author: LAMM, P. J.

text:
    JAMES B. JOHNSON, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, et al.
    Division One,
    April 12, 1910.
    1. APPEAL: Motions to Dismiss and*Strike Off: Final Judgment. Where a demurrer to plaintiff’s third amended petition was sustained as to a certain group of defendants and in the same order a former order of publication as to another group was quashed on the ground that, though non-residents, the property-sought to be reached had its situs elsewhere and the court therefore was without jurisdiction, neither a motion by the first group to dismiss the appeal, nor one by the second group to strike the cause from the docket, on the ground that “there is no final judgment as to all the defendants,” will be sustained. Under the statutes the judgment was final as to all the defendants.
    2. INJUNCTION: Sound Discretion: Rights of Defendants and the Public. Injunction is the strong arm of the court, and to render its operation benign and useful should be exercised with great judicial discretion, and only when necessity requires it. It is not only the rights of plaintiff which are to be considered, but those of defendants, and of all silent persons in like situation with defendants, and if the life and efficiency of a great public service corporation are involved then the interest and conveniences of the public are also to be considered.
    3. -:-: To Rescind Corporate Agreement to Sel! Assets: Status Quo Ante: Disproportionate Injury. Where the suit is brought by a single stockholder (whose, holdings are comparatively small, and who bought his stock in the market after the - agreement was made) to rescind an agreement by which one public service corporation and all its other stockholders agreed to turn over its properties and franchises to another corporation, and thereby provide a way for paying its pressing debts, which the bill fails to disclose it had any other means of paying, the writ should not issue, if it is apparent from the.bill (1) that the negotiation has so far progressed that it will be impossible for any judicial decree to restore the status quo ante of the insolvent company, or (2) that the injury that would result to others would be disproportionate to any reasonably-to-be-expected benefits that could result to plaintiff under the application of just principles of equity.
    4'. -: - :-: Already Executed. Aside from this, it being evident that the amended bill is framed on the theory that the agreement has already been executed, it is not clear that the remedy by injunction should be employed, even though the manifest injury to others'be overlooked.
    B7 RESCISSION: Agreement to Sell Assets: Suit by Minority Stockholders. Where minority stockholders do not consent to. the sale of the corporate properties, and the sale has already gone into effect, rescissien will not be decreed where it will be productive of more injury than would result from a refusal of it, or where the asking stockholder stood by until the rights of strangers, not parties to the suit, and the public generally have attached. Furthermore, when a person becomes the owner of shares of a corporation, his right to the equitable relief of rescission of a corporate sale is modified by the fact that he holds small portions of the stock; and if he has a remedy at law for his injuries resulting from wrongful conduct whereby his stock is converted or its market value taken from him an equity court will not decree rescission.
    6. -: -: -: Accounting. A stockholder cannot in the same bill repudiate the sale and yet take under it. If the purpose of his bill is to have rescinded a corporate contract of sale, by which all the assets of the corporation have been transferred to another, and to have rehabilitated and built up, the corporation pulled down, and rescission cannot on equitable principles be decreed, he cannot have an accounting for his stock wrongfully converted. If the value of his stock has been wrongfully converted without his consent, he has his remedy for damages in an action at law.
    7. ORDER OF PUBLICATION QUASHED: Demurrer Sustained. Where the demurrer of certain defendants to the bill is properly sustained, on the ground that it does not state a cause of action, it is no longer an open question as to whether the court erred in quashipg an order of publication by which other defendants were brought in.
    Appeal from St. Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge.
    Aeeikmed.

      Jno. A. Gillimn for appellant.
    (1) The quashing of the order of publication was error. The St. Louis Transit Company and the United Railways Company of St. Louis were both corporations of the State of Missouri, and this State was primarily and necessarily the State in which the ownership and disposition of that stock should be litigated and the courts of this State alone could adjudicate the ultimate right thereto, and this was the only State that could fully enforce its decrees therein. Armour Bros. y. Smith, 113 Mo. 12; Stout v. Stout, 77 Ind. 539; Lippincott v. Carriage Co., 34 Fed. 575; O’Connell v. Taney, 16 Colo. 353; Abbott v. Groodall, 100 Me. 281; Fahrig y. Brewing Co., 113 HI. App. 525; Patterson v. Railroad, 76 Conn. 635; Crichton v. Webb Press Co., 36 So. (La.) 931. (2)- While in the case at bar, by reason of the unauthorized acts of the directors and some of the stockholders, the corporation was not formally dissolved, and is still in formal existence, yet its business was all closed out on October 31, 1904, by an alleged surrender of its lease and turning over all its assets either to its own stockholders by a gift of two shares of United Railways stock for each five shares of Transit stock held by them, or turning over to Brown Bros. & Co. on an alleged sale, or to the United Railways Co. All the Transit Co. debts were not paid. Hence plaintiff had a perfect right on that ground alone to refuse to take two shares of United Railways common stock for five shares of Transit stock, because he would immediately be liable to a suit by corporate creditors for the stock so received. Cook on Corp., sec. 641 (5 Ed.), p. 1436; R. S. 1899, sec. 1187. There were over 9',000 shares not voted at the so-called stockholders ’ meeting, and hundreds of thousands in debts were not paid. Dividends paid to stockholders out of assets are illegal as to corporate creditors whether paid before or after dissolution. Cook on Corp. (5 Ed.), sec. 546 and 642, p. 1445. As no provision whatever was made in the so-called tripartite agreement to pay negligence creditors, otherwise cripples, widows and orphans injured by the operations of .the Transit Company, there was certainly no obligation on the plaintiff as a stockholder to accept stock in the United Railways Company forhis stock in the Transit Company, and then be subject the next day to a suit for its value. Lamar v. Allison, 101 Ga. 270; Railroad v. Howard, 7 Wall. (74 U. S.) 392; Hastings v. Drew, 76 N. T. 9; Gratz v. Redd, 4 B. Mon. (Ky.) 178; Yance v. MeNabb, 92 Tenn. 47; Grant v. Southern Contract Co., 104 Ky. 781; Gill v. Balis, 72 Mo. 424; Alexánder v. Relfe, 74 Mo. 495; Hernán v. Britton, 88 Mo. 549; Hagemann v. Railroads, 202 Mo. 249; Marr v. Bank, 4 Cold. (Tenn.) 471; Missouri Lead M. & S. Co. v. Reinhard, 114 Mo. 218; Railroad v. Bee, 48 Cal. 398; Bridge Co. v. Fowler, 55 Kas. 17; Railroad v. Evans, 66 Fed. 809. Further, one of the conditions of the offer to plaintiff and other stockholders, which plaintiff refused, and declares in his petition was ultra vires, was that the United Railways stock he was to get was to he in a voting trust for five years under the absolute control of Brown Bros. & Co. Surely the law has never yet gone so far as to compel him to take stock in another corporation, in which he is forbidden to have any sort of control for five years. Barrie v. Railroad, 138 Mo. App. 557. The defendants, who are mostly directors, could not purchase the assets of the Transit Co. Bosworth v. Allen, 168 N. Y. 157; Cook on Corp. (5 Éd.), sec. 648; 120 Fed. 440; Port v. Russell, 36 Ind. 60; Rutland Co. v. Bates, 68 Yer. 579; Miner v. Ice Co., 93 Mich. 97; Fougeray v. Cord, 50 N. J. Eq. 185. Equity throws the burden on the director to show that purchase was proper, fair, made in good faith, and without any undue advantage of the corporation. Ryan v. Williams, 100 Fed. 172; Coombs v. Barker, 79 Pac. (Mont.) 1; Brewing Co. v. Flanner, 44 La. Ann. 22; Booth v. Land Co., 59 Atl. 767; 10 Cyc. 807-814; Jones v. Missonri-Edison Co., 144 Fed. 765. Complainant may pray for complete setting aside of transfer or for such other relief as equity under the circumstances can grant, and equity will grant him the relief to which he is entitled. Jones v. Missouri-Edison Co., 144 Fed. .765; Liese v. Meyer, 143 Mo. 547. The minority are entitled to a public sale. Cook on Corp. (5 Ed.), sec. 662, p. 1531 and sec. 671; Chicago Cab Co. v. Yerkes, 141 111. 320; Mason v. Pewabic Co., 133 U. S: 50; Keen v. Johnson, 9 N. J. Eq. 401; Ervin v. Oregon Nav. Co., 27 Fed. 625; Railroad v. Railroad, 13 R I. 260; Morris v. Elyton Co., 125 Ala. 263; Forrester v. Boston Co., 21 Mont. 544; Feld v. Roanoke C'o., 123 Mo. 603; Elyton Land Co. v. Dowdell, 113 Ala. 177; Carter v. Producer’s Co., 164 Pa. St. 463.

      Boyle & Priest and T. E. Francis for respondents.
    (1) The appeal should he dismissed for the reason that no final judgment has been rendered disposing of all the parties to the cause. Eighteen of the thirty defendants demurred, and upon the demurrer being sustained, final judgment was rendered for them, but no judgment in favor of the other defendants was rendered, and the cause is still pending in the court below as to them. Rock Island Imp. Co. v. Marr, 168 Mo. 252; Baker v. St. Louis, 189 Mo. 375. (2) The court did not err in quashing the order of publication against the non-resident defendants. The only relief that could be granted as to said defendants, under the averments of the bill, would be to order an accounting, and any judgment that might be rendered thereon would necessarily be in personam. In such a case, -jurisdiction cannot be obtained by publication. Beyer v. Trust Co., 63 Mo. App. 521; "Wilson v. Railroad, 108 Mo. 588; Mos,s v. Fitch, 212 Mo. 484; Pennoyer v. Neff, 95 U. S. 714. (3) Plaintiff cannot maintain this suit, because he had not registered his stock nor obtained recognition from the corporation as a stockholder, at the time it was filed. Brown v. Railroad, 53 Fed. 889; Hodge v. U. S. Steel Corp., ’53 Atl. 601. (4) Plaintiff cannot maintain the action because he was guilty of laches. Tanner v. Railroad, 180 Mo. 18 Hanchett v. Blair, 100 Fed. 827; Field v. Roanoke Inv. Co., 123 Mo, 603; Sheldon Hat Co. v. Eixkemeyer Co., 90 N. T. 611; 1 Thompson on Corp., sec. 80; 4 Thompson on Corp., see. 4534; Zabriskie v. Railroad, 23 How. (U. S.) 398; 5 Notes U. S. Rep. 1000; Commonwealth v. Cullen, 53 Am. Dec. 467 (note); Stokes v. Detrick, 76 Md. 226; Tash v. Adams, 10 Cush. 252. (5) (a) A suit by a stockholder of a corporation to set aside a transfer of the corporation’s property is essentially a suit on behalf of the corporation. 26 Am. & Eng. Ency. Law, p. 972; Exeter v. Sawyer, 146- Mo. 324. (b) It necessarily follows that where the corporation itself has no valid cause of action, a stockholder cannot maintain any such suit in its behalf. 26 Am. & Eng. Ency Law, p>. 972; Waymire v. Railroad, 112 Cal. 646; Miller v. Magazine Co., 10 Misc. (N. Y.) 311; Hart v. Railroad, 89 Hun (N. Y.) 316; Hutchison v. Simpson, 92 N. Y. App. Div. 382. (c) Where suit is brought for the rescission of a contract, the plaintiff has no cause of action unless he tenders back whatever of value he has received and places the other contracting party in statu quo. Buford v. Packet Co., 69 Mo. 611; Robinson v. Sipple, 129 Mo. 1. c. 220; Melton v. Smith, 65 Mo. 315; Donovan v. McDermott, 108 Mo. App. 533; 12 Enc. PI. & Pr., 831. (d) The Transit Company would have no standing in court to rescind the tripartite agreement and to recover back the property it had disposed of in pursuance thereof, unless it first restored the status quo by returning to the other contracting parties that which they paid out and assumed as consideration for the transfer of said property. And plaintiff in suing for Transit Company stands in precisely the same position as that company would, were it the plaintiff. The petition does not, therefore, state a cause of action, inasmuch as it does not allege or show any offer, willingness or ability to restore the status quo either by plaintiff or the Transit Company. Buford v. Packing Co., 69 Mo. 611. Authorities cited under subdivision c, supra. (6) If facts were pleaded that would justify a decree of rescission, such rescission would not be granted, because it would be productive of more injury than would result from a refusal of it. Tanner v. Railroad, 180 Mo. 1; Bailey v. Culver, 84 Mo. 540; Railroad v. Payne, 49 Eed. 114; Swift v. Jenks, 19 Fed. 643; Morris v. Pruden, 20 N. J. Eq. 530; Railroad v. Strauss, 37 Md. 237; Sheldon v. Rockwell, 9 Wis. 166; Cobb v. Smith, 16 Wis. 166; Gray v. O. & P. Co., 1 Grant’s Cas. 412; Yan Ranee v. College, 4 Hun 620; Meredith v. Say-er, 32 N. J. Eq. 557; Southard v. Canal Co., 1 N.~ J. Eq. 518; Sprague v. Rhodes, 4 R. I. 301; Wood v. Sutcliffe, 8 Eng. L. & E. 217 (7) In the tripartite agreement, set ont in the bill, Transit Company admits that it had no way of paying a shortly maturing indebtedness of $6,711,000, most of which was secured by a pledge of the securities sold to Syndicate, except by the sale of .those securities as provided in that agreement. This admission of inability to pay this huge sum was a confession of insolvency, and it is not alleged in the bill to be untrue. Neither is it alleged that this sale was brought about through clandestine methods, nor that any other person offered to or would have paid more for the securities than Syndicate did, nor that any other person was prohibited from making an offer for them. Under these facts, the sale of said securities was not fraudulent in law.
   LAMM, P. J.

Suit in equity by a stockholder of the St. Louis Transit Company on behalf of himself (and any others who, willing to share the expense, may wish to join) for rescission of certain corporate acts and contracts and'for an auxiliary injunction. Cast on demurrer to his third amended bill, plaintiff appeals.

The grounds of the demurrer were that the bill did not state facts sufficient to constitute a cause of action and was multifarious. The demurrer was offered on behalf of certain corporate defendants and individuals actually served with process. There was a group of defendants made parties to the third amended bill and not summoned. As to them, an affidavit of non-residence was made and an order of publication issued which was quashed and set aside on their motion, they appearing specially for that .purpose only. In brief, the grounds of that motion were that the suit was not of the character authorizing publication against them under section 575, Revised Statutes 1899, or any other statute. That the bill does not show that the property in their hands is within the State of Missouri. It shows that they are charged with making certain commissions and profits, which commissions and profits are the only property alleged to be in their possession; all the other property in question being shown to be in the possession of the defendants, the United Railways Company; that such profits are personal property having its situs at the residence of defendants; and that the order of publication, improvidently made, confers no jurisdiction over defendants or any of them so as to authorize any judgment whatever against them. This motion was sustained with the demurrer, plaintiff assigning error on both rulings.

The group of defendants served with summons file a motion here to dismiss the appeal. The other group (the one sought to be brought in by publication) file a motion to strike the cause from the docket. The first motion is predicated of the notion that there is no final judgment “as to all of the defendants, and plaintiff’s appeal is, therefore, premature.” The grounds of the last motion are, first, because there is no final judgment against movents; and, second, no order below allowing an appeal as against them.

The questions here are three: First, were the motions to dismiss and strike from the docket well taken? Second, was there error in sustaining the demurrer? Third, or in sustaining the motion to quash the order of publication?

I. Of the motions to dismiss and strike off. They are supported in briefs of like tenor; therefore, call for a common exposition. The record shows that on November 12,1906, the following entry was spread of record: “The court having heard and duly considered the demurrer to the amended petition, and the motion to quash the order of publication as to certain defendants, . . . doth order that the same be and are hereby sustained.” On November 19th, plaintiff has his bill of exceptions settled, allowed, signed and filed, duly saving an exception to the ruling of the court on the motion to quash. November 22d, at the same term, a nunc pro tunc entry was made correcting the entry of the twelfth. In effect, it left it stand as a ruling on the motion to quash, that is, it says nothing about it, but narrates that by inadvertence the entry of November 12th does not correctly set forth the order and judgment, that the cause came on to be heard on the demurrer of certain defendants (naming them), that the court is now sufficiently advised in the premises and “doth order, adjudge and decree that said demurrer be and the same is hereby sustained.” It goes on to find that this is the third amended petition and that two other amended petitions had been “adjudged insufficient in whole upon demurrer. ’ ’ On such premise, it adjudges plaintiff pay treble costs, take nothing by his writ, that said defendants go hence without day, and that the bill (quoting) “be dismissed out of court for want of equity, and that this decree be treated and regarded and stand in all respects as the final decree in this cause,” etc. Following such nunc pro'tunc entry, plaintiff filed his affidavit of appeal and one was allowed to him.

It is on such a record defendants contend there is no final disposition of the cause as to the group of nonresidents ; and, they say, absent such final disposition, the cause is still pending below as to them; ergo, the appeal is premature.

But we are unable to agree with learned counsel. We think it clear this plaintiff had reached the end of his row below and that a sufficient final disposition of the cause had been made as to all defendants. For instance: As to the groups brought in by service he could plead no further; for the statute put up the bars at that point and directed final judgment. [R. S. 1899, sec. 623.] As to the group not brought in it would have been a vain and futile thing, without fruit, for him to ask for- another order of publication. This because the motion to quash was not directed to any irregularity of form or other remediable defect in the order of publication or in its execution, but struck straight at the heart of the matter, vis., the right to any order of publication whatever, and the court, responding, held that group of defendants not amenable to constructive service. Counsel argue that plaintiff might have sued out an alias summons. But it would have been just as vain and useless to ask for a summons against them, for on this record they must be taken as non-residents. Having obtained a ruling in their favor as non-residents they are estopped to deny they were non-residents and cannot be permitted to say a summons would have been effective. So, it would have been unjust to require plaintiff to dismiss as to them; for he claimed the right to make them parties and recover against them, and, had he dismissed, that right was gone. That group of defendants were not entitled to a judgment against him; for they were not in court for such purpose and asked no such judgment. So, under our statutory scheme, a “motion” calls for an “order” only. [R. S. 1899, sec. 768.] Furthermore, the plaintiff was not entitled to a final judgment against himself on that motion, because there can be but one final judgment in a cause. [R. S. 1899, sec. 694, 773.] In this case there was a final judgment entered on the demurrer. That was the appointed and statutory time and place for it. [R. S. 1899, sec. 623.]

The premises considered, the learned trial judge indicated the right view of it when he said “That this decree be treated and regarded and stand in all respects as the final decree in this cause.”

In giving effect to statutes ordaining that there should be only one final judgment in a cause, we have ruled that final disposition must be made below as to all the defendants so that when the cause comes up it comes here as an entirety and not be left partly below. Defendants rely on cases of that character. [Rock Island Implement Co. v. Marr, 168 Mo. 252; Baker v. St. Louis, 189 Mo. 375.] Those were cases in which all the defendants were actually served with process. Nothing we have said militates against anything’ resolved in those cases. Here there was a final disposition as to those defendants brought in as well as those kept out. We know of no rule of code practice requiring the final judgment itself to show the final disposition made of the case as to each and every defendant. The record may show, as here, that the case was disposed of as to some by interlocutory rulings on motions. Nor is it the policy of any benign system of laws to force a litigant to give up any substantive right (for instance, by dismissing as to some defendants) in order that he may appeal — contra, the road up should be left open and as free from obstacles as a reasonable construction of the statutes will permit, the very object of an appeal being to preserve all such substantive rights to him. If we ruled as defendants’ counsel argue we would hold that this plaintiff, under circumstances present, could neither go on below nor come up by appeal — a most lame and impotent conclusion arresting his cause midway and practically denying him his day in court.

The motions to dismiss and to strike from the docket are overruled.

II. Of the demurrer. Plaintiff’s counsel put his own estimate on his third amended bill by stating the object and general nature of it in the order of publication, thus: “To set aside the agreements made by said United Railways Company with the St. Louis Transit Company and the Brown Brothers & Company syndicate in September and October, 1904, to set aside the surrender and cancellation of the lease of the United Railways Company to said St. Louis Transit Company of date September 30, 1899. To set aside the sale of the bonds, stocks and assets of the St. Louis Transit Company to the United Railways Company and Brown Brothers & Company syndicate, to restore the St. Louis Transit Company to the possession of the power houses, tracks, cars, lands and equipments leased to them by said United Railways Company, located in the city of St. Louis, Missouri, and county of St. Louis, Missouri, to require an accounting from all the defendants of all the moneys, assets, stocks and bonds received by them from the St. Louis Transit Company, and for an injunction preventing defendants from issuing further encumbrances upon the property leased by the St. Louis Transit Company from the United Railways Company, and if such full relief cannot he granted, that plaintiff and those who may join herein with him and the St. Louis Transit Company be given such relief as to the court may seem proper, and that the court shall follow the property of the St. Louis Transit Company and decree to plaintiff and those who may join with him a share in profits arising from its use and the operations of said United Railways Company in the same ratio that they would have shared if the said sale of assets and surrender of lease had not been made, and such other and further relief as may be just and proper.”

Plaintiff’s bill is elaborate and too long to reproduce totidem verbis. However, the demurrer seeks at least the substance of its allegations.

Throughout the bill the word “Syndicate” is used. “We gather that ‘‘Syndicate,’’ within the purview of the bilí and thevarious agreements and acts assailed,means an aggregation of individual defendants having “managers,” at least one of which was Brown Brothers & Company — the membership of Syndicate being elastic and opening to take in new members or let out old from time to time.

Certain domestic corporations doing business in the city of St. Louis are made defendants, viz., United Railways Company, Transit Company (street railway companies) and Mercantile Trust Company. Another corporate defendant is the National Bank of Commerce in St. Louis. A group of ten individual defendants are directors of Transit Company. The same gronp, with one exception, were directors of the United Railways Company — the exception, Mr. Conrades, is also made a party defendant. Another group of defendants were the members of a firm, Brown Brothers & Company. The latter, with one or two exceptions, were not served with process, but were the non-residents against whom the order of publication issued. A Mr. Delano is a party defendant. He was one of the directors of Railways Company and of Transit Company and a member of the firm of Brown Brothers & Company.

As an excuse for the absence of a request for corporate action in bringing a suit to redress the wrongs complained of, it is alleged that the various individuals comprising Brown Brothers firm and the directorate of the two street railway companies had conspired together and with certain other individuals and corporate defendants to do and had participated in doing the wrongs complained of and it would have been vain and useless to have asked Transit Company to sue its own directors, or United Railways Company and its directors or the firm of Brown Brothers & Company, or to have sued the other individuals defendants or the Trust Company, or the Bank of Commerce; because, among them all, they had managed so that all the assets of Transit Company had been placed in the hands of defendants and it (quoting) “had been reduced to a mere helpless shell, without assets, business, money, property or power to make money,” so that plaintiff, as an individual stockholder, had to take the bull by the horns and sue in his own proper person.

In substance, it is charged that on September 1, 1904, Transit Company was a solvent and going concern with a profitable and rapidly increasing business as a street railway company in St. Louis, the owner of a valuable lease for a long term, to-wit, from September 30', 1899, to April 1, 1939', on 420' miles of street railway tracks in the city and county of St. Louis with switches, power houses, dynamos, wires, cars and appurtenances — said lease being made to it by defendant the United Eailways Company as lessor and owner— and was operating said railway under the laws of this State, the ordinances of said city and said lease, without default in performance of its terms and conditions up to that date. That in and about the performance of the conditions of the lease providing for extensions, equipment, repairs and betterments, Transit Company had expended $10,000,000. In and about operating expenses, taxes, interest on bonds of Eailways Company and on underlying bonds of companies absorbed by said Eailways Company and as dividends on preferred stock of said Railways Company, Transit Company had expended $24,000,000. On September 1, 1904, Transit Company was, and now is justly, also the owner of securities amounting to about $15',000,000, said securities being preferred and common stock of the Eailways Company and first general mortgage 4% bonds of that company. On that date, also, creditors of Transit Company had an equitable right against the original stockholders for unpaid 'stock subscriptions of about $64 per share; that Transit Company claimed to have a capital stock of $20,000,000, but only 172,613 shares of the par value of $100 per share have been issued; that Eailways Company “has always been controlled” by the firm of Brown Brothers & Company, and that firm and the defendants “have always controlled” Transit Company ; that by its said expenditures said leased and operated lines andi equipment have been so improved, operating expenses reduced, traffic increased and good will built up that it was “manifest” that great profit would accrue to the stockholders of Transit Company, during the remainder of the lease term, “a conservative estimate of such anticipated profit being about $59,000,000.”

The bill next charges a conspiracy and confederating between all the defendants, each joining and participating therein, to obtain possession and control of all the assets of Transit Company, in order to make an unlawful commission of $700,000, and a profit of $6,000,000 or more, and to get possession of the leasehold and plant, franchise and contracts of Transit Company, and to defeat, cheat and defraud “the other stockholders” and the creditors of Transit Company, and to secure the surrender and cancellation of its lease from Railways Company, and “have proceeded and are proceeding” to pass resolutions in the board of directors of Transit Company for a sale of all its assets by virtue of an agreement devised by them.

The bill then sets out in haec verba a tripartite agreement between Railways Company, Transit Company and Brown Brothers & Company — the latter signing as “Syndicate Managers.” Said agreement is dated September 27,1904. Referring to the lease from Railways Company to Transit Company it narrates that Transit Company, in carrying out the lease by making improvements and betterments, contracted note and bonded indebtedness, vis., $5,776,000 of collateral trust notes due November 1, 1904, which notes are secured by a deposit of securities with the Mercantile Trust Company under a “collateral trust agreement” of date November 30, 1901. Said securities so deposited are 4% mortgage bonds of Railways Company and '5% preferred stock of the Railways Company, aggregating in value $7,770,500; and that Transit Company also owes $8,000,000 of gold bonds, 5-20’s, secured by an “indenture of trust” between it and said Trust Company dated on the 17th day of .June, 1903, which bonds are secured by a pledge of the bonds and stock deposited under the said ‘ ‘ collateral trust agreement, ’ ’ subject thereto, and a further deposit of $3,329,700, par value, of preferred stock of Railways Company, and $7,261,300, par value, of the common stock of the said Railways Company, and is further secured by a mortgage upon its leasehold from Railways Company, together with a guaranty of said Railways Company. (Note. — It will be observed that said $13,776,000 collateral trust notes and gold bonds owing by Transit Company are secured by a pledge of all the securities owned by Transit Company consisting of common and preferred stock and first general mortgage bonds of Railways Company.)

The agreement also narrates that Transit Company on August 31, 1904, had a further “specific indebtedness” of $1,665,155.17, which the estimated earnings of 1904 will reduce to $935,000; that it is unable to meet its said collateral trust notes due November 1, 1904, and to pay the “specific indebtedness” aforesaid except it sell said collaterals deposited with said Trust Company; that said collaterals cannot be disposed of without procuring a release from said pledges and from a right of substitution existing in Railways Company by reason of the terms of its guaranty and the trust instrument; that in order to procure such release and to pay its indebtedness it proposes to issue $10,000,000 of gold bonds, 5-20to be called “improvement bonds,” to be secured by the mortgage of Railways Company upon all its property subject only to the lien of existing mortgages. Having recited so much, the agreement continues by dividing itself into four articles, vis.:

Article one provides that Transit Company and Railways Company agree that Transit Company, when requested by Railways Company, will surrender its lease and transfer to Railways Company possession of the demised property together with its. cash, bills receivable andi other credits upon conditions named— Railways Company, at the same time, to release Transit Company from liability under any terms or covenants of its lease. Transit Company is to cause to be cancelled the $8,000,000 in bonds pledged as collateral with the Trust Company and obligates itself to cause the holders of said bonds to exchange the same at par for a like amount of “improvement bonds” to be guaranteed, as said, by Railways Company. Transit Company is to enter into an agreement with Syndicate for tbe sale of said bonds and stocks held in pledge by tbe Trust Company, together with the $2,000,000 of the proposed improvement bonds remaining after the proposed exchange; that in and by such sale to Syndicate, Transit Company must provide that $7,000,000 of preferred stock of Railways Company be deposited to the use and benefit of Railways Company, and Railways Company agreed, subject to the approval of a majority of its stockholders, to guarantee the $10,000,000 of proposed improvement bonds and to secure its guaranty by a deed of trust on all its properties subject only to existing mortgage lien.

By article two Transit Company agrees to sell the $2,000,000 remaining “improvement bonds” to Syndicate for $1,700,000, and to sell the preferred and common stock of Railways Company and the four per cent mortgage bonds of Railways Company, pledged by it to the Trust Company as aforesaid, to Syndicate for $5,300,000, payment of $6,700,000 to be made in accordance with a contract between the Trust Company “as syndicate manager and as trustee” and Transit Company of date September '9, 1904 — the balance of $289,000 to be paid upon the order of Transit Company. Syndicate agreed to pay said amount and to cause $7,000,000 of the preferred stock of Railways Company to be deposited with a trustee for the use of Railways Company under terms and covenants hereinafter made between it and Railways Company.

By article three it was agreed between Railways Company and Syndicate that Railways Company had a certain amount of its own common stock in its treasury of the par value of $7,652,500. In consideration of the purchase made by Syndicate from Transit Company and the agreement to deposit with the National Bank of Commerce as trustee for Railways Company $7,000,-000 of its own preferred stock, and the agreement of Syndicate to offer to procure for Railways Company shares of stock of Transit Company, Railways Company agrees to sell and to issue to Syndicate the said unappropriated stock in its treasury andi further agrees to demand of Transit Company the surrender of its leasehold and to itself enter upon the premises and the operation of said property and assume the proposed issue of $10,000,000 improvement bonds and all debts then contracted for labor, materials and supplies rendered, or furnished to Transit Company and Syndicate agrees with Railways Company to make the purchase provided by article two and to make the deposit of $7,000,000 of preferred stock with the Bank of Commerce, which said stock, when deposited with the bank as trustee, shall be sold by the trustee for the benefit of Railways Company at prices and terms and in amounts named by the latter. The remaining clause of article three is as follows: “Syndicate further agrees that of the common stock of Railways so purchased as aforesaid from Railways Company, it will offer to the shareholders of Transit Company, until the 18th day of October, 1904, voting Trust Certificates, issued under and by virtue of such a Voting Trust Agreement as Syndicate may organize and make, representing two shares of the said common stock for five shares of the Transit Company stock, provided said shareholders of Transit Company shall deposit their stock under terms and conditions prescribed by Syndicate for the purpose of such exchange, and, upon the basis aforesaid, with The National Bank of Commerce in St. Louis, as agent for Syndicate, on or before said 18th day of October, 1904; and such Transit shares as shall be so exchanged shall be and become the property of Railways Company, and be transferred to its treasury. All shares of Railways Company’s common stock not so exchanged for Transit stock within said period shall be and remain thereafter the property of Syndicate. Syndicate, however, of its own volition, hut without any obligation so to do, may thereafter continue to exchange said stock upon said basis, and, should it do so, whatever shares of Transit Company stock Syndicate acquires by such exchange shall become the property of Railways Company.”

By article four it was provided that the provisions of the agreement shall not be construed as inuring to the benefit of any person or corporation whose names are not' subscribed to the agreement and the whole contract was conditioned upon the shareholders of Transit Company authorizing the issue of $10,000,000 improvement bonds at a meeting to be called October 19, 1904, and the underwriting and securing of those bonds by Railways Company.

The pleader next charges that certain individual defendants (who owned certain blocks of Transit Company stock) participated in Syndicate’s purchase of the assets of Transit Company in certain amounts, and that the votes of certain directors so participating were necessary to carry the tripartite agreement through in Transit Company and Railways Company; that if the .tripartite agreement is sustained, by the surrender of the.unexpired term of the leasehold of thirty-four and one-half years (which had a yearly value of $600,000') plaintiff’s damages will exceed $19,000; that the scheme was devised for the personal benefit and profit of defendants and said directors, who voted for the same, and Brown Brothers & Company; that on October 19, 1904 (the date of the shareholders’ meeting) there were outstanding 172,613 shares of Transit Company stock; that at. that time Transit Company owned of the common stock of the Railways Company a like number of shares and of its preferred stock 82,373 shares, the two amounts aggregating more than two-thirds of the stock of Railways Company; and that by a pretended vote of Transit Company shareholders on October 19, 1904, it was claimed that 163,000 shares voted in favor of the scheme; that more than half the shares voted were in the name of and cast hy Brown Brothers & Company, ratifying a sale to themselves; and 25,000 shares were cast by the directors of Transit Company and Bailways Company, to ratify a sale to themselves — all of which votes were fraudulent and void; that there were only 8,000 valid votes cast to' ratify the agreement, all the other votes being by parties who participated as Syndicate purchasers and whose votes were void; that the proceedings at the stockholders’ meeting were null and void because fraudulent in voting money, benefits and profits into' the pockets of those acting as directors, and trustees and that the tripartite agreement, the approval of the same and the other agreements made in carrying out said sales were all ultra vires, in violation of the rights of stockholders in Transit Company and of the rights of the Transit Company as a stockholder in Bailways Company, and were done fraudulently, deceitfully and secretly without disclosing their personal aims to shareholders of the two companies. It is next alleged that the purpose of the tripartite agreement was to fraudulently dispose of the property of Transit Company to defeat about $2,000,000 in claims against said company, to get its assets at an unjustly low price and to procure the cancellation and surrender of the lease so as to close out all its assets and business; that by the united efforts of defendants (by reason of their conspiracy and fraudulent agreements, etc.), they have seized and disposed of $615,000 of cash in the treasury of Transit Company and $500,000 worth of supplies and have ■seized and held said railway tracks, powerhouses, etc., and have deprived Transit Company of its business without the consent of the owners of 9,000 shares in said Transit Company and without the consent of plaintiff who owns 198 shares of the par and actual value of $1.9,800 “or” (quoting) “of the persons who held said stock before tbe plaintiff purchased the same in the market.”

The bill goes on to deal in an argumentative way with the situation, alleging that the interests of the defendant directors in the profits of the Syndicate exceeded their interest for the welfare of the stockholders of Transit Company; that over $15,000,000' of stocks, bonds and securities, not counting the value of the leasehold, present or prospective, were sacrificed for about the sum of $5,300,000; that the loss to Transit Company, if the scheme is carried through, would be $10,200,000, together with its capital stock and a prospective profit of $1,698,000 per year for thirty-four and one-half years.

It then charges that certain great profits were made by the defendants who participated in the Syndicate scheme and denounces the tripartite agreement provision for exchanging Transit stock for United Railways stock as illegal and void, which, plaintiff says, he “rejects as unfair, unjust, unlawful and the whole scheme fraudulent, ultra vires, and contrary to the laws of the State of Missouri.” That plaintiff filed his original petition on November 21, 1904, and two days later filed a lis pendens in the office of the recorder of deeds setting out the object and nature of the suit, the lien of plaintiff as a stockholder, etc., and that, at that time, none of the improvement bonds mentioned in the tripartite agreement had been issued; that, at that time, this plaintiff had not registered his stock in his own name on the books of Transit Company, but has since procured registration.

The scope of the relief prayed is sufficiently indicated in the excerpt given from the order of publication, reciting in plaintiff’s own words the object and general nature of his suit.

Such was the bill and the relief sought.

The original petition was filed November 21, 1904, against certain defendants. In the February following an amended petition was filed. Thereupon certain other defendants were made parties who are brought in, and some already in were dismissed. In October, 1905, leave was granted to name ten additional parties defendant. On May 23, 1906, a third amended petition was filed and an order of publication granted against the new defendants.

From the foregoing summary it is apparent that the life of the bill is the rescission of the tripartite agreement and the cancellation of all corporate acts in pursuance thereof, reinstating the lease of Transit Company, and to rehabilitate that corporation and put it on its feet as a going concern in possession of the assets and business it had on the date of that agreement. To that end, plaintiff asked an auxiliary injunction, but, deeming the situation to be such that that kind of relief might not be equitable, plaintiff (in such event) wanted relief in the nature of damages by an accounting and restitution of profits. *

No disposition of the demurrer can proceed justly without keeping in mind and giving effect to the following general observations on the bill:

First. While no direct, yet there are inferential allegations showing plaintiff was not a shareholder in Transit Company at the time of the tripartite agreement or the shareholders’ meeting. Having no shares to protect he had no right to complain at that time. He bought his 198 shares thereafter “in the market.” While the pleader alleges the par value and “actual” value to be $100 per share, yet he alleges no market value. A market value of corporate stock (barring artificial manipulation by bulls and bears) is a factor of significance. It may be taken as the consensus of opinion of the intelligent investing public of the stock’s value, having in mind the condition of the corporate enterprise and the superior claims of creditors holding absolute or contingent claims, secured or unsecured. The bill is replete with allegations looking to prospective values and prospective profits on the assumption that the Transit Company would weather its present financial gale and have clear and prosperous sailing for the thirty-four years of its unexpired leasehold, for are we not told that “Hope springs eternal in the human breast” and that “Man never is but always to be blest.” That line of allegations indicates that the “actual” value of the stock was based on such happy prognostications, and there is no hint in the bill that the market value at the time (or the price paid) was of much or any consequence. As the bill deals in a wealth of detail, we may assume that plaintiff was putting his best foot forward, hence if the market value had been considerable that detail would have appeared. Its absence means, we think, that the market value was small and that plaintiff invested in a speculative venture with eyes open to the difficulties of the situation.

Second. There is nothing in the bill showing that the stockholders’ meeting was not properly advertised and fairly called. The seventh clause of section 1187, Revised Statutes 1899, requires that such stockholders ’ meeting be advertised in some newspaper or be given by written noticé mailed to the last known address of each registered stockholder, twenty days before the meeting. The presumption is that such notice was not only given but complied with the law, absent an allegation to the contrary,

Third. There is no allegation that any protest was made at the stockholders’ meeting by any shareholder or that a single adverse vote was cast against the tripartite scheme. True the bill alleges 9,000 shares did not consent; furthermore, that the persons who owned plaintiff’s stock before his purchase in the market did not consent. But considering the particularity of the bill in other respects we cannot construe that allegation to mean that any of the non-consenting stockholders were present and actively opposed the scheme. We think the “non-consent” mentioned in the bill mnst be construed a voiceless one, arising from indifference or other like 'cause.

Fourth. The bill is silent on material questions such as the state of the money market in September and October of 1904, and the credit and borrowing capacity of Transit Company at that time. It pleads the narration of the tripartite agreement to the effect that Transit Company was unable to pay the vast sum of money to become due shortly in November and the vast floating debt then due. That agreement narrates that all the securities of Transit Company were pledged to secure the approaching November payment andl $8,000,000 in bonds, that its leasehold was also pledged to secure those bonds. That there was no way to pay its debts, except these securities be released from pledge and sold. The bill does not deny the. truth of those narrations, amounting to present insolvency for practical purposes. It seems to ignore them. Furthermore, the pleader, as if to give point to its money embarrassment, alleges $2,000,000 additional claims outstanding against Transit Company, presumably (since that character of claims was not assumed by Railways Company) for damages' accruing to individuals. No suggestion is made that the borrowing capacity of Transit Company, in the state of the money market, was equal to tiding over the trouble. No practicable way out of its straits is suggested. In spite, then, of the fair-weather prognostications pleaded as to the future career of Transit Company, arising from its great investment in its leasehold and the extent of its carrier business and plant, we must still read the necessary inference between the lines of the bill that Transit Company was in a present desperate financial fix, needing a heroic remedy — and that presently. If such remedy “was practicable, otherwise than by a sale of. its securities for what they would fetch, and the holders of the 9,000 non-consenting shares neglected to attend the shareholders’ meeting and point it ont, or pnt their shoulders to the wheel or lift their voice against the tripartite agreement, they were neither diligent, useful or wise.

Fifth. Enough is alleged) in the hill to show that the passenger carrying trade of the great city of St. Louis was in the keeping and hands of Transit Company. It was, then, a public-service corporation in the most precise and exacting sense. In this view, it owed duties to the general public which it could not breach except under penalty of ouster from its franchise. So the general public had a vital interest that the street railway service of St. Louis should be well performed without intermission by a corporation both willing and able to respond to its public duties to the uttermost.

Sixth. A person who buys shares of stock in a corporation holds such shares not independent of bondholders and fellow shareholders. The rights of shareholders inter se are so correlative and interdependent that a shareholder may not proceed by a suit in equity in a corporate matter involving rescission and injunction regardless of the interests of innocent investors in stock or bonds or bona fide creditors. In this view, there are no allegations in the bill that plaintiff is the only innocent shareholder. There are no allegations that all the shareholders participated in the alleged wrongful confederation and no allegation that the investors in bonds and the creditors of Transit Company all conspired to ruin the corporate enterprise. True the conspirators are alleged to have voted great blocks of stock, but it is not alleged they were the owners of all that stock. The case then must proceed on the theory that the interest of other shareholders and the rights of bondholders and creditors are to be considered before a writ of injunction issue or before an established corporate status is ripped up by rescission. Plaintiff commenced this suit as a stockholder in his own behalf and on behalf of otlier stockholders who might join. A year and a half went by before the third amended bill was filed and no other stockholder joined. Such coyness is tantamount to a refusal. A necessary implication is the same as an allegation. It is fair to assume then that' his handi is against all the other stockholders and all investors in bonds and their hands against him. We shall assume there are many other innocent but contented persons interested as shareholders and bondholders whose rights must not be ignored in granting a form of relief vitally affecting them as well as plaintiff. Plaintiff is a newcomer. If he have equities, their equities are older than his. What say the maxims? “The elder equity is the better.” “Equity assists no person to the injury of another.”

Seventh. While the language of the pleader is guarded, yet enough appears to show that the tripartite agreement is a fact accomplished. The lease has been surrendered. Railways Company is in possession of its original properties for eighteen months before the third amended bill was filed and is proceeding with its business as a common carrier of passengers as a public-service corporation. The bonds, stocks and mortgages have been readjusted to a new alignment. At least those creditors within the purview of the tripartite agreement presumably have been paid. Presumably, too, new ones exist. And Transit Company has become, to adopt the words of the bill, a “helpless shell. ’ ’ In such condition of things there is no allegation showing it possible to recreate the status quo ante or that Transit Company is able to restore the vast sum of money paid, or what it received even from those bondholders, shareholders and creditors who acted in good faith. In fine, Transit Company (as to the sometime soul of it) is a dead coal and no chancellor hath power to breathe a spark of life into it. No judicial worker, however cunningly and patiently he wrought, could rehabilitate it, put it in its original position and change it from a curious reminiscence into a going public service corporation subserving its full and beneficent original corporate purpose.

Assuming the foregoing observations just and pertinent on this record, we rule:

(a) That an injunction ought not to issue on the allegations of this bill. Says Chancellor Kent (Attorney-General v. Utica Ins. Co., 2 Johns. Chan. l. c. 378) i “Nor ought the process of injunction to be applied, but with the utmost caution. It is the strong arm of the court, and to render its operation benign and useful, it must be exercised with great discretion, and when necessity requires it.” “A court of equity ... is never active in relief against conscience or public convenience[Lord Camden in Smith v. Clay, see 3 Brown’s Chan. R., note *p. 640.] Now, “conscience,” as the term is used in equity, is not the mere caprice of the individual chancellor, as if equity was measured out in each case by such varying measuring rod as “the length of the chancellor’s foot,” but is administered by fixed principles. It is a precept that legal conscience is founded upon the law and never contravenes it. it is fundamental that “an action is of right, and that an injunction is of grace” (Gibson, C. J., in Mayor v. Comrs., 7 Barr l. c. 366). Equity requires in such proceeding as this that the chancellor “balance the inconveniences likely to be incurred by the respective parties, by means of the action of the court, and grant the injunction, or withhold it, according to a sound discretion” (Gray v. Railroad, 1 Pa. St. l. c. 413), and, in a case of public service corporations, it is self-evident that the public convenience and public mischief 'may mark the distinction between sound and unsound discretion in granting an injunction on the facts pleaded. Said the vice-chancellor (Wood v. Sutcliffe, 8 Eng. L. & E. l. c. 219), speaking to a point somewhat apposite here: “I say as a general rule and principle, because it must not be forgotten, that of necessity, whenever a court of equity is asked for an injunction in cases of this nature, or at all resembling this, it must have regard not only to the dry strict rights of the plaintiff and defendant, but must have regard to the surrounding circumstances — to the rights and interests of other persons which may be more or less involved in it.”

In considering the demurrer to the third amended bill we may take no note of the allegations of abandoned bills. They are unknown to us and neither break nor mend this bill. The amended bill being evidently framed on the theory that the tripartite agreement has been executed and that the things complained of are past events, it is not clear that the remedy by injunction should go, even if we overlooked the manifest injury to others interested — an injury disproportionate to the benefits accruing to plaintiff under the application of just principles of equity.

Therefore, as a bill for injunctive relief, there was no error in sustaining the demurrer.

(b) Nor was there error in ruling on that demurrer from the viewpoint of a bill for rescission. Specific performance and rescission are not wholly reciprocal remedies, but it may be safely said that rescission is the converse of specific performance and that cancellation is a mere auxiliary to make rescission effectual. It is clear that rescission looks to restoring the status quo; in rescission payments made and benefits conferred must be returned. Now, as already said, allegations of this bill are of such sort as preclude the practicability or even possibility of such restoration. As specific performance is somewhat of grace, the reciprocal remedy of rescission is also administered by the exercise of a just and sound discretion, precisely as is injunction. What we have just said on the injunctive features of the bill applies here. Learned counsel for plaintiff has furnished us with a brief pre-pared with elaborate diligence, bnt we need go no farther than to a late case in onr own court, Tanner v. Ry. Co., 180 Mo. 1. That case was In Bane. It was brought by some of the stockholders of the Linde-11 Railway Company, whose properties had been absorbed by the United Railways Company in an ambitious scheme of consolidation. The United Railways Company had then leased its consolidated property to the 'Transit Company. Tanner and others as stockholders In the Lindell Railway Company, brought a suit to rescind each and every of the agreements, leases, deeds and corporate acts having for their eapsheaf the lease of the United Railways Company to Transit Railway, alleging conspiracy, confederation, fraud, illegality,' etc., with vituperative epithets, as grounds for rescission. We see no material distinction between the allegations of the bill in the case at bar and the allegations of the Tanner bill.

On the authority of that- case, therefore, we rule that the bill in the case at bar does not state facts sufficient to constitute a cause of action in equity for rescission. It is not necessary to restate the reasoning there employed; for that case must be taken and considered with this. It is authority for the propositions that where minority stockholders do not consent to a ;sale of the corporate properties, and the sale has already gone into effect, rescission will not be decreed where it will be productive of more injury than would result from a refusal of it, or where the asking stockholder stands by until the rights of strangers not parties to the suit and the public generally have attached; that when a person becomes the owner of shares in a corporation his right to the equitable relief of rescission of corporate sale is modified by the fact that he holds small portion of the stock, and if such stockholder has an adequate remedy by a suit at law for his injuries from wrongful conduct whereby his stock is converted or its market value taken from him, the powers of an equity court will not be set in motion to work a rescission.

(c) As under tbe scheme of the bill the right to an accounting depends upon the right to a rescission and goes as a remedy to rehabilitate and build up the corporation pulled down, it would seem that with the denial of rescission the right of a shareholder to an accounting for the stocks and bonds of Transit Company alleged to be wrongfully converted falls. Clearly plaintiff may not repudiate the sale and yet take under the sale. He may not run with the hares and hold with the hounds. He may not sue in the name of' Transit Company and get relief to which Transit: Company in equity was not entitled. It goes without saying, that the case made by the bill relates to shareholders, not creditors or the holders of claims against Transit Company, and what we say has like limitations.

It may be that the silence of the former owner of the stock plaintiff now holds did not show consent to the scheme for an exchange of stocks as provided in the tripartite agreement and that plaintiff was not obliged to take his pro rata share of United Railways-stock in exchange for his Transit stock it may be that plaintiff’s stock had a market value and that what wasdone amounted to a wrongful conversion of the value of his stock. Under such conditions he is not without his adequate remedy at law for damages, as pointed out in the Tanner case. We think the disposition of' the demurrer well enough. In this view of it, the challenge to the bill for multifariousness, though serious,, is not reached.

III. There is left one other assignment of error,, vis., in quashing the order of publication. But it isapparent that if the demurrer to the bill was well taken,, as we have just held, then the ruling on the motion-to quash the order of publication is no longer a live-question. Certain it is that if those defendants in court could not be kept in but were turned out because the bill was bad, tbe fact that other defendants were not brought in to be likewise (and straightway) turned out, is of no grave judicial concern. For why knit only to unravel, or plant only to uproot, or do with one hand only to undo with the other? We reserve the question until it comes up in a case breaking on the point.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    PHILLIP SETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    April 12, 1910.
    1. EVIDENCE OF DEFECT: Not Pleaded. Where the case was not submitted to the jury upon the questions of defects in the tracks or appliances, testimony as to defects in the track where the accident occurred, introduced as bearing on the question of whether there was a stop, a start, and a jerk, and objected to because no defects in the track were pleaded, is not error.
    2. NEGLIGENCE: Variance: Jerk: Stopped or Moving Slowly. The main point of plaintiff’s case being that it.was the jerk of the car that threw him down as he was alighting therefrom, it was immaterial under his petition which charged that the car “had stopped or slowed down so as to be almost stopped,” which was correct, plaintiff’s testimony being that it had stopped, and defendant’s that it had slowed down and was moving very slowly when the jerk came; and plaintiff’s instruction in the language of the petition cannot.be said to be without evidence to support it.
    3. -: Servant’s Failure to Do Duty: No Evidence: Inference. Because the passenger who fell to the pavement when the car suddenly moved forward with a jerk, neither saw the gripman nor heard a signal or action of the grip, is no reason for concluding that the jerk was not caused by some act of the grip-man or conductor. When the jerk is shown and facts and circumstances are. also shown, the jury are entitled to draw inferences that reasonably come from them.
    4- -: Given Instruction: Marked Refused. Defendant’s instruction was marked “refused,” but was read to the jury, argued by defendant’s counsel, and taken by the jury to their room, and the hill of exceptions recites that to the action of the court in marking it “refused” defendant duly excepted. Held, first, that the recital should he understood to mean that the mistake was not discovered until after the trial and that the exception was then taken, which was too late; and, second, the instruction being erroneous or misleading, defendant, by reading and arguing it to the jury, got more benefit from it than it was entitled to.

      5. -: Instruction: Jerk: Attempting to Alight Before Stopping Car. Where the gravamen of plaintiff’s case is that he was thrown down by a jerk as he was alighting from the car, an instruction telling the jury that if he was attempting to alight while the car was still moving he could not recover, should not be given where the evidence is that the car had stopped before the jerk came or that it was moving very slowly. It is not negligence per se for a passenger to step on the running-board of a street car while it is slowly moving.
    6. -: Evidence: Report of Conductor. The fact that plaintiff, on cross-examination, brought out the fact that the conductor had made a written report of the accident to defendant at the time it occurred, and asked him questions about it, but did not call for its contents, did not make it error to refuse to admit said report in evidence when offered by defendant.

      7. EXCESSIVE VERDICT: $7750. Plaintiff, sixty-seven years old, hale and vigorous, fell on the pavement as he was attempting to get off of defendant’s street car; his hip was broken and other injuries ensued; he was placed in a plaster cast, and it was eight months before he was able to leave his bed, and during all the time he suffered greatly; at the time of the trial, three years later, he was barely able, with the aid of crutches, to go a distance of one or two blocks; and he probably will never again have the use of the injured leg. Held, that a verdict of $7750 was not excessive.
    Appeal from Jackson Circuit Court.— Hon, J. L. Smith, Special Judg«
    Affirmed.

      Jno. H. Lucas, J. W. Suddath and Ben T. Hardin for appellant.
    (1) Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded, and, if lie recover at all, it must be on the specific acts of negligence pleaded, and not otherwise. Orcutt v. Cent. Bldg. Co., 201 Mo. 443; McGrath v. Railroad, 197 Mo. 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 162 Mo. 96 ; Ely v. Railroad, 77 Mo. 34; Bnnyan v. Railroad, 127 Mo. 12; Hamilton v. Railroad, 114 Mo. App. 508; Beaver v. Railroad, 212 Mo. 531; Roscoe v. Railroad, 202 Mo. 576; Kirkpatrick v. Railroad, 211 Mo. 68. (2) The rule of res ipsa loquitur does not apply where the acts of negligence complained of are specifically pleaded. .Orcutt v. Cent. Bldg. Co., 201 Mo. 443; McGrath v. Railroad, 197 Mo. 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 162 Mo. 75; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Hamilton v. Railroad, 114 Mo, App. 504. (3) An instruction not based on the evidence is erroneous and should not be given. Hahn v. Cotton, 136 Mo. 227; Smith v. Sedalia, 152 Mo. 299; Press B. & M. Co. v. Buick Co., 151 Mo. 511; Regan v. Railroad, 144 Mo. 636; Price v. Railroad, 77 Mo. 512. (4) It is error to refuse to instruct upon a theory of defendant’s case, supported by his evidence. R. S. 1899, sec. 748; Seefert v. Withington, 63 Mo. 580. (5) If plaintiff interrogates a witness about the existence and- contents of a memorandum made at the time of the accident, then that memorandum becomes competent and it is error to exclude it. (6) It is error to admit proof of any act of negligence or defect in machinery or track, not pleaded. 29 Cyc. 611; Dlanhi v. Railroad, 135 Mo. 440(; McMannaman v. Railroad, 71 Mo. 515; Price v. Railroad, 72 Mo. 415; Kirkpatrick v. Railroad, 211 Mo. 68. (7) Considering plaintiff’s age, sixty-nine years, the verdict for $7750’ is excessive. Waddell v. Railroad, 213 Mo. 8. (8) Where the verdict is against the great weight of the evidence and the physical facts in evidence in the case, a new trial should be granted.

      Scarritt, Scarritt, <& Jones and E. A'. Setzler for respondent.
    (1) Appellant’s first assignment does not point ont specifically any ruling of the trial court complained of and will not therefore be considered in this court. As this constitutes no assignment of error as to any specific ruling of the court in regard to the admission or rejection of evidence this court will not search the record for questionable rulings of the court in that respect, and therefore this assignment will not be considered by the court. Supreme Court Ruling No. 15-; Hamilton v. Crowe, 175 Mo. 634; Lumber Co. v. Miller,. 64 Mo. App. 620; Honeycutt v. Railroad, 40 Mo. App. 677; Newman v. Virginia Co., 80 Fed. 288; H. S. v. Indian Grave Dist., 85 Fed. 928. This assignment is without merit on any part of the record. (2) (a) There is no more specific designation in appellant’s printed brief of the ruling complained of in this respect than that contained in the assignment quoted above. We therefore submit that under the established practice in this court and the authorities cited by us under (1) this assignment is without merit, because it is not sufficiently specific, (b) On page 101 of appellant’s abstract of the record, this is found: Examination by Mr. Hardin, defendant’s attorney: “Q. You made this report at the time and turned it in to the company? A. Yes, sir. Mr. Hardin: We offer to read, or allow counsel for plaintiff to read', this statement that he has asked the witness about, that was made by him to the company; we offer to read the report the gentleman has questioned the witness about. Mr. Scarritt: We object to that as an ex parte statement; as incompetent, irrelevant and immaterial, and as a self-serving statement. The Court: On what ground do ycu claim that is admissible? Mr. Hardin: The attorney for the plaintiff has gone into this matter. Plaintiff’s attorney has questioned this witness about the contents of the report he made immediately after the accident and turned in to the company, in regard1 to taking the names of the witnesses and how many there were, and on that question I now offer it in evidence. Objection sustained; to which ruling of the court the defendant than and there duly excepted.” The report of this casualty made by an employee to the master is not even claimed by the appellant to be res gestae. It is a mere self-serving statement, not made under oath, not purporting to have been made from personal knowledge, and is incompetent under all known rules of evidence. (3) (a) The appellant’s contention seems to be that an instruction on the part of' the plaintiff submitting a theory of recovery, unless the facts involved in that theory have been developed by the plaintiff’s proof alone, is erroneous; in other words, that if the instruction submits issues of fact properly raised by the pleadings, if the proof of those facts is brought out in part by the plaintiff and in part by the defendant, such an instruction is error as a matter of law. Our understanding of the proper practice is just to the contrary of this contention.- We assert that it is the better practice to submit the issues raised by the pleadings for the determination of the jury and to invoke all the evidence, whether adduced by the plaintiff, or defendant, or by both, in the determination of those issues; and that it is bad practice, amounting possibly to an illegal commentary upon the evidence, to ask a verdict upon specific evidential facts without regarding testimony tending to sustain other facts within the allegations of the petition. Ridenhour v. Railroad, 102 Mo. 270; Peck v. Transit Co., 178 Mo. 627; Feary v. Railroad, 162 Mo. 93; Green v. Railroad, 122 Mo. App. 650; Hurley v. Railroad, 120 Mo. App. 262; Forrester v. Railroad, 116 Mo. App. 40. (b) A second criticism of this instruction, made by the appellant, is based upon the assertion that unless some one has testified, without equivocation, and on personal knowledge, that he saw the gripman move the ear forward, or unless that fact was admitted by the employees of the defendant, then the jury were not warranted in finding that the employees of defendant upon and in charge of the car “carelessly and negligently, and without allowing plaintiff a reasonable time to get off the said car, and without any warning to plaintiff caused or permitted said car to be suddenly started and jerked forward.” It is not necessary in order to sustain a charge of negligence against a defendant that every specific and particular act of the party or his servants be disclosed by the testimony. This rule applies in all cases, whether the defendant be a common carrier and the plaintiff its passenger or not, and is a radically different principle from what has loosely been called in our jurisprudence the res ipsa loquitur doctrine as applied to suits by passengers against common carriers to recover for permanent injuries. 1 Shearman & Redfield on Negligence (5 Ed.), see. 58; 3 Elliott on Evidence, sec. 1902; 6 Thompson on Negligence, p. 75; Dougherty v. Railroad, 9 Mo. App. 484; Dougherty v. Railroad, 81 Mo. 325; Memphis Go. v. McCool, 83 Ind. 392; Riñe v. Railroad, 100' Mo. 234; Witting v. Railroad, 101 Mo. 641; Lynch v. Railroad, 208 Mo. 1; Och v. Railroad, 130 Mo. 51; Redmon v. Railroad, 185 Mo. 1; Chadwick v. Railroad, 195 Mo. 517. (c) Neither does the petition in this case charge, nor do plaintiff’s instructions require the jury to find, specific acts of negligence on the part of the defendant or its servants. It leaves the specific act of negligence, causal of the forward jerk, to be found by the jury; and under all the Missouri authorities, even those relied upon by the appellant, under this state of the pleadings, the sudden starting of the car, the resultant injury to the plaintiff, he being a passenger, makes a prima-faeie case and is sufficient proof to carry the case to the jury.. And there being evidence disclosed by the record here, under well recognized principles of liability, to take the case to the jury, their verdict is conclusive as to the fact. Dougherty v. Railroad, 81 Mo. 325, 9 Mo. App. 478; Ridenhour v. Railroad, 102 Mo. 270; Chadwick v. Railroad, 195 Mo. 517.
   VALLIANT, J.

Plaintiff sues to recover damages for personal injuries alleged to have been sustained by him through the negligence of defendant. The trial resulted in a judgment for the plaintiff for $7750, from which the defendant has appealed.

Defendant operates a street railway in Kansas City. It has a line of double tracks on Walnut street running north and south, and another line of double tracks, crossing the former, on Ninth street running east and west. At the time of this accident the cars on those tracks were operated by cables. The cables which drew the cars on Walnut street passed under those which drew the Ninth street cars. As a car moving south on Walnut street would approach the Ninth street crossing the gripman would open the jaws of his grip and drop the cable, so as to clear the Ninth street cables, and the car would be carried over the crossing by the momentum. If no stop was intended there, the gripman as soon as the car had cleared the crossing would catch the cable with his grip and the speed would be resumed. ■ When the aim was to stop on the far side of that crossing, the momentum was usually sufficient to carry the car that far, but if not the gripman would catch the cable and make the clearing.

Plaintiff was a passenger on a car going south on Walnut street aiming to stop- on the south side of Ninth street. When his car passed over the crossing and slowed down to stop, or did stop, he attempted to alight, and in doing so he either fell or was thrown down on the street and received severe injuries. In his petition the plaintiff states his case in this way: ‘ ‘ That immediately upon the arrival of said car at the place aforesaid and when it was stopped, or slowed down, so as to be almost stopped, for the purpose aforesaid, the plaintiff attempted to alight therefrom; that while he was in.the act of so doing and while he was exercising' ordinary care on his part, the defendant, acting by and through its servants and agents upon and in charge of said car, carelessly and negligently, without allowing plaintiff a reasonable time to get off of said car, and without any warning to plaintiff, and wlien defendant’s servants and agents upon and in charge of said car saw or by the exercise of ordinary care might have seen the situation of plaintiff in the act of alighting from said car, in time by the exercise of ordinary care to have so managed said car as to have avoided any injury to the plaintiff, caused or permitted said car to be suddenly started or jerked forward, whereby plaintiff was thrown violently from said car to the pavement.”

Plaintiff testified that when the car passed over Ninth street it stopped still, and he said: “After the car crossed Ninth street on Walnut the car stopped and the passengers got up, I took my two little bundles in my left arm and had my right hand on the upright post and stepped out with my right foot, standing on the foot-board, and as soon as I touched the pavement the car took a sudden jerk and threw me off the car on the pavement and I came down in a sitting position.” Asked on cross-examination how far the car went after it started up he answered/ ‘Well, about two feet I think. Q. Now you tell the jury, if I understand you, that while that car was standing at a dead standstill and you were in the act of stepping down from it, the car started with sufficient force to throw you, as you have stated, and yet stopped again in running two feet? A. Yes, sir; I can tell the jury that the car had stopped, and when I was getting out it made a forward jerk with such force that it threw me out on this leg. . . . Q. And there was no bell given by the conductor to the gripman to start the car? A. Not that I know of.” He could not see the gripman and did not know what he was doing. He fell with his back to the front of the car.

The testimony on the part of the defendant was to the effect that the plaintiff attempted to alight before the car stopped. “He got np and got hold of the post that runs np and down and turned around and when he was within four or five feet of the stopping place he started to get off and fell. He held to the post with his right hand. The car was still running when he stepped off and fell, but running slowly.” The grip-man testified that the car had not stopped when the plaintiff fell, but was going very slowly and stopped within eighteen or twenty inches afterwards. He said he could not have stopped within less than ten or twelve feet if he had started after stopping. Other testimony in defendant’s behalf was to the effect that there was no start after a stop and no jerk.

The conductor was a witness for defendant, and during his cross-examination plaintiff’s attorney asked him questions which brought out the statement that he had made a written report of the accident to the company which contained the names of witnesses and a statement of how the accident happened. On redirect examination defendant offered the report in evidence, to which plaintiff objected, the objection was sustained, and defendant excepted.

Over defendant’s objection plaintiff was permitted to ask one of his witnesses, and on cross-examination one of defendant’s witnesses, about the condition of the tracks at the crossing; the objection was on. the ground that there was no eharg’e of defective track in the petition. Defendant excepted to the ruling. But the answers of the witnesses showed no appreciable defect. It came out in defendant’s testimony that sometimes a ^ough knot or a loose strand in the cable would catch in the grip-jaws when the car was standing still and cause the car to be jerked forward, but the evidence was that there was no such defect in this cable.

At the close of the plaintiff’s evidence and again at the close of all the evidence defendant asked a peremptory instruction to the effect that the plaintiff was not entitled to recover, which instructions were réfused and defendant excepted.

There are five instructions given at the request of the plaintiff, of two of which defendant complains, to-wit: ' ,

“1. The court instructs the jury that if you believe from the evidence the defendant, on or about August 7, 1903, managed, conducted and operated a cable street railroad in a north-and-south direction along Walnut street in Kansas City, Mo., on which it carried passengers for hire, and that on or about said date plaintiff became a passenger upon a car, the motive power of which was an endless cable, on said railroad, then being managed, controlled and operated by defe'ndant on its said street railroad by its servants and agents upon and in charge thereof, and paid his fare to be carried as a passenger thereon to. Ninth and Walnut streets in said city, and that when the said car upon which plaintiff was a passenger as aforesaid arrived at the south side of Ninth street it was stopped or slowed down so as to be almost stopped by defendant’s servants and agents in charge of said car at the usual place for that purpose to allow passengers to get on and off of said car, and that upon the stopping of said car or the slowing of the speed of said car so that it was almost stopped, for the purpose aforesaid, the plaintiff attempted to alight therefrom, and that in attempting to alight from the car under such circumstances and in his conduct in so doing he was exercising the same • care and caution an ordinarily prudent person would exercise under similar circumstances, and while he was ■ in the act of so doing, the defendant, acting by and through its servants and agents upon and in charge of said car, carelessly and negligently, and without allowing plaintiff a reasonable time to get off of said car, and without any warning to plaintiff, caused or permitted said car to he suddenly started and jerked forward, whereby the plaintiff was thrown violently from said car to the pavement, and was thereby wounded, and the bones of his left leg near the hip were broken, and he was thereby disabled and rendered a cripple for life, then your verdict must he for the plaintiff. ’ ’
‘ ‘ 2. And if you believe from the evidence defendant received and accepted the plaintiff as a passenger upon one of its street cars which, it was then operating by its servants upon and in charge thereof, and that plaintiff was injured while a passenger of defendant and while in the act of alighting from such car by reason of the acts of the servants of defendant upon and in charge of said car operating the same failing to allow plaintiff a reasonable time to get off of said car and causing or permitting said car to be suddenly started or jerked forward, then the defendant and its servants upon and in charge of said car operating the same were bound to exercise towards plaintiff for his safety as a passenger on such car, in the respects referred to in the instructions, the highest reasonably practicable degree of care a very prudent person engaged in like business would exercise under similar circumstances to those disclosed by the evidence in this case.”

Defendant asked twelve instructions, all of which were given and all were marked by the court “given” except instruction No. 11, which, the record says was inadvertently marked “refused,” but it was read to the jury with the rest as one of defendant’s instructions and argued as such by defendant’s attorney and taken by the jury to their room on retiring. The bill of exceptions says: “To the action of the court in marking said instruction No. 11 ‘refused,’ defendant duly excepted.” That instruction is as follows:

“11. If you believe and find from the evidence that the plaintiff’s injuries, if hé sustained any injuries, were caused by his leaving the defendant’s ear before it had stopped still on the south side of Ninth street and while the same was in motion, and that but for such attempt on his part to alight from said ear while the same was in motion he would not have sustained any injury, then the plaintiff cannot recover, and your verdict must be for the defendant. ’ ’

I. Defendant insists that it was error to have allowed the plaintiff to introduce evidence as to the condition of the track and machinery, since the petition did not charge negligence from that source. We do not understand the evidence as tending to show any such defect, on the contrary the answers to the questions objected to were to the effect that there was no such defect. But the purpose of the questions was only to show the course through which the car had to pass and stop, as bearing on the question of whether there was a stop, a start and a jerk. The case was not submitted to the jury on any theory of defect in tracks or appliances. Appellant is correct in its proposition that where specific acts of negligence are charged plaintiff cannot recover on acts of negligence not specified, but that principle of law is not in this case.

II. It is contended that instruction numbered 1 is erroneous because it is not based on any evidence. The proposition is that since the plaintiff’s testimony was that the car came to a full stop, and that while plaintiff was' then attempting to alight, it started with a jerk, there was no evidence that the jerk came while the car was slowing down and almost stopped. It is true the plaintiff’s testimony was emphatic to the fact that the ear stopped still and that the jerk came afterwards and if that was all the testimony in the case the argument would have more ground to rest on, but the defendant’s testimony was that the car had not quite stopped and that there was no jerk. The argument is that because the only evidence that there was a jerk was that it came after a stop, therefore there was no evidence of a jerk unless there was a stop. But that argmment overlooks the main point in the plaintiff’s case, that is, that it was the jerk that threw him down. The jerk with its injurious consequences was just the same whether it came after the car had stopped or while it was slowing down and nearly stopped. In Ridenhour v. Ry. Co., 102 Mo. 270, the petition alleged that the car had stopped, but the testimony was that it had not quite stopped and it was claimed that there was a failure of proof and a variance between the facts alleged and those proven, but this court said: “The negligence charged consists in permitting the car to be put in motion while plaintiff was in the act of leaving the car.” It was also said in that ease that the statement in the petition that the car had stopped for the purpose of permitting the plaintiff to alight therefrom was only a matter of inducement. In the case at bar the petition states that the car had “stopped or had slowed down so as to be almost stopped.” The plaintiff’s testimony was that it had stopped, the defendant’s testimony was that it had slowed down and was moving very slowly. It is immaterial on that point which was correct, because in either event if the car was started with a jerk of sufficient force to throw the plaintiff down on the street, the allegation of negligence is sustained.

But defendant also argues that there was no testimony tending to show that the jerk, if jerk there was, was caused by any act of either the gripman or the conductor, and to sustain this contention counsel refer to the testimony of the plaintiff, who, when asked if he saw the conductor or the gripman do anything or if he heard anything in the way of a signal or action of the grip, answered that he did not. “Q. And there was no bell given by the conductor to the gripman to start the car? A. Not that I know of. . . . Q. When you were getting off and the car started yon did not see the gripman? A. No, sir. . . . Q. And yon did not hear any of the machinery work to start the car? A. I only felt the car start. Q. Yon know as a matter of fact that when the gripman pnlls the grip to start the car it makes a great loud noise? A, Yes, sir. Q. You did not hear anything of that sort?.' A. I did not listen to it.”

And the learned counsel argue that the doctrine of res ipsa loquitur does not apply, which, without so' deciding, may he conceded. But when facts and circumstances are shown, the triers of the facts are entitled to draw inferences that reasonably come from them. That the plaintiff in the act of alighting from the car, trusting the carrier’s servants are doing their duty, and mindful of his own duty to use reasonable care for his own safety, should not observe the motions or acts of the gripman or conductor, is not strange. What passenger on a street car, that has stopped at his destination, stops, in his act of alighting, to observe if the men in charge of the car are doing their duty? If in watching them he should make a misstep and fall, what would the carrier say about his contributory negligence? It would be unreasonable to suppose that this man, who, if his testimony is true, was thrown to the pavement by a quick jerk of the car, and fell with a broken hip, would know or remember the minor details-of the facts causing the accident. The testimony shows how a car is moved and how it is stopped and how it behaves when the men who are operating it are performing their duty, and if it should behave in an unusual way it is not unreasonable if the jury should infer that the unusual movement was caused by that, which might reasonably cause it. If reasonable inferences are not in such case allowed, circumstantial evidence is of no value. The jury knew from the evidence in this ease that if the car, either after it had stopped, or while it was slowing down, moved quickly forward witli a jerk, the cable had been caught in the grip; they also knew from the evidence that there were but two things that could cause that motion, one was the act of the gripman, the other a rough knot or loose strand in the cable, and the evidence so far as it went on that point tended to show that there was no defect in the cable. Therefore, the jury were bound to believe either that there was no sudden movement or jerk of the car, or else that the gripman unfortunately applied the grip.

It is argued that the car could not have started and stopped within the distance the’ plaintiff testified, ■two feet. To what extent was the plaintiff competent to estimate the distance the car went after he had fallen and broken his hip and lay helpless on the pavement? Within what distance a car could be stopped under those circumstances is a mere matter of opinion, and evidence on that subject is not always very reliable.. The jury had that question with others well before them and they were competent to give it the weight it deserved.

Appellant’s criticism of plaintiff’s second instruction goes on the same grounds as the first. We find no error in either of them.

III. The statements in the bill of exceptions in reference to defendant’s instruction numbered1 11 are a little inconsistent. It says that the instruction was inadvertently marked “refused” but that it was read to the jury and argued by defendant as the defendant’s instruction and taken by the jury to the jury room, then it says, to the action of the court in marking the instruction refused, the defendant duly excepted. We do not see how it could be called an act of inadvertence if it was suffered to so remain when the court’s attention was called to it by an exception in due time. If it was an act of'inadvertence and if the court’s attention was called to it by an exception in due time it would doubtless have been corrected. If, however, the mistake was not discovered until after the trial and the exception was then taken, the exception was too late.

The defendant by reading and arguing it to the jury got more benefit from the instruction than it was entitled to, because it was an erroneous instruction or it was at least misleading. It conveyed the idea that if the plaintiff was attempting to alight from the car while it was still moving he could not recover. The idea was somewhat veiled by the clause “and that but for such attempt on his part to alight from the car while the same was in motion he would not have sustained any injury.” It is susceptible of the construction that even if the plaintiff had been thrown off the car by the jerk yet he could not recover if the jury should believe that if he had kept his seat until the car stopped he would not have been in a position where the jerk would have thrown him off. If he was thrown off by the jerk it is immaterial whether the car had stopped as the plaintiff said or was slowing down and going very slowly as defendant’s testimony said. The instruction ignores the sudden impetus given to the car by the jerk which it is alleged was the cause of the accident. If the jerk came before the car had ceased entirely to move and the man had remained in the seat and was there when the jerk came, it is probable he would not have been thrown off the running-board by the impetus, but it was not negligence per se in him to step on the running-board while the car was moving slowly, yet this instruction in effect so implies, and directs the jury to find for the defendant if they should believe that the plaintiff would not have been injured if he had not attempted to alight before the car came to a standstill. Defendant might have framed an instruction on the theory of contributory negligence stating hypothetically that fact, but was not entitled to assume it as negligence per se.

IV. There was no error in refusing to allow the defendant to read in evidence the report made by the conductor to the company. The only ground on which appellant contends it should have been admitted is that plaintiff asked the conductor questions about it. Plaintiff’s questions did not call for the contents of the report and none were elicited.

Y. It is lastly insisted that the damages awarded are excessive. The award was $7750'. The appellant in its brief has very little to say on that subject, but merely states it without argument as if it were a self-evident fact. The plaintiff was an old man sixty-seven, hale and vigorous. When he fell on the pavement his hip was broken and other injuries ensued; he was unable to rise, was carried and put into a carriage and taken home, could not be taken up to his bedroom but was put to bed on the first floor. His physicians put him in a plaster cast which practically covered half his body, and during the whole time he suffered greatly; it was eight months before he was able to leave his bed, and at the time of the trial three years after the accident he was barely able to go the distance of ■one or two city squares with the aid of crutches, and required attendance when he left home for a greater distance; the evidence tended to show that he would probably never again have the use of his injured leg. We- think the award was not excessive.

There was no error in refusing the peremptory instructions to the effect that plaintiff was not entitled to recover.

We find no error in the record. The judgment is affirmed.

All concur.