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    In re ASSESSMENT OF COLLATERAL INHERITANCE TAX IN ESTATE OF JAMES D. LANKFORD.
    Division Two,
    July 27, 1917.
    1. FINDING OF FACTS: By Court Sitting as Jury: Appellate Rule. The findings of fact by the trial court in a jury-waived law case are attended on appeal with the presumptions of verity which clothe the verdict of a jury, and will not be disturbed if supported by any substantial evidence whatever; but if there is no evidence upon which to base such finding, although no instructions were asked or given and no objections or exceptions were taken at the trial, but the point is saved only in the motion for a new trial, the appellate court will interfere.
    2. BESIDENCB: Intention: How Shown. Residence is largely a matter of intention, and intention is to be deduced from acts and utterances of the person whose residence is in issue.
    3. -:-: As Manifested by Will: Abandonment. A statement in decedent’s will, made in this State shortly before his death in this State, that his residence was at ‘‘Marshall, Saline County, Missouri,” is a solemn written admission that his residence was at such place; and a further statement that his residence had formerly been at “Pueblo, county of Pueblo and State of Colorado,” together with the admission, plainly indicate both an abandonment of a former residence and the acquisition of a new one; and the two make out a prima-facie case of residence in this State for the purposes of an assessment of a collateral inheritance tax.
    4. -: -: -Disqualification to Vote. The fact that, after an absence of thirty years in other states, decedent stated in November that he was not qualified to vote in this State, after his return to the residence of his niece in April, where his will was made and where he died in December, is no contradiction of the solemn admission in his will that he was a resident of this State, for he was not qualified to vote in this State until he had resided here one year.
    5. -: -: -: No Payment of Taxes. Nor does the fact that,'after an absence of thirty years, he paid no personal taxes in this State, contradict the prima-facie case made by the will, since his death, after he returned to this State, occurred before he became liable for taxes here. Nor does the fact that he was . not assessed for taxes here.
    6. EXAMINATION OF FACTS: Appellate Eule. All the cases are reviewed, and it is held that the rule that has become firmly fixed in this State is: (a) The findings of facts, either general or special, of a trial court sitting in a jury-waived case at law, will, have applied to them in, the appellate court the same presumptions of verity which attach to the verdict of a jury in a law case; (b) such findings of fact may be examined by the appellate court'if the point that there was no (sufficient evidence is properly preserved in the motion for a new trial alone; (c) in such cases an examination as to sufficiency of the evidence may be had in the appellate cofirt, whether or not instructions were asked, given or refused; and (d) such examination will extend only to a determination of the single question whether there is any substantial evidence to sustain the finding of the trial court. If there is such substantial evidence, and if such - substantial evidence he merely contradictory, or, if the evidence adduced be such that reasonable men may draw therefrom more than one inference to sustain the judgment, or if the evidence offered reasonábly tends to sustain the finding made, such finding is absolutely conclusive upon the appellate court, and it cannot interfere therewith; but if'there is no substantial evidence to contradict the prima-facie case máde out by plaintiff, the appellate court will reverse the finding made by the trial judge for defendant, and remand the cause for a new trial, with instructions that, if the evidence is not materially changed, the finding be for plaintiff.
    Appeal from Saline Circuit Court . — Hon. Samuel Davis, Judge.
    Reversed and remanded,

      A. B. Hoy and Orville M. Barnett for appellant.
    (1) Sec. 309, R. S. 1909, provides, in effect, that all property passing by will or the intestate laws of the State from any person while a resident of the State, to others than to certain excepted individuals and purposes, shall be subject to an inheritance tax; while the same section limits the inheritance tax payable on the estate of a non-resident to property which shall be within the State at the time of death. In the estate at bar a large part of the personalty was at death of testator located outside of the State. By the terms of the will a large part of the estate passes to those whose right to succession is subject to payment of inheritance tax if decedent was domiciled in Missouri; a smaller portion, by reason of being within the State, is subject to tax, if decedent was a non-resident. ('2) There is no substantial evidence upon which to base the finding of the trial court to the effect that decedent was a non-resident; and that the only evidence entitled to consideration on that question is conclusive that the testator was at date of death a resident of and domiciled in Saline County, Missouri. (3) The evidence upon which appellant relies as showing residence in this State is found wholly in positive and unqualified declarations in the last will and testament, (a) The weight to be given to such declarations must very much depend upon the particular circumstances of each case. Smith v. Croom, 7 Fla. 161; In re Ayers Estate, 84 Neb. 16; Ennis v. Smith, 14 How. 400; Wilson v. Terry, 9 Allen (Mass.), 214; Christye on Inheritance Taxation, p. 824; 14 Cye. 864. (b) The probative force of such declaration is increased, by the appointment of executor for the declared purpose of executing testator’s will in the same jurisdiction of which he declares himself to be a resident. Merrill v. Morrissett, 76 Ala. 440; 4 Ency. Evidence, 862. (c) The whole tenor of a will may be such that it is inconsistent with the idea of testator’s residence abroad. Cruger v. Phelps,* 47' N. Y. 61. (4) Conceding every word of the testimony to be true, there is nothing therein overcoming the, strong prima-facie proof of residence contained in the declarations made by testator himself under the solemn sanction of his last will and testament. (5) Domicile of deceased is established in Missouri as of April 12, 1912, and such domicile is presumed to have continued without clear proof of abandonment, and the setting up of a new domicile outside the state. Ramey v. Dayton, 77 Mo. 682; 14 Cyc. 859; In re Coulton’s Estate, 128 Iowa, 542; Anderson v. Watts, 138 U. S. 694; Inhabitants v. Inhabitants, 88 Mass. 508.

      Robert M. Reynolds and Albert R. James for respondents.
    (1) The finding and judgment of the trial court on a question of fact in a law case, in which no instructions are asked or given, cannot be reviewed or disturbed by the appellate court. Rausch v. Michel,.192 Mo. 293; Jordan v. Davis, 172 Mo. 599; Lewis v. Muse, 130 Mo. App. 201; Sutter v. Raeder, 149 Mo. 307; Bozarth v. Legion of Honor, 93 Mo. App. 564; Easley v. Elliot, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggéss, 63 Mo.‘ 233; Henry v. Bell, 75 Mo. 194; Harrington v. Minor, 80 Mo. 270 Gaines v. Fender, 82 Mo. 497; Cunningham v. Snow, 82; Mo. 587; Sieferer v. St. Louis, 141 Mo. 586; Swayze v. Bride, 34 Mo. App. 414; O’Howell v. Kirk, 41 Mo. App. 523; Claflin v. Burkhart, 43 Mo. App. 226; Morgan v. Railroad, 51 Mo. App. 523; Hatton v. St. Louis, 264 Mo. 634; Searritt Est. v. Casualty Co., 166 Mo. App. 570; Buford v. Moore, 177 S. W. 865; Wilkinson v. Western Union, .163 Mo. App. 71; Prendergast v. Graverman, 166 Mo. App. 33; Strother v. Barrow, 246 Mo. 241; Paxton v. Bonner, 172 Mo. App. 479; Keyser v. Hayes, 190 Mo. App. 380. (2) The determination of a person’s residence depends on his intention and his intention must be judged by all the facts and circumstances in connection with his residence. Hall v. Schoeneck, 128 Mo. 661 ; Stephens v. Larwill, 110 Mo. App. 156; Green v. Beck-with, 33 Mo. 384; Johnson v. Smith, 43 Mo. 449; State ex rel. Ramey v. Dayton, 77 Mo. 6/8; Chariton County v. Moberly, 59 M.o. 238; State ex rel. v. Bunce, 187 Mo. App. 607; Northern v. McGaw, 189 Mo. App. 362; City of Winchester v. Van Meter, 164 S. W. (Ky.) 323. James D. Lankford, not being a resident of Missouri, the cash, bank draft and certificates of stock in foreign corporations, which were in Missouri at the time of his death, merely for safe-keeping and not otherwise, are not subject to the collateral inheritance tax in the State of Missouri. Gilbertson v. Oliver, 4 L. R. A. (N. S.) 953; Cooley on Taxation (3 Ed.), 24; Kirtland v. Hotchkiss, 100 U. S. 491; 37 Cyc. 1561; Matter of Tulane, 51 Hun, 213, 4 N. Y. Supp. 36; 37 Cyc. 1563; Neilson v.'Russell, 19 L. R. A. (N. S.) 887; People v. Griffith, 245 111. 532; In re Helena, 236 Pa. 213, 46 L. R. A. (N. S.) 1173, 1175 (notes); Dunham v. Trust Co., 193 N. Y. 642; In re Bishop, 82 App. Div. 112, 81 N. Y. Supp. 474; Ross on Inheritance Taxation, sec. 181.
   FARIS, J.

This is a proceeding begun in the probate court of Saline County for the purpose of assessing a collateral inheritance tax against the estate of James D. Lankford, deceased. The probate court held that the estate was subject to the tax, but upon an appeal to the circuit court of Saline County and a trial therein of the issues de novo, that court found that decedent was not, at the time of his death, a resident of Missouri and therefore his estate was not .liable to this tax, and judgment went in favor of the estate. Prom this judgment an appeal was taken.

The facts shown in evidence are few and simple. The movant for the assessment of this tax (whom for convenience we shall hereinafter designate as plaintiff) offered the will of James D. Lankford (called herein decedent) as containing a solemn admission of the fact of his residence in this State, and after also offering the appraisement and other formal orders, rested. The apposite provisions of the will of decedent are the first and sixth clauses, which run in pertinent part thus:

“I, James D. Lankford, of Marshall, Saline County, Missouri, formerly of Pueblo, county of Pueblo and State of Colorado, being of sound and disposing mind, revoke all former wills by me made, and now make this, my last will and testament.”

Tbe will further provided in the sixth clause thereof that “in the event of the death of either of said legatees the said Belle Lankford, Paris M. Walker, Marian Garrard or Nancy Hagood leaving children or other descendants surviving them (direct descendants) as heirs, then it is my will that my said trustees shall thereupon and thereafter hold said share of such one so dying for the use and benefit of the children or direct descendants of such one who according to the laws of descent and. distribution of the State of Missouri shall be entitled as heirs of such one to claim such estate.”

It was further provided by other paragraphs of said will that certain trustees to administer further provisions of the will, which provisions are not here pertinent, should be appointed by the circuit court of Saline County, Missouri, or by the judge thereof in vacation, and that the bonds required to be given by the trustees should be made by “some responsible corporation authorized to execute bonds in the State of Missouri as surety.” It was further provided in the eighteenth paragraph of said will that in ease it became necessary to administer the estate of decedent in the probate court such administration should be had “in accordance with said trusts and the proper orders of the probate court and the laws of the State of Missouri.” (Italics ours.)

On the part of the beneficiaries under said will (hereinafter for convenience called defendants) the testimony of but one witness was offered and defendants rested. The whole of the testimony for defendants elicited from the one witness mentioned, is as follows:

“James D. Lankford was my uncle and I was well and intimately acquainted with him during his lifetime. He was born in Saline County, Missouri, and lived here until about thirty years ago, at time which he went to the State of Colorado, took up his residence there, went into business in partnership with his brother, Garrett Lankford, and made Colorado his home. ' This partnership continued until about seven or eight years ago, when it was dissolved. Since that time James D. Lankford, so far as I know, has maintained no permanent home, but has spent a portion of his time in Colorado, Oklahoma, Old Mexico, Kansas and Missouri, probably spending more of his time in Missouri than any other one place. He had large property interests in Oklahoma, Old Mexico, Colorado and Kansas, and would spend a portion of his time each year in these places looking after his interests. He never voted in Missouri or asserted any of the rights of citizenship here since taking up his residence in the State of Colorado thirty years ago. He was never assessed on any property or paid any taxes on any property in Missouri since leaving here thirty years ago. At the time of his death, December 25, 1912, he had been in Marshall, Missouri, with his niece since about the 1st of September, 1912, or about four months.' On election day, in November, 1912, knowing that he was a great admirer of Woodrow Wilson, I asked him if he was not going to vote for his friend Wilson and he said ‘No, I have no vote here.’ He said nothing further in regard to the matter. I did not know of his having any settled home after the dissolution of his partnership in Colorado.”

The court made a special finding of facts upon the one question of whether decedent was or was not at the time of his death a resident of Missouri and held that “James D. Lankford, at the time of his death, had not established his domicile in Saline County, Missouri, and was not a resident of said county within the meaning of the statute in such eases made and provided,” and thereupon rendered-judgment that the estate of decedent was not liable for any tax whatever under the Collateral Inheritance Tax Law. It will be seen therefore that the question of the residence of decedent is the sole question in the case.

This is a case at law tried before the court sitting as a jury. No instructions were asked or given. The court found against the plaintiff upon the facts, holding that the evidence offered by plaintiff failed to show that decedent at his death was domiciled in Saline County. It is urged that this finding is against the evidence, and we are asked by plaintiff to reverse the case for this reason. Against this contention defendants’ learned counsel urge that since the case is a law case, tried before the court without a jury; since no objections or exceptions (save to the overruling of the motion for a new trial) were taken upon the trial, and no instructions were asked, given, or refused, the finding of the learned judge nisi is absolutely conclusive upon us here upon appeal.

If there is any substantial evidence to sustain the judgment below, we are required to sustain it. The findings of fact by the learned trial judge in a jury-waived case at law come to us attended by all of the presumptions of verity which clothe the verdict of a jury (38 Cyc. 1946; 2 R. C. L. 206; Woods v. Johnson, 264 Mo. 1. c. 293; Hatton v. St. Louis, 264 Mo. 634); and in such case the finding of the trial judge will not be disturbed upon appeal if such finding be supported by any substantial evidence whatever. The rule to be followed in such cases is that while we will not weigh the evidence, we will interfere when there is no evidence whereon to base the judgment, although no instructions are asked, or given. [State ex rel. v. Guinotte, 156 Mo. 1. c. 521; Moore v. Hutchinson, 69 Mo. 429; Wilson v. Albert, 89 Mo. 1. c. 544; May v. Crawford, 150 Mo. 1. c. 528; Garrett v. Greenwell, 92 Mo. 1. c. 125; Robbins v. Phillips, 68 Mo. 100; Whitsett v. Ransom, 79 Mo. 258; Hartt v. Leavenworth, 11 Mo. 629; Hubbard v. Fuchs, 164 Mo. 1. c. 430.] Applying this rule to the facts before us in the instant case, we think there was no substantial evidence contravening the case made by plaintiff’s proof of decedent’s solemn written admissions and conclude that the judgment ought to have been for appellant.

Residence is largely a matter of intention. [Lankford v. Gebhart, 130 Mo. 621.] This intention is to be deduced from the acts and utterances of the person whose residence is in issue. Here by a most solemn written admission made in the very will by which the property was devised to defendants, decedent said that his residence on the 12th day of April, 1912, was at “Marshall, Saline County, Missouri,” and that his former residence had been “Pueblo, county of Pueblo and State of Coloradowhich admission plainly indicated both an abandonment of a former or old residence and the acquisition of a new one. [Johnson v. Smith, 43 Mo. 499.] There is not a scintilla of proof that decedent ever had a residence in but two states. He was born in Missouri. He went to Colorado, remained there about thirty years, and then in April, 1912, before his death in the December following, came back to Saline County, Missouri, where his relatives live, made his will, thereafter visited divers places where he had financial interests, till September, 1912, when he came back to Saline County, and there remained at the house of his niece till he suddenly died in December, 1912.

The only contention that is made whereon is bottomed any conflict in the evidence which would serve to make applicable here the rule of reliance upon the lower court’s finding, is upon the decedent’s statement to his nephew Walker that he (decedent) “had no vote in Missouri.” Clearly this is no contradiction, for manifestly decedent had never had a domicile in Missouri since he left it thirty years before, until he came back and made his will in April, 1912. He could not vote in November, 1912, for the very simple reason that he had not 'been domiciled in Missouri for one whole year. So he could truthfully have made the statement attributed to him and yet have been at his death a resident and even a citizen of Missouri. In short, the statement made to the witness Walker by decedent proves nothing, and since the solemn admission made in writing made out a prima-facie case for plaintiff, the judgment should have been for plaintiff, unless some evidence came in on the part of defendants which was contradictory of it. A reference to all of the evidence offered by defendants, which in fairness we set forth in the statement, discloses that nothing whatever was offered by defendants to disprove the prima-facio case so made out by decedent’s solemn written admission contained in his will.

While not urged upon our attention, we may say in passing that the facts that decedent was not assessed in Saline County and that he paid no taxes therein, are likewise incompetent and of no probative value. If he had paid taxes on personal property such fact would have been competent and of some evidentiary weight; but manifestly the fact that he did not do so can be of no aid to us here and was none to the court below-. Moreover, we take notice that his death occurred too soon after his taking up residence in this State for him to become liable to pay taxes upon an assessment made at the earliest date thereafter, which was possible under our taxing statutes. Touching the fact that-he was not assessed in this State the same principle applies. If he had procured an assessment - of his personalty to he made, such fact would have been of probative value as indicating intention, but the fact of nonassessment can be of no evidentiary value, since no inferences touching it, which wholly affect decedent, can possibly be drawn from it; such failure could have arisen from the inadvertent neglect of the assessor, and certainly we cannot judicially notice that men are accustomed to run after the assessor in order to get their property assessed so that they may pay taxes. The evidence shows moreover that decedent was temporarily absent on June 1, 1912, and so continued till September, following.

It has been held here, in conformity with the rule elsewhere, that there is often a distinction between the' word “residence,” which is used in the applicatory statute (Sec. 309, R. S. 1909), and the word “domicile.” [Johnson v. Smith, 43 Mo. 499; 34 Cyc. 1648; See. 8057, R. S. 1909; ITussman v. Druege, 181 S. W. l. c. 118.] If this distinction should, mayhap, exist in this case it would open up an interesting question, wliieli we do not find it necessary to pass on here.

II. The troublesome question as to how far this court is warranted in reviewing the evidence in cases at law tried before the court without a jury and wherein no instructions are asked or given, has apparently been ruled along contradictory lines. Particularly is this true as to the earlier cases decided prior to the enaction of what is now section 2083, Revised Statutes 1909, which seems to have been passed in 1871 (Laws 1871, p. 49, sec. 34), and which substantially requires an appellate court to render such judgment as the trial court ought to have given, and such judgment as to the appellate court shall seem according to law.

But however this may be, no settled rule was followed till some thirty-five years ago. [Lionberger v. Pohlman, 16 Mo. App. 392.] A large majority of the early cases held that unless the judgment of the court nisi were sustained by substantial evidence, we had power to reverse for this reason alone. [Rennick v. Walton, 7 Mo. 292; Wilson v. Burks, 8 Mo. 446; Hartt v. Leavenworth, 11 Mo. 629; Swan v. Hyde, 9 Mo. 849; Howard v. Coshow, 33 Mo. 118; Heyneman v. Garneau, 33 Mo. 565; Alexander v. Harrison, 38 Mo. 258; Morris v. Barnes, 35 Mo. 412; Blumenthal v. Torini, 40 Mo. 159; McKay v. Underwood, 47 Mo. 185; Garvin’s Admr. v. Williams, 50 Mo. 206; Davis v. Fox, 59 Mo. 125.] There are el few early cases, only meagerly reported, however, which seem to hold that in any case at law tried by the court, or by a jury wherein no instructions were asked or given, the finding of facts nisi is absolutely conclusive upon the appellate court, regardless of whether there was any evidence whatever in the record to support such finding. [Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggess, 63 Mo. l. c. 251.] But by the present rule, which is well-settled, we may interfere if the judgment rendered is not supported by substantial evidence.

It was said in the very early case of Hartt v. Leavenworth, 11 Mo. 629, l. c. 639, that: “We have uniformly declined interfering with the verdict of a jury, or a court sitting as a jury, where the evidence conflicted, and no point of law was raised by instructions. This court undoubtedly possesses the power of ordering a new trial, where the circuit court refuses to grant one, on the sole ground of the verdict being against evidence. It is a power, however, which it has not been thought expedient to exercise, unless in very clear cases. We think the present is a case of this character, there being no evidence whatever in the record to show any title in Crain, from whom the defendant' derives his right, except that the box containing the property was marked with his name, and that circumstance is satisfactorily explained. ’ ’

The above case was one wherein the evidence adduced on plaintiff’s part was wholly oral,, and while the opinion considered the verdict of a jury, we have seen that the rule is precisely the same as to the presumptions which we here entertain in a case at law whether the judgment is based on a jury’s verdict, or upon the finding of the court sitting as a jury. [Woods v. Johnson, 264 Mo. 289, and cases cited supra.]

In the case of Pipkin v. Allen, 24 Mo. 520, much of the evidence was oral; in fact, the case turned at last wholly upon testimony of witnesses. Plaintiff being cast below appealed, and this court reversed and remanded the case, saying: “The court below should have sustained the motion to review the finding in regard to the fact about the cancellation of the sale from Boyle to James Anderson. The evidence in 'this record does not justify or support that finding. When Boyle made his deed to Russell in November, 1813, the contract or sale between himself and James Anderson was manifestly in existence —in force. Anderson died before the date of that deed to Russell. How then became the contract cancelled or rescinded? The finding is not warranted in this particular by what appears to us of record. The judgment must be reversed and the cause remanded for further proceedings.”

The case of Robbins v. Phillips, 68 Mo. 100, was replevin. The evidence adduced upon the crucial question was all oral. Plaintiff lost and brought error to this court. "We reversed it and sent it back for a new trial, saying: “No instructions were asked or given and the question presented is whether the evidence justifies the finding. We are not of opinion that it does, or that it has any tendency in that direction.....Judgment reversed and cause remanded.”

The case of Whitsett v. Ransom, 79 Mo. 1. c. 260, was for damages for assault and battery. Naturally the evidence was wholly oral. Plaintiff being cast appealed. This court in an opinion by Philips, C., reversed and remanded it upon the sole question of the weight of the evidence, saying upon that point this: “The question, therefore, for determination is, whether the record presents such a state of evidence as to justify this court in ordering a venire de novo. . It is rarely the case that appellate courts interfere with the discretion of the trial courts in directing a new trial on a mere question of weight of evidence. The credibility of witnesses and the probative force of a given fact are peculiarly within the province of the jury. It is only where this court is well satisfied of a palpable disregard of law. and evidence on the part of the trial jury, and that the trial court in refusing a new trial has wrought manifest injustice, or shown an unjudicial bias, that it feels it to be its duty to interfere.”

The ease of Garrett v. Greenwell, 92 Mo. l. c. 125, was an action for damages for burning a threshing machine. The evidence adduced could not therefore have been documentary. Plaintiff being defeated nisi appealed. We reversed and remanded the case, saying: “In ordinary cases, where the action is one at law, this court does not interfere in regard to quéstions of the mere weight of evidence. In this case, however, the evidence is of the most cogent character that Charles Jolioh burned the plaintiff’s machine. This evidence is both direct and circumstantial, consisting of previous threats, and subsequent admission of the fact of his guilt; his wearing boots which made certain tracks, and those tracks being found the next morning, leading directly from where the machine was burned to within a few yards of his house; his alarmed and excited manner, when visited by a neighbor the next day, and finally his act in changing those boots for others, at the suggestion of another neighbor. Looking at all these things, it is a matter of profound surprise that the jury, with all this evidence before them, could have found as they did. But, inasmuch as they have done so, our duty, under the rule announced in the eases of Whitsett v. Ransom, 79 Mo. 258, and Spohn v. Railroad, 87 Mo. 74, is clear, and so the judgment is reversed and the cause remanded.”

The identical rule upon principle is. announced in dozens of other cases decided by us, a few of which we append: Moore v. Hutchinson, 69 Mo. 429; Morris v. Barnes, 35 Mo. 412; Baker v. Stonebraker, 36 Mo. 338; Wilson v. Albert, 89 Mo. l. c. 544; May v. Crawford, 150 Mo. l. c. 528; State ex rel. v. Guinotte, 156 Mo. l. c. 521; Graney v. Railroad, 157 Mo. l. c. 680; Hubbard v. Fuchs, 164 Mo. l. c. 430; Morrison v. Bomer, 195 Mo. l. c. 538; Woods v. Johnson, 264 Mo. 289; Hatton v. St. Louis, 264 Mo. 634; Truitt v. Bender, 193 S. W. 838.

In the case of State ex rel. v. Guinotte, supra, at page 520, it was said: ‘ ‘ Since then, however, this court has made the same ruling as to the verdict of a jury in will contests as that in ordinary trials, to-wit, that such a trial is an action at law, and that this court would not reverse the judgment because the jury found against the weight of the evidence. [Young v. Ridenbaugh, 67 Mo. 574.] And in Appleby v. Brock, 76 Mo. 314, a similar ruling was made, and also it was ruled in that case that this court would examine the record to see if there is any testimony to support the finding. To like effect is McFadin v. Catron, 138 Mo. l. c. 227. The amendment of the statute of 1825 in the particular mentioned, as well as the rulings just quoted, have thus placed a will contest on the same plane as the trial of any other civil action, for we have ruled in many cases of ordinary trials that while we will not weigh the evidence in law cases, yet that we will interfere when there is no evidence whereon to base the verdict, although no instructions are asked. [Hartt v. Leavenworth, 11 Mo. 629; Robbins v. Phillips, 68 Mo. 100; Pipkin v. Allen, 24 Mo. 520; Heyneman v. Garneau, 33 Mo. 565; Morris v. Barnes, 35 Mo. 412; McEvoy to use v. Lane, 9 Mo. 49; Wilson v. Albert, 89 Mo. l. c. 544; Baker v. Stonebraker, 36 Mo. 338; Whitsett v. Ransom, 79 Mo. 258.]”.

The hooks are full of cases of actions to break wills, wherein, as we have over and over again ruled, the proponent of the will pulls the laboring oar (Carl v. Gobel, 120 Mo. l. c. 295; Goodfellow v. Shannon, 197 Mo. l. c. 278; Craig v. Craig, 156 Mo. l. c. 362), yet time after time we have held that verdicts which overturned or “broke” wills, but which had no substantial foundation in the evidence on which to stand, must be reversed — many times with directions to probate the rejected will. [Thomasson v. Hunt, 185 S. W. l. c. 169; Hayes v. Hayes, 242 Mo. 155; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees of Princeton University, 192 Mo. 95; Archambault v. Blanchard, 198 Mo. l. c. 425; Story v. Story, 188 Mo. 110; Hamon v. Hamon, 180 Mo. l. c. 702; Byrne v. Byrne, 181 S. W. l. c. 392.]

On the other hand the cases which seem to announce a different rule are for the most part we think fairly easy to reconcile with what we say above, and with what the cases hold which we cite. For example, the case of Buford v. Moore, 177 S. W. l. c. 872, was a case at law tried by the court without a jury. Plaintiff won upon evidence which was.contradictory. Held, correctly, that the finding of the trial court upon the facts is conclusive. The learned writer of that opinion did not intend to say that where plaintiff recovers in a case' at law tried before the court, the defendant may not challenge the sufficiency of plaintiff’s evidence to make out a case. Hamilton v. Boggess, 63 Mo. l. c. 251, is likewise a case at law tried before the court wherein plaintiff had judgment. There was a mass of contradictory testimony offered, which this court declined to weigh, saying that in such a case we would not pass upon the weight of the evidence. But by way of dictum, the learned judge went out of his way to say: “We wish it to be understood that it is not our province to determine facts, or review the finding of juries o-r courts on them, except in chancery cases.”

Certainly the learned jurist who wrote the opinion in the above case did not intend .to say that a defendant who lost below cannot in an appellate court challenge the sufficiency of the evidence offered by plaintiff as the basis of the latter’s recovery. This case contains the very strongest language we have been able to find' upon this point and yet nothing is clearer than that the obiter dictum above quoted is palpably wrong.

The case of Chilton v. Nickey, 261 Mo. 232, was a case wherein there was some evidence to uphold the finding nisi. So it was correctly ruled by us that in such a case the lower court’s finding is conclusive upon the appellate court. [Cunningham v. Snow, 82 Mo. 587.] The ease of Morrison v. Bomer, 195 Mo. l. c. 538, which is much quoted and relied on as stating the rule of absolute conclusiveness, does not do so, but on the contrary states the rule thus: “This determination is conclusive upon us if it might reasonably have been reached upon the evidence presented.” [Hatton v. St. Louis, 264 Mo. 634.] Similarly are Strother v. Barrow, 246 Mo. l. c. 251; Sieferer v. City of St. Louis, 141 Mo. l. c. 593; Bartlett v. Kauder, 97 Mo. 356; Schad v. Sharp, 95 Mo. 573, and Jordon v. Davis, 172 Mo. l. c. 608, all cases at law wherein plaintiffs prevailed. Moreover, there was in all of them conflicting evidence. So the rule stated in those cases, applied to the facts thereof, is undoubtedly correct, and in nowise militates against the rule we labor to show is correct. Neither do we find any fault with the case of Rausch v. Michel, 192 Mo. l. c. 302, urged upon our attention. There the court said: “This is an action at law. No instructions were asked, given or refused. There is, therefore, no question open for review here except errors apparent upon the record proper, and the question whether under the issues the plaintiff made out a prima-facie case.” (Italics ours.) This is likewise the rule stated in Sutter v. Raeder, 149 Mo. l. c. 307. Besides, the above case, in addition to stating the rule correctly, was a case wherein plaintiff recovered below. The rule in such case is too well settled for quibble, discussion or citation of authority. °

There are, as we say above, some old cases which while regrettably meager as to the reported facts, seem boldly to announce the rule that regardless of the entire lack of evidence on which to sustain the verdict of a jury, or the judgment of a judge sitting in a jury-waived case at law, such verdict or judgment is conclusive upon us on appeal. [Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322.] While these cases have never been overruled specifically, they have long been ignored in practice. In the first of these eases, namely, Easley v. Elliott, supra, the plaintiff recovered; yet it was said that defendant could not challenge the sufficiency of the evidence adduced, or object that there was no evidence whatever to support the judgment rendered. No one would be so bold as now to urge such a doctrine as this.

In the case of Lionberger v. Pohlman, 16 Mo. App. l. c. 397, Thompson, J., who was both a most learned judge and an able writer upon the substantive law, refers to the change in our holdings upon this question, and thus states the rule: ‘ The rule settled by recent decisions in the Supreme Court and this court is, that where there is no substantial testimony to support the verdict of a jury upon'a given issue, the appellate court will reverse a judgment on the verdict.”

This holding of the above learned judge has been followed by the Courts of Appeals with practical unanimity of decision since the rule announced was promulgated. [Wilkinson v. Western Union Tel. Co., 163 Mo. App. 71; Prendergast v. Graverman, 166 Mo. App. 33; Paxton v. Bonner, 172 Mo. App. 479; Keyser v. Hays, 190 Mo. App. 380.]

We.have already seen that we early got away from the strict and crabbed rule of Easley v. Elliott, supra, and announced a rule substantially in the language of that Judge Thompson sets forth. [Whitsett v. Ransom, supra; Garrett v. Greenwell, 92 Mo. l. c. 125; Woods v. Johnson, supra; Hatton v. St. Louis, supra.] Any change in this well settled rule would, if carried to its last analysis, work havoc in many fields of the law. It would render us wholly unable to interfere in any case with the verdict of a jury or to pass as a matter of law upon the point of lack of evidence in any case whatever. It would be to abdicate the powers conferred on us by the Constitution and the statute and leave both trial courts and juries untrammeled by any overseeing control.

It follows, we think, that from the adjudged cases, we may fairly deduce the below conclusions: (a) The findings of fact, either general or special of the trial court sitting in a jury-waived case at law, will have applied to them in an appellate court the same presumptions of verity which attach to the verdict of a jury in a law case (Woods v. Johnson, supra); (b) such findings of fact may be examined by an appellate court if the point that there was insufficient evidence be properly preserved in the motion for a new trial alone (Blakely v. Railroad, 79 Mo. 388; Carver v. Thornhill, 53 Mo. 283); (c) in such cases an examination as to the sufficiency of the evidence may be had here, whether there were instructions asked, given or refused; but (d) such examination by us will extend only to a determination of the single question whether there is any substantial evidence to sustain the-finding of the court. If there is such substantial evidence, and if such substantial evidence be merely contradictory, or, if the evidence adduced be such that reasonable men may draw therefrom more than one inference or inferences to sustain the judgment (Finnegan v. Railroad, 244 Mo. l. c. 653; Linderman v. Carmin, 255 Mo. l. c. 66), or (stated another way), if the evidence offered reasonably tends to sustain the finding made (Hatton v. St. Louis, supra), such finding is absolutely conclusive upon us, and we cannot interfere.

Measured by the above rules, we think the primafacie ease made out by the plaintiff herein was not contradicted by any substantial evidence whatever. It results that the case must be reversed and remanded for a hew trial, if the parties are so advised; upon which, should the proof on defendants’ part be not materially strengthened, the judgment should be for plaintiff. It is so ordered.

All concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    EDWARD J. LAMPORT and COMMERCE TRUST COMPANY v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LTD., Appellant.
    Division Two,
    July 27, 1917.
    1. ACCIDENT INSURANCE: Accidental or Intentional Injury. Evidence tending to show that plaintiff fell from the step of a street car, his shoulders striking the ground first; that immediately after the accident a bruised place was discovered on the rear portion of the top óf his head and he was lying on his back, his left hand crushed; that the unconsciousness was caused by concussion of the brain resulting from the injury to his head, and could not have been produced by the injury to his hand; and that he became unconscious before his hand was crushed, is evidence that the injury was accidental, and that he did not intentionally thrust his hand under the car wheel, and made a case for the jury.
    2. -: Warranties: That Beneficiary Was Wife. In a suit on an accident policy by the insured for injuries to himself, a warranty in the policy that a certain named woman was his wife is not material, and if untrue is not a defense. The purpose of naming a beneficiary is to designate a person who will receive the insurance money only in event of insured’s death.
    3. -: -: Policies of Life Insurance: Materiality: Questions for Jury. An accident policy, at least those portions of it providing indemnity for loss of life, is a policy of life insurance, within the meaning of the suicide statute (Sec. 6937, R. S. 1909), and that . statute provides that no misrepresentation made in obtaining a policy of insurance on the life of any person shall be deemed material unless the matter misrepresented actually contributed to the contingency or event on which the policy is to become void, and whether it so contributed in any case shall be a question for the jury. Even though the representation or warranty as to the beneficiary in case of the insured’s death is false, the court cannot peremptorily instruct to find for the company, for the jury still have the right to say whether such misrepresentation actually contributed to the loss.

      4. -: Warranties: Insured’s Habits of Life: Income: Other Insurance. Even though the insured warranted that his habits of life were correct, that his income per week exceeded the gross amount of weekly indemnity promised in all accident policies carried by him, and that he had no other accident insurance, if the evidence upon the issue of the falsity of these warranties is conflicting, the matter is for the jury, and the court cannot peremptorily instruct them to find for defendant.
    5. INSTRUCTIONS: Assuming Disputed Facts: Comment on Evidence. Instructions which assume as true facts in dispute, or contain unwarranted comments on the evidence', should be refused.
    6. -: Plaintiff’s Failure to Testify. An instruction telling the jury that plaintiff was present in court and heard the testimony . of witness relating his conduct and movements about the time he received the injury complained of, and that from his failure to take the stand in his own behalf a strong presumption of law arises that his testimony, if given, would not sustain the issues on his part, if ever proper, is not proper in a case where defendant took plaintiff’s deposition, which covered every point that might possibly relate to the issues, and read it to the jury.
    7. EVIDENCE: Moral Character of Insured: Charges in Another Court. A charge contained in the answer of plaintiff’s wife filed in a divorce proceeding wherein plaintiff -was charged with sexual perversion, is not evidence of such fact. Nor is the mere fact that plaintiff stood charged at the time of his suit on the accident policy with a criminal charge in another court, any evidence that he is guilty of the charge.
    8. -: Exhibition of Injured Arm in Court. The exhibition in open court by plaintiff of his injured arm, which is the subject of his suit on an accident policy, at the request of his attorney, to a physician who at the time was testifying, to which an objection was sustained, after which no request was made that the jury be discharged or that counsel be adrqonished for his conduct, is no ground for reversal.
    9. JUROR: Voir Dire Examination. If the record leaves in doubt what questions were asked and what actually occurred upon the voir dire examination of the juror, his alleged false answers cannot be reviewed on appeal.

      10. SUPPLEMENTAL MOTION FOR NEW TRIAL: Untimely. Matters attempted to be preserved by a supplemental motion for a new-trial filed out of time cannot be considered.
    Appeal from Jackson. Circuit Court. — Hon. O. A. Lucas, Judge.
    Affirmed.

      J. C. Rosenberger and Rollin E. Talbert for appellant.
    (1) The court erred in refusing to give the peremptory instruction asked, by defendant at the close of the whole case. There was no evidence that the injury vras accidental and all the evidence showed that it was intentionally self-inflicted, (a) Lamport’s failure to testify as a witness in his own behalf, though present in court, or to explain or deny the overwhelming proof against him is a confession of guilt. 1 Starkey on' Evidence, p. 54; Moore on 'Pacts, pp. 571, 574, 575; McClanahan v. Railroad, 147 Mo. App. 386; Cass County v. Green, 66 Mo. 512; Mockowick v. Railroad, 196 Mo. 571; Dickinson v. Bentley, 80 Ala. 482; Bryant v. Tink, 75 Iowa, 516; Keller v. Gill, 92 Md. 190; Societe, etc. v. Allen, 90 Fed. 815. (b) A party who hears witnesses give evidence against him and who does not take the witness stand to deny or explain the testimony of such witnesses, such testimony is to be taken as true “as much so as if the party had made the admission in express terms.’ ’ Payne v. Railroad, 136 Mo. 594; State v. Musick, 101 Mo. 271; State v. Patrick, 107 Mo. 174; State v. Alexander, 147 Mo. 386. (e) Lamport being alive, in court and able to testify and he having wilfully failed to testify, he is not entitled to any presumption of innocence or of self-preservation or of due care. Mockowick v. Railroad, 196 Mo. 571. (d) In cases of this kind it is competent and relevant for defendant to prove the man’s conduct, financial straits, secret frauds and crimes, situation in life, domestic and family complications, entanglements with women, sexual perversion and general, depravity not only at the time of the act in question hut before and after the act, all as bearing upon the surrounding circumstances, his mental state, motive and intent at and before the time of the act under investigation. The issue involving an act of great moral turpitude, not committed by ordinary men, the widest latitude was to be allowed the defendant in showing these matters. Ex parte Alexander, 163 Mo. App. 615; Long v. Ins. Co., 113 Iowa, 259; Kerr v. M. W. A., 117 Fed. 593; Agnew v. Ins. Co., 95 Wis. '445; Shoe Co. v. Ins. Co., 8 Tex. Civ. App. 227; Smith v. Ins. Co., 123 N. Y. 85; Joy v. Ins. Co., 32 Tex. Civ. App. 443. (e) The direct evidence of numerous eye witnesses who saw the occurrence and saw Lamport deliberately put his hand on the track stands wholly undenied, (f) The circumstantial evidence establishing Lamport’s motive, intent, history and situation in life, and his incriminating conduct at and before the occurrence, stands wholly undenied. Long v. Ins. Co., 113 Iowa, 259; Ex parte Alexander, 163 Mo. App. 615; Kerr v. M. W. A., 117 Fed. 593; Agnew v. Ins. Co., 95 Wis. 445; Shoe Co. v. Ins. Co., 8 Tex. Civ. App 227; Smith v. Ius. Society, 123 N. Y. 85; Joy v. Ins. Co., 32 Tex. Civ. App. 433. (g) The physical facts, to-wit, the slow movement of the street car, the man’s conceded position just after the injury, and all of the physical surrounding circumstances show that it was impossible for him to have injured himself except on purpose. Daniels v. Elev. Ry. Co., 177 Mo. App. 280; Scroggins v. Met. St. Ry. Co., 138 Mo. App. 215. (h) Appellate courts will not hesitate to set aside the verdict of a jury which is clearly against the evidence or not based on -sufficient evidence. Champagne v. Harney, 189 Mo. 709; McClanahan v. Railroad, 147 Mo. App. 386; Spiro v. Transit Co., 102 Mo. App. 250; Spohn v. Railroad, 87 Mo. 74; Lehinck v. R. R., 118 Mo. App. 611; Demaet v. Storage Co., 121 Mo. App. 92. (i) And this is especially true when the prevailing party has failed to produce his own or other evidence under his control or has stifled evidence. McClanahan v. Railroad, 147 Mo. App. 410; Fisher v. Ins. Co., 124 Term 462; Payne v. Railroad, 136 Mo. 594. (2) The court erred in overruling defendant’s demurrer to the evidence for the further reason that on the undisputed evidence Lamport obtained the policy by making false warranties in the policy touching (a) his habits of life; (b) his relationship to the beneficiary whom he represented as his wife but who was in fact his mistress; (e) his income; and (d) his other accident insurance which was falsely stated. These warranties having been false were breached and rendered the policy void, (a) Lamport’s statements in the schedule of warranties that he was a married man, and that the beneficiary, “Mamie Lamport,” was his wife and touching his habits, income, etc., were warranties, were material to the risk and, being false, rendered the policy absolutely void. Ashford v. Insurance Co., 80 Mo. App. 638; Yan Cleave, v. Insurance Co., 82 Mo. App. 668; Aloe v. Mutual Reserve, • 147 Mo. 573; Pacific Mutual L. Ins. Co. v. Glaser, 245 Mo. 377 •; Claver v. Mod. Woodmen, 152 Mo. App. 164; Gaines v. Insurance Co., 188 N. Y. 411; Gaines v. Insurance' Co., 93 App. Div. (N. Y.) 524; Jeffries v. Insurance Co., 22 Wall. (U. S.) 47; Makel v. Insurance Co., 95 App. Div. (N. Y.) 261; Insurance Co. v. Lindsay, 111 Ya. 389; Insurance Co. v. White, 100 Pa. St. 12; (b) Where, as here, the policy recites that it is issued in consideration of the statements made in the schedule of warranties, attached thereto and made part thereof, “which the insured makes and warrants to be true on the acceptance of the policy,” and the insured does accept the policy containing said warranties, he will not be heard to say that the contents of said schedule were not warranties and any untrue statement therein will avoid the policy. Wollman v. Casualty Co., 87 Mo. App. 766; Bonewell v. Acc. Co., 160 Mich. 137; Gaines v. Fid. & Cas. Co., 188 N. Y. 411; Ins. Co. v. Crabtree, 146 Ky. 371; French v. Fid. & Cas. Co., 135 Wis. 259; Kirkpatrick v. Guarantee & Acc. Co., 139 La. 370. (c) Sec. 6937, R. S. 1909, which provides that breach of warranty shall be no defense to a suit on a policy of insurance “on life” unless the matter represented “contributed” to the loss insured against, has no application to this case because this is not a suit to recover life insurance but is upon an accident policy to recover for a non-fatal injury upon one of numerous severable and independent covenants to pay indemnity for various specified losses, wholly distinct from the promise to pay for loss of life, so that this is not a suit on policy of insurance “on life.” Logan v. Casualty Co., 146 Mo. 116; Crossan v. Ins. Co., 133 Mo. App. 540 ; Trabue v. Ins. Co., 121 Mo. 75; Kountz v. Ins. Co., 42 Mo. 126; Loehner v. Ins. Co., 17 Mo. 247; Stephen v. Ins. Co., 61 Mo. App. 194; Jenkins v. Ins. Co., 58 Mo. App. 210. (d) The aim and object of the “misrepresentation” statute (Sec. 6937) was to protect the beneficiary, after the lips of the insured had been sealed by death, and was not enacted for the benefit of the insured himself, suing on an accident policy during his lifetime. Scheurman v. Ins. Co., 165 Mo. 649"; Glaser v. Ins. Co., 245 Mo. 386. (e) The statute (Sec. 6937) being in derogation of the right of private contract should not be construed to include more than its plain language imports. Glaser v. Pacific Mutual, 245 Mo. 386; Whalen v. Casualty Co., 87 Maine, 543; Casualty Co. v. Dorough, 107 Fed. 393; Ticktin v. Ins. Co., 87 Fed. 543; Ins. Co. v. Carroll, 86 Fed. 567; National Ace. Co. v. Dolph, 94 Fed. 743; 36 Cyc. 1168. (3) The court erred in refusing to give instruction 21 requested by defendant which would have informed the jury of the presumption raised against Lamport through his failure to take the witness stand. Fisher v. Travelers Ins. Co., 124 Tenn. 462; Mc-Clanahan v. Railroad, 147 Mo. App. 386; Payne v. Railroad, 136 Mo. 594; State v. Alexander, 119 Mo. 461.

      Martin J. O’Donnell, Robinson & Goodrich and B. C. Howard for respondents.
    (1) Under the evidence the court properly submitted the case to the jury and properly approved their verdict since the evidence showing that Lamport was accidently injured was not only substantial but conclusive; the function of this court is to affirm the judgment. State ex rel. v. Ellison, 256 Mo. 644; State v. Taylor, 261 Mo. 229; Gannon v. Gas Light Go., 145 Mo. 502; Linderman v. Carmin, 255 Mo. 66; Ry. Co. v. Wright, 11 App. Cas. 152; Gilkey v. Sovereign Camp, 178 S. W. 789. (2) Appellant’s contention that the alleged failure of Lam-port to climb on the witness stand and reiterate the testimony given in his deposition and read to the jury by appellant gives this court jurisdiction to hold that the jury violated their oaths in finding for respondents finds no warrant in the law or in the statute making parties competent witnesses. Sec. 6354, R. S. 1909 Kerstner v. Vorweg, 130 Mo. 200. The taking of Lamport’s deposition and reading same to the jury at the trial made him defendant’s witness for all purposes and it could not thereafter impeach him. Black v. Epstein, 221 Mo. 286; Ex parte Welborn, 237 Mo. 306; Johnson v. Magruder, 15 Mo. 365; Fagate v. Carter, 6 Mo. 272.' The deposition of Lamport was evidence which the jury had a right to believe or not as they pleased, even if it be regarded merely as an admission. State v. Carlisle, 57 Mo. 106; Greenleaf on Evidence, sec. 201; People v. Loomis, 178 N. Y. 405; State v. Mekel, 189 Mo. 322; State v. Simon-son, 172 S. W. 602. (4) There were no warranties set out in the schedule. Nor were warranty breaches shown, (a) The statements in the schedule of warranties are merely questions which are partly answered or omitted to be answered. Hence they are not warranties. Ever-son v. Assurance Corp., 202 Mass. 177; McKennon v. Ins. Co., 72 N. J. L. 29; French v. Casualty Co., 115 N. W. 869; Maloney v. Casualty Co., 167 S. W. 845; Dilleber v. Ins. Co., 69 N. Y. 256; Association v. Smith, 86 111. App. 427. (b) The statement concerning beneficiary was not a warranty because it went to the description or identity of the beneficiary and not to the validity of the policy. Ins. Co. v. Floyd, 94 Atl. 515;'■ Vivian v. Knights, 20 Atl. 36; Ins. Co. v. Martin, 133 Ind. 381; Van Cleave v. Co., 82 Mo. App. 668; James v. Council, 130 Fed. 1014; Goff v. Lodge, 90 Neb. 578; Ins. Co. v. Link, 230 111. 273. (c) The statement in italics concerning other insurance was merely a partial answer, true as far as it went, and not an affirmation of something not true and, furthermore, Lamport had no insurance other than that mentioned in the statement. Emerson v. Accident Co.,' 202 Mass. 177; Dilleber v. Ins. Co., 69 N. Y. 256. (d) Sec. 6937, R. S. 1909, makes warranties in a policy such as that involved herein immaterial unless it is alleged and proved that the warranty breaches contributed to the accident (not to intent as here alleged), which otñerwise would operate to make the policy due and payable. Sec. 6937, R. S. 1909; Hill v. Acc. Assn., 189 S. W. 587; Logan v. Casualty Co., 146 Mo. 114. (e) The policy is to be interpreted as though the statute were written' into it. Christian v. Ins. Co., 143 Mo. 465; Logan v. Casualty Co., 146 Mo. 114; Nooms v. Casualty Co., 172 Mo. App. 241; Applegate v. Ins. Co., 153 Mo. App. 63; Moore v. Ins. Co., 112 Mo. App. 702. The policy was issued after the Missouri statute had been judicially interpreted to apply to a similar policy and defendant should be held to have adopted that construction as part of its contract. Lowenstein v. Co., 88 Fed. .474, 97 Fed. 17; Conssback v. Co., 116 Wis. 382. (f) A policy insuring against loss of a hand is a policy of insurance on life within the meaning of the statute. Cook on Life and Accident Ins., sees. 1, 2, 105, 106; Richards on Ins., sec. 14.
   WILLIAMS, J.

This is a suit upon a policy of accident insurance to recover the sum of ten thousand dollars for the loss of the left hand above the wrist. The policy provided an indemnity of $10,000 for loss of life and, among other things, provided for paying a like amount for loss of one hand by severance at or above the wrist if the injury be sustained “while a passenger in or on any regular passenger conveyance provided by a common carrier (including the platform, steps or running board of railway or street railway ears.” The policy was dated August 1, 1911, and was for a period of three months from its date. In the schedule of warranties contained in the policy it is stated that the beneficiary named in the policy, Mamie Lamport, is the wife of the insured; that the insured had no other accident -or health insurance except a five-thousand-dollar policy in the same company; that his income per week exceeded the gross amount of weekly indemnity under all policies carried by him, and that his habits of life were correct and temperate.

Trial was had. before the circuit court of Jackson County, resulting in a verdict and judgment for the. plaintiff. Thereupon the defendant duly perfected an appeal.

The accident occurred about ten o’clock p. m., August 10, 1911, at the street-car stop at the entrance to Fairmount Park, near Kansas City, Missouri. A considerable crowd of people who had been patronizing the park were waiting for a street car. Plaintiff was in this crowd. The number in the crowd was estimated, by the .different witnesses, at from twenty to two or three hundred people. As the street ear was about to stop for the purpose of receiving passengers from this crowd, plaintiff jumped on to the front step thereof and took hold of the hand-hold. The car then moved about twenty feet farther, with him in this position, when he fell from the step; and while the car was moving slowly it ran over his left hand necessitating the amputation thereof.

"Witnesses produced by plaintiff narrated the occurrence as follows:

Louise Ruyssers testified that she and her three sisters were in the crowd waiting for the car and that they were standing near the track as the front end of the car passed them and that something ‘ ‘ gave her sister such a knock that she was forced to step back in order to gain her balance.” The witness then heard someone scream that a man was hurt. She then turned and saw .the plaintiff on the ground, on his back, lying parallel with the car, with his head toward the front end of the car. The plaintiff was groaning.

Sophie Ruyssers corroborated the above testimony of her sister and said that it must have been the man on the car that brushed against her sister. They next noticed the man lying on the ground with his hand, crushed.

Matilda Ruyssers corroborated the testimony of her sisters and said that someone on the front end of the car brushed by her and that she had to step back to gain her balance; that she was not hurt, but that her balance was disturbed and-that she fell back against her sister.

Dr. Richard Callaghan, the local surgeon for one of the railroad lines entering Kansas City, testified that he saw the plaintiff get on the front end of the car, about eight feet ahead of where the witness was standing. The witness had himself intended to get on the step, but the plaintiff got on ahead of him, and the witness then turned his attention to the rear end of the car. The witness was not looking at plaintiff when the accident occurred, but immediately went to plaintiff’s assistance and found him lying unconscious on the ground with his left hand crushed. The witness also found a bruised place on the rear portion of the top of plaintiff’s head. This witness testified that passengers were let in at both ends of the car, on that night, at that place. That when the accident occurred the car was moving slowly, preparing to-stop. The witness further testified that plaintiff was suffering from concussion of the brain and that the concussion of the brain rendered plaintiff unconscious; that, plaintiff “came to” in about thirty minutes, but did not become rational and fully regain consciousness until the next morning; that the injury to the hand could not have caused the unconsciousness, but that it could have been caused from the bruise on the head. This witness accompanied plaintiff to the hospital and there aided in amputating the hand. The plaintiff did 'not sufficiently regain his consciousness to be able to help determine about the amputation of his hand, but the physician in charge decided that it was the necessary thing to do, and it was accordingly done.

Oscar H. Stevens testified that it was crowded around the car; that there was a “bunch” on the front end; that plaintiff was knocked or brushed off and fell and was in under the car “and it looked like he was going to get his head and everything cut off, ” and the witness grabbed plaintiff by his feet and pulled him out from under the car. The witness testified that several people were trying to. get on the front end of the car, including himself.- The witness said: “I couldn’t say about seeing the man fall — such a mob there and crowd, and they was all grabbing, I couldn’t — some kind of an object or something, you know, and I went to grab on; I saw him underneath, then I pulled him out. I saw something like it fell off or jumped off; I didn’t pay any attention; didn’t think anybody was going to get hurt; I saw an object kind of fall down; I saw a car there and they was all scrambling; that made him knock him off or get.off, I guess, I suppose. When I took hold of him he was lying on his back.” After the accident the witness helped carry plaintiff on to the car.

Sam Tranin- testified: “ There was quite a mob of people down there waiting for the ear. Well, the car came around, kind of swept away around the curve, and I could see — well, just when it was probably about ten feet away from me, I could see a man holding on to the vestibule, to the rods of the car — of course, I couldn’t see whether he was standing on the steps or not, because I didn’t see below, I just looked on top of the car, I could see that, I could see him fall loose from there. . . . Then Mr. Stevens started to holler, ‘ That man, ’ he says, ‘just fell off of the car and got cut up,’ and then Mr. Stevens ran up to pull him out. There was such a mob right around there I couldn’t see what he done with him at all.”

Witnesses for the defendant narrated the occurrence as follows:

Bessie Rosenthal testified: “I saw the man as the car was turning the loop; I saw a man hop on the car, and he held there, and when it turned the loop and got towards me, he went and let go, and he fell off, fell kind of on his side, on his back, and then he rolled over, and threw one hand on the track, and hit my slipper with' the other hand. He fell on his back.” This witness further testified that plaintiff was not unconscious before his hand was crushed, but became so afterwards. She gave as a reason for this conclusion that his eyes were open before the injury, but were closed afterwards. She further testified that it was the rear wheel of the front truck that ran over his hand.

Mrs. H. Ankerson testified as follows: “This man jumped or caught hold of that bar of the .car — that handlebar there — and it drug him along; he seemed to slip —I don’t know whether he slipped or not, I can’t say that, but it drug him along and just as he got in front of us he fell, and he fell over and he rolled back again, and just then, why, he threw out his hands, and I says, ‘Don’t throw your hand under the car’; he threw it right under the car then.”

Louis Minturn testified that he saw the man jump for the steps as the car came along and saw him take hold of the handholds; then he saw the plaintiff squat down and let go of the handhold and fall forward on his back. The witness then saw plaintiff roll over and place his hand on the rail under the front trucks and then roll back on his back; that the car ran five or ten feet and then stopped.

Charles Guth, companion of the witness Minturn, testified as follows: “I noticed a man jump on the front step and grab the one handhold, and he let loose — well, he was on there just long enough to let loose, and fell off kind of back down on his back, and forward, and he rolled over and placed his hand under the wheel of the car just about the time the ear was ready to stop.” This witness saw the wheel, run over plaintiff’s hand and stated that after this occurred plaintiff “rolled over and threw his left hand in the air, the mangled hand; threw it in the air, on his back. The car was traveling about three or four miles an hour.” On cross-examination the witness testified that plaintiff’s shoulders hit the ground first; that the plaintiff “kind of squatted and fell back on his shoulders” and that the injured man was unconscious after the accident.

The testimony on behalf of defendant took a wide range and much immaterial.testimony was introduced without any objection on the part of plaintiff. The plaintiff did not take the witness stand in person, but the defendant offered the deposition of the plaintiff in evidence. In his deposition the plaintiff testified that along in April, 1911, he was solicited by defendant’s agent to take out some accident insurance; that he had known the agent since they were boys together in high school, at Kansas City, and that he took out a policy for $5000; that the agent wanted him to take out a policy for $15,-000; that the first policy was to expire on August 1st and that on July 30th the insurance agent called on him again, told him that he was in a contest for an insurance prize and urged him to. take out the additional ten-thousand-dollars insurance. The witness then took out the additional insurance and paid $15, three months’ premium thereon in advance, and at the same time paid three months’ back premium on the $5000 policy, and three months’ advance premium on the same policy, and the agent took up the old policy to send in to the company so that a new-form policy could-be issued. Afterwards,- and on the same day that he took out this additional insurance, a soliciting agent of the Aetna Life Insurance Company, who had been supplying him with employer’s liability insurance, called to see him and the subject of accident insurance was mentioned. The Aetna agent asked him . about the policy that hé was carrying, and the premium he had to pay, and told plaintiff that defendant company was charging him $10 more a year than the Aetna Company would charge him to carry the $10,000 insurance and told the plaintiff that if he would come to the Aetna office he could prove it to him. The next day the plaintiff went to the Aetna office and, after some discussion, agreed to take a ten-thousand-dollar accident policy in the Aetna Company. The premium on the Aetna policy was $10 a year less than the premium charged by the defendant company. Plaintiff told the Aetna agent that he had $15,000 in the defendant company and that he would cancel the ten-thousand-dollar policy held by the defendant company. On August 8th, plaintiff called the defendant’s agent over the ’phone and told him to cancel the ten-thousand-dollar policy, but the agent said that he had already sent the application to the company and told the plaintiff that it would cancel itself in' three months. The agent, after the telephone talk, came down to the plaintiff’s office and, after discussing the matter, the a-gent became angry and left the office and the plaintiff was also angry. Plaintiff did not tell the defendant’s agent that he had, in the meantime, procured a ten-thousand-dollar policy in the Aetna Company, giving as a reason that he did not want his old schoolmate friend to feel sore., On the morning of the accident plaintiff says that he intended to go to Topeka and was down at the Union Depot and bought a ticket for Topeka, which he intended to use on the train leaving Kansas City at 4:30 p. m. About four o’clock that afternoon he started to go to the Union Depot and stopped at the Santa Fe up-town ticket office and there purchased an accident policy in the Traveler’s Insurance Company, good for two days. The policy was for $2500 for loss of life and $1250 for the injury which plaintiff later suffered. Plaintiff testified that he had always been in the habit of buying accident tickets when he had to travel and that when he bought this ticket he had forgotten about having taken out the other accident policies. After the plaintiff bought the accident ticket at the Santa Fe office, he was informed by the agent that it was too late for him to catch the train for Topeka and he didn’t go to Topeka that day. Later in the evening, he decided to go to Sheffield to investigate some proposed contracts for roofing, which he desired to obtain. Plaintiff was the president of the Lamport Roofing Company. After he got on the car going to Sheffield he became interested in looking over some proposed contracts that he had and the street car passed Sheffield without his knowledge. He then rode on out to Fairmount Park where he spent a portion of the evening, and started to return home about ten p. m.; that there was a crowd waiting for the car and just before the car reached him a man standing to the left of plaintiff stepped on the front step of the car and, as the car passed, plaintiff stepped up beside the man on the step. He further testified: “I was standing right up there, and I felt — could feel the people — they was so thick there — crowding against me there, and I rode — I don’t have any idea how far — it seems to me that I rode twenty feet, possibly not that far, when I was grabbed in there, right here in the side there. I was either grabbed or hit or something that took the wind out of me. I couldn’t move. It just seemed to kill my feelings, and the next thing I felt or know of I felt a standing on my head. That’s the way it seemed to me. I had a'feeling of standing on my head. That’s all I remember of, but when’I got hit there it just seemed that I couldn’t move a muscle. I couldn’t do a thing. I just seemed to get that way. It seemed to stun me, but still I felt standing on my head, and that’s all I could remember of doing.”

The’plaintiff did not regain consciousness until the next morning and stated that he had no idea as to how he lost his hand and that his hand was amputated before he recovered consciousness.

The plaintiff further testified that- creditors were not pressing him for money at the time he was injured and that his business was prosperous; that the assets of the Lamport Eoofing Company were about nine thousand dollars and that the firm owed a bank about one thousand dollars at that time.

At that time plaintiff owed a Mr. LaPoree about one thousand dollars as balance on a rooming house which he had purchased and owed about forty dollars on a grocery bill; that he owned nine thousand dollars of the $15,000 capital stock of the roofing company and that he had two or three hundred dollars on deposit at the Trust Company at the time he was hurt.

He testified that he had collected the $1250 on the policy he purchased at the Santa Fe Ticket office.

It further appears from the evidence that after this accident, and on February 13, 1912, plaintiff deposited the policy here in suit with the Commerce Trust Company of Kansas City to secure an indebtedness of $9000 which he then owed the bank and which he had borrowed since the accident. It appears from the evidence that the trust company was made party plaintiff to this action, after the suit was pending, and after the above mentioned placing of the policies as collateral security.

There was evidence tending to show that, at the time of this accident, plaintiff was the owner of a rooming house called the New Era; that he did not conduct it personally, but employed different women ‘to manage the same. Some of the witnesses testified that the house was conducted along moral lines, but others said it was not. One witness said that street walkers were permitted to enter therein, with the knowledge and acquiescence of plaintiff. There was also evidence tending to show that no profits were being realized by plaintiff from this rooming house at the time of the accident. Plaintiff originally gave $1500 for the same, and was carrying about $3150 insurance on the furniture therein.

The agent of the defendant company corroborated in a way the testimony of plaintiff about the purchase of the accident insurance policies; but stated that plaintiff brought the subject up, on July 30, 1911, and that he seized the opportunity and persuaded the plaintiff to take the additional policy for ten thousand dollars and that he delivered the policy to plaintiff on August 7th, and plaintiff asked the witness if he had to keep the policy and that the agent told plaintiff that he had his money and that plaintiff had to keep the policy. This witness further testified that plaintiff never asked him to cancel the policy.

The agent for the Aetna Company testified that the plaintiff came to him inquiring about insurance and that he did not go to plaintiff and solicit the business by knocking on defendant company. He did admit, however, ‘that he explained the advantages of the Aetna policy over the policy of the defendant company, and that plaintiff told him about his having fifteen thousand dollars of insurance in the defendant company, and said that he would refuse to take the ten-thousand-dollar policy in the defendant company when it was delivered.

The general agent of the defendant company in Kansas City testified that a few days before the accident plaintiff called at the office and asked him to explain the double indemnity clause, which he did, telling plaintiff that if he received injuries while on the steps or any part of a car he would receive double indemnity.

A signed statement of the Lamport Roofing Company, dated June 13, 1911, and supplied by plaintiff to the Trust Company, for the purpose of securing credit for the company, showed total liabilities $2535 and total assets, $10,900.

There was also evidence tending to show that plaintiff drew fifteen dollars a week from the roofing company. This amount was drawn by each of the three general stockholders, but it appears that when any one of the three wanted more money that he drew it from the company and each of the others would draw a like amount. The evidence further tended to show that any additional profits made by the company were left in the treasury of the company and put into the company’s business.

A short time prior to the accident the people near the factory of the Lamport Roofing Company complained of the smoke and fumes coming therefrom and had threatened to have the same abated as a nuisance, and it appears that after the accident, and on August 30, 1911, the plaintiff was fined fifty dollars in police court because of the smoke nuisance, and the plant was closed. Afterwards plaintiff made arrangements to move the plant to Kansas City, Kansas, and executed a contract to purchase a piece of land over there for about $6,000 and paid five hundred dollar down on same, but had never paid any further sums up until the time of the trial. Plaintiff moved his plant over to Kansas City, Kansas, and bought considerable new machinery, but it appears that at the time of the trial the plant was not being operated.

The evidence also shows that a few years before this accident plaintiff spent sometime in South Africa, trading with the natives, and that he had lived in several different places, but finally came back to Kansas City; that he had a wife living at Chicago at'the time of the accident, but that he was living with another woman in Kansas City.

The evidence further tended to show that prior to the accident the gross business of the roofing company amounted to $600 or $800 per month, but the amount of profits is not shown.

In rebuttal the book-keeper for the Lamport Roofing-Company testified that she heard plaintiff tell the agent of the defendant company that he wanted to cancel the ten-thousand-dollar policy, but that the agent refused to cancel it; this occurred in the office of the roofing company, prior to the accident.

Such further facts as may be necessary to an understanding of the issues will be stated in the opinion.

I. Appellant contends that the court erred in overruling its demurrer to the evidence offered at the close of the evidence.

In this behalf it is insisted that there wás no evidence that the injury was accidental. We are unable to agree with this contention. There is evidence tending to show that plaintiff fell from the step of the street car, his. shoulders striking the ground Immediately after the accident a bruised place was discovered on the rear portion of the top of his head and plaintiff was lying on his back unconscious — his left hand crushed. Dr. Callaghan, who was present at the scene of the accident, went to the immediate relief of the plaintiff and accompanied him to the hospital. He testified that plaintiff was unconscious and that he did not become rational until the next morning-; that he was suffering from concussion of the brain; that the injury to the hand could not have caused the unconscious state, but that the bruise on the head could have caused it. Plaintiff, in his deposition, introduced in evidence by the defendant, testified that he became unconscious before his hand was injured. We are, therefore, of the opinion that there was sufficient evidence to justify the jury in finding that plaintiff was unconscious before his hand was crushed. If that were true lie could not have intentionally thrust his hand under the wheel as contended by defendant. Upon a demurrer to the evidence, plaintiff is entitled, to every favorable, reasonable theory or inference arising from the whole evidence. We are, therefore, of the opinion that a case was made for the jury on the issue of accidental'injury.

II. It is further contended that the court erred in refusing to peremptorily instruct the jury to return a verdict in favor of defendant, as requested in its refused instructions numbered 13, 14, 15 and 16, because of the alleged false warranties made by Lamport in obtaining the insurance. We are unable to agree with this contention. Said instructions were as follows:

“13. In the policy sued on, the plaintiff Lamport warranted that one Mamie Lamport was his wife. The evidence shows that this warranty was untrue; that Mamie Lamport never was the wife of plaintiff Lamport. Your verdict will therefore be in favor of the defendant.
“14. In the policy sued on, the plaintiff Lamport warranted that his habits of life were correct.- The evidence conclusively shows that this warranty was false, and your verdict will be in favor of the defendant.
“15. In the policy .sued on, the plaintiff Lamport warranted that his-income per week exceeded the gross amount of weekly indemnity under all policies carried by him. This warranty was false, and your verdict will be in favor of the defendant.
“16. In the policy sued on, the plaintiff Lamport warranted that he had no accident insurance issued by stock companies, except a certain p.olicy issued by. the defendant. This warranty was false and untrue, and your verdict will be in favor of the defendant. ’ ’

Instruction 13 above is based upon-the alleged warranty in the policy that the beneficiary named therein was the wife of the insured. The evidence, we think, unmistakably shows that the beneficiary was not the wife of the insured. However, since the very purpose of naming a beneficiary is to designate a person who will receive the loss payment only in the event of the death of the insured, it is difficult to see what possible materiality that warranty could have on the validity of that portion of the policy which provides only for paying certain losses, for injuries not resulting in death, direct to the insured.

It has been held that a policy of this character, at least with reference to those portions providing indemnity for loss of life, were policies of life insurance, within the meaning of the suicide statute of this State. [Logan v. Fidelity & Casualty Co., 146 Mo. 114.]

By like reasoning such a policy or at least so much thereof as relates to indemnity for loss of life, would likewise be a “policy of insurance on life” within the scope of section 6937, Revised Statutes 1909, which provides that:

“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this State, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury.”

Under the provision of the above section the court would not be justified in giving the peremptory instruction to find for the defendant even though the representation or warranty as to the beneficiary were false, this because the jury would still have the right to say whether such misrepresentation actually contributed to the loss.

Concerning instructions 14, 15 and 16 above, it is sufficient to say that the evidence upon the issue of false warranties therein mentioned was conflicting and it cannot be said that either of the other warranties were false as a matter of law. That point alone would justify the court in refusing to give the instructions as asked. And, under such a condition, it becomes unnecessary to a determination of this case to decide whether or not" the warranties or representations mentioned in said instructions fall within the scope of Section 6937, supra.

III. Neither did the court err in refusing defendant’s instructions which attempted to submit to the jury the issues arising upon said warranties. The several instructions in this behalf are quite lengthy and it would serve no useful purpose to set forth the same herein. "We have carefully examined the same and find that they do not properly instruct the jury upon those issues even if defendant’s theory of the law, be correct. Furthermore said instructions assume, as true, facts which are in dispute, and contain unwarranted comments on the evidence, either of which, alone, would justify the action of the trial court in refusing the same.

IV. We are unable to agree with appellant’s contention that the court erred in refusing to give its instruction number 21.

This instruction, in effect, told the jury that the plaintiff was present in court and heard the testimony of witnesses relating his conduct and movements about the time he received the injury in question, but that he did not take the witness stand in pis own behalf and that from such failure a strong presumption of law arises that his testimony, if given, would not sustain the issues upon his part.

Whether such an instruction would ever be proper, we have very serious doubts, but as to that we need not now determine, because such an instruction would certainly be improper in the present suit where plaintiff’s testimony, in deposition form, covering about 140 pages of this record, was introduced in evidence by the defendant and considered by the jury. This deposition took a wide range and plaintiff gave testimony, not only upon every point that might possibly relate to the issues, but also upon matters clearly outside the issues. He explained in that deposition that he became unconscious before his hand was injured and that he did not know how the injury was caused.

We, therefore, rule that the court did not err in refusing this instruction.

V. It is. contended that the court erred in excluding the following evidence:

(1) A portion of the answer of plaintiff’s wife filed in a divorce proceeding in Chicago in 1908 wherein she charged plaintiff with sexual perversion.

(2) Letters written by plaintiff to his wife in 1903, 4905 and 1906.

(3) The record of the municipal court of Chicago showing that on April 8, 1908, the plaintiff was found guilty of wife abandonment and, by said court, was ordered to pay to his wife the sum of $250 and that the plaintiff stand committed until the above sum is so paid. The record further shows that the plaintiff was, by said court, discharged on April 22, 1908.

(4) The records of the district court of Wyandotte County, Kansas, showing that a criminal action was pending therein in which plaintiff stood charged with the crime of perjury in making a false affidavit in connection with a divorce proceeding instituted by plaintiff in said court on the 14th of November, 1912.

The court -did not err in excluding any of the above evidence. (1) The mere fact that plaintiff’s wife, in her divorce answer, charged him with sexual perversion, would be no evidence of such fact. Furthermore even though, if upon any theory, it were held to be evidence of the existence of such a fact, we think the matter too remote for the purpose of proving plaintiff’s habits of life at the time of the purchasing of this insurance and at the date of the accident. (2) We have carefully read the letters written by plaintiff to his wife in 1903, 5 and 6. They are quite lengthy. We are unable to find anything therein, the rejection of which would work a reversal of the case. (3) The judgment of the Chicago Municipal Court, in 1908, finding plaintiff guilty of wife abandonment and ordering him to pay Ms wife the sum of $250 wouM not tend to prove any issue in the present ease. (4) The mere fact that plaintiff stood charged with the crime of perjury would he no evidence that plaintiff was in fact guilty of the charge.

These propositions appear to he so plain as to require no citation of authority.

VI. It is contended that the judgment should he reversed because the plaintiff at the request of his attorney exhibited to Dr. Callaghan, while a witness on the stand, in the presence of the jury, the- stump of his mutilated arm. It appears to us that this point is frivolous. Furthermore no foundation for error was laid at the trial. The defendant’s counsel objected to the exhibit and the trial court sustained the objection. No request was made by the defendant for a further ruling or action upon the part of the court in connection with the matter. It would appear that defendant did not then regard the occurrence as prejudicial to its rights because no request was made that the jury be discharged or that counsel he admonished for his conduct. The plaintiff had a right to be present at the trial of his case. And his mere presence at the trial would unavoidably exhibit to the jury the mutilated arm. The exhibition by the plaintiff of his arm to the Doctor upon the witness stand would give the jury very little information which they did not already possess, and we do not find that the occurrence would have justified a reversal of the case even though a proper foundation had been laid for preserving the error now urged.

VII. It is contended that the judgment should be reversed because of improper remarks made by plaintiff’s attorney in his closing argument to the jury. We have carefully examined this assignment of error, but do not find any remarks made by counsel wMch would warrant a reversal of the judgment.

VIII. It is further contended that the court should' have granted a new trial on account of the alleged misconduct of one of the jurors. In this behalf jq jg claimed that on his voir dire examination the prospective juror testified that he had never been in a dispute with any insurance company when the exact contrary was trúe.

The present condition of the bill of exceptions does not justify a discussion of this point. The voir dire examination of the witness is not preserved in the bill of exceptions. Upon a hearing had upon the motion for a new trial the evidence is in conflict as to what questions were asked the juror upon his voir dire examination. According to the juror’s own sworn testimony, he made true answers to questions propounded him upon his examination. The trial court who passed upon this question was present when the voir dire examination was had, and ruled against appellant’s contention on the point now urged. Since the condition of the present record leaves in doubt just what occurred upon the voir dire examination, we are unable to determine whether or not the juror concealed any matter which he should have disclosed.

The point is therefore disallowed.'

IX. Other matters urged as ground for reversing the judgment are matters which are attempted to be preserved by the filing of a supplemental motion for a new trial which was filed long after the four day period had expired, and in fact after the judgment term had ended. It is well settled in this State that the appellate review of matters of exception must be confined to the matters properly preserved in a motion for a new trial filed within the four-day period prescribed by statute (Sec. 2025, R. S. 1909) and that matters attempted to be preserved by motion for a new trial or supplemental motion for new trial, filed out of time, will not be considered. [Saxton National Bank v. Bennett, 138 Mo. 494, l. c. 500; Mirrielees v. Railroad, 163 Mo. 470; State ex rel. Iba v. Ellison, 256 Mo. 644, l. c. 664, and cases therein cited.]

The judgment is affirmed.

All concur.