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upon the land, but was permitted to there remain, may perhaps constitute an injury to the reversion for which defendants may be held answerable to plaintiff in damages, but plaintiff's right to recover damages for suc injury, if any, is not here involved. We regard it as quite clear that under the petition and the evidence in the case plaintiff Was not entitled to recover in this action, and that the court should have sustained defendants’ demurrer to the evidence. And it follows, from What we have said above, that the trial court was not warranted in granting the new trial and depriving defendants Of the Verdict in their favor. The order granting the new trial will consequently be reversed, and the cause remanded, With directions to the circuit court to reinstate the verdict and enter judgment thereon accordingly. It is SO Ordered.

REYNOLDS, P. J., and BECKER, J., conCUlr.

KOSLOVE v. DITTMEIER. (No. 15058.)

(St. Louis Court of Appeals. MissOuri. Argued and Submitted April 3, 1918. Opinion Filed May 7, 1918.)

* 1. APPEAL AND ERROR G21002 – TRIAL (32 143 – FINDINGS OF FACT – QUESTIONS FOR JURY. Where the evidence is conflicting on every issue, the case is for the jury under proper instructions; and where the verdict is supported by substantial evidence, it cannot be disturbed on appeal.

2. APPEAL AND ERROR 3:255-MATTERS REVIEWABLE-SAVING OBJECTIONS.

Where no exception is taken to amendment

of pleading on the trial, it cannot be reviewed.

3. PLEADING &=248(4) — AMENDMENTS CHANGING CAUSE OF ACTION. In action for commission for obtaining a tenant, where there was evidence that defendant told plaintiff that he was owner, plaintiff alleging that defendant owned the property, an amendment by inserting the words “claimed by plaintiff to be” owned by defendant did not change the cause of action.

4. BROKERS @:82(4) — OBTAINING TENANT —PLEADING. In action for commission for obtaining a tenant, recovery could be had under allegations that defendant was owner, although he was only an agent, where he represented himself to be the owner.

5. EVIDENCE & 242(8) — LETTERS SIGNED WITH RUBBER STAMP.

A letter from defendant's office written by some one in his office, and signed with defendant's name with a rubber stamp, was admissible in evidence, where written in due course of business under direction of defendant “to get rid of" plaintiff.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

“Not, to be officially published.”

Action by Louis KOSlove against Frank L. Dittmeier. Judgment for plaintiff, and defendant appeals. Affirmed.

Peers & Peers, of St. Louis, for appellant. Montague Punch, of St. Louis, for respondent.

REYNOLDS, P. J. Plaintiff commenced his action before a justice of the peace, filing a Statement called “petition,” in which it is set out that in August, 1913, the defendant agreed With plaintiff that in consideration of the plaintiff finding a lessee for property Owned by defendant and located at the southeast corner of Twenty-Third and North Market Streets, in the city of St. Louis, defendant would pay plaintiff a good Commission; that in November, 1913, plaintiff found a tenant for the property and through the efforts and agency and finding of the tenant by plaintiff, defendant was enabled to and did enter into a lease of the property for a period of 10 years, at a yearly rental of $600 for each year for the first 5 years, and $720 for each year Of the SecOnd 5 years, whereby it is alleged that plaintiff became entitled to receive from defendant as COmpensation for Services SO rendered to defendant by plaintiff, an amount equal to 2 and 3% per cent, on the gross rental of the property for 10 years, amounting to $165. Averring the demand of payment and refusal, judgment is asked for $165. The case Was tried before a justice Of the peace, resulting in a verdict in favor of plaintiff for $15, from which he appealed to the Circuit COurt, Where On a trial before the Court and jury a Verdict was rendered in his favor for $157.50, judgment following, from Which, after interposing a motion for new trial and excepting to that being overruled, defendant has appealed. [1] The evidence in the case, as preserved by the bill of exceptions, is very conflicting, not only as to the contract and services but as to every issue. It became, therefore, a question of fact for the determination of the jury, under proper instructions and as there is substantial evidence in favor of respondent, We Cannot interfere With it unless there WaS SOme error in the progress of the trial. There are Six assignments of error made by the learned Counsel for appellant. [2, 3] The first is that the court erred in permitting the respondent to amend the Complaint in the circuit court by inserting the Words “claimed by plaintiff to be” owned by defendant, the words italicized not being in the Statement filed With the justice When the Case Was before him, it being charged that this changed the cause of action and made it necessary for defendant to have evidence to meet an allegation entirely different from the allegation in the claim as sued on. It appeared during the progress Of the trial that defendant did not own the property but that it belonged to a corporation for which he was agent, his wife being the principal StOckholder in the COrpOration. At the COnclusion of the testimony plaintiff asked leave to amend the statement by inserting the words referred to and by leave of court the amendment Was made. We find no exception taken to this action of the court, therefore, this assignment of error is to be disregarded. Nor, under facts in evidence, do we find that the amendment changed the CauSe of action. [4] The second assignment of error was to the action of the court in not Sustaining a demurrer to the evidence at the close of plaintiff's case, it being claimed that the evidence of plaintiff failed to Support the allegation in plaintiff's claim. It is true that the amendment referred to had not been made when plaintiff closed his case in chief, but there was testimony to the effect that the defendant had represented to plaintiff at the time of the employment that he (defendant) was the owner. On the strength of this the court permitted evidence as to the con

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tract of employment between plaintiff and de

fendant. We see no error in this action of the Court. The third assignment of error is to that part of the instruction given at the instance of plaintiff. - “That if the plaintiff would find a lessee of certain property claimed by defendant to be owned by him, defendant, if you find defendant did claim to be the owner thereof,” etc.

The error alleged as to this is that the claim filed in the justice's court and amended in the circuit court did not allege that the defendant “Claimed to be” the OWner Of the property. There is nothing in this objection that has not been disposed of above.

The fourth assignment of error is to the action of the court in overruling defendant's motion for a new trial, and the fifth is that the court erred in rendering judgment for plaintiff. Neither of these assignments is tenable. There was evidence in the case entitling it to go to the jury.

[5] The sixth assignment of error is to the action of the court in admitting in evidence and permitting to be read to the jury, over the objection of the defendant, a letter of November 26th, 1913, written by an employé in the defendant’s Office and signed with defendant's name with a rubber stamp, it being claimed that this letter was not an admission by defendant and he was not bound by its contents. The testimony as to this matter is that the defendant had directed a letter to be written inclosing a check to plaintiff for $5, “for your trouble in getting a tenant for me at 23rd & N. Market Streets.” Defendant admitted that this letter was written in due course by Somebody in his Office and that he had directed the sending of the check “to get rid of" plaintiff. It appears from evidence in the case that defendant had acknowledged that this Was a letter which he had caused to be sent to

plaintiff, so there is nothing in this assign

ment. Finding no reversible error, the judgment

Of the circuit court is affirmed.

ALLEN and BECKER, J.J., concur.

McMAHON v. UNITED RYS. CO. OF ST. LOUIS. (No. 15036.)

(St. Louis Court of Appeals. 7, 1918.)

1. EVIDENCE 6:128 – RES GESTAE – STATEMENTS TO PHYSICIAN. A physician, called as a witness by his patient, suing for a personal injury, may testify as to the present symptoms of his patient, and repeat the statements of the patient to him as to such symptoms, but may not repeat the history of the case given by the patient during the examination made by him. 2. EVIDENCE 3:128 – RES GESTAE – STATEMENTS TO PHYSICIAN-TIME OF MAKING. In an action for personal injuries, question addressed to plaintiff's physician, whether, when called 11 months after the accident, plaintiff gave him any statement of her symptoms, was not objectionable as calling for hearsay. . 3. APPEAL AND ERROR (C-2206(2)—SCOPE OF REVIEW-PRESERVATION OF EXCEPTIONS. Where a proper question was answered with a statement containing both proper and improper matter, failure to object to the incompetent portions of the answer, or to move to strike out such portions, precluded reyersal on the ground of error in admitting the answer. 4. TRIAL C+76—PREMATURE OBJECTIONS TO EVIDENCE. Where plaintiff in response to question whether she had indicated to her physician just where she was hurt, answered “Yes, sir,” an objection then made “to that as hearsay and a self-serving statement,” was properly overruled. 5. APPEAL AND ERRoR (3-1050(1)—HARMLESS ERROR—ADMISSION OF EVIDENCE. Where, in such case plaintiff thereafter fully related her statements to the physician, without further objection or motion to strike out, the admission of such first answer was not reversible error. 6. EVIDENCE C+127(1)–REs GESTAE–STATEMENTS AS TO PHYSICAL CONDITION. Statements of plaintiff in personal injury action as to her condition, made to mere nonexpert acquaintance, are admissible, and not objectionable as hearsay. 7. DAMAGES @=132(3) – EXCESSIVE DAMAGES. Verdict of $6,000 to 52 year old woman, who made her living as a seamstress, and who suffered immediate injuries to her head, back, neck, and arm, was confined to her bed for 5 weeks, and unable to leave her room for 3 months, and was permanently rendered highly nervous, subject to severe headaches, severe nervous chills and insomnia, and lost much weight, was not excessive.

Missouri. May

Appeal from St. Louis Circuit Court, J. Hugo Grimm, Judge.

“Not to be officially published.”

Action by Sarah McMahon against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

\

Boyle & Priest and Geo. T. Priest, all of

St. Louis, for "appellant. Fauntleroy, Cullen

& Hay, of St. Louis, for respondent.

ALLEN, J. This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant’s servants in Suddenly starting forward one of defendant’s street cars while plaintiff was in the act of boarding it. The defense asserted below proceeded upon the theory that plaintiff was injured as the result of an attempt on her part to board a moving car. It appears that two jury trials of the cause have been had, a prior verdict for plaintiff having been set aside by the court. The last trial, on March 8, 1915, resulted in a verdict and judgment for plaintiff in the sum of $6,000, from which defendant prosecutes the appeal before us. At the time of her injury, which occurred on June 2, 1913, plaintiff was 52 years of age, and according to her evidence she was a healthy, robust woman, and had enjoyed excellent health all of her life. The immediate injuries were to her head, back, neck, and arm. It appears that she was confined to her bed for 5 weeks, and for nearly 3 months was unable to leave her room. The evidence in her behalf tends to ShOW that aS a result of her injuries she became and remained in a highly nervous condition, Subject to severe headaches, severe nervous chills, insomnia, and constipation, and that she had lost much Weight; and the testimony Of her physician tends to show that her health has been permanently impaired as a result of such injuries. Prior to receiving her injuries, plaintiff was a seamstress, earning her own livelihood, and was engaged in this occupation on the very day upon which She Was injured and according to her testimony she has since been unable to “do sewing of anything.” Defendant adduced testimony of medical experts tending to show that plaintiff's nervous condition, and the attendant ailments of which she complains, were not of traumatic Origin, but Were due Wholly or in large part to the menopause. [1] I. The first point made in the brief of appellant’s learned COunsel is that: “The court erred in admitting, over defendant's objections thereto, the evidence of Dr. Kane, narrating the past history of the case as given him by plaintiff, and the ailments she told him she had suffered prior to that time, for

the reason that such evidence was hearsay and a narration of self-serving statements.”

In support of this assignment appellant cites Poumeroule v. Cable Co., 167 Mo. App. 533, loc. cit. 539, and cases there cited, 152 S. W. 114; Freeman v. Insurance Co., 196 Mo. App. 383, 195 S. W. 545, loc. cit. 548. Appellant concedes that it was competent for plaintiff's physician to testify regarding complaints or statements made to him by plaintiff as to her Symptoms present at the time when he was engaged in treating her, but

urges that it was error to allow the physician to narrate what plaintiff told him regarding her past sufferings and the history of her case generally. This is in keeping with the established rule of law on the Subject. See Poumeroule v. Cable Co., supra, 167 Mo. App. loc. cit. 539. It remains to be seen whether there was a violation of this rule below, in the admission of testimony of plaintiff's physician, and, if so, whether appellant is in a position to now complain of its admission as constituting reversible error. [2] Dr. Kane first examined plaintiff, for the purpose of treating her, about 11 months after the “accident.” The only testimony given by him as plaintiff’s witness which can be said to have been violative of the rule stated above was given in answer to the following question, viz.: “At that time she gave you the statement about her symptoms?” This question was objected to by appellant's counsel “On the ground of hearSay,” and the court overruled the objection. This ruling was entirely proper, for under the rule adVerted to above the question Was unobjectionable in form. In answer thereto the Witness stated: “She complained about being very dizzy, particularly on moving about. She complained that she was unable to fix her attention on anything for any length of time, and was therefore unable to make a living, unable to do her work: She complained severely of headaches, and said all her hair had fallen out; that her hair had fallen out, and she had had very severe headaches. Then I elicited from evidence that she was going through the menopause; getting the time of the dates when she had menstruated. She was normal from the time she was 16 up until 1913. After that time she menstruated in October, 1913, and then the signs appeared in February, 1914. In other words, twice from June, 1913, up until the time I got the history; also that she was unable to sleep—she did not sleep at night. She said she dreamt of terrible things happening to her, and would wake up with a start; also that for a year or more previous her bowels had been very badly constipated. I think that covers it.”

[3] An examination of this answer discloses that a considerable portion thereof is clearly unobjectionable, being a narration by the witness of statements made to him by plaintiff in regard to her Symptoms and Sufferings present at the time of that examination. Coupled with this are statements by the witness as to What plaintiff told him concerning the history of her case, coming under the ban of the rule declared in the authorities supra. But appellant neither objected to the incompetent portions Of the answer, when the witness was testifying, nor, when the answer was in, did appellant move to Strike Out Such portions thereof.

“The only way improper matter in an answer to a proper question may be reached is by motion to strike out such matter. An objection goes to the question and frequently does not direct notice to the answer. The trial court must be given opportunity to correct errors as they arise, and the objection to improper matter in an answer to a proper question, if not raised by motion to strike out, will be deemed waived. Waddell v. Railroad, 113 Mo. App. 687, 88 S. W. 765, and cases cited.” Haines v. Chicago, R. I. & P. Ry. Co., 193 Mo. App. 453, 465, 185 S. W. 1187, loc. cit. 1191. We must consequently rule this assignment of error against appellant. [4,5] II. It is also urged that error was committed in permitting plaintiff to testify that she had told Dr. Kane “about certain ailments that she claimed to have suffered prior thereto.” The testimony of plaintiff complained of in this connection was given in anSWer to the following question, viz.: “Now, I will get you to state whether or not you told or indicated to Dr. Kane just where you were hurt?” To this plaintiff replied: “Yes, sir.” Thereupon appellant's counsel objected “to that as hearsay and a self-serving statement.” The objection was overruled. Plaintiff thereupon continued her answer as follows: “I told him just where I was hurt. I could not use this arm for about a year and this shoulder. I told the doctor all about that, and my back, and just how I felt—my head and back. Told him exactly my case.” It will be readily seen that the court properly overruled the objection when made; and, as there Was no further objection Or motion to Strike Out, reversible error Cannot, in any event, be predicated upon the admission of this testimony. Nor, since plaintiff fully related to the jury the history of her case, do we see how the admission of this answer in evidence could have been harmful or prejudicial to appellant. [6] III. It is argued that error was committed by the trial court in refusing to strike out an answer of a lay witness for plaintiff, Miss Pendergast. A portion of the testimony of this Witness is as follows:

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CRIMINAL LAW (3:1130(4)—APPEAL AND ERROR—BRIEFS AND ASSIGNMENT OF ERROR. Although appellant, in prosecution for violating a statute prohibiting discharge of smoke from chimney, has filed no brief, the Court of Appeals will examine the record and render judgment thereon, having regard to alleged errors designated in the motion for new trial, as required by Rev. St. 1909, § 5312, providing that no assignment of error, or joinder in error, shall be necessary on appeal or "writ of error in a criminal case, and that the court shall render judgment on the record before them. Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge. “Not to be officially published.” H. Wurdack was convicted of violating Smoke regulations, and he appeals. Affirmed.

Stern & Haberman, of St. Louis, for appellant. Howard Sidener, of St. Louis, for reSpondent.

ALLEN, J. This is a prosecution for the alleged violation of section 9689, Revised Statutes 1909. The information in substance charges that on September 13, 1912, defendant, as manager of a certain building in the city of St. Louis, did unlawfully suffer dense Smoke to be emitted and discharged from the Smokestack and chimney of said building into the Open air, contrary to the form of the statute, etc. Upon a trial before the court, without a jury, defendant was adjudged guilty of the offense charged, and his punishment assessed at a fine of $100 and costs, and he appeals.

Appellant has filed no brief in this court, but under the statute (section 5312, Revised Statutes 1909) it is our duty to examine the record before us and render judgment thereupon, having regard to the alleged errors designated in the motion for new trial. See State v. Wilson, 223 Mo. loc. cit. 186, 122 S. W. 671. This we have carefully done, and We perceive nothing in the record of Which appellant may justly complain. No point is made in the motion for new trial as to the sufficiency of the information, and in any event it is manifestly sufficient to sustain the COnViction. The trial court made no rulings on the admission or exclusion of evidence adverse to appellant, and there are no instructions in the case. The evidence is amply sufficient to warrant a conviction as for a violation of the statute. It shows that dense Smoke Was discharged from the building under defendant’s management, contrary to the Statute. The evidence in defendant's behalf regarding the efforts said to have been made by him to comply with the law, if tending to establish a defense within the purview of the statute, served merely to raise a Question of fact for the determination of the trial Court. The judgment is accordingly affirmed.

REYNOLDS, P. J., and BECKER, J., con“Culi".

(199 Mo. App. 388) t

SEITZ v. PELLIGREEN CONST. & INV. CO. (No. 15081.) *

(St. Louis Court of Appeals. Missouri. Argued and Submitted April 4, 1918. Opinion Filed #)" 1918. Rehearing Denied May 22,

1. PLEADING 3:433(8)—AIDER BY JUDGMENT. In an action for personal injuries to an employé struck by an object falling from a build*ng in the course of construction, the complaint averring common-law negligence in failing to provide a safe place to work, in the absence of a motion to make more specific, was sufficient after judgment, although it did not aver violation of a building ordinance requiring temporary floors, in view of Rev. St. 1909, § 7843, providing that all persons engaged in the erection, repairing, or taking down of any kind of building shall exercise due caution, so as to prevent injury to those at work, since the ordinance requiring temporary floors is but a particularization of the statute. 2. MASTER AND SERVANT 3:264(2)—INJURIES TO SERVANT—EVIDENCE. In an employé's action for personal injuries due to being struck by an object falling from a building in the course of construction, a city ordinance requiring temporary floors was properly admitted, although not pleaded, since it tended to show negligence generally alleged.

3. MASTER AND SERVANT 3:286(16) – INJURIES TO SERVANT—QUESTIONS FOR JURY. In an employé's action for personal injuries due to being struck by an object falling from a building in the course of construction, a peremptory instruction for defendant was properly refused, where the testimony, though conflicting, contained substantial evidence entitling plaintiff to go to the jury. 4. APPEAL AND ERROR 3:302(4)-OBJECTIONS IN LOWER COURT-MOTION FOR NEW TRIALSUFFICIENCY-INSTRUCTIONS. In an employé's action for personal injuries due to being struck by an object falling from a building in the course of construction, motion for new trial, based upon the action of the court “in giving instructions to the jury as asked by plaintiff, duly objected to by defendant,” and “in refusing proper declarations of law asked by

defendant,” were insufficient as assignments of

5. MASTER AND SERVANT ©:293 (7) – INJURIES TO SERVANT—INSTRUCTIONS.

In an employé's action for personal injuries due to being struck by an object falling from a building in the course of construction, because of the absence of temporary flooring, an instruction that if, while plaintiff was working on the third floor, a piece of building material or other Substance fell from Some floor above and struck plaintiff, by reason whereof he was knocked or fell to the first floor and was injured, and if immediately preceding plaintiff's injuries defendant failed to exercise ordinary care to cover the floors above so as to make it reasonably safe for workmen from falling bricks or other substances, and if such failure on defendant’s part was negligence, and if such negligence, directly caused plaintiff's injuries, verdict should be for plaintiff if he was in the exercise of due care, was COrrect.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Frank Seitz against the Pelligreen Construction & Investment COmpany, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

R. J. Balch and John P. McCammon, both of St. Louis, for appellant. Claud D. Hall, Of St. Louis, for respondent.

REYNOLDS, P. J. Action for damages alleged to have been Sustained by plaintiff While in the employ of the defendant. The petition alleges that defendant WaS in charge, and in the exclusive control Of the erection of a building on Fourth near Vine Street, in the city of St. Louis, and that on or about November 30th, 1917, while plaintiff Was in the employ of defendant, and doing carpenter work on the third floor of the building, plaintiff was “by reason of the negligence Of the defendant, Struck by a piece of building, or other, material, with great force and violence, which fell from a floor above the third floor on Which plaintiff Was Working, by reason thereof, and by reason of the negligence of the defendant, the plaintiff fell With great force and violence a distance of about 40 feet, from the third floor of said building and to the first floor of said building, and that by reason of being struck as aforesaid, and by reason of falling Said distance as aforesaid, which was due to the negligence of the defendant, as aforesaid, plaintiff received the following injuries” (describing them), and alleging that he Was permanently injured. The answer was a general denial. The trial was before the court and a jury, followed by a Verdict and judgment for plaintiff in the sum of $5000. Filing a motion for new trial as also in arrest, and excepting to the OVerruling Of each Of these, defendant has duly appealed. The plaintiff in this case was instructed by his foreman to go on the third floor of the building and take SOme measurements, and While Standing On a girder, using a plumb line to get Some timbers Straight, he was Struck On the head by a piece Of falling building material, Which plaintiff thought Was a

terror.

6: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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