency .sprung and sharp diligence was necessary after notice. Defendant after it had notice made no objection to going on with the trial, no objection to the submission to the jury, asked no recess or similar favor at the hands of the trial judge, hut stood mute, folded its arms and suffered the issue to he determined adversely, content to take its chances with the testimony at hand. .We overrule the assignment on the authority of State v. Nickens, 122 Mo. 607; State v. McKenzie, 177 Mo. l. c. 716; Devoy v. Transit Co., 192 Mo. 197; and Porter v. St. Joseph Stock Yards, 213 Mo. 372.

The doctrine of this court is the Georgia doctrine (vide the McKenzie case, supra): “The party must show, first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce á different result if the new trial was granted; fourth, that it is not cumulative only; fifth, . . .; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.” The rule thus laid down is stringent, hut useful and ought not to be relaxed. Measured by that rule, appellant bas no foot to stand upon in its second assignment of error.

Moreover, even if tbe testimony of these two witnesses bad been given at tbe trial, yet it is not at all clear tbe result would not bave been precisely tbe same. With a street and a bole in tbe street flooded with water, bow would tbe glimmer of a street lamp give plaintiff notice of tbe depth of the bole so that bis driving in it would bave made him guilty of contributory negligence as a matter of law? Or bow would it bave persuaded a jury that be was guilty as a matter of fact?

Entitled to one fair trial, tbe city, we think, got it. Let tbe judgment be affirmed.

All concur; Bond, J., in result.