author: VALLIANT, P. J.

text:
    ALDRIDGE et al., Appellants, v. ALDRIDGE et al.
    Division One,
    March 28, 1907.
    1. CONVEYANCE: Future Estate: Essential Element: Statute. It is essential to the validity of a deed conveying “an estate of freehold or inheritance to commence in the future” that the right) to the future estate conveyed vest in the grantee immediately, though possession he deferred. The estate is conveyed in praesenU, although its enjoyment is to come in the future. That is the meaning of the statute (sec. 4596, R. S. 1899) whose last clause reads: “And hereafter an estate of freehold or of inheritance may be made to commence in the future by deed, in like manner as by will.”
    2. -: -: -: Deed or Will? Invalidity. If the inr strument, at the instant of its delivery, did not carry to the grantee the estate described, subject (in this case) to be defeated by a reversion on the happening of a contingency named, it was not a deed. If it was a mere gift to take effect only on the death of the maker, then it was ineffectual for that purpose if not executed in the manner prescribed by law for the execution of a will.
    3. -: -: Deed, Provided: Intention. Charles, an old man with a large family of children, all of whom except the youngest had left him, “in consideration of the sum of love and affection and ten dollars does by these presents grant, bargain and sell, convey and confirm” unto Amelia, his wife, “life tenant,” and a son, “remainderman, their heirs and assigns,” certain lands, “on this condition, however, that if I outlive the said Amelia the land reverts back to me in fee. That if I should die first then the said Amelia shall have this land for her lifetime for her use and support and at her death said land to go in fee to my son. In connection with this I give to my wife all my live stock to' go to' her at my death. To have and to hold the premises aforesaid......unto the said” wife and son, “and unto their heirs and assigns, forever...... subject to the condition above mentioned and my debts.” Held, that the maker of this instrument did not intend to convey and did not convey a present gift, subject to be defeated on the happening of the condition named, and hence the instrument is not a deed, but an attempt to make a testamentary disposi- ' tion of the property, and not being executed in the manner prescribed by law for the execution of wills, it is not a valid will, and hence being neither a deed nor a will the maker died intestate.

      4. -: Construction: Intention. In construing an instrument purporting to convey land resort must he made to the instrument itself, to find what was the true intent and meaning of the maker, and the instrument must he taken all together and consideration given to every part of it, viewed in the light of the circumstances surrounding the maker at the time of its execution.
    Appeal from Schuyler Circuit Court. — Ho». Nat. ill. Shelton, Judge.
    Reversed and remanded.

      Higbee <& Mills for appellants.
    (1) The instrument executed by Charles Aldridge is plainly testamentary in its provisions and passed no present interest. It was expressly made subject to the payment of his debts, plainly meaning his debts at his death. Murphy v. Gabbert, 166 Mo. 596; Dozier v. Toalson, 180 Mo. 546; Griffin v. McIntosh, 176 Mo. 392; Crocker v. Smith, 94 Ala. 295; 16 L. R. A. 576; Bigley v. Souvey, 45 Mich. 370, 8 N. W. 98; Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411; Carleton v. Cameron, 54 Tex. 77; 1 Dev. Deeds (2 Ed.), sec. 309; vol. 2, sees. 854, 855; Babb v. Harrison, 9 Rich. Eq. Ill, 70 Am. Dec. 203; Sartor v. Sartor, 39 Miss. 760; Reed v. Hazelton, 37 Kan. 321. (2) “The true meaning of the maker, whether to part with the title at once or on hi's death, must be gathered from the entire paper.” It gives to his wife all the live stock that he may own at his death. This includes all that he then owned or might thereafter own. It implies a power of disposition. All the property is reserved for the payment of debts owing at his death, and only so much of the estate as remains after the payment of debts can pass by the terms of the instrument. The provisions, taken all together, clearly characterize the instrument as a will. Crocker v. Smith, 94 Ala. 295, 16 L. R. A. 576; Leaver v. Gauss, 62 Iowa 314; Tuttle v. Raish, 116 Iowa 331; In re Lautenschlager’s Estate, 80 Mich. 285; Sperber v. Balster, 66 Ga. 317; Barnes v. Stephens, 107 Ga. 436 ; Cunningham v. Davis, 62 Miss. 366, 29 Am. and Eng. Ency. Law (1 Ed.), 148; Watkins v. Dean, 18 Tenn. 321; 2 Devlin Deeds (2 Ed.), sec. 855.

      C. C. Fogle & Sons, C. M. York and Bolston & Frank for respondents.
    (1) As to the construction of a deed, the intention of the grantor, when ascertained, must control unless it violates some known principle of law. Hunter v. Patterson, 142 Mo. 310; Walton v. Drumtra, 152 Mo. 489; Railroad v. Frowein, 163- Mo. 1; Speed v. Railroad, 163 Mo. Ill; Linville v. Greer, 165 Mo. 380. (2) The intention of the grantor is to be gathered from the whole of the instrument and circumstances surrounding it. Dobbins v. Edmonds, 18 Mo. App. 315; Long v. Timms, 107 Mo. 512; Dunaway v. Day, 163 Mo. 415; Utter v. Sidman, 170 Mo. 294; Lakeman, Ex’r, v. Railroad, 36 Mo. App. 371. (3) All parts of an instrument should be considered in gathering its meaning and its full intent effectuated. McOullock v. Holmes, 111 Mo. 445; St. Louis v. Wiggins Ferry Co., 88 Mo. 615; Devlin on Deeds, secs. 836, 850; 13 Oyc. 605. (4) A deed with conditions subsequent conveys a title which becomes absolute upon the happening of said conditions, although the title was to revert upon the failure of said conditions. Mead v. Ballard, 7 Wall. 290; Withers v. Jenkins, 14 S. C. 597. (5) The law favors vested estates and if there is a doubt as to whether the estate is vested or contingent the law will declare it vested. Tiedeman on Real Property, sec. 401; Collier’s Will, 40 Mo. 287; Chew v. Keller, 100 Mo. 368. (6) Courts are not at liberty to disregard the construction put upon an instrument by the acts of the parties. Hunter v. Patterson, 142 Mo. 310; Jones v. DeLassus, 84 Mo. 545; Belch v. Miller, 32 Mo. App. 387; Patterson v. Camden, 25 Mo. 13; Moser v. Lower, 48 Mo. App. 85; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121. (7) The granting clause in a deed unlimited passes the fee. Walton v. Drumtra, 152 Mo. 501. (8) In this case the title is to revert to the grantor, if the wife dies first. If a husband makes a deed to his wife and her heirs, with certain conditions in the deed, one of which was that if the husband survives the wife the land should revert to- him in fee simple, it was held a good deed and the condition a subsequent one and valid. F. U. S. of N. A. v. Boland, 29 N. E. 524; Long v. Timms, 107 Mo. 512; Pollard v. Bank, 4 Mo. App. 408 ; 6 Cyc. 645; Jones, Law of Beal Property in Conveyances, secs. 630, 631; Smith v. Harrington, 4 Allen 566; Church v. Grant, 3 Gray 142; Owen v. Field, 12 Mass. 90-. (9) An instrument executed conformably to- the statute, which is to operate and which does operate to pass any estate during the lifetime of the grantor, even though the absolute enjoyment thereof is postponed until after the grantor’s death, is a deed and not a will. Devlin on Deeds, sec. 853; Wall v. Wall, 64 Am. Dec. 147; Spencer v. Bobbins, 5 N. E. 726, 106 Ind. 580; Dozier v. Toalson, 79 S. W. 420; Wilson v. Carrico, 40 N. E. 50; Willis v. Willis, 4 Mass. 135; Cates v. Cates, 135 Ind. 292; Seal v. Pierce, 83 Ga. 787; White v. Hopkins, 80 Ga. 154; Bunch v. Nick, 50 Ark. 367; Shackleton v. Sebre, 86 111. 616; Wall v. Wall, 30 Miss. 91; Wyman v. Brown, 50 Me. 139; Abney v. Moore-, 106 Ala. 131; Lattamer v. Lattamer, 174 111. 418; Wyn v. Wyn, 112 Ga. 214; Ward v. Ward, 104 Ky. 857; Knowlson v. Fleming, 165 Pa. St. 10'; Deifendorf v. Deifendorf, 132 N. T. 100; Nicholas v. Emery, 109 Cal. 322. (10-) Whenever a deed conveys a present interest it is irrevocable and operates as a conveyance, although the grantor retains a lifetime interest and the possession of the land. 1 Jones on B. P. in Conveyances, secs. 526--527; vol. 2, sec. 1232; 27 S. "W. 23; Spencer v. Robbins, 5 N. E. 726; Matter of Probate of Will of Frederick Diez, 50 N. Y. 88; Allen v. Babbert, 166 Mo. 596; Kelley v. Shimer, 53 N. E. 233; secs. 900, 906, R. S. 1899; Devlin on Deeds, sec. 309 A. (11) The $10 mentioned in the consideration clause is put there to give validity to the instrument as a deed. Wall v. Wall, 64 Am. Dec. 150; 27 S. W. 23. (12) The gift of the personal property mentioned in the deed has no effect on it as a deed. Christman v. Wyatt, 26 S. E. 601; Wall v. Wall, 64 Am. Dee. 153. (13) But if the reverting clause is void on account of being repugnant to the granting clause, then the deed conveyed the fee, subject to the life estate' of the widow. Cornwall v. Wulff, 148 Mo. 542; Ward v. Ward, 1 Martin (N. C.) 28; In re Young, 11 R. I. 636 ; Breen v. Sutton, 501 Mo. 192. (14) Under our Statute of Uses, section 4596, Revised Statutes 1899, an estate of freehold or inheritance may be made to commence in the future by deed in like manner as by will. Wilson v. Carrico, 40 N. E. 50; Sablesdowsky v. Arbuckle, 50 Minn. 475, 140 Ind. 533; Smith v. Brisson, 90 N. C. 284; Christman v. Wyatt, 26 S. W. 759; Spencer v. Bobbins, 5 N. E. 728.
   VALLIANT, P. J.

Suit under section 650, Revised Statutes 1899, to quiet title to one hundred and twenty acres of land in Schuyler county. Charles Aldridge, the common source, died intestate February 39, 1903, leaving a widow, ten children and two grandchildren who (except the widow and one son, Charles L.) are parties to this suit.

A short while before his death Charles Aldridge executed a document purporting to convey the land in question to his wife for life, remainder to his son Charles L.; after his death those two conveyed their title, whatsoever it was, to Lewis M. Starbuck, who is a defendant in this suit and he now claims the land through those deeds.

The point on which the case turns is the interpretation to be placed on the document above mentioned executed by Charles Aldridge in his lifetime; if that document is construed to be a deed of-conveyance the defendant Star buck’s title is valid; if, however, it is construed to be only an ineffectual effort at' making a testamentary disposal of the land then Star-buck’s claim is invalid, except as to the shares of the widow and one of the heirs, and therefore the plaintiffs are entitled to their respective shares as heirs at law of their father and grandfather.

The document to be construed is as follows:

“This indenture, made on the 10th day of January, A. D. one thousand nine hundred and three by and between Charles Aldridge of Schuyler county, Missouri, party of the first part, and Amelia J. Aldridge, life tenant, and Charles L. Aldridge, remainderman of the county of Schuyler, in the State of Missouri', party of the second part.

“Witnesseth, that the said party of the first part-, in consideration of the sum of love and affection, and ten dollars, to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described lots, .tracts or parcels of land, lying, being and situate in the county of Schuyler and State of Missouri, to-wit:

“The northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section three, and the northeast quarter of the southwest quarter of section ten, all in township sixty-four, range fourteen, on this condition however, that if I, the said Charles Aldridge outlive the said Amelia J. Aldridge the land reverts back to me in fee. That if I should die first.then the said Amelia J. Aldridge shall have this land for her lifetime for her use and support and at her death said land to go in fee to Charles L. Aldridge my son. In connection with this I give to my wife the said Amelia J. Aldridge, all my live stock to go to her at my death.

“To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the said parties of the second part, and unto their heirs and assigns, forever; the said Charles Aldridge hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to- convey the same; that the said premises are free and clear of any incumbrances done or suffered by .him or those under whom he claims, and that he will Warrant and Defend the title to the said premises unto the said parties of the second part, and unto their heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever, subject to the conditions above mentioned and' my debts.

“In witness whereof, the said party of the first part has hereunto' set his hand and seal, the day and year first above written.”

This instrument was acknowledged in due form as on the day of its date, and there was evidence tending to show that it was delivered to the grantees on that day but it was not filed for record until February 23, 1903, four days after the death of the grantor. It was in evidence that a part of the land in question was the homestead of Charles Aldridge.

The plaintiffs asked an instruction to the effect that the instrument in question was in the nature of a devise and did not pass a present interest in the land to the nominal grantees and did not debar plaintiffs of their interests as heirs of Charles Aldridge, deceased. The court refused the instruction and rendered judgment for the defendants, from which the plaintiffs appeal.

In section 459.6, Revised Statutes 1899', is this concluding clause: “And hereafter an estate of freehold or of inheritance may he made to- commence in the future by deed, in like manner as by will.”

. By force of that statute it is argued on the part of defendants that a grantor may convey an estate of freehold or of inheritance by deed to' take effect at his death, and cases are cited to sustain that argument. But if that be conceded it would not be decisive of this case, because that proposition is based on the theory that the estate is conveyed in praesenti although its enjoyment is to come in the future. It is essential to the validity of a deed purporting to convey such an estate that the right to the future estate conveyed vest in the grantee immediately though possession be deferred'.

The test question in this case is, did the instrument in question, at the instant of its delivery, carry to the wife of the grantor an estate for life and to the son named the remainder in fee subject only to be defeated by a reversion on the happening of the contingency named? If yea, it was a deed, and the plaintiffs cannot recover. If on the other hand it was a mere gift to t.ake effect only on the death of the testator then it was ineffectual for that purpose, because not executed in the manner prescribed by law for the execution of a will. [Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 392; Dozier v. Toalson, 180 Mo. 546.]

To answer the test question before us we must go to the instrument itself and find what was the true intent and meaning of the maker. The cardinal rule of interpretation of a deed is, in one respect at least, the same as that of the interpretation of a will, that is, the true intent and purpose of the maker as that intent may be discerned from the instrument itself taking it all together, considering every part of it and viewing it in light of the circumstances surrounding the maker at the time of its execution. [Long v. Timms, 107 Mo. 512; Speed v. Railroad, 163 Mo. 111.]

In the briefs of counsel on both sides are cited many cases illustrating their respective views of this subject, but the principles above stated are recognized in all of those cases and what differences of opinions there maybe are traceable to the differences in the facts of the several cases. After we have gleaned from those cases the general principles of law, we gain little aid from the discussions of the facts, because each case must stand on its own facts. What are the facts of this case?

Charles Aldridge, as in the brief for defendants is said, was an old man, the father of several children all of whom had married and left him except the youngest, Max Aldridge. The instrument in question was executed only a little more, than one month before his death. It purported to dispose of all his estate, real and personal, subject to the payment of his debts, a life estate in the land to his wife, remainder in fee to his son Charles. The consideration expressed is “love and affection and ten dollars.” Under the circumstances the money consideration named must be considered as nominal only, the real consideration was love and affection, the transaction was a gift, the element of an ordinary purchase for a valuable consideration is absent. In the granting clause there are the words “grant, bargain, sell, convey and confirm unto the said parties of the second part” (the land described), “on this condition however, that if I, the said Charles Aldridge outlive the said Amelia J. Aldridge the land reverts back to me in fee. ’ ’ Thus far the language employed sustains the contention of the defendants that it was a present gift subject to be defeated on the happening of the contingency named, for of course the title could not revert to the grantor if it had not first passed from him.

If we are to take those words, assuming that the grantor used them, to have their full technical force and effect, then we must say that his intention was to give away his homestead and his means of independent support and render himself for the rest of his life a dependent on Ms wife, and indeed if the instrument ended-with the words above quoted there would be no escape from that conclusion, and we would be compelled to so construe it. But that was not the end of the instrument or even the end of the granting clause; the grantor, as if apprehending that he had not by those words made his purpose clear enough, adds the following immediately after the words above quoted: ‘ ‘ That if I should die first then the said Amelia J. Aldridge shall have this land- for her lifetime for her use and support and at her death said land to go in fee to Charles L. Aldridge, my son.” What do those words mean? If the defendants are correct in their interpretation of the words previously quoted then the words last quoted mean nothing. If there was a present conveyance of a life estate to the wife and remainder in fee to the son, subject only to he defeated by the happening of the contingency mentioned, what was the purpose of saying that if the contingency did not happen the estate was not to be defeated. If the defendants ’ contention is correct the words- last quoted neither add to nor take from the effect of the other words contained in the granting clause. If the words last quoted were identical in their meaning with the words preceding them we might with propriety disregard them as useless repetition or surplusage. - But they are not identical in meaning if the former words mean what the defendants ’ learned counsel think they mean, that is, if they mean to convey presently an estate, because these latter word's point to a future contingency and say that if that should occur then the said Amelia J. Aldridge “shall have this land,” etc., “and at her death it shall go in fee to- Charles L. Aldridge, my son.” Both estates depend on the happening of that contingency.

Reading the whole document it looks very much as if it was constructed by filling in a printed blank; the verbiage in the main is of the set form, while the words designed to qualify the words of conveyance have the tone of originality. In reading the whole document, as soon as we have passed the common phrases which we usually find in a printed form we come to the somewhat homely hut not less positive language injected into the vitals of the granting clause qualifying and limiting the grant, which qualification is expressed first in one form, and second in another, first if the grantor survives his wife the estate is to revert to him, second if she survives him it is to go to her and with it is to go also all the live stock of which he should die possessed, the whole to he subject to the payment of his debts. The remainder to the son Charles is subject to the same conditions.

Immediately following the formal words of conveyance and description of the land is: “On this condition, however, that if I the said Charles Aldridge outlive the said Amelia J. Aldridge the land reverts back to me in fee. That if I should die first then the said Amelia J. Aldridge shall have this land,” etc. The word “that” at the beginning of the last sentence is used as a conjunction, with the same meaning the same word has in the preceding sentence, and it connects this back with that sentence to follow the words “on this condition, however, ’ ’ so that it would read ‘ ‘ on this condition, however, that if I should die first then the said Amelia J. Aldridge shall have this land, ’ ’ etc., in other words the conveyance is on condition that the grantor die first, or, in still other words, the gift is to go into effect on the grantor’s death and with it is to go all the live stock of which he might die possessed, the whole subject to the payment of his debts. In our opinion the dominant purpose was to make a testamentary disposition of the property and since it was not executed according to the law governing the execution of wills the instrument is invalid.

The judgment is reversed and the cause remanded for re-trial.

All concur, except Woodson, J., net sitting.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ROSCOE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    March 28, 1907.
    1. NEGLIGENCE: Carrier and Passenger: Pleading and Proof. A general allegation of negligence is all that is required in case of accident and injury to the passenger, where the relation of carrier and passenger exists. And in making the proof, it is sufficient to show an accident and a resultant injury to the passenger, whereupon there is a presumption of negligence, and a prima-facie case for plaintiff is made.
    2. -: -: Specific Allegations and Proof. But the rule is different where the passenger makes specific charges of negligence. Then he must prove the specific acts of negligence charged.
    3. NEGLIGENCE: Specific Allegations and Proof: Instruction: No Evidence. Where plaintiff’s instruction, intended to cover the entire case, does not submit to the jury one of the assignments of negligence, namely, in not stopping the cable train when it reached a level street from which began a rapid incline, it is not error to refuse to give an instruction for defendant which took that entire issue from the jury, simply because there is no ordinance or printed rule of the company requiring cars to he stopped at that street, if there is evidence that there were oral instructions to motormen to stop trains there, and the circumstances indicate that it was the part of prudence to so stop them.
    4'. -: -: -: Two Issues: No Evidence as to One., One charge of negligence was that defendant did not provide proper, sufficient and safe means to hold firmly attached to the cable wire the grip of the train that ran into the one on which plaintiff was a passenger, and the other was that defendant did not provide means to stop said train when the grip was not so attached, and defendant by one instruction asked the trial court to withdraw both issues from the jury. Held, that, there being no evidence toi support the last charge, but slight evidence to support the first, the court did not commit reversible error in refusing the instruction, it being the especial province of the trial court to grant a new trial when the g£eat weight of the testimony is in favor of the losing party.

      5. -: -: Grip Leaving Cable: Instruction: No Evidence. Where the evidence shows that at the brow of the hill there was great’ danger of the cable leaving the grip; that it might leave the grip by the motorman opening the grip too wide, when he opened it to make a stop at the street just beyond the brow of the hill; that it might leave the grip on account of a splice in the cable, or on account of a loose strand on the cable; and that the cable was not in the grip when the car was examined immediately after the accident, it is not error to refuse an instruction which withdraws from the jury the charge that defendant was negligent in not using the devices and appliances furnished for stopping the car.
    6. -: -: Post of Duty. It is as much the duty of the conductor to get off of the car and go to a signal box for signals as to the movement of other trains, as it is to be on the car, and where there is no other evidence that either the motorman or conductor was not at his post of duty except a showing that the conductor had gone to- the signal box for signals, defendant’s instruction eliminating from the case plaintiff’s charge that they were not at their post o£ duty should be - given.
    7. -: -: Demurrer to Evidence. Where there was. no evidence to sustain any of the six assignments of negligence charged in the petition, except one, namely, that the appliances to stop the cable car descending an incline were not, when the cable was out of the grip, sufficient for that purpose, and there is sufficient evidence to sustain that, and that defendant had such appliances and knew they were required at the place, no demurrer to the evidence should be sustained.
    8. HYPOTHETICAL QUESTIONS: Conclusions of Witness: Specific Objection. Hypothetical questions should not be so» framed as to call for conclusions of the witness. And if they are so framed, and the opposite party specifically objects that the question requires the witness to invade the province of the jury and to find the ultimate fact to be found by the jury, it is reversible error to overrule the objection.
    Appeal from Jackson Cirenit Court. — Hon. J. H. Slover, Judge.
    Reversed and remanded.

      Frank G. Johnson, Willard P. Hall and Jo'hn H. Lucas for appellant.
    (1) The trial court erred in giving instructions requested by the plaintiff, (a) Instruction 1 both enlarges and restricts the issues tendered by the pleadings, is unsupported by evidence, and contradictory of other instructions given in the case. Purcell v. Tennant Shoe Go., 187 Mo. 287; Trigg v. Lumber C'o., 187 Mo. 234; Story v. Story, 188 Mo. 127; Crane v. Railroad, 87 Mo. 595; Wojtylak v. Coal Co., 188 Mo. 283; Evans v. Railroad, 106 Mo. 601; Heinzle v. Railroad, 182 Mo. 550'; Livingston v. Railroad, 170' Mo. 472; Yall v. Grillham, 187 Mo. 408; Chitty v. Railroad, 148 Mo. 64. (2) Manifest error was committed by the court in refusing to give instructions .requested by defendant. Number 11: This was an issue submitted by the petition, but abandoned by plaintiff, and defendant had the right to have the same withdrawn from the consideration of the jury. Number 12: There was no evidence that the employees did not properly handle the devices and appliances, and defendant was entitled to have that withdrawn from the jury. Number 13: No evidence that the employees caused one train to follow another, and defendant was entitled to have that issue withdrawn. Number 14: No evidence that failure of employees to be at proper posts of duty was the proximate cause, and defendant was entitled to have that issue withdrawn. Number 15: Failure to stop on east side of Penn street should have been withdrawn. Number 16: Defendant was entitled to a peremptory charge. The evidence failed to show that defendant was negligent as charged in the petition. Russell v. Barcroft, 1 Mo. 663; Hogan v. Railroad, 150 Mo. 36; Heinzle v. Railroad, 182 Mo. 559’; Sawyer v. Railroad, 37 Mo. 259; Price v. Railroad, 72 Mo. 414; Bartlett v. Railroad, 148 Mo. 124; Chitty v. Railroad, 148 Mo. 64; Feary v. Railroad, 162 Mo. 96; Hite v. Railroad, 130 Mo. 332. (3) The trial court admitted! incompetent evidence over the objections of defendant. Oraney v. Railroad, 157 Mo. 680; Koenig v. Railroad, 173 Mo. 720; Hurt v. Railroad, 94 Mo. 260; Eubank v. Edina, 88 Mo. 655; Dammann v. St. Louis, 152 Mo:. 200; Koombs v. Railroad, 65 Mo. 597; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465 ; Lee v. Kajye & Go., 155 Mo. 641; Ferguson v. Thacher, 79' Mo. 513; Taylor v. Railroad, 185 Mo. 255.

      Boyle, Guthrie é Smith for respondent.
    (1) The trial court did not err in refusing to give instructions numbered 15 and 11 asked by defendant, upon the theory that there was no evidence tending to show that the gripman in charge of car 129' was guilty of negligence in failing to stop said car east of the center of Penn street. It is claimed by defendant that by the failure of plaintiff to ask for an instrue- • tion as to negligence in not stopping east of the center of Penn street, plaintiff thereby abandoned that charge of his petition, and the evidence offered in support thereof. This is a misconception of the law. Plaintiff was not bound to ask any instructions whatever. He could ask for as many or as few as he saw fit. If defendant desired to have the jury advised as to how they should consider the evidence offered in support of any particular claim or claims of plaintiff, defendant had the privilege of asking such instruction. In the absence of instructions asked either by plaintiff or defendant, the jury were entitled to consider the facts according to their own judgment as to the respective obligations of the parties in the premises. Nolan v. Johns, 126 Mo. 166; Minter v. Bradstreet Co., 174 Mo. 491; Browning v. Railroad, 124 Mo. 72; Railroad v. Randolph, etc., Co., 103 Mo. 468; Drury v. White, 10 Mo. 354; Clark v. Hammerle, 27 Mo. 70; Fearey v. 0’’Neill, 149 Mo. 477; State to use v. Excelsior Distilling Co., 20 Mo. App. 29; Jones v. St. Louis, etc., Co., 43 Mo. App. 407; Taylor v. Springfield, 61 Mo. App. 269'; Hurst v. Scammon, 63 Mo. App. 636 ; Hall v. Jennings, 87 Mo. App. 635. (2) The court properly refused defendant’s requests, numbered 11 and 15, seeking to absolutely withdraw from the jury any consideration by them of the duties of defendant’s employees in reference to stopping east of the center of Penn street. In the first place, even if plaintiff had failed to establish either an ordinance of the city or a rule of the company requiring cars to be stopped east of the center of Penn street, nevertheless, the jury had a right to take the facts in that respect into consideration in connection with the other evidence as to whether the grip-man was properly using his grip or brakes — as charged in the petition, “in not properly handling and using such devices and appliances as were furnished for such purpose;” the purpose being “to hold said other cable trains firmly attached to said wire cable and to stop the same when not attached thereto;” as well as negligence “in causing one cable train to follow another down said incline before the train farthest down said incline had gotten to a place of safety.” In the second place, there was positive and direct testimony that the rules of the company did require cable trains to stop east of the center of Penn street. The charge of the petition was that it was defendant’s duty, and it was required by the ordinances of the city and by the rules of the company, to stop east of the center .of Penn street. The failure of plaintiff to prove any ordinance requiring them to so stop, did not affect this duty or the proof that the rules of the company did so require them. (3) Plaintiff’s petition amounted to a general charge of negligence. While certain items were alleged, they amounted in the aggregate to a general charge. They charge, one after the other, every reasonable and conceivable kind of negligence that could have been involved in producing the given result. Even if the grip had broken, it would have been included within the charge of the petition that the defendant did not provide “proper, sufficient and safe means to hold said cable train firmly attached to said wire cable.” What act for which the defendant could have been responsi-' ble, as the producing cause of the collision in question, is not embraced in some one of the different charges in this petition? Such being the case, is it not the merest quibbling to say that the case should be tried by a different rule than if these items of negligence had been lumped in one general statement?
   GRAVES, J.

Action for personal injuries to plaintiff who was a passenger on one of defendant’s street railroad trains. The accident in which plaintiff was injured occurred on August 22,1902. In the lower court plaintiff had judgment for $10,000, whereupon defendant appealed to this court.

■ Defendant, at date of accident, operated a double-track cable railroad, known as the Ninth Street line, running from the eastern part of Kansas City, Missouri, along Ninth street to the Union Depot. The Union Depot was the western terminus of the line and was at the bottom of a very steep incline on Ninth street. Defendant’s trains consisted of two cars, one known as a grip-car and the other as a trailer. The grip-car had a device known as a grip which extended down through the body of the car to a covered conduit in the street, in which conduit was a wire cable kept in continuous onward motion by power from a stationary power-house. The grip was fitted with a clamp' in which were removable dies and could be tightly closed upon the cable so as to firmly attach it thereto or could be .opened so as to allow the cable to slip through. This device was worked with a lever by an operator known as a gripman. When the grip was clamped tightly, the grip-car moved onward with the cable; when it was opened, the car stopped from loss of motion, or conld be quickly stopped at ordinary grades by the application of brakes. The trailer was propelled by being attached to the grip-car.

Ninth street at a point at or near Washington street ascended a slope of considerable grade to Penn street, which crossed it at right angles, and descended to Penn street, which was practically level for a space of twenty-eight feet. Prom the western edge of Penn street it began to descend and descended at a grade of 10.65 per cent to Jefferson street, and thence on down to Union Depot it descended a very steep grade of 18.6 per cent over an elevated structure or incline.

Plaintiff in his petition alleges that he was a passenger on one of defendant’s trains, which had partly descended the incline near Union Depot, when suddenly and without warning, another train of defendant descended the incline behind the train which plaintiff was on with great speed and crashed into and wrecked plaintiff’s train, throwing plaintiff onto the floor of the incline and against the uprights of the same, rolling him over, cutting, bruising and wounding his hands, his left heel, the back part of his head, his left shoulder and arm and hi's thighs, wrenching and twisting his left shoulder, cutting a gash over his right eye, cutting the joint of his left index finger to the bone, and cutting'the flesh over the knee-cap of his left leg; and further alleges that prior to the injuries aforesaid, he was a strong and healthy man, forty-one years of age and weighing one hundred and ninety-one pounds, but that since said injuries he has suffered a loss of sensation in both legs and in the lower part of his body; that he could not walk without the aid of canes and crutches; that frequently he suffered from severe pains in the left side of his head and because of them was unable to sleep at night; that his nervous system was impaired and his health injured, in divers other ways; that he was engaged in the hotel brokerage business, or acted as agent between prospective buyers and sellers of various hotel properties, and prior to the injuries aforesaid had just built up a business that was yielding him an income of about $15,000 per year; that because of his injuries aforesaid he had been unable to give his personal attention to his business and that the loss thereby was fully one-half of his income. He asked for judgment in the modest sum of $100',000.

Plaintiff’s petition, for grounds of negligence and causes of his injuries, charges that his injuries were received in the following manner: (1) “Through the carelessness and negligence of the defendant, its servants, agents and employees in not stopping said other train so that the front end thereof should be east of the center of Penn street as was required by the rules of said company, and the ordinances of the city of Kansas City, obligatory upon defendant, until duly' signaled that no trains were ahead of said other train down such incline, and where said other train would not be in danger of running- down on Ninth street on such incline until duly propelled forward by such connection with the cable as would have prevented such train from coming- down such incline faster than the speed of the cable;” (2), “and in not providing proper, sufficient and safe means to hold said other train firmly attached to said wire cable;” (3), “and to stop same when not attached thereto;” (4), “and through the carelessness and negligence of the defendant, its servants, agents and employees in not propelling, handling and using-said devices and appliances as were furnished for such purpose;” (5), “and in no-t being at their proper and required posts of duty therefor;” (6),“and through the carelessness and negligence of the defendant, its agents, servants and employees, in causing one cable train to follow another down said incline, before the train farthest down said incline had gotten to a place of safety, so that through such defects in such means and in the use thereof a following train would, when beyond control, injure the passengers in a preceding train.”

It will be observed that plaintiff did not content himself with a general allegation of neglig’énce, but pleads specifically the different negligent acts which caused or contributed to his injury.

The answer was a general denial, to which was coupled a plea of contributory negligence. Reply was a general denial. Such were the issues.

Defendant alleges error upon the part of the trial court in giving instruction number 1 for plaintiff, which instruction is as follows:

“You are instructed that the defendant and its employees were bound to use that high degree of care which a reasonably prudent person in like business, would exercise under the same circumstances, in providing proper brakes for stopping or reducing the speed of a train in case it got loose from the cable on a dangerous incline, and on the part of defendant’s employee in charge of the grip in keeping the grip1 with which the car was held to the cable properly adjusted, if you find there was a proper adjustment, for the purpose of enabling the cable to be properly seized and held by such grip, and on the part of the defendant’s conductor in being at his proper post of duty, if you find there was a proper post of duty, for the use of such appliances, either brakes or hooks, as were provided for stopping the train, if you find any were provided, if it got loose from the cable, and in the use by the gripman of the brakes provided by the defendant for his use in so far as a failure in any of the above respects directly contributed to the injury, if any, of the plaintiff, as proximate cause therefor. And if you believe from the evidence that on or about the 22nd day of August, 1902, a train of cars of the defendant approached the top of an incline on Ninth street from Penn street down to the Union Depot and was carried over the brow of Penn street and started down the incline, and that through the want of such care and foresight as was reasonably practical on the part of the employees in charge of car number 129, the cable either became entirely free from the grip by reason of the want of such care in the adjustment of the grip, or for the same reason the grip failed to hold on the cable and thereupon the cars went on down the incline, propelled by their own weight and that such incline was a place dangerous to the safety of passengers in case the ears were not held by the grip to the cable, and that the brakes provided on the train were so constructed as to be insufficient for the purpose of holding said cars on said incline, if you so find, and that same were insufficient was known to the defendant, or by the exercise of reasonable care and diligence might have been known to it at any time before starting such cars down said incline and that the defendant had in use on said incline cars equipped with brakes so constructed as to be sufficient for the purpose of holding said cars on said incline when not held by the cable and which the defendant knew, or by the exercise of reasonable care and diligence could have known were sufficient for such purpose, and that the gripman of car 129 did not exercise such care' and foresight as was reasonably practical on the part of such gripman, under the circumstances, in using the brakes provided, and that the proper post of duty of the conductor, if you find there was a proper post of duty for him in such cars, was at the rear of said train near the hand-brake and a device for dropping into certain loops a hook, which when dropped would tend to stop or retard the speed of such train, and you find that such conductor did not exercise such care and foresight as was reasonably practical, under the circumstances, with respect to being at such post of duty, if you so find, and you find as a direct result of such circumstances a collision occurred between such train and another train of the defendant in which the plaintiff was riding as a passenger, and that the plaintiff received injuries of the kind complained of by reason thereof, without fault on his part directly contributing thereto, then the plaintiff is entitled to recover in this action. ’ ’

Defendant likewise charges as error the action of the court in refusing to give instructions 15, 10', 12, 13 and 14, as were offered and requested by it. Said instructions are as follows:

“15. Even though you may believe that the employees did not stop the train so that the front thereof would be east of the center of Penn street, such fact, if it be a fact, is wholly insufficient to authorize you to render a verdict against the defendant on the issue so tendered in relation thereto', and you cannot find a verdict for the plaintiff on that ground.

‘ ‘ 10. There is no evidence before the jury that the defendant failed to provide proper means to hold the grip train firmly attached to the wire cable and to stop the same when not attached thereto, and you cannot find a verdict for the plaintiff on that issue.

“12. There is no evidence before the jury that the employees did not properly handle the devices and appliances that were furnished for the purpose, and on that issue the plaintiff cannot recover.

‘ ‘ 13. There is no evidence before the jury that the servants and employees caused one cable train to follow another down the incline before the train farthest down had gotten to a place of safety, and on that issue you cannot find for the plaintiff.

“14. There is no evidence before the jury that the proximate cause of the injury was the failure .of either of the employees in charge of the train to be at their proper and required post of duty, and on that issue you cannot find for plaintiff.”

It further charges error in the admission of certain evidence, over objections duly made.

I. We will call specific attention to the evidence in discussing the points raised. But first we must determine the proof required at the hands of plaintiff under the petition in this cause. The petition charges specific negligence and not general negligence, as plaintiff would have had the right to charge in this class of cases. A general allegation of negligence is all that is required in cases of accidents, where the relation of passenger and carrier exists. This general allegation of negligence is permitted upon the theory that the instrumentalities are in the hands of the defendant and he knows the condition thereof, whereas plaintiff does not or may not know them. Not only does the established rule permit a general allegation of negligence, but in making the proof it is sufficient to show an accident and the resultant injury, whereupon there is a presumption of negligence, and a prima-facie case for plaintiff is made. What we have said above applies to cases where there is a general allegation of negligence, but the rule is different where there are specific allegations of negligence. The rule as- to proof is different, and the rule as to the presumption is different. General allegations of negligence are permitted because plaintiff, not being familiar with the instrumentalities used, has no knowledge of the specific negligent act or acts occasioning the injury, and for a like reason the rule of presumptive negligence is indulged. But, if plaintiff by his petition is shown to be sufficiently advised of the exact negligent acts causing, or contributing to, his injury, as to plead them specifically, as in this case, then the reason or the doctrine of presumptive negligence has vanished. If he knows the negligent act, and he admits that he does so know it by his petition, then he must prove it, and if he recovers it must be upon the negligent acts pleaded and not otherwise. In other words, the burden of proof is upon plaintiff as it would be in any other kind of a case. The rule of presumptive negligence and the rule allowing the pleading of negligence generally, are rules which grew up out of necessity in cases of this character and are exceptions to the general rules of pleading and proof. Where plaintiff, by his petition, admits that there is no necessity, the reason for the rule ex necessitate fails, and with it the rule itself.

We have very recently gone over this question in the case of McGrath v. Railroad, 197 Mo. 97, and Orcutt v. Century Bldg. Co., 201 Mo. 424. The conclusions in these cases were reached upon a thorough investigation of all our recent cases, many of which are therein cited.

In McGrath Case, supra, l. c. 105, we said:

“But even if it were a case to which, under proper pleadings, the doctrine [res ipsa loquitur] would apply, yet in this case specific acts of negligence are charged and not general negligence. In such cases where the plaintiff chooses in the petition to allege specific acts of negligence, the rule of law places the burden of proving such specific negligence upon the plaintiff, and a recovery, if had at all, must be upon the specific negligence pleaded. [Hamilton v. Railroad, 114 Mo. App. l. c. 509; Ely v. Railroad, 77 Mo. 34; Leslie v. Railroad, 88 Mo. 50; Yarnell v. Railroad, 113 Mo. 570; Bunyan v. Railroad, 127 Mo. l. c. 19; Hite v. Railroad, 130 Mo. l. c. 136; McManamee v. Railroad, 135 Mo. l. c. 447; Bartley v. Railroad, 148 Mo. l. c. 139; Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 450; Breeden v. Mining Co., 103 Mo. App. l. c. 179.] ”

And in the Orcutt Case, supra, we further said:

“But the courts draw a distinction between cases wherein general allegations of negligence are found and those wherein are found specific allegations of negligence. We refer now more particularly to cases wherein the relation of carrier and passenger exists. The rule which shifts the burden of proof in such cases is founded on the theory that the railway company is in position to know the facts and to show the facts, whilst the passenger is not in such position. But if the plaintiff by his petition alleges the exact specific acts of negligence, it is evidence that he also knows the facts, and so knowing them there is no reason for invoking the rule of presumptive negligence. The general rule, in cases other than the class above referred to, is that the plaintiff must establish his case by the preponderance of evidence, and in that class- of cases the presumption of negligence .is only indulged, in our judgment, for the reason aforesaid. However, if the plaintiff possesses knowledge of the facts, and is able to plead them specifically and' in detail, the reason for the rule disappears, and with it the rule itself. ’ ’

So that in this case, in determining the sufficiency of proof, and the correctness of instructions, we will do so upon the theory, that it was the duty of plaintiff to establish by proof, not by presumption, the act or acts of negligence which caused his injury.

If plaintiffs will persist in pleading specific negligence, they must he held to the rules of law applicable to cases of that character.

II. There is a number of contentions made by defendant as to the alleged erroneous action of the court in the giving of instruction number 1 upon behalf of plaintiff. The instruction is long and covers practically all .of the alleged acts of negligence charged in the petition. Defendant claims that all, or at least a part, of these alleged acts of negligence were not shown by the evidence, and that there was error in including such in the instruction. Defendant asked instructions, hereinabove set out, the purpose of which was to withdraw from the consideration of the jury all of such alleged acts of negligence, upon which there had been no proof, as. defendant considered it. Under these circumstances it will be better to take up instruction number 1 for plaintiff, along with the refused instructions of defendant.

(a) The first assignment of negligence in the petition, i. e., the failure to stop the train on the east side of Penn street, is not submitted to. the jury in said instruction one, but defendant says that the whole matter should have been withdrawn from the jury as it requested in its refused instruction number 15, and that in the refusal of instruction 15 there was error. We are not' prepared to say that the refusal of this instruction was error. It is true that there was no- ordinance or printed rule of the company introduced requiring the stopping- of trains on the east side of Penn street, but there is evidence that there were oral instructions to motormen to stop such trains on Penn street. Then further it is shown by the evidence, especially by the cross-examination of some of defendant’s witnesses, that in going over the brow of the hill to the east of Penn street there was great danger of losing the cable from the grip. Now if the train was brought to a full stop on Penn street, and the cable chanced to be out of the grip, the train could not be again started so as to go on the incline below, until such cable was replaced. Under such circumstances, it was the part of prudence to bring the train to a full stop there. Again, the conductor had to get his signal there, and for that purpose there had to be a stop. We hardly think the refusal of such instruction was error. At least it was not such error as would justify a reversal.

(b) The next assignments of negligence are what we have subdivided as two and three, and are as follows :

“And in not providing proper, sufficient and safe means to hold said other train firmly attached to said wire cable.”

“And to stop the same when not attached thereto.”

These are reached by defendant’s refused instruction number 1Ó. This instruction covers- both assignments of negligence above quoted. Piad it only covered the assignment numbered two-, it would have been error to have refused it, for there is no evidence in the record showing a failure upon the part of the company to furnish sufficient and safe means to hold the train firmly attached to the cable. As to the third assignment, there is some slight evidence that when the cable is out, the train conld be stopped even npon the incline, by nse of what they denominate as a rail brake. There is also evidence that most of the cars running over this incline were equipped with rail brakes. The car in controversy had a ratchet brake and it is admitted by defendant that such brake will not stop a car upon the incline, where it is detached from the cable. Of course the great weight and mass of the testimony shows the ratchet brake to be the best and safest device. But as we have said, there is some little evidence to the contrary, so that this is a question peculiarly within the province of the trial court. Under our practice, it is the peculiar province of the trial court to- refuse to submit such question, or if submitted, to refuse to permit a verdict to stand upon such evidence. As has been often said the duties of the trial judge and of the appellate judge are quite different under these circumstances. If a verdict is against the great weight of the testimony it is the peculiar province of the trial judge to so say and to- promptly set the same aside, to the end that justice may follow in each case. [Taylor v. Railroad, 163 Mo. l. c. 191; Haven v. Railroad, 155 Mo. 216; Baughman v. Fulton, 139 Mo. 557; Bank v. Wood, 124 Mo. 72; Bank v. Armstrong, 92 Mo. 265; McKay v. Underwood, 47 Mo. l. c. 187; Vastine v. Rex, 93 Mo. App. 93; Everman v. Eggers, 106 Mo. App. 732.]

It follows that there was no error in refusing said instruction number 10, in its present form. Had it been presented without the clause, “and to stop the same when not attached thereto,” there would have been error in refusing it.

(c) The fourth assignment of error is as follows: “And through the carelessness and negligence of the defendant, its servants, agents and employees in not propelling, handling and using said devices and appliances us were furnished for such purpose.”

•. Defendant asks the withdrawal of this assignment of negligence by its refused instruction number 12, and ■charges error upon the part of the trial court in refusing said instructions. Under the evidence, however, mostly from the cross-examination of defendant’s witnesses, the instruction was properly refused. The evidence shows that at the brow of the hill east of Penn street there was great danger of the cable leaving the grip; that it might leave the grip by the motorman opening the grip too wide, when he loosened the grip to make the Penn street stop; that it might leave the grip on account of a splice in the cable or on account of a loose strand on the cable; that the cable was not in the grip when the car was examined immediately after the accident. With this evidence the jury had the right to determine how the cable came to leave the grip. The evidence of the negligence of the gripman' is meager, but sufficient to submit the question to the jury. There was no error in refusing this instruction.

(d) The fifth assignment of negligence is: “And in not being at their proper and required post of duty therefor. ’ ’

Defendant strikes at this assignment by its refused instruction number 14. This instruction should have been given. There is no question that the brakeman was at his post .of duty, and we hardly think there was sufficient evidence upon the question as. to whether or not the conductor was at his post of duty, to submit such question to the jury. For the plaintiff it shows that the train slowed up and had about stopped. That the conductor got off and went to the signal box to get his signals as to other trains ahead. It was his duty to go to this box and get his signal. This was as much his duty as to be on the rear of the train when going down the incline. Again when he left the train, there was every evidence that it would make the usual stop and lie had not reached the point where he was required to be on the rear of the train to drop the hook put there for the purpose of assisting- in stopping the train on this incline. In our judgment there was no evidence of negligence upon the part of the conductor and that both he and the motorman were at their respective places of duty, the motorman at his grip and the conductor at the signal box getting his signal. Defendant’s instruction should have been given, and this element should have been left out of'plaintiff’s instruction number 1.

(e) The sixth assignment of negligence reads: “And through the carelessness and negligence of the defendant, its agents, servants and employees, in causing one cable train to follow another down said incline, before the train farthest down said incline had gotten to a place of safety, so that through such defects in such means and in the use thereof a following train would, when beyond control, injure the passengers in a preceding train.”

Defendant seeks to exclude that by its refused instruction number 13. This instruction was properly refused. As said in division “c” above, the occasion of this accident might have been the negligence of the motorman or gripman, in opening the grip too much at the brow of the hill east of Penn street, and if so this might have been the cause of the train following another before the former reached the foot of the incline.

(f) It is further urged that the instruction in the nature of a demurrer should have been sustained. At the close of plaintiff’s case, there was but one question which should have been submitted to the jury, and that is the sufficiency of the appliances to stop a car upon the incline with the cable out of the grip. Had the cable been in the grip no accident could have occurred. There was evidence that the rail brake would stop the train and that defendant had such and knew that such brakes were required for that line. However, the cross-examination of defendant’s witnesses added some to plaintiff’s case, and there is no question as to the trial .court being right in refusing this, instruction at the close of all the testimony.

III. The plaintiff introduced Drs. Haldeman and Blair as expert witnesses. To. Dr. Haldeman this question was asked, and this answer given:

Q. “If a man prior to this accident was free from pains in the head, was able to sleep well and was normal in 'his health in that he was free from pain and inconvenience in the head and back, and' after an accident that he would receive in a street car collision where two cars came together with considerable force, sufficient to throw him plump out of the car, and by reason of such collision and throwing out of the car he received various bruises, and is in the condition you saw Mr. Roscoe, with bruises on his head, hands and legs, and it developed shortly after that this man suffered from pains in the head and back, which he had not had prior to the occurrence, to what would you attribute the cause of the pains in his head and back and his inability to sleep, as he formerly was able to dot” A. “"Why, I should say it was due to the injury which he received at that time. ’ ’

To Dr. Blair was propounded the following question, to which he gave the following answer:

Q. “Doctor, if a man were riding in the front seat of one of our ordinary cable trains, such as are operated here in the city, and while so riding the train upon which he was riding was struck from the rear by another train, with sufficient violence to throw Tiim out of the seat and out of the car and possibly over the dash board or the front railing of the car, and onto a wooden platform on the incline, causing him to roll over until stopped by expiration .of the force of the throwing, and he received injuries such as you found existed in Mr. Boscoe, could that result have followed from such experience?” A. “Yes, sir.”

These questions were objected to upon various grounds, among others that they required the witnesses to invade the province of the jury and find the ultimate fact to be found by the jury, i. e., whether or not plaintiff’s present condition was the result of injuries received in the accident. This, too, in view of the fact that plaintiff had been previously injured and hurt prior to this accident and was claiming loss of sensation from the hips down as well as loss of sexual powers. The action of the court in permitting these questions to be answered was error. [Taylor v. Railroad, 185 Mo. 239.]

In this case, very similar to the one at bar, upon this question, Marshall, J., says:

“To the trained legal mind there is a very essential difference between permitting an expert to give an opinion and permitting him to draw a conclusion. The one is the province of a witness — the other is, in the first instance, the special prerogative of the jury.

“And when a witness is thus, permitted by the court to invade the province of the jury, it goes to the jury with the endorsement of the court, and is calculated to make the jury believe that it is proper for the witness to find the fact instead of the jury doing so.”

Again, in the case of Longan v. Weltmer, 1801 Mo. - 322, wherein the writer herein was the trial judge,- the same point came up, but in that case the objection to the hypothetical question was a general one. The motion for new trial was overruled solely on the ground that the objection was too general, and to this view the Supreme Court adhered. It is clear from the language used by Burgess, J., in that case, that had the objection been specific, as in the case at bar, there would have been a reversal of the judgment. The language of Judge Burgess follows:

“It is also insisted that the hypothetical questions were all improper for the reason that the experts were permitted by them to tell the jury that in their opinions the particular treatment produced the injury, thus usurping the province of the jury, whose duty it was to pass upon that question. But this objection cannot be considered by this court for the reason before indicated in regard to the generality of the objection to its admission.”

In fact counsel for respondent in the Longan case, both on the motion for new trial in the court nisi, and in the Supreme Court, practically admitted the error of the question, but urged the insufficiency of the objection. The question is on all-fours with those in the case under consideration.

Hypothetical questions should never be so framed as to call from the witness the conclusion of fact, which it is the province of the jury to draw. These questions and especially the one to Dr. Haldeman did that.

There are other questions raise,d in this record of six hundred printed pages but in the view we take of the case it must be reversed and remanded, and many of them will likely not be involved in any future record.

For the errors above pointed out, the judgment is reversed and the cause remanded.

Valliant, P. Jand Lamm, J., concur; Woodson, J., not sitting.


author: WOODSON, J.

text:
    McFARLAND REAL ESTATE COMPANY v. JOSEPH GERARDI HOTEL COMPANY, Plaintiff in Error.
    Division One,
    March 28, 1907.
    1. UNLAWFUL DETAINER: Lease: Sale Under Mortgage. The sale of real estate by the trustee under a deed of trust, antedating a written lease for five years, by operation of law extinguished the tenancy then existing between the parties to the lease and between the lessee and the purchaser of the land.
    2. -: -:--: New Letting. And the lease being extinguished, an oral contract of renting entered into between the purchaser and lessee did not have the effect of breathing new life into the lease, nor constitute it a written lease between the lessee and the purchaser at the trustee’s sale. After the sale the purchaser and lessee stood in the same relation to each other as if no lease had ever been made. Thereafter the lessee became the tenant-at-will of the purchaser.
    3. -; -: -: Tenant from Month to Month: Notice. Where a written lease was extinguished by a trustee’s sale under a deed of trust antedating the lease, the lessee by remaining in possession thereafter, under an oral lease with the purchaser made after the foreclosure sale, became a tenant from month to month by operation of the statute (sec. 4110, R. S. 1899); and the tenancy cannot be terminated against the will of the other party except by giving thirty days’ written notice. And the purchaser of the premises cannot maintain unlawful detainer against the tenant, in such, case, until such written notice is given.
    4. -: -: Beneficial Owner: Recovery: Theory of Pleadings. A party will not be permitted on the trial to introduce evidence which contradicts his pleadings, nor will he be permitted to state one cause of action and recover upon another. Plaintiff will not be permitted in an action of unlawful detainer to state that Graham was the owner of the land and as such executed a deed of trust thereon and afterwards by written contract leased it for five years to defendant, and thereafter the property was sold under the deed of trust to Koch, who transferred it to plaintiff, and that defendant’s lease expired on a day certain, and defendant unlawfully withholds the premises, etc., and then by evidence seek to evade the effect of such allegations by evidence tending to prove that at all times mentioned in the proceedings plaintiff was the beneficial owner of the property and Graham and Koch were trustees or mere agents holding the legal title for the use and benefit of plaintiff. •
    Error to St. Louis City Circuit Court. — How. Robert M. Foster, Judge.
    Reversed.

      R. M. Nichols for plaintiff in error.
    (1) The mortgage was on the fee simple title; being prior to the lease its foreclosure ended and determined not only the lessor’s title, but extinguished the lease. Consequently, under plaintiff’s own showing he was not the owner of the lease and defendant was not a tenant holding over after the expiration of the lease, January 9, 1904. Culverhouse v. Worts, 32 Mo. App. 419; Vaughn v. Locke, 27 Mo. 290-; Cook v. Ba Som, 164 Mo. 594; Robinson v. Troup Min. Co., 55 Mo. App. 662; Corrigan v. Chicago-, 144 111. 537; Stout v. Merrill, 35 To. 47; Den v. Ashmore, 22 N. J. L. 261; Wolff v. Johnson, 30 Miss. 513. (2) The sale on July 21, 1899, under the deed of trust given June 23, 1898, covering the property in controversy, extinguished the lease, dated January 9, 1899, so far as it affected the property in controversy. Kane v. Mink, 64 Io. 87; Jones v. Landlord and Tenant, sec. 703; Culverhouse v. Worts, 32 Mo. App. 419; Oakes v. Aldridge, 46 Mo. App. 11; Barclay v. Pickles, 38 Mo. 143; Burr v. Stanton, 43 N. Y. 462. (3) After the lease became extinguished by the foreclosure of the prior mortgage the relation of the purchaser (plaintiff) and the former tenant (defendant) became under force of the statute, section 4110, Revised Statutes. 1899, that of tenant from month to month, and could be terminated only by one month’s notice. R. S. 1899, sec. 4110; 18 Am. and Eng. Eney. Law (2 Ed.), 183; Qnilgns v. Lewis, 8 Mo. App. 339; Griffith v. Lewis, 17 Mo. App. 613; Yogley v. Robinson, 20 Mo. App. 199; Lehmann v. Nolting, 54 Mo. App. 549; Grant v. White, 42 Mo. 444; Finney v. St. Louis, 39 Mo. 177. (4.) The rule prohibiting a tenant from denying the landlord’s title does not forbid a tenant from showing that the landlord’s title has expired, or has been extinguished since the tenancy commenced. Robinson v. Troup' Min. Co., 55 Mo. App. 662; Pence v. Ruester, 44 Mo. 447; Chapin v. Brockmeyer, 33 Mo. App. 92; Jones on Landlord and Tenant, sec. 703; Cook v. Ba Som, 164 Mo. 600'.

      Albert C. Davis and Chester H. Krum for defendant in error.
    A sale, under a deed of trust, operates to extinguish a lease made subsequently to such deed, only where the lessee, or a stranger acquires the title; and in the event of such acquisition by a stranger, the lessee is evicted, or attorns under statutory conditions. The record shows that the lessor at no time parted with its title, that no stranger acquired such title, and that the tenant at all times knew there was no change in the title. 1 Washburn on Real Property (6 Ed.), sec. 721; Gray v. Rogers, 30 Mo. 258; Green v. Stern-berg, 15 Mo. App. 35; Lindenbauer v. Bentley, 86 Mo. 519; Smith v. Aude, 46 Mo. App. 634; R. S. 18991, secs. 4112, 4136, 4137; Wash. Real Prop. (6 Ed.), sec. 721; Simers v. Saltes, 3 Denio, 214; Whalin v. White, 25 N. Y. 462. The record shows conclusively that there was no change in the real title at any time, and that the tenant knew this to be the fact. There was no point made at the trial such as is now sought to be raised by the appellant.. There was no demurrer to the evidence. There was no instruction asked upon the point. There was no suggestion of any such point made in the motion for a new trial. The case was tried solely upon two points of alleged defense — one that the term] was extended two- days — the other that the tenant was holding over pending a treaty for a new lease. Appellant now endeavors to raise an issue, which it did not raise below, which it did not call to the attention of the trial court and as to which, had there been error below, the trial court was not asked to make the proper correction. To permit a review of a record, as to -this point, will be to violate rules of procedure on appeal as old as the court itself. Alexander v. Hayden, 2 Mo. 171; Boyce v. Burt, 34 Mo. 74; Claflin v. Sylvester, 90' Mo. 276; Haniford v. Kansas City, 103 Mo. 172; St. Louis v. Sieferer, 111 Mo. 662; Hubbard v. Fuchs, 164 Mo. 426.
   WOODSON, J.

-This is an unlawful detainer proceeding, instituted before a justice of the peace on January 11, 1904, in the city of St. Louis, for the recovery of the possession of a tract of land one hundred feet square, fronting on Taylor avenue, in said city, upon which was located the Westmoreland Hotel Annex, which will hereafter be called the Annex, and removed, by writ of certiorari, to the circuit court because the question involved the title to real' estate.

The facts in the case are as follows:

On and prior to January 9, 1809, David W. Graham was the owner, subject to a deed of trust thereon, dated June 23, 1898, and duly recorded, and as such owner leased same, together with another adjacent piece of ground, upon which was located the' Westmoreland Hotel, which will hereafter be called the Westmoreland, to plaintiff in error for the term of five years, ending the ninth day of January, 1904; prior to January 9, 1904, David W. Graham, by warranty deed, conveyed to plaintiff, McFarland Real Estate Company, the Annex; there having been a default under the deed of trust, the trustee therein, on July 21,1899; sold and conveyed by trustee’s deed both the Westmoreland and the Annex do John Koch; on October 12, 1901, John Koch, by warranty deed, com veyed the Annex to the McFarland Real Estate Company, the defendant in error; on the 9th day of March, 1899, David W. Graham conveyed the Westmoreland to Lonis Bernero, and assigned to him $5,000 of the $7,200 yearly rental of the two places; after the sale to' Bernero, defendant in error attempted to separate the two properties from the lease of January 9, 18991, and obtain a new lease for the Annex, but was unsuccessful in that. It was finally agreed, orally, between them to carry on the terms and conditions of the lease dated January 9, 1899, and plaintiff in error retained possession of the premises until the expiration of the lease and paid the rent as it became due; a few days prior to January 9, 1904, the day of the expiration of the lease according to its terms, defendant in error orálly demanded possession.of the Annex from plaintiff in error; the plaintiff in error attempted to procure an extension of the lease, but the McFarland Company declined to extend it, and thereupon a controversy arose between them as to whether the lease had or had not been extinguished by the sale under the prior deed of trust, and the president of the plaintiff in error testified that the possession of the property had not been turned over to- him on January 9, 1899, the date of the lease, but possession thereof had been wrongfully withheld from his company, for two days, until January 11, 1899, and that in consideration for the loss of those two- days, the defendant in error agreed that his company might occupy the premises for the two additional days. . Gerardi testified that the agreement to extend the term of the lease for the two days was made at the time or before he took possession of the properties under the lease, and on that account always paid his rent on the eleventh of each month instead of the ninth; that his company retained the possession of the premises after the date of the expiration of the lease, and on January 11th, February 11th and March 11, 1904, his company tendered to defendant in error the sum of $183.33, being the monthly rental of the Annex at the rate stated in the lease, but made no tender after that because the judgment was rendered against his company on the 11th of April.

The defendant in error introduced evidence tending to contradict the oral evidence above stated, and also introduced oral evidence tending to show that David W. Graham and John Koch were holding the legal title to all of the property mentioned in the evidence, under an oral agreement, for the use and benefit of the defendant in error.

The trial was by jury, and at the close of all the evidence the court gave a peremptory instruction to find for the defendant in error. Thereupon the jury returned a verdict for the possession of the property and assessed the damages at the sum of $2,283.34, and found the monthly rents and profits to be $300-.

In due time plaintiff in error filed his motions for a new trial and in arrest of judgment, which were, by the court, overruled, to which action of the court plaintiff in error duly excepted and appealed the cause to this court.

I. The plaintiff in error, for a reversal of the judgment, contends that the sale of the properties, on July 21, 1899, by the trustee, under and by virtue of the deed of trust, dated July 23, 1898, to John Koch, had the legal effect of extinguishing the tenancy created by the lease executed by David W. Graham to the plaintiff in error, dated January 9, 1899s, and that when the McFarland Company orally agreed with the Gerardi Company that the latter could occupy the premises until the date of the expiration of the lease, in consideration of the payment of the rental therein stated, the lease was, by section 4110, Revised Statutes 1899, converted into a letting from month. to month, because the contract of letting was not in writing as required by that statute, and, further, before the tenancy could be terminated, thirty days’ written notice was required to be given, before the tenancy could be terminated against the will of the plaintiff in error, which it is conceded was not given.

The sale of the Annex by the trustee, under the deed of trust, which antedated the lease, by operation of law extinguished the tenancy then existing between the parties. [Culverhouse v. Worts, 32 Mo. App. l. c. 426.]

When the sale took place it was as effectual in extinguishing all the interest of the parties to the lease as the judgment of a competent court decreeing a forfeiture would be, and leaves no legal or equitable estate in either party upon which to base legal claims. [Cook v. Ba Som, 164 Mo. 594.]

So it necessarily follows that the oral contract of renting entered into between the parties did not have the effect of breathing new life into the lease and thereby constitute it a written lease between them.

After the sale the parties stood in the same relation to each other as if the lease had never been executed. It was thereby nullified and extinguished and the plaintiff in error became the tenant-at-will of the purchaser. [Kane v. Mink, 64 Iowa 84.]

While the sale in the last case cited was under an execution, yet the same principle applies to a sale under a deed of trust. It, therefore, follows, that when John Koch purchased the Annex under the trustee’s sale, on July 21, 1899, the defendant in error at that time became the tenant-at-will of said Koch. But when Koch, on October 12, 1901, conveyed the property to the defendant in error, the plaintiff in error by remaining in possesion thereof, under and by virtue of the oral lease, made after the sale under the deed of trust, became a tenant from, month to month by operation of section 4110, Revised Statutes 1899'.

This section provides that all contracts or agreements for the leasing, renting or occupation of stores, shops, houses, tenements or other buildings in cities, towns or villages, not in writing and signed by the parties thereto, shall be held, and taken to be tenancies from month to month. The contract of leasing between the parties in this case falls within both the letter and spirit of the said section of the statute; and such a tenancy cannot be terminated against the will of either party thereto except by giving the thirty days’ written notice required by said section. And as this was not done in this case, the defendant in error had no cause of action against plaintiff in error at the time it filed its complaint before the justice of the peace.

II. The counsel of the defendant in error does not seem to controvert the correctness of the above conclusions, but seeks to evade the effect thereof by the introduction of oral evidence tending to prove that the defendant in error, at all times mentioned in the proceedings, was the beneficial owner in fee of both pieces of property, and that Graham and Koch were trustees or mere agents holding the legal title thereof for its use and benefit, and that plaintiff in error knew that fact, and, having remained in possession of the property during the period of time covered by the lease, it should not be heard to deny or question the title of the defendant in error.

In answer to that contention it is sufficient to say, that no such issue was made in the complaint, filed before the justice, but on the contrary the complaint, in express terms, states that David W. Graham was the owner of the property, subject to the deed of trust, and that prior to the expiration of the lease, Graham, by warranty deed, conveyed the property to it, and that the lease expired on January 9’, 1904, which gave the defendant the right to the possession, and that plaintiff in error unlawfully withheld the possession, and for that reason this suit was brought. Such contention on the part of the defendant in error is in direct conflict with, and contradicts the very terms of the complaint, filed with the justice, which is the foundation of this whole procedure. This cannot he done. A party will not he permitted on the trial to introduce evidence which contradicts his pleading, nor will he he permitted to state one cause of action and recover upon another. [Lenox v. Harrison, 88 Mo. 491, 495; Weil v. Posten, 77 Mo. 284.]

There are several other points presented by the record in this case, and urged upon our attention, by both parties, hut as the judgment will have to he reversed without remanding, there would he no good or wise purpose served hy passing upon them.

The judgment of the circuit court is reversed.

All concur, except Lamm, Jdubitante.