text:
    THE STATE, Appellant, v. T. J. DOUGLASS.
    Division Two,
    February 6, 1912.
    1. EMBEZZLEMENT: Public Officer: Limitations. An indictment of a county collector of the revenue for embezzlement of moneys received by him as such is not barred for five years after the offense was committed, under Sec." 4945, R. S. 1909.
    2. CORRUPTION IN OFFICE: Application of Statute: To What Officers. Sec. 4945, R. S. 1909, providing that “indictments or informations for bribery, or for corruption in office may be prosecuted if found or filed within five years after the commission of the offense,” does not apply only to judicial or quasi-judicial officers, but applies as well to ministerial or executive officers who commit such crimes • as amount to corruption in office. It applies to a county collector who embezzles money collected' by him as such, and permits bis prosecution within five years after the commission of. the offense.

      3. -: -: To What Offenses: Bribery. The said statute does not apply to bribery alone. While neither this statute nor any other specifically designates any crime as “corruption in office” the words “corruption in office” as used in this statute were intended to cover all crimes which amount to a felony when intentionally committed- by a ministerial or judicial officer.
    Appeal from Dunklin Circuit Court. — Hon. W. 8. G. Walker, Judge.
    Reversed -and remanded-.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) Respondent contends that under Sec. 4945, R. S. 1909, the alleged offense was barred within the three years, and so the trial court held. Appellant contends that said offense comes under the term “corruption in office,” and consequently respondent can be prosecuted, as the indictment was returned or filed within five years after the date of the commission of the offense. Sec. 2419, R. S. 1899' (Sec. 4945-, R. S. 1909), was repealed in 1905 and a new section enacted in lieu thereof, which read the same as the old section, except as to the addition of the five-year limitation. This new limitation clause has not yet received judicial consideration. The only late ease that we find concerning the statute is the one of State v. McMahon, 234 Mo. 611, which construes simply the three-year limitation. “Corruption” is a very broad term, much broader than bribery, and yet may include bribery. In the new edition of Webster’s Dictionary we find the word “corruption” defined as: first, the act of corrupting, or state of being corrupted; third, perversion or deterioration of moral principles, loss of purity or integrity, debasement, perversion, deprav-' ity, wickedness, impurity, bribery. The term “corrupt” is so broad that it does not necessarily mean a benefit to the person so acting. In short, one may be guilty of corruption without any personal advantageous results. Burkharth v. Stephens, 117 Mo. App. 434; State v. Ragsdale, 59 Mo. App. 590; 10 Cyc. 1368; Wight v. Rindskopf, 43 Wis. 351; Ency. Law Diet., p. 210; 2 Words & Phrases, 1629. (2) This maxim of ejusdem generis is invoked by respondent with the claim that said section 4945, by using the particular word “bribery” followed by the general word “corruption,” is limited in its meaning and restricted in its operation to crimes of like kind with that mentioned, viz., bribery. The aforesaid maxim cannot be applied in regard to the said Statute of Limitations because in all the cases in this State and elsewhere where the maxim has been applied, the general word has always been preceded by the word “other.” If the statute read, “except indictments for bribery or for other corruptions in office,” the maxim would apply and respondent’s contention would be unanswerable. State v. Schuchmann, 113 Mo. 111. That the Legislature intended by the enactment of the amendment to the limitation statute not only to raise the limitation from three to five years against all officers for bribery, but intended that they should not escape any more readily for any other act of corruption, i. e., of dishonesty, than for a dishonest act of bribery, is clear and in keeping with the statute “that words and phrases should be taken in their plain, or ordinary and usual sense.” Sec. 8057, R. S. 1909'.

      J. L. Fort and McKay & McKay for respondent.
    (1) In the phrase “for bribery or for corruption in office” the word “or” should be construed as the ■equivalent in meaning of the words “being,” or “consisting of,” or “that is to say,” or “to-wit,” making ■said phrase read “for bribery — being corruption in office,” or “for bribery consisting of corruption in office,” or “for bribery — that is To say, corruption in office,” or “for bribery, to-wit, corruption in office.” People v. Bank, 159 N. Y. 382; Downs v. Allen, 22 Fed. 805; Arthur v. Cummins, 91 U. S. 362; Bloominthal v. Insurance Co., 96 N. W. 17; People v. Lathan, 20'3 111. 9; Comm. v. drey, 68- Mass. 501; Brown v. Comm., 8 Mass. 59 ; People v. Nordheim, 99 111. 553. (2) The words “or for corruption in office” fall under the rule which prescribes that where general words follow particular ones, they are to be construed as applicable to things or persons of a like nature. The doctrine of ejusdem generis is as rockribbed in the law of this State as any principle ever announced. As applied to penal statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offensive by the law. Ex parte Joseph Neet, 157 Mo. 535. (3) The St. Louis Court of Appeals in the case of State v. Flynn, 94 S. W. 543, held that the rule that a corrupt motive must be al~. leged and proved applies when the mis conduct related to judicial or quasi-judicial duty — that it has no application to executive or ministerial duties. Was the act of appropriating public money judicial? (4) Our statute has not defined “corruption in office.” What, then, is corruption in office? When was corruption in office elevated to a felony in this State, except as an incident to bribery in office? “Corruption in office” and “official corruption” must mean the .same thing. The act must be official — that is, it must be such an act as a private individual would have no power to perform, and it must also be corrupt. Conversion, or embezzlement of public funds, by an officer charged with the custody thereof, is not “corruption in office,” and therefore the judgment of the trial court was right and should be affirmed.
   BROWN, J.

— Indictment under section 4556, Revised Statutes 1909, charging embezzlement by a public officer of more than thirty dollars. From a judgment of the circuit court of Dunklin county sustaining a demurrer to the indictment, the State appeals.

On February 17, 1911, the grand jury of Dunklin county returned an indictment containing four counts, in each of which it is charged that on March 1, 1906, the defendant embezzled certain sums of money exceeding thirty dollars, which money he had received as collector of the revenue of Dunklin county, Missouri.

The defendant interposed a demurrer to the indictment on the sole ground that the offense charged was barred by the Statute of Limitations.

As more than three years had elapsed after the commission of the alleged crime before the prosecution was instituted, it is manifest that the demurrer was properly sustained, unless the crime of embezzlement by a public officer is covered by the last clause of section 4945, Revised Statutes 1909', which reads: “. . . except indictments or informations for bribery, or for corruption in office may be prosecuted if found or filed within five years after the commission of the offense.”

It is contended by respondent that the above quoted provision applies only to judicial or quasi-judicial officers, citing State v. Flynn, 119 Mo. App. 712; but we find that such is not the case. A ministerial or executive officer may coinmit such crimes as will amount to corruption in office. [1 Bishop’s New Criminal Law, sec. 299.]

Respondent also contends that the words “or for corruption in office,” as used in said section 4945, do not embrace any other class of crimes than bribery; that the disjunctive word “or” in said section means “to-wit;” in other words, that the statute should be read, “bribery, to-wit, corruption in office.” We do not believe this section will bear any such construction. The authorities cited by respondent do not sustain his theory. The word “bribery,” as used in this statute, does not qualify the words, “or for corruption in office;” but the latter words may qualify the word “bribery,” as so used, so as to make it apply only to bribery by or of a public officer. [People v. Nordheim, 99 Ill. 553.]

Corruption is a very broad word and as usually spoken or written, means moral turpitude, or exactly the opposite of honesty. “Corruption wins not more than honesty. ’ ’

Our criminal statutes do not specifically designate any crimes as “corruption in office.” The nearest approach to such a designation is found in section 4411, prohibiting “malicious oppression, partiality, misconduct or abuse of authority . . . under color of office;” and section 4412, entitled “Fraud in Office;” but as a violation of those statutes only amounts to a misdemeanor; the General Assembly could not have had them in mind in enacting the statute now under consideration, because it only purports to fix the limitations for the prosecution' of felonies.

“Corruption includes bribery, but is more comprehensive, because an act may be corruptly done though the advantage to be derived from it be not offered by another.” [Bouvier’s Law Dictionary.]

It is defined in 10 Cyc. 1368, as “something against the law; something forbidden by -law ... an act done with intent to gain advantage not consistent with official duty and the rights of others.” The words “corruption in office” would undoubtedly cover the act of an officer in accepting a bribe, yet as the Legislature used the specific word bribery in this statute, it must have intended to designate other crimes by the added phrase, “or for corruption in office.” It would be ridiculous to say that tbe General Assembly meant to preserve for the State during a period of five years the right to prosecute a county judge or city alderman who .for a bribe voted for an illegal disbursement of public funds, but did not wish to preserve for the same length of time the right to prosecute a collector of taxes who had willfully appropriated to his own use funds belonging to the public. Such a construction would ascribe to our law-making body the grossest imbecility.

A county judge in voting for an illegal claim may be corrupted and led away from the path of official duty by a bribe or other unlawful inducement of another person; but who can truthfully say that he is guilty of corruption in office and at the same time contend that a tax collector who without inducement of any kind except his own corrupt greed for cash has willfully embezzled the public funds entrusted to his custody, is not likewise guilty of corruption?

The tenure of a great many public offices in Missouri continue for a term of four years; and this statute was doubtless intended to preserve to the State the right to prosecute such officers after their terms expire for such willful and corrupt violation of law as they may have committed while in office. It is a notorious fact that officers can and frequently do so completely conceal their embezzlements that their crimes are not detected until their official records pass into the hands of their successors; and it was doubtless to meet just such cases that the statute under consideration was enacted. [Southwest Missouri Light Company v. Scheurich, 174 Mo. 235.]

There are a great many felonies which may be committed by public officers besides bribery and embezzlement, to-wit, receiving benefits from the deposit of public funds, Secs. 4558 and 4559; R. S. 1909; corruptly allowing and auditing claims, Sec. 4560, R. S. 1909; unlawful disbursement of public moneys, Sec. 4561, R. S. 1909; failing to pay over excess fees collected, Sec. 4563, R. S. 1909. It would therefore have been well nigh impossible for the General Assembly to have recited all these crimes in the Statute of Limitations, and in using the broad words, “corruption in office,” they found a comprehensive phrase intended to cover every class of crimes which amounts to a felony when intentionally committed by a ministerial or judicial officer.

Finding that the trial court erred in sustaining the demurrer, its judgment is reversed and the cause remanded for a trial on the indictment.

Ferriss, P. J., and Kennish, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    W. C. MULLINS, Appellant, v. MOUNT SAINT MARY’S CEMETERY ASSOCIATION et al.
    Division Two,
    February 6, 1912.
    1. BENEFIT ASSESSMENTS: Sewer: Cemetery: Charter. Under the charter of Kansas City the land of an incorporated public cemetery is chargeable with its share of the cost of the construction of a district sewer.
    2. -: -: -: Constitution. The provision of the Constitution (Sec. 6, art. 10) declaring that “the property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation” has reference to general taxes levied and collected for the support of the State, and does not refer to special taxes assessed to pay the cost of a local improvement. It does not render invalid a city charter requiring cemetery property to bear, along with other private land in the district, its proportionate part of the cost of a district sewer, whose cost is taxed against all lands in the district, except streets and alleys, in proportion to area.
    3. -: -: -: Pubiio Property: Legislative Authority. While it is within the power of the Legislature, in the absence of a constitutional restriction, to make strictly public property liable for the payment of local improvements, a statute providing for such a charge will not be construed as including public property unless it so provides expressly or by necessary implication.
    4. -: -: -: Statute: Property Not Subject to Execution. The statute (Sec. 2181, R. S. 1909) providing that “all courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds, shall be exempt from attachment and execution” does not render invalid a city charter provision authorizing an assessment upon the lands of a public cemetery of its proportionate share of the cost of a district sewer or other local improvement. It refers solely to a fieri faoias writ; and simply because it prohibits the levying of such a writ against cemetery property, is no reason for holding that it exempts such property from its share of the burden of a local improvement; for if that were true, by the same reasoning, it would exempt all homesteads in a city from the burden of a local improvement of any kind, since homesteads cannot be sold under general executions for debts.
    Appeal from Jackson Circuit Court. — Hon.. Hermann Brumback, Judge.
    Reversed and Remanded.

      Fyke & Snider for appellant.
    (1) Land belonging to a cemetery association is not exempted by -any provision of the charter from special assessments. The courts of this State have uniformly held that churches, charitable institutions, school property and cemeteries, are not exempt from special assessments for local improvements. Lockwood v. St. Louis, 24 Mo. 20'; Public Schools v. St. Louis, 26 Mo. 468 ; Sheehan v. Hospital, 58 Mo. 155; City of Clinton ex rel. v. Henry Co., 115 Mo. 557; Kansas City v. Bacon, 147 Mo. 281; Driving Park v. Kansas City, 174 Mo. 425-. Such has been the holding in other States. In re Broad Street v. M. E. Church, 165 Pa. St. 475; New Castle v. Stone Church Graveyard, 172 Pa. St. 86; Beltzhoover Borough v. Beltzhoover Heirs, 173 Pa. St. 213; Cemetery Association v. People, 139 111. 16 ; Boston Seamen’s Friend v. May- or of Boston, 116 Mass. 181; Board of Imp. v. Sisters of Mercy, 109 S. W. (Ark.) 1165; Donnelly v. Cemetery Association, 146 Mass. 163'. The burden is on defendant to show that its property is exempt from special assessments. By the provisions of the charter all property in the district must bear its proportionate part of the cost of the improvement. No propT erty is exempt except such as is clearly made so by the act. People v. Anderson, 117 111. 50. (2) The board of public works was without authority to omit the land of the cemetery company in making the assessment. If such land had been omitted the taxbills against other property in the district would have been excessive to that extent. St. Louis v. Railroad, 50 Mo. 94; Farrar v. St. Louis, 80 Mo. 393;' Scammon v. City, 42 111. 192. The property of the cemetery association is not public property, but is the private property of the corporation. It is not devoted to public use. Nobody could be buried within its limits without the consent of defendant. Matter of Deansville Cemetery Association, 66 N. T. 569; Patrick Donnelly v. Cemetery, 146 Mass. 163. (3) The land of the cemetery association being subject to assessment for local improvements, the only remaining question then is, Can such liability be enforced by the courts? Under the law we have a clear right. Have we no remedy? We think we have. Construction Co. v. Railroad, 206 Mo. 172; State ex rel. v. Lange, 16 Mo. App. 468; McQuery v. Reed, 23 la. 410; Sioux City v. Independent District of Sioux City, 55' la. 150 ; Lima v. Cemetery Association, 42 Oh. St. 128; Baltimore v. Cemetery Association, 7 Md. 517; Cemetery v. Buffalo, 46 N. V. 506; Cemetery Association v. People, 139 111. 16; Cemetery Co. v. Kern, 147 111. 483; People v. Cemetery Co., 86 111. 336; Chicago 'to use v. Chicago, 69 N. E. (111.) 580; Board of Imp. v. School Dist., 56 Ark. 354. Section 3160 does not exempt land from execution unless it is actually used as burial ground. Otherwise a private corporation, such as defendant, could, by fencing a whole section of land, calling it burial grounds, and burying a few bodies on one corner or one side of it, hold it exempt from execution from taxes, general and special, until by the growth of the city it became immensely valuable, and then sell it for speculation. State, etc. v. Mayor, etc., of Newark, 35 N. J. 157. Under the petition in this case the court has the inherent power to render a judgment or decree ordering any part of the land not actually used for burial purposes, or so much thereof as may be necessary, to be sold to discharge the lien.

      William Moore and McCune, Harding, Brown & Murphy for respondents.
    (1) The land sought to be subjected to sale for the taxbills in suit in this case is a public cemetery which is actually occupied.' It is not operated for profit. It is exempt from- seizure and sale under execution, and the action of Kansas City in issuing tax-bills against it was unlawful and the taxbills are void. R. S. 1899, secs. 3160 and 5215; St. Louis v. Brown, 155 Mo. 561; Clinton ex rel. v. Henry County, 115 Mo. 570; Neeman v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 44; Avery v. Cemetery, 127 Mich. 125; Wolford v. Cemetery, 54 Minn. 440; Bank v. Hazel, 63 Neb. 844; Cemetery v. Meninger, 14 Kan. 312; Louisville v. Nev-in, 10 Bush. 549; Cemetery v. Buffalo, 118 N. Y. 61; Cemetery v. Yonkers, 63 N. Y. App. 448; Cemetery v. New Haven, 43 Conn. 234. (2) No equitable action will lie in this case and no part of the cemetery may be sold. Avery v. Cemetery, 127 Mich. 125; Wolford v. Cemetery, 54 Minn. 440; St. Louis v. Brown, 155 Mo. 561; Pawnee v. Hazel, 63 Neb. 844; Louisville v. Nev-in, 73 Ky. 549. (3) Under the established law of this State, a general judgment cannot be rendered for special assessments of local improvements, and any statute or charter provision authorizing such a judgment is unconstitutional and void. St. Louis v. Construction Co., 202 Mo. 469; St. Louis v. Allen, 53 Mo. 44; Neeman v. Smith, 50 Mo. 525; Louisiana v. Nutter, 66 Mo. 467; Yance v. Corrigan, 78 Mo. 96; Huggins v. Ausmuss, 77 Mo. 353; Clinton v. Henry Co., 115 Mo. 569; Asphalt Co. v. St. Joseph, 183 Mo. 451. (4) The Constitution neither exempts nor forbids the exemption of burial grounds from assessments for local improvements. Corrigan v. Kansas City, 211 Mo. 627. (5) Proceedings to compel owners of land to pay such assessments are in invitum. There is no pre-existing right in the holder of the taxbill to enforce it. Paving Co. v. Munn, 185 Mo. 574; Rose v. Trestrail, 62 Mo. App. 355; Smith v. Westport, 105 Mo. App. 224. (6) When a statute creates a new right and prescribes a remedy, the statutory remedy is exclusive. Clinton v. Henry County, 115 Mo. 569. (7) The remedy provided by the charter of 1889 for the enforcement of these taxbills is a sale of the land described in the bill on special execution. Sec. 18, art. 9, charter. (8) By the general laws of this State, burial grounds are exempt from sale on execution. R. S. 1909', sec. 2181. (9) Therefore, as the only remedy provided is ineffectual, it must be assumed that the framers of the charter did not intend to subject either the cemetery or its lands to this assessment. Clinton v. Henry County,115 Mo. 569; St. Louis v. Brown, 155 Mo. 561. (10) This is not a case where there is a right and therefore a remedy. There is no right and therefore no remedy. Clinton v. Henry County, 115 Mo. 570; St. Louis v. Brown, 155 Mo. 561; Paving Co. v. Mann. 185 Mo. 552. (11) To hold these taxbills uncollectible need not work appellant any hardship. The cost of the work may be reapportioned against the lands in the sewer district subject to assessment. State ex rel. v. St. Louis, 183 Mo. 230; Bank v. Ridge, 79 Mo. App. 26.
   KENNISH, P. J.

— This action was brought in the circuit court of Jackson county upon, two special tax-bills in the total sum of $17,5-98.28, issued to the appellant by the city of Kansas City, in payment for the construction of a sewer. Respondent is an incorporated public cemetery association, and owns about thirty-five acres of land in said city, dedicated, used and to be used for cemetery and burial purposes. About ten acres of this land, particularly described in the petition, has not been sold by the respondent and no interments have been made therein. In accordance with the provisions of the charter and ordinances of said city a sewer district was established, embracing the lands benefited by the construction of the sewer and made liable to assessment for the payment of the cost of the construction thereof. Respondent’s cemetery property is situated within the limits of said sewer district. The taxbills in suit were issued against respondent’s property, as in the case of other real property within the benefited area.

Respondent filed a general demurrer to plaintiff’s petition, which was sustained by the court, and plaintiff declining to plead further, judgment was rendered against him, from which he appealed to this court.

It is contended by respondent that land used for ,a public cemetery and for burial purposes is not subject to special taxes assessed to pay for local improvements, such as the sewer for which the taxbills 'in suit were issued. That contention was upheld by the trial court, and the correctness of that ruling is the decisive question on this appeal.

The sewer referred to in the petition was constructed hy appellant under the provisions of the city charter, and an ordinance enacted for that purpose. The sections of the charter providing for the payment of the cost of sewers are the following:

“Sec. 10. As soon as the work of constructing . . . any district sewer shall have been completed under a contract let for the purpose, the board of public works shall compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certify in favor of the contractor or contractors to be paid, a special taxbill for the amount of the special tax against each lot in the district.
“Sec. 14. When the city shall own in fee simple absolute any lot or parcel of land, or hold any land not used as a street, avenue, alley or public highway, it shall out of the general fund pay its proper share of the cost of any such work to be paid for in special taxbills as though a private owner of such land, but there shall be no taxbill against any land so owned or held by the city. The board of public works shall ascertain the share for which the city shall be justly liable and the amount so ascertained shall be certified to by the board of public works. ’ ’

It is provided by section 6, article 10, of the Constitution of this State that: “The property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation.” The law is too well established to require the citation of authorities that the exemption from taxation in the foregoing section of the Constitution has reference to general taxes, levied and collected for the' support and maintenance of the State, and not to special taxes assessed to pay the cost of local improvements. The correctness of this proposition is not contested by respondent. It rests its claim, that its property is exempt from liability for the taxes sued for, upon a statute hereinafter discussed.

The charter provisions above set forth leave little doubt that the framers of that instrument intended that the whole cost of the improvement should be charged against all the land in the district benefited, exclusive of public thoroughfares, and in the proportion that the respective areas bear to the area of the whole district. That no property within the district was intended to be exempted from liability is made clear by said section 14 of the charter, which provides that when the city owns property in the benefited district it shall pay out of the general fund “its proportionate .share of the cost of any such work, ... as though a private owner of said land.” And as no lot of land in the district is liable for more than its proportionate part of the total cost, according to its area, it is apparent that if any part of the land included be exempt, then the payment of the corresponding part of the cost of the improvement is entirely unprovided for in the charter. These considerations and the provisions of the charter, by authority of which this improvement was made, plainly indicate that it was not intended or contemplated that respondent’s cemetery property should be exempt from the payment of its proportionate part of the cost of the sewer. It follows that the special taxbills in suit must be held to be a valid charge against respondent’s land unless the charter provisions under which they were issued are in conflict with the Constitution or a dominant statutory provision. The only provision of the Constitution upon the subject has already been referred to and as it lias been construed by the courts not to refer to local assessments, it need not be further considered.

It is settled law that statutes creating exemptions from taxes, whether general or special, are strictly construed, and the right of exemption exists only when expressed in explicit terms and must be established beyond a reasonable doubt. [State ex rel. v. Casey, 210 Mo. 235; State ex rel. v. Johnston, 214 Mo. 656; 1 Cooley on Taxation (3 Ed.), 362.] An exception is made by the courts to the foregoing rule in the case of strictly public property, but this exception does not extend to such property as cemeteries or burial grounds.

The principle of law applicable in the case of strictly public property is that while it is within the power of the Legislature, in the absence of a constitutional restriction, to make such property liable for the payment of local improvements, an enactment providing for such improvements will not be construed as including public property unless it so provides, expressly or by necessary implication. [City of Clinton to use v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 561; Inhabitants v. Mayor, 116 Mass. 193; City of Atlanta v. First Presbyterian Church, 86 Ga. 730.] In the case of Clinton to use v. Henry County, supra, l. c. 571, the dictinction between the two classes of property was recognized by this court in the following language: “That case is authority for the conclusion reached in the first part of this opinion, but we do not see that the case goes any further. As to many of the other cases cited by plaintiffs, it may be observed that there is a wide difference between property held and used for strictly public uses, as for courthouse and jail purposes, and property held by corporations organized for private gain, though the property is in a sense devoted to public use, as the property of railroads and cemetery companies. This difference will distinguish many of the cases cited by counsel for the plaintiff from the one now in hand. The property here in question is strictly public property, and on well settled principles of law cannot be held liable for these local improvement assessments until the Legislature so says in clear terms or by necessary implication, and that it has not done by the statute relating to cities of the third class.” And in the case of City of Atlanta v. First Presbyterian Church, supra, l. c. 736, discussing a statute providing for local improvements, in which no property was expressly exempt from liability for the cost thereof, the court said: “And yet, clear and definite as they are, we can be morally certain that they comprehended more than the Legislature intended they should; for they cover by their letter public as well as private property, and subject the whole alike to assessment, lien, levy and sale. That the public property of the United States, the State, the county or the city was intended to be dealt with thus is so improbable that we can have no hesitation in holding that an implied exception as to all public property can and should be engrafted upon the act by construction. And just here the real question in its ultimate form emerges: Can a like exception in favor of church property, which all will agree is not public but strictly private property, be recognized, and the words of the statute still further narrowed by construction so as to exclude it also?” The court held that while strictly public property would be excepted from such an enactment by the construction of the courts, it would not be so construed as- to exempt church property from liability.

Section 2181, Revised Statutes 1909, is as follows:

“All courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds, shall be exempt from attachment and execution.”

Relying upon this section of the law on the subject of executions and exemptions, counsel for respondent maintain that the property of the cemetery is not liable for local assessments. They reason that an assessment for a local improvement is a charge against the property benefited and can only be enforced by a special execution directed against such property; that, as cemetery property is exempt from execution, the law has provided no means of enforcing the collection of such assessments against cemetery property, from which it follows that such property must be held to be exempt from such liability. "We cannot give our assent to. this proposition. An examination of said section 2181 and the sections of the same article found in connection therewith, makes it clear that in the enactment of said section special executions against . property benefited, for the collection of an assessment for local improvements, are not intended to be included in the exemption therein mentioned. The first section of said article provides that: “The party in whose favor any judgment, order or decree is rendered, may have an execution in conformity therewith.” And the next succeeding section: “Such execution shall be a fieri facias against the goods, chattels and real estate of the party against whom the judgment, order or decree is rendered, and shall be to ■ the following effect, ’ ’ etc.

Other sections as to the exemptions of the execution debtor, making it the duty of the clerk of the court to indorse on the execution the debt, damages and costs, etc., etc., are equally convincing that section 2181 was not intended to include executions issued against specific property assessed for local improvements.

This question was considered in the case of Bloomington Cemetery Association v. People, 139 Ill. 16, in which the court, l. c. 20, said: “Nor does the fact that this land may be exempt from execution deprive the county court of the power to order it sold for a delinquent special tax. The exemption from execution here meant is exemption from sale on that writ as generally understood — a writ of ft. fa. It is not shown that any part of the land ordered sold has been actually used for burial purposes. This appellant is a private corporation, and its property may be sold like that of any other private owner, unless exempt by its charter. It is unlike a municipal corporation, which can only be compelled to pay a special tax or special assessment by mandamus. ’ ’

It is provided by sections 6704 and 6711, Revised Statutes 1909, relating to homesteads, that the homestead “shall be exempt from attachment and execution,” and “shall not be subject to attachment or levy of execution upon any liability hereafter- created.” As the language upon which respondent bases its claim of exemption is almost identical with that of the homestead law, then, if respondent’s construction should be adopted, it would be practically beyond the power of a municipality to enforce the making of local improvements in the residence portions of the city, for the reason that the homesteads would be exempt from assessment for the payment of the cost thereof. Indeed, the construction contended for by respondent, against the validity of the taxbills in this case, could with equal force and consistency be advanced by a homesteader against an execution even for general taxes, State, county and municipal.

In the case of Clinton to use v. Henry County, supra, it was sought to collect from the county tax-bills for local improvements, issued against the courthouse square. This court, l. c. 563, said: “The first-inquiry is whether the Constitution or statutes exempts this property from such charges.” The statute now relied upon by respondent was then in force and is referred to in the opinion, and as courthouses and the lots on which they stand are mentioned along with cemeteries in said section 2181, as being exempt from execution, the fact that this court in holding against the city in that case did not base its decision on the ground that courthouse property was exempt under said statute, makes it evident that the court did not consider the statute applicable in such cases.

Respondent cites certain New York cases which hold that cemetery property is exempt from liability for local assessments. An examination of these cases, as also of the cases cited by respondent from other States, has convinced us that they do not support respondent’s contention. In the case of Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506, the court construed a statute which exempted all cemetery property from “all public taxes, rates and assessments” and the court held such property liable for local assessments for the reason that the word public modified the words “rates and asessments” as well as the word “taxes,” and therefore that the exemption did not extend to private or local assessments. After the foregoing decision was rendered the general law applicable to cemeteries was amended and the subsequent case of Buffalo Cemetery Association v. City of Buffalo, 118 N. Y. 61, construed the law as amended. This law provided that: “No land actually used' and occupied for cemetery purposes shall be sold under execution or for any taxes or assessments.” The court held in that case that under the language of that statute cemetery property was exempt from local assessments, and that construction has been adhered to by that court in subsequent cases. [Matter of City of New York, 192 N. Y. 459.].

The language construed by the court in the latter cases is so different from that of said section 2181 that the decision lends no support to respondent’s contention in this case. On the other hand, the former decision, holding that cemetery property was not exempt from assessment for local improvements, and the recognition by the Legislature of the necessity of amending the law, as shown by the enactment of a new section expressly providing that no land used for cemetery purposes should be sold under execution or for any taxes or assessments, give support to the contention of appellant that the right to such exemption exists only when it is clearly embraced within the terms of a constitutional or statutory provision granting the exemption. It should be added that if exemption of cemetery property from sale on execution would give to it immunity from liability for local improvements then there would have been no necessity for adding in the New York statute the words “or for any taxes or assessments.”

Other questions have been discussed in the briefs of counsel which, in the view we have taken of the case, we do not deem necessary to decide.

After a careful consideration of the questions so ably presented by counsel for respondent, we are of opinion that the court erred in sustaining the demurrer to the'first and second counts of the petition, and accordingly the judgment should be reversed and the cause remanded. It is so ordered.

Ferriss and Brown, JJ., concur.


author: BROWN, J.

text:
    MACY NORRIS v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Plaintiff in Error.
    Division Two,
    February 6, 1912.
    1. APPEAL: Pending Against Another Defendant. Suit was brought against two defendants, but, before the cause was submitted to the jury, dismissed as to one of them, and that one appealed. Held, that the appeal as to it was improvidently granted, since no judgment had been rendered against it, and therefore the pendency of its appeal did not bar its codefendant, against which a verdict was returned and a judgment entered, from thereafter suing out a writ of error.
    2. -: -: Bill of Exceptions: Amendment Nunc Pro Tunc to Include Only Remaining Defendant. Where there were two defendants, and the cause was dismissed as to one of them, and a verdict returned and a judgment rendered against the other, and a timely order made allowing an appeal to that defendant as to which the cause was dismissed, and time within which it might file a bill of exceptions, it was proper, upon a proper showing, for the court, by a nunc pro tunc entry, to amend the order allowing the appeal and time so as to embrace the other defendant against which the judgment was entered.
    3. MOTION FOR NEW TRIAL: Admission and Exclusion of Evidence: General Assignment. Assignments in defendant’s motion for a new trial that “the court erred in admitting illegal and incompetent evidence offered by plaintiff” and “the court erred in excluding legal and competent evidence offered by defendant” are sufficient to call the trial court’s attention to alleged errors in admitting and excluding evidence, and to authorize the appellate court to consider any objection and exception to the admission or exclusion of evidence offered at the trial.
    4. EVIDENCE: Condition of Plaintiff’s Health: Non-Experts. Non-expert witnesses may testify as to the appearance of plaintiff as indicating the condition of her health both before and after the injury. And where they give the whole facts upon which they base their opinions, they may give their opinions. The fact that they are non-experts may weaken the probative force of their testimony, but not its competency.
    5. -: Photographs: Not Proven: Harmless. Photographs purporting to show the condition of the engine and cars immediately after the wreck, but not of the car in which plaintiff was riding at the time of the wreck, sworn to be true reproductions of the engine and cars by plaintiff but not by the photographer, may not be properly proven; but where there is no material difference in the testimony offered by plaintiff and defendant as to the condition of the cars and engine after the wreck, their admission is not reversible error, since ' defendant sustained no injury from their introduction.
    6. INSTRUCTION: Injury to Passenger: Presumption of Negligence. It is not error to instruct the jury that proof of the derailment and wrecking of the car in which plaintiff was riding as a passenger raised a presumption that the derailment and consequent injuries to plaintiff were the result of negligence on the part of defendant railroad company.
    7. -: -: Safe Employees: High Degree of Care. A railroad company is required to operate its passenger trains with careful employees and to exercise a very high degree of caution to avoid wrecks and consequent injuries to passengers; and an instruction so declaring is proper.
    8. -: -: To be Satisfied. An instruction telling the jury in a suit by a passenger for injuries, that the burden rests upon the railway company “to prove to your satisfaction” that the roadbed, track and ties were reasonably safe and sound” at the place of derailment, is, at its worst, non-direction, not misdirection. It does not require the jury to find beyond a reasonable doubt that defendant was not guilty of any negligence before they could render a verdict in its favor.
    9. -:-: Non-DIrectlon. An appellant in a civil case cannot complain of a failure of respondent’s instruction to define a word used therein unless he asks for and is refused a correct instruction on the point.
    10. -: Statements Against Interest: Presumed to be True. The court did not err in modifying defendant’s instruction telling the jury that plaintiff’s statements against her interest “must be taken as true” to read “are presumed to be true.”
    11. IMPROPER REMARKS: No Request for Rebuke. Except in extreme cases a mere objection and exception to the remarks of respondent’s counsel to the jury, will not authorize a reversal. There should also be a request that the court rebuke counsel, and if no rebuke is administered an exception should be saved.
    12. INJURY TO WOMB: Not Made Known to Conductor or Physician: Seeking Medical Aid. Plaintiff’s case is not weakened by the fact that, at the time of the wreck of the passenger train, being inquired of as to her injuries, she failed to tell defendant’s conductor and physicians that her womb or genital organs were injured, nor by the fact that she returned to her relatives and friends in a distant city before seeking medical aid, nor by the fact that she did not complain of the injury to her womb when she first placed herself under the care óf a physician.
    13. VERDICT: Sufficiency of Evidence: Reversal on Appeal. Where every feature of plaintiff’s case in an action at law is supported by substantial evidence, the appellate court cannot reverse a judgment in her favor on the ground that there is substantial contradictory evidence.
    14. -: Excessive: $10,000: Injury to Womb. The evidence . is 'clear that plaintiff, an unmarried woman, prior to her injuries, was in excellent health, able to satisfactorily perform her labors as a saleslady; but as to the extent and permanency of her injuries is somewhat conflicting. While it is clear that she has suffered much pain and that she cannot be restored to health without undergoing a painful surgical operation, it is not proven that her injuries are necessarily permanent. Held, that a verdict for $10,000 is too large by $2500.
    Error to Jackson Circuit Court.— Hon. Henry L. McCune, Judge.
    Affirmed (conditionally).

      Edw. J. White for plaintiff in error; Elijah Robinson and Martin L. Glardy of counsel.
    (1) The court admitted incompetent and illegal evidence on the part of the plaintiff, (a) The evidence of the various non-expert witnesses, giving their opinion that the plaintiff appeared to he in perfect health; that “they had noticed her quit waiting on customers as though in terrible misery; ’ ’ that they had noticed “frowns on her face as though she was suffering;” that she was in perfect health; for the reason that all these various statements of the non-expert witnesses were calculated to injure the .defendant’s cause before the jury. The witnesses were not qualified to give such opinions. Non-expert witnesses are only permitted to detail facts and not to give their opinions, such as the witnesses here were permitted to do, as to the condition of the plaintiff’s health prior and subsequent to the alleged injury. Sharp v. Railroad, 114 Mo. 100. (b) The five photographs, identified only by the plaintiff as having been made by some man named Butcher, who lived in Colorado, and mailed to her by the person who took the photographs, without any other identification or proof of the correctness of such photographs. Photographs are never, admissible in evidence until they are proven by testimony to be true photographic prints of the thing in ■ question. Baustian v. Young, 152 Mo. 317; Golds-borough v. Railroad, 60 N. J. L. 49; Beardslee v. Columbian Twp., 188 Pa. St. 496; Hupfer v. Distilling Co., 144 Wis. 279; Pessolano v. Pessolano, 34 Mise. Rep. 16; Trahen v. Hicks, 131 Mo. 180: (3) The court erred in giving instructions 1, 2, 3 and 4 on the part of the plaintiff, (a) The plaintiff’s first instruction is defective in several particulars. In instructing the jury that the law presumed that the injuiy to the plaintiff was caused by defendant’s negligence and that the fact of the injury and the derailment “make it a presumptive case for the plaintiff.” Huff v. Cox, 2 Ala. 311; Saunders v. Railroad, 147 Mo. 424; Blair v. Railroad, 31 Mo. App. 231; Eldridge v. Railroad, 32 Minn. 253; 21 Am. & Eng. Ry. Cas. 496; Patterson, Ry. Acc. Law, p. 443; Bailey v. Railroad, 152 Mo. 461; Ham v. Barrett, 28 Mo. 388; McVey v. Railroad, 125 Mo. App. 569; Yamell v. Railroad, 113 Mo. 579: The plaintiff’s first instruction was also erroneous because after advising the jury that the plaintiff had established a “presumptive case” in proving her injury and derailment, the instruction made such presumptive case conclusive, unless the defendant had discharged its duties referred to in other instructions of the plaintiff, (b) The third instruction given at the instance of the plaintiff, predicated a right of recovery upon the defendant’s failure to employ “careful employees,” and placed the duty .in employment of its employees as “ a very high degree of care and caution, ’ ’ v/hereas the law only requires ordinary care and caution in the employment of its employees. This instruction was also erroneous in placing the burden of proof upon the defendant and compelling it to establish to the “satisfaction” of the jury, without any guide to the jury as to how or in what manner they should be “satisfied,” thus permitting the jury to require a degree of proof that might convince them beyond the peradventure of a doubt and permitting them to enter the field of caprice and conjecture. Shinri* v. Tucker, 37 Ark. 589, 11 Ency. PI. & Pr., 183; Kirchner v. Collins, 152 . Mo. 397; Suse v. Railroad, 80 N. Y. Supp. 513. (4) The court erred in failing to withdraw incompetent and prejudicial remarks of counsel during their argument to the jury. Williams v. Railroad, 123 Mo. 573; Harper v. Western Union, 92 Mo. App. 304; Estes v. Railroad, 111 Mo. App. 1; Lew v. Transit Co., 106 Mo. App. 335; Rice v. Solley, 176 Mo. 148; Winder v. House Furnishing Co., 165 Mo. 542. (5) The court erred in failing to set aside the verdict because it was exCessive. The evidence, disclosed by the entire record, shows that the plaintiff’s injuries were not connected with the derailment of the defendant’s passenger train and aside from a few bruises on her person there was an entire absence of any connection between the only permanent injury shown, i. e., the slight displacement of her womb, with the derailment of the defendant’s train. To permit a verdict in this amount to stand upon such flimsy evidence as the record in this case discloses, as said by this court in the Partello case, “would be so excessive and beyond reason, and so gross, as to warp the sense of justice. It could not be accounted for upon any theory, other than prejudice and passion.” Partello v. Railroad, 217 Mo. 661.

      Boyle & Howell for defendant in error.
    (1) During the trial the case was dismissed as to the Missouri Pacific Company, but proceeded to a verdict against its codefendant. Motions for new trial and in arrest were filed, heard and overruled, and an affidavit for appeal to the Supreme Court filed by the Missouri Pacific Railway Company and leave given to it to file a bill of exceptions on or before the 3d day of the October term, 1907. The Missouri Pacific Railway Company also gave bond for appeal at the time to the Supreme Court. This, then, was the status of the case at the time. In one and the same order and at the same time the Missouri Pacific Railway Company was allowed an appeal, and given time to file bill, and its appeal bond fixed at $20,000, which was duly filed and approved. The affidavit for appeal and the bond show that the appeal was taken by the Missouri Pacific Railway Company. The bill of exceptions shows that the .appeal was taken by the “defendant.” If “defendant” means this defendant, then there are two proceedings, one by appeal and the other by error, and proceeding by error can not be maintained while the appeal continues, and the writ should be refused unless the appeal has been dismissed. If the appeal was not taken by the plaintiff in error, then it was never allowed leave to file bill of exceptions and has no bill here. And the motion for entry nunc pro tunc was improvidently sustained. Harris v. Chit-wood, 210 Mo. 560; St. Louis v. Butler, 201 Mo. 396; Turner v. Edmonston, 210 Mo. 119. If the appeal has not been dismissed, then this writ of error should be dismissed as it appears that the appeal was taken by the plaintiff in error herein. Yigo v. Bradford, 129 Mo. App. 656. (2) “A. non-expert witness may give his opinion as to the apparent health of a person whom he has had opportunity to observe. Thus a non-expert witness ‘may testify that a person appeared to be suffering, was weak and helpless, appeared sick, looked pale or paler than usual or was in declining health.’ ” Partello v. Railroad, 217 Mo. 655; State v. Buchler, 103 Mo. '207. (3) As to the photographs introduced in evidence showing the condition of the train and surroundings immediately after the wreck, the plaintiff testified that they were correct representations of the cars and surroundings which she saw at the time. She testified that she saw the photographer take them. Baustian v. Young, 152 Mo. 317; Kirkpatrick v. Railway Co., 2ll Mo. 82. The authority is overwhelming that these photographs were admissible in evidence under the circumstances and the evidence of the case; but even if they were not, how could they have harmed the appellant? No photograph could have shown this wreck as bad as it was. The whole testimony of all the witnesses shows the complete wreck of the train; it would not have been possible for a photograph to exaggerate the situation as detailed by the testimony of the witnesses. (4) Appellant complains that the trial court erred in instructing the jury that “the law presumed that the injury to the plaintiff was caused by defendant’s negligence.” Instruction one objected to by appellant, after stating the preliminary facts and requiring the jury to find plaintiff a passenger, etc., contains this language: “Then the law presumes that such injury to plaintiff was caused by defendant’s negligence and such facts if proven by a preponderance of the evidence make out a presumptive case for the plaintiff and you should find a verdict for the plaintiff,” etc. Hipsley v. Railroad, 88 Mo. 352; O ’Gara v. Transit Co., 204 Mo. 733. The accident was not the result of that want of care and vigilance which the law made it obligatory on the defendant to bestow. Price v. Railway Co., 220' Mo. 444. Defendant was required by the law to assume the burden of showing that it exercised the highest degree of care, and it must show that before it can avoid the “presumption that it was occasioned by some negligence of the defendant.” Bailey v. Railroad, 152 Mo. 461, quoted by appellant, has no application to the case at bar and the use of the word presumption is not in all cases forbidden. Clark v. Railroad, 127 Mo. 207. (5) The damages were not excessive. The case of O’Grara v. Transit Company, 204 Mo. 743, is similar in facts and injuries to plaintiff’s. Dr. W. Eugene King testified (among other things) “that the womb was tipped forward quite a great deal; tipped over and has adhered to the bladder and the other viscera about there; and that it was bent quite a little at the neck, ‘which we call anteflexión.’ ” That these conditions cause the plaintiff to suffer a great deal from month to month at the regular menstrual flow and produce a great deal of nervousness and general ill health. They keep the patient in a state of nervous tension at the menstrual time, and they suffer a great deal during the menstrual period. At the present time “her health is very poor” and being asked as to whether such conditions might be cured, he answered: “Local treatment only relieves them, and does not cure them. Surgical interference sometimes very greatly relieves them, but I do not believe the condition is curable. I do not think a surgical operation would give her permanent relief; but a surgical operation would relieve her in a measure. ’ ’ And being asked: “Is there any treatment then, which, in your judgment would give her permanent relief?” he answered: “No sir.” Dr. W.- S. Wheeler testified: “I think she is an unhealthy woman, her nervous system is broken' down, and the uterus out of place, and there is a thickened condition of the tissues which would naturally make her the wreck she appears to be and is. ” He then described the conditions, the adhesions, the ligaments and" the 'womb of plaintiff. He said her condition would naturally disturb her health, and that the condition was abnormal and unhealthy. And being asked as to whether the Conditions he found were permanent, he answered: “Well, they are permanent now. I don’t know what otherwise it might be.- If a-surgical operation was performed on her. there is some hope of relieving her, but at the present it is a permanent disease.” He said that a surgical operation to break up the adhesions and straigthen the displaced or bent womb might and sometimes does correct it. “It is a very doubtful procedure.” Doctor Snell, physician and surgeon in Kansas City thirty years, in the practice forty years, testified that: “I found anteflexion, that means the uterus is bent upon itself with the fundus or top of the uterus bending forward and bent about forty-five degrees upon itself.” He said he meant forty-five degrees from the normal. He showed a diagram marked Exhibit 1 taken by the use of instruments, which indicated the exact position of the uterus. Being asked as to what effect such position of the uterus would have upon the health of the patient, he answered: “Well, a uterus in that condition, pressing upon the bladder, would by reflexed nervous irritability, produce a nervous derangement of the entire system. Q. What would you say, Doctor, as to these conditions being permanent or otherwise? A. Nature can never restore it to it’s proper position, and nature can not correct the condition of the nervous system unless it is restored to its proper position. Q. In what, way would the patient find relief? A. Why, we would have to make an incision down into the pelvic cavity and break up the adhesions and restore it to its normal position, and anchor it to the abdomen in front.” There can with such testimony be no doubt that the plaintiff' has been permanently injured and disabled. Flaherty v. Transit Co.,'207 Mo: 333,-
   BROWN, J.

— Action for damages for alleged injuries sustained by plaintiff through' the derailment of one of defendant’s trains upon which she was a passenger. Plaintiff had judgment below for $10,000, and the defendant brings the case here by writ of error.

This suit was originally instituted in the circuit court of Jackson county, Missouri, on July 10, 1905, at which time.the plaintiff in her petition did not allege any injury to her womb; but the first suit was dismissed, and in the present action, which was instituted on September 18,1905', she alleges that “she was bruised and injured about her back and spine and over the region of her kidneys and in the kidneys. Her left hip was severely bruised and wrenched, left leg was severely wrenched and bruised in and near the knee. Her left shoulder was bruised and contused. Her right leg was severely wrenched, bruised and contused. Her uteris was misplaced and anteverted, thereby causing inflammation of the pelvic parts and adhesions of the uterus to the pelvic walls, on account of which plaintiff has since suffered almost constant pains in her pelvic regions and in her head and back. That .by reason of such injuries, her nervous system was severely shocked and impaired, and that said injuries are permanent and lasting in their character and effect.”

Plaintiff testified that on June 9, 1905, she was a passenger on defendant’s train between Texarkana and Hope, Arkansas, a distance of thirty-five miles. A few miles from Texarkana, said train was derailed and wrecked, some of the front cars leaving the track and sliding or rolling down an embankment; the front end of the chair car in which plaintiff was riding jumped off the track, sliding partly down an embankment, the rear end thereof remaining attached to the dining car on the track. When the wreck occurred, plaintiff tried to arise in her chair, and by the sudden movement of the car was thrown violently against the arm of her chair and down into the aisle of the car, where she was trodden upon by persons who were scrambling to get out of the car. In being thus thrown down and trodden upon, she received severe bruises upon her left hip, abdomen, back, shoulder , and legs, cansing a displacement of her womb, and resulting in permanent injury to her health. After the alleged injury, plaintiff went on to Hope, Arkansas, where she spent tlie night and the following clay with friends. She then returned to Texarkana, where she remained one night, going thence by train to Kansas City, where some of her relatives and friends resided, and where she applied for and received the first medical aid for her injuries..

The physician who treated plaintiff at Kansas City testified that there were many bruises upon her body and limbs, and that she was in a very nervous condition bordering on collapse when she came into his office. He gave her internal treatment for her nervous condition and a local application for her bruises, but did not then discover any injury to her womb-or uteris. She remained under this physician’s care for three months, and more than a month after the injury, continued to be nervous, complaining of severe pains in her back and the lower part of her pelvis, accompanied by suppressed menstruation. He then examined her genital organs for the first time and found them very much congested and inflamed, and her womb anteverted or tipped forward, causing her much pain, and producing a highly nervous condition. Her physician testified that this unnatural condition of her womb could have been produced by a bruise or blow of any kind.

Said physician and two others employed by plaintiff, together with three physicians employed by defendant, examined plaintiff a short time before the trial. The physicians employed by plaintiff testified that her womb was still anteverted or anteflexed and adhered to her bladder, causing severe pains, and greatly affecting her nerves, stating that in their opinion it was very doubtful if plaintiff could be re stored to a normal condition of health.

The three physicians employed by defendant testified that plaintiff’s womb was not anteverted and did not adhere to her bladder, bnt on the contrary, was slightly retroverted or tilted backward, bnt not sufficiently so to in any manner impair her health.

Plaintiff further testified that prior to the injury complained of she had never been afflicted with any womb trouble or disease of the nerves and was in perfect health; that she was able to work all day and until ten o’clock at night as a saleslady in a dry goods and millinery store, for which services, together with assistance rendered in purchasing goods, she received fifty dollars per month. That she lost three months from her employment immediately following her injuries, and then returned to work at forty dollars per month. That while since her injury she- had been able to do some work as a saleslady, she has been and is now afflicted with a severe nervous trouble, accompanied by constant pains in her back and genital organs, so that -she can only stand on her feet during short intervals of time; that she is also subject to fainting spells; which ailments have caused her to lose much time from her work, and forced her to resign her position.

May Cooper, one of plaintiff’s witnesses, and the party whom she visited at Hope, Arkansas, testified that plaintiff was so nervous and suffering to such an extent the day following the wreck that she was compelled to lie down most of the time; that there were many bruises upon plaintiff’s body and limbs at that time. That she roomed with, plaintiff several months in the years 1903 and 1904, during which time plaintiff slept soundly, appeared to be in excellent health, and worked long hours as saleslady, without fatigue or inconvenience. That immediately after the wreck and several months later she roomed with plaintiff, and noticed that she could no longer sleep soundly, but was very nervous, and apparently in very poor health.

A number of witnesses introduced by plaintiff testified that prior to her alleged injuries she appeared to be in perfect health, had a clear complexion, full, rosy cheeks, bright eyes, and weighed about one hundred and thirty pounds, and was able to work long hours assisting her employers in selling and buying goods. That in a few months after she received her alleged injuries, her weight decreased to one hundred and two pounds, her complexion became pale and sallow and her eyes dull and languid, in which condition she continued until the time of the trial; and that she is now subject to fainting spells which cause her to lose much time from her work.

On the part of defendant, there was testimony that its engineer and conductor went through the train and among the passengers immediately after the derailment, and could find no one who claimed to have been injured in any manner.

Four physicians whom defendant sent to the wreck testified substantially to the same effect. One of said physicians testified that he knew plaintiff, having prescribed for her two or three times in 1904; that at the wreck he asked her if she was seriously injured, and she replied that she was “pretty badly shaken up, but not seriously hurt, she thought.” Two other persons who were riding on’ the same car with plaintiff at the time of the derailment, testified that they saw no one 'thrown out of their seats or thrown down in the aisle of the car. One of these witnesses stated that she talked with plaintiff just after the.wreck, and that plaintiff seemed to be greatly excited, but made no complaint of having been injured.

The conductor of defendant’s train testified that at the time of the derailment he was standing in the aisle, about the middle of the chair car where plaintiff was riding; that he was not thrown off his feet, and that the car did not stop very suddenly. He, however, stated that the front end of said chair car was thrown off the trucks and the rear wheels off the track; that when it stopped, the passengers were all “making for the door, to get out;” but he saw no one thrown down or out of their seats.

Defendant also introduced evidence to the effect that plaintiff did not complain of her injuries to the family with whom she stopped over night at Hope, Arkansas, immediately after the wreck. That she called the lady with whom she stopped into her bedroom and showed her a small red spot the size of a dime on one of her hips which she thought was rubbed by her dress. That she went walking, driving and street car riding next day with friends. There was evidence to the effect that before the wreck plaintiff was refused life insurance because she had had hemorrhages some ten years before and her father had died of consumption. That before receiving her alleged injuries for which she is suing, she was treated for dyspepsia, malaria, and at times had a sallow complexion, frequently took medicine, and expressed anxiety about the condition of her lungs.

Several employees of defendant testified that defendant’s roadbed and track were in good condition a,t the place where the wreck occurred. That defendant’s cars and engine were likwise in perfect condition and were not running at an excessive rate of speed, and that the wreck could not have been avoided by the highest degree of care on the part of defendant’s serv-' ants.

On this point, plaintiff testified that she saw a number of rotten railroad ties on defendant’s roadbed which had been broken up by the derailment, and that a rail of defendant’s track protruded through the bottom of the car on which she was riding, and had no ties hanging to it; that the ties from which said rail had been torn appeared to be rotten. She also testified that the alleged injury to her womb was not discovered by her physician until after her first suit was instituted..

This action was originally prosecuted against the Missouri Pacific Railway Company, jointly with the defendant, but before the cause was submitted to the jury, the plaintiff dismissed her suit as to the Missouri Pacific Railway Company.

Such additional parts of the record proper and evidence as are necessary to a full understanding of the case will be noted in connection with our rulings upon the issues presented.

OPINION.

Plaintiff (defendant in error here) contends that we are precluded from considering this appeal, and particularly that we should refuse to consider the alleged errors in the admission and rejection of evidence noted in the bill of exceptions, because, (1) there is an appeal pending in this case on the part of the Missouri Pacific Railway Company, one of the defendants herein; (2) the bill of exceptions was not filed within the time granted by the court; and (3) defendant’s motion for a new trial does not specifically designate the evidence which it claims was improperly admitted or excluded.

The record shows that an appeal was granted to the Missouri Pacific Railway Company, after the action had been dismissed as to that defendant.

While it is true that the same defendant cannot bring a cause to this court both by appeal and writ of error, yet, in this case no judgment had been rendered against the Missouri Pacific Railway Company, and therefore it was not entitled to an appeal, and the act of the trial court in improviclently granting such appeal or the pendency thereof in no way barred its codefendant, the St. Lonis, Iron Mountain & Southern Railway Company, from suing out its writ of error herein.

The second contention of plaintiff grows out of the fact that the record proper indicates that the order extending the time beyond the term at which the judgment was rendered for settling and filing bill of exceptions was granted to the Missouri Pacific Railway Company, and not to the St. Louis, Iron Mountain & Southern Railway Company. However, the order extending the time was by proper application to the trial court amended nunc pro tunc, so as to embrace the St. Louis, Iron Mountain & Southern Railway Company; and we think this amendment was properly made. There was evidence that there was no other suit pending in the trial court in which the plaintiff, Macy Norris, was a party; and as the cause had been dismissed as to the Missouri Pacific Railway Company, it was not entitled to an appeal, and we are convinced that the trial court would not have intentionally granted it an appeal or time within which to file exceptions.

The order extending time to file bill of exceptions was evidently intended by the trial court to apply to the St. Louis, Iron Mountain & Southern Railway Company. We find that the record entries of the clerk and the entries on the judge’s docket afforded ample warrant for the court to make the nunc pro tunc amendment of its record; and we hold that the bill of exceptions was filed in due time.

Defendant’s motion for a new trial contains the following general allegations of error:

“The court committed error in admitting illegal and incompetent evidence offered by plaintiff.
“The court committed error in excluding legal and competent evidence offered-by defendant.”

Tó sustain her contention that the foregoing allegations are insufficient to call the trial court’s attention to the alleged errors in the admission and exclusion of evidence, plaintiff cites the rulings of this court in State v. Brown, 168 Mo. l. c. 474, and State v. David, 159 Mo. 534.

These cases sustain plaintiff’s theory, but the rule of law which they announce is no longer adhered to by this court. [State v. Barrington, 198 Mo. l. c. 76; Collier v. Lead Co., 208 Mo. l. c. 257.]

In the ease of Collier v. Lead Company, 208 Mo. l. c. 258, this court in speaking through Judge Graves, said: “We announce again that if objections are made and exceptions saved to the action of the trial court in the admission or exclusion of testimony, then the general assignment in the motion is sufficient.”

We think the rule regarding motions for a new trial announced in the Barrington and Collier cases is sound; and therefore overrule plaintiff’s attack on the bill of exceptions.

This brings us to the assignments of error upon which the defendant (plaintiff in error here) seeks a reversal of the judgment.

Defendant contends that error was committed in permitting non-expert witnesses to give evidence of the condition of plaintiff’s health before and after her alleged injuries.

It is true that mere opinions of non-expert witnesses as to the health of a party would not be admissible ; but in this case the court did not permit the witnesses for plaintiff to merely give their opinions, but required them to state the whole facts upon which their opinions were based. Consequently, their testimony was entirely competent as tending to prove that plaintiff was in a healthy condition before the accident, and also that her health was poor after the accident. It is true that a non-expert might easily be mistaken about the condition of the health of an individual with whom he was intimately acquainted, and, for that matter, the same can be said of the testimon}*- of medical experts. The fact that.'some of plaintiff’s witnesses were not experts only goes to weaken the probative force of their testimony, and does not render them ineligible to testify to the appearance of the plaintiff as indicating the condition of her health.

The cases of Sharp v. Railroad, 114 Mo. 94, and Railroad v. Demsey, 40 Tex. Civ. App. 398, cited by defendant, instead of sustaining its contention, are very good authority for the admissibility of the evidence of non-expert witnesses, where the facts upon which such witnesses base their opinions are detailed to the jury, as in this case. [Partello v. Railroad, 217 Mo. 645.]

Defendant also complains of the introduction of five photographs purporting to show the condition' of defendant’s engine and some of its cars immediately after the wreck. The -photographer who made these pictures was not sworn, and the only evidence'that they' are true reproductions of the cars and engine as they appeared immediately after the wreck, is the testimony of the plaintiff that they are correct representations of said cars and engine.

While it may be true that these photographs were not properly proven, we do not think their introduction could have harmed the defendant in any particular. They do not purport to be photographs of the car on which plaintiff was riding; and as there is no material difference in the evidence offered by plaintiff and defendant as to the condition of the engine and cars after the wreck, we cannot conceive of any injury that defendant sustained by the introduction of these photographs. Their admission was not reversible error.

Defendant in its brief asserts that the evidence of its engineer and also of the physicians sent by it to the wreck, to the effect that they went among the passeng'ers, made a diligent inquiry and failed to find anyone who complained of having been injured, is competent evidence to prove that plaintiff was not injured. We agree with defendant on this point; but as the evidence of all these parties was admitted without objection by plaintiff, defendant had the full benefit of its probative force, and on this point is without any grounds of complaint.

Defendant further complains that the court committed reversible error in excluding a part of the testimony of Doctor Corclier, an expert who examined plaintiff a short while before the trial. Upon reading the record, we find that the court only sustained one objection to the testimony of Doctor Corclier, after-wards permitting him to make a full explanation of his knowledge of plaintiff’s condition, and also to criticise and discredit the evidence of plaintiff’s physicians and the methods they adopted in ascertaining the nature and extent of plaintiff’s injuries. Consequently, this alleged error of the trial court must be disregarded.

Defendant complains of plaintiff’s instructions numbered 1 and 2 as follows:

“1. The court instructs the jury that if they find and believe from the evidence that on or about the 9th day of June, 1905-, the plaintiff was a passenger on one of defendant’s trains, and that while so a passenger and being carried thereon upon defendant’s road, the car in which plaintiff was being carried was derailed, and that plaintiff was thereby thrown from her seat in said car and thereby injured, then the law presumes that such injury to plaintiff was caused by defendant’s negligence, and such facts, if proven by a preponderance of the evidence, make out a presumptive case for the plaintiff, and you should find a verdict for the plaintiff, unless you further believe from the evidence that notwithstanding this presumption the defendant at the time of the happening of the injury had in fact then fully performed, or was then fully performing its duty, as defined and stated in other instructions herein, toward plaintiff as such passenger, or that such injury to plaintiff, if any, did not occur because of any failure of the defendant in such respect.
“2. The court further instructs the jury that having received the plaintiff upon board of one of its cars as a passenger for the purpose of transportation along its line, the duty and obligation of the defendant railroad to the plaintiff and its other passengers on • that car was to carry such passengers safely as far as it is capable by the exercise of a very high degree of care and caution; and the defendant is responsible for all injury resulting to such passenger from any failure to exercise such care, and when the passenger suffers injury by the derailment of the train or car in question, the presumption is that it was occasioned by some negligence of the defendant railroad, and the burden of proof is cast upon defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury was occasioned by inevitable accident, or by some cause which could not have been avoided by the exercise of a very high degree of care and caution; and by a very high degree of care and caution as used in these instructions is meant that degree of care which is ordinarily used by a very careful and skilful person under the same or similar circumstances.”

Defendant contends that it was error to tell the jury in these instructions that proof of the derailment and wrecking of the car on which plaintiff was riding as a passenger raised a presumption that the derailment and consequent injuries to plaintiff were the result of negligence on the part of defendant, citing the case of Bailey v. Railroad, 152 Mo. l. c. 461, wherein Judge Gantt speaking for this court said: “This court has, on more than one occasion, condemned the practice of instructing juries as to a presumption of negligence, when all the facts are in evidence . . . When the facts are known and admitted or are testified to by witnesses, then it is the province of the jury to pass on their legal effect under proper instructions. There is no occasion for indulging in presumptions.”

What was said in the Bailey case about presumptions was then and is now sound law, as applied to the facts in that case, which involved an alleged injury to a conductor in charge of a street car through negligence of another street car company, in failing to keep its crossing in repair. But quite a different rule applies to injuries received by passengers from that which applies to employees of a transportation company.

In the recent case of Price v. Metropolitan Street Railway Company, 220 Mo. l. c. 446, a suit involving injuries to a passenger on a street railway car, Judge Graves, speaking for the court in Banc, approved an instruction to practically the same effect as those now assailed by defendant. In that case, the instruction approved by the court in Banc contained the following provision:

“If you believe f^om the evidence that there was a collision between two trains of defendant on one of which plaintiff was a passenger, (if you believe she was a passenger thereon), the presumption is that it was occasioned by some negligence of defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident or by some cause which such highest degree of care could not have avoided.”

This doctrine was again approved in the case of Cooper v. Realty Co., 224 Mo. l. c. 723.

We therefore hold that instructions numbered 1 and 2, complained of by defendant, correctly announced the law as heretofore declared by this court.

Defendant also complains of instruction numbered 3, given at the request of plaintiff, as follows:

“3. The court instructs the jury that the defendant as a common carrier of passengers was bound to provide a reasonably safe track and roadbed, and reasonably safe and stanch road, good cars, and careful employees to manage the same, so far as same could be provided by the exercise of a very high degree of care and caution, and is responsible for all injuries resulting from a failure to exercise such care by its agents and servants, and if the jury believe from the evidence that while the plaintiff was a passenger on one of defendant’s cars at the time and place in evidence, the car in which plaintiff was a passenger was derailed, and that plaintiff was thereby injured, then the burden of proof rests upon the defendant to prove to your satisfaction that the appliances and machinery by which said car was operated, and the roadbed, track and ties of the road at the place of de ■ railment, were reasonably safe and sound, so far as the exercise of a very high degree of care, caution, skill, diligence and foresight could provide, and that said injury, if any, was caused by inevitable accident or defects in said machinery, appliances, roadbed, track or ties that could not have been seen, detected or known to the defendant, its agents or servants, by the exercise of such high degree of care and caution.”

This instruction is assailed because it required defendant to operate its train with careful employees and exercise a very high degree of caution to avoid wrecks and consequent injuries to the plaintiff as one of its passengers. That part of said instruction numbered 3 now under consideration contained nothing but the sound doctrine that defendant was required to use a very high degree of care in all matters affecting the safety of its passengers.

Further complaint is made against this instruction numbered 3 on the ground that the word satisfied” should not have been used therein, because its use might imply that the jury was required to find beyond a reasonable doubt that defendant was not guilty of any negligence in order to authorize a verdict in its favor. Defendant cites the case of Kirchner v. Collins, 152 Mo. 397, in which the words “fair preponderance” as used in an instruction, were condemned as possibly implying something more than a mere preponderance of the evidence. It was, however, held in that case that the use of the words “fair preponderance,” while subject to criticism, did not constitute such an error as justified the reversal of the case; and we think the same is true as to the word “satisfied” in the instruction under consideration. The word “satisfied,” as used in said instruction numbered 3., is not a definite statement of the law which required the defendant to prove by a preponderance of the evidence that the wreck was not caused by negligence on defendant’s part. The instruction thus being indefinite, did not constitute misdirection, but should be classified as non-direction, or a failure to instruct on all the law of the case.

The words “preponderance of evidence,” however well explained, have a somewhat indefinite meaning, and just what effect they have on .the minds of the average jury is somewhat problematical.

In the trial of civil cases, many important duties rest upon the attorneys for both plaintiff and defendant, among, which is to aid the court in giving to the jury all the instructions which they need to enable them to arrive at a correct verdict; and the unsuccessful litigant is not entitled to a reversal because the instructions given at the request of his adversary do not cover all the points upon which instructions should have been given, unless such unsuccessful litigant has prepared and requested proper instructions on the points about which he complains. [Kerr v. Railroad, 113 Mo. App. 5; Harmon v. Donohoe, 153 Mo. 274; Matthews v. Railroad, 142 Mo. 666; Browning v. Railroad, 124 Mo. 55.]

In Kerr v. Railroad, supra, Judge Broaddus, of the Kansas City Court of, Appeals, correctly announced the law applicable to the point in issue, in the following language:

. “It is also contended that the court committed error in giving plaintiff’s first instruction. It reads: ‘The court instructs the jury that if they believe and find from the evidence,’ etc. The objection is that it fails to place the burden of proof upon plaintiff to prove his case by a preponderance of the evidence. The instruction is good enough as it stands. The jury are instructed that they must arrive at a verdict from the evidence; that is, from all the evidence in the case. If defendant wanted the jury instructed as to the preponderance of the evidence, it ought to have asked the court to so instruct. But it failed in that respect, for which reason it is in no condition to avail itself of a technical error at most; and when it could have had, by asking, an instruction imposing the burden of proof upon plaintiff. ’ ’

Defendant also complains of the action of the trial court in refusing to give its instructions numbered 1 and 2, which if given, would have told the jury that the plaintiff could not recover on account of alleged injuries to her womb, because her petition contained no charge that she was so injured.

The learned counsel who assigned this alleged error did not try this case in the lower court, and was evidently under the impression that the petition on which the case was tried below did not count upon any injuries to plaintiff’s womb; but since the oral argument in this court, he has by stipulation agreed to a correction of the record, showing that the case was tried upon a petition which does charge injuries to plaintiff’s womb, through the derailment of defendant’s train. Hence, it is apparent that defendant’s instructions numbered 1 and 2 were properly refused.

Defendant further complains that the trial court erred in modifying its instruction numbered 4, which, as prayed, read as follows:

“4. - The court further instructs you that the plaintiff, Miss Norris, has been a witness in her own behalf. You are the sole judges of her credibility. All statements made by her, if any, which are against her interest, must be taken by you as true; but her statements in her own favor are only to be given by you such credit as you, under all the facts and circumstances in evidence, may deem them entitled to.”

This instruction as modified and given, reads as follows:

“4. The court further instructs you that the plaintiff, Miss Norris, has been a witness in her own behalf. You are the sole judges of her credibility. All statements made by her, if any, which are against her interest, are presumed to be true; but her statements in her own favor are only to be given by you such credit as you, under all the facts and circumstances in evidence, may deem them entitled to.”

Appellant does not cites us to any authority condemning the modification of this instruction, and we are convinced that the law is more correctly announced in the modified instruction than in the form in which it was originally asked. Hence, the court did not commit error in making the modification.

Defendant also complains that the trial court committed reversible error in failing to withdraw incompetent and prejudicial remarks of counsel for plaintiff in his argument to the jury.

By the record it appears that plaintiff’s counsel in his argument said: ‘‘Gentlemen, this young girl comes to you, not of the silk stocking aristocracy.”

Objection to this remark was sustained, and plaintiff’s counsel withdrew it; and continuing his argurnent, said: “Now, when she was asked about resigning, Judge Robinson says, ‘Did you write out your resignation!’ And she answered, ‘Why, no. Of course not.’ She is not like one of those big railroad officials. When a railroad lawyer or a railroad president resigns, they write it out and have a big red seal on it and a pink ribbon and all that.”

Defendant objected to this remark, and the objection was sustained.'

Counsel also said: “Years ago the father of this brave .little woman died of consumption, and left her to make her own way in the world. ’ ’

Objection was made to this remark; but the court does not seem to have made any ruling on same. As the matter stated was clearly within the evidence, there was no ground for objection. The fact that plaintiff’s father died of consumption, leaving plaintiff an orphan, had been brought out in the evidence by the defendant, as tending to show a probable cause for the decline of plaintiff’s health; and defendant had no just grounds for complaint about an argument based on evidence which it brought into the record.

In concluding, plaintiff’s counsel said:

“And so far as the-evidence in this case shows, there is not one spot or blemish or black mark on her character or name, wherever she has been, and this is the first time in her whole life long that she has ever been assailed, and she is assailed now because this defendant company wants to save this round sum of money which Judge Eobinson says looks bigger and bigger to this young lady all the time.”

The defendant excepted to all the foregoing remarks by plaintiff’s attorney; but there is nothing in the record to show that he asked the court to rebuke counsel for plaintiff, or to withdraw the alleged improper remarks from the consideration of the jury.

It is the peculiar duty of the trial court to regulate the argument of counsel and keep thorn within the record. Tu tlie case of Wendler v. People’s House Furnishing Company, 165 Mo. 542, Judge Yalliant' in speaking for this court, said: “The trial judge having heard all the arguments is in a much better position to know whether an improper influence has been exerted than the appellate court can possibly be with only a fragment of the speech quoted. If the privilege of argument has been abused and an appeal to the passions has carried the jury away from its duty, the trial court should set aside the verdict.”

The trial court should not permit argument which amounts to an appeal to the jury to give judgment for one party on account of his poverty or the wealth of the opposite party, and trial courts should promptly rebuke counsel who indulge in such arguments. The most effective way of shutting out improper argument is for the trial court to inform the attorney that a verdict obtained by improper remarks will promptly be set aside by the trial court.

Except in extreme cases, it is not sufficient to secure reversal, for an attorney to merely object and except to the remarks of opposing counsel. He should request that the transgressing counsel be rebuked by the.court; and where the proper rebuke is not administered, he should except to the court’s failure to rebuke ; otherwise, this court will be disinclined- to grant a new trial based on improper remarks of counsel'. [State v. McMullin, 170 Mo. 608, l. c. 632: State v. Phillips, 233 Mo. l. c. 307.]

Defendant also contends that the verdict of the jury is not supported by substantial evidence. We have considered this feature of the case with great diligence. Three or four witnesses testified that they saw external bruises upon plaintiff’s body shortly after the wrecking of defendant’s train. Whether the blows that produced those bruises caused the present disordered condition of her womb is not very clearly proven. It is always difficult to properly diagnose or prove the cause or extent of internal injuries. Plaintiff’s physician testified that the injuries to her. womb could have been produced by a blow, and the bruises upon her body furnish at least substantial evidence that she received sufficient blows to produce the injury to her womb.

Miss Cooper, whom plaintiff visited at Hope, Arkansas, the next day after the wreck, stated that the plaintiff expressed a desire to speedily return to her sister and friends at Kansas City before she became too sick to do so. If she made that statement, plaintiff evidently felt that she was seriously injured. Her case is not weakened by the fact that she failed to tell defendant’s conductor, engineer and physicians at the' wreck that her womb or genital organs were injured, nor by the further fact that she returned to her relatives and friends at Kansas City before seeking medical aid, nor by her failure to complain of said injury to her womb when she first placed herself under the care of a physician. She probably at that time did not know that her womb was injured, and it was only natural that an unmarried female should be very reluctant to make known an injury or ailment of that character.

The defendant proved that prior to plaintiff’s alleged injuries she had taken medicine for dyspepsia and malaria, and had expressed anxiety about the condition of her lungs; but none of these ailments would, according to the record, tend to produce displacement of the womb.

We find that every feature of plaintiff’s case is supported by substantial evidence; so that under the well-settled rule of this and all other appellate courts of this country, we cannot reverse the judgment on that ground.

Defendant also attacks the judgment for plaintiff • on the ground that it is excessive, citing the decision of this court in the case of Partello v. Railroad, 217 Mo. 661.

The overwhelming preponderance of the evidence is to the effect that prior to the injuries received by plaintiff, she was in an excellent state of health, able to perform her duties as a saleslady to the entire satisfaction of her employers. The evidence as to the extent and permanency of her injuries is somewhat conflicting; and while it is clear that plaintiff has suffered much pain and that she probably cannot be restored to health without undergoing a painful surgical operation, it is not proven that her injuries are necessarily permanent; and we therefore find that the verdict of the jury is excessive to the amount of $2500.

Accordingly, it is ordered that the judgment shall be affirmed for the sum of $7500 as of the date of the return of the verdict and the .rendition of judgment and to bear interest from that date, if the plaintiff shall within ten days from this date remit the sum of $2500 as of the date of the verdict; otherwise, the judgment will be reversed and the cause remanded for a new trial.

It is so ordered.

Kennish, P. Jand Ferriss, J concur.