text:
    CLARENCE O. HURST v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division Two,
    March 13, 1920.
    1. NEGLIGENCE: Instruction: Measure of Damages: All Facts and Circumstances. An instruction telling the jury that in estimating plaintiff’s^ damages they will take into. consideration his physical injuries “as shown by the evidence, together with all the facts and circumstances detailed in evidence,” does not give the jury a roving commission, and is not misleading or prejudicial or erroneous.
    2. VERDICT: Excessive: $15,000 for Loss of Foot. A conductor of a freight train, thirty-nine years of' age, at the time in good health, receiving from $140 to $150 per month, who had never worked at any other occupation, in 1916 attempted to climb up- , on a moving car for the purpose of releasing a defective brake; the hand-hold gave way, one foot was thrown under the wheel and crushed, and he received injuries to his back from which he still suffers intense pain; the foot was amputated midway between the ankle and knee, and at the trial a yfear later the amputation had not completely healed, he was unable to succesfully use an artificial limb, was still using crutches and suffering pain, and was employed about a garage at twenty dollars a month. Helch, that a verdict for $15,000, after having been reduced from $20,000 and then approved by the trial court, • cannot be held to be excessive.

      3. -: -: Former Approval for $10,000: Increased Cost of Necessaries. For personal injuries the law attempts to afford a fair compensation in value for the losses sustained, and that means the value must he measured in money, which is a fluctuating and variable standard. Reduced to money-value compensation means the purchasing power of the essentials of life, such as rent, clothing, food and fuel, during a given epriod of time; and the fact that the court ten or twenty years ago refused to approve verdicts for the loss of a foot in excess of $10,000, is no sufficient ground for disapproving one for the same loss for $15,000 at a time of radical changes in social and economic conditions and increased comparative costs of life essentials: and where the life-expectancy of plaintiff exceeds ten years and his previous earning capacity had approximated $1800 a year and is now reduced to $240, and there is no showing of prejudice or passion on the part of the jury, and their verdict in 1917 for $20,000 for the loss of a foot in 1916 is reduced to $15,000 and then approved by the trial court, who saw plaintiff and was in a better position to determine the extent of his injuries, the appellate court will not say that the verdict was excessive.
    Appeal from Buchanan Circuit Court. — Hon. Thomas B. Alim, Judge.
    Affirmed.

      H. J. Nelson, M. G. Roberts and E. M. Spencer for appellant.
    (1) Plaintiff’s instruction on the measure of damages' was erroneous in that it permitted the jury to take into consideration “all the facts and circumstances detailed in evidence” in determining the measure of recovery. The jury was instructed that in assessing the damages they should take into consideration certain proper elements, to wit, physical injuries, mental and physical pain and, in addition thereto, “all the facts and circumstances detailed in evidence.” Such a roving commission was improper, misleading and prejudicial. (2) The verdict even as reduced by the court on the motion for new trial from $20,000 to $15,000, was excessive. Ostertag v. Union Railroad Co., 261 Mo. 479; Kinney v. Metropolitan St. Ry. Co., 261 Mo. 116; Farrar v. Metropolitan St. Ry. Co., 149 Mo. 227; Brady v. Railroad Co., 206 Mo. 540; Newcomb’v. New York Central, 182 Mo. >727; Lessenden v. Mo. Pac. Ry. Co., . 182 Mo. 267.

      Mytton & Parkinson for respondent.
    (1) Plaintiff’s instruction on the measure of damages is correct and proper and has many times been approved by this court: Phelps v. Zinc Co., 218 Mo. 585; Harmon v. Donohue, 153 Mo. 275; McNamara v. ■Transit Co., 106 Mo. App. 340; Sidekum v. Wabash. Ry. Co., 93 Mr. 400. (2:).' The verdict of $20,000, reduced by a remittitur to $15,000>, and approved by the trial judge for that amount,- is not excessive, but a modest verdict for the injuries to respondent. Shohoney v. Railroad, 231 Mo. 131; Oglesby v. Mo. Pac. Ry. Co., 150 Mo. 137; Yosf v. Union Pacific Ry. Co., 245 Mo. 252. A verdict of $30,000 today would not have the purchasing value of a verdict of $15,000 five years ago. Turnbow v. Kansas City Railways Co., 211 S. W. 41; Smith v. Kansas City Southern, 213'. S. W. 481; Hulse v. St. Joseph Belt Ry. Co., 214 S. W. 156.
   WILLIAMSON, J.

This is a suit in damages for personal injuries. The petition is in the usual form. The answer is a general denial. The verdict is for the plaintiff in the sum of twenty thousand dollars. Defendant’s motion for a new trial was overruled, but plaintiff was required to enter a rmiittitur in the sum of five thousand dollars, which he did, and judgment was rendered for the sum of fifteen thousand dollars. From this judgment defendant appeáls. The facts are as follows:

The plaintiff was in the employ of the defendant company as a conductor on a freight train. While so employed, the plaintiff observed that a brake on one of the freight cars was not working properly. Desiring to release the brake, plaintiff attempted to climb upon the car for that purpose. At the end of the car there were two devices called “grab-irons,’’..apparently intended to be used in climbing the car. Plaintiff stepped upon one of these, and it, being defective, gave way under his weight and left him hanging by his right hand, with his feet swinging on the ties between the rails. After a few moments, plaintiff’s hold gave way, and he fell. He was' unable, in falling, to throw himself clear of the moving train, and his left foot was ground beneath the car-wheels, necessitating amputation about midway between the knee and the ankle. He was taken to a hospital at ,Chillicothe, and was confined there, under the constant care of physicians and a nurse, for three weeks. After leaving the hospital, the wound was treated daily by the physician for several weeks. The ground upon which plaintiff fell, in falling from the car, was frozen, and in addition to the injuries to his leg he claims to have sustained a permanent injury, to his back, from which he suffers intense, though intermittent, pain. He also sustained various minor cuts and bruises upon his head and body. The wound caused by the amputation had not completely healed at the time of the trial, and plaintiff still suffered from it, and being a large and heavy man, was unable successfully to use an artificial limb. The injuries were received on the 24th day of February, 1916, and plaintiff was still using crutches when the case was tried in March, 1917. At the time of the trial he was employed about a garage, at a wage of twenty dollars per month. At the time he was injured, plaintiff was thirty-nine years of age, in good health, weighed two hundred and' ten pounds, and was earning one hundred and forty-five to one hundred and fifty dollars per month. He had never worked at any other occupation. No other facts are necessary to an understanding of the questions arising on this appeal.

I. The first point assigned by appellant as error is the action of the trial court in giving! the following instruction in behalf of respondent:

“If the jury find for the plaintiff and further find from the evidence that plaintiff was not, himself, guilty of any negligence or carelessness contributing to or causing his injury, they will assess his damages at such sum as they may believe from the evidence will reason-compensate him for the injuries sustained by him, if any, as shown by the evidence ; . and in estimating such damages the jury may take into consideration the physical injuries to plaintiff, if any, as shown by the evidence, their nature and extent, and whether temporary or permanent, as shown by the evidence, the mental and physical pain and suffering the plaintiff has endured, if any, and will reasonably be expected to endure in the future, if any, as shown by the evidence, together with all the facts and circumstances detailed in evidence.”

This instruction is claimed by appellant to be erroneous because it contains the words, “together with all the facts and circumstances detailed .in evidence.” The vice of the instruction is said to be that it gives the jury a roving commission, and is therefore improper, misleading and prejudicial.

A similar instruction, in which the same thought was expressed in the words, “in connection with all the facts and circumstances in evidence,” was given in the-case of Salmons v. St. Joseph & Grand Island Railway Company, 271 Mo. 395, 197 S. W. 35, and was there held not to be error. Substantially the same instruction was also given and held not to be erroneous in the following cases to-wit: Phelps v. Zinc Company, 218 Mo. 572, l. c. 584; Harmon v. Donohoe, 153 Mo. 263, l. c. 271; McNamara v. St. Louis Transit Co., 106 Mo. App. 349, l. c. 352. The reasoning of these cases need not be repeated here. We rule this point against appellant.

II. Appellant’s second assignment of error is that the amount of the verdict, even after being modified by the court, is excessive. The amlount of the verdict, it will be recalled, was twenty thousand dollars, wE'°h the court reduced to fifteen thousand dollars, and rendered judgment for that sum. This court has always exercised the power, on what it deemed proper occasions, to reverse judgments because of excessiveness, or to require a remittitur as a condition of affirmance. The difficulty, however, is to determine the circumstances which render the use of that power appropriate. There is in this case no complaint in this court of any improper argument on the part of counsel for the prevailing party, nor any suggestion, unless it be in the amount of the verdict itself, of passion or prejudice on the part of the jury. The bald question presented for our decision is whether or not the verdict of the jury, even after having been abated by the trial court, is still so excessive that we ought not to allow it to stand.

In determining this question, we should not overlook the fact that twelve men, presumably honest and intelligent, sitting as jurors, awarded the respondent twenty thousand dollars. The trial judge, while considering that amount excessive, nevertheless approved the verdict to the extent of fifteen thousand dollars. It must be admitted that our opportunity to judge of this matter is not so good as that of the jury and the court below. However, when we look into similar cases upon which this court has passed judgment, there is, prior to 1918, a suggestive uniformity running through them." We are aware that the citation of similar cases may shed but little light upon the case under consideration, because, peculiarly in matters of this sort, each case is a law unto itself, but a brief review may be of interest. In 1897, in the case of Hollenbeck v. Mo. Pacific, 141 Mo. 97, this court approved a verdict for the loss of a leg amputated below the knee, in the sum of ten thousand dollars. In 1906, for a similar injury in the ease of Brady v. Railroad, 200 Mo. 509, a verdict for fifteen thousand dollars was reduced by the court to ten thousand dollars, and affirmed. In 1908, in the case of Swearingen v. Mining Co., 212 Mo. 524, the plaintiff for similar injuries was awarded ten thousand dollars by the jury, and that judgment was affirmed. In 1914, in the case of Kinney v. Metropolitan Street Ry. Co., 261 Mo. 97, a verdict in favor of the plaintiff for fifteen thousand dollars for the loss of a leg was affirmed for ten thousand dollars. In 1914, in the case of Ostertag v. Union Pac. Ry. Co., 261 Mo. 457, for the loss of a leg, plaintiff recovered 'a verdict of fifteen thousand dollars, which was reduced by this court to ten thousand dollars, and affirmed. In 1917, in the case of Salmons v. St. Joseph & Grand Island Ry. Co., 271 Mo. 395, 197 S. W. 35, for an injury to the leg not necessitating amputation, but leaving the leg permanently bent at the knee and the lower leg useless, ten thousand dollars was allowed by this court. In 1918, in the ease of Miller v. Hafpster, 201 S. W. 854, where the injuries resulted in a permanent shortening of the leg to. the extent of three or four inches, this court allowed a verdict of fourteen thousand dollars to stand.

. Respondent, in seeking to uphold the judgment of the lower court, forcibly calls our attention Jo the greatly diminished value of money under the conditions now so widely, prevalent, and insists that the amount of the verdict fixed by the jury is not out of harmony with our decisions upholding verdicts, for ten thousand dollars for similar injuries, at a time when the purchasing power of money was much greater than it now is. This argument calls for consideration.

The dollar', is, at best, merely a unit for the measurement of values. It is a fluctuating and variable criterion, and therefore an imperfect one. Statisticians and political economists have devised a unit of measurement which, while necessarily imperfect, is yet more accurate than the dollar for gauging values. This unit is arrived at, broadly speaking, by taking the money cost of certain essentials of life, such as rent, clothing, food and fuel, during a given period of time, and comparing it with the cost in money of like essentials of like quantity and quality during a like antecedent period. The relative purchasing power of the dollar is thus ascertained, and its fluctuations are thus shown. 'Courts cannot, of course, follow the ordinary variations of the money-market, as brokers and merchants do, but wheh radical, material and apparently permanent changes in social and economic conditions confront mankind, courts must take cognizance of them —not too hastily, lest that -which seems to he permanent should prove to be transient; nor yet too tardily, lest justice fail. The humane and just intent of the law is at all times to afford fair/ compensation to one who has suffered wrong. Compensation means compensation in value. It will not do to say that the same amount of money affords the same compensation when money is cheap as when money is dear. The value of money' lies not in what it is, but in what it will buy. It follows that if ten thousand dollars was fair compensation in value for such injuries as are here involved, twenty years ago,- when money was dear and its purchasing power was great, a larger sum will now be required, when money is cheap and its purchasing power is small. How much larger, will depend upon the difference in value (that is, in purchasing power) of money now and then. That money to-day has much less purchasing power than it had twenty, or even ten, years ago, admits of no dispute, and we are not justified in disclaiming judicial knowledge of a world-wide condition, seen and known of all men everywhere. If that be true, then if we to-day allow the same amounts hi money that we allowed in like instances ten or twenty years ago, we are following our decisions of that day in letter, but departing from them in spirit. We are warned, upon excellent authority, that “the letter killeth, but the spirit giveth life.” [II. Corinthians, 3-6.] Other courts of ability and standing have deemed it their duty to take present-day conditions into consideration in passing upon problems similar to that with which we are now dealing. Thus, in Eckles v. Edison, 139 Ill. App. 75, l. c. 81, it is said:

“It is impossible to measure with accuracy the pecuniary compensation adequate for a permanent injury of this character. The expenses of living have been increased of recent years and the earning power of money diminished. A verdict and judgment in a suit for personal injuries allowing excessive damages ought not to be permitted to stand, but in the present case our conclusion is that the judgment is not so manifestly excessive as to warrant interference.”

In Dale v. Railway & Light Co., 121 La. 946, l. c. 955, the Supreme Court of Louisiana said: “The amount awarded by the jury is greater in proportion than this court has been in the habit of allowing, but, considering, as we are bound to do, that the purchasing power of money is less than it has been in the past, we are of the opinion, that there should be judgment for $7,500.” [19 L. R. A. (N. S.) l. c. 632.]

A similar utterance by the same court may be found in Rogers v. Lumber Co., 129 La. 809. We have also in recent decisions, recognized the same conditions.

“Appellant asserts that this court has never allowed damages for personal injuries in excess of $25,000, and states it as if that were a definite rule. There is no definite rule laid down by this court in any case; each individual case' has been determined upon its own facts. . . . In the Gordon case the injury occurred in 1904 and in this case in 1914, about ten years later. Twenty-five thousand dollars in 1904 was a much larger sum in purchasing power than that sum in 1914. ¶ While the injury in the Gordon case was probably more painful and more serious in its results, we are not prepared to say that a verdict of $25,000 by the trial court was excessive.” [Smith v. K. C. So. Ry. Co., 213 S. W. l. c. 486.] A forceful paragraph from a dissenting opinion of Walker, J., in Hulse v. St. Joseph Ry. Co., 214 S. W. l. c. 156, is pertinent here upon several points, in addition to the particular one under discussion:

“Limited as an appellate court is, of necessity, to ■the cold and irresponsive letter of the record, it is far less capable of justly determining the extent of an injury in a case of this character than the trial jury. In this case the jury not only heard thei injured man and his witnesses testify as to his hurt, but they saw his condition. . . . Human injuries admit of no parallels, and there can be no snch cases. The impairment of a faculty or function for which legal redress may be sought, although seemingly similar in two different cases, may be as widely different as are the individuals who are injured. . . . Besides, measured by a purely commlercial standard, $12,000 to-day is no more than a $7,000 verdict five or ten years ago. ’ ’

These utterances are cited as showing the trend of judicial thought.

In the case at bar, the respondent’s earning capacity has been reduced from approximately eighteen hundred dollars per annum to about two hundred and fifty dollars per annum. The money loss from this source alone would aggregate in ten years more than the amount of the judgment awarded by the trial court, and respondent’s life-expectancy at his age* thirty-nine, and in his condition of health, which was good, would far exceed ten years. The pain, both physical and mental, which he has already endured, and which, from the character of his/ injuries,, he will certainly endure in the future, must also be, taken into consideration. After mature reflection; we are unwilling, in this instance, to pronounce our own judgment, based only upon the printed page, to be so far superior to that of the jury and the trial judge as to justify us in substituting our judgment for theirs, particularly in the absence of any claim of misconduct, prejudice, passion or corruption in the trial below. This court has laid down the rule that it will not interfere with the action of trial courts upon questions, of this sort, unless the amount allowed is shocking to the judicial conscience, or-is so excessive as clearly to show that it is the result of prejudice and passion. [Partello v. Railroad, 217 Mo. 645, l. c. 659; Adams v. Mo. Pacific Ry. Co., 100 Mo. 555, l. c. 569.] We are not prepared to say that the judgment in this case merits either condemnation. We therefore rule this' point against appellant.

No other questions are presented for our determination. For the reasons stated, the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    MARY COSTELLO v. KANSAS CITY and KANSAS CITY RAILWAYS COMPANY, Appellants.
    Division Two,
    March 13, 1920.
    1. NOTICE OP SUIT: By Suit and Service of Petition and Summons. Under the statute (Laws 1913, p. 545) declaring that no action for damages “shall be maintained” against a city having one hundred thousand inhabitants, on account of injuries growing out of a defective condition in a street, “until notice shall have been given in writing” to the mayor, within ninety days of the accident, preceding formal notice is not required, if suit is brought within three days by a petition sufficiently descriptive of the place where and the time when the injury was received and the character and circumstances of the injury, and a copy of the petition and summons is promptly served on the city. [Following Hunt v. City of St. Louis, 278 Mo. 213 and distinguishing Mathieson v. Railroad, 219 Mo. 542.]
    2. -: -: By Service of Summons Only. Where in an action for damages brought against the street railway company and the city, within three days after the personal injuries were received, the summons and a copy of the petition were duly served on the company and the summons only was served on the city, there was a sufficient compliance with the statute declaring that no such action shall be maintained unless notice in writing shall have been given to the mayor within ninety days after the accident occurred. The summons notified the city that it must, within a given time, file answer to the petition of plaintiff, and that petition was a public record of which the city was bound to take notice, and the city was sufficiently notified of its contents; and if the petition sufficiently stated the place where and the time when the injuries were received and the character and circumstances of the injury, the notice was sufficient, and the statute was complied with.
    3. -: Manner of Service: Actual Notice. The* statute (Laws 1913, p. 545) declaring that no action for damages against certain cities shall be maintained unless notice in writing is given to the mayor within ninety days after the personal injuries shall have been received prescribes no manner of service, and therefore it is sufficient to show that the city actually received the notice; and an answer by the city denying “each and every allegation in plaintiff’s petition contained” conclusively shows that the city actually read and examined the petition, a copy of which was served only on the defendant railway company.

      4. NEGLIGENCE: Instruction: Comment on Evidence. An instrue- • tion telling the jury that plaintiff admits that she looked down at the place where she stepped in alighting from the street car, “and if you believe from the evidence she saw, or in the exercise of ordinary care should have seen, the condition of the place where she was stepping, and that in such circumstances a reasonably prudent person could, in the exercise of reasonable care, have stepped down from such car without stepping on the edge of the pavement bordering the street car rails, then your verdict must be for the defendant city,” was properly refused, because it singles out for comment certain of the evidence and gives it undue prominence, the facts being that plaintiff, as she stepped from the front end of a car on a curve, stepped on a ledge of rock which was five or six inches above a depression in the street, whereby her ankle turned and she fell to the street, striking the step of the car.
    5. -: -: Duty of Defendants: General Terms. An instruction for plaintiff which does not direct a verdict, but in general terms expresses the care the defendant company is required to exercise towards passengers alighting from its cars and the care the defendant city must exercise in' maintaining its street in a reasonably safe condition, is not erroneous, for that it does not exculpate the defendant city if plaintiff was injured after stepping several steps away from the ear, if the duty of both defendants as applicable to the particular facts is correctly defined in other instructions.
    6. -: Leading Question: Identifying Photograph. The allowance of leading questions is largely within the discretion of the trial court, and it may be difficult for plaintiff to identify a photograph of the place where she stepped from the car except by a leading question.
    7. -: Permanent Injuries: Subsequent Turning of Ankle. Where plaintiff’s petition alleged that, as she stepped from the street car, she stepped on a ledge of rock five or six inches above a depression in the street and her ankle turned, that her right ankle was fractured and dislocated, that the ligaments, muscles, tendons and nerves were severely bruised and lacerated and that as a result of the injuries she would “for all time be a cripple,” testimony that she was lame, that her foot turned under her if she did not set it down just right, and that she had fallen five times since the injury on account of her ankle turning, was not erroneous. [Distinguishing Hall v. Coal Co., 260 Mo. 351.]
    8. WITNESS: Trustworthiness: Proven by Himself. The trustworthiness of a witness may be proven by his own testimony. It is not error to permit a witness who had described the accident which 37 — 280 Mo. resulted in plaintiff’s injury and who has been severely cross-examined by defendant’s counsel in an endeavor to impeach' his good faith, to affirmatively answer, on redirect examination, the question: “You are entrusted with doing the express company’s business in a responsible position?"
    9. EVIDENCE: Comment by Court. A statement by the court, in limiting an injuiry, that “it doesn’t controvert anything that has been proven,” being fully corroborated by the record, is not error.
    TO. NEGLIGENCE: Instruction: Assumption of Fact: Depression: If Any. An instruction telling the jury that “if you believe and find from the evidence that” on the date plaintiff stepped from a street car and was injured “there was, at or near the usual stopping place (if any) for north-bound cars, a depression in the street about five inches deep, and that said depression (if any) -was so situated that there was danger,” etc., does not assume that a depression existed at the place, but required the jury to find as a fact that it did exist, and it was not therefore necessary to insert the word “if any” after the word “depression” wherever it was subsequently used in the instruction.
    11. -: -: Cured by Another. A defendant is in no position to complain of an instruction given on behalf of another defendant if a like instruction was given on its own behalf.
    12. -: -: Verdict Against Both Defendants. The defendant railway company cannot complain of an instruction given on behalf of defendant city which told the jury that they might return a verdict in favor of the city even though it might be against the company, where the verdict was against both defendants.
    13. TRIAL: Judge Going’to Jury Room. A complaint that the trial judge went to the jury room while the jury was deliberating, not mentioned anywhere except in affidavits attached to the motion for a new trial, cannot be considered on appeal.
    14. VERDICT: Contrary to Physical Facts. A verdict should not be set aside as inconsistent with the physical facts, where it is obvious from the limited facts developed that the accident might have occurred in the manner detailed by plaintiff’s testimony.
    15. -: Excessive: $2000. A verdict for $2000 for permanent injuries to plaintiff’s ankle is not excessive.
    Appeal from Jackson Circuit Court. — Ron: TUowúas B. Buckner, Judge.
    Affirmed.

      E. M. Harber, M. A. Fyke and A., F. Smith for appellant, Kansas City.
    (1) The court erred in refusing to give the instructions asked by the defendant city, (a) No proper notice having been served upon Kansas City, plaintiff was not entitled to more than nominal damage in any event. The service of a proper notice is- a condition precedent to the right of- a plaintiff to recover in a suit of this kind. Reid v. Kansas City, 195 Mo. A-pp-. 457; Jacobs v. St. Joseph, 127 Mo. App. ^672. (b)The court erred in refusing to give instruction 14 asked by defendant city. Said instruction submitted the question of whether or not plaintiff was in the exercise of reasonable care. (2) The court erred in giving plaintiff’s first instruction. This instruction assumed' the facts in controversy in this action. Nolan v. Met. St. Ry. Co., 250 Mo. .621. (b) There was no evidence that the photograph was taken at the time of' or immediately after the accident. Plaintiff’s counsel promised to make such proof, but the promise was not fulfilled. Judgment in the case should therefore be reversed. Root v. K. C. So. Ry. Co., 195 Mo. 375, 376. (3) The court erred in permitting plaintiff to. testify that as a result of her sprained ankle, she had fallen a number of times since the accident, such evidence being outside of the issues in the case. Hall v. Manufacturers Co., 260 Mo. 371. (4) The court erred in permitting counsel to hand witnesses a photograph and then to ask the witness if the photograph was a correct representation of the conditions as they existed at that time. This practice was improper: (a) It had the vice of leading and suggestive questions. (5) The court erred in permitting a witness for plaintiff to give his own conclusions as to his worthiness of belief. (6) There was no error in giving instructions 12 and 13 on behalf of the defendant city.

      Richard J. Higgins and Mont T. Prewitt for appellant, Kansas City Railways Company.
    (1) The court erred in giving instruction numbered 2 requested by plaintiff. Siegrist v. Arndt, 10 Mo. App. 200; Merriwether v. Cable C'o., 45' Mo. App. 528; Boyd v. Railway, 249] Mo. 130; Bond v. Railway, 122. Mo. App. 214; Brock v. Transit Co., 107 Mo. App. 109'; O’Neil v. Blase, 94 Mo. App. 648; Dowling v. Allen, 88 Mo. 293; Bank v. Crandell, 87 Mo. 208; Clark v. Railway, 166 Mio. App. 156; Wilder v. Railway, 164 Mo. App! 121; Arata v. Railway, 167 Mo. App. 91; Detrick v. Railway, 143 Mo. App. 179; Beave v. Transit Co., 212 Mo. 351. (2.) The court erred in giving instructions numbered 12 and 13 as requested by defendant city. 'Fleming v. Railway, 101 Mo. App. 217; Smith v. Sedalia, 152 Mo. 283 ; Patee v. Wagon C'o., 97 Mo. App. 356; Grigsby v. Fullerton,.57 Mo. 309; Bank v. Towson, 64 Mo. App. 97; McAtee v. Vanlandingham, 75 Mo. App. 45; Warder v. Seitz, 157 Mo. 140; Marr v. Bunker, 92 Mo. App. 651; Hamilton v. Crowe, 175 Mo. 634; Mining Co. v. Frankenstein, 179 Mo. 564. (3) The court erred in going to the jury room while the jury was deliberating in this cause, and coercing and forcing the verdict. Lamport v. Aetna Life Ins. Co., 199 S. W. 1022; McPéak v. Railway, 128 Mio. 644; State v. Hill, 91 Mo. 428; McCombs v. Foster, 64 Mo. App. 618; State v. Alexander, 66 Mo. 163; Chinn v. Davis, 21 Mo. App. 365; State v. Campbell, 166 Mo. App. 591. (4) The court erred in refusing to sustain demurrer asked at.the close of plaintiff’s case, and renewed at the close of all evidence, under the physical-facts doctrine. Scroggins v. St. Ry. Co., -138 Mr. App. 219; Daniels v. Railways, 177 Mio. App. 281; State v. Turlington, 102 Mo. 663; State v. Bryant, 102 Mo. 32; State v. Anderson, 89 Mo. 332. (5) The court erred in refusing to sustain defendant’s motion for new trial and in arrest because of each of the above errors, and for the further reason that the verdict is excessive, and against the weight of the testimony. Young v. Bacon, 183' S. W. 1082; Franklin v. Fisher, 51 Mo. App. 347; Gabriel v. Railway, 164 Mo. App. 60.

      W. W. McCanles and Hogsett & Boyle for respondent.
    (1) The court did not err in giving instruction number 2, requested by plaintiff, (a) The instruction did not assume the existence of the depression but affirmatively required the jury to find its existence, (b) The instruction affirmatively required the jury to find that the injuries were directly caused by the negligence submitted; and defendant’s instruction number 6 expressly required the jury to find the same fact. Bliesner v. Distilling Co., 174 Mo. App. 139; Farmer v. Railway, 178 Mo. App. 594; Pendegrass' v. Railway, 179 Mo. App. 534; Crader v. Railroad, 181 Mo. App. 542.; Garard v. Coke Co., 207 Mo. 242. (c) The motion for a new trial is insufficient to present for review the giving of any instructions. Surbeck v. Surbeck, 208 S. W. 655; Kansas City Trunk Co. v. Bush, 208 S. W. 626; Disinfecting & Manufacturing Co. v. Bates County, 273 Mo. 304; Lampe v. United States Ry. Co., 202 S. W. 438; Nitchman v. United Rys. Co., 203 S. W. 491; Probst v. St. Louis Box. Co., 207- S. W. 891; Stretch v. City of Lancaster, 206 S. W. 390. (2) The court did not err in giving the instructions number 12 and 13 requested by the defendant city, (a) Defendant Railways Company cannot assign error in instructions given for its co-defendant, the city. O’Rourke v. Lindell Railway Co., 142 Mx>.-352 ; Souther Iron Co. v. Realty Co., 175 Mo. App. 240; Doster v. Railroad Co., 158 S. W. 440. (b) Instruction 12 contains no error against the Railway Company, (c) Instruction 13 contains no error against the Railway Company. Since the defendants were bound by different rules of duty, the jury might possibly have found for the city and against the Railway Company. But since the jury found both defendants liable, it follows that instruction 13 could not possibly have had any effect upon the verdict at all. (3) The court did not coerce the verdict, (a) Defendants could not preserve the point for review by affidavit filed with the motion for a new trial, but only by the bill of exceptions; and there is no such point preserved in the bill of exceptions. Lemmons v. Robertson, 164 Mo. App. 85 ; Sperry v. Hurd, 151. Mío. App. 583; Harless v. Ry. Co., 123 Mo. App. 22; Miller v. Engle, 185 Moi App. 560. (b) Even if the facts stated in the affidavit were preserved by the bill of exceptions, it is evident that the trial court did not coerce the verdict. McPherson v. Railway Co., 97 Mo. 260; Fairgrieve v. City of Moberly, 29 Mo. App. 141. (4) The trial court properly overruled the demurrer to the evidence. The plaintiff’s version of the injury is not opposed to the physical facts, but is in accord therewith. Middleton v. Power Co., 196' Mo. App>. 258; Allen v. Street Railways, 188 Mo. App. 20O’; Benjamin v. Street Ry. Co., 245 Mo. 598 ; Grillog’ly v. Dunham, 18)7 Mo. App. 557; Warnke v. Rope Co., 186 Mo. App. 42. (5) The verdict is not excessive. Lorton v. Wabash, 141 S. W. 478; Biggie v. Railroad, 140 S. W. 602; Dent v. Traction Co., 145 Mo. App. 61; Harris v. Street Ry. Co.., 168 Mo. App. 336; Brown v. City of Carthage, 189 Mo. App. 333. (6) The court did not err in refusing to give instructions 16 and 14. (a) Instruction 16 was properly refused because the suit was brought, and the summons served upon the city, and answer filed by the city, all within ninety days from the date of the injury, and the necessity of serving the formal notice required by statute was dispensed with. Morrill v. Kansas City, 179 S. W. 759. (b) Instruction 14 asked by the city was properly refused because it was a comment upon the evidence of the plaintiff. Meyers v. Railroad Co., 171 Mo. App. 283; Richardson v. Street Ry. Co., 166 Mo. App. 162; Dungan v. Railroad Co., 178 Mo. App. 164. (7) The court did not err in permitting counsel to ask witness if the photographs in evidence were correct representations of the conditions as they existed at tlie time of the injury. The matter of asking leading questions is within the discretion of the trial court and is never a cause for reversing a judgment. State v. Shoemaker, 183 S. W. 322; State v. Steel, 226 Mo. 583; State v. George, 214 Mo. 262. (8) The court did' not err in permitting plaintiff to testify that the condition of her ankle had caused her to fall a number of times since the injury. The petition alleged that she would for all time be a cripple, and the evidence complained of was within that allegation. Bearden v. Bail-road, 215 Mo. 134; Poster v. Bys. Co., 183 Mo. App. 602; Lyons v. Street Bys. Co., 253 Mo. 143; Cossitt v. Bailways Co., 224 Mo. 97; Beynolds v. By. Co., 180 Mo. App. 138. Defendant did not object until after the questions were answered, and the objection therefore came too late. Osborne v. Bailway Co., 144 Mo. App. 119; Utz v. Insurance Co., 139 Mo. App. 552; Stiller v. Bailway C'o., 141 S. W. 483; Lowenstein v. Bailway Co., 134 Mo. App. 24. (9) The court did not err in permitting the witness to testify to the nature of his occupation. His occupation was competent evidence as to his character and credibility, and the testimony was admissible on that ground.
   WHITE, C.

The plaintiff recovered ’judgment against both defendants in the Circuit Court of Jackson County, in the sum of two thousand dollars for personal injuries. The case was appealed to the Kansas City Court of Appeals, where the judgment was affirmed, and afterwards, on motion for rehearing, certified to this court, because the opinion was considered by that court to be in conflict with the opinion of this court in the case of Mathieson v. Railroad, 219 Mo. 542.

On the twenty-first day of April, 1917, plaintiff was a passenger on a car operated by the defendant Kansas City Railways Company, on what was termed the Jackson Line. The- car was a “one-man car,” where the motorman was also conductor; passengers were received and discharged at the front end of the car. According to the plaintiff’s evidence, as the car approached Twelfth and Jackson Streets, where the plaintiff desired to .transfer to another line, the car was stopped in response to her signal; she went to the front end and stepped down from the car, and in doing so stepped on a ledge of rock which was about five or six inches above a depression in the street, her ankle turned and she fell to the street, striking the step of the car. The result was torn ligaments and other injuries to the ankle, and internal injuries. She testified that in alighting from the car she looked down, but on account of the darkness was unable to see the defect In the street which caused her injury. Her version of the facts was corroborated by other witnesses.

It was claimed by the defense, and the claim supported by some testimony, that the plaintiff alighted safely from the car and walked several steps before she fell and received the injury complained of.

' I. The first error assigned by the defendant city, the ruling on which by the Kansas City Court of Appeals brought the case here, was the refusal of the trial court to instruct the .jury, that, as against a c^y> the verdict should be for nominal damages and only in case of a finding for plaintiff; this on the ground that prior to bringing the suit notice had not been given to the city undfer the Act of 1913. The act, found in Laws 1913, page 545; provides as follows:

“Section 1. Action for damages maintained} how— No action shall be maintained against any city of this State which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.”

In this case no notice was given prior to bringing the suit, as is required by that statute. The injury occurred April 21, 1917, and the suit- was -filed three days later. The summons and a . copy of the petition were served upon the Street Railways Company and the sumjmon's only was served upon the city.

The decision of this court which the Kansas City Court of Appeals believed to be in' conflict with its opinion, Mathieson v. Railroad, 219 Mo. 542, l. c. 549, construes a statute of Kansas which allows an action for damages against a railroad company under certain circumstances, “provided that notice in writing of the injury,” etc., “shall have been given.” It was held that the use of such language made it necessary to plead and prove the giving of the notice in order to state a cause of action and hence the notice must be given before the suit is brought.

This court, however, in case of Hunt v. City of St. Louis, 278 Mo. 213, 211 S. W. 673, in an opinion by Faris, J., held the notice, required by the Act of 1913, was not a prerequisite. to the filing of the suit because the language of the act is “no action shall be maintained” until such notice is given.. It was, also held that formal notice was not necessary where suit was filed and a copy of the petition and summons served upon the defendant within ninety days, because the petition sufficiently informed the city of the exact nature of the claim, both as to the injury and as to ihe alleged negligence causing it. Judge Faris quotes approvingly the case of Morrill v. Kansas City, 179 S. W. 759, where the Kansas City Court of Appeals reviewed the authorities at length as to the reason for such notice. In that ease no. notice was given, but the suit was brought and the summons and a copy of the petition served upon the defendant within ninety days, and it was held that i>o other notice was necessary.

The case of Jacobs v. City of St. Joseph, 127 Mo. App. 669, is also cited with approval in the Hunt case, and it states the reason for such notice in these words, l. c. 671-2: “The object of the statute is to give the city opportunity to investigate the case while conditions are fresh and thus protect itself against actions which may be brought long after the occurrence. ’ ’

A notice after suit was filed would serve that purpose as well as notice before.

Under the authority of the Hunt case, if the defendant had been served with a copy of the petition as well as the summons, no doubt, the notice would have been entirely sufficient. The question is-whether the mere service of the summons, without a copy of the petition describing the defects complained of, would be sufficient notice. '

It may be conceded that actual knowledge from) some other source of the facts to be imparted by the notice is insufficient, just as a verbal notice would be insufficient. A written notice is required probably for the purpose of furnishing information- in definite terms ás to the exact nature of the defect complained of. It must be borne in mind that the purpose of the notice is to inform the city of the nature of the claim in order that the city may be placed on guard and may investigate. Obviously, it would mlake no difference whether the information came from plaintiff by means of one instrument or two. The summons upon the city which appears in the record, notified the city it must, within a given time, file answer to “the petition of Mary Costello.” That petition was a public record which the city was bound to examine.

It is the rule, where a recorded instrument imparting constructive service refers to some other instrument not of record, that the party to be affected is notified of the contents of the other instrument referred to. [National Bank of Commerce of Kansas City v. Morris, 114 Mo. 255; Beavers v. Bank, 177 Mo. App. 100, l. c. 104.] There would seem to be no reason for refusing to apply that rule to actual written notice which is personally served and refers to another paper distinctly and definitely, which other paper is accessible to the party notified.

The section of the statute requiring this notice, Laws 1913, page 545, prescribes no manner of service. It only says that notice shall he in -writing. In such case it is always sufficient to show that the party to be served actually received the notice. [Miller v. Hoffman, 26 Mo. Ápp. 199, l. c. 202; Ryan v. Kelly, 9 Mo. App. 396; Brost v. Whitall-Tatum Co., 89 N. J. L. 531.] For instance, the written notice required to be served, with no method of service prescribed, may be served by mail, if it is shown that the party to be served reiceved the letter containing the notice. [20 R. C. L. 345.] In this case it conclusively appears that the defendant 'city actually read and examined the petition, filed by the plaintiff in the circuit court, which contained a specific description of the defect complained of, because the defendant city filed its answer denying “each and every allegation” in the petition, and pleaded contributory negligence “in selecting the course plaintiff was pursuing.” The notice, therefore, was sufficient.

II. The defendant city assigns error to the refusal by the court to give its Instruction No. 14, as follows:

“The jury are instructed that the plaintiff admits in this case that she looked down at the place where she stepped in alighting from the car at the time and place where she claims to have been injured. If you believe from the evidence that she saw, or ,, . „ , , , m the exercise of ordinary care should have seen, the condition of the place where she was stepping and that ini such circumstances a reasonably prudent person could, in the exercise of reasonable care, have stepped down from such ear without stepping on the edge of the pavement bordering the street car rails (if you believe there was such an edge), then your verdict in this case must be for the defendant Kansas City.”

The instruction properly was refused because it singles out for comment certain of. the evidence and gives it undue prominence in stating to the jury what plaintiff said she did in alighting. [Eckhard v. St. Louis Transit Co., 190 Mo. 593, l. c. 620; Boyce v. Railroad, 120 Mo. App. l. c. 175; Dungan v. Railroad, 178 Mo. App. l. c. 171; Meyers v. Railroad, 171 Mo. App. l. c. 288; Huff v. Railroad, 213 Mo. l. c. 515.]

III. The city also complains of error in giving the first instruction on behalf of the plaintiff, as follows:

“You are instructed by the court that it was the duty of the defendant Kansas City Railways Company, under the law to exercise the highest degree of care to S^°P the car in question at a reasonably safe place at 12th and Jackson for the plaintiff as its passenger to alight therefrom.
“You are further instructed by the court that it was the duty of the defendant Kansas City, under the law, to exercise ordinary care to maintain the street in' question at the place in question, in a reasonably safe condition for travel by the public.”

It is urged that the instruction ignores the evidence offered by the defendant to the effect or tending to show that the plaintiff was injured after stepping several steps away from the car, and in effect'tells the jury the plaintiff was injured in alighting from the car at the place in question.

The instruction, is not open to that objection. It does not direct a verdict, but simply expresses in general terms the duty of the parties defendant, while other instructions apply that definition of duty to the particular facts in the case. The' jury was specifically instructed at the instance of defendant city that if the defendant was hurt in walking away from the car then the verdict should be for the defendant. While it was the duty of the city to exercise car.e to maintain the street in a reasonably safe, condition at the place where the plaintiff alighted, it could not be inferred that the city would be liable unless plaintiff was injured at that place.

IV. The plaintiff, when on the stand, was asked this question by her counsel: “Q. I hand you these two photographs, 'and ask you if you identify themi as photographs of the place where you alighted from this car, as showing the condition in which it was at that time?”

It was objected that tbe question was leading and it was not shown when the photograph was taken. The allowance of leading questions is largely made within the discretion of the trial court, and in a case like this it might be deemed difficult to identify an object like a photograph except by a leading question. [State v. George, 214 Mio. 269; State v. Whalen, 148 Mo. l. c. 290; State v. Bateman, 198 Mo. l. c. 222.]

While the evidence was indefinite as to the time when the photographs were taken, sufficient appears to indicate that they were taken soon after the injury was received. The important thing about the question and the answer was that the- photographs showed the condition of the street as it was at the time the injury occurred. It is not claimed that the pavement had been repaired or changed. Apparently it would not matter when the photographs were taken if they showed the condition which obtained at the time the plaintiff was hurt.

Y. The plaintiff testified that she was lame and that her foot turned under her if she didn’t set it down just right, and that she had fallen five times since the injury on account of her ankle turning. D:efendant city objected to the testimony on the ground gucli injury to an ankle was not within the allegations of .the .petition. The petition alleged that plaintiff’s right ankle was fractured and dislocated, and the ligaments, muscles and tendons and nerves were severely bruised and lacerated and that as a result of the injuries she would “for all time be a cripple.” Physicians testifying on behalf of plaintiff described the condition of her ankle; the condition was likely to be permanent and impaired her ability to use the foot; the adhesion between the sheath and the tendon achilles limited the flexion and extension of the foot and caused pain — a result naturally incident to the injury described in the petition. A tendency to fall on account of the weakness of the ankle could be said naturally to flow from the injury mentioned. The case of Hall v. Coal Co., 260 Mo. 351, cited by appellants, and other cases of like nature, are not in point, for the reason that the ailment sought to be proven in each of such cases was entirely foreign to any particular injury alleged in the petition.

YI. Complaint is made of a ruling of the court in' permitting a witness for plaintiff to answer the question: “You are entrusted with doing the express company’s business in a responsible position?” to which the witness answered in the affirmative.

It is not objected that the question was leading, but that the witness was permitted to bolster . . . . _ . . , . up his character by giving his own conclusion that he was a trustworthy person.

Generally the character of a witness is put in issue whenever it is attacked either by direct evidence or by evidence tending- to show that he had made previous contradictory statements. But the rehabilitation of the witness is not limited to circumistances of that kind. When the character of a witness for truth is attacked in any way, it is competent for the party calling him to offer evidence showing his trustworthiness. [State v. Maggard, 250 Mo. l. c. 345-6, and l. c. 349; Berryman v. Cox, 73 Mo. App. l. c. 74; State v. Christopher, 134 Mo. App. 6, l. c. 8; Kelly v. American Central Ins. Co., 192 Mo. App, 20, l. c. 24.] And this may be done by the evidence of the witness himself as well as by another. His testimony as to his character is as competent as that of anyone else. [State v. Weissman, 238 Mo. l. c. 556.] The question objected to was asked on redirect examination of the witness, after he had been severely cross-examined' by the city’s attorney in an endeavor to impeach his good faith by showing that at the time he saw the incident, which he described in his testimony — the injury to the plaintiff— he was in the employ of the street railway company as assistant supervisor; that when he saw the incident he made no report of it to his company. The endeavor was to show it was his duty to make such report. The question was not open to the objection presented.

VII. A physician testified for defendant describing a condition which he found on examination of the Pontiff called retroversion of the uterus, This question was asked:

“Q. What are some of the commion causes of that, condition, Doctor? A. One of the most common causes, sir, is the result of child birth.
“Q. And why is that possible? A. Well — ■
“The Court: I don’t think it is necessary to go into that. It doesn’t controvert anything that has been proven in the case. It is unnecessary to go into the whole history.”

Appellant complains that the court didn’t permit Irim to offer material evidence as to her condition and commented upon the effect of the evidence.

As to the first objection, the record shows counsel for the city did go on without interruption and the witness explained in detail' the several causes that might have produced the condition mentioned, and the reasons for such result.

The comment of the court complained of, that this evidence didn’t tend to controvert what had already been proven, is fully corroborated by the record. Other physicians testifying for plaintiff had already stated the same facts that were asked for in the question propounded. It is impossible to see how the defendant was injured by the ruling.

VIII. On behalf of the Kansas City Street Railways Company complaint is made of the giving of plaintiff’s instruction number two, which is as follows:

“If you believe and find from the evidence that on April 21, 1917, there was, at or near the usual stopping place (if any) for north-bound Jackson-Ilardesty cars at 12th and Jackson, a depression in the street about five inches deep, and that said depression (if any) was' so situated that there was danger of persons, who might alight from street cars stopping at said place, stepping into the same and being injured thereby; and if you further find that defendants by the exercise of ordinary care should have known that said depression was at said place and that there was danger of persons being injured by stepping into same; and if you further find that the defendant Kansas City, by the exercise of ordinary care should .have known said facts and conditions (if you so find them), in time by the exercise of ordinary care to have removed the depression before the time of plaintiff’s injury (if any), but that said defendant, Kansas City, negligently (if you so find) permitted said depression to be and remain in the condition aforesaid at said place; and if you further find that thereafter on April 21,1917, the plaintiff was a;jpassenger on a north-bound Jackson-Hardesty Street car of the defendant Kansas City Railways Company, and desired to transfer at 12th and Jackson, and that the defendant Kansas City Railways Company negligently (if you so find) stopped said car at the aforesaid depression for the plaintiff to alight, and that said place'was not a reasonably safe place for plaintiff to alight; and that as plaintiff alighted from said car, she stepped into the aforesaid depression and received injuries; and if you further find that plaintiff herself was at all times in the exercise of ordinary care for her own safety, then you are iusttucted by the court that your verdict must be .in favor of the plaintiff and against both of the defendants.”

It is objected that the instruction assumes a depression existed in the place complained of where the instruction' speaks of “said depression” without requiring a finding to that effect.

The first requirement in the instruction is that the jury must “believe and find from the evidence that on April 21, 1917, there was at or near the usual stopping place, if any, for the north-bound Hardesty cars at 12th and Jackson streets, a depression in the street” etc., and that “said depression (if any) was so situated that there was danger.” Then when speaking of the other findings necessary in order to return a verdict for plaintiff, it is mentioned as “said depression” — that is, the depression which they had found to exist and had found to he dangerous. The jury could not have misunderstood. They are presumed to he men of ordinary intelligence. The^ repetition of the phrase “if any” would not have tended to enlighten them further as to the necessity of finding such facts. Instructions like in purport to the one criticized have been approved by this court and the courts of appeals. [Sutter v. Metropolitan St. Ry. Co., 208 S. W. l. c. 852; Kinlen v. Railroad, 216 Mo. l. c. 161; O’Connell v. St. Louis Cable & Western Ry. Co., 106 Mo. 482, l. c. 487; Ludwig v. Cooperage Co., 156 Mo. App. 117, l. c. 124, 129.]

IX. The appellant Street Railways Company complains of instructions 12 and 13 given on behalf of defendant city. Instruction 12 was to the effect that if the defendant alighted safely from said car and was hurt in walking away from it the verdict should be for the city. A like instruction was given on behalf of the defendant railway company, so that it is in no position to complain.

Instruction No. 13, given on behalf of the city, complained of, told the jury that they might return a verdict in favor of the city even though it might be the railway company. Since the jury returned a verdict against both the defendants, whatever error there might be in this instruction is harmless.

X. Both appellants have complained that error was committed by the judge of the court in going to the jury room while the jury was deliberatThis incident is not mentioned anywhere except in affidavits attached to the motion for new trial.

The bill of exceptions shows no formal objection or exception made to the action of the court at the time the incident is said to have occurred. The affidavits attached to the motion attempted an excuse for failing to make the record up in the proper way. As the incident is related in the affidavit there was no error committed by the court; if there was, it is not preserved for review.

XI. It is further claimed on the part of both defendants that a demurrer to the evidence should have been sustained because the physical facts showed the incident could not have happened in the manner testified to by plaintiff and her witnesses. The argument upon that point runs in this way -. The cobblestones which caused the elevation and the depression did not extend to exceed eighteen inches from the rail of the street car track; the step upon which the plaintiff descended to the ground extended out 2314 inches; plaintiff must have stepped beyond the extension of the step, so that when she stepped' down she was obliged to step entirely over and beyond the depression of which she complained.

The car at that point stopped on a curve. The rail curved three feet and five inches in seventeen and a half feet. This curve was to the right. The plaintiff was discharged from the car at the front end and to the right. How far back the wheels were from the front does not appear from ’ the evidence, but it is obvious that the step which was in front of the wheel would be much nearer to the rail than it would be if the track were straight. How much nearer would depend upon the position of the wheels and the length of the car. A mathematician might take the parabola presented by the section of track at that point and with the dimensions of the car, position of the wheel, etc., figure out exactly how far the edge of. the step woul' be from the rail when it stopped. No such mathematical demonstration is presented. Besides, there is no conclusive evidence that the depression was within eighteen inches of the rail. It is apparent that the physical facts do not so contradict the plaintiff’s case as to put her out of court.

XII. It is further claimed that the verdict is excessive. Prom the description of the injury by plain-an<^ ^ler physicians we are unable to say that the verdict is excessive.

The judgment is affirmed.

Mosley, C., concurs; Bailey, C., not sitting.

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

All of the judges concur.


author: WILLIAMS, P. J.

text:
    THE STATE ex rel. KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and WILLIAM C. MULLINS.
    Division Two,
    March 13, 1920.
    ABSTRACT: Timely Service: In Certiorari. In a certiorari directed to a court of appeals on the ground that its decision is in conflict with controlling decisions of the Supreme Court, the printed, abstract must be served on respondent at least thirty days before the case is set for hearing, and if that is not done the case, on respondent’s motion, will be dismissed.

      Certiorari.

    Dismissed.

      E. L. Snider and Fenton H. Hume for respondents.
    (1) The respondents respectfully move the court to dismiss or quash the writ of certiorari herein, for the reason that relator has wholly failed to comply with Rule 35 of this court, in that relator has not served or filed herein printed abstracts and briefs as required by said riile. State ex rel. v. Robertson, 181 S. W. 987.

      E. M. Ilarher and A. F. Smith for relator.
    (1) Rules of court are adopted to assist the court in the performance of its duties; those rules are for the execution of the business of the court, not for the execution of causes of action. While a litigant, may lose his remedy by his failure to comply with a rule of court, that result should not follow unless his failure interferes with the orderly conduct of the business of court; and a rule that would authorize such drastic punishment, like a penal statute, should not be applied except in a case that comes clearly within its terms, (2) A certiorari proceeding to review a decision of a court of appeals presents a very simple question on a very simple record; Does the opinion of the Court of Appeals declare a rule contrary to a prior decision of-this court? The consideration of that question requires little search of the record. It is found by an examination of a short application for a writ of certiorari, and an examination of the opinion of the Court of Appeals, copies of which are in' respondents ’ hands from the inception of this proceeding, and when this question is presented in this court the printed abstract is before this court, so this court is in no wise inconvenienced. So far as the respondents are concerned, they wrote the opinion that is in controversy; thev have a copy of it in the files of their court; they have access to a printed copy of it. At the very filing of the application for a writ of certiorari, they were served with a copy of the application for the writ with all of the document thereto attached; and nearly two months before this cause was set for hearing, they were served with a printed brief presenting the question at issue, in which brief was a statement of facts that was in itself an abstract of the record so far as the question at issue is concerned. So they have not been inconvenienced. The reason for the rule then has - no application in this case, and therefore a failure to comply with it has done no harm and should entail no heavy penalty. (3) But if it be contended that the rule must be strictly enforced, according to its letter, then by that same token it should not be enforced beyond its letter. And the relator is within the letter of the rule. In cases originating in this court the pleadings filed are the record, and the printed abstract is a convenience merely, not a necessity, either for the court or the respondents. So the filing of a printed abstract of the record is. within the'reason and letter of the rule in such cases, and the service of a printed copy thirty days before the hearing is not necessarily within the reason of the rule, and certainly is not within the letter of it. Rule 33 of this court regulating the procedure as to original writs provides: “On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writs of error in ordinary cases.’ The printed abstract of the-record having been filed .one day before the case is set for hearing the relator has complied with rule 12 of this court with reference to the filing of briefs and abstracts of record.
   WILLIAMS, P. J.

This is an original proceeding by certiorari whereby relator seeks to quash the record in a certain case decided by the Kansas City Court of Appeals, on the ground that the decision-therein is in conflict with a controlling descision of this court.

Respondents have filed a motion to dismiss the case, assigning as a ground therefor the failure of relator to comply with the provisions of Rule 33 of -this court concerning the printing and filing of abstracts of the record in cases arising upon the! issuance of original writs by this court.

Rule 33 of this court provides: “On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writs of error in ordinary cases.”

The rule applicable to appeals and writs of error in ordinary cases requires the party litigant, upon whom the duty falls to prepare the abstract, to have the same printed and served upon the opposing party at least thirty days before the cause is set for hearing.

The case' at bar was duly placed on the October docket of 1919, and was set for argument on October 21, 1919. .On October 11, 1919, respondents served relator with a copy of their motion to dismiss. On October 16, 1919, and after respondents had served relator with a copy of the motion to dismiss, the relator for the first time served respondents with a printed abstract of the record in this. case; and on October 18, 1919, relator deposited ten copies of said printed abstract with the clerk of this court.

The motion to dismiss was ordered taken with the case and. must now be determined before further pro-ceeding with the case.

Upon the oral argument and also in his brief counsel for relator suggested that, since Rule 33 failed to specifically state the abstract should be served upon the opposite party, but merely stated that printed abstrasts should be “filed” as in ordinary cases, it should not be held that relator had failed to comply with the rule.

We think it is very clear from a reading of the rule that relator’s interpretation thereof is not justified by the full wording and context of the same. If relator’s present interpretation of the rule be correct, relator would not be required to serve respondents with a copy of the printed abstract at any time. This was certainly not the result anticipated when the rule was formulated. The rule requires that printed abstracts shall be filed “in all respects” as is required in ordinary cases. ' •

The rule in ordinary cases requires (absent stipulation between the parties) the filing of ten copies of printed abstract which has theretofore been served 'upon the opposing party at least thirty days prior to the day on which the cause is set for hearing.

Relator failed to do that in the present case and thereby failed to comply with Rule 33 of this court. Under such circumstances applying by analogy the rule announced by Court in Banc in State ex rel. Pedigo v. Robertson, 181 S. W. 987, it is our duty to dismiss the ease. . ;

It is so ordered.

All concur.


text:
    JAMES H. KLINE, Heir and Successor to AMOS R. PHILLIPS, v. HERMAN C. GROESCHNER, Appellant.
    Division Two,
    March 13, 1920.
    1. COUNTY LAND: Certificate 'to Purchase: Subsequent Conveyance. Where land belonging to a county is sold by the county and paid for, and the purchaser receives a certificate of purchase, the county is there after powerless to convey it to another person. Nor will the failure of the officer whose duty it is to issue a patent, to conform to the statutory requirements, affect the purchaser’s title or right.
    2. -: Proof of Loss of Patent. Where it is shown that the owner of the patent issued in 1859 is dead; that search for it was made; that the last time it was seen it was in the recorder’s office; that the court house was burned, at a time when the patent was probably lodged in the recorder’s office, and that all such papers were destroyed in the fire, the loss of the patent is sufficiently accounted for.
    3. -: Patent: Record in County Clerk’s Office: Mistake in Record. The statute (Act of 1857) makes the record of a patent for county land in the county clerk’s office only prima-face evidence of title; and where defendant, claiming adversely to the- patentee, offers the record in evidence, in an attempt to show that an uncertified copy of the patent which plaintiff has offered as proof of his title does not correctly describe the land conveyed by -the lost patent, the plaintiff can shown that the description in the record is erroneous, and -that showing may be made by oral testimony, and corroborated by. the later list of swamp lands showing that the land described in the record was not included therein; and being a question of fact in an action at law and the evidence substantial, a finding by the trial court that the lost patent described land in Section 13 and its record in the county clerk’s office do- . scribing it as in Section 15 was a mistake, will not be disturbed on appeal; nor will it be ruled that no other copy of the patent was admissible as long as the record in the county clerk’s office was accessible.
    4. -: 'Two Patents. Where two patents are issued for the same county lands, both regular on their face, the prior one must prevail over the subsequent one.

      5. -: Recording Patent: Notice. The general statutes in regard to recording instruments affecting the title to land do not apply to patents issued by the State. Such conveyances may be recorded, but their effect in vesting title and as affecMng notice is not dependent upon their being recorded. Where successive patents are issued by the county for the same land, the question of priority of right is not one of notice.
    6. -: Recording Patent by County Clerk: Affecting Validity: Notice. It is the duty of the county clerk to have a patent for county lands recorded (in his office before it is delivered to the patentee, but that is not a prerequisite to its vality, nor is it the duty of the patentee to see that the patent is correctly recorded, nor is it necessary for him to make a record of it for the purpose of imparting constructive notice, nor has the county court any power to convey swamp land which has .been paid for and correctly described in the patent but incorrectly described in the county élerk’s record.
    7. -: Swamp Land Abstract: Showing Patentees. The 'statute requiring an abstract of the swamp land® in a county to be filed in the county clerk’s office, does not require the. abstract to show to whom the land was patented by the county, but_ only to show the lands which the county acquired.
    8. LIMITATIONS: Suit Within Ten Years. A failure to sue for lands within ten years after the right to sue has accrued, does not bar an action under Section 2535, Revised Statutes 1909, to quiet title.
    9. -: Dismissal: Not Renewed Within a Year. An action, not brought within, one year after a former action for the recovery of the same lands was dismissed, is not barred, if the action, without such dismissal, would not be barred. Section 1900, Revised Statutes 1909, is simply a saving clause to prevent the bar which otherwise would be applicable.
    10. -: Under Thirty-Year Statute. To bar an action under the thirty-year Statute of Limitations (Sec. 1884, .R. S. 1909) it is necessary to prove that plaintiff has been out of possession for thirty years, that defendant has been in lawful possession for at least one year and that plaintiff has not paid taxes for thirty years. Where the lands are wild, and no one has ever been in possession, the statute does not apply.
    11. LACHES: Action at Law. Laches is applied only to defeat a claim for some equitable relief. , To an action at law for the recovery of land, against which defendant in his answer asks for no equitable relief, laches is not a defense.
    12. ESTOPPEL: No Alteration of Positions. If it is- not shown that plaintiff did something which misled defendant, or- that defendant relied upon something done by plaintiff and thereby altered his position, estoppel does not affect plaintiff’s righjt to recover. Placing mortgages on the lands to secure individual debts, and securing a contract from the county to construct drainage ditches affecting the land, contain no element of estoppel.
    Appeal from Cape Girardeau. Court of Common Pleas. —lion. JoJin A. Snider, Judge.
    Affirmed.

      E. F. Sharp and Oliver <& Oliver for appellant.
    (1) The act under which the patent to Shapley R. Phillips in 1859 was issued made no provision for. its being recorded in the recorder’s office. The execution of that patent was not acknowledged before any officer, nor was the execution of it required to be “proven according to law.” It was not entitled to registration in the recorder’s office. A copy of it, therefore, was not admissible in evidence for any purpose. It is only copies of deeds or conveyances that have been “acknowledged or proven and recorded” according to law that are admissible in evidence under Sec. 6810 and 6314, R. S. 1909. Sec. 10381, R. S. 1900; Mosher v. Bacon, 229 Mr. 357; Jones on Law of Real Property and Conveyancing, p. 269; Secs. 2792, 2799; 2800; 2803, R. S. 1909. (2) Nor was a copy of it admissible in evidence under Secs. 2818, 2819, R. S. 1909. It was not “acknowledged or proven, certified and recorded, in the manner prescribed by law.” Hammond v. Johnson, 93 Mo. 208; Secs. 2818, 2819, R. S. 1909. (3) The act approved February 27, 185(7, made the record in the county clerk’s office or an authenticated copy of that record the legal equivalent of the original patent for evidentiary purposes. The patent itself recites the act which authorized its issuance, defines its limitations and the conditions under which title passed to the grantees. Section 3 of that act is mandatory. It provides that the patent shall be recorded “before . delivery in the office of the clerk of the courts issuing the same,” The same section makes the record on which the patent is recorded, or an authenticated copy from that record, evidence in all courts. So, in the absence of the original patent the record of it in the county clerk’s office or an authenticated copy from) it was and ' is the best evidence, and the court erred in admitting a copy of it from the recorder’s office. (4) An examination of the swamp land patent record book of New Madrid County discloses the fact that on the 30th day of November, 1859, Shapleigh R. Phillips bought 480 acres of land in section 15, township 22, range 15 — not 13. That record shows that the certificate of the purchase was number 310, the identical number given the patent recorded in the recorder’s office, December 15, 1902. The county court’s record of that patent is in a perfect state of preservation. There is no erasure, mutilation, blur, spoliation or other change on it whatsoever. The statute under which this patent was issued makes the record of it in the county clerk’s office evidence in all courts. It is, therefore, in the absence of the original patent, the best evidence, and the court erred in admitting an alleged copy of it from) the recorder’s office made December 15, 1902,. The copy in the recorder’s office and the copy in the county clerk’s office are identical as to date, number of certificate, quantity of land conveyed, and in every other respect except the record in the county clerk’s office. The record in the county clerk’s office puts the land in range 15', while the copy of the patent from the recorder’s office puts it in range lo. The record in the county clerk’s office should prevail. Laws 1857, p. 271. (5) Assuming (without admitting it as a fact) that the copy from the recorder’s office might, under certain circumstances, be used as evidence, still there was not a sufficient showing made on the part of the plaintiff of the loss or destruction of the original patent as would authorize the introduction of the copy in this case. Barton v. Murrian, 27 Mo. 240; Christy v. Cavanaugh, 45 Mo. 375, 377; Pierce v. Georger, 103 Mo. 540, 543. (6). Under the Act of 1857, it was made the duty of the county clerk to record this patent “before it was delivered.” This is shown to have been done at the time and by the officer designated by the statute, and we insist that in the absence of the original patent the record in that office or an authenticated copy of it is the best evidence, if not the only record evidence now available. An examination of the statute will show that no authority is given for the recording of a patent from the county court. Laws 1855, p. 163; Sec. 10390, R. S. 1909; Mosher v. Bacon, 229 Mo. 356. (7) The statute to quiet title was enacted in 1897. Plaintiff did not bring this suit until 1919. The ten-year statute is a complete bar to prosecuting it now. Sec. 3225, R. S. 1909; Powell v. Bowen, 279 Mo. 280. (8) This defendant is estopped and barred by reason of his conduct from asserting title to this land' in 1910. Horrell v. Shelton, 261 Mo. 243; Powell v. Bowen, 279 Mo. 280. (9) Phillips’ patent was entitled to record in the recorder’s office under the statute it was entitled to record therein when made in 1859. If it was entitled to record under the provision of Section 2809 it was entitled to record as soon as made. If it was entitled to record and was not recorded in the recorder’s office then it was and is absolutely void as to Luce and to Himmelberger-Luce Land & Lumber Company and their grantee, under the provision of Sec. 2511, R. S. 1909. Phillips v. St. Louis Union Trust Co., 214 Mo. 682; Ladd v. Anderson, 133 Mo. 625; Kelly v. Vandiver, 75 Mo. App. 438.

      R. L. Ward and Gallivan S'Finch for respondent.
    (1) Suit brought under Section 2535 is legal or equitable, depending upon the issues made by the pleadings. Toler v. Edwards, 249 Mo. 159; Lee v. Conran, 213 Mo. 412. The mere pleading of equitable defense without the prayer for affirmative relief will not convert the case from one at law to a suit in equity. Toler v.‘ Edwards, 249 Mo. 159; Shafer v. Deedy, 191 Mo. 388; "Withers v. Railroad, 226 Mo. 397; Kaustub v. Miller, 137 Mo. 172. (2) “The doctrine of-laches and estoppel is only applied to defeat a claim for some equitable relief. It is no bar to a claim made, under a legal title.” Chilton v. Nichie, 261 Mo. 243; Hayes v. Schall, 229 Mo. 124; Lumber Co. v. McCable, 229'Mo. 182; Terry v. droves, 258 Mo. 478; Dunnivant v. Cooperage Co., 188 Mio. App. 95; Harrstick v. dabriel, 200 Ma. 249. (3) The defendant cannot defeat this action on the plea of the one-year Statute of Limitations, that is, a dismissal of the suit first filed and not re-filing it within a year, because that is not a bar to recovery. It is a saving clause to prevent the ten-year Statute of Limitations from running out and that is its only purpose. There is no ten-year Statute of Limitations here to save and it cannot defeat the action. It was made for the benefit of the party against whom the statute of limitations was running and cannot be taken advantage of by the other side. Tate v. Jacobs, 47 Mo. App. 218; Carnes v. Insurance_ Co., 144 Mo. 417. (4) The county, by its court, only acts as agent for the State in disposing of swamp lands, and, when they have ■ once sold the land and received $1.25 an acre for it, that power ends, and the purchaser is not responsible for the errors of the officers or their failure to do their duty in recording the patents or report of sale. Mosher v. Bacon, 229 Mo. .348, 357; Russ v. Sims, 261 Mo. 27.
   WHITE, C.

This suit is under Section 2535, Revised Statutes 1909, to determine title to the southwest quarter of Section 15, Township 22, Range 13, in New Madrid County, Missouri. The answer, after a general denial and an averment of title in the defendant, pleads the ten-year Statute of Limitations, the thirty-year Statute of Limitations, laches and estoppel, and facts which it is claimed bar the action by limitation under Section 1909, Revised Statutes 1909. There was a judgment for plaintiff determining title in him, and defendant appealed.

It appears from the record and briefs that both parties to the controversy claim through New Madrid County as the common source of title, the land having been patented by tbe United States to tbe State of Missouri in 1856, under the Swamp Land Act of 1850, and by the State of Missouri to New Madrid County in 1857.

Plaintiff claims under Patent No. 310, executed by New Madrid County, November 30', 1859, conveying the east half and the southwest quarter of Section 15, Township 22, Range IS, to Shapleigh R. Phillips. Shapleigh R., Phillips died intestate and on partition proceeding among his heirs the land was set off and adjudged to Amos R. Phillips. Amos R. Phillips died after the institution of this suit, and James Kline, his only heir, succeeded him as plaintiff.

The defendant claims title from two sources: under a commissioner’s deed, executed by a commissioner for New Madrid County, November 10', 1881; also under a patent issued by New Madrid County to John Himmelberger, June 29, 1899. These, together with the^proceedings leading up to the issuance of the commissioner’s deed and patent, were offered in evidence; also mesne conveyances and subsequent proceedings by which, it is claimed, title from both sources was vested in the defendant.

When the plaintiff offered in evidence Patent No. 310 from New MaJrid County to Shapleigh R. Phillips, the offer was a certified copy of the patent. This was objected to by the defendant as incompetent on several grounds: because the law required a patent issued by the county to be recorded in the office of the county clerk as a condition precedent to its delivery, and the patent, a copy of which was now offered in evidence, had never been recorded in that office and therefore conveyed no title to the patentee; because the copy was not the best evidence and the original was not accounted for; and because in the absence of the original patent the next best evidence was the record of the patent which is required to be kept in the county clerk’s office. These objections were overruled and the copy was admitted in evidence; around this alleged erroneous ruling the principal argument and contest of the case revolves.

The defendant • then offered in evidence the record in the county clerk’s office of Patent No. 310, showing that the land covered by it was in Section 15, Township 22, Range 15.

The plaintiff offered the list of swamp lands in New Madrid County which was required to be filed in the office of the clerk of the county court, called, “The Swamp Land Abstract of New Madrid County,” showing that Section 15, Township 22, Range 15 was not listed as swamp land. Plaintiff further offered evidence to show that the southwest quarter of Section 15, Township 22, Range 15 was entered by Shapleigh R. Phillips in 1836i and was an improved farm, and had always been known as such, and was not, therefore, swamp land; and could not have been patented to Shapleigh R. Phillips in 1859 as such.

Murray Phillips was sworn on behalf of plaintiff and testified that he was the grandson of Shapleigh R. Phillips: said he once saw the original patent No. 310; he found it among his grandfather’s papers. He was aware then that “the title was being claimed” and he went to the office of the county clerk and compared the original patent with the record which appeared there of Patent No. 310. He found the record in the county clerk’s office showed the land in Range 15', when the original 'patent showed it was in Range 13, indicating that the 15 was written in the record by mistake; otherwise, the record was an exact copy of the original. This original patent was then delivered by him to Amos R. Phillips and the latter had it recorded in the office of the recorder of deeds. Just when this • occurred does not clearly appear from the evidence. The courthouse in New Madrid was burned in 1901-1995, and it was inferred that the patent was burned at that time.

The land in controversy was wild land, had never been in cultivation, had never been in the possession of any person, nor fenced, nor any improvements placed oil it. The only acts of ownership shown by either party was that it had _been visited and looked at, and both parties and their grantors had executed several mortgages and other conveyances affecting it. Some evidence was offered by both parties as to payment of taxes, and this will be noticed in considering the defenses of the Statute of Limitations.

I. The law which the appellant claims determines the rights of the parties in this case, is the act the General Assembly of Missouri approved February 27, 1859, Laws of Missouri 1856, pp. 271-272', entitled, “An Act in Relation to the Disposal of Swamp Lands.” The first section of the act provides that when the county courts of certain counties, including New Madrid, shall be satisfied that full payment has been made for swamp lands under the act authorizing the same, they shall cause patents to be issued to the purchasers. Section 2 of the act provides the form of the patent, the manner of its execution, and that such patent shall convey to the grantee therein named all the title the county has acquired under the several acts of the General Assembly ánd the Act of Congress of 1850. Section S' of the act is as follows:

“3. Such patent shall be recorded before delivery in the office of the clerk of the courts issuing the same, and such patent, and the record thereof, by such clerk, or by any other officer authorized to record deeds, and other instruments of writing, and copies of such records, duly authenticated, shall be received in evidence in all courts, and other ‘places, in the same mariner, and with like effect, and may be used as fully for all purposes as patents for lands issued by the United States, or deeds duly proven or acknowledged, or the record of the same are received, or can be used in this State, and shall at all times, and in all courts, and other places, be received as prima-facie evidence of title to the lands and real estate therein named.”

Section 4 is as follows;

“It shall be the duty of the Governor of this State to cause to be furnished to each of said counties, as soon as practicable, a list of all the swamp lands in the county, which list shall be recorded in the office of the recorder of deeds, and filed in the office of the clerk of the county court, and shall be a public record, and copies of said list, or of the record thereof, shall be primafacie evidence that the lands therein described are lands granted by Congress to this State as aforesaid, and by said State donated to the several counties by the said several acts, and shall be received in evidence 'as such, in all courts and other places.”

The appellant claims that under Section 3, Patent No. 310 was of no force or validity until recorded in the county clerk’s office. That it was not required to be recorded anywhere else, and the only evidence of the existence of a patent and its terms would be either the original patent, or the record of the same, or ^ copy of such record as it appears in the office of the clerk of the county court; that therefore the copy of Patent No. 310 offered by the plaintiff was incompetent. It does not appear by whom this copy was made and certified. The questions thus presented to the court were whether the loss of the original was accounted for; whether the purported copy was a correct copy; and, whether the record in the county clerk’s office was better evidence of the contents of the original patent than any other copy, however proven.

.It is conceded that the patent was not required to be recorded in the recorder’s office. It was held by this court in case of Mosher v. Bacon, 229 Mo. 338, where land belonging to a county is sold by the county, and paid for, and the purchaser receives a certificate of purchase, thereafter the county is powerless to convey "it to another person. The purchaser receiving the certificate of purchase would have an equitable title which would be good against all the world. It was further decided in that case, l. c. 349, that a purchaser has no control over the land office, nor over the state officers, whose duty it is to issue a patent and conform to the requirements of the law, and the failure of such officer to do his duty in that respect would not affect a purchaser’s right or title.

■ The objection that the loss of the original patent was not accounted for is not well taken. It was shown that the owner of the patent, Amos R. Phillips, was dead. Murray Phillips testified that both he and Mr. Kline, the plaintiff, searched for the patent and were unable to find it; that he made the search at the request of Mr. Kline, and that the last time he saw it it was in the recorder’s office; that he was adviser and attorney of Amos R. Phillips, that the courthouse burned, probably while the patent was lodged in the recorder’s office when all such papers were destroyed. Thus it appears that the persons who had a right to the custody of the patent were unable to find it.

Appellant, however, asserts that no other copy could be admissible as long as the record in the county clerk’s office was' accessible. The record of Patent No. 310' in the county clerk’s office was produced in evidence by the appellant himself. The Act of 1857 makes such a record only prima-faeie evidence of title. Such a record is not conclusively correct. It was open to plaintiff to show that it was erroneous. Murray Phillips ■ testified that he compared the original patent which he found among the papers of Shapleigh R. Phillips with that record and the record of Patent No. 310 was an exact copy of the original patent, with the exception of the word “fifteen” giving the number of the range, whereas the original patent showed the range number to be thirteen. This patent on its face showed that it was a patent to swamp land under the Swamp Land Act. In corroboration of that testimony of Phillips it was shown that Section 15 of Township 22, Range 15, contained no swamp land, and, therefore, the county could not have issued a patent for the land described in the record of Patent No. 310 in the county clerk’s office. It was a question of fact for the trial court to determine whether the patent was erroneously recorded in the county clerk’s office. There was sufficient evidence before tbe court from which it very properly could find, as the general finding for plaintiff shows it did, that the patent i delivered to Shapleigh R. Phillips correctly described the land in suit, and that the county clerk in recording it made a mistake as to the number of the range. This being purely an action at law that finding is binding upon this court. Here we have the loss of the original patent accounted for. We have proof that the record in the county clerk’s office is erroneous, and therefore not a correct copy of the patent., Then we must be remitted to the next best secondary evidence — the certified copy, supported by the testimony of Mr. Murray Phillips who saw the original patent and knew exactly what it contained by comparison with the record and swears that the copy produced in evidence is a correct copy.

II. Where two patents are issued for the same land, both regular upon their face, the prior one must prevail over the subsequent one. [Simpson v. Kilpatrick, 148 Mo. 507.] The statutes in regard to recording instruments affecting the title to land do not apply to conveyances by the State. Such conveyances may be recorded, but their effect in vesting title and affording notice is not dependent upon their being recorded. [Wilcox v. Phillips, 260 Mo. 664, l. c. 681.] The question, where successive patents are issued by a county for the same land, is not one of notice. As stated by Woodson, J., in case of Mosher v. Bacon, 229 Mo. l. c. 362: “I am, therefore, clearly of the opinion that it is not a question of notice, either actual or constructive, that, is involved in this case, but one of power and authority on the part of the register of swamp lands to sell such lands a second time; and this he cannot do.”

A point, is made that the “Swamp Land Abstract of New Madrid County” does not show that the land in dispute was patented to anybody. Section 4, however, of the Act of 1857, does not require the “Swamp' Land Abstract” filed in the office of the clerk to show to whom the land was patented by the connty, only to show the list which the county acquired.

Under Section 3 of the act it was the duty of the county clerk before delivery to have the patent recorded. That was not a prerequisite to its validity. The plaintiff’s ancestor received the patent correctly describing the land. He had no duty to perform and there was nothing he could do in seeing that it was correctly recorded, and he was not responsible for the failure of the county officer, to perform his duty. It was -not necessary for him to make any record of it for the purpose of affording constructive notice. The power of the county to deal with the land was exhausted by the act of issuing that patent.

It necessarily follows that the subsequent commissioner’s deed and patent issued by the county under which the defendant claims were of no validity and pass no title.

III. Obviously the appellant cannot avail himself of the ten-year Statute of Limitations, because it stands admitted that there was no actual possession of the land in controversy by either party at any time and no possessory acts which would start the operation of the statute. Appellant, however, claims that, under Section 2535, Revised Statutes 1909, enacted in 1897, the cause of action accrued to plaintiff or his successors in title more than ten years prior to the bringing of this suit, and therefore he is barred. He cites the case of Powell v. Bowen, 279 Mo. 280, decided at the April term, 1919, by Court in Banc. In that case, however, there was actual adverse possession for ten years which, of course, vested title in the possessor. The land in this case was wild land, and neither party was in possession. It has been held by both divisions of this court that the failure to sue within ten years after the right to sue has accrued does not bar an action under Section 2535. [Armor v. Prey, 253 Mo. 447, l. c. 476; Powell v. Powell, 267 Mo. 117, l. c. 129.]

IY. Defendant further claims that plaintiff’s action was barred by the operation of what he terms the one-year Statute of Limitations. He pleaded that the plaintiff previously had brought an action collcerninS' this same land; that said action, before determination, was voluntarily dismissed by the plaintiff and the present action was not commenced within one year thereafter, and therefore the plaintiff could not be heard to maintain this -suit. Appellant doubtless refers to Section 1900, Revised Statutes 1909. That section, however, has been construed by this court to be simply a saving clause to prevent the bar which otherwise would be applicable: “It doesn’t purport to limit the time of bringing suits, but to save from the statute, for one year after nonsuit, actions which, but for its provisions, would be barred.” [Meriwether v. Overly, 228 Mo. 218, l. c. 231; Karnes v. Ins. Co., 144 Mo. 413.]

V. Appellant further claims that action is barred by the thirty-year Statute of Limitations, Section 1884, Revised Statutes. 1909. In order to maintain this defense it would be necessary to prove that the Plaintiff had been out of possession for thirty years and that the defendant had been “in lawful possession” for at least one year thereafter and that the plaintiff had not paid taxes for thirty years. There was no lawful possession by the defendant within the intent of that term by the statute. [Brannock v. McHenry, 252 Mo. l. c. 9; Weir v. Lumber Co., 186 Mo. 388; Bevier v. Graves, 213 S. W. 74.]

VI. Appellant further asserts that plaintiff has no right of recovery because of laches and estoppel. The defendant does not ask any equitable relief in his answer, so that the action remains purely an action at law, and in such case laches is not a defense. The- doctrine of laches is applied only to. defeat a claim for some equitable relief. [Chilton v. Nickey, 261 Mo. 232, l. c. 243; Kellogg v. Moore, 271 Mo. 189, l. c. 193; Newbrough v. Moore, 202 S. W. 547, l. c. 551; Bell v. George, 204 S. W. 516, l. c. 519.]

As for the claim of estoppel, it is not shown that the plaintiff did anything which misled the defendants, or that the defendants relied upon anything done by plaintiff and thereby altered his position to his hurt, spown the defendant executed and filed several mortgages covering the land, including other large tracts. The plaintiff and his predecessors in title executed also four mortgages covering this land. The land is included in Drainage District No. 18, and perhaps in two other drainage districts. It was shown that Charles Luce obtained a contract from New Madrid County to'dig drainage ditches, presumably in Drainage District No. 18, which would affect this land; that Luce received a commissioner’s deed from the county in 1881 and is one of the sources through which the appellant claims; further that Charles H. Luce was in some way connected with the Himmelberger-Luce Land & Lumber Company, through which defendant also claims, and a patent was made to John Himmelberger in 1899. This apparently to show that the parties through whom the defendant claims had been instrumental in procuring the organization of the drainage district and carrying out the work thereon. It was not shown that the defendant or his grantors at any time expended any money in the improvement of the land in question. If they spent any money constructing drains it was under contract with the county. The Himmelberger-Luce Land & Lumber Company, it was claimed by appellant, mortgaged the land for a large amount of money with which to carry out the contract with the county in the digging of the ditches. But that was a contract which anyone could have made and the work was not done by that company because of claim of ownership of this land, but because the county paid it, as it would any other contractor. .

There is no error shown in the record. The judgment is affirmed.

BaÜey and Mozl&y, (70., concur.

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

All of the judges, concur.