text:
    MARGARETTE W. TORREYSON v. UNITED RAILWAYS COMPANY, Appellant.
    Division Two,
    December 21, 1912.
    1. TESTIMONY: Conclusion of Expert: Plaintiff’s Disease. It is not error, in a suit for damages for personal injuries, to permit a physician to testify that in his opinion plaintiff is suffering from traumatic neuritis, or that she is suffering from a nervous condition due to a bodily injury which is usually classed as traumatic neurosis.

      2. -: Caring for Parents: General Objection. Testimony that plaintiff took care of her father, mother and aunt during their last sickness has some bearing on the question of the physical ability of plaintiff prior to her injury, and it is not error to overrule a general objection to questions eliciting such testimony, namely, that it is immaterial.
    •3. ARGUMENT OF COUNSEL: No Exception. By failing to preserve an exception to the action of the court in overruling an objection to remarks of counsel, and by failing to save an exception to the refusal of the court to reprimand counsel, appellant will be regarded as having waived his objection.
    4. -: Specific Objection. An objection to statements made by counsel in his argument to the jury, is insufficient if it does not point out the specific statement complained of, and if it does not call the attention of the court to the specific grounds upon which it is.based.
    5. NEGLIGENCE: Instruction: Assumption of Injury: Bodily Pain and Anguish. An instruction which tells the jury that “if you find for plaintiff, in estimating and determining the amount of her damages you will take into consideration, in connection with all the facts and circumstances in evidence, such, reasonable sums, if any, as you believe she necessarily paid out, or became obligated for, because of medical treatment and hospital charges on account of her injuries; the bodily pain and suffering and mental anguish endured by her, resulting from the injuries received,” etc., does not assume that plaintiff was injured and does not assume that she had suffered bodily pain and suffering and mental anguish, when read in connection with other instructions which make a finding for plaintiff conditional upon the jury finding that plaintiff had been bruised and injured, and place the burden of proving said injuries and their extent upon plaintiffs. A finding for plaintiff necessarily implied that she was injured and that she had suffered bodily pain and' anguish.

      Appeal from St. Louis City Circuit Court. — Mon. Matt G. Reynolds, Judge.
    AUKXRMBD.

      Boyle & Priest, Morton Jourdan and T. E. Francis for appellant.
    (1) Plaintiff’s instruction No. 2 is erroneous in that it assumes plaintiff was injured, and that she suffered mental and physical pain as a result thereof. These matters were disputed issues of fact and should have been submitted hypothetically to the jury. Plum-mer y. Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 22; Fullerton v. Fordyce, 121 Mo. 13; Freeman v. Railroad, 95 Mo. App. 104. (2) The court erred in admitting, over defendant’s objections, testimony for plaintiff tending to prove she gave attention to her father and mother during their last illness and was their main dependence. This evidence was immaterial to the issues, and was prejudicial to defendant, because it was calculated to arouse the sympathy of the jury for plaintiff. Stephens v. Railroad, 96 Mo. 214; Dayharsh v. Railroad, 103 Mo. 578; Ma-honey v. Railroad, 168 Mo. 200; Williams v. Railroad, 123 Mo. 584. (3) The court erred in permitting Dr. Taylor and Dr. Butler to testify plaintiff was suffering from a nervous condition due to a bodily injury, and thereby invade the province of the jury. Glasgow v. Railroad, 191 Mo. 347; Taylor v. Railroad, 185 Mo. 239; Smart v. Kansas City, 208 Mo. 162; Thomas v. Railroad, 125 Mo. App. 131; Roscoe v. Railroad, 202 Mo. 576. (4) Plaintiff’s counsel were guilty of gross misconduct in their argument to the jury, and the court erred in refusing to rebuke them therefor. Thompson on Trials, Secs. 958, 969; Massingale v. Rice, 94 Mo. App. 430; Haynes v. Trenton, 108 Mo. 133. (5) The verdict is excessive. Wellman v. Railroad, 219 Mo. 126.

      L. P. Crigler and Barclay, Fauntleroy, Cullen & Orthwein for respondent.
    (1) Error that verdict was procured against the weight of the evidence by improper argument is not assigned in motion for new trial. The thirteenth assignment of error in the motion for new trial relates to the alleged misconduct of counsel for the plaintiff in arguing the case, but said assignment of error does not count on the fact now argued that the misconduct resulted in bringing about a verdict for the plaintiff. An examination of the motion for new trial will reveal the fact that there is no specification sufficient to support the contention that the jury returned a verdict against the weight of the evidence on account of the improper arguments of counsel for plaintiff. Lynch v. Railroad, 208 Mo. 1. It being now conceded by appellant that the verdict is not excessive, it follows necessarily that any error in this instruction (which relates solely to the measure of damages) is harmless. But under the facts in proof in this case said instruction is not erroneous. Torreyson v. United Railways Co., 144 Mo. App. 626. There is no dispute about the fact of plaintiff’s injury, and where the injury is of such nature that pain and mental anguish necessarily follow its infliction, an instruction may assume the existence of injury, and that it produced pain and anguish; and hence even if plaintiff’s instruction 2 assumed that plaintiff was injured, still it was not erroneous, and defendant cannot complain because its own instructions contain similar assumptions. Dunn v. Electric Railway Co., 81 Mo. App. 42; Prewitt v. Railroad, 134 Mo. 615; McCarthy v. Transit Co., 108 Mo. App. 317; Cobb v. Railroad, 149 Mo. 135. The court will notice that plaintiff’s instruction 1 required the jury to find (before they were authorized to allow any ■damage whatever) that plaintiff was thrown from the ■car, bruised and injured. Instructions must be taken together, and plaintiff’s instruction 2 did not become operative or controlling until the jury found that plaintiff was entitled to recover under her instruction 1; hence it was wholly unnecessary to require the jury to find the fact of injuries in plaintiff’s instruction 2. As a matter of fact there was no denial that plaintiff was injured, and hence no error was committed if the •court did assume she was injured. Taylor v. Iron <Co., 133 Mo. 349; G-ayle v. Car & Foundry Co., 177 Mo. 453; Sotebier v. Transit Co., 203 Mo. 715; Davidson v. Transit Co., 211 Mo. 357; Phelps v. Zinc Co., 218 Mo. 580.
   KENNISH, J.

This cause was transferred to this court by the St. Louis Court of' Appeals, for the reason, as stated, that the judges of said Court of Appeals deemed the decision rendered therein contrary to two former decisions of the Kansas City Court of Appeals, which decisions are cited in the opinion hereinafter set out.

The decision upon which the cause was certified to this court we set.forth in extenso, as follows:

“The appeal in this cause was prosecuted to this •court but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. [See Laws 1909, p. 396; also Sec. 3939, R. S. 1909.] In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Cos, J., of that court, as will appear by reference to Torreyson v. United Railways Co., 144 Mo. App. 626. Subsequently, the Supreme Court declared the said legislative act, which purported to authorize-the transfer of cases from this court to the Springfield court, to be unconstitutional. The cause was thereafter transferred by the Springfield Court of Appeals to this court on the theory that the jurisdiction of the appeal continued to reside here and the proceedings had in the Springfield court with reference thereto were coram non judice.
“The case has been argued and submitted here, and upon due consideration, we find ourselves unable to concur in the views expressed by the Springfield court in the opinion above referred to.
“The suit is one to recover damages for personal injuries received by the plaintiff and alleged to have been caused by the negligent sudden starting of defendant’s street car while plaintiff was in the act of alighting, thereby precipitating her to the ground. The amount prayed as damages was $35,000. The plaintiff had verdict and judgment for $5000, and the defendant has appealed.
“The record in this case is voluminous and bears most largely upon plaintiff’s physical condition before and after her injury. It appears therefrom that in 1906 the plaintiff, Margarette W. Torreyson, was a school teacher, unmarried, forty-three years old, living at Martinsburg, Missouri, where she had resided for thirty-five years. During- the last nineteen years she had taught the primary class of the school at Mar-tinsburg, and when injured had been just re-employed for another year. The testimony is abundant to the effect that she was healthy, capable, energetic, active and industrious; not only a good school teacher, but a leader in school and public entertainments. She was quick and graceful in her movements. As one of the witnesses put «it, ‘she always went around like a cricket. ’ In all her life down to the time of her injury she appears to have been in perfect general health, missing only about a week from her school duties in all her school teaching career, some twenty-seven years. She had lived with her parents and toward the latter end of their lives, had the responsibility of the house, her mother being very old. Both of her parents died, the father about five years before she was injured. After his death she still kept house in the old home, doing all the housework with the assistance of a negro child. On July 29, 1906, while visiting in the city of St. Louis, she became a passenger on one of defendants Euclid avenue cars and when the car was stopped at her destination, the southwest corner of Euclid avenue and West Pine boulevard, and when according to her testimony, she was down oh the step in the act of alighting therefrom, the operatives in ■charge caused it to be suddenly started with a jerk, precipitating her to the ground, striking the back of her head on the paving, and cutting a gash in it which "bled profusely. The blow dazed her and caused a stunned sensation throughout her body. She was carried to a near-by hotel, and a physician, Dr. Butler, was called. The next day she was removed to a hospital where she remained under the constant care of Dr. Butler and the nurses for nine weeks. Dr. Butler ■called in for consultation Dr. Pry, an eminent specialist on nervous diseases, who visited and examined her frequently. She testified that while at the hospital she was perfectly helpless, having to be turned in the bed; to have her face washed, etc., suffered intense and almost continuous pain in the back, hip, small of the spine and base of the skull, had no appetite and could not sleep. At the end of the nine weeks her brother took her from the hospital to his home at Laddonia, Missouri. Hpr condition was somewhat improved, but she was, and is still, very helpless. Prom the time she arrived at her brother’s house until the day of the trial, she had not left the house but once, and that was for two hours in a roller chair and that experience proved very exhausting and painful to her. Though weighing only 112 pounds ■¡¡vhen injured, she lost twenty pounds thereafter. A voluminous record abounds with testimony of those who saw and observed her, to the effect that her former health, ability and ■energy have been destroyed, her former activities and industry ceased, and she has become a trembling, jerking, twitching nervous wreck, without power to earn a livelihood or to perform ordinary household duties, and usually confined to an invalid, chair, able to-arise therefrom and walk but for short intervals and then only haltingly, by the aid of a crutch and at the-price of intense pain and suffering.
“Four physicians, including Doctors Fry and Butler, testified on behalf of the plaintiff. Their testimony tended to prove that she is suffering from a pronounced neurasthenic condition, that is, an extreme exhaustion or breaking down of her nervous system, and is unable to perform ordinary labor or to pursue her vocation; that this condition is permanent and was caused by her fall. On the other hand a physician who examined her at the instance of the defendant testified that he had found' absolutely no indi- . cation that she had sustained any injury to the nervous system as a result of her injury. Another, a sper-cialist in mental and nervous diseases, appointed by the court, testified that though she was quite nervous, he found nothing to indicate that the nervousness was in any wise due to any diseased condition of her nervous system. A surgeon, also appointed by the court, testified that there was nothing abnormal in her condition from a surgical standpoint, and that he thought her tremors were voluntary, but he testified on cross-examination that he found physical indications of an abnormal condition, an irritation of the nerves. He also testified that the examination which he and the other physicians appointed by the court had made, was too abbreviated and unsatisfactory to justify a decided opinion.
“The plaintiff read in evidence-the deposition'of Capt. N. Dix, bearing on the length of time plaintiff taught school, the continuity of her service, the state of her health and strength,' and the extent and character of her activities, during all the years np to the time of her injury. During such reading the following occurred: By counsel for plaintiff, readingr ‘What, if anything, do you know about her giving attention to her father and aunt during their last, sickness? Mr. Jourdan: Objected to-as immaterial. Objection overruled. To which ruling of the court, defendant then and there duly excepted. A. That, was her main — she kept house for him. She was the-main dependence.’
“Later, while plaintiff was reading in evidence-the deposition of one Rogers, the following occurred r. By counsel for plaintiff, reading: ‘Q. What do you know of her taking care of her father and mother and aunt? Mr. Jourdan: I renew my objection to that for the reasons heretofore given. Objection overruled. To which ruling of the court defendant then, and there duly excepted. A. Well, I think she was a faithful daughter. She stayed with them and kept house for them all. I don’t know that she supported them. Q. What labor? A. Oh, well, she kept house. Dr. Taylor, one of the expert witnesses introduced by plaintiff, was permitted to testify as follows: ‘Q. Now, Doctor, I wish you would tell the jury in your own way what in your judgment is the trouble with Miss Torreyson and what is the probable cause of it? Mr. Jourdan: I object to that as calling for conclusion. That is the province of the jury. The Court: I think the doctor is entitled to give an opinion as to what the plaintiff suffered from and what is the probable cause of it and the probable duration. Objection is overruled. To which ruling of the court defendant then and there duly excepted. A. Well, in forming our opinion, of course, we have got to take the history of the case into consideration. From the history of the case, I would call it a traumatic neuritis.’ Dr. Butler, another of her witnesses, testified as follows: ‘Q. Now, you may state, Doctor, in general terms,, what disease or affliction in your judgment Miss Tor-reyson is now suffering from? A. Why, she is suffer-lug from a nervous condition due to an injury — bodily injury, which is usually classed as traumatic neurosis. Mr. Jonrdan: I move that the answer be stricken out. That is the province of the jury. The doctor has no right to state a conclusion. Motion overruled. To which ruling of the court defendant then and there duly excepted.’
“In the opening argument to the jury plaintiff’s counsel made the following statement: ‘Mr. Crigler: We brought suit in this ease, gentlemen of the jury, and ask in our petition, and ask it now at your hands, a verdict of $35,000. We brought this suit and ask this damage just the same as if the United Railways Company had executed its note to us, or if you had executed your note to me, without shaving the price of it in the least. And in this day of great corporations, and great millionaires, and great things, twenty-five or thirty thousand dollars— Mr. Jonrdan: I except to that remark. The Court: There is no evidence of that here. Keep, within the record, Mr. Crig-ler. Mr. Crigler: Well, I can’t see why that is not a proper remark. The Court: Well, this defendant Is a corporation, and you are appealing to a condition that is not in evidence. The only way to present the case is to present it within the record, and draw such ■deductions as you see proper from it. Mr. Crigler: I am satisfied if the court had heard my statement it would not consider it improper. The Court: Well, you refer to great corporations and great millionaires. I don’t know what millionaires have to do with the case. It is highly improper and the purpose of it is perfectly apparent. You may proceed. Mr. Crigler: Well, in this great financial day the admeasurement of a certain sum of money is not like it was when you and I were boys— Mr. Jourdan: I except to that .statement. There is no evidence of that in this case. The Court: Well, go ahead. Mr. Jourdan: I submit that the court should rebuke counsel for making that remark.’ Plaintiff’s counsel made the following statement to the jury in his closing argument: ‘Mr. Cullen: I have no criticism to make of that conductor. He has the instinct of human nature in him. You never saw a man whose careless conduct laid a human being low, either by cutting off a leg, or an arm, and leaving them prostrate in the street, that could look npon that bleeding body and say: “Yes, it was my wrong; I did it.” When a man realizes that it is his misconduct, that he is at fault and blameable for the woes and sorrows of another, he says “Avaunt! Avaunt! quit my sight; I am not responsible for it; •she did it herself.” He would be more than human if he had the power to come right up and say, “Yes, it is my act that injured this girl.” Why, sir, he ■couldn’t look into the pale and quivering face of that .girl and be human and say, “Yes, I did it.” No, he had nothing to say. “I didn’t do it, I won’t excuse myself.” You know, gentlemen, that there even might be a criminal responsibility for negligence that will make a man shield himself. Mr. Jonrdan: I except do that. The Court: Note the exception. Mr. Jour-■d.an: I except to the failure of the court to rebuke counsel. Mr. Cullen: She (plaintiff) lived up there in that community so that she commanded the respect .and admiration of everybody, and she sought employment not only there, but elsewhere. She would go out into the world and work eight or nine months and make something for herself, and then when the time for vacation came on she would get some enjoyment out of this world. Where is she now! She is absolutely fatherless, motherless, helpless, penniless, a ■cripple to go down to the grave. Mr. Jonrdan: I except to that statement. The- Court: The reporter will note the exception. Mr. Jonrdan: I except further to the court’s failure to rebuke counsel. The «Court: Very well.’
“I. The court committed no error in permitting-one physician to testify that in his opinion plaintiff suffered from what he would call ‘a traumatic neuritis ’ and in permitting another physician to state that, in his opinion ‘she is suffering from a nervous condition due to an injury — bodily injury,' which is usually classed as traumatic neurosis.’ These were nothing more than statements as to the nature and character of plaintiff’s ailment, without suggesting the particular cause, and therefore were competent. See Jerome v. United Railways Co., 155 Mo. App. 202, for a full and pertinent discussion as to the competency of such testimony.
. “II. Likewise the court committed no error in. overruling the objections on the ground of immateriality to the questions propounded to witnesses Dix and Rogers as to plaintiff taking care of her father, mother and aunt, and as to what she did.for her father and aunt during their last sicknesses. These inquiries-had some bearing on the question of what was the .physical ability of the plaintiff before her injury and we think were good against a mere general objection.
“III. As to the remarks of counsel, we are of the opinion that whatever prejudice might have resulted from the language first complained of, it was sufficiently met and cured by the admonition of the trial court. As to the next remark we find that defendant’s counsel stated ‘I except to that statement. There is no evidence of that in this case,’ meaning that he objected to the statement. But it does not appear that defendant’s counsel saved any exception to> the ruling of the court thereon. He merely remarked,. ‘I submit that the court should rebuke counsel for making that remark.’ In the next two instances we find counsel for the defendant at the end of what appears to be a series of statements saying, ‘I except to that,5 and £I except to that statement,’ without attempting to point ont what particular statement he objected to and without in any wise indicating on what ground he based his objection. By failing to preserve an exception to the action of the trial court in overruling an objection to remarks of counsel or in failing to administer a reprimand, a party will be regarded as having waived his objection in that behalf. [State v. Thurman, 121 Mo. App. 374; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720.] And an objection is .insufficient which does not point out the specific statement complained of and does not call the attention of the trial court to the specific grounds upon which it is based. [State v. Phillips, 233 Mo. 299; State v. Ruck, 194 Mo. 416.] We are, therefore, not inclined to consider the assignment of error which is aimed at the alleged improper remarks.
“TV. At the instance of the plaintiff the court gave to the jury an instruction on the measure of damages, as follows:
“ ‘If you find for the plaintiff, in estimating and determining the amount of her damages, you should take into consideration in connection with all the facts and circumstances in evidence such reasonable sums, if any, as you believe she necessarily paid out, or became obligated for, because of medical treatment and hospital charges on account of her injuries; the bodily pain and suffering and mental anguish endured by her, resulting from the injuries received; the character and extent of her injuries and whether they are permanent in their nature; the extent, if any, te which she has been prevented and disabled by reason of such injuries from working and earning a livelihood; and if from the evidence you believe and find that her injuries are reasonably certain to cause her pain and anguish in the future and reasonably certain to impair or lessen her ability to work or labor in the future, yon should take said facts into consideration also; and if you find for plaintiff you should find for her in such sum as in your judgment under all the evidence in the case will reasonably compensate hér for the injuries received, but not to exceed the sum named in the petition: to-wit, thirty-five thousand dollars.’
“Defendant contends that this instruction was erroneous because it assumes that the plaintiff was injured and also assumes that she had endured bodily pain and suffering and mental anguish. Instructions substantially like this one were discussed and held good against á like criticism in Klutts v. St. Louis, Iron Mt. & So. Ry. Co., 75 Mo. 642; McCarthy v. St. Louis Transit Co., 108 Mo. App. 317; Gayle v. Missouri Car & Fdy. Co., 177 Mo. 427, 453. These cases proceed on the theory that by giving such an instruction the court does not assume or declare that the plaintiff had been injured or suffered bodily pain, etc. 'Substantially like instructions were also approved without comment in Prewitt v. M., K. & T. Ry. Co., 134 Mo. 615; Cobb v. Railroad, 149 Mo. 135. Under these authorities we conclude that the giving of this instruction was not reversible error. That conclusion may also be upheld on another ground which finds support in the authorities. It is certain at least that the fact of the plaintiff being bruised, and injured and the extent of her injuries, were not assumed, for this instruction is addressed to the jury only in the event that they find for the plaintiff, and other instructions given make such a finding conditional upon the jury finding that plaintiff had been bruised and injured, and state that the burden of proving her injuries and the extent of such injuries was upon the plaintiff. The jury must have understood that the fact of plaintiff having been injured and the extent of her injuries was for them to find from the evidence. At the most, then, it might be said that by the instruction the court assumed that if the plaintiff was bruised and injured as the evidence tended to show she was, then she must have endured some bodily pain and suffering and mental anguish. It was not error to indulge such an assumption, for pain and anguish must necessarily have followed such bruising and injury. [Dunn v. Electric Ry. Co., 81 Mo. App. 42.] But in York v. Everton, 121 Mo. App. 640, 645, and in Glover v. Railroad, 129 Mo. App. 563, 575; the Kansas City Court of Appeals has decided that the giving of such an instruction is reversible error, and we deem such decision contrary to our decision herein.
“The judgment is affirmed, but on account of this decision being,- as aforesaid, contrary to the above mentioned previous decisions of the Kansas City Court of Appeals, this cause will be certified and transferred to the Supreme Court in accordance with the requirements of the Constitution of our State. It is so ordered.”

The foregoing opinion is adopted as the opinion of this court, except in so far as it holds that the two decisions of the Kansas City Court of Appeals cited therein are in conflict with the conclusion reached. The instructions condemned in the two cases referred to we think distinguishable from the instruction considered in this case, and particularly so as to the instruction held erroneous in the case of Glover v. Railroad, 129 Mo. App. 563. Ye are of the opinion that the St. Louis Court of Appeals was fully warranted in affirming the judgment, so far as the said instruction is concerned, by precedents of this court, and therefore it would be profitless to enter upon a discussion of the two decisions deemed to be in conflict with that result.

An analysis of the instruction assailed herein will disclose that as a basis for awarding damages to the plaintiff, all of the facts except three were stated hypothetically. The three not so stated were: First,. “the bodily pain and suffering and mental anguish endured by her, resulting front the injuries received;” second, “the character and extent of her injuries and whether they are permanent in their nature;” and third, the assumption of injury in the clause beginning, “and if from the evidence you find and believe that her injuries are reasonably certain to cause her pain and anguish,” etc. The second of the foregoing relates solely as to whether the injuries received were permanent in character, and to entitle plaintiff to recover damages upon that ground,'a finding that the injuries were permanent is expressly required to be based upon the evidence, by a subsequent clause of the instruction. Therefore we have but two facts assumed, namely: (1) that plaintiff was injured, and (2) the bodily pain and mental anguish endured by her as a result of her injuries; and the jury was not authorized to award damages for either unless, as prefaced in the instruction, they should find in favor of plaintiff. A finding for plaintiff necessarily implied a finding that plaintiff was injured and also a finding that she had suffered bodily pain and mental anguish. This rule is firmly established by the decisions of this court. In the case of Chilton v. St. Joseph, 143 Mo. 192, this court considered the question of error assigned in the giving of the following instruction: '

“In estimating plaintiff’s damages, if the jury find for her, they will take into consideration not only the physical injury inflicted, the bodily pain and mental anguish endured and suffered, but may also allow such damages as appears from the evidence will reasonably result to her from her said injuries in the future,” etc.

Discussing that instruction, the court (l. c. 203) said: “As to instruction numbered 4, it is only necessary to say that the damages are predicated only upon such injuries as were the necessary concomitants and consequences of lier misfortune, superinduced by defendant’s negligence, and contains no unwarranted assumption, and in view of tbe extent of those injuries the verdict is not excessive.”

In the case of Fullerton v. Fordyce, 144 Mo. l. c. 532, discussing the same question, the court said: “But if plaintiff was injured, as charged, which fact, the jury was required to find, there would be no reversible error in the? instruction though physical and mental pain, as a result, was assumed.. Pain is the natural result of such injuries as the evidence tends to prove plaintiff suffered, and may fairly be assumed to follow as a necessary consequence.”

A similar instruction was reviewed and the same rule announced in the case of Stewart v. Allison, 150 Mo. l. c. 343.

In view of the foregoing precedents, the Court of Appeals was following the established doctrine of this court in overruling the assignment of error predicated upon the giving of the instruction assailed by appellant.

We fully concur in the foregoing opinion, with thé exception noted, and the judgment is accordingly affirmed.

Brown, P. J., and Ferriss, J., concur.


source: Caselaw Access Project

author: BLAIR, C. PER CHRIAM.

license: Public Domain

text:
    BRIDGET TECKENBROCK and THEODORE H. TECKENBROCK, her husband, Appellants, v. ANNA McLAUGHLIN et al.
    Division Two,
    December 21, 1912.
    1.. WILL CONTEST: Those Entitled to Sue: Husband: Curtesy initiate. A married woman sued alone in 1904 to set aside her mother’s will upon the ground of undue influence. The will was upheld. Afterwards suit was brought by the wife and her husband, jointly, to set aside the same will upon the same ground. Issue was born of the marriage before the death of the testatrix. Held, that the suit is not maintainable, the husband’s interest by the curtesy initiate in the property of his: wife acquired by descent since 1889 not being sufficient to support a will contest under Sec. 555, R. S. 1909, and the issue® being res judicata after judgment in the first suit.
    2. -: Res Judicata: Pleading. The difference between an allegation of the exertiop of undue influence by several and an allegation that several conspired to unduly influence the testatrix is not sufficient to remove the issues in a case from thn operation of the rule of res Judicata when they are within the-scope of the earlier litigation.
    Appeal from St. Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge.
    Aeetrmed.

      Hugh D. McCorlcle for appellants.
    (1) 'The words “any person interested in the probate of any will” are to he taken in their plain, ordinary and usual sense, and hence, any person who has a direct, legally ascertained and existing pecuniary interest either under the devolution under the will, or descent by operation of law, in the estate of a decedent such as would be impaired or defeated by the establishment or rejection of the will, is a person interested in the probate of the will. Watson v. Alderson, 146 Mo. 333; Brooks v. Paine, 90 S. W. (Ky.) 600; Mullins v. Fidelity & Dep. Co., 100 S. W. (Ky.) 256; Bloor v. Platt, 78 Oh. St. 46; State v. Lancaster, 105 S. W. 858; Myers v. Barrows, 3 O. C. D. 52; Bainey v. Ridgeway, 41 So. 632. (2) Curtesy initiate is a present existing vested estate of the husband in the lands of his wife carved out of and subtracted from her title by operation of law, and entirely independent of her title. It attaches (other conditions being present) the moment his wife inherits real estate, not through her, but it is cast upon him by operation of law. Myers v. Hansbrough, 202 Mo. 498; Robards v. Murphy, 64 Mo. App. 90. (3) Hence the husband of an heir at law is “interested” to prevent the probation of a false ■will that would deprive Mm of that estate if established. Watson v. Alderson, 146 Mo. 333; Sunderland v. Hood, 13 Mo. App. 232; Wells v. Wells, 144 Mo. 198; Myers v. Barrows, 3 O. C. D. 52. (4) (a) The rule of res adjudicata cannot be applied in this case as against Bridget Teckenbrock. Either the will is the will of Mary McLaughlin or it is not. If it is not, it cannot be held to be her will as to Bridget, and not her will as to Theodore. This proceeding is in the nature of a proceeding in rem, although inter partes, and the whole res must abide the decision, even though fixed upon the motion of but one interested party, provided all parties interested in the .res are brought before the court. Wells v. Wells, 144 Mo. 198; Rush v. Rush, 19 Mo. 441; Neeman v. St. Joseph, 126 Mo. 89. ■(b) And this is the reason that the equity rule, that all persons must be made parties who are materially interested, either legally or beneficially in the subject-matter in suit, in order that a complete decree can be made, and to prevent future litigation and to make it ■certain that no injustice is done to any person, whether a party or not, interested in the subject-matter, is applied with such strictness, and why it is held that a decree or judgment without these parties before the court, could have no force or effect, and why it is said they must be brought in before the court has a right to try the issue. Eddie v. Parke, 31 Mo. 518; Wells v. Wells, 144 Mo. 198. (5) When matters pleaded in a suit were not pleaded nor brought into contest in a former suit, although within the general scope of the litigation, and might have been determined had they been set up and tried, and even if they be set up but were not actually taken up and given consideration, there is no res adjudicata as to such matters. Sprad-ling v. Conway, 51 Mo. 51; Spurlock v. Railroad, 76 Mo. 67; Lumber Co. v. Mickey, 89 Mo. App. 270. In the former suit of Teckenbrock v. McLaughlin, there were no allegations of a conspiracy by others to concoct the will of Mary McLaughlin for her, nor was any evidence allowed tending to support that issue. Tecken-brock v. McLaughlin, 209 Mo. 533. Hence Bridget. Teckenbrock is not estopped to contest the will on that, issue in this suit where it is expressly pleaded. (6) A will contest under our statute is a suit inter partes,, although in the nature of an action in rem. The judgment only operates against those who are made parties to the suit. In a suit to contest or establish a will,, if a party interested in its probate be not made a. party to, or actually participated in the suit, he is not bound by the judgment therein, and may still have bis, action. Eddie v. P-arks’ Exr., 31 Mo. 513; Kischman v. Scott, 166 Mo. 214; Bussell v. Grant, 122 Mo. 180;• Hassell v. Wilcox, 120 U. S. 504; Wells v. Wells, 144 Mo. 198; Watson v. Alderson, 146 Mo. 333; Acbor v„ Sullengex, 137 Mo. App. 372; Vail v. Sprague, 179 Mo. 393. (7) Under our practice where a person cannot “break into” another man’s litigation, and where no' ancillary actions of review exist, to conclude a “person interested in the probate of a will” without his ever having been made a party to, or given a chance to participate in, or co-operate in the control of, a will contest, by the result of such will contest, is obnoxious to the Constitution of the United States and'of Missouri. Art. 5, of Amendments to U. S. Constitution; Constitution of Missouri; Bill of Bights, Sec. 30; Dickey y. Vann, 81 Ala. 430:.

      Schnurmacher & Rassieur for respondents.
    (1) Bridget Teckenbrock cannot recover because she is bound by the judgment in the former suit. The issues were the same — devisavit vel non. Even the ground for contesting the will was the same — undue influence. As to her, therefore, the former judgment is res adjudicata. Spratt v. Early, 199 Mo. 501. (2) The husband, Theodore H. Teckenbrock, cannot recover for the following reasons: (a) Because he is in no way interested in the probate of the will. He can have no interest, direct or indirect, present or remote, in the property of the testatrix. He has no rights as tenant by the curtesy initiate, because his wife never was, and never can be, seized of the real estate. Evans v. Morris, 234 Mo. 177; Dozier v. Toalson, 180 Mo. 550; Cox v. Boyce, 152 Mo. 581; Martin v. Trail, 142 Mo. 91; Yan Arb v. Thomas, 163 Mo. 41; Ellis, v. Ky-ger, 90 Mo. 600; Carpenter v. Garrett, 75 Ya. 129; Jackson.v. Johnson, 5 Cowen, 24; Adair v. Lott, 3 Hill (N. Y.), 182; Carr v. Anderson, 6 App. Div. (N. Y.) 6. (b) Because he derives his curtesy through the wife, and, being in privity with her, is barred- by the judgment which bars her. (c) Even if he at one time had a right of curtesy initiate, .still he could not, because of that interest, institute proceedings to contest his mother-in-law’s will. Ligón v. Hawkes, 110 Term. 514; Meyer v. Fogg, 7 Fla. 292; Storrs v. Hospital, 180 Ill. 368; In re Brown, 47 Hun, 360; Bank v. Nelson, 3 Head (Tenn.) 634; Bowers v. McGavock, 114 Ténn. 438; In re Rollwagen, 48 How. Pr. (N. Y.) 103. (d) The former judgment is also binding upon the husband, because that judgment fixed the status of the instrument. The husband of an heir at law, though a proper party, is not a necessary party to the proceedings. The judgment is not void. Kischman v. Scott, 166 Mo. 225. (e) The former judgment establishing the will is binding upon all the world, and even if the husband had been a necessary party to the former proceedings, he would still be bound. 16 Ency. PL & Pr., pp. 1018, 1061; Bogardus v. Clarke, 4 Paige Ch. Rep. 623; Bonnemort v. Gill, 167 Mass. 338; Crippen v. Dexter, 13 Gray, 3301; Tebbatts v. Berry, 10 B. Mon. 475; Redmond v. Collins, 4 Dev. (N. C.) 489; Tompkins v. Tompkins, 1 Story C. C. 547; Scott v. Calvit, 3 How. Rep. (Miss.) 148; Dugan v. Northcutt, 7 App. Cas. D. of C. 351; Wells v. Spraggins, 3 Gratt. 555; McDaniel v. McDaniel, 86 Md. 623. (f) It was Ms duty to appear and have himself made a party in the former proceedings, if he ever wished to contest the will.
   BLAIR, C.

This is a contest of a will.

Appellants are husband and wife and appellant Bridget is the daughter of Mary McLaughlin, who died November 3, 1903, seized of certain realty which, by the terms of the will now assailed, she devised to three other daughters, respondents in this case. This is the second proceeding of the Mnd. February 8, 1904, Bridget Teckenbrock instituted in her own name a like action to contest the same will, making her three sisters defendants. Undue influence was alleged. That case resulted in a verdict and judgment sustaining the will which judgment the trial court set aside on motion and, on appeal, this court reversed that order and remanded the cause with directions to reinstate the verdict and re-enter the judgment. [Teckenbrock v. McLaughlin, 209 Mo. 533.] Subsequently, October 26, 1908, this proceeding was begun in the circuit court of the city of St. Louis, in which court the previous caseOiad been heard, and again undue influence is relied upon. The answer avers, among other things, the rendition of judgment in the former case. Prior to Mary McLaughlin’s death issue had been born of the marriage between contestants. On the plea of res judicata and the issue as to the sufficiency of H. Teck-enbroek’s interest to support a contest, separately submitted by agreement, judgment was given for con-testees.

The statute (Sec. 555, R. S. 1909) provides that “any person interested in the probate of any will” may contest its validity in the manner and within the time therein prescribed. In this case the right of H. Teckenbrock to contest is.asserted to arise out of the fact he is the husband of a daughter of testatrix and, issue having been born of tbe marriage, entitled to curtesy in bis wife’s share in tbe estate in case of judgment against tbe will. Any interest Bridget Tecken-brock would have taken in 1903 by descent would have become her separate property by force of tbe statute then and now in force. Whether a husband’s curtesy in such property of bis wife is more than an estate for bis life after her death contingent upon her failure to sell, is a question not definitely settled in this State (Bank v. Hageluken, 165 Mo. 443; Myers v. Hansbrough, 202 Mo. 495) and, in tbe view we take, not essential to tbe decision in this case. Let it be assumed, for present purposes, that tbe wife’s separate conveyance of her statutory separate estate does not affect tbe husband’s curtesy in case it would otherwise exist. Tbe wife’s right to tbe possession and enjoyment of her property, acquired by descent since 1889, is well established and tbe only possessory interest tbe tenant by tbe curtesy can take is one for bis life after tbe wife’s death. In this State tbe resemblance between tbe husband’s curtesy and tbe widow’s dower is somewhat closer than at common law. At tbe common law, after issue born, tbe husband was seized in bis own right of an estate for bis life in tbe fee simple lands of bis wife. His estate was a present one, entitling him to possess and enjoy tbe property and was vendible and subject to sale under execution against him, even during tbe wife’s life.

So far as concerns tbe right of tbe husband in lands of tbe wife acquired since 1889 tbe common law has been much modified by statute. In such lands, under tbe statute (Secs. 8309, 8304, R. S. 1909; Vanata v. Johnson, 170 Mo. l. c. 274, 275) tbe husband has no right of possession during tbe life of tbe wife and she alone can sue therefor. His curtesy initiate entitles him to no present enjoyment of the property. Tbe wife’s right to possession of her realty acquired since 1889 is exactly as full and complete as tbe husband’s right to the possession of .realty the title to which is in him, and the contingency npon which he will take as tenant by the cnrtesy consummate is identical with ■that npon which the widow takes her dower, i. e., survival. In view of the chang’e thus effected by the statute the real interest of the husband during the marriage and after birth of- issue is, like dower, a legal estate in expectancy, a right to the future enjoyment of an estate, contingent upon the uncertain event of his surviving his wife. It is true it was recently said (Myers v. Hansbrough, 202 Mo. 495) the curtesy initiate is a vested interest, but by that it was not meant the husband as such tenant had any present, actual, vendible interest or possessory right in the wife’s realty (acquired since 1889) prior to her death. The question in that case was whether the husband, after the wife’s death, took subject to her debts.

In view of what has been said, the similarity between the inchoate right of dower and curtesy initiate (in lands acquired since 1889) is such that decisions respecting the nature and value of the inchoate right of dower may with profit be consulted in the course -of an endeavor to ascertain the character of an estate by the curtesy initiate. In this State the inchoate .right of dower is “an inchoate and contingent right. Its value depends wholly upon the death of the husband” (Durrett v. Piper, 58 Mo. 551), and the impossibility of valuing such an interest prevents (Ibid.) an award of substantial damages in an action for breach of covenant against dower until the death of the husband completes the wife’s claim to an actual interest. Judge Bliss in an early case (Hinds v. Stevens, 45 Mo. 209) also declared that in case of a sale in partition, the. interest of a wife of a partitioner was such that he knew “not how it would be possible to so estimate the value, of that shadowy right, as to pay her or invest for her any portion' of the proceeds of the sale. ’’ In Riddick v. Walsh, 15 Mo. 519, this court said: There is a marked distinction throughout the books between cases where a suit affects a wife’s interest in real estate which is claimed in her own right, and those in which she has only an inchoate right of dower. In the former class of cases no instance is to he found in which it is not maintained that a wife is a necessary party to the proceedings in order to devest her right. In the latter class the husband alone is deemed the proper party to defend a proceeding instituted to •devest title.” It has always been held (Lee v. Lindell, 22 Mo. 202) she is not a necessary party to proceedings to partition realty in which her husband owned •an undivided interest and, in many instances, though the husband may not by subsequent act devest, or impair or affect her right, yet he represents the fee, including the wife’s inchoate right (Hoyt v. Oliver, 59 Mo. 188; Maguire v. Riggin, 44 Mo. 512; Bailey v. Winn, 101 Mo. 649; Chouteau v. Railroad, 122 Mo. 375; and cases cited), in actions affecting it.

The right to contest a will is statutory and under the statutes an interest in the probate of the will (Sec. 555, R. S. 1909) is essential to the existence of the right. Heirs, devisees, legatees, executors and judgment creditors (Watson v. Alderson, 146 Mo. 333) "have immediate, direct, pecuniary interests attaching •at once upon devolution of the estate, and their capacity to maintain an action to contest a will is es-'tahlished. The interest of the husband in this case is markedly different. He could have no present interest in the property inherited by his wife. He could he seized neither in law nor fact until his wife’s death. He could have neither possession nor right to possession prior to that event. He could, during the wife’s life, have no estate more susceptible of valuation than -the inchoate right of dower, nor could he sell or convey. He could never have any actual interest unless he outlived his wife. Generally, a direct, pecuniary Interest at the time of the probate of the will is a condition precedent to the right to contest. [Halde w Schultz, 17 S. D. l. c. 473, and cases cited.]

In this case the wife has already prosecuted to> final judgment her contest and this court has directed the entry of judgment against her, establishing this very will. That action the statute authorized her to» bring as if she were a .feme sole (Sec. 8304, R. S. 1900). Therein she litigated her right to the property of her mother, actively and in good faith, and in so doing we hold she represented the whole fee, including the interest the husband could have taken after her death in case he outlived her.

The only right of possession he can ever have is contingent upon his surviving his wife. The present value of his interest is-as difficult of ascertainment as is that of the inchoate right of dower. Seizin in the wife is a condition precedent to the existence of whatever is left of curtesy initiate in lands like those here involved, and the wife, we think, represents the fee in pursuing her statutory right to litigate the question whether she was ever seized and the judgment against her binds him. This conclusion is warranted by the nature of the husband’s interest and the statute relating to will contests. There is no precedent for permitting the husband (o.r the inchoate dowress) of an heir to maintain a contest under circumstances like those in this case and that fact evidences the concurrence of the bar, to this hour, in the belief that no right to do so exists. It may also be suggested that singular results would flow from a contrary holding.

If the husband be permitted to maintain this action after judgment against his wife in a former contest and the will be set aside, and, then the wife survive, the result is that the will has been successfully contested by one who never had and never can have a. present, actual interest in the property. Further, suppose a will is contested by the wife, an heir, before the birth of issue, and judgment is rendered establishing the will. In such, circumstances and in such, a proceeding the husband certainly has no interest to assert or protect. In case of the subsequent birth of issue may he institute a second contest? His right to cur-tesy does not depend upon the order in which seizin in the wife and the birth of issue occur. H. Tecken-brock could have neither actual seizin nor seizin in law, in lands descending to his wife since 1889, until the death of his wife. He has therefore no such present pecuniary interest in such lands as to enable him to escape the binding force of the prior judgment against his wife in view of the language of the statutes referred to and the contingent character of his right to future enjoyment of the wife’s realty.

As stated, the question whether the wife’s sole deed carries full title, freed from curtesy, does not arise on this record. Further, in what has been said concerning the inchoate right of dower, that interest was considered as it existed at common law and it is-, not intended in any way to affect decisions dealing-with statutory modifications of the right.

The suggestion that the issues in the first contest were unlike those in this case and the judgment, therefore ineffectual to bar either contestant is not,, in the view we take, of great importance, but it maybe added we do not regard the difference between an allegation of the exertion of undue influence by several and an allegation that several conspired to unduly influence testatrix as sufficient to warrant the conclusion drawn therefrom by counsel. The judgment is. affirmed.

Boy, G., concurs.

PER CHRIAM.

The .foregoing opinion of Blaie,. CL, is adopted as the opinion of the court.

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    OSCAR P. MILLER v. THE JOURNAL COMPANY, Appellant.
    Division Two,
    December 21, 1912.
    1. EVIDENCE: Relevancy: Impeachment: Cross-Examination: Acts of Witness: Objection. Evidence not relevant to tlie issues may often be admitted for purposes of impeachment; and while it was not competent upon cross-examination to ash the plaintiff in a libel suit against' a newspaper about charges of indignities made against him in a divorce suit in which he failed to appear and defend, but rather he should have been questioned as to his acts, yet, where the only objection was that such evidence was not relevant to the issues in the libel suit, it was not error to allow the question to be asked and answered as matter of impeachment.
    2. -: Controverting Plaintiff’s Witnesses: Admissions: Record of Former Suit: No Appearance. Where the plaintiff in a libel suit against a newspaper puts in evidence by other witnesses as to his good marital conduct, he cannot be heard to say that testimony upon the same point is incompetent when advanced by the defendant, and under that head the defendant may introduce the record of a divorce suit against plaintiff, in which the petition charged him with indignities, and to which, although no judgment was ever entered, he failed to appear and' plead — the facts, if true, that plaintiff was at that time without means to attend and contest, and did not want to discredit his wife, not going to the competency of the petition, but, at most, merely affecting its weight as evidence.
    Appeal from Jackson Circuit Court. — Ron. Hermann Brumback, Judge.
    Eeversed AND eemanded (with directions).

      Sebree, Conrad & Wendorff for appellant.
    The court committed error in granting the plaintiff a new trial. The plaintiff by evidence introduced in chief by several witnesses, undertook to show that his married life was proper and correct. He thus made this matter an issue before the jury, and the «defendant had the right to meet such issue by any proper evidence; and, as the plaintiff was served with a summons and copies of the petitions, and as judgment by default was rendered against him on the petition filed at Independence, allegations of the petition which went into judgment tending to show that ■the plaintiff’s marital life was not proper and correct, were admissible. The petition filed at Kansas City was the same in substance as the petition at Independ«ence, and, therefore, its introduction in evidence added nothing to the petition filed at Independence, and, «consequently, did not prejudice the rights of plaintiff. Besides, the plaintiff did not answer or deny the allegations in the Kansas City petition, although he was ■duly served with process and a copy of that petition. ¡State ex rel. v. Flynn, 66 Mo. App. 373; Hoffman v. Hoffman, 126 Mo. 486; R. S. 1909, Secs. 1830, 2093; Millard v. Adams, 21 N. Y. Supp. 424; Eisenlord v. Clum, 126 N. Y. 552; Ellis v. Jameson,. 17 Me. 235; Crogin v. Carleton, 21 Me. 492; May ,v. Hewitt, . 33 Ala. 161; 6 Ency. PI. & Pr., 115, 116.

      Reinhardt & ScMbsby for respondent.
    (1) Only that part of a plaintiff’s character involved in the libel is in issue in a libel suit. Yager v. Brucé, 116 Mo. App. 496; Anthony v. Stephens, 1 Mo. 254. (2) The reputation of a plaintiff in a libel suit cannot be attacked by proof of specific acts. Yager v. Bruce, 116 Mo. App. 493; Rose v. Thalborn, 153 Mo. App. 408; Odgers, Libel & Slander, 304; 25 Cyc. 516; 18 Am. & Eng. Ency. Law (2 Ed.), p. 1102.; Town-■shend, Libel & Slander (4 Ed.), Sec. 407. (3) A. witness may not be impeached on immaterial matters. State v. Murphy, 201 Mo. 696; Wojtylak v. Coal Co., 188 Mo. 289. (4) The credibility of a witness cannot he attacked by proof of specific acts. Wright v. Kansas City, 187 Mo. 693. (5) The bad character and reputation of a plaintiff in a libel suit goes only to mitigation of damages and does not amount to a defense. 18 Am. & Eng. Ency. Law (2 Ed.), 1080; 25 Cye. 416, 418. And the jury should be told so. Jones y. Murray, 167 Mo. §5.
   ROY, C.

Action for libel. Verdict for defendant, wbicb was set aside on motion for a new trial, and the defendant has appealed from the order and judgment granting a new trial.

The petition charges that the defendant published in its newspaper, the Kansas City Journal, that the plaintiff was a pal of one Toots Eambo, a man of notoriously bad reputation.

The answer admits the publication and its falsity, pleads that the publication was made through honest mistake and inadvertence and without malice, and pleads in bar that plaintiff accepted a second article in satisfaction of any damage done by the first article.

The reply denies the claims of accord and satisfaction and of innocent mistake.

At the trial the plaintiff testified in his own behalf, and on cross-examination the following occurred:

“Q. When did you first marry? A. Along in 1876. Q. Did your wife get a divorce from you? A. Yes, sir.
“Counsel for plaintiff: Tour Honor, I don’t think that is at all material in this case.
“Objection overruled and plaintiff excepted.
“Q. What did she charge you with in that divorce proceeding? A. She charged me with drunkenness. Q. Anything else? A. I don’t know; I don’t remember now., Q. Did she charge you with cruelty? A. No, sir, I don’t think so. I didn’t pay much attention to it; I didn’t fight it.”
“Plaintiff’s counsel: I object to any testimony as to this man’s marital troubles as having no bearing upon the issues iu this case.” Objection overruled and plaintiff excepted.

After that evidence was in, the plaintiff, without any objection from defendant, introduced several witnesses who testified that his marital conduct was good.

The defendant then put in evidence the petitions in two different divorce suits brought by plaintiff’s first wife against him. One of those suits was brought in Independence returnable to the January term, 1887, and there is no showing that Miller was served with ‘summons therein. A divorce was granted therein in [February, 1887. Pending that suit the other suit was instituted by the wife at Kansas City returnable to the April term, 1887. The plaintiff admitted that he was served with summons in the latter case in Kansas, and that he did not appear or contest either of those suits.

Those petitions were alike in all respects so far as the cause of action and the relief sought were concerned. They charged the husband with cruelty and indignities to the wife of the grossest kind, and allege that he is the owner of a house and lot in the town of Buckner, and pray for a divorce and for alimony. Neither of those petitions charged Miller with drunkenness.

The wife did not prosecute the suit at Kansas City to a final result; and so far as the evidence shows it is still pending.

The court granted the new trial on the' ground that the admission of those two petitions in the divorce cases was error.

The divorce petitions were not competent on the ground that they had any relevancy to the issues involved in the pleadings. If their admission was proper it was on some ground other than relevancy to the issues.

Evidence not relevant to the issues involved is often competent on collateral matters such as the impeachment of a witness. The plaintiff had testified for himself. In doing so, he was subject to all the rules as to the cross-examination and impeachment of witnesses. The law in that respect is declared in. 1 Greenleaf on Ev., Sec. 461b: It is there held that testimony from other witnesses of particular instances of misconduct is an improper mode of discrediting- a witness, because of the confusion of issues and the waste of time that would be involved, and because the witness cannot know what charges may be made and cannot be prepared to expose their falsity. It is also there stated that for those reasons the impeaching party (except when proving a conviction of crime) is relegated exclusively to the cross-examination of the witness to be impeached, as the sole mode not open to the above objections, of bringing out particular conduct affecting character, and the author then states that the trial court has discretion to set limits to such an examination, and to forbid it whenever it seems to be unnecessary or profitless or undesirable, and that such is.the rule now in vogue in the majority of jurisdictions.

Wigmore on Ev., Vol. 2, Sec. 981, sustains the same rule, and says: ‘1 The reasons already examined (ante, Sec. 979) appear plainly to have no effect in forbidding the extraction of the facts of misconduct from the witness himself upon cross-examination. There is no danger of confusion of issues, because the matter stops with question and answer. There is no danger of unfair surprise, because the. impeached witness is not obliged to be ready with other witnesses to answer the extrinsic testimony of the opponent, for there is none to be answered, and because, so far as the witness himself is concerned, he may not unfairly be expected to be ready to know and to answer as to his own misdeeds.”

That doctrine was recognized by this court in Goins v. City of Moberly, 127 Mo. 116; and in Muller v. St. Louis Hospital, 73 Mo. 242, affirming the opinion of the St. Louis Court of Appeals in the same case in 5 Mo. App. l. c. 401.

Newell on Slander and Libel, 890, says: “If, however, the plaintiff testifies in his own behalf, he can be cross-examined on all the details of his previous life which affect his character; but, unless such details are material to the issue, the defendant must take the plaintiff’s answer, and cannot call evidence to contradict it.” Odgers on Libel and Slander, 642, is to the same effect.

Attention is called to the fact that the only objection made to that evidence was that it was not relevant to the issues. Such an objection was not good for the reason that it was offered evidently for impeachment, and not as being relevant to the issues.

It may be remarked that in such method of impeachment it is not competent to ask the witness as to what acts 'he has been charged with. The question should be whether he has done such acts, not whether he has been charged with them. But in this case no objection was made on that ground. The episode should be treated as an attempt by defendant to impeach the plaintiff as a witness by showing particular misconduct on his part not relevant to the main issues.

The rights of both parties in the matter ended with the cross-examination of plaintiff. When, thereafter, the plaintiff put in evidence by other witnesses as to his good marital conduct, he certainly proceeded on the theory that such evidence was competent, and, if competent for him, it was competent for the defendant. He cannot be heard to say that such theory applies to him and not to the defendant.

The question now arises, was the petition in the divorce case in which plaintiff was served with summons, and in which he failed to appear and plead, and in which no judgment was ever entered, competent on the question of plaintiff’s marital conduct.

1 Greenleaf on Ev., Sec. 527a, says: “A record may also he admitted in evidence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration by such party in regard to a certain fact. But in that case it is admitted not as a judgment, conclusively establishing the fact, but as the deliberate declaration or admission of the party himself that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evidence it properly belongs.” And that author cites Cragin v. Car letón, 8 Shepl. 492, where it was held that where a judgment by default was entered against a party, such judgment was competent as an admission in favor of a third party in another suit.

That rule is approved in 16 Cyc. 971; Millard v. Adams, 21 N. Y. Supp. 424; Eisenlord v. Clum, 126 N. Y. 552; Ellis v. Jameson, 17 Me. 235. In the Eisen-lord case it was said, “It is not the judgment which is to form the evidence. It is the admission contained in the pleading, or by the suffering of the default.” So we say. The fact that no judgment by default was actually entered in the case in which he was served with summons does not, on principle, affect the result. He knew what the charges were and he admitted that he didn’t fight it.” He did not even know until long after that no divorce had been granted in that case. If he had answered in the divorce case denying the charge and the trial court had found against him, the judgment would not have been admissible in favor of a third party; not as an admission because of the denial, and not as a judgment because not between the same parties.

We find no case where this question has been raised on a record where the default was not entered. But “reason is the soul of the law,” and the law should, be coextensive with the reason for it. And since it is the failure to answer and not the judgment wbicb constitutes the admission, the admission was complete in the divorce case when the defendant therein, according to his own admission, made no attempt to deny the charge.

The facts, if true, that Miller was living in Kansas at the time, and was a poor man, and without the means to attend and contest the case, and did not want to discredit his wife, might he considered as to the weight to he given to the petition as evidence hut do not go to its competency. The second petition was the same as the first, and the introduction of it, for that reason, was not reversible error.

The judgment and order of the trial court setting aside the verdict and- granting a new trial is reversed, and the cause remanded with directions to enter judgment for the defendant in accordance with the verdict.

Blair, G., concurs in result.

PER CURIAM.

-The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.