trarily in granting a new trial. Consequent- | cumstances, but, if the defect be so glaringly ly the case does not come within an exception to the general rule that the trial court's discretion in granting a new trial will not be interfered with. [7] As the case will have to be tried again, it may be well to observe that, since the contract in question released Powell from all liability for any representations made to Batchelor at the time he first bought in, and was a settlement of their differences at that time, evidence of such representations was properly excluded. However, we think the court unduly limited the evidence in not allowing Batchelor to state and show the actual value and extent of the business of the company at the time he first bought in, and whether it was then in reality making or losing money as compared with its extent and value during the time he managed the business and at the time he sold out and quit. Powell was suing for $12,500 damages for the alleged depreciation in the value of his stock put up as a forfeit in the hands of Batchelor under the contract, claiming that such stock had been rendered worthless by Batchelor's conduct in dissipating the assets and destroying and rendering unprofitable an otherwise prosperous business. Under the circumstances, Batchelor should have been allowed to show that the business he is charged to have ruined was not in fact prosperous nor valuable. Upon the grounds hereinbefore stated, the judgment is affirmed. The other Judges con cur. MORGAN v. CITY OF KIRKSVILLE. (No. 11690.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) dangerous that an ordinarily prudent person would not have used it, no recovery can be had; hence an instruction should clearly indicate that a verdict cannot be rendered for plaintiff, where the walk was dangerous, unless reasonable care was exercised. Corporations, Cent. Dig. §§ 1677, 1683; Dec. [Ed. Note.-For other cases, see Municipal Dig. 805.] 4. MUNICIPAL CORPORATIONS 822-STREETS -INJURIES-ACTIONS-INSTRUCTIONS. An instruction in an action for injuries received by one who fell on a sidewalk that, if it was dangerous, and plaintiff knew it was dangerous, or could have known it by the exercise of ordinary care, yet negligently attempted to use the walk, no recovery could be had, is erroneous, as making a mere attempt to use a defective walk negligence, without regard to the manner of the use. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. 822.] Appeal from Circuit Court, Adair County; C. D. Stewart, Judge. "Not to be officially published." Action by Nancy Morgan against the City of Kirksville. From a judgment for defendant, plaintiff appeals. Reversed and remanded. A. Doneghy, of Kirksville, for appellant. Weatherby & Frank, of Kirksville, for respondent. It is TRIMBLE, J. Plaintiff seeks to recover for a fall upon a defective sidewalk. charged that at the point where the brick it the walk ceased the city maintained a board set on edge across the walk to hold the brick in place, and that this board extended above the surface of the brick, rendering the walk dangerous, and causing plaintiff to fall. The injury occurred November 27, 1911. Suit was brought and a trial had at the October term, 1913. Upon an appeal being 1. MUNICIPAL CORPORATIONS 818-INJU-taken to this court, the judgment was reRIES TO PERSONS ON STREETS-EVIDENCE. In an action for injuries received by one who fell on a sidewalk where there was nothing to show that the condition of the walk at the time of the second trial was the same as it had been at the time of the injury, evidence of its condition at the time of the second trial was inadmissible. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1726-1738; Dec. Dig. 818.] 2. APPEAL AND ERROR 1050 - REVIEW HARMLESS ERROR-ADMISSION OF EVIDENCE. In an action for injuries received by one who fell on a defective sidewalk, the erroneous admission of evidence of the condition of the walk subsequent to the action is prejudicial; for the jury must have considered it on the question whether the walk was dangerous at the time of the accident. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.] 3. MUNICIPAL CORPORATIONS 805-STREETS -SIDEWALK ACCIDENTS-DUTY OF CARE. Though plaintiff knew a sidewalk was defective and dangerous, she is entitled to use it, provided she exercise the care that an ordinarily prudent person would exercise under like cir versed and the cause remanded for a new trial. See 181 Mo. App. 348, 168 S. W. 835. A second trial was had in October, 1914, resulting in a hung jury. Thereafter a third trial was had in January, 1915, in which the jury found for defendant, and plaintiff appealed. [1] Error is charged in that the trial court allowed the city to introduce evidence as to the condition of the walk at the time of the second trial, which was nearly three years after the date of the alleged injury. This evidence tended to show that at that time the board did not extend above the surface of the brick. Of course, the material question was whether it did or did not extend above the brick at the time of the injury. The city seeks to justify the introduction of the evidence as to the condition of the walk subsequent to the injury on the ground that plaintiff had admitted that the sidewalk was in the same condition at the time of said second trial as it was at the time of the in jury. But a careful search of the record fails to disclose that she made any such admission. A reading of plaintiff's testimony shows that the comparison defendant, on cross-examination, compelled her to make, over. plaintiff's objection, was not between the condition of the walk at the time of her fall and the date of the second trial, but between its condition at the time of the first trial as compared with its condition at the time of the second. Plaintiff said that the board had been split off at the time of the second trial. She was then asked: "Q. That was the change that was made, and the only change? A. All that I noticed particularly, but the board was split off." Defendant construes this answer as meaning that the board being split off was the only change in its condition at the time of the second trial from that at the time of the injury; but clearly the witness was talking of the change at the time of the second trial as compared with its condition at the time of the first trial, instead of at the time of the injury. As stated, it occurred November 27, 1911. The first trial did not take place until nearly two years thereafter, and the second trial was not had until near sequent condition of the walk was harmless. The jury would undoubtedly think they had a right to consider whether the board projected above the brick in October, 1914, as bearing upon whether it projected above it in November, 1911-something they could not do unless there was evidence before them that conditions had not changed. If the in [3] As the case will have to be retried, it is necessary to notice two instructions given, one for plaintiff, and the other for defendant. Plaintiff's instruction No. 3 told the jury that, even though the walk was dangerous, and plaintiff knew it was dangerous, she is not to be denied the right to recover a verdict against the city on that account, unless the walk was so glaringly dangerous that a person of ordinary care would have refused to use the same. struction means that she could not be deprived of a verdict merely or solely because of such knowledge, then it was perhaps correct, and a careful analysis of the instrucAs the instruction is worded, however, it is tion may disclose that such was its meaning. stood from it that, if they believed the walk quite possible for the jury to have underwas not glaringly dangerous, a verdict could not be denied her, regardless of the manner in which she went over the place. knew the walk was defective, and that it was dangerous, she would still have had the right to use it, provided that, in doing so. she exercised the care that an ordinarily prudent person would exercise under like circumstances. If she ly three years after the accident. The city did not offer any testimony showing affirmatively that there was no change in the condition of the walk between the date of the injury and the second trial. Plaintiff testified that the board was there at the first trial, but nowhere stated that it or the walk was in the same condition as at the time she fell. Certainly the city should not have been Of course, she could not exallowed to introduce witnesses showing that ercise ordinary care if the walk was so glarnearly three years after the injury the board ingly dangerous that an ordinarily prudent did not project above the brick, in the ab- person would not have used it. But, even sence of an affirmative showing that the con- if the defect was not so glaringly dangerous, ditions were the same then as at the date of still, if plaintiff knew of the defect, and yet the injury. The trial judge by his rulings walked over it without exercising ordinary indicated that he thought plaintiff had so tes- care, the jury could find her guilty of contified. He was doubtless led into this error tributory negligence. As the instruction is because the city stated that the questions drawn, it might lead a jury to think that about to be asked plaintiff were for the pur- they could not consider the manner in which pose of showing that the conditions were she walked over the place in order to deterthe same, but, when the questions were ask-mine whether she was negligent or careful, ed, the record shows that both the examiner but could deny her recovery only in case and the witness were talking about the condition of the walk at the time of the first trial as compared with its condition at the time of the second. There being no evidence that the walk was in the same condition at the time of the first trial that it was at the date of the injury, nearly a year prior thereto, it was error to admit the evidence as to its condition at the time of the second trial, even though plaintiff did say that the conditions were the same at the second trial as at the first, except that the board had been broken off. 5 Thompson on Negligence (2d Ed.) § 6228; Hoyt v. City of Des Moines, 76 Iowa, 430, 41 N. W. 63; Williams on Municipal Liability for Tort, § 149. they found that the walk was so glaringly dangerous that an ordinarily prudent person would not have used it. We think the instruction should be so drawn as not to be open to this misconception. [4] Defendant's instruction No. 3 told the jury that, if the walk was dangerous, and plaintiff knew it was dangerous, or could have known it by the exercise of ordinary care, and yet negligently attempted to walk on it and suffered injury, she is not entitled to recover. The trouble with this instruction is that it makes the mere attempt to walk over it negligence, when, as we have seen, negligence can arise only in the manner in which she went over it if the walk [2] We cannot agree with respondent that was not glaringly dangerous. Of course, if the admission of this testimony as to the sub-it was so glaringly dangerous that an ordi of 211-ADMISSIBILITY - EVI rarily prudent person would not have used [5. EVIDENCE trial. For the reason hereinabove given, the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. All concur. MCCRACKEN et al. v. SCHUSTER. (No. 11701.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) 1. APPEAL AND ERROR 209-RESERVATION OF GROUNDS OF REVIEW. Where a party asks no demurrer to the evidence but joins in submitting the case to the jury, he cannot assign as error on appeal that on the undisputed facts the adverse party is not entitled to judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1290-1298, 1300, 1303; Dec. Dig. 209.] 2. LANDLORD AND TENANT 291-UNLAW FUL DETAINER-QUESTION FOR JURY. In a suit in unlawful detainer, question whether the premises occupied by defendant were verbally rented to him by plaintiffs' predecessor in title, or by the latter's lessee, held for the jury under the evidence. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1217-1241, 1243-1269; Dec. Dig. 291.] plaintiffs in unlawful detainer, bearing on The testimony of the predecessor in title the issue whether such predecessor verbally rented the premises to defendant, although given in a prior suit for rent, was admissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 738-744; Dec. Dig. 211.] Appeal from Circuit Court, Harrison County; George W. Wanamaker, Judge. "Not to be officially published." Suit in unlawful detainer by Ellen McCracken and others against Fred Schuster. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded for new trial. Du Bois & Miller, of Grant City, for appellant. O. B. Hudson, of Grant City, for respondents. TRIMBLE, J. This is a suit in unlawful detainer, wherein it is charged that defendant's tenancy of a certain farm of 120 acres terminated on March 14, 1914, but that he willfully and unlawfully held over and detained the same after that date and after demand in writing for the delivery thereof. The defense was that no tenancy existed between him and plaintiffs, but that defendant was a mere subtenant under one, Frank Hass, to whom the farm had been leased. The land in question was owned by plaintiffs and their father, Alexander McCracken. The latter, acting for himself and as agent for plaintiffs, made a verbal contract to sell the land to Frank Hass for $7,200 some time 3. WITNESSES 175-COMPETENCY-TRANS- in the latter part of the year 1911. Owing to ACTION WITH DECEDENT. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. $8711-713, 715, 720, 721, 915; Dec. Dig. 175.] In a suit in unlawful detainer, where the the discovery of the fact that a part of the defendant verbally rented the premises either land at least stood in the name of a deceased from plaintiffs' deceased predecessor in title or unmarried brother of plaintiffs and son of the latter's lessee at a meeting between the par- Alexander McCracken, and that no administies in the office of the lawyer of plaintiffs' pred-tration was had on his estate, Hass refused ecessor, the defendant was not rendered competent to testify concerning his conversation with to pay for and accept a deed to the land unthe deceased predecessor on account of the pres- til an administration should be had on said ence at the conference of the decedent's attor- deceased's estate. Thereupon Alexander Mcney, living and testifying for plaintiffs, who was not the decedent's agent and attorney to Cracken, acting for himself and as agent for make the particular contract, and who was the other owners, made a written lease to merely a passive listener, the decedent making Hass for a term beginning March 1, 1912, and any agreement himself. ending March 1, 1913, wherein Hass agreed to pay $360 rent for said term, payable January 1, 1913. It was also recited therein that McCracken had agreed to sell the farm to Hass at $7,200 and Hass had agreed to buy on condition that the title was perfected, and that, when this was done, the money paid as rent should be treated as a payment on the purchase price and deducted from the $7,200. It seems that all parties then thought that an administration on the deceased's estate could be had and closed in a year under the new law, providing that such can be done within that time. And Alexander McCracken immediately took out letters of adHowever, before the end of the administration year, Hass objected to the estate being closed up in one year 4. WITNESSES 175-COMPETENCY-TRANS ACTION WITH DECEDENT. Where the evidence, given in a prior suit, of the predecessor in title of plaintiffs in unlawful detainer was preserved and introduced at the trial, which evidence embodied such predecessor's version of a conversation had in his lawyer's office with defendant and his own lessee, at which conversation defendant claimed plaintiffs' predecessor had verbally rented the premises to the lessee and not directly to himself, defendant was competent to testify concerning the conversation with the decedent, though he had introduced his preserved testimony himself. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 711-713, 715, 720, 721, 915; Dec. Dig. 175.] ministration thereon. on account of some defect in the giving of the notice of grant of letters. (It seems that said notice allowed two years for creditors to present their claims instead of one.) And the probate court refused to allow it to be closed in one year on this account. Consequently, long before the expiration of the term called for in the written lease, both McCracken and Hass knew that the defect in the title could not be cured, nor the trade consummated, within the time contemplated by the parties at the time the lease from March 1, 1912, to March 1, 1913, was made. Under the lease, Hass had sublet to the defendant Schuster, and he went into possession. In September, 1912, Hass and Schuster met McCracken in James Anderson's law office in Grant City and made a verbal arrangement for the renting of the farm for the year beginning March 1, 1913, and ending March 1, 1914. And here is where the disputed tenancy in question in this case arises. It is the contention of plaintiffs that in this conversation McCracken, at the suggestion of Hass, made a verbal lease of the land to Schuster. On the other hand, it is defendant's contention that there was no renting contract entered into between McCracken and Schuster, but that McCracken rented the land to Hass by verbally agreeing to extend the terms of Hass' written lease for another year. It is thus seen that both sides agree that a new contract was entered into verbally, the only difference in the contention being that plaintiff's claim is that McCracken rented the land to Schuster for the term ending March 1, 1914, while Schuster claims McCracken merely extended Hass' tenancy for another year, and that he, Schuster, in turn rented a part of the land from Hass. This clearly illustrates the difficulty men get themselves into by verbally making contracts extending over so long a time, instead of making them certain by having them reduced to writing. The case was taken by change of venue from Worth to Harrison county and there tried before a jury, which returned a verdict finding defendant guilty and assessing plaintiffs' damages at the sum of $120 and the value of the monthly rents and profits at $30. Defendant has appealed. [1, 2] Defendant very earnestly contends that the undisputed facts show that plaintiffs are not entitled to recover. But this is clearly untenable. In the first place, defendant asked no demurrer to the evidence, but joined in submitting the case to the jury. In the next place, we do not agree with defendant that the written lease between McCracken and Hass provided that the latter should go on indefinitely year after year renting the land at $360 per year until the vendors should be able to present a title satisfactory to vendee, or which he would be willing to accept, and then allow him to credit all of the prior years' rent on the purchase price. The lease, by its explicit terms, was to end March 1, 1913. There was no provision therein calling for a tenancy beyond that date. Consequently it cannot be said that McCracken had no right to make a new renting thereafter to Schuster. Indeed, Hass, who testified for defendant, says that McCracken, at the meeting in Anderson's office where plaintiffs claim the land was rented to Schuster, extended the lease to him, Hass, for another year. Hence, even the testimony adduced by defendant shows that the tenancy claimed for Hass arose, not by virtue of anything in Hass' written lease giving him the right to stay there for any year subsequent to March 1, 1914, but arose out of the alleged agreement of McCracken, as defendant claims, to extend the lease to Hass for another year. Even if the written lease might be construed as giving Hass the right to rent the land during the succeeding years, still the parties could, by mutual agreement, abandon that feature of it, thus leaving McCracken free to make a contract with Schuster. According to the evidence for plaintiff, Hass told McCracken that Schuster wanted to rent the land for the next year, which would begin March 1, 1913, and that as his, Hass' term would end on that date, he could not rent it to Schuster, and that only McCracken could, and that as it was desirable that certain plowing should be done before that date, arrangements for the next year should be made, whereupon, McCracken rented it verbally to Schuster for said next year. So that, according to the evidence for both sides, there was a new verbal contract entered into in Anderson's office in September, 1912. Plaintiffs contend that McCracken rented the 120 acres to Schuster, while defendant insists it was rented again to Hass. The question to whom it was rented, therefore, became a question for the jury to determine. Prior to the institution of the present suit by plaintiffs, Alexander McCracken brought suit against Schuster for the rent of the land for the year ending March 1, 1914, and in that suit McCracken testified as a witness, and his testimony was taken down by the official court stenographer. This evidence, proven by the stenographer's deposition to be correct, was offered in evidence in the case at bar by defendant as an admission on the part of McCracken that he had merely extended the lease to Hass for another year and had not rented the land to Schuster. Defendant claims that McCracken's testimony conclusively shows this. We cannot agree to this. Without regard to whether plaintiffs, who were not parties to the other suit, could be bound by any admission of McCracken, if made, still we do not think his testimony conclusively shows such an admission. It is true some of his answers to questions on cross-examination might be con served by the stenographer, as established by his deposition, entitled the defendant Schuster to testify. Stone v. Hunt, 114 Mo. 66, 21 S. W. 454; Coughlin v. Haeussler, 50 Mo. 126; Galvin v. Knights of Father Mathew, 169 Mo. App. 496, 155 S. W. 45; Leahy v. Rayburn, 33 Mo. App. 55. strued that way, taking into consideration testimony in the other suit had been prethe elements contained in the questions, but other parts of his testimony show that he said he rented it to Schuster. There is nothing in the record of the present case expressly stating that McCracken was aged and infirm at the time he testified and was not able to fully hear and understand what was asked him, as plaintiffs claim he was, but the record does disclose that he was a grandfather to full-grown children, and the way he answered many of the questions shows that he was evidently an old man, and was unable to draw the nice distinctions necessary in order to make correct answers to skillful questions propounded to him on cross-examination. It is in the record also that he died shortly after he testified in the rent suit, and before the present suit in unlawful detainer was brought. Aside from whether the jury in the present case would be compelled to accept as true the statements made by the old man in testifying in the former suit, still we think it was for the jury to construe that testimony and determine just what construction should be placed on what he said. So much for defendant's contention that plaintiffs are not entitled to recover, and that he is entitled to have the case reversed and remanded, with directions to enter up judgment for him. [3, 4] It is urged that error was committed by the court in not permitting the defendant Schuster to testify concerning the conversation between McCracken, Hass, and Schuster in Anderson's office at the time of the verbal renting either to Hass or to Schuster. Plaintiffs objected to his testifying about what took place on this occasion because McCracken, the opposite party to the contract in issue, was dead. Defendant says he was competent for two reasons: (1) Because James Anderson, McCracken's agent and attorney, was present at said conversation and is still living and testified in plaintiffs' behalf; (2) because McCracken's evidence given in the other suit was preserved and introduced at this trial. With reference to the first reason, namely, that Anderson, who was McCracken's agent, was present and is living, we are clearly of the opinion that defendant was not made competent on this account. There was no showing that the contract in question was made by Anderson acting as McCracken's agent. Indeed, all the evidence shows that whatever contract was entered into on that occasion was made by McCracken himself. Anderson was his agent and attorney, it is true, but not to make this particular contract. So far as the record shows, Anderson had nothing to do with the making of it, but merely sat at his desk and heard the three men, McCracken, Schuster, and Hass, talk the matter over, so that Anderson was merely an ordinary witness, and not an agent of McCracken in the making of the contract. But the fact that McCracken's The fact that defendant himself introduced the deceased's evidence makes no difference. He had to show that the deceased's testimony had been preserved in order to make himself competent. The best way to do this was to introduce the deposition as he did. Neither does the fact that he claims now that deceased's testimony agrees with him as to what took place. As we have heretofore shown, McCracken testified the other way, though there is room for the contention that some parts of his testimony are open to the construction placed upon it by defendant. The proper construction to be placed on deceased's testimony was for the jury, and therefore defendant could not know how it would be construed by them. In addition to this, the preservation of McCracken's testimony entitled Schuster to testify, and he had a right to the cumulative effective of his own testimony, even if McCracken's agreed with his. In Leahy v. Rayburn, supra, it is held that the preservation of McCracken's testimony would have entitled Schuster to testify even if neither party had introduced deceased's evidence. [5] Plaintiffs say that the record of McCracken's testimony should not have been introduced in evidence. The record shows no objection made to its introduction. And we know of no reason why it should not have been admitted upon the one question as to whom the verbal renting was made. The fact that the other suit was for rent and this one in unlawful detainer makes no difference. The issue involved in both cases was the same, namely: Did McCracken rent the place to Schuster? And this was the gist of the subject-matter of McCracken's testimony. For this error in excluding defendant from testifying, the cause must be reversed and remanded for a new trial. It is so ordered. All concur. |