author: WALKER, J.

text:
    ADA J. COCHRAN, Appellant, v. JAMES WILSON et al.
    Division Two,
    April 7, 1921.
    1. NEGLIGENCE: Board of Education: Liability. On the ground of its legal character alone as a quasi-corporation, the Board of Education of the City of St. Louis is not answerable in damages for negligence in the matter of keeping school grounds in a reasonably safe condition for pedestrians.
    2. -: -: -: Governmental Function. In the exercise of the duty conferred upon it by statute of erecting and maintaining . public schools for the education of children, a school district, and especially the Board of Education of the City of St. Louis, performs a public or governmental power, and not a special corporate or administrative duty, and is not liable in damages for the negligent acts of its officers or agents in maintaining or repairing school buildings or grounds.
    3. -: -: -: Trust Funds. School funds are collected from the public to be held in trust by boards of education for the specific purpose of education, and an attempt to otherwise apply them is without legislative sanction and finds no favor with the courts. Such funds are similar to the funds of a charitable hospital, which, being devoted to a specific purpose, cannot be diverted or absorbed by claims arising from the negligence of its trustees or employees.
    4. -: City: Injury to Pedestrian. Unless.the ground upon which a pedestrian was walking at the time she fell down a series of steps was a public highway, she cannot recover damages from the city
    5. -: -: -: Steps on School Ground. ' The space between a school building and a theatre was paved with granitoid and used as a thoroughfare by pedestrians passing from the street in front of the buildings to the next parallel street. The space was school ground, and in it was a series of four or five granitoid steps leading down to an entrance to the theatre. The grounds were unlighted, and plaintiff, walking along the paved passageway at night, fell down the steps and was injured. Held.,' that the liability of the city is dependent upon whether the space can be classed as a public highway, and it could become a public highway only by condemnation, formal dedication or adverse user.

      6. -: Highway: School Grounds: Condemnation. The land on which the steps were located where plaintiff fell and was injured being the property of the Board of Education, it could not be condemned as a highway, having already been devoted to a public use.
    7. -: -: -: Adverse User. The statute providing that statutes of limitation shall not extend to lands given, granted, sequestered or appropriated to any public, pious or charitable use, nor to any lands belonging to the State, a strip of lana belonging to the Board of Education and used as a necessary appurtenance to one of its school buildings cannot become a public highway by adverse user. Besides, even if by adverse user it could become a public highway, there was no showing of such continuous use for a term of years as caused it to ripen into a prescriptive right to use the passageway as a highway.
    8. APPEAL: Errors Against Respondent. Only adverse rulings of the trial court can form the basis of a complaint by an appellant. Upon an appeal by plaintiff alone from a judgment in her favor, assignments by defendant of errors based upon alleged improper admission and exclusion of testimony and the giving and refusing of instructions are not matters for consideration.
    9. VERDICT: Unreasonably Small: Inadequacy. An appellant has the right to have set aside a verdict for personal torts either excessively large or ridiculously small, where the result indicates passion, prejudice or misconduct on the part of the jury. In determining whether it is such, the presumption is in favor of the good conduct of the jury; and if upon the whole record the case predominates in favor of the defendant or the evidence is evenly balanced, the courts will refuse to interfere with a nominal verdict, although at first view it may appear illogical. Inadequacy of the award is not alone a sufficient basis for setting aside the verdict.
    10.-; -.- -: Liability of Defendant. And where there is no evidence that the space between the school building and the theatre was in control of the theatre owner, and the trial court might for that reason have sustained a demurrer to the evidence, the verdict of $250 for a pedestrian, who was directed by said defendant’s employee to enter the theatre from said passage- ' way,- will not be disturbed upon plaintiff’s appeal alone.
    Appeal from St. Louis City Circuit Court. — Eon. Frank Landioehr, Judge.
    Affirmed.

      Earl M. Pirhey for appellant.
    (1) There is a limitation imposed upon the rule that counties are not liable for the negligence of county courts. That limitation is to the effect that said rule is applicable only when liability is sought to be based upon the neglect of some duty enjoined upon the county court without its consent. But where the county court voluntarily enters upon the performance of some- act or duty which it could not have been compelled by law to perform, the county thereupon becomes subject to the same liabilities, for the negligence in the performance of such special duties as private corporations would be if the same duties were imposed upon them. Hannon v. County of St. Louis, 62 Mo. 313; Clark v. Adair County, 79 Mo. 536. The above limitation to the foregoing rule is more peculiarly applicable to cases where the negligence occurs with respect to the improvement or management of county property of which the county is the owner or proprietor. Hannon v. County of St. Louis, 62 Mo. 319; Clark v. Adair County, 79 Mo. 5-37. In the case at bar, there are no' allegations in the petition that would show that the negligence of defendant Board of Education was with reference to some matter or duty which'the board, could have been compelled to perform or that was not discretionary with it. Furthermore, in the case at bar, the premises with reference to which the negligence occurred was property in which the Board of Education had á proprietary interest, the exact nature of which is not specified in the petition, the petition alleging that the defendants were in charge and control of and using the said premises. For what specific purpose the board had acquired this property is not stated in the petition, but must have been for some -purpose for which it had legal authority.to hold property under the statute, the board might have acquired the gxound for some use connected with the schools or for the purpose of investing school funds in real estate. R. S. 1909, sec. 11030. "Whatever property the Board of Education acquires or holds is virtually the property of the school district, and in the management of such property the hoard is acting as the agent of the district. But more strictly speaking, the statute vests the legal ownership of the property in the Board of Education itself, so that the negligence of the Board is legally with respect to its own property. R. S. 1909, sec. 11030. However, the entire doctrine which exempts counties and school districts from liability for the negligence of county-courts and school boards is erroneous, because in conflict with the fundamental principles of law, and for that reason the Supreme Court should overrule the former decisions sustaining that doctrine,. We believe that' the dissenting opinion in Swineford v. Franklin County, 73 Mo. 279, states the true view of the matter in holding “that the alleged distinction between the liability of municipal corporations and the non-liability of quasi-corporations under like circumstances, is based upon precedent rather than reason, and is not sound.” Two of the judges dissented from the decision of the majority of the court. Swineford v. Franklin County, 73 Mo. 279. The reasons assigned in support of the non-liability of counties and school districts are found when analyzed to be radically unsound and at variance with the true principles of law. One of the reasons alleged is that counties and school districts, on account of being political subdivisions of the State government, should enjoy immunity from liability for torts. This reason is a remnant of the old doctrine that “the king can do no wrong,” and in its applications to counties and school districts, is absurdly out of place as well as unjust in its operation. The City of St. Louis is also a political subdivision of the State, the same as a county. G-racey v. St. Louis, 213 Mo. 387. Yet the City of St. Louis is held liable for the negligence of its officials in numerous decisions of the appellate courts of this State. If it is proper to hold the City of St. Louis liable, it is also proper to hold counties and school districts liable for the torts of their officials. It is expressly provided by statute that the Board of Education in cities of 500,000 inhabitants or over may “by and in said name sue and be sued.” R. S. 1909, sec. 11030. What good reason, and what authority, can there be for whittling down the application of the above provision of the statute and holding that it applies only to suits on contract liabilities and not to suits on liabilities for torts. This provision is general in its terms and without qualification imparts to the Board of Education the capacity of being sued the same as any individual or corporation. The further reason assigned in some decisions why counties should be exempt from liability is that county courts deriving their functions directly from the state are independent of the counties, and the counties having no authority to direct or instruct the county courts in regard to the performance of their duties, the counties therefore should not be held liable for their negligence. A distinction is raised between counties and municipal corporations in this respect. The above distinction is not a real one. There is no real difference between a municipal corporation and a county in this regard. The Constitution of our State provides: “The courts of justice shall be open to every person' and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.” Mo. Constitution, Art. 2, Sec. 10. Depriving plaintiff of the right to sue the Board of Education for compensation for the injuries sustained by her from the negligence of said Board in the management of school property, is in direct violation of the above mandatory provision of the Constitution. • Theiles v. Tillamook County, 75 Ore. 214, 146 Pac. 828. A person is entitled to sue a county for damages resulting from negligent defects in public roads. Otherwise there would be a right without a remedy. County Commissioners v. Duckett, 20 Md. 468.' The Board of Education can be sued for damages growing out of its negligence in the maintenance or management of school property, Waheman v. Board of Education, 187 N. Y. 331,116 Am. St. 609; M’Carton v. City of New York, 133 N. Y. Supp. 939, 149 App. Div. 516. (2) The trial court committed error in sustaining the demurrer of defendant City of St. Louis to the evidence. The evidence shows that the premises in controversy were used by the general public as a thoroughfare or street for travel on foot by night and day and that it had been so used for nearly twenty years; that its said use was open and public; that it was recognized as a public thoroughfare by its policeman, who directed people to go through it. There was a sufficient case made against the defendant city to go to the jury. Hemphill v. City of Morehouse, 162 Mo. App. 574; Curran v. St. Joseph, 264 Mo. 659. (3) The verdict for $250 for the plaintiff against defendant Wilson is grossly inadequate, in view of the character and extent of the damages sustained by plaintiff, and accordingly the judgment should be' reversed and plaintiff granted a new trial. Craton v. Huntzinger, 187 S. W. 51.

      Robert BurJcham for respondent.
    (1) The Board of Education of the City of St. Louis is a gwsi-corporation and so being is not liable for the negligence of its members, officers or employees. Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Cunningham v. St. Louis, 96 Mo. 53; Reed v. Howell County, 125 Mo. 58; Lamar v. Road District, 201 S. W. (Mo.) 890; Moxley v. Pike County, 276 Mo. 449; McClure v. School Dist., 79 Mo. App. 80; Freel v. School City of Crawfordsville, 142 Ind. 27, 37 L. R. A. 301; Ford v. School Dist., 121 Pa. 543; Finch v. Board of Education-30 Ohio St. 37. (2) The matter of public education is a governmental function, in consequence of which the Board of Education of the City of St. Louis is not liable for negligence in the performance of such duty. Mo. Constitution, Art. 11, sec. 1; Murtaugh v. St. Louis, 44 Mo. 479; Ulrich v. St. Louis, 112 Mo. 138; Cassidy v. St. Joseph, 247 Mo. 197; Hill v. Boston, 122 Mass. 344; Wixon v. Newport, 13 R. I. 454; Folk v. Milwaukee, 108 Wis. 359. (3) It is contrary to public policy to allow charitable funds, and particularly public charitable funds, to be subjected to the demands of those injured by the negligence of those administering such funds. Nicholas v. Evangelical Deaconess Home; 219 S. W. (Mo.) 643; Adams v. University Hospital, 122 Mo. App. 675; Whit-taker v. Hospital, 137 Mo. App. 116; Freel v. School City of Crawfordsville, 142 Ind. 27; Ford v. School Dist., 121 Pa. 543; Wiest v. School Dist., 68 Ore. 474, 49 L, R. A. (N. S..) 1025; Weddle v. School Commrs., 94 Md. 334.

      Charles 3. Danes, Arthur 3. Buder and 3. A. Hamilton for City of St. Louis.
    (1) A street can be established by dedication, condemnation or prescription. There is no evidence of a dedication or condemnation, and the evidence does not establish that the place where appellant was injured became a public thoroughfare by user. Stacey v. Miller, 14 Mo. 478; Brinck v. Collier, '56 Mo. 160; Landis v. Hamilton, 77 Mo. 554; Anthony v. Kennard Bldg. Co., 188 Mo. 704; Railway Co. v. Wo'llard, 60 Mo. App. 631; Coberly v. Butler, 63 Mo. App. 556; Strong v. Sperling, 200 Mo. App. 66. (2) The appellant was injured on property belonging to the Board of Education of the City of St. Louis. The respondent, the City of St. Louis, could not acquire title to this property for street purposes either by condemnation or prescription. City of St Louis v. Moore, 269 Mo. 430'; R. S. 1909, sec. 1886.
   WALKER, J.

This is an action for personal injuries brought in the Circuit Court of the City of St. Louis by plaintiff against the Board of Education, the City of St. Louis and James Wilson. The Board of Education demurred to the petition. The- demurrer was sustained and exceptions saved. Upon a trial before a jury a demurrer to plaintiff’s testimony filed by the City of St. Louis was sustained, and the court’s action in regard thereto was preserved by plaintiff for review on appeal. The result of the trial was a verdict for plaintiff in the sum of $250 against James Wilson. The trial court thereupon entered judgment for plaintiff against him, dismissed the suit as to the City of St. Louis and entered judgment in favor of the Board of Education. Plaintiff appealed to this court.

The alleged liability of the City of St. Louis and its joinder as one of the defendants is the basis of this court’s appellate jurisdiction.

The defendant James Wilson owned a large theatre building in the City of St. Louis called the Odeon. This building, No. 1012, is located on the east side of North Grand Avenue. Immediately south, with a driveway or open space between, is located one of the high school buildings of the city, belonging to and under the supervision of the Board of Education. The space between these two buildings was covered with granitoid, and near the high school building there were ten or twelve steps leading from the level of Grand Avenue to' the grounds of the high school building. The space between these two buildings, affording an opportunity for passage by pédestrians from Grand Avenue to School Street or vice versa, was used as a thoroughfare by persons in going from one of these streets to the other. The plaintiff having been directed, as she says, by the manager of the Odeon in her efforts to enter the building, was passing over the high school grounds, which were not lighted, when she fell down a flight of steps and received the injuries for which she claims damages. The plaintiff assigns error in the court’s sustaining the demurrer of the Board of Education to her petition; in sustaining the demurrer of the City of St. Louis to plaintiff’s evidence; and in entering judgment on a grossly inadequate verdict rendered in her favor against James Wilson. These in their order.

I. As to the first assignment, it is not a question as to the sufficiency of the formal allegations of the petition, but do those alleged state a cause of action against the Board of Education? This board *s a 2'lias^corPoration- and bears a like relation to the State or its educational system to that sustained by a -school district. [Art.

XIII, chap. 106, R. S. 1909; Art. XVI, chap. 102, R. S. 1919.] Even more definite in terms and comprehensive in scope than the laws defining the corporate existence of ordinary school districts is that in relation to such a district as is authorized to be created in a city of 500,000 inhabitants or over, or that at bar. [Secs. 11030 et seq., R. S. 1909; Secs. 11456 et seq., R. S. 1919.] The reasons prompting legislative action in the creation of school districts has been judicially defined many times, nowhere perhaps more fully or clearly than in Freel v. School of Crawfordsville, 142 Ind. 27, in which recovery was sought by a laborer in a suit against a school district for injuries while working on a school building. A demurrer to the petition was sustained and there was judgment for the defendant. This was affirmed on an appeal to the Supreme Court. In discussing the quasi-corporate capacity of the district as a ground of non-liability, at page 28, the court said, in effect:

“They are involuntary corporations, organized, not for the purpose of profit or gain, but solely for the public benefit, and have only such limited powers as were deemed necessary for that purpose. Such corporations are but the agents of the State for the sole purpose of administering the state system of public education. It is the duty of the school trustees of a township, town, or city, to take charge of the educational affairs of their respective localities, and, among other things, to build and keep in repair public school buildings. In performing the duties required of them, they exercise merely a public function and agency for the public good, for which they receive no private or corporate benefit. School corporations, therefore, are covered by the same law in respect to their liability to individuals for the negligence of their officers or agents, as are counties and townships. It is well established that where subdivisions of tlie State are organized solely for a public purpose by a general law, no action lies against them for an injury received by a person on account of the negligence of the officers of such subdivision, unless a right of action is expressly given by statute. Such subdivisions, then, as counties, townships and school corporations, ai'e instrumentalities of government and exercise authority given by the State and are no more liable for the acts or omissions of their officers than the State.”

The question as to the liability of quasi-corporations for the negligence of their directors, officers or employees has, in regard to other than school districts, been frequently considered by this court. In Reardon v. St. Louis County, 36 Mo. 555, an action was brought by a widow against the county for the death of her husband alleged to have been caused by the negligence of the county in failing to keep a bridge in repair. A demurrer was sustained to the petition and upon appeal to this court the judgment was affirmed.

The basis for this ruling, briefly stated, is that counties are quasi-corporations created by law for purposes of public policy and are not answerable in damages for a failure to perform the duties enjoined on them unless the right of action is given by statute.

In Swineford v. Franklin County, 72 Mo. 279, the plaintiff brought suit against the county for damages caused by the county court ordering the filling up of a mill race which crossed a public highway. By a divided court the plaintiff was held not entitled to recover, on the ground of the non-liability of the county as a qit asi'-public corporation in its control, through the county court, of the public highways.

In Clark v. Adair County, 79 Mo. 536, the county was held not liable in an action for damages caused by the falling of a bridge on a public road. Following the rule in the Reardon and Swineford cases, supra, the court held that “counties are territorial subdivisions of the State, and are only quasi-corporations created by the Legislature for certain public purposes. As such, they are not responsible for neglect of duties enjoined on them or their officers unless a'right of action for such neglect is given by the statute. Such has always been the rule in this State.”

In Cunningham v. St. Louis, 96 Mo. 53, an action was held not maintainable against the city for an injury resulting from its negligence in permitting an unguarded pit to exist adjacent to the approach to the courthouse. In the maintenance of the courthouse the city was held to be occupying the same relation towards the State as that of a county in regard to its courthouse, and on the same ground of non-liability of a county under like circumstances the city was held not to be liable. The reason for this ruling was, as is evident, the quasi-corporate character of • the city in its maintenance of the courthouse as a facility for the transaction of the State’s business, viz., the collection of the revenue.

In Reed v. Howell County, 125 Mo. 58, citing with approval the foregoing cases, a county was held not liable for damages arising from a wrongful attachment of property. The reason for non-liability in this case is'based upon the presumption that in the absence of any allegation in the petition to the contrary the officers of the county, in the institution of the suit on which the attachment was based, were engaged in the performance of those public duties which were enjoined on them by the authority of the statute and were not undertaken for their private benefit or the emolument of the county.-

In Lamar v. Bolivar Road District, 201 S. W. 890, this court ruled that a special road district, being a quasi-corporation, is not liable for an injury occurring upon a highway. This ruling was but a reiteration. of the doctrine which has been announced in this State since the Reardon case in 1865.

In Moxley v. Pike County, 276 Mo. 449, l. c. 453, this court ruled that a county was not liable for an injury caused by a defective highway. The reasons for the court’s ruling are stated somewhat elaborately and may not inappropriately be quoted in this connection.

“When, for convenience in the administration of its laws, the State, through the Legislature, calls to its aid those territorial organizations sometimes called, with more or less accuracy, guasi-corporations, such as counties, townships and school districts, the question has frequently arisen whether these agencies share,.with the State itself, immunity from common-law liability for the negligence of their officers in the exercise of their territorial duties. The answer, from the courts of this State, has generally been a negative one. From Reardon v. St. Louis County, 36 Mo. 555, down to Lamar v. Bolivar Special Road District, 201 S. W. 890, are many cases .which will be found collected in the case last cited which have settled the general principle so firmly that it is not questioned by this appellant. On the other hand, it has been equally well settled that municipal corporations, which include cities, towns and villages, are, in the control, management and maintenance of their streets, alleys and public places, subject to such liability. The cases recognizing' this doctrine are so numerous and so constantly before our appellate courts and their doctrine so well recognized as to render citations not only unnecessary but unjustifiable. This general doctrine is also recognized and admitted by the parties to this appeal.”

The only variance from the uniformity of this ruling in regard to the non-liability of gwisi-corporations is found in the case of Hannon v. County of St. Louis, 62 Mo. 313. This case, however, was impliedly overruled in Swineford v. Franklin County, supra,.and was expressly disapproved in the late case of Moxley v. Pike County, supra. The current of authority, therefore, as we have stated it, is unbroken.

While the political subdivisions whose rights, powers and liabilities were discussed and determined in the cases cited were not school districts, the latter possess all the characteristics of gvrm-corporaticms of the former, and may, with a reasonable regard for the rules of construction, be thus classified and held to be immune from .liability j.n actions for damages for like reasons.

An exhaustive review of the authorities on this subject will be found in 37 L. R. A. 301, in a note appended to the Freel case, supra.

On the ground, therefore, of its legal character alone as a gwusi-corporation the Board of Education is -not answerable in this connection for the negligence charged.

Independent, however, of the foregoing, another reason exists for the non-liability of the Board of Education in a proceeding of this character. Public education is a governmental function. This is clearly recognized in our organic law, which declares that “ a general diffusion of knowledge and intelligence, being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years.” [Art. XI. sec. 1, Const. Mo.]

Prompted by this provision, the General Assembly has legislated liberally concerning public schools and especially so in the statute creating the Board of Education of the City of St. Louis (Art. XIII, chap. 106, supra,) which is clothed with the supervision, control and management not only of the public schools but of the school property of said city, and to effect the purpose of its creation such powers have been conferred and duties enjoined upon it as the Legislature in its wisdom deemed necessary. In defining the corporate character of the Board of Education this court has said; “The School Board of St. Louis is an instrumentality created by the laws of the State to administer the trust created and assumed by the State for the education of the children of the State.” [State ex rel. O’Connell v. Board, 112 Mo. l. c. 218.]

Speaking of school districts generally, we said in the later case of State ex rel. School District v. Gordon, 231 Mo. 547, l. c. 574: “But a school district is but the arm and instrumentality of the State for one single and noble purpose, namely, to educate the children of the district, a purpose dignified by solemn recognition in our Constitution.” ,

These conclusions are sufficiently indicative of the nature of school districts to authorize their classification as instrumentalities engaged in the performance of governmental functions and hence subject to the same rules as to nonliability for negligence as other subdivisions of the State charged with the performance of like duties.

In Murtaugh v. St. Louis, 44 Mo. 479, the plaintiff sought to hold the city liable for injuries alleged to have been received by him through the negligence of employees while he was a patient at the city hospital. In holding the city not liable this court thus stated the rule: “ The general result of these adjudications seems to be this: where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or parties; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions on the part of the officers and servants.”

In Ulrich v. St. Louis, 112 Mo. 138, this court held that since the maintenance of the city workhouse was in pursuance of the governmental functions of the city of St. Louis it was not liable for injuries received by a prisoner therein, although caused by the negligence of the city’s employees. In ruling upon this question the court said: “ The rule of law is well settled in this State that a municipal corporation is not answerable in damages for the negligent acts of its officers in the execution of such powers as are conferred on the corporation or its officers for the public good. [Murtaugh v. City, 44 Mo. 479; Armstrong v. City, 79 Mo. 319; Kiley v. City, 87 Mo. 103; Carrington v. City, 89 Mo. 208; Keating v. City, 84 Mo. 415; 2 Dillon on Municipal Corporations (4 Ed.), sec. 965a.]’'

In Cassidy v. St. Joseph, 247 Mo. 197, this court, applying the same doctrine, held that the city was not liable for injuries caused by servants in hauling refuse.

If the operation of a city hospital, the maintenance of a workhouse or the collection of garbage are properly referable to the governmental functions of a city,, no argument is required to establish the fact that the education of youth partakes of the same, although it may be of a higher character, and that the instrumentality, namely, a board of education, through which this function is exercised is consequently immune from actions for damages on account of negligence. Cases from courts of last resort elsewhere give added force to this conclusion. [Hill v. Boston, 122 Mass. 344; Wixon v. Newport, 13 R. I. 454; Folk v. Milwaukee, 108 Wis. 359.]

Finally, as conclusive of the rule stated in the cases cited, it is appropriate that the conclusions of the learned author of a leading treatise on Municipal Corporations be quoted in this connection:

‘ ‘ When a municipal corporation is charged by charter or statute with the duty of erecting and maintaining public schools for the education of the children of the municipality, the weight of authority is to the effect that in the exercise of the power so conferred it performs a public or governmental duty and not a special corporate or administrative duty, as distinguished from a state or public duty, and it is not impliedly liable for the wrongful acts and negligence of its officers or agents in maintaining and repairing school buildings.” [4 Dillon on Munic. Corps. (5 Ed.) sec. 1658.]

Another equally cogent reason why the Board of Education cannot be required to respond to an action of the character of that at bar is the nature of the fund entrusted to its' care and distribution. School funds are collected from the public to be held in trust by boards of education for .a specific purpose. That purpose is education. An attempt, therefore, to otherwise apply or expend these funds is without legislative sanction and finds no favor with the courts. Cases in which hospitals have been held exempt from actions for damages for negligence on account of their character as charitable institutions may not inappropriately be cited in this connection.

In Nicholas v. Evangelical Hospital, 281 Mo. 182, a patient sued the hospital for damages for burns inflicted from the negligence of a nurse. The court, in holding the hospital not liable, said: “The law has been firmly established by the great weight of authority that the funds of a charitable hospital or association are trust funds devoted to the alleviation of human suffering, and cannot be diverted or absorbed by claims arising from the negligence of the trustees or their employees in administering the trust or charity.” In thus ruling the court cited with approval two Courts of Appeals cases in which the exemption of hospitals from the rule of respondent superior was clearly set forth.

In Adams v. University Hospital, 122 Mo. App. 675, suit against the hospital had been brought by a patient burned with hot-water bottles while under the influence of an anesthetic. The court held that the hospital, being a charitable institution, was not liable for the- negligence of either its managers or its employees. Ellison, J., at page 636, thus states the reason for this ruling: “But it is manifest that if we uphold a rule which would make an institution of charity liable to a patient who has been injured by an incompetent servant, negligently selected, we destroy the principle we have endeavored to make plain, that charitable trust funds cannot be diverted from the purposes of the donor. For it can make no difference, so far as the integrity of the fund is concerned, whether it be sought after by one who is injured by the negligence of a servant, or the negligent selection of such servant.”

In Whittaker v. Hospital, 137 Mo. App. 116, an employee brought suit against the hospital for injuries. In denying liability Goode, J., at page 120 said.: “Two rules of law, both founded on motives of public policy, come into conflict here; the rule of respondent superior (or if not technically that, one akin to it) and the rule exempting charitable funds from executions for damages on account of the misconduct of trustees and servants. As both rules rest on the same foundation of public policy, the question is whether, on the facts in hand, the public interest will best be subserved by applying the doctrine of respondeat superior to the charity, or the doctrine of immunity; and we decided this cause for respondent because, in our opinion, it will be more useful on the whole not to allow charitable funds to be diverted to pay damages in such a case; and, moreover, the weight of authority is in favor of this view, as expressed not only in cases where the parties seeking damages were patients in the institution, but 'where they were not. ’ ’

There may be grounds, not necessary to be discussed here, for exceptions to this rule in its application to hospitals commercially conducted and which might seek shelter under the ample cover of charity in the broadest acceptation of that term. This, however, is aside in the determination of the matter at issue.

If it is against public policy as ruled in the foregoing cases to divert charitable funds, so-called, from other than the purpose for which they have been collected, how much stronger is the case where the funds are the fruit of taxation, belong to the people and are to be used for the beneficent purpose of free education. Their immunity from the payment, of damages for negligence need not rely, however, upon the analogous rule applicable to the funds of charitable institutions but finds express approval in Freel v. School of Crawfordsville, supra; Ford v. School District, 121 Pa. 543; Wiest v. School District, 68 Ore. 474; Weddle v. School Commrs., 94 Md. 334, and numerous other cases of like character.

In the Weddle case at page 344, the doctrine in regard to the sacredness of public school funds is thus succinctly declared: “There is no power given the board of School Commissioners to raise money for the purpose of paying damages, nor are they supplied with means to pay a judgment against them. All of their funds are appropriated by law to specific purposes and they cannot be diverted by them. The Constitution of the State (Sec. 3, Art. 8) provides that the school fund of the State shall be kept inviolate and appropriated only to the purposes of education. In Perry v. House of Refuge, 63 Md. 27, this court distinctly held, in adopting the English decisions on the subject, that damages could not be recovered from a fund held in trust for charitable purposes.”

While there are cases which have held school districts liable for torts, the great weight of authority is to the contrary. In view of the foregoing we hold that the Board of Education is not liable.

II. The liability of the City of St. Louis under the facts is dependent wholly upon whether the space between the Odeon and the high school building can be classified as a public highway. It is elementary that lan<i may become a public highway by either dedication, condemnation or prescription. It is not contended that the property was either condemned for or formally dedicated to a public, use. It is undisputed that the Board of Education owned the land on which the steps were located where the plaintiff was injured. This being true, there could have been no condemnation of the property for a public highway, on the ground that it was already devoted to a public use; and, as we held in St. Louis v. Moore, 269 Mo. 430, being already so devoted, it could not for this reason be condemned as a highway. Condemnation eliminated, it could not have been acquired by the public through adverse user, in the presence of the statute (Sec. 1886, R. S. 1909, Sec. 1314, R. S. 1919), which provides that Statutes of Limitations shall not extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use nor to any lands belonging to the State. Owned by the Board of Education and used as a necessary appurtenant to one of its buildings, it became as completely subject to the above statute as if set apart for any other well defined public purpose.

If this property could not be subjected to condemnation and was not affected by adverse user, as we are authorized in holding from the Moore case and the statute, supra, what gloss is needed or can be supplied to give strength to the conclusion as to the non-liability of the city? Waiving for the nonce, however, these reasons, which we deem ample, that appellant’s contention may be viewed from every point of vantage, what are the facts as tending to show such user as would constitute the space a public highway? There was an entrance to the high school building on the north side of same, access to which was afforded by the space referred to. This was much used by children attending the school and by others as affording a readier and more convenient means of passing to and from Gr-and Avenue. As disclosed by the testimony, this use, so far as the public was concerned, was purely permissive on the part of the board and was not otherwise claimed by those who enjoyed it. No one testified that the passageway was used as matter of right and hence that it was regarded as a public highway, but simply because such use was not prohibited. Technically considered, such users, instead of being clothed with a right, might not.inaptly be termed trespassers. If not so regarded, however, there is no such continuous use shown for a term of years as to cause same to ripen into a prescriptive right to use the passage as a highway. Absent this evidence, there is nothing to sustain the contention as to the city’s liability.

III. In plaintiff’s appeal from the judgment in her favor against James Wilson, assignments of error based on the alleged improper admission and exclusion of testimony and the giving and refusing of instructions are not matters for our consideration. Errors thus alleged to have been committed were cured by the jury’s finding in plaintiff’s favor. [Craton v. Huntzinger, 187 S. W. 48; Baker v. Mod. Woodmen, 140 Mo. App. 619; Knittell v. United Rys., 147 Mo. App. 677.]

It is only the adverse rulings of the trial court that can form the basis of complaint by an appellant. [Shull v. Railroad, 221 Mo. l. c. 146; Harrison v. Lakenan, 189 Mo. 581; Brown v. Globe Pr. Co., 112 S. W. 462.]

Thus limited to a review of such errors as have been preserved by the appellant, it is futile for the respondent "Wilon to urge here and now that there was no evidence on which to base the verdict; he acquiesced in its rendition, has not appealed, and in the' presence of any substantial evidence to sustain the same we will not disturb it, even upon the contention of appellant. [Ross v. Presbyterian Church, 272 Mo. l. c. 107; Imp. Co. v. Harv. Mach. Co., 268 Mo. l. c. 369.]

IV. This leaves for consideration, therefore, the question as to the inadequacy of the verdict.

Well considered eases establish the right of an appellant to have a verdict set aside either excessively large or ridiculously small in actions for personal torts, where the result indicates passion, prejudice or misconduct on the part of the jury. The rulings of this court upon this question have been carefully collated by Lamm, J.,- in Fischer v. St. Louis, 189 Mo. l. c. 577, and their repetition here would serve no useful purpose. They abound in subtle distinctions or nice refinements and are so dependent upon their particular facts as not to be subjectto any general rule governing the conclusions reached. In regard to them this much may be stated generally: that in arriving at a conclusion the presumption is in favor of the good conduct of the jury, and if upon the whole record the case preponderates in favor of the defendant or the testimony is evenly balanced, the courts will refuse to interfere with nominal verdicts although at first view they may appear illogical.

In Pritchard v. Hewitt, 91 Mo. l. c. 550, quoting with approval 1 Graham & Waterman on New Trials (2 Ed.) p. 451, this court says that the reason for holding so tenaciously to the damages found by a jury in eases of personal torts is that in this class of cases there is no scale by which the- damages may be graduated with certainty. They .admit of no other test than the intelligence of the jury, governed by a sense of justice.

To the jury, therefore, is. committed the exclusive task of examining the facts and circumstances to enable them to estimate the injury and award compensation therefor, in damages. The law conferring this power and exacting the performance of this trust favors the presumption that the jury will be actuated by proper motives; and not until the result of their deliberation is manifested in such a form as to shock the- understanding and indicate in no uncertain manner the presence of passion and prejudice will the courts interfere with their findings.

Than the amount of the verdict itself there is no indication here that the' jury was influenced in their deliberations except by the facts. We have never held that the inadequacy of damages for personal injuries will of itself furnish'the basis for such a presumption of passion and prejudice as will authorize a reversal of the judgment.

The reports are replete with declarations as to the superior opportunity afforded the trial judge over the appellate court by reason of the participation of the former in the moving panorama of the trial to correctly weigh the testimony and rightly determine the truth of the matter at issue. In recognition of this fact appellate courts defer largely to the actions of the trial courts, especially when the interference sought is based solely on the ground of an alleged excessive or inadequate verdict. Panoplied with this superior knowledge, which the letter of the record alone cannot afford, that sound discretion which it must be presumed the trial judge exercised in refusing to disturb the verdict, will not be accounted error. [Devine v. St. Louis, 257 Mo. 470; Morrell v. Lawrence, 203 Mo. 363; McCarty v. Transit Co., 192 Mo. 396; McCloskey v. Pulitzer Pub. Co., 163 Mo. 22; Minter v. Bradstreet, 174 Mo. 444.]

Furthermore, the appellant is not entitled as a mat-,, ter of right to have this verdict set aside unless her case is such, that if the finding had been for the defendant she would have been entitled to have it set aside. Or, more concretely stated, if the jury has returned a verdict for nominal damages in a case where the plaintiff' is entitled to no damages, the verdict will not be set aside by the appellate court at the instance of the plaintiff. [Haven v. Mo. Railroad, 155 Mo. 216; Dowd v. Air Brake Co., 132 Mo. 579.]

Waiving the lack of definite particularity in alleging' that the plaintiff received her injuries on the premises in charge of and under the control of the defendant Wilson, there is no evidence of such control on his part. The permissive use by the public of such premises sometimes perhaps as a means of egress or ingress to the defendant’s building, or the fact that his employee directed the course pursued by plaintiff at the time of her injury, does not constitute evidence of such control or use. The trial court, therefore, would have been justified in sustaining a demurrer to the evidence. In this state of the record we will not disturb the verdict at the behest of the plaintiff, apd the defendant, not having appealed, has no ground of complaint. [Leahy v. Davis, 121 Mo. l. c. 236; Overholt v. Vieths, 93 Mo. l. c. 426.]

In view of all of which the judgment of the trial court is affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: HIGBEE, P. J.

license: Public Domain

text:
    Ex Parte WALTER LEE.
    Division Two,
    April 7, 1921.
    1. IMPRISONMENT: Parole: Subsequent Conviction: Penalties Cumulative. The terms of imprisonment of a person who has been convicted of a felony, has been paroled and again convicted of another felony and whose parole, after he has been again committed to the Penitentiary under the second conviction, has been revoked by the Governor, are cumulative and not concurrent; and under the statutes, his term of imprisonment under the second conviction does not begin until he has served out his sentence under the first.

      2. —--■: -: -: Error in Bookkeeping. And the fact that Prison Control show that, upon the reseption of the convict under Prison Control show that, upon the reception of the convict under his second conviction, he was held and continued to serve under said second commitment and that he was discharged therefrom under the three-fourths rule for good behavior, does not affect the legality of his imprisonment under the first commitment for the balance of the term remaining after his parole was revoked. That was a- mere error of bookkeeping, although the second commitment began before the parole under the first was revoked.

      Habeas Corpus.

    Whit Denied.

      Fenton Luckett for petitioner.

      Jesse W. Barrett, Attorney General, for respondent.
   HIGBEE, P. J.

Petition for writ of habeas corpus. The petitioner states that he is unlawfully detained in the Penitentiary; that he was convicted of a felony in the Circuit Court of Jackson County, August 2, 1915, and sentenced to a term of five years in the Penitentiary; that on April 24, 1917, he was paroled by the- Governor; that on October 8, 1917, he was convicted of a felony in the Circuit Court of Jasper County and sentenced to a term of five years in the Penitentiary and was received there on November 13, 1917; that on November 20, 1917, the Governor revoked his parole; that on December 28, 1920, the prison authorities discharged him under the merit system from the Jasper County sentence, but are now illegally restraining him under the Jackson County sentence, aforesaid; that upon the revocation of his parole said sentences became concurrent and he is now entitled to his discharge.

The issuance of the writ and production of the body of the prisoner have been waived.

The return, made by the Warden of the Penitentiary and the Board of Prison Control, recites the facts substantially as set forth in the petition: that the sentences were not snch as to cause them to be concurrent, but that they were- cumulative and will not expire under the laws of this State prior to January 5, 1923, and for that reason the petitioner is not unlawfully detained.

It appears from suggestions accompanying the return that, on the receipt of the prisoner under the Jasper County commitment on November 13, 1917, the prison board made its record show that the petitioner was held and continued to serve under that commitment until he was discharged under the merit system on December 28, 1920, but no discharge papers were issued to him; that he has been held since that time under the sentence of the Circuit Court of Jackson County to serve out the remainder of that sentence after the revocation of his parole, and is now held under said sentence which will expire, under the three-fourths law, on January 5,1923.

Section 2292, Revised Statutes 1919, reads, in part: ‘ ‘ and if any convict shall commit any crime in the penitentiary, or in any county of this state while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of such convict shall not commence to run until the expiration of the sentence under which he may be held. ’ ’

Section 4165, Revised Statutes 1919, reads: “Any person who shall commit any offense while at large under parole may be arrested and tried in the same manner as if he had not previously been convicted or paroled.”

The language of this section seems to be general, but that it applies to other than judicial paroles it is unnecessary to decide. By Section 12543, Revised Statutes 1919, the Governor is authorized to grant commuta-' tions, paroles and pardons. Certain it is that while the petitioner was at large under a parole granted as an act of executive clemency, he. was still under sentence within the meaning of Section 2292:, and having been charged, tried and convicted of another offense while so at large “the sentence of such convict shall not commence to run until the expiration of the sentence under which he is held..” In other words, the sentences are cumulative.

This was the conclusion reached in Ex parte Allen, 196 Mo. 226. In that case, after Allen had been convicted and while he was being held in the county jail awaiting removal to the Penitentiary} he committed another felony for which he was tried, convicted and sentenced. At the expiration of the period of the first sentence, he sought to be released on the ground that the sentences were concurrent. In an opinion by GUntt, J., this court held that the case came within the provisions of Section 2383, Revised Statutes 1899, now Section 2292, and that the sentences were cumulative.

It seems, however, that the Board of Prison Control made its records show that the petitioner was held under the conviction and sentence of the .Jasper County Circuit Court from the time he was received under that sentence; that after the time he was entitled to his discharge from that sentence, the prison records show that he has been held under his first conviction to serve out the remainder of his term, dating from his parole. Under the provisions of Section 2292, the sentence for the conviction in the Circuit Court of Jasper County began at the expiration of the first sentence. The petitioner, •however, has not been prejudiced by the mistaken views of the Board of Prison Control and can take no advantage of their erroneous system of bookkeeping. The law fixes the sequence of the terms of imprisonment. [Ex parte Jackson, 96 Mo. 116, 120.]

Section 1946, Revised Statutes 1919, has no application to the facts in this case. There was no error in either judgment. The petitioner was properly sentenced in each case to the Penitentiary.

The writ is denied. The prison records' should be amended to conform to the requirements of the law as above indicated. It is so ordered.

All concur.


author: WHITE, C. PER CURIAM:

text:
    EMMA E. MAYNE v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division Two,
    April 7, 1921.
    1. PLEADING: General and Specific Injuries: Resultant Damages: Natural and Necessary. When the petition alleges special damages in a personal injury case, the proof must he limited to the special damages pleaded. Where a specific result necessarily follows from an alleged injury it is not necessary to plead it, hut where it is the natural hut not the necessary result of the injury it must he pleaded in order to admit evidence of it. Also if an allegation of damage contains a general term in describing what follows the injury, then any result coming within the content of that term may he proved without specific allegation: and if the petition contains any allegation of a general nature which may he said to embrace within the general term a resulcant damage sought to be proven, and defendant is not satisfied with the general allegation, he should move to make more specific.
    2. -: -: -: -: Injury to Pelvic Cavity: Impaired Functions: Child Birth. Where the petition alleges that the bones surrounding the pelvic cavity were broken and crushed, and the organs within the cavity were crushed, and after describing the broken condition of the bones and the dislocation and rupture of the ligaments alleges that “the functions of all of which organs have been seriously and permanently impaired,” it contains ail allegation of an injury in such general terms as to authorize proof of plaintiff’s inability to give birth to a child, since one of the functions of the organs so impaired was child-bearing, and inability to bear children is a necessary result of a permanent impairment of those organs.
    3. DEPOSITION: Absence from State: How Proven. The facts which will authorize the reading of a deposition may be established by the testimony of deponent or the certificate of the officer taking the same, or if deponent is gone out of the State, by additional proof that his present duty kept him in another State.
    4. -: -: In Military Service. The deposition of a citizen of this State who deposed that at the time it was taken he was in the military service of the U. S. Army and stationed in another State, had been for six months and had not been discharged, and knew not when he would be able to return to his home in this State, although its date is not so stated as to determine how long it was taken before it was offered, in evidence, is properly admitted in evidence, especially where the attorney for the party offering it testified that he had had correspondence with deponent at the military camp and was willing for opposite counsel to see the correspondence.
    5. -: -: Present at Place of Trial. After a deposition of a witness was admitted in evidence on the ground that he was absent from the State, it was discovered that he was at the place of trial, and he was then sworn for the .purpose of allowing the opposite party to cross-examine him, and such offer was declined. Held, that there is no reversible error in allowing the deposition to stand, because said opposite party was not harmed by it.
    6. ARGUMENT TO JURY: Comment on Evidence. Where evidence to • show plaintiff’s physical condition in a certain particular is competent under the pleadings, comment upon such condition in the argument of her attorney to the jury is not improper.
    7. -: -: Mental Suffering. Mental suffering as an incident to personal physical injury is always an element of damage to be considered by the jury, -and it is unnecessary to make specific proof of mental suffering, because it necessarily arises when the nature and extent of the physical injury is shown; and where such injury is shown, it is not error for plaintiff’s counsel, in his argument to the jury, to comment on her mental suffering.
    8. NEGLIGENCE: Res Ipsa Loquitur: Passenger. In determining whether the doctrine of res ipsa loquitur applies to a case, it does not matter whether the injured party was a passenger on defendant’s street car which injured her.
    9. -: -: When Applicable: Case for Plaintiff. When the instrumentality which causes an injury is within the control of and operated by defendant, and moves or is operated in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury results, the doctrine of res ipsa loquitur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for defendant to explain, if it can, the casualty, so as to exclude negligence on its part.
    10.-: -: -: -: Erratic Street Car. As a street car was being backed, the hind wheels went as they were intended to go and the front wheels veered off by reason of a split switch and caused the front end of the car to swing around and strike plaintiff standing on a sidewalk, the movement being one that could not have happened except for some defect in the car or track or some negligence in its management, and the machinery and all the appliances being peculiarly within the knowledge of defendant. Held, that the defendant was charged with the burden of explaining the casualty; and if by its testimony it only showed that the track, the car and the wheels were in good condition, but made no showing of what caused the split switch and the consequent erratic movement of the car, an instruction authorizing a recovery by plaintiff, if technically incorrect because it made reference to plaintiff as a passenger, is not reversible error.
    11. EXCESSIVE VERDICT: $20,000. Where plaintiff’s injuries were unusual in severity and painfulness, rendering her a cripple for life and incapable of normal activities and life’s most fruitful enjoyments, a verdict for $20,000 is not excessive.
    Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
    Aeeirmed.

      L. T. Dry den for appellant.
    (l)The court erred in admitting evidence to tlie effect that one of the results to the respondent from the injuries alleged to have been received by her, was a lack of the regular courses of nature in her female organs. Hall v. Coal Co., 260 Mo. 351; Johnson v. Railroad, 192 Mo. App. 8; Shafer v. Harvey and Dunham, 192 Mo. App. 502; Martin v. Kansas City Rys. Co., 204 S. W. 589; Wesner v. Railroad, 177 Mo. App. 117; Glasgow v. Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 162; Taylor v. Railroad, 185 Mo. 239; Baldwin v. Kansas City Rys. Co., 218 S. W. 955. (2) The court erred in admitting evidence as to the probable ability of the respondent to give, birth to a. child. Authorities cited above; Western Union Tel. Co. v. Cooper, 10 Am. St. 772; Pittsburgh Railroad Co. v. Story, 63 111. App. 239; Atchison Railroad Co. v. Chance, 57 Kan. 40; Railroad Co. v. Douglass, 69 Tex. 694; Augusta Railroad Co, v. Randall, 85 Ga. 297. (3) This case should be reversed because of highly improper argument of respondent’s counsel in his closing argument to the jury, to which timely objections were made and exceptions saved. Western Union Tel. Co. v. Cooper, 10 Am. St. 772; Pittsburgh Railroad Co. v. Story, 63 111. App. 239; Atchison Railroad Co. v. Chance, 57 Kan. 40; Railroad Co. v. Douglass, 69 Tex. 694; Augusta Railroad Co. v. Randall, 85 Ga. 297. (4) The court erred in admitting, over the strenuous objection of the appellant, the respondent to offer in evidence the deposition of Hugh Miller. Heinbach v. Heinbach, 262 Mo. 69; O’Brien v. Transit Co., 212 Mo. 59; State v. Miller, 263 Mo. 326; Dubowsky v. Binggeli, 184 Mo. App. 364; Schmitz v. St. Louis, I. M. & S. Ry. • Co., 46 Mo. App. 380. (5) The court erred in giving Instruction P-1. Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; Nolan v. Met. St. Ry. Co., 250 Mo. 602; Nellis on St. Railways, secs. 258, 259. (6) The verdict in this case is grossly excessive and so much so as to require a reversal. Henson v. Kansas City, 210 S. W. 13; 6 Thompson on Negligence, sec. 7355.

      E. G. Hamilton for respondent.
    (1) Appellant cannot be heard to complain of testimony showing impairment of the functions of childbearing or of a lack of the regular course of nature in her female organs, (a) Because the petition alleges injury to the-female organs and resulting impairment of function. Perrigo v. St. Louis, 185 Mo. 289; Brake v. Kansas City, 100 Mo. App. 616; McRay v. Met. St. Ry. Co., 125 Mo. App. 570; Patridge v. Boston Ry Co., 184 Fed. 211; Doster v. Ry. Co., 158 S. W. 441. (b) Because the evidence conclusively shows, and because it is a matter of common knowledge, that the chief functions of the organs within the pelvis injured and impaired in this case are essentially those of procreation with the accompanying process of menstruation, (c) Because appellant failed to avail itself in the trial court of the provision of Sec. 1846, R. S. 1909, which prescribes the way, and the only way of preserving for appellate review the complaint of a variance between'thé pleading and the proof, namely, the tiling of an affidavit of surprise. Sec. 1846, R. S. 1909; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 470; Fisher v. Real Estate Co., 159 Mo. 567; Olive Street Bank v. Phillips, 179 Mo. App. 488; Cossitt v. Railroad Co., 224 Mo'. 110; Thornton v. Am. Zinc Co., 178 Mo. App. 42, 46; McPike v. Motor Car Co., 213 S. AY 908; Ridenhaur v. K. C. Cable Ry. Co., 102 Mo. 285; Wright y. K. C. Terminal Railroad .Co., 195 Mo. App. 486. (2) Appellant cannot be heard to complain of misconduct of counsel in the argument of the case for the reasons: (a) Defendant brings up only a fragment of the argument complained of, thus failing to show the sequence, the connection and the effect of the argument as a whole. Lilly v. K. C. Rys. Co., 209 S. W. 972; Norris v. Railroad, 239 Mo. 721; Wendler v. Furnishing Co., 165 Mo. 542. (b) For the reason that error will not be presumed from an unfinished interrupted remark in argument. Wagner v. Const. Co., 220 S. W. 899; Baird v. Larrabee Flour Mills,- 220 S. W. 992. (c) For the reason that the defendant’s motion for a new trial failed to specifically point out to the trial court the language of the argument complained of in order that the court nisi might have corrected the error, if such there were, before appeal. Sweet v. Maupen, 65 Mo. 68; Zahn v. Royal Fraternal Union, 154 Mo. App. 83; Lynch v. C. & A. Railroad, 208 Mo. 42; Honeycutt v. St. Louis Ry., 40 Mo. App. 678; Stone v. Wolfskill Bros., 59 Mo. App. 433. (d) For the reason that mere objections to argument are insufficient unless accompanied by request for the court to rebuke counsel. State v. Phillips, 233 Mo. 307; Norris v. Railroad, 239 Mo. 720; Wagner v. Const. Co., 220 S. W. 899. (3) Appellant having failed to avail itself of an opportunity to cross examine witness Miller after the reading of his deposition, cannot be heard to complain of the deposition’s admissibility in evidence, especially when the evidence disclosed by it was only cumulative in nature. O’Keife v. Railway Co., 124 Mo. App. 623; McFarlan v. Accident Assn. Co., 124 Mo. 222; Benjamin v. St. Ry. Co., 133 Mo. 287. (4) In view of the doctrine of res ipsa loquitur there was no error in the giving of plaintiff’s Instruction P.-l. Thompson v. Railroad, 243 Mo. 353; Burns v. Railroad, 176 Mo. App. 338. (5) The verdict is in no sense excessive, considering the horrible nature and permanency of plaintiff’s injuries especially in view of the increased cost of living and the decreased purchasing power of money at the time the verdict was rendered. Greenwell v. C. M. & St. P. Ry. Co., 224 S. W. 410; Wagner v. Const. Co., 220 S. W. 899; Myers v. City of Independence, 189 S. W. 816; Barry v. Cape Girardeau, 132 Mo. App. 189; Stottler v. Railroad, 200 Mo. 148; Roe v. Met. St. Ry. Co., 131 Mo. App. 134.
   WHITE, C.

The appeal is from a judgment for $20,000 recovered by the plaintiff as damages on account of personal injuries.

Lexington Street, Independence, runs east and west. It is intersected by Orange Street running north and south. The defendant’s street railway tracks run along Lexington Street; a track comes in from the north on Orange Street, and turns into a track on Lexington Street. After turning from Orange into Lexigton Street, a car stands to receive passengers in front of the post office, which is on the north side of Lexington Street.

On December 24, 3917, a car of the defendant came from the north on Orange Street and turned the curve into Lexington Street, heading towards the west. A number of persons, including the plaintiff and her sister, were waiting at that point in front of the post office to take passage on a car going west. Some of those persons immediately boarded the car. It was then announced by the conductor in charge that the car would not go on west. Such passengers as had boarded the car got off. The switch connecting the track coming in from Orange Street with the Lexington Street track was thrown, and the motorman attempted to back the car eastward on the track on Lexington Street. The rear trucks of the car passed on east, but the switch then became “split,” as it was termed, so that the front trucks, of the car, instead of going east, turned northward .as if to pass on to the track on Orange Street. That caused the front end of the car to swing around in a sweep toward the curb on the north side of Lexington Street and against the crowd of perons waiting to take passage. The end of the car, swung so far, the evidence. shows, that it struck an iron post which stood between the curb and the sidewalk at the northwest corner of Lexington and Orange. It struck a number of persons, knocking several down, and three women at least had to be picked up by other persons. The plaintiff’s sister was dragged from under the car when it stopped; the plaintiff was struck and crushed over against the iron post mentioned, or against the curb. According to the evidence, when the car stopped the fender either was against the post, or very close to it. The fender was injured and had to be removed. Whether its removal was made for the purpose of getting the persons from under it, or whether the car could not proceed with it in that condition, does not appear from the evidence.

The number of persons at the point waiting to board the car was variously estimated at from a dozen to thirty. A number of them testified, and all substantially to the same-effect, as to the movement of the car in taking the split switch, the swinging around of the front, and the crashing into the throng of people. Among the witnesses was the motorman in charge of the car, whose testimony-was offered by the plaintiff. The defendant offered evidence to show that the wheels of the car and other parts were in good condition. The evidence tended to show that the split switch might have been caused by various means, by a defective wheel, broken flange, obstruction in the track, or too rapid backing of the car.

The injuries of the plaintiff were of the most serious character. Her hip was tom from the socket; the bones in the region of the hip were fractured in five or six places. The technical names of those various bones were given and the condition explained by surgeons who attended the patient and took X-Ray pictures of them. The bones were thrust out of place and grew together again in a misplaced condition, so that the result was an abnormal contraction of the pelvic cavity and the birth canal. It was testified that it would afterwards be impossible for the plaintiff to give birth to a normal child. Some of the bones overlapped, so that there was painful and defective locomotion. One fragment of bone was thrust downward, so that it was impossible for her to sit comfortably except upon a pillow; other fragments were thrust into the pelvic cavity, causing painful menstruation. The expert evidence showed that is was impossible properly to set the bones; the only thing that could be done was to reset the hip joint which had been torn from its socket, There was no way known to the surgeons by which the broken and crushed bones in that region could have been replaced in their normal condition. Such injuries, the surgeons said, usually were fatal, although the plaintiff survived. The movement of the plaintiff’s right leg was impaired, and when she walked, one with hand on her hip could feel the click-click of the bones. She walked painfully and with crutches. She was in a sanitarium undergoing treatment for about ten weeks, and afterwards was enabled to move around with difficulty. At the time of the trial, some fourteen months after the injury, she still went on crutches a great part of the time, used her muff or a pillow to sit on, was able to do very little, and only the lightest -housework, whereas before her injury she was in good health, and did all her own housework. It was the opinion of physicians 'that her injury was permanent, with no possibility of. any substantial relief. No attempt was made by the defendant to minimize the injuries which she was shown to have suffered.

I. The appellant asserts that the trial court erred in allowing the plaintiff to prove her inability, after the accident, to give birth to a child. The allegations of the petition relating to the nature of the injuries received are as follows: “ The lower part of her body about the hips was crushed, the right pubic bone fractured, the left pubic bone fractured, the right ischium was broken, the left ischium broken, and the back of her hips so mashed and crushed as to tear loose the right osinominata from its articulation with the sacrum; the left hip was torn, wrenched and dislocated, resulting in a rupture, strain and wrench of the ligaments thereto attached; the organs within the cavity of the pelvis were crushed and injured, including the bladder, the functions of all of which said organs have been seriously and permanently impaired; that the tender nerves, blood vessels and tissues within the pelvis, and surrounding and adjacent to said injured parts have been torn, lacerated and injured, and their functions permanently impaired; that she has sustained a lasting and permanent shock to her whole physical and nervous system, which has been shattered, wrenched and permanently impaired.”

It is argued that these allegations were not sufficient to allow the introduction of such evidence, because there is no specific mention of that particular impairment in the injured organs. The case of Hall v. Coal Co., 260 Mo. 351, is cited by appellant in support of the position, where it is held that when the petition alleges special damages in a personal injury case, the proof must be limited to the special damages pleaded; that where a specific result necessarily follows from a stated injury it is not necessary to plead it, but where it is the natural but not the necessary result of the injury it would have to be pleaded in order to admit evidence of it. As an illustration used in the Hall Case, l. c. 373, an injury to' the lungs might result in pneumonia, but not necessarily so, and such result would have to be pleaded before it could be proved.

Some uncertainty appears in some of the cases in the use of the expressions “ general damages ” and “ special damages.” This arises from confusing the facts constituting a specific injury with the resultant damages which flow from it. If an allegation of damage contains a general term in describing what follows the injury, then any result coining within the content of that term might be proven without specific allegation. For instance, an allegation that the injury caused the lung to be diseased would let in evidence of pneumonia. If the defendant in such case were not satisfied with the pleading he could move to make more specific. This is particularly explained in the Hall Case, for instance, l. c. 371, it is said: “ It will be noticed that the petition fails to specifically allege impotency, neither does it contain an allegation of a general nature which might be said to embrace within its terms the condition of impotency.”

The opinion then goes on to point out that in the petition in that (‘ase the defendant could not help the situation “ by filing a motion to make more specific, because the petition contains no general terms which would by being made more specific uncover the hidden secret that impotency resulted from the injury.”

Applying that principal to this case, to simply allege that the bones surrounding the pelvic cavity were broken and crushed, and the organs within the cavity crushed, is a description of the facts constituting the injury; it would not necessarily follow from that statement of the injury that the woman would thereafter be unable to give birth to a child; but the allegation instead of stopping with the description of the injury goes on to state the results in general terms; the allegation, after describing the broken condition of the bones and the dislocation and rupture of the ligaments, then alleges: “the functions of all of which organs have been seriously and permanently impairedOne of the functions of these organs so impaired was child-bearing. If the defendant desired a more specific definition of the particular impairment meant, a motion to make more specific was available. Or, if after describing the nature of the injury and the impairment of the organs the plaintiff had gone on and specifically had enumerated the particulars in which the organs were impaired, she probably would not have been allowed to prove any other than these particulars enumerated. Recent cases have considered this subject and support the position taken here. [Ganz v. Met. St. Ry. Co., 220 S. W. 490, l. c. 496; Martin v. Kansas City Rys. Co., 204 S. W. 589, l. c. 590; Bergfeld v. Dunham, 202 S. W. 253, l. c. 254.]

The case of Kibbler v. Kansas City Railways Co., 237 S. W. 1014, decided at this term of court, differs from the case under consideration in that very particular. In that case there Avas an allegation of the impairment of functions of certain organs; it was held improper to show a destruction of such organs, making it necessary to have them removed by operation, because destruction is not embraced Avithin the general term impairment. The evidence was not improper and comes Avithin the general allegations of l'esultant injuries.

II. Error is assigned to the admission of the deposition of witness Hugh Miller. The deposition was offered by the plaintiff and read in evidence. Miller testified that his home was with his parents jn(]epencieiiee; but at the time his deposition was taken he was in the military service in the U. S. Army and stationed at Camp Funsjnn; had been there for six months and had not been discharged. He didn’t know when he would be able to come back to Independence. The date of the deposition is not stated so as to determine how long it was taken before it was offered in evidence. The plaintiff’s attorney, Mr. Hamilton, was sworn and testified that he had had correspondence with the witness at Camp Funston and he was willing that the counsel on the other side should see the correspondence. On that showing the deposition was read in evidence over the objection of the defendant.

The statute, Section 5467, Revised Statutes 1919, provides that depositions may be read in evidence “if the witness resides or is gone out of the State; . . . if he reside in a county other than that in which the trial is held, or if he be gone to a greater distance than forty miles from the place of trial without the consent, connivance or collusion of the party requiring the testimony. ’ ’

The facts which would authorize the reading of the deposition may be established by the testimony of the deposing witness or the certificate of the officer taking the same. It was held by this court in the early case of Gaul v. Wenger, 19 Mo. 541, that the mere statement of the witness in his deposition that he was going to leave for Europe tomorrow would not be conclusive so as to authorize his deposition to be read, in the absence of other proof, but that slight evidence might be offered to show that the witness liad carried out his purpose so as to make the deposition competent. [See, also, Moudy v. Dressed Beef and Provision Co., 149 Mo. App. 413, l. c. 422.] In this case the witness not only said he was going away, but that he was stationed away. There was additional positive proof that his present residence and duty kept him in another State, at Camp Funston. If he should return to Independence it would be because of a leave of absence. We think the evidence justified the court in admitting the deposition.

However, another complication arose; after the deposition was read it was discovered that the witness was in Independence a't the time'. Mr. Hamilton, attorney for the plaintiff, was sworn and stated that he was misled as to the whereabouts of the witness, didn’t know he was in the city, and he was ready to withdraw the deposition and allow the witness to testify. Mr. Dryden, counsel for defendant, declined to make > any statement. The witness then was sworn and it was suggested by the plaintiff’s counsel that the defendant’s counsel cross-examine him. Defendant’s counsel declined to cross-examine him unless he was examined in chief. Thereupon the plaintiff’s counsel had him testify giving his name, and upon objection by defendant’s attorney examined him no further. Defendant’s counsel declined to cross-examine him.

From the fact that the deposition was competent when offered, the question arises as to whether it would be rendered incompetent by showing subsequently that the court was in error in the first place in ascertaining the facts as to its competency. It is unnecessary to decide that question, because the defendant could not possibly be harmed by the deposition; the witness himself was present and placed upon the stand for the purpose of allowing the defendant to cross-examine him. Defendant had every advantage in the situation as it stood. He could cross-examine the witness at length and with particularity as to everything he had said in his deposition, and if there were any misstatements in that deposition they could have been corrected. There was no reversible error in allowing the deposition to stand.

III. Error is assigned to the action of the trial court in permitting — over the objection of defendant’s counsel —plaintiff’s counsel in his argument to the jury, commen^ UP011 the inability of the plaintiff to bear children, and her mental suffering on account of such condition. The comment upon the fact was not improper since the evidence of that condition was properly admitted, as shown above. The objection to the argument was that it made reference to a matter, mental suffering, without the issues. Mental suffering as an incident to personal physical injury is always an element of damage to be considered by a jury, and it is unnecessary to make specific proof of mental suffering because it necessarily arises when the nature and extent of the physical injury is shown. [Brown v. Hannibal & St. Joe Ry. Co., 99 Mo. 310, l. c. 319; Wingate v. Bunton, 193 Mo. App. 470; Maguire v. St. Louis Transit Co., 103 Mo. App. 476.] The comment was entirely within the scope of the issues and the evidence.

LV. The appellant complains of error in the giving of instruction P-1, on behalf of the plaintiff. This was the principal instruction given for plaintiff, an(j required the jury to find: “That if the plaintiff, Emma E. Mayne, had gone to said place intending to board one of defendant’s street cars, and to become a passenger thereon, and if she was ready, able and willing and intended to pay her fare for passage, and if the place where she went to- hoard said car was near the regular stopping place for taking on such passengers and while she was in the exercise of ordinary care for her own safety,” etc., then follows the requirements to find the movement of the car as indicated by the evidence, and the instruction proceeds:

“Then you are instructed that such an occurence creates a presumption of negligence for which defendant is liable, and the burden is upon the defendant to disprove such presumption by a preponderance of the evidence.”

It is claimed by appellant that this is not a res ipsa loquitur case, and that the instruction is erroneous in declaring the plaintiff’s case is made out by showing the injury took place by the movement of the car, without showing specific negligence. It is further urged that the instruction is faulty, because it assumes that the plaintiff was a passenger.

As to the last objection, the instruction only requires the jury to find that plaintiff went to the usual place for receiving passengers intending to become a passenger. It neither assumes that fact nor requires it to be found; nor does it matter whether the plaintiff was a passenger or not in determining whether the doctrine of res ipso loquitur would apply.

Where the instrumentality which causes and injury is. within the control of and operated by a party, and moves or operates in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury to some person results, then the doctrine of res ipsa loqmtur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for the defendant to explain, if it can, the casualty, so as to exclude negligence on its part. [Ash v. Woodward Printing Co., 199 S. W. l. c. 997; Blanton v. Dold. 109 Mo. l. c. 75; Thompson v. Railroad, 243 Mo. 336, l. c. 354; Gibler v. Railroad, 148 Mo. App. 475, l. c. 484.]

In the Thompson Case, 243 Mo. l. c. 354, it is said: “This maxim (the act speaks for itself) is founded upon the feeling that every apparent wrong resulting in injury to another which may only be palliated or explained by facts within the peculiar knowledge of the perpetrator, carries with it the proof of its wrongful character and places upon him the burden of offering a just excuse.”

Here the street car took a most unexpected course, the back wheels going as they were intended to go and the front wheels veering off by reason of the split switch and causing an unusual and dangerous movement of the car. This was a movement that could not have happened except for some defect in the track or car, or some negligence in its management. The machinery and all appliances were peculiarly within the knowledge of the defendant and the defendant was charged with the burden of explaining. Defendant introduced several witnesses for the'purpose of showing that the track, the car, and the wheels were in good condition, but offered no evidence to show exactly what caused the split switch and the consequent erratic movement of the car. Therefore the instruction if technically incorrect was harmless.

V. Complaint is made that the verdict is excessive. The injuries were unusual in severity and painfulness, rendering the plaintiff a cripple and more or less incapable of normal activities and enjoyment for life. This court has in recent cases allowed verdicts for persons injured to stand for amounts larger than the amount recovered here where the injuries were no more aggravated than these. [Smith v. Kansas City So. Ry. Co., 279 Mo. 173.]

The judgment is affirmed.

Bailey and Mosley, (7(7., concur.

PER CURIAM:

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

All of the judges concur.


text:
    AURA L. MEREDITH et al., Appellants, v. MINNTE E. MEREDITH.
    Division Two,
    April 7, 1921.
    1. CONVEYANCE: Deposit of Deed With Bank: Agent or Trustee. The physical delivery of a deed to a bank, accompanied by written instructions that it was to be delivered to the grantee upon the grantor’s death, and the grantor’s contemporaneous and subsequent declarations to the effect that he had deeded everything he had to the grantee and wanted her to have it at his death, created no relation of agency between the bank and the grantor, but the deposit being unconditional the bank, in accepting it, became a trustee of an express trust and as such charged with the performance of the duties défined for the grantor and the grantee.
    2. -: -: Delivery. Upon Grantor’s Death. A delivery of a deed by the grantor to a third party to be held by him and delivered to the grantee upon the grantor’s death will operate as a valid delivery, where no reservation is made in the deed nor any right of control over the instrument is retained by the grantor.
    3. -: -: -: Retaining Possession of Land. A deed, unconditional in its terms and beyond the control of the grantor after its delivery to a depositary with specific directions to deliver it to the grantee upon his death, although not conferring an immediate right of present possession, constitutes such an investiture of title as to give the grantee a present fixed right of future enjoyment, although the use of the land is retained by the grantor during his life.
    4. -: -:--: Acceptance. Acceptance of ,a deed after the grantor’s death dates back to the time of its delivery to the depositary, and renders it a transfer of the title as of that daté.
    5. -: -: Evidence of Agency. The cashier having defined his relation to the grantor, showing that it was in no wise different from that sustained by him to other patrons of the bank, it was not error to exclude testimony tending to show that the cashier was the agent of the grantor throughout the transaction by which the grantor delivered to him a deed to b.e delivered to the grantee upon the grantor’s death
    6. INSTRUCTIONS. Declarations of law based upon false assumptions of fact do not correctly dleclare the law, and should be refused.

      Appeal from Knox Circuit Court. — Hon. James A. Oooley, Judge.
    Affirmed.

      J. G. Dorian and Higbee'& Mills for appellants.
    (1) The court erred in refusing the offer to prove by Anderson that he held the deed and notes as agent for the grantor. (2) The court erred in refusing plaintiff’s declaration of law. The deed was incorporated in the memorandum, and was testamentary. Shulsky v. Shulsky, 98 Kan. 69; Goodale v. Evans, 263 Mo. 219; Bryan’s Appeal, 68 L. R. A. 354, note. (3) The court erred in refusing plaintiff’s declaration of law No. 2. This is an action at hnv. Hayes v. McLaughlin, 217 S. W. 262; Van Valkenburg v. AÍlen, 126 N. W. 1092; Williams v. Latham, 113 Mo. 165; Gomel v. McDaniels, 269 111. 362; Linn v. Linn, 261 111. 606; Hayden v. Collins, 81 Pac. (Cal.) 1120; Anderson v. Messenger, 158 Fed. 250, 85 C. C. A. 468. (4) The burden was on defendant to prove that the grantor delivered the deed irrevocably and beyond his control. This she did not do. The circumstance in evidence show that Meredith retained control of the deed. The court erred in not rendering judgment for the appellants. See cases cited under Point 3. (5) The deed was delivered by the grantor to Anderson, his agent, in trust and for safe keeping for him, and not to a third party. It was under his control, and not in escrow for the respondent. The court erred in not finding for the appellants. Zimmerman v. Zimmerman, 161 N. W. (Wis.) 369; Schooler v. Schooler, 258 Mo. 83; Sneathen v. Sneathen, 1.04 Mo. 201; Whitely v. Babcock, 202 S. W. 1091; Cole v. Cole, 108 N. W.'(Mich.) 101; Grilley v. Grilley, 18 Conn. 380, 4 L. R. A. (N. S.) 816; Terry v. Glover, 235 Mo. 544.

      Arthur V. Lashly and Stewart & Stewart for respondent.
    (1) The delivery of the deed to Anderson, cashier of the Home Bank, by Meredith was a valid delivery for the benefit of the wife, and the delivery by it to her and her acceptance thereof, after the death of the grantor, relates back to the time when the deed Avas first delivered to the bank- and makes it a transfer as of that date. Sneathen v. Sneathen, 104 Mo. 209; Williams v. Latham, 113 Mo. 165; Burkey v. Burkey, 175-S. W. 624. (2) The grantor made no reservation of control over the deed when he delivered it to the bank for Minnie E. Meredith and therefore the delivery was absolute and could not be recalled. Williams v. Latham, 113 Mo. 174; Sneathen v. Sneathen, 104 Mo. 209; 18 C. J. par. 113, p. 208; Seibel v. IUgham, 216 Mo. 132; 2 Jones on Real Property (1896 Ed.), p. 220, par. 1309. (3) Much more is presumed in favor of the delivery of the deed in cases of voluntary settlement upon members of the grantor’s family, than is presumed bc-tiveeu strangers. Crowder v. Searcy, 103 Mo. 118; Rumsey v. Otis, 133 Mo. 95; Schooler v. Schooler, 258 Mo. 92. (4) In an action at law, if there Avere any legal grounds supported by substantial evidence, which justifies the court’s findings, the judgment must be affirmed. Thompson v. Stillwell, 253 Mo. 94. (5) The court Avas not in error in refusing to pennit the witness Anderson to testify that he held the deed as agent for the grantor..
   WALKER, J.

This is a suit brought under Section 2535, Revised Statutes, 1909 (now Sec. 1970, R. S. 1919), to try and determine the title to certain land in Knox County. On a trial to the court there was a judgment for the defendant, from which plaintiffs have appealed.

William T. Meredith, the common source of title, died intestate, without issue, May 29, 1917. The plaintiffs are his only heirs, and the defendant is his widow. On March 15, 1916, he executed and delivered to the cashier of a bank at Knox City a warrant deed conveying to his wife, the defendant, for a valuable consideration, the land in controversy. At the time of the execution of this deed the grantor gave certain instructions to the cashier as to its disposition. These instructions were at the time reduced to writing by the cashier, and upon being approved and signed by the grantor were enclosed in a sealed envelope with the deed and, as directed, deposited in the vault of the bank. These instructions are as follows:

“Knox City, Mo., March 15, 1916. “To Home Bank, Knox City, Mo.
“You are hereby handed a warranty deed to the north one-half of the northwest quarter and the northwest fourth of the northeast quarter of Section 32, Township 62, Range 10, west, made to my wife, Minnie E. Meredith, to be held in trust and for safe keeping, until my death, then said bank is to deliver said deed with all other personal property belonging to her (Minnie E. Meredith) that is in said bank at my death.
“¥m. T. Meredith.”

The grantor never had the deed in his possession or attempted to secure possession of it or made any inquiries concerning it after he delivered it to the cashier. On the day succeeding the grantor’s death, the cashier delivered the deed to the defendant, pursuant to the instructions of the grantor. Subsequent declarations by the grantor to others several months after the execution and deposit of the deed were to the effect that he had deeded everything he had to his wife and at his death he wanted her to have it.

Testimony on the part of plaintiffs was to the effect that after the making of the deed the grantor continued until the time of his death to lease, cultivate and otherwise control the land conveyed. The relation sustained to the grantor by the cashier before, at the time of and subsequent to the execution of the deed is thus described by the latter: “He was a customer at the Home Bank and I carried out requests he made from time to time. Whatever he wanted me to do I would do like I did for any other customer.” It was attempted to be proved on a cross-examination of the cashier by plaintiff’s counsel, but excluded, that the cashier was the agent of the grantor in all of the business transacted for the grantor by Mm. In addition, the cashier testified that if the grantor had, subsequent to the execution of the deed, asked to withdraw it, he thought he would have permitted him to do so. Testimony was also offered, but excluded, to show by the cashier that in all these transactions he was acting as the adviser and business friend of the grantor, and that he knew nothing of and had no business relations with the grantee and that in the matter of the deed he was acting as agent and solely for the grantor.

I. The intention of the grantor in executing the deed to his wife and depositing the same in the bank for delivery to her upon his death is to be determined from not only his acts and declarations but as in any other case i-n which it is sought to define a purpose from all of the other relevant facts and circumstances. The physical delivery of the deed to the bank and the.grantor’s contemporaneous and subsequent declarations in regard thereto, as well as his express written, directions prepared at his instance and deposited with the deed, offer cogent evidence of such a delivery as the law contemplates in effecting a conveyance of real estate. It .is true the cashier occupied a relation to the grantor somewhat in the nature of an intermediary, but in the light of Ms testimony and other pertinent facts, it does not appear that he was other than an instrumentality acting for the grantor to effect the transfer and to authorize the bank to accept and hold the deed until the grantor’s death, whereupon the legal delivery of the deed, if then consummated, would become actual by its physical transfer to the grantee. While the oral declarations and physical acts of the grantor are, in our opinion, ample to prove the grantor’s intention to deliver the deed, his written declarations add to their probative force, and at the same'time, by the very terms of the directions, define the relation of the bank to the relator and dissipate the assumption sought to be established as a fact that it was the grantor’s purpose in the making and depositing of the deed to create a trust in Ms own property for -Ms own benefit. Tbe directions declare that the deed is to he held in trust by the bank for safe keeping until his death. If the directions ended here they would disclose no well-defined purpose on the part of the grantor, but they do not end here. Explicitly definitive of the grantor’s purpose immediately succeeding the direction as to the deposit, is the following: “Then the bank is to deliver said deed with all other personal property belonging to her (Minnie E. Meredith) that is in said bank at my death.” The grantor owned the fee in the land. It was shadowed by no lien and burdened by no incumbrance. This condition of the title discloses no reason in harmony with human experience for the creation of a relation of agency between the bank and the grantor or, incidentally, between him and the cashier for other than the purpose declared in the written directions. The deposit of the deed having been made unconditionally; the bank in accepting the same became not an agent but a trustee of an express trust and as such charged with the performance of the duties defined for the grantor as well as the grantee. [Seibel v. Higham, 216 Mo. 121.]

II. The relations of the parties and the intention of the grantor to deliver the deed having been defined, it remains to be determined whether his acts constitute a delivery. While it is necessary to the conveyance of lanc^ by deed that the grantor delivered the same to the grantee with the intent to pass the title, it is not necessary that the actual transfer of the instrument be made by one of these parties to the other. A delivery to a third party to be held by him and delivered to the grantee upon the grantor’s death will operate as a valid delivery when there is no reservation in the deed nor any right of control over the instrument retained by the grantor. The deed, by his own act, having passed beyond his control, accompanied by the declaration that it was delivered for the use and benefit of the grantee, has the same effect in the hands of the custodian as if it had been manually delivered by the grantor to the grantee. [Schooler v. Schooler, 258 Mo. 83; Terry v. Glover, 235 Mo. 544; Seibel v. Higham, supra; White v. Pollock, 117 Mo. 467; 18 C. J. p. 208, sec. 114; 2 Jones, Real Prop. (1896) p. 220; Cannon v. Cannon, 26 N. J. Eq. 316.]

The deed at bar, unconditional in its terms and beyond the control of the grantor upon its delivery to the bank, although not conferring an immediate right of present possession, constituted such an investiture of title as to give the grantee a present fixed right of future enjoyment although the use of the premises was retained by the grant- or during his life. [O’Day v. Meadows, 194 Mo. 588; Headington v. Woodward, 214 S. W. 963.]

The manual delivery of the deed to the grantee by the depositary upon the death of the grantor and its acceptance by the grantee, leaves no room for controversy concerning this fact. The time of the acceptance

will not affect the validity of the transfer. Burkey v. Burkey, 175 S. W. l. c. 624.] Acceptance after the death of the grantor dates back to the time, of the delivery of the deed to the bank and renders it a transfer as of that date. [Williams v. Latham, 113 Mo. 165; Sneathen v. Sneathen, 104 Mo. l. c. 209.]

III. There was no error in the exclusion of the testimony sought to be introduced by plaintiffs as tending to show that the cashier was the agent throughout this transaction of the grantor. The witness had defined, both on direct and cross-examination, his relation to the grantor, which showed that it was in no wise different from that sustained by him to other patrons of the bank. The court properly held that the conduct of the parties was sufficient from which to determine their relations towards each other without, the witness being required by name to designate the same, which would have constituted but a conclusion and not the statement of a fact.

IV. The refusal of certain declarations of law asked by plaintiffs did not constitute error. They were based upon false assumptions of fact and did not, therefore, correctly declare the law.

There was no prejudicial error committed in the trial of this ease. The judgment was for the right party and it is affirmed.

All concur, except Higbee, P. J., not sitting.