author: GANTT, J.

text:
    HEDRICK v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    March 29, 1906.
    1. PASSENGER ON FREIGHT TRAIN: Liability of Company: Drover’s Pass. Where a railroad company carries passengers for hire on its freight trains, it must exercise the same degree of care for their safety as is required in the operation of its regular passenger trains, the only difference being that the passenger on the freight train submits himself to the inconvenience and danger necessarily attending that mode of conveyance. And in this case a shipper of stock, under a live-stock contract, in charge of a car-load of stock, and riding in the caboose of the train carrying the stock, is assumed to be a passenger.
    2. -: -: Jarring and Jerking: Inferred Negligence. It is a matter of common knowledge that jolting and jarring are incident to the operation of freight trains, and therefore negligence cannot be inferred from the mere fact that a passenger’s injury resulted from a jar caused by the stopping of such train. The jar or jerk caused by the stopping of the train is not ipso facto negligence.
    3. -: -: -: Slack of Train. The freight train was very long and was very slowly approaching on up-grade a station where it was to take in another car. Plaintiff was riding in the caboose, and arose from his place of safety on the seat and moved towards the rear, with a view to getting off to assist in loading the other car, and just then the engine stopped and the rebound, from taking up the slack, violently jerked the caboose, threw plaintiff down and injured him. No announcement had been made and no one had told him to move. There was no evidence of any negligent act on the part of the brakeman or engineer, except that the train stopped a little more suddenly than customary; nor was there any evidence that the mere stopping of the engine in the usual way would not have caused the caboose, in a train of like length and on a like grade, to jerk or bump with equal violence; nor was there any evidence that the jerk was attributable to a defect in the track or engine or any car, or to unskillful handling of the engine by the engineer. Held, that plaintiff cannot recover.
    4. - — : -•: Res Ipsa Loquitur. The rule of res ipsa loquitur applies only where there is something which, unexplained, tends to show that some negligence or omission of duty on the part of the carrier was the proximate cause of the injury.

      Appeal from Johnson Circuit Court.— Hon. W. L. Jarrott, Judge.
    Reversed.

      R. T. Railey for appellant.
    (1) The undisputed facts failed to show any negligence on the part of either defendant or its servants. Defendant’s demurrer to the evidence should therefore have been sustained. "Wait v. Railroad, 165 Mo. 620 ; Bartley v. Railroad, 148 Mo. 141; Hite v. Railroad, 130 Mo. 141; Portuchek v. Railroad, 101 Mo. App. 52; Erwin v. Railroad,. 94 Mo. App. 291; Saxton v. Railroad, 98 Mo. App. 503; Young v. Railroad, 93 Mo. App. 274; Shields v. Railroad, 87 Mo. App*. 645; Guffey v. Railroad, 53 Mo. App. 468; Railroad v. Morris, 62 S. W. 1012. The plaintiff, as well as the trial court, seemed to be of the impression that the doctrine of res ipsa loquitur should be applied to this case. The rule relied on seems to be confined to that class of cases' where a wreck occurred, or where the train jumped the track, or where something else transpired, which did not occur in the ordinary and usual management of ordinary freight trains. But in this case not a syllable of evidence appears which in the least indicates that the engineer was not skillful and careful in the management of the train. Nothing was wrong with either the roadbed or rolling-stock. In stopping such a train on a grade like this, from the very necessity of the case some slack would occur — of which fact the court would take judicial notice — and a sudden stop would be the result while the engine was stationary. On the facts in this case, it is submitted that if plaintiff had been on a regular passenger train — instead of a freight train with 20 to 25 loaded cars, stopping on a grade under the circumstances herein— he would have signally failed to make out a case of negligence in respect to the management of the train. We have been unable to find any case, reported in any law book,- where the plaintiff, under the circumstances detailed herein, has been permitted to recover damages. The trial court should have sustained our demurrer to the evidence, and having failed to do so, it is insisted that this court should reverse the cause, without remanding same. (2) There is no charge in petition to the effect that the engineer or any of the train crew were either incompetent or careless. Omnia praesumuntur rite et solewmiter esse acta. Co. Litt., 6 b 332; 1 Phil. Ev. (Con. & Hill’s Notes),p. 604, sec. 10; State ex rel. v. Bank, 120 Mo. 169; Yarnell v. Railroad, 113 Mo. 579 ; State ex rel. v. Williams, 99 Mo. 302; Mathias v. O’Neil, 94 Mo. 528; Hammond v. Gordon, 93 Mo. 226; Lenox v. Harrison, 88 Mo. 491; Bush v. White, 85 Mo. 356; Henry v. Bulle, 74 Mo. 451; Long v. J. M. & S. Co., 68 Mo. 431. Plaintiff in his testimony complains of but one jerk or jump-. Plaintiff and his two witnesses said the stop was sudden, and unusual for a freight train to make, but this was simply an expression of opinion, and not a statement of any-facts as to what the engineer was actually doing at the time. Bartlett v. O’Donoghue, 72 Mo. 564; Nugent v. Milling Co., 131 Mo. 252; Ferguson v. Davidson, 147 Mo. 668; Epperson v. P. T. C. Co., 155 Mo. 383; Wilson v. Jackson, ^167 Mo. 155; Rice v. Smith, 171 Mo. 335; Noons v. Railroad, 77 S. W. 761; State v. Kaufman, 45 Mo. App. 659. (3) • Plaintiff was riding on a stock pass, at time of alleged accident, and for a valuable consideration agreed to all the terms and conditions of same. Plaintiff was therefore bound by the terms of said contract and agreed to assume all risk of personal injury whatever, in passing along the caboose, while it was in motion, and as shown- by his testimony at time of alleged accident. Kellerman v. Railroad, 136 Mo. 189; Catterlin v. Lusk, 98 Mo. App. 187; McNealy v. Baldridge, 106 Mo. App. 18; Bowring v. Railroad, 90 Mo. App. 330; Wyrick v. Railroad, 74 Mo. App. 412. (4) Plaintiff was on his feet and moving toward the rear of caboose, while the latter was in motion. Under his stock contract he assumed all risk of injury while occupying this position. He knew it was more dangerous for him to occupy this position than if he had been seated. No signal had been given in regard to stopping. No trainman had called the station, invited plaintiff to alight, or had any conversation with him whatever. He got up from his seat of his own motion, while the train was moving and with full notice of the extra hazard which he was thus encountering. On his own admissions as well as on the undisputed facts, his own negligence not only contributed to, but directly caused the injuries— if any— which he sustained by the sudden stop or jerk complained of. Smotherman v. Railroad, 29 Mo. App. 266; Tuley v. Railroad, 41 Mo. App. 432; Harris v. Railroad, 89 Mo. 235; Carroll v. Railroad, 107 Mo. 653; Townsend v. Railroad, 61 S. W. 56.

      8. G. Kelly and O. L. Houts for respondent.
    (1) Plaintiff’s drover’s pass made'him a passenger on defendant’s freight train and it became the duty of defendant to use the utmost skill and care which prudent men would use and exercise in like business and under like circumstances to transport him to St. Louis, the place of his destination, and to stop its train a sufficient length of time to enable plaintiff to get off in safety at the intermediate station of LaMonte on defendant’s line of railway where plaintiff was required to stop to assist in loading a car load of hogs to be taken in the same train. The undisputed evidence shows that defendant caused its train to be slowed up at LaMonte until it was moving very slowly and until a number of the traincrew had got off, for the purpose of stopping and of allowing plaintiff, the only passenger, to get off; that in the presence of one of defendant’s brakemen, in the caboose of the train, and without any warning or direction from the brakeinan to wait longer, plaintiff, who was then seated in the caboose, arose and walked toward the rear door for the purpose of getting off; and that before plaintiff had time to get off, and without any warning to him, de-fendant jerked or knocked or bumped with great, unusual, unnecessary, and extraordinary force, said train and caboose, and thereby injured him. • Upon this evidence the jury, under proper instructions, found that defendant’s employees jerked or knocked or bumped with unusual and unnecessary and extraordinary force, the train and caboose, and that plaintiff was thereby injured while in the exercise of ordinary care upon his part, and rendered a verdict for plaintiff. The verdict was right. The act of defendant amounted to gross negligence in the management of its train, and its demurrer to the evidence was properly overruled. Carroll v. Railroad, 88 Mo. 239; Fullerton v. Railroad, 84 Mo. App. 498; Harris v. Railroad, 89 Mo; 233; Coudy v. Railroad, 85 Mo. 79; Wagoner v. Railroad, 97 Mo. 512; McGee v. Railroad, 92 Mo. 208; Whitehead v. Railroad, 99 Mo. 363; Jones v. Railroad, 31 Mo. App. 614; Richmond v. Railroad, 49 Mo. App. 104; Duncan v. Railroad, 48 Mo. App. 659; Railroad v. Horst, 93 U. S. 291. (2) There was no evidence that plaintiff was guilty of contributory negligence. Under the undisputed evidence, at the time plaintiff was injured he was in the caboose where he had a right to be, doing what he had a right to do, moving to the rear of the caboose for the purpose of getting off after the train had been slowed up by defendant, for the purpose of stopping at the station, and in order that plaintiff might get off. Fullerton v. Railroad, 84 Mo. App. 498; Harris v. Railroad, 89 Mo. 233; Coudy v. Railroad, 85 Mo. 79; Wagoner v. Railroad, 97 Mo. 512; McGee v. Railroad, 92 Mo. 208; Whitehead v. Railroad, 99 Mo. 263; Jones v. Railroad, 31 Mo. App. 614; Richmond v. Railroad, 49 Mo. App. 104; Duncan v. Railroad, 48 Mo. App-. 659; Railroad v. Horst, 93 U. S. 291; State to use v. King, 44 Mo. 238; Buck v. Railroad, 108 Mo. 179; Blanton v. Dold, 109 Mo. 64; Hickman v. Link, 116 Mo. 123; Hoepper v. Southern Hotel Co., 142 Mo. 378; Impeamp v. Railroad, 108 Mo. App. 660; Kaiser v. Railroad, 108 Mo. App. 712; McAllister v. Barnes, 35 Mo. App. 674. (3) The contract set out in the stock pass upon which plaintiff was riding had nothing to do with the case further than to show a consideration paid to the company for his transportation; plaintiff was not, therefore, by anything in the contract, precluded from recovering and the instructions based upon that contract were properly refused. Carroll v. Railroad, 88 Mo. 244; Settle v. Railroad, 127 Mo. 343; Blanton v. Dold, 109 Mo. 75; Meyers v. Railroad, 59 Mo. 230; Railroad v. Railroad, 78 Mo. App. 254.
   GANTT, J.

— This action was commenced in the circuit court of Johnson county on June 30, 1900, and defendant was duly served with process on that date. At the November term, 1900, the plaintiff filed an amended petition which is in substance as follows: That the defendant is a railroad corporation, operating a line of railway from the town of Knob Noster in Johnson. county to tbe city of St. Louis, and was on the 22nd of January, 1900, a common carrier of passengers for hire, between the points above named, and on that date, for a valuable consideration received by it, received plaintiff into one of its said cars, to-wit, a caboose, in a freight train called a stock train, and undertook to carry him safely from Knob Noster to St. Louis. It is then alleged “That defendant disregarded its duty to so carry plaintiff, and by its agents, servants and employees at or near the town of LaMonte, while plaintiff was in said caboose and moving toward the rear end thereof and while said train and car were moving slowly, negligently and unskillfully mismanaged and operated said train and car, and engine, and carelessly and negligently, and with great and unusual and unnecessary force and violence jerked, knocked and bumped said train and cars and said caboose, and with great and unusual and unnecessary force and violence knocked said cars against said caboose and that by reason thereof plaintiff was with great force and violence jerked, thrown down and against said caboose and was cut, bruised and wounded and permanently injured in his whole body, head, arms, neck, spine and limbs, so that he has been rendered unable to labor and has suffered and will continue to suffer through the remainder of his life great bodily pain and mental anguish, to his damage in the sum of twenty-five thousand dollars, for which he prays judgment.”

The answers consist: first, of a general denial; and, secondly, as follows: ‘ ‘ The plaintiff herein at the time and place of the alleged accident, was not upon defendant’s train as a passenger, and had no legal right to be thereon; that said defendant was not guilty of any negligence in respect to any legal duty which it owed plaintiff; that said plaintiff was injured, if at all, by reason of his own gross negligence and recklessness in moving about upon defendant’s train while it was in motion without any reason or justification therefor.” Third, “That said plaintiff was guilty of gross negligence, not only contributing to, but directly causing his own injury, in that he was unnecessarily, negligently, and carelessly standing up or moving about in defendant’s caboose while the train was in motion, and by reason of such negligence, recklessness and carelessness sustained the injury, if any, complained of, without the fault or negligence of said defendant.”

The reply admits that the plaintiff was injured in the caboose of the defendant, and denied each and every other allegation contained in the answer.

The cause was tried at the November term, 1902, and a verdict returned for the plaintiff' for five thous- and dollars, and a. judgment was rendered accordingly. Motions for new trial and in arrest of judgment were filed in due time, heard and overruled at the October term, 1902. From that judgment, the defendant has appealed to this court.

The evidence tends to establish the following facts:

The plaintiff, Mr. Hedrick, resided, at the time of the accident, near Knob Noster in Johnson county; he was fifty-three years old. On the 20th of January, 1900, he started from Knob Noster with a car-load of hogs, belonging to Hanna Bros., on what is known as a stock pass. He took passage in the caboose attached to a freight train, bound from Knob Noster to St. .Louis. There was no other passenger in the caboose but himself. The usual traincrew were in and out of the caboose from time to time until they reached LaMonte, a station east of Knob Noster, and near the western line of Pettis county. This train stopped at LaMonte to take in another carload of stock belonging to Hanna Bros. The plaintiff testified that he was requested by Hanna Bros, to look after a load of hogs when he got there. Mr. Jefferson Hanna was at LaMonte and had purchased a load of hogs from Mr. Oglesby, and he testified that Hanna Bros, gave a man by the name of Fowler a pass for the load of hogs taken on at LaMonte, and that he was loading the hogs into a car at LaMonte when this train arrived there, and Mr. Oglesby testified that he was assisting Mr. Hanna in loáding the car at LaMonte, and from their evidence it would seem plain that plaintiff had nothing to do with the loading of the hogs at LaMonte; that they were practically loaded on the car when plaintiff reached LaMonte on the train that day.

Plaintiff’s account of what took place at LaMonte was that after the train got to LaMonte it was in a manner. stopped; two of the trainmen had already left the caboose, and the plaintiff got up and started to the rear end of the car, and there was a jump, he did not know what happened, but thought the train had collided, and for a moment or two he did not know what had happened and when he came to himself, he felt that he was injured, and sat down on a seat — went to a seat and sat down, and at that time the train was perfectly still. The caboose, after the train stopped, was in the neighborhood of a hundred or a hundred and fifty yards from the depot at LaMonte. He testified that when he came to himself, he was on his feet, and could not state whether he had been thrown down or not. He testified that he had traveled a number of times in cabooses attached to freight trains, and on freight trains, and he was then ashed the effect that the stopping of the train had, and he answered, “The reaction on the car was so severe that it upset the water tank in the caboose and spilled water all over the floor. ” “ That jar was severe — the severest I ever experienced on a freight train. ’ ’ “The extent was so hard it upset the water tank in the car.” “It jerked me senseless and injured my neck.” On cross-examination, he testified that when he started to go to the rear end of the caboose “the train was barely moving, it was not running one mile an hour; not near as fast as a man could run or walk, it was not going as fast as a man could walk, the rate of speed was so that a child could walk and get off if it had not been jarred. ’ ’ He was asked whether he was thrown down, and answered, “Well, I do not know whether I was or not, right there is where I never will be clear; I do not think I went to the floor. I was stunned for a minute or two.” Asked whether or not he struck his head, neck or arm against anything in the caboose at that time, he answered, “I think I kind of caught myself on the — against the door casing or against the door as it swung, the jar was so violent and severe.” He did not know where the brakemen were at the time of the accident. He described his injuries as follows: “Right from the center of my neck back here either of you jurymen can feel a rupture from my neck down; right there is a tender place (indicating); it is violently sore and I suffer all the time; I am never without a dumb sensation from my head over my right shoulder; it affects me clean down to my right foot at times. My natural way of sleeping is on my back, I cannot sleep on my back. I have got to sleep on my left side to get any sleep, and if I happen to turn upon my back, the pain gets so severe it wakes me up, as high as a half dozen times in the night. I am not able to perform manual labor on account of my right side; the pain runs from my ear down to the center of my neck; cannot turn my head without turning my body without causing it to hurt; I cannot turn my head from right to left without hurting my neck. I am in pain all the time in my neck and head; when I get a little bit warm the pain is more severe; my right arm and right side is not stout; I can hardly put on my clothing. Before I was hurt, I was a stout, able-bodied man, now I cannot perform my customary work on the farm.”

On cross-examination, witness identified the livestock contract between the railroad company and Hanna Bros., which provided that plaintiff should be in charge of the carload of stock as the agent of Hanna Bros. The 9th provision of the contract provides “'that the person or persons in charge of live stock carried by this contract shall remain in the caboose car attached to the train while the same is in motion, and whenever such person shall leave the caboose car or pass over or along the cars or tracks, he shall do so at his own risk of personal injury from every cause whatever, and the said railroad company shall not be required to stop or start its trains or caboose cars from depots or platforms, or to furnish lights for the accommodations or safety of such person.” Plaintiff testified further that there were from twenty to twenty-three or twenty-four cars in the train. Plaintiff was asked if he did not know prior to the time of this accident that it was more dangerous to be moving about when the train was in motion than to sit down, and he answered, “Of course it would be more dangerous.” Asked if he did not know that on account of the danger to which passengers are exposed they were expected to remain seated while the caboose was in motion, he answered, “I supposed so.” He testified further that the grade of the defendant’s railroad track is up-grade from the west towards LaMonte and east to the station. In regard to the turning over of the water tank, he was asked the extent of the water in the caboose, and. he answered, “That is hard to do, it was thrown so hard, it was scattered over quite a space of ground; I do not know how much water was in the keg, or anything about that.”

The testimony on behalf of the plaintiff tended to show that the car which was being loaded with hogs at LaMonte was four or five cars east of the caboose, and that the caboose stopped west of the depot, and a part of the train was then east of the depot; these cars averaged from thirty to thirty-six feet in length; that the train was stopped at LaMonte to take in a carload of hogs at that point. In regard to the stopping of the train, Mr. J. D. Hanna testified that he had had many years experience in buying and shipping stock, as well as riding on freight trains, and testified that he was at LaMonte when the freight train on which plaintiff was riding arrived, and was loading a car of' hogs to go on the same train. He testified that “the train stopped rather sudden there at that time, I thought. ’ ’

W. H. Oglesby for the plaintiff also testified: “I noticed a very sudden stop in the train that arrived at that time; it was an unusual stop for the freight train to make.”

The circuit court over the objection of the defendant permitted witnesses Hanna and Oglesby to testify that after they were through loading their car of hogs, and after the train had stopped, they went to another car in said train and found the hogs therein piled up and the foot of one of them sticking ont of the car, bnt both Hanna and Oglesby testified that hogs pile np sometimes in the cars in which they are shipped, and they did not know what caused the hogs to pile up that day, and the reason one of the hogs had his foot out was because the door was not fastened very well on that side.

Hanna testified that after the train stopped, the plaintiff came down to where they were loading the •car at LaMonte, but when he got there, he was nearly through loading the hogs. There was nothing .to 'indicate that plaintiff was injured in any way when he came to where he was loading the hogs, and he spoke to him, but he did not notice anything the matter with him. Oglesby also testified that plaintiff came up where they were loading the hogs and he spoke to him, but did not notice anything the matter with him, nor anything to indicate that he had sustained an injury, and that plaintiff made no complaint that he had been injured.

After the carload of hogs at LaMonte were put in the train, the plaintiff continued his journey to St. Louis, on that same train. At Sedalia, he got into another caboose. He testified that he stayed with the hogs and remained in St. Louis around the stockyards from Monday until Thursday night. He was not examined by any doctor while in St. Louis, and did not take any medicine for his injuries. It was some two or three weeks after his return home before he said anything to a doctor about it, probably a month. Dr; Rains was his family physician. Dr. Rains examined him something like a month or six weeks after the accident happened. He had been his family physician before that and afterwards. He had him subpoenaed as a witness in this case, and the doctor was in attendance upon the trial, but was not introduced as a. witness by the plaintiff.

Dr. Shy testified that sometime in the summer of 1900, about August or perhaps September, he was employed by the plaintiff to make an examination; that he made an inspection, a digital examination, feeling the neck and looking at it with his eyes, and had examined him twice since, and he found a slight depression between the middle part of the ear and the center of the neck and a little fullness of the muscles on that side of the neck just to the right of the center. At the examination a year before the trial, he found that this muscle seemed to be smaller than the other one. He examined the shoulder and arms and saw nothing out of the way. He testified that from his examination he thought some of the nerves were affected, but all of them were not, and in his opinion, the injury might have been produced by a fall or a lick .at this place, a blow or a violent jerk. On cross-examination he stated that he could not name any medical authority on surgery that gave any account of a case where a man’s muscle was injured by jerking, that ordinarily this kind of an injury would be occasioned by a strain, and that rheumatism might have this effect, and there is another disease called muscular atrophy that could produce these conditions.

Ur. Schofield also testified on behalf of plaintiff that aside from his complaints there was very little open to observation from which he could say plaintiff was suffering from the injury; that he had never read in any medical work of an accident where this muscle had been injured by a jerk; that he discovered no indications of a blow in his examination of the plaintiff; so far as the pain was concerned, he had to depend entirely upon the patient, and that the conditions which are found could have been produced by rheumatism or some other disease of the muscle.

Other facts may be noted in the discussion of the propositions argued by the respective counsel.

I. The relative duties and obligations which arise when a "railroad company receives passengers for hire on its freight trains between the passenger and the company, has been so often and so recently stated by the appellate courts of this State, that we deem it necessary only to restate the conclusion announced in the various cases.

In Wait v. Railroad, 165 Mo. 612, it is said: “It seems now to be well-settled law here, as elsewhere, that where a railroad company carries passengers for hire on its freight trains, ‘ it must exercise the same degree of care as is required in the operation of its regular passenger trains, the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.’ ” [Vide cases cited, by Brace, P. J., in support of this proposition, 165 Mo. l. c. 621.] In that ease this court adopted the law as announced in Railroad v. Arnol, 144 Ill. 261, as follows: ‘‘ ‘Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, cannot expect, or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all the ordinary inconveniences, delays and hazards incident to such trains, when inade up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. . . . But if a railway company consents to carry passengers for hire by such trains, the general rule of its responsibility for their safe carriage is not otherwise relaxed. Prom the composition of such a train and the appliances necessarily used in its efficient operation, there cannot, in the nature of things, be the same immunity from peril in traveling by freight trains, as there is by passenger trains, but the same degree of care can be exercised in the operation of each. The result in respect to the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train and not to the other, and it is this hazard the passenger assumes in taking a freight train, and not hazard and peril arising from negligence or want of proper care of those in charge of it.’ So far as there were dangers naturally incident to the running of freight cars and a passenger car in the same train, the parties must he presumed to have contracted in reference to them, and the plaintiff to have assumed them. ” Applying the foregoing rules in the Wait case, this court said: ‘ ‘ There is no conflict in the evidence. There is no evidence tending to show any defects in defendant’s track, train or any of its appliances. No evidence tending to show any want of skill or care on the part of its employees in the management of the train from the time plaintiff got on it until the accident happened, or that the train was stopped at an improper place or in an improper manner, or that the shock which caused his fall was not a natural and ordinary incident of the stopping of such a train in a proper maimer by the proper application of the proper means for that purpose. In other words, there were no facts proved from which an inference of negligence on the part of the defendant could be legitimately drawn. On the other hand, it clearly appears from the plaintiff’s own evidence that his. injury was the result' of his oavu mistake. He left his seat, stepped into the aisle, and commenced pulling off his overcoat, because, as he said, he thought the train was pulling out ‘ for good. ’ In fact it was pulling up to the station ‘to stop.’ Under this mistake, he placed himself in such a position as not to be able to resist the force of the stop, which was naturally incident to the stop, fell and was injured. But for it he would have remained in his seat and in all human probability would have remained uninjured as did the others in the car. For the consequence of his mistake the defendant cannot be held liable.”

In this case the testimony of the plaintiff himself establishes that he had taken passage on a freight train consisting of some twenty-three or twenty-four cars, and had taken his seat in the caboose; he knew that the train on which he was traveling would stop at the next station, LaMonte, to take on another carload of stock at that place. He had been so advised by one of the Messrs. Hanna at Knob Nos ter before he left that station. According to his own testimony, as the train approached the station at LaMonte, and while it was yet moving, he voluntarily got up and started to walk to the rear of the caboose, and had taken two or three steps when a jerk, or “jump” as he described it, occurred, and he received a shock of which he now complains. None of the train crew announced the arrival of the train at LaMonte, and no one said anything to him to cause him to attempt to leave the train before it came to a stop. With knowledge of the danger in moving about in a freight train while the same was in motion, and even without this actual knowledge, in face of the presumption within the common knowledge of all who have traveled upon freight trains, that there is more or less violent jolting and jerking incident to the movement of long and heavy freight trains, he left his seat and a place of safety while the train was yet moving and at a time when the stopping of the train at LaMonte would naturally cause a jerk, as the slack of the train was being taken up, when the stop was made. In this case, as in the Wait case, there was not the slightest evidence of any defect in the defendant’s track, train or any of its appliances. There was no evidence tending to show any want of skill or care on the part of the employees in the management of the train, or that the train was stopped at an improper place or in an improper manner. All that we have is that the train did stop, and thereby a jerk ensued which caused the plaintiff to lose his balance as he was attempting to walk to the rear of the caboose. No witness testified that the train made more than one stop, nor did any of them attempt to say that while moving slowly it suddenly started faster. Hanna- and Oglesby simply testified that the train stopped. One of them said “rather sudden, he thought;” the other, “that it was an unusual stop for a freight train to make.” What there was unusual about the stop was not disclosed. The train was expected to stop at that station; it was the duty of those in charge of it to stop it there in order to take on another load of stock. It was not severe enough to knock the plaintiff down, although he was walking with nothing to hold to. He says he did not sit down until after the jar, and that he could not say that he struck anything, or was thrown down or off of his feet. It is not charged nor is there any evidence that the engineer was incompetent or that he did not manage or control his train in making the stop at La-Monte in the usual and ordinary manner in which such trains upon an up-grade aré stopped. There is no evidence to indicate that any portion of the train was damaged, or any of the stock thereon injured by reason of the said stop. In addition to all this, the evidence of the plaintiff is that the train was moving very slowly, so slow indeed that a child could have gotten off in safety were it not jarred. And the inevitable inference must be that as only one stop is shown to have been made by all the witnesses, the jar or jerk of which plaintiff complains must have been the natural result of the taking up of the slack when the train stopped. This, it is plain, could have happened without any fault of the engineer, and as a natural result of stopping an engine as the moving cars would run forward until stopped by the locomotive, and as it was downgrade toward the caboose, in the rebound, the cars would by gravity run down the grade west towards the caboose until all the slack had been taken up and as the caboose would likewise have been running down the same grade, it would stop suddenly when all the slack had been taken up on account of the engine having stopped. In the recent case of Portuchek v. Railroad, 101 Mo. App. l. c. 54, Judge Reybubn, speaking for the St. Louis Court of Appeals, said: “It is not to be expected that there would be the same exactness in drawing up to a station by the freight train as by a train devoted to passenger service, and precisely the same degree of care exercised in the operation of both may produce different results respecting the safety of the passengers, from the dangers inseparably connected with the conduct of one train and not with the other, and this the public presumably understands, and conducts itself accordingly, and such inherent hazards the passenger is held to assume in taking the freight train. [Wait v. Railroad, 165 Mo. 612; Railroad v. Arnol, 144 Ill. 261; Olds v. Railroad, 172 Mass. 73; Erwin v. Railroad, 94 Mo. App. 289.] ’’

In the last case it is aptly observed that it is a matter of common knowledge that jolting and jarring are incident to the operation of freight trains, and therefore negligence cannot be inferred from the mere fact that an injury was suffered from a jar occasioned by the stopping of such a train. In that case the plaintiff and her companions described the accident as being produced by a “very hard jolt,” and “a backward jolt,” “very hard or rather a hard jar, or rather a severe jolt,” and it was ruled upon that evidence that the plaintiff was not entitled to recover. And in Erwin v. Railroad, 94 Mo. App. l. c. 297, Judge Bland, speaking for the same court, said: “When the fact that there is more or less jerking and jolting incident to the operation of a freight train — a matter of common knowledge — is taken into view, negligence cannot be inferred from the mere fact that the plaintiff was injured by a jar occasioned by the stopping of the train. [Carvin v. St. Louis, 151 Mo. 334; Wait v. Railroad, 165 Mo. 612.] The rule of res ipsa loquitur can only be applied where there is something which, if unexplained, tends to show that some negligence or omission of duty was the proximate canse of the injury. The plaintiff, by his own evidence, shows that he placed himself in a position in the car where it was probable that he would be bumped against the frame work of the seat or thrown off the seat, or both, by the usual jolting incident to the stopping and starting of a long and heavy freight train.” In Saxton v. Railroad, 98 Mo. App. l. c. 503, Smith, P. J., for the Kansas City Court of Appeals, in discussing the question now before us, said: "There was no evidence adduced which tended to prove that the jerk was unusual, extraordinary or unnecessary and not usually incident to the ordinary, careful and efficient operation of the train. It was not enough to prove that there was a jerk in the movement of the train. One of the plaintiff’s witnesses testified that it seemed to him that the jerk occurred when the train took up the slack, but it does not affirmatively appear, as it should, in order to show liability, that the jerk was an extraordinary or unusual one, attributable to a defect in the track, an imperfection in the ca/r or apparatus, or to a dangerous rate of speed} or to the unskillful handling of the engine by the engineer, or to something of that kind.. [Bartley v. Railroad, 148 Mo. 139; Hite v. Railroad, 130 Mo. 136, and other cases cited.] ”

In Guffey v. Railroad, 53 Mo. App. 466, the testimony of the several witnesses described the jar or jars which occurred in practically the same language as that used by the plaintiff in the case at bar, except that neither Hanna nor Oglesby described the stop to be as sudden or severe as that described by the witnesses in the Guffey case, or in the Portuchek case, and speaking of this Judge Smith says: “We do not think these expressions of the witnesses are of any value whatever, or stated so much as a scintilla of evidence.” All of these expressions amount to mere conclusions or opinions of the witnesses. Neither the plaintiff nor Hanna nor Oglesby undertook to describe what the engineer was doing, how he did it, or what caused the jerk of which plaintiff complains.

If the plaintiff can recover on the facts elicited on the trial of this case, it must he upon the one proposition that the jar or jerk caused by the train stopping was ipso facto negligence. We know of no case that would justify us in so holding. The jar was the natural result of the stopping of a long train of freight cars, and the giving out of the slack. When it is considered that it is a matter of common knowledge that in the movement of trains there is more or less jolting and jerking incident to the starting and the stopping of the train, and that, so far, human skill and ingenuity has not been able to prevent this entirely, it cannot be said as a matter of law that negligence can be predicated upon the mere fact that the jolt or jerk results from the stopping of a long freight train. It is well settled that negligence cannot be presumed when nothing is done out of the usual course of business, unless the course, is improper. There is nothing in this record to indicate that there was any act of omission or commission not usually incident to the constant moving of heavy freight trains under the control and management of skillful and careful employees. We are not unmindful of the contention of the plaintiff that the defendant jerked or knocked or bumped the train with unusual, unnecessary and extraordinary force against the caboose, but we are clearly of the opinion that in the light of the uniform expressions of this court and of the several appellate courts, the evidence in this case was wholly insufficient to establish any such unusual and extraordinary jarring and jerking.

In our opinion the basic fact upon which a recovery must rest in this case, to-wit, the negligence of the defendant, was not established either by the positive testimony of the witnesses or by any presumption of negligence arising out of the facts developed, and it results that the plaintiff was not entitled to recover, and the judgment of the circuit court must be and is reversed and judgment rendered here for the defendant.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THOMAS F. ACKERMAN, Administrator De Bonis Non of Alfred W. Fleming’s Estate v. GREEN, Appellant.
    Division Two,
    March 29, 1906.
    1. FORM OF ACTION. There is but one form of action in this State for the enforcement or protection of private rights or the redress or prevention of private wrongs, namely, a civil action. Our Code requires a plain and concise statement of the facts constituting the cause of action, and it is sufficient if the facts so stated authorize the judgment asked for or rendered.
    2. -: Principal and Agent: Adjustment of Accounts: Conversion. The administrator’s petition stated that defendant for many years prior to the death of deceased was his confidential agent and as such received large sums of money belonging to deceased for investment, part of which he retained and used, giving to deceased therefor his notes, and that a short time before his death deceased owned certain notes given by defendant, specifically described and aggregating $182,700, besides interest, and that said notes were in defendant’s hands at the time of the death of deceased, as was $7,067.73 in money belonging to deceased, all of which were left in defendant’s possession to be exchanged for and used in the purchase of other property, and that plaintiff, after decedent’s death, demanded them, but defendant refused to deliver the same, on the ground that he held them to be used in buying stock in a railroad company to be reorganized, which could not now be reorganized, and demanded judgment for the amount of the notes and money. Held, that this petition did not state an action for the conversion of the notes and money, but by it plaintiff simply sought to adjust and settle the account between decedent and defendant for the notes and money placed in defendant’s hands during the existence of the agency.
    3. -: -: Conversion: Insolvency: Nominal Damages. Even if said action was one for conversion of funds belonging to his principal, defendant had no right to show, by way of . defense, that he was insolvent, and that the notes were valueless and that plaintiff was entitled to only nominal damages, for defendant was the maker of the notes. The maker of a note cannot obtain it, destroy it or convert it to his own use, and then set up his own insolvency in mitigation or reduction of the damages sought to he recovered. [Disapproving the oMter dictum in Fry v. Baxter, 10 Mo. 192.]
    Appeal from St. Louis City Circuit Court. — Him. Warwick Sough, Judge.
    Affibmed.

      KimeaLy & Kinealy for appellant.
    (1) This is a suit for conversion. Summer v. Rogers, 90 Mo. 324; O ’Donoghue v. Corhy, 22 Mo. 396; 4 Ency. PI. and Pr., 915, par. 2; 21 Ency. PI. and Pr., 1089; Wilkinson v. Mosely, 18 Ala. 288. (2) Conversion will not lie to recover a balance on open account. Petit v. Boju, 1 Mo. 64; 21 Ency. PI. and Pr., 1021. (3) In a suit for conversion of a promissory note against the maker the recovery is confined to the actual value of the note; in determining which actual value the insolvency of the maker has to be considered and if he be insolvent and the note is not secured or the obligation of some other person who is solvent, but nominal damages can be awarded for its conversion. Fry v. Baxter, 10 Mo. 302; Menkens v. Menkens, 23 Mo. 253; O’Donoghue v. Corby, 22 Mo. 396; Claues v. Hawley, 12 Johns. 484; Kalckhoff v. Zochelant, 40 Wis. 427. (4) Conversion is the remedy where promissory notes are illegally withheld from the owner. Seehom v. Bank, •148 Mo. 255; Harlan v. Brown, 4 Ind. App. 319; Clowes v. Hawley, 12 Johns. 484. (5) Conversion is the remedy where the notes are unpaid and in the hands of the maker. Tucker v. Jewett, 32 Conn. 563. (6) The referee should not have excluded evidence after the close of the case. Moretón v. McDermott, 10 Mo. 605 ; Lawrence v. Shreve, 26 Mo. 492. (7) The evidence in this case does not show that Green had in his possession any of the notes plaintiff described in the petition.

      Daniel Dillon and Robert L. Shackelford /or respondent.
    The petition is not one for trover and conversion, and appellant is in error in his construction of it. But even if this action be regarded as one for conversion the judgment should not be disturbed. In an action against the maker for conversion of his own note he is not permitted to show his own insolvency in diminution of damages. Stephenson v. Thayer, 63 Me. 143; Robbins v. Packard, 31 Vt. 570; Outhouse v. Outhouse, 13 Hun 130; 1 Sedgwick on Dam. (8 Ed.), sec. 256; 3 Sutherland (2 Ed.), sec. 1132; 2 Daniels on Neg. Inst. (4 Ed.), sec. 1468; 26 Am. and Eng. Ency. of Law, 846. A judgment in an action for conversion, and satisfaction of such judgment, operate to transfer to the defendant in the action the title to the property converted. Mitchell v. Shaw, 53 Mo. App. 654; 2 Edwards, Bills and Notes (3 Ed.), 679; 2 Parsons, Notes and Bills, 435; Kalckhoff v. Zerland, 40 Wis. 427. The first count of this petition is not an action for trover and conversion. Under the common law system of pleading this petition would be lacking in technical phraseology, but it complies with the requirements of our Code, as it sets out a plain and concise statement of the facts constituting plaintiff’s cause of action. Globe L. and H. Co. v. Doud, 47 Mo. App. 451. Under our Code, pleadings are to be liberally construed, with a view to substantial justice between the parties. Sec. 629, R. S. 1899. And after verdict plaintiff is entitled to benefit of every reasonable inference that may be drawn from the facts alleged. If the petition was in any respects vague or uncertain, it was the duty of defendant to have had it corrected by timely motion; otherwise, it must now be held good, as against any objection of that order, providing it states a substantial cause of action. Davis v. Railroad, 126 Mo. 78; Poster v. Railroad, 115 Mo. 177; Still-well v. Hamm, 97 Mo. 586; Padley v. Catterlin, 64 Mo. 638. The giving of the notes was not payment of the original indebtedness, or any part of it. There is no question that the law in this State is that the giving of the note of the debtor is not payment unless expressly agreed to be such. Howard v. Jones, 33 Mo. 583; Black v. Dorman, Adiar., 51 Mo. 31; Wiles v. Robinson, 80 Mo. 52; Leabo v. Goode, 67 Mo. 126; State ex reí. v. Wagers, 47 Mo. App. 438; Shotwell v. Monroe, 42 Mo. App. 677; Howard v. Shirley, 75 Mo. App. 150; Bertiaux v. Dillon, 20 Mo. App. 603; Young v. Powell, 87 Mo. 128; Clark v. Clark, 86 Mo. 124; Johnson-Brink-man Co. v. Bank, 116 Mo. 567.
   FOX, J.

— This cause is now pending in this court upon appeal by the defendant from a judgment in the circuit court of the city of St. Louis. The petition upon which this action is predicated consists of two counts. As the judgment from which the appeal was taken was rendered upon the first count it is only necessary to reproduce the first count of the petition, which was as follows:

“Plaintiff states that Alfred W..Fleming died intestate in St. Louis county, Missouri, in January, 1898, and that plaintiff was thereafter, viz., on the 24th day of January, 1898, appointed by the probate court of said St. Louis county, administratrix of the estate of said Alfred W. Fleming, and She duly qualified as said administratrix. Plaintiff further states that defendant for many years previous to the death ■ of said Alfred W. Fleming, viz., from the year 1886, acted as the confidential agent of said Fleming and as such agent received large sums of money belonging to said Fleming, part of which she loaned for said Fleming and a large part of which he retained and used, giving therefor to said Fleming the notes of defendant, part of which were signed in the name of Charles Green and part of which were signed in the name of Green & LaMotte, a name in which defendant carried on and conducted the business of a real estate and financial agent.
“And plaintiff further says that a short time befo're the death of said Fleming, viz., in the year 1898, said Fleming owned and held the following notes, delivered to him by defendant, for money of said Fleming received and retained by defendant, viz., a note made by defendant in the name of Green & LaMotte, dated September 4, 1891, and payable six years after date, for sixty thousand dollars with interest at the rate of six per cent per annum, on which defendant paid the interest to March 4, 1897. And another note made by defendant in the name of Green & LaMotte, dated August 15, 1892, payable five years after, date, for ten thousand dollars, with interest at rate of six per cent per annum, on which interest has been paid by defendant to August 15,1897. And another note made by defendant in the name of Green & LaMotte, dated June 4,1896, payable three years after date, for one hundred and ten thousand dollars with interest from maturity at rate of six per cent per annum, and also six interest notes for the interest for three years on said note for $110,000, each for twenty-seven hundred and fifty dollars, dated June 4, 1896, and payable respectively in six, twelve, eighteen, twenty-four, thirty and thirty-six months after date. And at the same time that said Fleming owned and held said notes as aforesaid, he owned and had in the hands of defendant as his said agent the sum of $7,067.73, and he at the same time also held 2,069 shares of the stock of the People’s Railway Company of the value of $20,690. All of said notes, stock and cash were left in the possession and control of said Green by said Fleming as his agent to be exchanged for or used in the purchase of other property. Plaintiff demanded of defendant, on February 1, 1898, that he deliver to her said notes, stock and cash, or account to her for same, and he refused to deliver the same to plaintiff or to account to her for them or any of them, except to say that said Fleming delivered them to him to he paid out and delivered for $200,000 of stock in a company to he formed for the reorganization of the People’s Railway Company and the F'ourth Street and Arsenal railway when that shall have been formed.
“And plaintiff says that no company has ever been formed, nor any reorganization of said railway companies, and none ever can be, for the reason that all the property and franchises of both said companies have been sold under mortgages made long before the year 1897, and have been bought by third parties having no connection with said Creen or said Fleming.
“Wherefore plaintiff asks judgment against defendant for two hundred and fifty thousand dollars and interest and costs.”

The answer to this petition is a general denial.

On May 6, 1900, at the April term, 1900, of said St. Louis Circuit Court, this case was referred to Frank K. Ryan, Esquire, to try all the issues. The referee heard all the testimony adduced by the parties to this action and at the June term, 1902, of said court he filed his report, which was as follows:

“To the Honorable Circuit Court of the City of St., Louis:
“I, the undersigned, Frank K. Ryan, referee to hear and determine all the issues involved in the above-entitled cause by virtue of the order of this court of date May 7, 1901, having first taken and subscribed to the oath required by law, in the manner and form shown by the certificate thereof which is herewith returned, and having then tried the said issues under the notice, a,t the times and places that are set forth in the transcript certified by me of the record of the proceedings at said hearing which accompanies this report and which is made a part hereof, do now after necessary references to the pleadings herein and to the material portions of such record indicating questions of fact and law, state my conclusions on the entire case thus presented.
“To do so and to fully comply with defendant’s request that the referee herein make a separate finding as to each issue of law and fact arising under this reference, it is in order at the outset to state the issues that appear from the pleadings of the (II) parties hereto. It thus is found, the defendant’s answer being a general denial, that the present plaintiff Thomas F. Ackerman, administrator de bonis, non of the estate of Alfred W. Fleming, by adopting the petition of the original plaintiff, undertook to prove under the first count of said petition the allegations that Alfred W. Fleming died intestate in St. Louis county, Missouri, in January, 1898; that Mary C. Fleming (original plaintiff herein) was thereafter on the 24th day of January, 1898, appointed by the probate court of said St. Louis county administratrix of the estate of said Alfred W. Fleming, and that she duly qualified as such administratrix; that the defendant for many years previous to the death of said Alfred W. Fleming, viz., from the year 1886, acted as the confidential agent of said Fleming, and as such received large sums of money belonging to said Fleming, part of which he loaned for said Fleming, and a large part of which he retained and used, giving therefor to said Fleming his, said defendant’s, notes, some of which were signed in the name of Charles Creen and the others in the name of Creen & LaMotte, a name used by defendant in conducting the business of a real estate and financial agent; that a short time before the death of said Fleming, viz., in the year 1898, said Fleming owned and held the following notes, delivered to him by the defendant for money of said Fleming received and retained by the defendant, viz.: (1) note made by defendant in tbe name of Green & LaMotte, dated September.4, 1891, for sixty thousand dollars, with interest at the rate of six per cent per annum, and on which defendant paid the interest to March 4, 1897; (2) note made by defendant in the name of Green & LaMotte, dated August 15,1892, payable five years after date, for ten thousand dollars, with interest at the rate of six (III) per cent per annum, on which interest has beén paid by defendant to August 15, 1897; (3) note made by defendant in the name of Green & LaMotte, dated June 4, 1896, payable three years after date, for one hundred and ten thousand dollars, with interest from maturity at the rate of six per cent per annum; and (4) six interest notes to cover the interest for three years on said note for one hundred and ten thousand dollars, each for twenty-seven hundred and fifty dollars, dated June 4, 1896, and payable respectively in six, twelve, eighteen, twenty-four, thirty and thirty-six months after date; that at the same time the- said Fleming owned said notes as aforesaid, he owned and had in the hands of defendant as his said agent the sum of $7,067.73; and the likewise said Fleming at such time also held 2,069 shares of the stock of the People’s Railway Company of the value of $20,690; that all of said notes, cash and stock were left in the possession and control of said Green by said Fleming as his agent to be exchanged for or used in the purchase of other property; that plaintiff demanded of defendant on Feb-, ruary 1, 1898, that he deliver to her (said original plaintiff) said notes, cash and stock, or account to her for same, and that he refused to deliver same to her, or account to her for them or any of them, except to say that Fleming delivered them to him to be paid out and delivered for $200,000 stock in a company to be formed for the reorganization of the People’s Railway and the Fourth Street and Arsenal Company when that shall have been effected; also plaintiff further alleged in court, that no company has ever been formed for the reorganization of said railway companies, and that none ever can be, for the reason that all the property and franchises of both said companies have been sold under mortgages made long before the year 1897, and have been bought by third parties having no connection with said Green; and the plaintiff in said first count asks judgment against defendant for two hundred and fifty thousand dollars with interest and costs.
“And it remains to be said further in regard to such issues that by a second count of said petition the plaintiff herein also undertakes to show, first, liabilities of the defendant under allegations which restate all those of said first count, except that in said second count the agency of defendant is made to commence in 1885, instead of from 1886, as averred in said first count; and second, further liabilities under allegations with reference to additional notes and other property, as follows: Note for $20,000'; note for $39,000; ten bonds for one thousand dollars each of the Fourth Street and Arsenal Railway Company; note secured by deed of trust for $25,000, on which $9,000 has been paid, leaving a balance due thereon of $16,000 with interest thereon unpaid; and $20,000 in cash; for all of which plaintiff in said second -count asks judgment against defendant for the sum of three hundred and fifty thousand dollars and costs.
“But of the issues arising from and because of the foregoing allegations and the denial thereof by defendant there can be no serious contest under the evidence except in regard to the nine notes and the $7,067.73 cash mentioned in the first count of plaintiff’s petition, so that the question of plaintiff’s right to recover in this cause is confined to said first count and to these items thereunder. For the allegations leading up- to and subsequent to and having a bearing on the allegations containing these items, not including among such preliminary or subsequent allegations the allegation covering 2,069 shares of stock of the People’s Railway Company, seem to be admitted by the defendant; and certainly they have been proven and, therefore, we so hold and consequently find in favor of plaintiff on said isstfes proven as aforesaid. But as to the said remaining item, of said first count, viz., said 2,069 shares of stock, of the par value of $20,690, there is no proof that they are or were, during the time covered by this action, of any value whatever; but it is evident from the testimony that such stock was during said period worthless. Such being the ease, the defendant cannot be called to account as to that for which it does not appear that he received any value, or for that which could not be of any value to him. according to the evidence. So as to said shares of stock we find in favor of the defendant.
“The other reasons for confining the question of recovery here to said items of notes and cash as they are declared on in said first count are because they are also declared on in the second count of the petition in substantially the same form as in said first count, and, of course, there could not be two recoveries on said items, and because the remaining allegations of said second count have not been established by testimony. There was no proof at all about the $25,000 note of said count, and the evidence to the further items of said second count, the note for $20,000, the note for $39,000, and the ten bonds for $1,000 each of the Fourth Street and Arsenal Railway Company, fails to make a primafacie case against the defendant. Therefore, for the reasons aforesaid, I find in favor of the defendant as to said last four items, and my findings on the whole of said second count will appear at the end of this report.
“In view of our conclusions as aforesaid we have now only to .consider said items of notes and cash of said second count. On them the issues are both of law and of fact. As to the facts, the testimony shows clearly that for cash received from Alfred W. Fleming or for interest dne him the defendant got full value for the said notes; that they were left in the possession of the defendant as the confidential agent of the plaintiff; that the case is for a balance due on open account according to defendant’s books; and that the administratrix of said Fleming demanded said property from the defendant or that he account to her for same. Now we are not .aware that the defendant disputes any of these statements. In fact he seems to have admitted all of them. But defendant seeks to avoid any liability for the above facts on the ground that such notes and cash were surrendered to Green & LaMotte by A. W. Fleming in consideration of their agreement to deliver to said A. W. Fleming $200,000 of stock in the company to be formed on the reorganization of the People’s Railway Company and the Fourth Street and Arsenal Railway Company when that shall be effected. He also seeks to avoid any liability on said notes because of his alleged insolvency; contending that this is an action for conversion, and consequently that there can be no judgment against him for converting worthless things. Defendant’s further defense as to the cash.is that a balance due on a running account cannot be recovered in an action for conversion. With reference to the first of these defenses it appears that the alleged agreement is entirely oral, and that there was neither subscription for stock nor writing of any kind to evidence same. Furthermore it was conclusively shown that no such agreement could be carried out by the defendant; however, this defense has not been pressed by defendant’s learned counsel. But they do seriously maintain that the said second defense is sufficient, and that, for the reasons above stated, there can be no recovery on the notes in this form of action, which they assume is one for the conversion of personal property. But certainly the first count of the plaintiff’s petition which covers the items now being considered does not purport to state such an action. But it does state fully the business relations between said Fleming and tbe defendant and gives in detail the transaction bad ber tween them and on tbe facts stated recovery is asked. It is true that in tbe second count of tbe petition a refusal to deliver on demand is made a special ground for recovery, but it is not so in tbe first count. Still, it appearing that these notes but represent cash obtained from or interest due Alfred W. Fleming, defendant should not be beard in any form of action to say that bis notes given therefor are of no value. It follows from this conclusion that tbe evidence offered to show tbe insolvency of tbe defendant and which was received subject to tbe plaintiff’s objections, must be and is stricken from tbe record of testimony herein. Holding that tbe plaintiff’s action is not one for conversion, we cannot sustain defendant’s said third defense that there can be no recovery as to said item of $7,067.73 cash in this form of action, and on tbe grounds stated our finding on tbe said three defenses is in favor of tbe plaintiff.
“There will be findings, then, on said nine notes and on said cash, as follows: (1) On tbe said note for $60,000, dated September 4, 1891, with interest on tbe same at six per cent per annum from March 4, 1897, computed to January 4, 1902, a total of principal and interest of $77,400; (2) on said note for $10,000, dated August 15, 1892, with interest on tbe same at six per cent per annum from August 15, 1897* computed to January 4, 1902, a total of principal and interest of $12,633.33; (3) on said note for $110,000, dated June 4, 1896, with interest on tbe same at six per cent per annum from June 4, 1899', computed to January 4, 1902, a total of principal and interest of $126,994.81; (4) on said interest note of $2,750 dated June 4, 1896, payable six months after date, with interest thereon at six per cent per annum from maturity computed to January 4, 1902, a total of principal and interest of $3,588.75; (5) on said interest note for $2,750, dated June 4, 1896, payable twelve months after date with interest at six per cent per annum from maturity, computed to January 4,1902, a total principal and interest of $3,506.25; (6) on said interest note for $2,750 dated June 4, 1896, payable eighteen months after said date, with interest at six per cent per annum from maturity, computed to January 4, 1902; a total of principal and interest of $3,-423.75; (7) on said interest note for $2,750 dated June 4, 1896, payable twenty-four months after date, with interest from maturity at six per cent per annum, computed to January 4,1902, a total of principal and interest of $3,341.25; (8) on said interest note for $2,750 dated June 4, 1896, payable thirty months after date, with interest from maturity at six per cent per annum, computed to January 4, 1902, a total of principal and interest of $3,328.75; (9) on said interest note for $2,750 dated June 4, 1896, payable thirty-six months after date, with interest from maturity at six per cent per annum, computed to January 4, 1902, a total of principal and interest of $3,176.25. And. on said cash item of $7,067.73, with interest at six per cent per annum from the filing of this suit, August 3,1899, computed to January 4, 1902, a total of principal and interest of $8,092.50. All of said items being in the said first count of plaintiff’s petition, and aggregating the sum of $245,415.64. (6) I, therefore, recommend that the plaintiff have judgment on said first count of his petition in the sum of $245,415.64, with interest at six per cent per annum from January 4, 1902.
“Inasmuch as I have found for defendant on all the issues contained in the second count of the plaintiff’s petition that are not contained in and on which findings have been rendered in the first count thereof, I recommend that defendant have judgment on said second count.
“All of which is respectfully submitted,
‘‘Frank K. Ryan, Referee.”

Alfred W. Fleming was a man of large wealth, who resided in St. Louis county, Missouri, for many years previous to his death, which occurred in January, 1898. The defendant had been the business agent of Mr. Fleming for many years, and as such agent had received large sums belonging to Mr. Fleming. Some of this money he loaned out and invested and some of it he paid out for and on account of Mr. Fleming, and some of it he paid bach to Mr. Fleming, and a very large part of it he retained, giving his notes therefor to Mr. Fleming. He rendered statements from time to time to Mr. Fleming of the amount of money he had received and paid out, and the amounts for which he had given notes appeared in those statements. After the death of Mr. Fleming, his widow, Mary C. Fleming, was appointed administratrix of his estate; and she, as such administratrix, commenced this suit against the defendant in the circuit court of the city of ,St. Louis, on the 1st day of August, 1899. Subsequent to the commencement of this suit by Mary C. Fleming, administratrix of the estate of Alfred W. Fleming, she died, and the present administrator took charge of said estate and the cause of action was revived in his name.

We deem it unnecessary to give a detailed statement of the evidence before the referee upon which his findings as contained in the report were based. It will suffice to say that the testimony introduced by the plaintiff before the referee was ample to support the findings as made in the report.

Mathew W. Quann, father of Mrs. Fleming, testified, clearly,, consistently and positively, to conversations had with the defendant, Mr. Green, and that Mr. Green had said that he would have a statement prepared as to the business transactions between him and Mr. Fleming, and give it to him; and he also testified that he got this statement and that on the day he received it he met Mr. Green who stated to him that the statement was ready for him and to call at the office and get it, and thereafter on that day he called at Mr. Green’s office and Mr. Kearney handed him an envelope sealed np which contained the paper which is marked “Exhibit No. 1” in the abstract. On the trial, this statement was produced and introduced in evidence, which was as follows :

“The following notes and stock was surrendered to Green & LaMotte by A. W. Fleming in consideration of their agreement to deliver to said A. "W. Fleming $200,000 of stock in the company to be formed on the reorganization of the People’s Railway Company and the Fourth Street and Arsenal Railway Company when that shall be effected:

“State of notes and stock surrendered on the above mentioned agreement:
“Note of Green & LaMotte, dated September 4, 1891, for..........$ 60,000.00
Note of Green & LaMotte, dated August 15,1892, for................ 10,000.00
Note of Green & LaMotte, dated June 4, 1896, for................... 110,000.00
Six interest notes, Green & LaMotte, - dated June 4,1896, each for... 2,750.00
Statement from ledger to February 5, 1898, balance...... ........ 7,067.73
2069 shares of stock of the People’s Railway Company.”

The statement of witness Quann was corroborated to some extent by Mr. Kearney, bookkeeper for Mr. Green, who testified that after the death of Mr. Fleming he gave Mr. Quann an envelope which Mr. Green had given him with direction to give it to Mr. Quann when he came in; that the envelope was sealed and that he did not know what was in it.

As to the proof in regard to the note of $110,000, about which appellant raises some question, we will state that.we have carefully read the disclosures of the record in detail, and find that the proof upon that question fully supports the finding of the referee. The statement as heretofore mentioned, which was given the witness Quann upon the directions of Mr. Green, is corroborated from the book account kept by the defendant, and which was read in evidence from ledger ‘ ‘ N. ” Mr. Eighth older, who was a bookkeeper for the defendant, also corroborates the correctness of the statements as given to witness Quann.

It is also unnecessary to set out in detail the testimony offered by the defendant in order to enable us to determine the legal propositions involved in this controversy. It is sufficient to say that the testimony offered by defendant tended to contradict many of the material matters offered in evidence by the plaintiff, and to show a different state of facts.

Upon the filing of the report learned counsel for ■appellant duly filed his exceptions to the same, which exceptions were fully heard by the trial court and overruled, and the report of the referee approved and judgment rendered upon the first count in the petition in accordance with the findings and recommendations of the referee.

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. From this judgment defendant in due time and proper form .prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

It is manifest from the disclosures of the record in this cause, and it is practically conceded in the brief of learned counsel, that the main questions involved are in respect to the form of the action, and the action of the referee in excluding the evidence offered by appellant as to his insolvency.

1. It is earnestly contended by appellant that the first count of the petition upon which the judgment was rendered in this cause is simply an action for the conversion of the notes and other securities mentioned in the petition.

2. Assuming the correctness of the first contention, it is urged that the action of the referee in excluding the testimony tending to show that defendant, who was the maker of the notes, was insolvent, was error, for which the judgment in this cause should be reversed and the cause remanded. In other words, it is insisted by appellant that he had the right to show, upon the question of the measure of damages, in this form of action, that, notwithstanding he was the maker of the notes, he was in fact insolvent, and that the notes were valueless and that plaintiff was only entitled to recover nominal damages.

We are unable to agree with learned counsel for appellant upon either of the contentions as above indicated. In the first place, this is not an action for conversion, and, secondly, if it was, defendant being the maker of the notes, cannot set up or show his own insolvency in mitigation of damages.

It is unnecessary to discuss the form of this action or its name. The statute of this State by express provision has named all proceedings in the courts of this State for the enforcement or protection of private rights and redress or prevention of private wrongs. Section 539, Revised Statutes 1899, provides: “There shall be in-this State but one form of action for the enforcement or protection of private rights, and redress or prevention of private wrongs, which shall be denominated a civil action; and the party thereto complaining shall be known as the plaintiff, and the adverse party as the defendant.” We have also provided by the Code a guide in the construction of pleadings. ' Section 629, Revised Statutes 1899, provides that “in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with, a view to substantial justice between the parties.”

We must approach the consideration of the petition in this cause with the full recognition of the changes wrought in respect to the construction of pleadings by the enactment of the Code, and pleadings must be construed in the light of the intention and spirit of the provision of the statute as herein indicated. "We have in this case, in the first count of the petition, a statement of a cause of action growing out of many years of business transactions between Alfred W. Fleming and the defendant, who during that period was the confidential agent of said Fleming, and this action is nothing more nor less than one to adjust and settle such business transactions. In other words, by this action it is simply sought to recover an indebtedness for large sums of money which had been placed in the hands of the defendant during the existence of the agency between Fleming and the defendant. The petition alleges that the defendant received large sums of money belonging to Fleming, part of which he loaned for said Fleming and a large part of which he retained and used, giving therefor to said Fleming the notes of defendant, part of which were signed in the name of Charles Oreen and part of which were signed in the name of Oreen & LaMotte, a name in which defendant carried on and conducted the business of a real estate and financial agency. Then follows a designation of the notes executed by the defendant, together with the interest promised to be paid. This petition in a plain and concise manner states the relation existing between the parties, as well as all the facts which indisputably show that defendant is indebted to plaintiff for money which belonged to Fleming and which came into the hands of defendant and has not been paid over to Mr. Fleming or his legal representatives. The statement of the facts setting out the cause of action in the first count of this petition plainly demonstrates that plaintiff is seeking to have defendant account to the legal representative of the deceased Fleming for money due said Fleming. The amount of the indebtedness is clearly stated and the prayer of the petition is for a judgment for that amount.

This petition seeks to make known to the court the history of the business transactions between Alfred W. Fleming and the defendant, and fully sets forth the indebtedness and how it is evidenced, and asks for judgment for the amount of such indebtedness, and we are unwilling to say that because of the mere designation of the notes executed by the defendant which he refused to turn over to the legal representatives of Alfred Fleming, this action should be named one for conversion of such notes. The clear intent of the pleader is demonstrated by the pleading itself that it simply seeks to adjust business transactions of many years standing between principal and agent and recover the amount of money which had during the many years of their business relations been placed in. the hands of the agent for investment or a loan.

It was ruled by this court in Stillwell v. Hamm, 97 Mo. l. c. 586, that “a pleading should not now be construed most strongly against the pleader. Its language should be taken in its plain and ordinary meaning, and such interpretation given it as fairly appears to have been intended by its author. ’ ’

In Clark v. Clark, 86 Mo. l. c. 124, it was ruled that we have under our system but one form of civil action, and all that is required to enforce a demand is that the petition should set out the facts, whether the same were such as would entitle the claimant to legal or equitable relief. To the same effect is Johnson-Brinkman Co. v. Central Bank, 116 Mo. l. c. 567-568.

The rule as applicable to pleading under the Code is nowhere more clearly announced than in Globe L. and H. Co. v. Doud, 47 Mo. App. l. c. 451. In discussing the question of pleading, it was said: “Now when it is remembered that in the word and spirit of our Code, we have nothing to do with these old forms of procedure; that we have ‘but one form of action for the enforcement or protection of private rights, etc., which shall be denominated a civil action;’ and that our pleadings (whether petition or answer), shall be sufficient if they state in a plain and concise manner the facts constituting the cause of action or defense, etc., we find ourselves relieved of any needed discussion of these intricacies in pleading which served more as pitfalls than as aids to a just administration of the law. It is enough, under our system, that such facts appear as justify a judgment the one way or the other. We have no concern as to the mere form of pleading.” To the same effect is Padley v. Catterlin, 64 Mo.. App. l. c. 638. The court in that case, in discussing the provisions of the statute applicable to pleading under the Code, said: “We are commanded by the' statute to distinguish between form and substance; to disregard any defect in the pleadings which shall not affect the substantial rights of the adverse party, and in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. It has been ruled that it is necessary to give effect to these statutory provisions, that a pleading must be construed to mean what fairly appears to have been intended by the pleader” — citing Stillwell v. Hamm, 97 Mo. 579. [National Bank of Commerce v. Pennington, 42 Mo. App. 355.]

While it may be said that the first count of this petition might have been made more definite and certain, yet defendant took no steps in that direction, simply filed a general denial, and it must be held that this petition after judgment is sufficient.

This leads us to the consideration of appellant’s second contention that the referee erroneously excluded the testimony offered by appellant as to his insolvency. As before stated, this contention is urged upon the assumption that this is an action for conversion. We' have herein given expression to our views upon that question. This is not an action for conversion, but even ^though it was, the action of the referee was proper.

It must be remembered that the defendant was the maker of the notes designated in the petition, and the contention is that he had the right to show that the notes were worthless and thereby prevent a recovery, except for nominal damages. This court is unwilling to sanction such a doctrine. The Supreme Court of New York, in Outhouse v. Outhouse, 13 Hun 132, thus states the law upon this subject. It is there said that “it is true that the general law in an action for the conversion of a note of a third party is, that the damages are to be measured by the amount apparently due upon the note, but it may be shown that by reason of part payment, or the insolvency of the party obligated to pay the note, or by reason of the existence of some legal defense to the note, the plaintiff has not, in fact, sustained damages to the extent of the face of the note by reason of its conversion. [Booth v. Powers, 56 N. Y. 22.] It is, however, held that where the maker of the note has converted it, in an action brought against him for such conversion, he cannot set up his own insolvency by way of mitigating the damages.”

The law upon the subject now under discussion is nowhere more clearly or correctly stated than in Stephenson v. Thayer, 63 Maine 143. It was insisted in that case, as it is in the case at bar, that the defendant’s insolvency was a matter for the consideration of the court or jury in estimating the damages to be assessed, and an instruction was requested on the part of the defendant embracing that theory of the law. The request was denied and the court in discussing the action of the lower court in denying such request thus forcibly and clearly stated the law upon that subject: “A debtor cannot, after wrongfully depriving his creditors of the evidence of Ms indebtedness, mitigate tbe damages to be recovered against bim for tbis act by setting np bis own worthlessness. Tbe snm wbicb tbe defendant himself realizes by tbe act of conversion must surely be tbe lowest measure of damages. If a man takes up bis own paper in that manner, tbe amount wbicb be would have been legally bound to pay to retire it regularly, is surely tbe amount wbicb be has realized by its conversion. Tbe remark made by tbe presiding judge in refusing tbe request was doubtless correct; and tbe distinction thereby recognized between tbe position of a man who wrongfully converts securities upon wbicb be is himself liable, and bim who converts securities outstanding against third parties (wbicb may be of more or less value according to tbe ability of those parties to pay) is just and sound. Nor is there anything in tbe authorities cited by defendant’s counsel to militate against the rule laid down in tbe charge. Mathew v. Sherwell, 2 Taunt. 439, was a suit brought by tbe assignee of a bankrupt against one who bad received tbe bankrupt’s check after tbe act of bankruptcy, and tbe sole ground upon wbicb tbe plamtiffs could be supposed to have any claim at all was that tbe check was invalid. Tbe plaintiffs then mistook their remedy in claiming damages for tbe conversion of a piece of paper wbicb they themselves contended bad no legal, force or efficacy. In O’Donoghue v. Corby, 22 Mo. 393, tbe plaintiff sued an officer of a corporation in trover for withholding an account wMcb bore a certificate of approval by an auditing committee. Tbe defendant answered that the account contained false charges and was allowed by tbe auditing committee under a mistake Of facts which were well known to tbe plaintiff, and that payment of tbe account bad been withheld by tbe direction of tbe president of tbe company. Tbe court held that tbe amount apparently due was prima facie tbe amount of damages for tbe conversion, but that it was competent for defendant to show in reduction of damages — not that the company was unable to pay — but that the document was of less value than it purported to be or even that it was of no greater value than the paper it was written upon by showing payments, or the facts set up in the answer or any facts impeaching the validity of the instrument. The case does not sustain the position taken by the defendant here. He had the benefit of all that went to show that less was due upon the notes than appeared by their tenor. More than this he could not rightfully claim.”

To the same effect is Robbins v. Packard, 31 Vt. 570. There it was said that “the general rule seems to be well settled that when trover is brought to recover for notes, or other choses in action, executed by persons other than the defendant, but which the defendant had in Ms possession, and wrongfully withholds from the plaintiff, the rule of damages is the value of the property. This, prima facie, is the amount due on the instrument, but this may be rebutted by proof of its actual value. But when the action is brought to recover for notes executed by the defendant himself, and which he wrongfully withholds, the rule of damages is the amount due thereon at the time of trial, without reference to the ability of the defendant to pay. The plaintiff, in such case, is entitled to a judgment for an amount equal to the debt which he has against the defendant, and which is discharged by such judgment.” [1 Sedgwick on Damages, sec. 256.]

The general rule as to the measure of damages in action for the conversion of choses in action is stated as in the Maine and New York cases, and the learned author, in line with all the well-considered cases, notes the exception to the general rule when the action is against the maker, and after announcing the general rule, thus announces the exception: “But the maker himself cannot give evidence of his pecuniary circumstances to reduce the damages.” Mr. Daniels on Negotiable Instruments, sec. 1468a, substantially announces the same rule.

The rules of law as announced in the cases herein indicated, as to the measure of damages in actions against the maker for the destruction or conversion of choses in action executed by himself, are sound and logical, as well as being in harmony with the plain common principles of fair dealing between man and man. To hold that the maker of an instrument can obtain it, destroy it or convert it to his own use and then in a proceeding for the recovery of damages for such wrongful act to say that he can set up his own insolvency in mitigation or reduction of the damages sought to be recovered, to the judicial mind seems to be a monstrous doctrine, and we are unwilling to give our sanction to it.

In support of the contention of appellant upon this proposition we are cited to the cases of Fry v. Baxter, 10 Mo. 302; O’Donoghue v. Corby, 22 Mo. 393; and Menkens v. Menkens, 23 Mo. 252.

While the case of Fry v. Baxter, supra, was an action for trover against the maker of the note, a careful analysis of the opinion of the learned judge in that ease will demonstrate that the question as to whether or not the maker could reduce the damages by reason of his own insolvency was not involved in that case, nor was it discussed, and Judge Napton simply announced the general rule as applicable to actions of that character, without noting the exceptions to such general rule which has been approved by the text-writers and the well-considered adjudicated cases upon this subject; hence that case cannot be considered as authority supporting the contention of the appellant. The case of O’Donoghue v. Corby, supra, is clearly distinguished in the case of Stephenson v. Thayer, supra, as herein indicated. Neither does the case of Menkens v. Menkens, supra, support the contention so ably presented by counsel for appellant. The plaintiff in that case had delivered the note to defendants for collection and they were far removed from being makers, and the question involved in the proposition now being discussed was not before the court in that case, nor was it in any manner referred to; hence it furnishes no> support to the insistence of the appellant upon the proposition now before us.

We deem it unnecessary to pursue this subject further. Our attention has been called to no case in this State where it has been held that the maker of a note can obtain it, convert it to his own use or destroy it, and then in an action against him set up his own insolvency in mitigation of the damages sought to be recovered for the wrong done, and if the eases to which our attention has been called are to be construed as announcing that rule of law, speaking for myself, I am unwilling to follow them. However, we are firmly convinced that the learned judges announcing the opinions in those cases never intended to announce such a rule.

We have thus given expression to our views upon the legal propositions involved in the record before us. We have carefully read in detail the testimony upon which the report of the referee is predicated, and are of the opinion that the judgment in this cause was manifestly for the right party and should be affirmed, and it is so ordered.

concur.