author: RAILEY, C.

text:
    OKE McCUNE and VER McCUNE COBB, Appellants, v. CHARLES H. GRAVES.
    Division One,
    March 4, 1918.
    1. SPECIFIC PERFORMANCE: Oral Contract by Wife to Convey Land to Husband. An oral contract by a wife to convey her land to herself and her husband as tenants by the entirety if he would purchase another adjoining tract and have it conveyed to them as tenants by the entirety and would build at his own expense a dwelling house on her tract, being clearly established beyond a reasonable doubt and having been fully performed on his part and never repudiated by her, authorizes the court, after her death, to decree title of her tract in him.
    2. -:--: Mistake in Husband’s Deed: Equitable Owner. And although the deed by which the tract, bought and paid for by the husband, failed to convey it, owing to a wrongful description, he and his wife, because of their oral agreement that it should be conveyed to them as tenants by the entirety, became the equitable owners of said tract, and he also became the equitable owner of an estate by the entirety in the wife’s tract which she had agreed was, in pursuance to his purchase, to be enjoyed by both as tenants by the entirety, and a deed made by the original grantors to him, after the wife’s death, in correction of their former deed, conveyed to him the legal title of the tract bought and paid for by him, and authorized the court to vest the legal title of the wife’s tract in him, as against her heirs.
    3. -: -: -: Removed by Deed of Correction. The problem of establishing a mistake in a deed is solved by a deed of correction executed by the original grantors.
    Appeal from Ralls Circuit Court. — Hon. W. T. Ragland, Judge.
    Affirmed.

      David H. Eby and Ben E. Hulse for appellants.
    (1) The title to real estate should not be permitted to slumber in the uncertainty of oral contracts to convey. A parol contract to convey real estate is an exception engrafted by courts of equity on the Statute of Frauds which requires all such contracts to he in writing. The evidence in this case is not of such a character as to touch the conscience of the court and call into play the exception to the statute. To warrant specific performance of an oral contract to convey real estate, such as the contract in suit, the proof must leave no reasonable doubt that the contract was made. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Berry v. Hartzell, 91 Mo. 132; Yeth v. Gierth, 92 Mo. 97; Cherbonnier v. Cherbonnier, 108 Mo. 252; Fanning v. Doan, 139 Mo. 392; Kinney v. Murray, 170 Mo. 674; McKee v. Higbee, 180 Mo. 263; Russell v. Sharp, 192' Mo. 270; Kirk v. Middlebrook, 201 Mo. 245; Wales v. Holden, 209 Mo. 552; Collins v. Harrell, 219 Mo. 279; Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo.. 119; Hersman v. Hersman, 253 Mo. 175; Wanger v. Marr, 257 Mo. 482. (2) The defendant has wholly failed to meet and perform the terms of the parol agreement set up in his answer and upon which he relies. The execution of the deed, dated August 22, 1908, by the Kraft heirs to defendant and said Jennie E. Graves, is in no respect a compliance with the terms of the alleged contract, and the defendant has no ground of complaint if a court of equity leaves him in the position in which he has placed himself and refuses to compel the other party to perform. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Pomeroy v. Fullerton, 131 Mo. 581; Hollman v. Conlon, 143 Mo. 369; Real Est. Co. v. Spelbrink, 211 Mo. 671; McQuary v. Land Co., 230 Mo. 342; Munyon v. Hartman, 262 Mo. 449; Ranck v. Wick-wire, 255 Mo. 42; Curtis v. Sexton, 142 Mo. App. 179; Taylor v. Longworth, 14 Peters (U. S.), 174; Holgate v. Eaton, 116 U. S. 40; People v. Bldg. Co., 92 N. Y. 98.

      J. O. Allison and E. L. Alford for respondent.
    The oral contract which respondent 'asks to be specifically enforced was proven beyond doubt. The trial court could reach no other conclusion than that to refuse respondent equitable relief would be to permit a fraud to be perpetrated on him. The evidence in support of the contract fully measures up to the most rigid requirements ever announced in this jurisdiction in cases where an oral contract for the sale of land was sought to be enforced. Merrill v. Thompson, 252 Mo. 714; Healey v. Simpson, 113 Mo. 340; School District v. Holt, 226 Mo. 406; West v. Bundy, 78 Mo. 407; Daugherty v. Hortsel, 91 Mo. 161; White v. Ingram, 110 Mo. 474; Hall v. Harris, 145 Mo. 614; Hubbard v. Hubbard, 140 Mo. 300; Bond v. Read, 131 Mo. 558; Webb v. Toms, 86 Mo. 591; McQuitty v. Wilhite, 247 Mo. 163; Whitaker v. Lewis, 264 Mo. 208. In each of the cases cited by appellant the evidence in support of the' oral contract was weak and unsatisfactory as compared with the evidence in support of the contract under consideration. In some of these cases there was a sharp conflict in the evidenóe. In others the acts relied upon to establish performance on the part of complainant were not referable to the alleged contract, and in such cases the decisions turned on this point. In still other cases so cited the contract as proven was indefinite as to what particular property was to be conveyed and, of course, ■ specific performance could not be decreed. In several of the cases the evidence consisted solely of the loosest of declarations and admissions made by one deceased, and made from twenty-five to forty years before the trial, and unsupported by corroborating actions, facts or circumstances. The appellate court will defer somewhat to the conclusion reached by the trial court on matters of fact, when much depends on the demeanor of the witnesses. Berry v. Hartzell, 91 Mo. 132; Ersldne v. Loewenstein, 82 Mo. 301; Choteau v. Allen, 70 Mo. 336; McQuitty v. Wilhite, 247 Mo. 163. (2) Respondent in good faith purchased the Kraft land and paid the price, $3000; he procured the deed to be made to himself and his wife, Jennie E. Graves, all in an honest attempt to carry out his part of the contract. All of the interested parties, grantors and grantees, thought the description correct, and that the land had been properly conveyed. In fact, the substantial title did pass under the deed, and all parties treated it as an absolute conveyance and acted accordingly. It was a substantial, meritorious and valuable compliance and performance by respondent, and, except for a mistake in the description of the land overlooked by all the parties, and which mistake could easily be corrected, was a literal and'complete performance on the part of respondent. Equity looks to the substance of transactions and regards the spirit of an obligation rather than its mere form. So all that is generally demanded in equity is a substantial compliance with the agreement sought to be specifically enforced, on the part of him who asks the aid of equity to give it effect. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Blanton v. Distilleries Co., 120 Fed. 349; Willard v. Tayloe, 8 Wall. 557; Taylor v. Longworth, 14 Peters (IT. S.), 174. Mrs. Craves never rescinded the contract, and appellants will not now be permitted to do so. One who has a right to refuse to perform á contract or rescind because of failure or default of the other party to perform according to the terms of the contract must, when resisting specific performance, do so, and at the same time return the money or other thing of value received under the contract. He cannot refuse to perform and at the same time retain the benefits derived from the contract. Powell v. Hunter, 257 Mo. 447; Harvey v. Morris, 63 Mo. 477; Lanyon v. Ch'esney, .186 Mo. 555; Hunt v. Marsh, 80 Mo. 396; Smith v. Bushby, 15 Mo. 387; Cartwright v. Culver, 74 Mo. 182; Lockwood v. Railroad, 65 Mo. 236; Pulliam v. Burlingame, 81 Mo. 118; Pershing v. Canfield, 70 Mo. 140. (3) Respondent paid $3000 for the Kraft eighty and procured a deed to himself and Jennie E. Craves, which purchase and deed, although the description was incorrect in the deed, at least made respondent and his wife the equitable owners of the Kraft eighty. This was at least a valuable part performance of the contract on the part of respondent. Again, he went into possession of the 71.10 acres and erected valuable and lasting improvements thereon, acts referable solely to the oral contract. Jennie E. Graves, as the chancellor found, entered with her husband into the joint possession of the Kraft eighty. The courts have uniformly held that under such' conditions specific performance will be decreed. Despain v. Carter, 21 Mo. 335; Johnson v. McGruder, 15 Mo. 365; Hays v. Railway, 108 Mo. 544; Adair v. Adair, 78 Mo. 630; Johnson v. Hurley, 115 Mo. 513; Walker v. Owen, 79 Mo. 563; Tatum v. Brooker, 51 Mo. 148; Young v. Montgomery, 28 Mo. 604; Dickerson v. Chrisman, 28 Mo. 134; Anderson v. Shockley, 82 Mo. 250.
   RAILEY, C.

On October 1, 1914, appellants commenced this action against defendant in the circuit court of Ralls County, under the provisions of Section 2535, Revised Statutes 1909, to quiet title to the 71.10 acres of land described in the petition and located in said county, which was formerly owned by Jennie E. Graves, who is the common source of title to said land. Plaintiffs are the children and only heirs at law of said Jennie E. Graves by her former marriage with one Jeff Mc-Cune, from whom she was afterwards divorced.

On or about the 11th day of December, 1889, after obtaining a divorce, said Jennie E. Graves married the defendant herein, and continued to live with him as his wife, from the time of said marriage to the date of her death, on or about the 9th day of June, 1914.

The defendant filed an equitable answer claiming title to the 71.10 acres of land aforesaid, under and by virtue of an oral agreement made with his wife in 1908.

The testimony concerning the matters in controversy will be considered in the opinion.

The trial court found the issues in favor of defendant, rendered its judgment accordingly, divested said plaintiffs of the legal title to the land in controvérsy and vested the same in defendant, etc. Plaintiffs filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.

I. Under appellants’ points and authorities, in proposition one, it is said: “To warrant specific performance of an oral contract to convey real estate, such as the contract in suit, the proof must leave no reasonable doubt that the contract was made.”

The following authorities are cited in support of above proposition: Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Berry v. Hartzell, 91 Mo. 132; Veth v. Gierth, 92 Mo. 97; Cherbonnier v. Cherbonnier, 108 Mo. 252; Fanning v. Doan, 139 Mo. 392; Kinney v. Murray, 170 Mo. 674; McKee v. Higbee, 180 Mo. 263; Russell v. Sharp, 192 Mo. 270; Kirk v. Middlebrook, 201 Mo. 245; Wales v. Holden, 209 Mo. 552; Collins v. Harrell, 219 Mo. 279; Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo. 119; Hersman v. Hersman, 253 Mo. 175; Wanger v. Marr, 257 Mo. 482. We have no fault to find with the legal principle announced in the above quotation, when applied to proper facts, nor with the authorities cited in support of same.

Keeping in mind the law as above stated, we now proceed to a consideration of the facts as disclosed by the evidence. In passing, it is well to observe that plaintiffs introduced no evidence relating to the merits of the controversy, aside from that showing their relationship to Mrs. Graves, her former marriage, divorce from McCune, marriage to defendant in 1888 or 1889, and the death of Mrs. Graves on or about June 9, 1914.

Mrs. Emma E. Bell, sister of defendant, testified, in substance, that in February, 1909, Mrs. Graves told her that defendant bought the 80 acres of Krafts in August, 3908, and that she and defendant had made an agreement to the effect that if he would have the deed made to themselves as tenants by the entirety, she would execute a deed conveying the land in controversy in the same way. She talked with witness about acting as a conduit, in order to transfer the title from herself to themselves as tenants by the entirety. Witness testified that Mrs. Graves told her that defendant had bought the 80 acres of Kraft land that joined her 71.10 acres.

Roy Boyd testified that when the building was being constructed on the above land of Mrs. Graves, and while he was working there, she told Mr. Cole how she came to have the improvements put on her land. She said she had made a proposition to Dr. Graves to the effect that, if he would make a deed to the 80 acres he had bought of the Kraft land, “so that she would get the land at his death, if it occurred first, why she would make a deed to her 72, whatever it is, to him, so that he would get it if she died first. She stated that she had made that agreement with Dr. Graves when he bought the Kraft eighty.”

Thornton M. Cole testified that in October, 1908, while defendant and his wife were selecting a site for their house and improvements, defendant wanted to put them on the 80 acres west of the land in controversy, but a tenant or occupant of part of the 80 acres objected to having his shanty or building torn down, at the place where defendant wanted to build. Witness said Mrs. Graves asked defendant to build on her land. Tie (defendant) remarked that he had no deed to it; that she had not made him a deed to it. In reply, she said she would make a deed to it if he would put the improvements on her land. He finally consented to do it. A few days afterwards,, witness said, Mrs. Graves re-, marked, that the 80 acres and 72 acres would make a nice farm. She said she was going to have her deed made to her and Dr. Graves, and that he had made his deed to him and her. Witness said that while he and Boyd were at work on the house, Mrs. Graves brought them some nails, and while there, Boyd said, if he had been in Dr. Graves’s place, he didn’t think he would have put the house on the land of somebody else. She then remarked, that defendant had his deed made to himself and wife, and that if he died first she would get his land; that if she died first, defendant would get her land. She said she was going to change her deed.

Thomas L. Clark testified, in substance, that about the time defendant bought the Kraft 80 acres, while they were talking about it and the 72 acres, Mrs. Graves said to him that “Dr. Graves and me, when we bought that Kraft eighty, agreed that if he would make the deed to us both I would deed the 72 acres to him and me.” She said: “I want to deed it to you and I am going to deed it to Dr. Graves.” Witness said she wanted to deed it to him and have him deed it back to defendant and his wife. This witness further testified that all of the improvements put on the land after Dr. Graves bought the 80, were on the 72 acres. There was a well on the 80 acres. On cross-examination, witness testified: “She told me at that time that Dr. Graves had had his deed to the Kraft land made to him and her, and that she wanted to have her land so conveyed as to make it to him and her.” This conversation occurred in the fall of 1908. She remarked, he says, “that we agreed to do that. ’ ’

George W. Briggs testified, in. substance, that in the fall of 1908, or early part of 1909, Mrs. Graves told him they had agreed to put up the house on her land and that she was going to make a deed like that made’to the Kraft land, so that the survivor would take the land. On cross-examination, witness said Mrs. Graves told him that defendant had the Kraft land conveyed to him and her and she wanted her land placed the same way.

We are satisfied, beyond a reasonable doubt, from the foregoing, and other facts connected with the case, that, during the year 1908, defendant was negotiating with the Kraft heirs for the purchase of the west half of the northwest quarter of section 10, township 54, range 6, west, in Ralls County, Missouri, which tract lies immediately west of the 71.10 acres owned by his wife; that Avhile defendant Avas negotiating for said 80 acres, during the year 1908, he and his wife entered into an oral agreement and contract concerning said 71.10 acres owned by his wife, and the 80 acres aforesaid, Avhich said contract and agreement Avas in substapce as follows: Defendant’s wife promised and agreed with him, that if he would purchase the 80 acres above described lying immediately west of her land, and have the same conveyed to them as tenants by the entirety, she would, by proper conveyance, vest the title to the 71.10 -acres in controversy in defendant and herself as tenants by the entirety; that pursuant to said agreement, and to comply therewith, defendant, on August 22, 1908, purchased from S. J. Kraft, Dan Kraft, Sol Kraft and Annie O. Jackson — -who were the owners — said 80 acres above described; that he paid them the purchase price for said land and directed them to execute a proper deed therefor to himself and wife as tenants by the entirety; that on said date, they attempted to execute and deliver to defendant, and wife, a proper deed to the above-described 80 acres, as tenants by the entirety, but through mistake or oversight conveyed land which they did not sell to defendant, and fáiled to convey the 80 acres aforesaid, which they intended and attempted to convey; that the incorrect deed afqresaid, was duly recorded in Book 80 at .page 318 of the Recorder’s office of Ralls County, Missouri; that said defendant and wife accepted said deed, believing it correctly described the 80 acres heretofore mentioned, which they had bought and paid for, lying immediately west of the 71.10 acres; that by reason of the foregoing transactions, the defendant and his wife became, as tenants by the entirety, the equitable owners of the 80 acres lying immediately west of the 71.10 acres in controversy; that the mistake aforesaid was not discovered until some time after the institution of this suit; that in recognition of the mistake aforesaid, the above named grantors, S. J. Kraft et al., on May 17, 1915, executed and delivered to' defendant, a deed of correction, in which they referred to the mistake aforesaid; that in said deed of- correction they properly described the west half of the northwest quarter of section 10, township 54, range 6, west, which they had sold and attempted to convey to defendant and wife as aforesaid.

It appears from the testimony that defendant paid $3000 for the 80 acres of land bought from the Kraft heirs; that he paid over $1500 for the house and other improvements which he put upon the land in controversy; that said $3000 and the $1500 aforesaid were paid by defendant under and pursuant to the agreement and contract with his wife heretofore mentioned. It further appears, from the evidence that after the first deed was made by the Kraft heirs to defendant and wife, as tenants by the entirety, they took possession of said 151 acres, and jointly used the same as their home, until the death of Mrs. Graves. The record shows that Mrs. Graves owned 160 acres of other land adjacent to that bought from the Krafts.

We find from the evidence that defendant and wife made the oral agreement and contract aforesaid, and that the same was based upon a valuable consideration; that the title to said 151 acres of land was to be placed in the names of defendant and wife as tenants by the entirety. Unless the mistake in the deed from the Kraft heirs to defendant and wife, executed in 1908, or the deed from said heirs to defendant, made since the institution of this suit, precludes a recovery in an action of this character, the decree of the trial court should be affirmed-.

II. Having found that defendant and wife made the oral contract and agreement heretofore mentioned, and that the same was based upon a valuable consideration, we will consider the legal effect of said contract, respect to the 80 acres lying immediately west of Mrs. Graves’s land and the 71.10 acres in controversy.

Defendant bought the above 80 acres from the Kraft heirs and paid them therefor, although the deed made, through mistake, failed to describe the land thus bought. Defendant and wife, by virtue of said contract and the Kraft deed, made in 1908, because the equitable owners of said 80 acres, as tenants by the entirety. [Rhodes v. Outcalt, 48 Mo. 367; 10 R. C. L., sec. 133, page 383-4, and cases cited.] Under and pursuant to the - contract aforesaid, between defendant and his wife, they became the equitable owners, as tenants by the entirety, of the 71.10 acres in controversy, during the lifetime of Mrs. Graves, although ^the legal title to said land was in her. From the foregoing, it follows, that defendant and his wife, while the latter was alive, became the equitable owners, under said contract, as tenants by the entirety, of the entire 151.10 acres. After her death, he became the sole equitable owner of said 151.10 acres, as surviving tenant by the entirety. Having received from the Krafts the deed of correction as to the 80 acres supra, it made him the legal and absolute owner of same. It follows, that as against these plaintiffs, who are not innocent purchasers for value, the defendant, as surviving tenant by the entirety, is entitled to á decree vesting in him the legal title to the 71.10 acres in controversy, and declaring him to be the absolute owner thereof. ■

III. It is contended by appellants that if Mrs. Graves were alive and defendant was seeking a decree for specific performance against her as to the 71.10 acres, the court would deny him a decree until lie had perfected the title to the Kraft land. We are not confronted with any such issue, but the ease notv stands with the Kraft title perfected and defendant seeking to enforce the oral agreement aforesaid against these plaintiffs, who are the successors in title to Mrs. Graves. They occupy no better position here than she would if alive and was resisting this action for specific performance.

IV. It is further insisted by appellants that if Mrs. Graves had caused the title to the 71.10 acres to be transferred to herself and defendant, as tenants by the ■ entirety, without the title to the Kraft land havhig been perfected, and defendant had then died, she would have been compelled to take chances on proving the oral agreement aforesaid, in order to perfect the Kraft title. Suffice it to say that no such issue is in the case, but even if it were, such contention of counsel is untenable, as Mrs. Graves, under the circumstances named,.upon the death of her husband, would have been tbe surviving tenant by the entirety, mentioned in the Kraft deed of 1908. Without any reference to the oral agreement aforesaid, she would have been entitled to have the Kraft title perfected by simply showing a mistake in the description of the land in the former deed. We see no necessity, however, for speculating in respect to this subject, as the Kraft heirs recognized their mistake and promptly executed a deed of correction when called upon to do so.

V. The undisputed evidence shows that defendant paid the Krafts $3000 for the 80 acres lying immediately west of the 71.10 acres in controversy; that he paid more than $1500 for valuable improvements upon his wife’s 71.10 acres. There is no evidence in ^ie rec0I‘d tending to show that Mrs. Graves was ever dissatisfied with anything the defendant did, with reference to the 151 acres. On the contrary, it is clear that she intended at some future time to have the title to the land in controversy placed in the names of herself and husband, as tenants by the entirety, but, like many others, procrastinated until overtaken by death. She owned 160 acres of land close to that in suit, and after stating to witness Briggs-that she wanted the title to her 71.10 acres placed in the names of defendant and herself, she said “it would .leave eighty for each of the children and seventy for Dr. Graves. ’ ’

There is nothing in the record to indicate that Mrs. Graves ever intended to repudiate the agreement which, she made with defendant.

VI. The circuit judge, as chancellor, tried this case with marked ability and fairness. The conclusion which he reached, in regard to the facts, is strongly supported by the testimony, and meets witla our approval.

The judgment below was for the right party and is accordingly affirmed.

Brown, C., concurs.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur; Bond, P. J., in paragraph sis and result.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    WILLIAM F. SCHERER v. HARRIET BRYANT and JOHN BRYANT, Appellants.
    Division One,
    March 4, 1918.
    -1. NEGLIGENCE: Foreseen Injury. An act is negligent when in the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence; it is not necessary to constitute the act negligent that the particular injury must have been such as could have been foreseen.
    2. -: -: Question for Jury. Where the evidence is not such that all reasonable minds would agree that no negligence was shown, the question of whether a reasonable man ought to have foreseen the injury to an employee engaged in banding an armature with wire, upon the sudden starting of the engine and a failure to stop upon signal, as promised, is for the jury.
    3. -: Contributory Negligence: Anticipating Injury: Question for Jury. The question of contributory negligence is ordinarily one for the jury; and whether the employee, engaged in feeding a wire coiled about his arm into a clamp, by which it was held taut as it was wound on to an armature, revolved by an engine, was negligent in not grasping in time to save himself the fact that his call for the engine to be stopped would or could not be heeded, as had been promised by the engineers and not done, is a question for the jury.
    4.--: -: Sudden Danger: Confusion: Question for Jury. Whether the sudden application of power to the engine, contrary to the promise of the engineer, was sufficient to arouse inconsiderate action on the part of an employee who was feeding a wire coiled about his arm into the clamp of a machine operated by the engine, and whether apprehensions that. if he dropped the wire it would in its whirling motions injure another person standing near the clamp, and whether or not he was justified by such aroused perturbations and apprehensions in holding onto the wire until it was too late to disengage it from his arm before his fingers were drawn into the machine, and thereby relieved of the charge of contributory negligence in holding on to the wire after the danger became apparent, were questions for the jury.
    5. -: Change of Masters: Wrong Defendant: Respondeat Superior. An electrical company had been engaged to repair machinery used to generate electricity for defendants’ building, and sent plaintiff and its foreman to do the electrical work, which was to band with wire an armature fixed upon an extension of a draft-wheel shaft of an engine. The wire was attached to the armature and it was essential that it be drawn very tight, and hence it was passed through a clamp fixed near by to give the necessary tension. Plaintiff’s duty was to keep the wire straight and feed it into the clamp. The engineers promised that they could and would revolve the armature slowly and stop it upon signal, but did neither, but suddenly applied the power and revolved it rapidly, and plaintiff’s fingers were drawn against the clamp and severed. It was necessary to operate the engine in banding the armature, and the engine belonged to defendants and they furnished the engineers, who were in their general employment, and instructed them to operate the engine as they were directed by the electrical company’s employees. Held, that these facts fail to establish conclusively that the engineers had changed masters, and the question of whether the defendants were liable for the engineers’ ^negligence was one for the jury.
    Appeal from Jackson Circuit Court. — Hon. William O. Thomas, Judge.
    Affirmed and remanded.

      Harding, Murphy & Harris for appellants.
    (1) There was no evidence that the engineers were negligent. Therefore the trial court was right when it directed a verdict for the defendant, and was wrong when it sustained the motion for new trial. Breweries Co. v. Talbot, 141 Mo. 674; Weesen v. Railway, 175 Mo. App. 374; Fink v. Railroad, 161 Mo. App. 314; Cogan v. Railroad, 101 Mo. App. 179; Press v. Penny, 424 Mo. 98; Dean v. Railroad, 199 Mo. 386. (2) Although the general servants of defendant Bryant, the engineers were at the time of the accident the servants of the R. W. Hodge Electric Company, and were therefore, plaintiff’s fellow servants, and therefore the demurrer to plaintiff’s evidence was properly sustained and the trial court erred in sustaining plaintiff’s motion for new trial. Garvin v. Railway, 100 Mo. App. 617; Healv v. Range Co., 161 Mo. App: 483; Rourke v. Collier Co., 2 C. P. Div. (L. R.) 205; Dunavan' v. Laing W. & D. Const. Co., 1, Q. B. Div. 629; Hillsdorf v. St. Louis, 45 Mo. 94; Smith v. Railway, 85 Mo. 418; Breslin v. Sparks, 89 N. Y. Supp. 627; Cunningham v. Imp. Co., 46 N. Y. S. 954; Railway v. Manning, 146 S. W. 227; Oil Co. v. Anderson, 212 U. S. 218; Wolf v. Safe Co., 124 N. Y. S. 541; Worth v. Signal Co., 121 N. Y. S. 66; Brady v. Railway, 114 Fed. 100; The Elton, 142 Fed. 367; Parsons on Contracts, p. 114; 2 Cooley on Torts, p. 1007; Atwood v. Railway, 72 Fed. 455; Kane v. Const. Co., 202 Mass. 237; Higgins v. Tel. Co.,156 N. Y. 75; Powell v. Const. Co., 88 Tenn. 692; Byrné v. Railway, 61 Fed. 605. (3) The plaintiff was guilty of contributory negligence as a matter of law, and therefore the court’s action in directing a verdict for the defendant at,the.close of plaintiff’s testimony was right, and therefore in sustaining the motion for new trial court was wrong. Collett v. Kuhlman, 243 Mo.' 585; Hecker v. Railway, 110 Mo. App. 162; Schiller v. Breweries Co., 156 Mo. App. 569.

      James H. Harmless, Samuel M. Carmean and Charles L. Dort for respondent.
    (1) The weight and sufficiency of the evidence on the question of contributory negligence are for the jury. State v. Chick, 146 Mo. 645; Railey v. Railway, 133 Mo. Appv473; Peek v. Traction Co., 131 Mo. App. 134: The inferences to be deduced from the facts in' evidence are for the jury. Chouquette v. B arada, 28 Mo. 491; Primm v. Harén, 27 Mo. 205; Hutchinson v. Gate Co., 247 Mo. 71. The proximate cause of the injury was the negligent manner in which the engine was started and operated, and the failure of the .engineers to perform the duties they had assumed, to run in the manner agreed and to stop at once upon signal. There is no evidence that plaintiff was guilty of. any act which directly contributed to his injury. Contributory negligence is a matter of defence. If there could be but one inference drawn from the evidence, (he case might be for the court, but the case is for the jury where the facts admit of different'constructions or inferences. Powers v. Transit Co., 202 Mo. 267; Berry v. Railroad, 124 Mo. 223. Where men of reasonable minds might draw different conclusions from the evidence the case is for the jury. Baird v. Railway, 146 Mo. 265; Huth v. Dohl, 76 Mo. App. 676; Young v. Stevens, 66 Mo. App. 222; Yoegeli v. Marble Co., 56 Mo. App. 485. A mixed question of law and fact is for the jury. Marshall v. Schrecker, 63 Mo. 308; O’Reilly v. Miller, 52 Mo. 210.. When facts proved without dispute require the exercise of reason and judgment, so that one reasonable mind may infer that a. controlling fact exists and another that it does not exist, there is a question of fact. Tousey v. Hastings, 194 N.Y. 79; Ilirsch v. Jones, 191 N. Y. 195; In re Totten, 179 N. Y. 112. Where a person is injured as the result of an act done by him under an impulse or on a belief created by a sudden danger, he is not regarded as guilty, of contributory negligence, even though the act would be regarded as a negligent one if performed under circumstances not indicating sudden peril. 26 Cyc. 1274; Wilson v. United Rys., 181 S. W. (Mo.) 19. Nor is a servant chargeable with contributory negligence in adopting a method of work which is usual and customary. O’Mellin v. Elec. Ry. Co., 115 Mo. 205. (2) Under the evidence in the case there is a question for the jury as to whose servants the engineers were. Whether or not it was not contemplated by appellant to furnish the engineers ? WTiether or not it was necessary co-operation? Whether or not such co-operation expedited the work and 'benefited appellant? Plaintiff, is entitled to every reasonable inference before a case can be taken from the jury. 38 Cyc. 1516 (55); Hallett v. Brewing Co., 129 App. Div. (N. Y.) 617; Chouquette v. Barada, 28 Mo. 491; Primm v. Harren, 27 Mo. 205. The questions of intent and control of servants in this case involve an issue determining the mental attitude of appellant and are questions of the jury. Cox v. Knight, 49 Ala. 173; Bank v. Brewster, 30 Conn. 559; Murphy v. Murphy, 95 Iowa, 271; Teague v, Maddox, 150 U. S. 128; Rucker v. Bolles, 80 Fed. 504. Whether an act was done under particular orders is a question for the jury. Brakebill v. Leonard, 40 Ga. 60. That the furnishing of power may have been gratuitous has no bearing to change the relationship of the parties. The Lisnecrieve, 87 Fed. 571.
   BLAIR, J.

This is an appeal from an order granting a new trial after a directed verdict in an action respondent brought for damages for injuries received while aiding in banding an armature owned by appellants. Respondent was experienced in work of this kind. His employer, the R. W. Hodge Electrical Company, was repairing machinery used to generate electrical current for appellants’ building. /The armature was fixed upon an extension of the drive-wheel shaft of an engine in the same room. Appellants’ regular engineers operated the engine when necessary to operate it in the progress of the repairs.

It is contended (1) there'is no evidence of negligence; (2) respondent was guilty of contributory negligence; and (3) appellants are not liable for the negligence, if any, of the engineers.

I. In banding the armature it was essential that the wire be drawn very tight. It was first attached to the armature and then passed through a clamp fixed near by and designed to give the necessary tension. Respondent’s duty was to. “guide” the wire. This was necessary. He took the ten or twelve-pound loop or coil of wire and unwound ten or twelve feet of it, letting this loose wire lie upon the floor. He then stepped back thirty or thirty-five feet from the clamp and placed the coil upon his arms. In this situation the operation of the engine would cause the armature to revolve, the wire to be wrapped about it and the wire to be drawn through the clamp. As soon as the slack wire was drawn through the clamp the wire would commence to be drawn from the coil upon respondent’s arm, and he could, if the movement were sufficiently slow, “guide” the wire, permitting it to unwind from the coil and keeping it straight and untangled as it passed through the clamp. On a previous occasion the engineers had shown they could so operate the engine as to revolve the armature a few inches and then stop it immediately. Respondent saw this done. When the banding of the armature was about to begin they were asked if they could so operate it as “just to turn it over.” They said they could, and that they would; that they would run it as slowly as they could. They also said they could stop it immediately on signal and would do so. With respondent in the position mentioned, the signal to start the engine was given by respondent or his foreman. It was started suddenly and the armature commenced to revolve somewhat rapidly,'taking up thirteen or fourteen feet of wire at each revolution. Respondent almost at once called to the engineers to stop the engine. This was not done until the armature had made several revolutions. Respondent, as the wire was drawn rapidly through the clamp, having called for the stop, approached the clamp, the coil of wire still upon his arms. It is a fair inference he could not unroll the wire as rapidly as it was being drawn through the clamp. When within a few feet of the clamp respondent perceived the stop was not going to be made and endeavored to disengage his hands from the' coil. He was unable to do so in time, and his hands.were drawn against the clamp and his fingers severed by the wire drawing them against the clamp and cutting through them. The sudden starting of the engine was due to the fact that when the start was made, the engine happened to be “on center” and considerably more than the usual power was necessary to put it in motion. Respondent was not aware of this. The engineers were. The failure to stop more quickly was due to the speed at which the engine was started and the shutting off of the steam so that the engine could not be reversed. This is the tendency of the evidence, viewed from respondent’s standpoint.

' It is true, except in cases of wanton wrong, there is no negligence if no reasonable man could have foreseen any injury from the act done. But it is not true .that the particular injury must have been such it could have been foreseen. An act is negligent when an the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence. This being shown, liability attaches “for anything which, after the injury is complete, appears to have been a natural and probable consequence.” [Benton v. St. Louis, 248 Mo. l. c. 110, and cases cited.]

Whether a reasonable man ought to have foreseen injury to respondent upon a sudden starting of the engine and a failure to stop on signal, as promised, was a question for the jury in this case. That respondent would be drawn into the clamp unless he rid himself of the heavy coil of wire in time was a certainty. Whether, in view of the promise to stop, he would rely upon that promise too long, as he did, or would see his danger in time, as he did not, and, being rapidly drawn toward the clamp, would be injured by it is, in our opinion, not to be settled as a matter of law on this record. It is clear the fact the engine happened to be on “center” when the start was made does not excuse a start more sudden, a speed more swift and a stop less prompt than was promised. If a particular condition made necessary a variation from the directions given and agreed to be followed, respondent or his foreman should have been advised of it otherwise than by suddenly starting the engine at rapid speed.

The evidence cannot be said to be such that all reasonable minds would agree no negligence is shown.

II. Appellants cite decisions holding that when a plaintiff’s contributory negligence conclusively appears from his own evidence, he must fail. The rule is well established. This case is not of that class. The question of contributory negligence is ordinaril7 t°r the jury. Whether respondent was negligent in not grasping in time to save himself the fact that his call for the engine to be stopped would or could not be heeded, the promise to stop having been given him, is clearly a question for the jury. The sudden application of the power and the swift winding of the wire coiled about respondent’s arms also justify a finding of a condition of sudden danger tending to excuse inconsiderate action on respondent’s part. What apprehensions justly were aroused as to the result of dropping a heavy coil of strong wire, to be whirled toward the clamp at or near which Krebs was standing, a jury can best decide. The question of contributory negligence was one of fact.

III. The final contention is that though the engineers were in the general employ of appellants, yet at the time of the injury and in respect of the act causing it they were the servants of the R. W. Hodge Company. If it be true that in doing the act complained tof the engineers were not acting as appellants’ servants, respondent has no- cause of action. This contention presents the question whether there was any substantial evidence tending to show that in starting the engine the engineers acted as appellants’ servants. In a much cited case (Rourke v. Moss Colliery Co., 2 C. P. Div. (L. R.) l. c. 209) .it was said: “But when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.” It is this principle appellants invoke.

The evidence tends to show that the Hodge Company, acting upon an order to repair the generator, sent respondent and Krebs, his foreman, to do the electrical work; that company furnished its employees to do the electrical work, but furnished no one to run the steam engines and “had nothing to do with that;” that it was necessary to operate the engine in handing an armature like that mentioned in this case; that the engineers were in the general employ of appellants, their general duties being to operate the engines in the building, including the engine to which the armature was attached; that appellants’ agent in charge of the building instructed the engineers to operate the engine, in case the employees of the Hodge Company requested them to do so, and to operate them as such employees directed; that the engineers were instructed by appellants’ agent to operate the engines as they would or might he directed; that they were on that day in the employ of appellants-and paid by them.

It is undisputed the engineers were in the general service of appellants; that they hired them, paid them and could discharge them. It is apparent the evidence would support a finding that the Hodge Company had no power to discharge the engineers from appellants’ general employment, nor yet to substitute for them other persons to run the engine in banding the armature; that the details of the operation of the engine were to be left to the engineers, and that the directions the employees of the Hodge Company were authorized to give were only as to the time when the engines were to be run and not as to the manner or method of running them; that the Hodge Company was employed merely to do the electrical work and that in directing the use of its engines to revolve the armature, if appropriate to the work of banding it, appellants were furnishing needed power which might have been otherwise furnished at greater expense; that the operation of the engines was as much in the interest of appellants as of the Hodge Company.

It is said the principal test of the relationship of master and servant is control. In a case like this it is necessary carefully to “distinguish between authoritative direction and control and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.” [Standard Oil Co. v. Anderson, 212 U. S. l. c. 222.] In the same case it is pointed 'out that one is not lifted out of his general employment and set down in the service of another by the mere fact that such other is authorized by the general master to indicate the work to be done or to furnish information or give signals calling the servant into activity. In Hurlbut v. Wabash Ry. Co., 130 Mo. 657, the holding is of like effect. In this "case, ' as in Coggin v. Railroad, 62 Ga. l. c. 692, there is no evidence that any one other than the engineer “interfered or had a right to interfere with the application of steam, or with manipulating the engine. These were for the engineer as an expert — as a craftsman skilled in his business. Certainly, to say the most, the connection of the two was not closer than that of pilot . . . and engineer . . .; and if so, the actual handling of the engine was exclusively for the engineer. ’ ’

The .evidence fails to establish conclusively that the engineers had changed masters. The question is usually one for the jury and is so in this case. The eases cited announce no rule which would warrant the taking of this question away from the jury.

The order is affirmed and the cause remanded.

All concur except Bond, P. Jabsent.


author: BROWN, C.

text:
    BESSIE MILLER v. CLARK W. HARPSTER, Appellant.
    Division One,
    March 4, 1918.
    1. NEGLIGENCE: Automobile Accident: Excessive Verdict: Fourteen Thousand Dollars. A verdict for fourteen thousand dollars for a young woman who was run over by an automobile, as she was standing at the edge of the macadamized part of a public road, the thigh bone being shattered for six inches into several pieces, one of which protruded through the flesh and skin, the leg being thereby shortened from three to three and a half inches ten months afterwards, compelling her to walk on crutches, was not excessive.
    2. -: -: -: Physicial Pain and Mental Anguish. Distressing physical pain and mental anguish arising from a lifetime of deformity are for the consideration of the jury, who, in making up their verdict in a personal injury case, .are authorized to resolve them into terms of pecuniary compensation.
    3. -: Malicious Injury. The plaintiff, having alleged that defend- and “carelessly, negligently, recklessly and wantonly ran his automobile along said public road and against and upon plaintiff,” did not destroy her action of negligence thus sufficiently alleged, by further stating that “all of said injuries were wilfully and maliciously given by defendant to plaintiff at said time;” and the petition containing but one cause of action, founded upon a single injury, and no exemplary damages being asked, if any reason existed why defendant was entitled to have the petition so reformed as to compel her to elect between a negligent injury and a malicious injury, he waived that right by voluntarily entering upon the trial without asking for such reformation or election.
    4. -:--: Instruction: Mutual Request. Where the court, at plaintiff’s instance, and in harmony with the petition, and without objection from defendant, instructed the jury that if they found from the evidence that the defendant “wilfully and maliciously” ran his automobile upon and over plaintiff they should find for her, and the defendant joined issue with her in an instruction of His own submitting the same issue of wilfulness and malice in a negative form, he cannot on appeal be heard to complain that the trial court erred in submitting the question of whether the defendant wilfully and maliciously ran his automobile upon and over plaintiff.
    5. -: -: Demurrer to Evidence. Where the petition stated a good cause of action both on the theory of negligent injury and malicious injury,-and the evidence was sufficient to sustain the negligent charge, a demurrer to the evidence at the close of the plaintiff’s case and again offered at the close of the whole case, should be refused, where defendant made no effort to compel an election between the two causes of action and, by instruction asked at the close of the case, submitted the issue of malice.
    Appeal from Buchanan Circuit Court. — Eon. Charles E. Mayer, Judge.
    Affirmed.

      A. Bowers for appellant.
    (1) The court erred in submitting this case to the jury upon the question whether the appellant committed the acts complained of willfully and maliciously. There is no evidence that the appellant willfully ran over the respondent. There is no evidence of malice. This case is bottomed on express malice.- And before a,recovery can be had there must be some proof of actual malice, or such recklessness or carelessness on the part of. the appellant, as is equivalent to an actual intent to injure the respondent. Minter v. Bradstreet, 174 Mo. 444: 18 Am. & Eng. Ency. Law (2 Ed.), p. 1093. (2) The verdict is wholly unsupported by any evidence. There is no evidence of malice. At most there could only be negligence charged against appellant. Malice is distinguished from negligence in that it arises from an evil purpose, while negligence arises from a failure of purpose. People v. Camp, 21 N. Y. Supp. 741. Malice is the disposition to injure another without cause, from a spirit of revenge, merely, or from personal gratification. King v. Root, 4 Wend. (N. Y.) 113-155, 21 Am. Dec. 102. Malice in common acceptance means ill will towards some person. In its legal sense it is defined to be a wrongful act done intentionally, without legal justification or excuse. Buckley v. Knapp, 48 Mo. 152. (3) There is no evidence that the appellant willfully and maliciously injured respondent. Juries must base their findings on substantial legal evidence, direct or inferential, and cannot base them on mere conjecture. McCarthy v. Pagin, 42 Mo. App. 606. Presumptions as to facts or events arising from the absence of all evidence cannot be rationally indulged, when the reason on which they are founded has been made to cease by the introduction of evidence throwing light on the occurrences and explanatory of their causes. Sackberger v. Grand Lodge, 73 Mo. App. 38; Lee v. Knapp, 55 Mo. App. 390; Sehepors v. Railroad, 126 Mo. 665. (4) In the absence of evidence that appellant willfully and maliciously injured the respondent it cannot be presumed that appellant willfully and maliciously injured respondent. All the presumptions are that appellant did not willfully and maliciously injure the respondent, until the question is put at issue as in this case, when there is no presumption either way. The issue is a question of fact, which is to be determined by the preponderance of evidence. Liese v. Meyer, 143 Mo. 547. (5) The verdict and judgment is excessive.

      Mytton & Parkinson for respondent.
    This case was by agreement of the parties submitted to the jury upon the theory of wilfulness and maliciousness on the part of the appellant, and there was evidence to support respondent’s theory of the case; that is, that the act was done wilfully and maliciousfy. 40 Cyc. 938; Holwerson v. Railroad, 157 Mo. 232; Railroad v. Wheeler, 115 Ind. 253, 17 N. E. 563; Pa. Co. v. St. Clair, 62' Ind. 301, 30 Am. Rep. 185; Palmer v. Railroad, 112 Ind. 250 ;• State v. Robbins, 66 Me. 324; State v. Wienners, 66 Mo. 18; Trauerman v. Lippincott, 39 Mo. App. 478; Groetz v. Ambs, 27 Mo. 28; Ickenroth v. Transit Co., 102 Mo. 612; McNamara v. Transit Co., 182 Mo. 676; Davis v. Railroad, 192 Mo. App. 492; Sommers v. Keller, 153 Mo. App. 626; In re Freehe, 109 Fed. 620 ; United States v. Reed, 86 Fed. 308; In re Munro, 95 Fed. 17; Tinker v. Caldwell, 193 U. S. 484.
   BROWN, C.

This is a suit for personal injuries received by respondent from being struck by an automobile on the public highway. The amended petition upon which the cause was tried states the time and circumstances of the occurrence as follows:

“Comes now the plaintiff in the above entitled cause and for her second amended petition and cause of action states that on the evening of August 1, 1914, about eight o’clock p. m., she was walking along what is commonly known as the Rochester Road in Buchanan County, Missouri, said road being then and there a public highway and throughfare in said county and State; that while so walking along said road and while in the exercise of ordinary care on her part, the agents, servants and'employees of the defendants in charge of and driving an automobile and motor car owned by the defendants, carelessly, negligently, recklessly and wantonly and without any regard whatever for the safety of the plaintiff or other pedestrians using said thoroughfare at said time, willfully and maliciously drove said automobile on, along and over said Rochester Road heretofore mentioned, and against, upon and over the plaintiff, knocking her down, dragging her along said public road and thoroughfare, and inflicting the injuries hereinafter complained of; that said automobile was equipped with a horn or other safety sounding alarm device, and that said agent, servant and employee of the defendants carelessly, negligently, recklessly and wantonly ran said ear as aforesaid along said public road and against and upon the plaintiff without sounding said horn or other alarm, or giving to the plaintiff any notice or warning whatsoever of the approach of said automobile, and at a dangerous and reckless rate of speed, to-wit, at the rate of thirty miles per hour; . . . that defendants carelessly and negligently, recklessly ánd wantonly,' and without any regard to the safety of plaintiff or other pedestrians using said road, failed to stop said automobile when they saw plaintiff’s danger, or, in the exercise of reasonable care and caution upon their part, could have seen plaintiff’s danger; that defendants carelessly and negligently, recklessly and wantonly-failed to. give any signal or warning of the approach of said automobile;-that all of said injuries above mentioned were willfully and maliciously given by defendants, their agents, servants and employees operating said automobile, to plaintiff at said time.”

The petition then set forth, truthfully and in detail, the nature and extent of the injuries inflicted upon the plaintiff, and laid her damages at the sum of twenty thousand dollars, for which she asked judgment.

Another defendant was originally joined with the appellant, as to whom the respondent suffered a non-suit during the trial. This accounts for the use of the plural number used in referring to “defendants” in the petition.

No objection was made by demurrer or otherwise to the form or substance of the petition before the trial.

The verdict was for $14,000, upon which judgment was entered.

The answer, in addition to a general denial, contained a special plea of contributory negligence, to which a reply was filed.

There is no question as to the character or extent of the injury. The bone of respondent’s thigh was shattered from a point just above the knee for about six inches, so that there were several pieces, one of which was driven through the flesh and skin above the fracture, and from which it protruded when she was picked up. At the time of the trial, which occurred nearly ten months .afterward, she was walking on crutches and the leg was shortened from three to three and á half inches. She received various other bruises more or less severe, particularly in her side and shoulder. While her general health wag still affected at the time of the trial, her full recovery in that respect was probable. The deformity of her leg was, of course, permanent.

The accident occurred upon a public highway extending northeasterly from St. Joseph, and at a point about a quarter of a mile outside the.city limits, where the road was graded to a width of. about thirty-five feet, in the middle of which was a macadamized space of sixteen feet.

At about 5 :30 or 6 o’clock a .party of five had gathered at a saloon at Sixth and Messanie streets, in St. Joseph, for a fishing expedition. At that place they put two cases of beer in the Ford car in which they were going, and on their way through the city completed their piscatorial outfit with the addition of a quart bottle of whisky. At a point on the Rochester Road about two miles east of where the plaintiff was injured, their car “turned turtle,” injuring some of them so that a doctor was called to bandage them, and the appellant was also called to come to the place of the accident and take them to the city in his car. -The appellant, accompanied by a woman, went out, and taking them' all in except one who had accompanied the doctor, started for the city. It was during this homeward trip that the accident occurred. His condition was described by witnesses in different terms, varying from “under the influence of liquor” to “drunk.” He did not testify.' The respondent, who lived with her parents on the Rochester Road near the place of the accident, had, accompanied by her little brother and Ethel Kelsey, a girl cousin who resided in Oklahoma and was visiting the Miller family, taken the cows to the pasture a short distance away, and was returning when they met George Rowbotham, a boy friend, and stopped to talk with him. They were standing at the north side of the macadam, where it joined the dirt road, engaged in conversation, when appellant’s automobile came from the east over a perfectly straight stretch of road from two to three hundred yards in length, and ran upon the respondent. The car is described by some of the witnesses as covering the whole road, that is to say, wabbling from side to side of the road, and running very fast — from 35 to 40 miles per hour. A witness who met a car about that time at a distance which she described as two blocks east, of the place of the accident, related her own movements with her horse and buggy to escape it, and said, in substance, that it seemed to be running faster than a railroad train. Others, including the respondent’s father, who examined the ground at the time, stated that a trail, looking as if a heavy sack had been drawn along the road sixty feet by actual measurements, ended in a pool of blood where she was picked up, and that the appellant’s car was stopped at a point fifty feet still farther west. The theory of the appellant, which the testimony of some of his passengers tended to prove, was that the plaintiff, holding the child by the hand, was standing out of the way of the car, which was running very slowly, and suddenly jumped in front of it and was hit and knocked down. One of them said, in substance, that it looked as if she was intending to commit suicide.

At the close of all the testimony the appellant asked the court to instruct the jury that under the law and evidence their verdict should be in favor of the defendant. This was refused, and the court thereupon, at the request of respondent, instructed the jury as follows:

“The court instructs the jury that if you find and believe from the evidence that on the 1st day of August, 1914, the plaintiff, while in the exercise of ordinary care, was standing stationary upon thé Rochester Road at the point mentioned in evidence, and that while she was so standing upon said road in a stationary position, the defendant, Clark W. Harpster, wilfully and maliciously ran an automobile, going at a high rate of speed, and without giving any warning of any kind or character, against, upon and over the plaintiff, thereby injuring her', then your verdict will be for the plaintiff.”

This instruction was given without objection or exception on the part of the appellant. The court then gave for the appellant the following instruction:

“You are “instructed that unless you believe and find from the preponderance or greater weight of the evidence that the defendant wilfully and maliciously ran against and over plaintiff, thereby injuring her, then your verdict must be for the defendant.”'

He then again offered his instruction that under the law and the evidence the verdict should be for defendant, which was refused by the court and the appellant duly excepted.

I. The defendant makes the point that the verdict is excessive, and should not, on that account, have been permitted to stand. The immediate result of the injury naturally included physical pain of the most distressing character, and the mental anguish included, the mental distress arising from a lifetime of physical deformity. These things were' for the consideration of the jury, to be resolved into terms of pecuniary compensation. [Shortridge v. Scarritt Estate Co., 145 Mo. App. l. c. 305; Schmitz v. Railway Co., 119 Mo. 256; Rosenkranz v. Railway Co., 108 Mo. 9.] We can see nothing in the amount of this verdict inconsistent with an honest and intelligent effort to perform this duty with sole reference to the evidence before them.

II. The only real question in the case is stated by the appellant as follows: “This court erred in submitting this case to the jury upon the question whether the appellant committed the acts complained of wilfully and maliciously. There is no evidence that the appellant wilfully ran over the respondent. There is nq evidence of malice.” It arises out of the fact that the court, at plaintiff’s instance, and without objection from defendant, had instructed the jury, in substance, that if they should find from the evidence that the defendant wilfully and maliciously ran an automobile going at a high rate of speed and without any warning of any kind or character, against, upon and over the plaintiff, thereby injuring her, their verdict should be for the plaintiff, and the defendant had joined issue with her in an instruction of his own submitting the same issue of wilfulness and malice in a negative form. No other instructions were asked or given stating the principles by which the jury should be guided in arriving at their verdict.

The petition based the cause of action on the charge that the defendant “carelessly, negligently, recklessly and wantonly ran said car as aforesaid along said public road and against and upon the plaintiff without sounding said horn or other alarm, or giving to the plaintiff any notice or warning whatsoever of the approach of said automobile, and at a dangerous and reckless rate of speed, to-wit, at the rate of thirty miles per hour.”

As to the sufficiency of these words to state a cause of action for negligent injury no question is made, nor is the proposition open to question. But the petition further states “that all of said injuries above mentioned were wilfully and maliciously given by defendants . . to plaintiff at said time.” The appellant seems to consider this last statement as troubled oil poured upon the placid water of the charge of negligence, which, by the alchemy of legal technology, is at once transformed into a criminal charge so stable and elementary in its character that it cannot again be separated.

This striking and highly specialized theory is founded in the conception that the words “wilfully and maliciously” are equivalent to the word “intentionally,” that while there is but one cause of action stated — the alleged wrongful injury to the plaintiff — yet having alleged it as a wilful and malicious injury, the wrong of negligence is swallowed, if we are permitted so to speak, by those voracious words. The same principle carried to its logical conclusion would lead to the result that every action for negligent wrong could be defeated by a showing that there lurked inside the brain of the wrongdoer the secret intention to perpetuate the act. To avoid this the common law permitted the injured party to waive the intent, and rely upon the neglect. [Sherman & Redfield on Negligence, sec. la.] That this rule might apply to all cases, including those in which a crime against the State is involved, our own Legislature enacted (R. S. 1909, sec. 5447) that “in no case shall the right of action of any party injured by the commission of any felony or misdemeanor be deemed or adjudged to be merged in such felony or misdemean- or.”

This petition contains but one cause of action. It is founded upon a single injury. Precisely the same evidence must support it in either aspect in which we have considered it. No exemplary damage being asked, the same measure of damages applies alike under each theory. Had there existed any reason why the appellant might have profited by compelling the reformation of the petition or the election of the respondent to adopt one of the two rival theories before entering upon the trial, that reason was swept away in the developments of the trial itself, upon which the appellant voluntarily entered without asking such reformation or election, and he cannot now treat the course which he invited as error. [Christal v. Craig, 80 Mo. 367, and cases cited: State ex rel. v. Tittmann, 103 Mo. l. c. 569; Jordan v. Transit Co., 202 Mo. l. c. 428; Finnell v. Street Railway, 159 Mo. App. l. c. 525-6.]

III. Keeping the foregoing principles. in view, but little remains to be said. As we have already shown, the petition stated a good cause of action upon whichever horn of the dilemma presented by the appellant the evidence might be hung. This being the case the general instruction in the nature of a demurrer to the evidence offered by the appellant at the conclusion of the evidence was properly overruled, and the case then stood as if it had never been asked. The ruling of the court on that question having been correct, the exception then taken had no reference to anything that might subsequently occur in the cause. It was then that the court gave, at the instance of the respondent, the instruction upon which this appeal is predicated. It was stated in oral argument that it was given with the express concurrence of the appellant, but this is a matter of no consequence, for his silence amounted, in law, to such concurrence, and admitted, for the purposes of the case, that the pleadings and evidence, taken together, justified the submission of the issue that it formulated to the jury. In asking it the respondent assumed a burden which it was not necessary for her to bear under the pleadings and facts in evidence. But of that the appellant, having, in the argument, enjoyed the fruits of his own consent, cannot now complain.

It only remains to consider the effect of his subsequent renewal of the request that under the pleadings and evidence the verdict must be for the defendant, and his exception to its refusal. We do not see how this action of the court can authorize him to complain of the result of the trial of the issue of his choice. The pleadings and evidence remained the same as before the respondent’s instruction had been given. If they authorized the submission of the issues in any form, as we have already held they did, it was properly refused.

IY. That the appellant is not in a situation to complain of the submission of the issues of wilfulness and malice to the jury when it was plainly for his interest to do so, renders it unnecessary to examine the evidence with reference to its sufficiency in that respect. The question of its sufficiency to authorize a finding that the injury was negligently inflicted was, however, fairly raised by the demurrer to the evidence. The fact that it seems to have been practically abandoned in the presentation of the cause justifies us in disposing of it with the statement that a fair synopsis of it is shown in the statement which preceded this opinion, and that, in our opinion, it fully justified the verdict.

The judgment of the Buchanan Circuit Court is affirmed.

Railey, G., concurs.

PER CURIAM: — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur; Bond, P. J., in the result.


author: BOND, P. J.

text:
    HENRY H. MACOM et al., Appellants, v. ARTHUR F. BREWSTER.
    Division One,
    March 4, 1918.
    1. LOTS: Description According to Plat: Variance from Courses and Measurements. The ordinary rule as to the conclusiveness of courses, distances and monuments' is suspended by applying the doctrine of estoppel, by the recitals of his deed, to any person holding a conveyance wherein his land is described according to the lines and measurements set out in the public plat.
    2. -: -: -: Question of Pact: Rule on Appeal. Where the parties took their respective deeds from a commissioner in par- ’ tition, and the lots conveyed thereby were bounded according to the lines and measurements and designations as laid out in the public plat, and there is evidence tending to show that the application of the locations and measurements of the lots according to their descriptions in the public plat would leave the fifty feet of ground, and the house built thereon after the deeds were made, on defendant’s lot, a finding on the count in ejectment by the trial court, sitting as a jui’y, in accordance with that evidence, absent error, is not reviewable on appeal.

      Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge.
    Affirmed.

      Sheppard & Sheppard for appellants.
    (1) The court erred in refusing to permit appellants to prove that the city had passed an ordinance to pave Davidson Street, as this would have shown that this street had been recognized by the city where it is now located. Mayville v. Truex, 235 Mo. 619. (2) The court erred in permitting the plat made by Thornes to he introduced in 'evidence, for the reason that it was not shown to be correct, and was not a plat of the addition containing the lots and streets in dispute. (3) The court erred in finding for the defendant on the first count of the petition, for the reason that the finding was against all the evidence produced at the trial. The evidence clearly shows that this Davidson’s Addition was platted as an entirety; that there is an excess of land in the same and this excess should have been apportioned between the several owners so as to not disturb the lines of all the lots and streets in the addition. 9 C. J. (sec. 360) p. 295; Gloyd v. Franck, 248 Mo. 468; Crawford v. Ahrens, 103 Mo. 88; Williams v. St. Louis, 120 Mo. 403; Maysville v. Truex, 235 Mo. 619; Porter v. Gaines, 151 Mo. 560. (4) The court erred in finding that respondent was not in possession of any part of lot 32 at time of filing of suit.

      D. W. Hill and Sam M. Brewster for respondent.
    (1) The court passed upon a square issue of fact in a lawsuit and the result is final. Chilton v. Nickey, 261 Mo. 242; Jackson v. Miller,, 195 S. W. 703; Hatton v. St. Louis, 264 Mo. 634. (2) “The lines of the plat as actually located on the land, if known, would under our statutes control over monuments and other surveys.” Jackson v. Miller, 195 S. W. 703; Laddonia v. Day, 265 Mo. 397; Sec. 10294, R. S. 1909. (3) I. M. Davidson, as proprietor of “Davidson’s Addition,” caused to be made an- accurate map or plat thereof, in compliance with all of the requirements of law, and its calls must control. Sec. 10290, R. S. 1909; Laddonia v. Day, 265 Mo. 397. (4) The deed under which appellants claim conveys: “Lot 32 in Davidson’s Addition, as shown on page 11 of Plat Book in Recorder’s office,” etc. This binds and estops appellants from claiming other than as shown by said plat. Laddonia v. Day, 265 Mo. 397; Bast v. Mason, 165 Mo. App. 727; ■Jeffords v. Dreisbach, 168 Mo. App. 577; Longworth v. Sedevic, 165 Mo. 229; Lindsay v. Smith, 178 Mo. 189; 9 C. J., section 50, p. 180; Jefferis v. Land Co., 134 U. S. 194; Cragin v. Powell, 128 U. S. 696. The true divisional line between lots 32 and 39, as contended by respondent, is in absolute accord and harmony with the recorded plat, natural topographical monuments and courses and distances. To adopt appellants’ theory would be to disturb, misplace and dislocate every lot in Davidson’s addition, and thereby entail useless, endless and wasteful litigation. Natural, topographical monuments control, especially when in accord with the recorded plat, which reflects the intention of the dedicator. Freisz v. Butcher, 191 S. W. 66. (8) The onus was on appellants to prove by a preponderance of the evidence that respondent was in possession of the lot in suit; the court, in sitting as a jury, in its special finding of facts, says they failed in this, which is conclusive. Chilton v. Nickey, 261 Mo. 242.
   BOND, P. J.

I. At a partition sale plaintiffs and defendant acquired title to adjoining lots, numbered 32 and 39, of Davidson’s Addition to the city of Poplar Bluff, Missouri. On July 14, 1913, commissioner’s deeds to said lots 32 and 39 were duly executed and delivered to plaintiffs and defendant, respectively. Each deed located the lot then conveyed according to the measurements stated in the plat. Afterwards a house was built on what was shown by the plat of the subdivision to be lot 39. On March 4th, 1914, a dispute having arisen over the boundary line, this suit was instituted. The petition seeks to determine the boundary between lots 32 and 39, and eject defendant on the allegation that his house was located on lot 32, if correctly bounded.

In his answer defendant disclaimed any interest in lot 32 and denied that he was in possession of premises other than lot 39, upon which his house stands.

On the trial a jury was waived, and the evidence shows that the controversy arose over a difference of opinion as to the measurements- of the lots comprising Davidson’s Addition as platted and the actual measurements of the surface of the ground; that this difference in the two measurements is a matter of about fifty feet. The evidence tended to show that according to actual measurement of the surface of the ground the house of the defendant Brewster is on lot 32, but that a straight line running from Elm Street (conceded by .all surveyors to be a proper starting point), running north, the distance specified on the plat would place the house on lot 39. There was also evidence tending to prove that if College Street should be located as prescribed on the dedicating plat, there would be no excess in the dimensions of the lots.

The court found on the second count in ejectment, among other things, as follows: -

“That the two-story house mentioned in the evidence at all times has been located entirely on Lot 39, in Davidson’s Addition, which Lot 39 is owned by the defendant and adjoins Lot 32. The court further finds that there is no surplus land not platted in Davidson’s Addition, and that the deeds of plaintiff and that of defendant properly describe their respective holdings according to the original plat of Davidson’s Addition, introduced in evidence from page 11 of the Plat Book and referred to in the commissioner’s deed under which plaintiffs hold, and in the commissioner’s deed under which defendant holds.”

On the above finding the court gave judgment for defendant, from which plaintiffs appealed.

II. This case must be governed by the rule announced by this court construing the statutes providing for plats of cities. [R. S. 1909, secs. 10290-10294, inch] With that object this court recently said that the ordinary rule as to the conclusiveness of courses, distances and monuments should be suspended by applying the doctrine of estoppel, by the recitals of his deed, to any person holding a conveyance wherein his land is described according to the lines and measurements set forth on the public plat. [Laddonia v. Day, 265 Mo. l. c. 397; Jackson v. Miller, 195 S. W. 703.]

In this case the additional abstract discloses that the parties took their respective deeds from a commissioner in partition and that the lots so conveyed were bounded according to the lines and measurements and designations as laid out in the public plat of Davidson’s Addition to the city of Poplar Bluff. There was evidence tending to show that the application of the locations and measurements of the lots according to their description in the public plat would leave the house on lot 39, which is owned by defendant. The trial court, sitting as a jury, found in accordance with that testimony.

In the absence of error on the trial (not disclosed in the record) that finding is not reviewable on appeal. The result is that the judgment of the trial court is affirmed. It is so ordered.

All concur.