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(273 S.W.)

be for the defendants, and that mere proof of Chicago & St. Louis Railroad Company be delay does not of itself establish negligence." affirmed.

[10, 11] We agree that the burden of establishing negligence is on the party who asserts it, and that the above instruction was abstractly correct. However, it was in effect misleading. The unwarranted and unreasonable delay at the season of the year the nursery stock was then being carried constituted evidence of negligence on defendant's part. The facts show more than mere delay. No error occurred in refusing to give the instruction. Fisher v. Pullman Co., 212 Mo. App. 280, 254 S. W. 114.

[12] VII. Defendant also charges the trial court erred in refusing to give a requested instruction reading:

"By ordering a box car in which to make the shipment plaintiff assumed whatever risk there was of damage by freezing by shipping this nursery stock in a box car, and, if you believe the injury to the shipment was caused by its being shipped in a box car, your verdict must be for the defendants."

PER CURIAM. The foregoing opinion of DAVIS, C., is adopted as the opinion of the court.

The judgment of the circuit court against the Chicago, Burlington & Quincy Railroad Company is accordingly reversed, and the judgment against the New York, Chicago & St. Louis Railroad Company affirmed.

DAUES, P. J., and BECKER and NIPPER, JJ., concur.

MINERS' & MERCHANTS' BANK OF FLAT
RIVER v. RICHARDS et al. (No. 18943.)

(St. Louis Court of Appeals. Missouri. June
18, 1925.)

I. Trial 234 (7)-Instructions held reversible error as leading jury to believe plaintiff could not recover, unless all parties consented to erasure of names of certain indorsers.

This instruction attempted to raise a false Instructions that burden was on plaintiff, issue. If the nursery stock was damaged by suing on note, to prove that erasure of names, the inherent nature of the goods, then de- after delivery, was with knowledge and consent fendant was not liable. The instruction im- of all whose names remained, that alteration plies that the nursery stock demanded care that, if names of indorsers were erased without vitiated note, unless all parties consented, and and attention not contemplated by the conconsent of "defendants," jury must find for tract of shipment. We think the converse "defendants," held reversible error as calculatappears from the evidence, and that plain-ed to mislead jury to believe that plaintiff tiff was asking nothing further than the could not recover against any defendants, ungoods be transported within a reasonable less all parties consented to erasure.

time, which demand was within its rights. This instruction, hypothesizing facts, entirely disregards the facts shown in plaintiff's behalf, and brushes aside the import of its evidence. It is evident plaintiff did not assume whatever risk there was of damage by freezing by shipping in a box car, for it did not assume the result of defendant's negligence. The court properly refused the

instruction as asked.

[13] VIII. The Nickle Plate contends that, as the verdict was set aside as to the Burlington after the first trial, the court erred in refusing also to grant the Nickle Plate a new trial. The liability of the two carriers was several.

In 29 Cyc. 735, it is said:

new

"But, since their liability is several, as well as joint, most courts now hold that a trial may be granted to part of them and the verdict allowed to stand as to the others, when it can be done without confusing the issues."

The course pursued by the trial court was in our opinion proper and legal. Error is not made to appear.

The Commissioner recommends that the judgment against the Chicago, Burlington & Quincy Railroad Company be reversed, and that the judgment against the New York,

2. Trial 296(2)—Erroneous clause of instruction not cured by preceding inconsistent clause.

Clause of instruction that alteration of note sued on by erasure of names of certain indorsers vitiated it, and that plaintiff could not recover, unless all parties consented thereto, held not cured by preceding inconsistent clause that alteration of note without consent of makers or indorsers vitiated it as to all parties except those consenting thereto.

3. Trial 296 (1)—Erroneous instructions not cured by conflicting proper instructions.

Erroneous instructions are not cured by proper instructions to the contrary.

4. Alteration of instruments 28-Appeal and error 1050(1)—Admission of indorsers' testimony that they would not have signed if they had known that other indorsers' names were not to remain on note held erroneous, but probably harmless.

Admission of testimony of indorsers of note sued on that they would not have signed it if they had known that other indorsers' names, which were erased after delivery, were not to remain thereon, held erroneous, but probably harmless.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge. "Not to be officially published."

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

Jerry B. Burks and B. H. Marbury, both of Farmington, for appellant.

Action by the Miners' & Merchants' Bank | N. Richards, who received the money at the of Flat River against J. N. Richards and oth- time the note was delivered to the plaintiff. ers. From the judgment for certain defend- After the note was signed by the maker and ants, plaintiff appeals. Reversed and re- the indorsers, the signatures of H. A. Miller manded, with directions. and H. Goldstein were erased from the note, and they were released from liability thereon, at their request. Defendant Richards admitted that at the time of the delivery of the note and the receipt of the money on it he understood that Miller and Goldstein were to be released from liability thereon. On the other hand, there was no proof that either alteration of the note. The issue at the trial Gordon or Sachs had any knowledge of the

J. H. Malugen, of Bonne Terre, Thos. A. Mathews, of Flat River, B. H. Boyer, of Farmington, and T. N. Threlkeld, of Elvin, for respondents.

SUTTON, C. This action is founded upon a promissory note, as follows:

Merchants' Bank of Flat River fifteen hundred

was whether or not the defendants Tucker, "$1,500.00 Flat River, Missouri, May 16, 1919. Klein, Alper, and Kahn consented to the al"Six months after date, we, each as principal, teration. This issue was sharply contested. promise to pay to the order of the Miners' & The evidence for the plaintiff tends to show dollars for value received, payable at the Min- that these defendants consented to the alteraers' & Merchants' Bank of Flat River, Mo., tion, whereas the evidence for defendants with interest from date at the rate of eight tends to show the contrary. Upon the cold per cent, per annum. The signers and indors- record the preponderance of the evidence ers each waive demand, notice, and protest seems to be in favor of the plaintiff. of this note, and severally agree that the time against defendant Tucker the evidence is esmay be extended without notice. If the inter-pecially strong and convincing. It was shown est thereon be not paid annually, or when due, the same shall, when due, or annually, be added to and become a part of the principal, and bear

interest at the same rate.

"J. N. Richards."

The note is indorsed as follows:

"H. A. Miller.
"H. Tucker.
"A. Gordon.
"E. Klein.
"Jacob Alper.
"H. Goldstein
"R. S. Kahn.
"L. Sachs."

The action is defended on the ground that after the execution and delivery of the note the same was materially altered by striking from the note the signatures of H. A. Miller and H. Goldstein.

The cause was originally brought in the circuit court of St. Francois county. Upon a trial to a jury in that court there was a verdict for plaintiff against all of the defendants except L. Sachs, as to whom the plaintiff voluntarily dismissed its case pending the trial. On motion of the defendants a new trial was granted. Afterwards the venue of the cause was changed to the circuit court of Ste. Genevieve county. In that court the cause was again tried to a jury. Upon that trial the jury by their verdict, concurred in by ten of its members, found the issues in favor of the plaintiff and against the defendant J. N. Richards, and assessed the amount of plaintiff's recovery at $2,077.38, and further found the issues in favor of the defendants H. Tucker, Abe Gordon, E. Klein, Jacob Alper, and R. S. Kahn. Judgment was given accordingly. Plaintiff appeals.

The note in suit was given for a loan of

As

by several witnesses that he knew of the alteration and consented thereto. He himself admitted that he was present at the bank when the note was delivered and the money paid thereon and that he knew then that Miller and Goldstein had asked to be released from the note.

At the close of all the testimony and evidence offered and introduced on the part of both plaintiff and defendants the court gave to the jury the following instruction:

"The court instructs the jury that, under the pleadings and the evidence in this cause, plainshould be for codefendant A. Gordon." tiff is not entitled to recover, and your verdict

At the request of the plaintiff the court gave to the jury the following instruction: "No. 1. The court instructs the jury that, if you shall find from the evidence in this cause that the names of H. A. Miller and H. Goldstein were stricken from the note sued on in this cause without the knowledge, consent. or acquiescence of defendants H. Tucker, E. Klein, Jacob Alper, and R. S. Kahn, or either of them, then said note is not enforceable against such defendant or defendants not so agreeing or consenting thereto. On the other hand, if you find that any of said defendants consented or agreed that said Miller and Goldstein were not to remain on said note, or were to be released from liability thereon, then such defendant or defendants so agreeing or consenting are liable for the full amount found to be due on said note; said sum not to exceed $1,500 and interest due thereon, if any, at 8 per cent. from February 16, 1920.”

At the request of the defendants the court gave to the jury the following instructions:

"No. 2. The court further instructs the jury that, if you find and believe from the evidence that after the execution and delivery of the

(273 S.W.)

of the names appearing thereon, as makers or indorsers, had been erased, then the burden is on the plaintiff to prove by a preponderance or greater weight of evidence that such erasure or erasures was done or made with the knowledge and consent of all the persons, whose names remain thereon, except such of them as may have consented thereto, and, unless you find plaintiff has by such preponderance of evidence shown to your reasonable satisfaction that such knowledge was had and consent given, then plaintiff is not entitled to recover, and your verdict should be for defendants."

unless all consented to the alteration of the note.

[1] Reduced to its final analysis, instruction No. 2 tells the jury that, unless all the parties consented to the alteration, except such of them as consented thereto, plaintiff cannot recover, and the verdict must be for the defendants. Taken literally, the instruction means that the plaintiff must show by a preponderance of the evidence that all the parties consented to the alteration to entitle it can be made to mean anything else withplaintiff to recover, and we do not see how

"No. 4. The court instructs the jury that, if you shall find from the evidence in the cause that the names of H. A. Miller and H. Gold-out rewriting it. We cannot say that it did stein were stricken from the note without the not mislead the jury. knowledge, consent, or acquiescence of defendants H. Tucker, E. Klein, A. Gordon, Jacob Alper, and R. S. Kahn, or either of them, then said note is not enforceable against such defendant or defendants not so agreeing or consenting. On the other hand, if you find that any of said defendants consented or agreed that said Miller and Goldstein were not to remain on said note or were to be released from liability thereon, then said defendant or defendants so agreeing are liable for the full amount found to be due on said note, said sum not to exceed $1,500, and interest, if any, due thereon.

"No. 5. The court instructs the jury that, where a negotiable promissory note is executed by any person or persons for the payment of money, and, after the delivery thereof to the payee therein named, his or its assigns, and the payee, his or its assigns, makes any alteration or change in the same, such as the erasure of the name of one or more of the makers or indorsers thereof, whose names appeared thereon at the time of its delivery, without the consent of the other makers or indorsers thereof first had and obtained, vitiates such note as to all the persons whose names appear thereon, except such of them as may have consented thereto. Therefore you are instructed that, if you shall find and believe from the evidence ery of the note sued on herein the plaintiff, without the knowledge and consent of all the parties whose names appeared thereon, either as makers or indorsers, erased therefrom the names of the two parties, then and in that case such erasure constitutes a material alteration and vitiates such note, and plaintiff cannot re

in this case that after the execution and deliv

cover.

"No. 6. The court instructs the jury that, if you find and believe from the evidence that the note sued on was altered or changed in any material part by the erasing of the names of any of the indorsers after the defendants or any of them had signed it, without the knowledge or consent of the defendants, they must find for the defendants."

It is conceded that instruction No. 1, given for the plaintiff, and instruction No. 4, given for the defendants, correctly declare the law of the case. But the plaintiff assigns reversible error upon the giving of instructions Nos. 2, 5, and 6. Plaintiff insists that under these instructions he was not entitled to recover against any of the parties, 273 S.W.-27

[2] The first clause of instruction No. 5 tells the jury that the alteration of a promissory note without the consent of the makers or indorsers vitiates the note as to all the parties, except such of them as may have consented thereto, but the second clause tells them that in this case the alteration vitiates the note, and the plaintiff cannot recover, unless all the parties consented to the alteration. The first clause of the instruction does not cure the fault of the second clause, for the two clauses are inconsistent, and will not harmonize, unless, maybe, the first clause would yield to the second.

The faults of instructions Nos. 2 and 5 persist also in instruction No. 6, for the latter tells the jury that, if the note was altered by erasing the names of any of the indorsers without the consent of "the defendants," then they must find for "the de

fendants."

[3] But the defendants contend that the faults of instructions Nos. 2, 5, and 6 are cured by instructions Nos. 1 and 4, which correctly declare the law of the case. This contention cannot be sustained. Erroneous instructions are not cured by opposing them with proper instructions. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S. W. 722; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587, loc. cit. 612, 45 S. W. 634; John O'Brien Boiler Works Co. v. Sievert (Mo. App.) 256 S. W. 555, loc. cit. 557.

The instructions in this case, read together and as a whole, were at best calculated to confuse and mislead the jury. We are constrained to hold that the giving of the instructions complained of amounts to reversible error.

[4] Over the objection of the plaintiff, the defendants Klein and Kahn were permitted to testify that they would not have signed the note if they had known that the names of Miller and Goldstein were not to remain on the note, and plaintiff assigns this ruling as reversible error. This testimony was immaterial, and should not have been admitted, but its admission was probably harmless.

Following McMahon v. Joseph Greenspon's

5. Negligence 121 (2)-Rule of res ipsa loquitur inapplicable on proof of specific acts.

Sons Iron & Steel Co. (Mo. App.) 267 S. W. | den of proof, and hence not reversible error, 83, the Commissioner recommends that the though rule against referring jury to pleadings judgment of the circuit court be reversed for issues involved could have been better avoidand the cause remanded for a new trial as ed, especially where plaintiff was allowed other instructions fully defining issues. between plaintiff and defendants H. Tucker, E. Klein, Jacob Alper, and R. S. Kahn, and that the verdict be retained and judgment held in abeyance as to defendants J. N. Richards and Abe Gordon until the controversy is determined between the plaintiff and the other defendants, and that thereupon judgment be rendered completely disposing of the cause and all the parties thereto.

PER CURIAM. The foregoing opinion of SUTTON, C., is adopted as the opinion of the

court.

The judgment of the circuit court is accordingly reversed and the cause remanded to be proceeded with as recommended by the Commissioner.

DAUES, P. J., and BECKER and NIPPER, JJ., concur.

CARPENTER v. BURMEISTER.
(No. 18863.)

(St. Louis Court of Appeals. Missouri.
June 18, 1925.)

1. Master and servant 116(2) Loose

Where plaintiff offers proof of, and asks of res ipsa loquitur does not apply, though peinstructions on, specific acts of negligence, rule tition alleges general negligence.

6. Appeal and error 882 (12) - Instruction that negligence is not presumed held not bad, though petition alleged general negligence.

Instruction that negligence cannot be presumed, but that plaintiff must prove that defendant was negligent in particular manner alleged, held not bad, though petition alleged general negligence, in view of plaintiff's offer to prove, and requested instruction on, specific negligence.

7. Appeal and error 882(3)—Plaintiff must adhere to theory of his instructions on appeal, though petition sets up different theory.

Plaintiff requesting instructions on theory that defendant was required to exercise only reasonable caution and care, and making no objection to defendant's instruction requiring proof that defendant was guilty of "negligence and carelessness," must adhere to such theory on appeal, though petition alleged that defendant was required to exercise highest degree of

care.

8. Appeal and error 1026-Error must be prejudicial to losing party to work reversal. To work reversal, error must be harmful nical objections are not to destroy substantial justice.

sheathing boards for use of bricklayers held and prejudicial to losing party, and hypertech

temporary "scaffold."

Sheathing boards laid on permanent joists inside building for use by bricklayers held temporary "scaffold," within Rev. St. 1919, § 6802, requiring that scaffolds used in erection of building be such as to insure safety of persons working on or passing under them, though they were subsequently to be nailed down permanently on such joists.

[Ed. Note.-For other definitions; see Words and Phrases, Second Series, Scaffold.]

2. Trial 233 (3)—Instruction held not erroneous as referring jury to petition or plead ings.

Instruction that "alleged negligence cannot be assumed or presumed," but that plaintiff must prove that "defendant was negligent in particular manner alleged," held not erroneous as referring jury to petition or pleadings. 3. Trial

233(3)-Rule against reference to pleadings for issues involved inapplicable to instruction on burden of proof.

Rule that instruction may not refer jury to pleadings for issues involved does not apply to instruction merely on burden of proof.

4. Trial 296(7)—Instruction held not re

versible error as referring jury to pleadings, especially in view of other instructions.

Instruction that "alleged negligence cannot be assumed or presumed," but that plaintiff must prove that "defendant was negligent in particular manner alleged," held one on bur

Appeal from St. Louis Circuit Court; George A. Mix, Judge.

Action by Richard Carpenter against William A. Burmeister. Judgment for defendant, and plaintiff appeals. Affirmed.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for appellant.

Fordyce, Holliday & White, of St. Louis, for respondent.

DAUES, P. J. This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant because of defendant's negin favor of the defendant, from which the ligence. There was a verdict and judgment plaintiff has appealed.

The petition relies upon the res ipsa loquitur doctrine, and pleads that the defendant failed to comply with the provisions of the statute on scaffolding (section 6802, Revised ceived injuries. The answer is a general deStatutes Missouri 1919), whereby plaintiff re

nial.

There is little dispute on the facts. It appears from the record that the defendant was a bricklaying contractor, and had a num

(273 S.W.)

"All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by."

This statute requires a building to have and maintain scaffolds as to insure the safety of persons working upon same or passing under it. These sheathing boards, though subsequently to be used permanently, and though laid on permanent joists, merely constituted at that time a temporary scaffold for the bricklayers. That such was a scaffold within the meaning of the statute we have no doubt. Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934; Deiner v. Sutermeister, 266 Mo. 505, 178 S. W. 757; Most v. Goebel Const. Co., 199 Mo. App. 336, 203 S. W. 474.

ber of bricklayers engaged in erecting a certain brick building. Four walls had gone up to a point where the bricklayers were "topping off"; that is, they were placing the last course on the top of the wall. There were no floors or partitions within the building, but joists had been laid for the first and second floors and for the third floor, or roof. The joists were uncovered, except that on the top joists for the roof sheathing boards had been laid to serve as a scaffold for the bricklayers. This platform, or scaffolding, made with loose sheathing boards, was five or six feet in width, and ran approximately the length of the west wall. Bricks and mortar were being deposited upon the boards, and the bricklayers would stand upon same to do their work. Plaintiff was a hodcarrier; wheeling bricks from the outside through the door in the west wall and up to a hoist. The hoist would then convey the bricks up to the platform or scaffold where the bricklayers were working. Plaintiff adduced proof that the board next to the wall was left away as much as three inches; that the boards were allowed to lap, and one witness stated that "it looked like there must have been a board moved away right over the door." At any "This action is based upon the alleged negrate, it is undisputed that the sheathing ligence of the defendant, viz., plaintiff claims boards were not nailed down, but were used that the defendant was negligent and careless at the time solely as a platform for the brick- in certain particulars. That alleged negligence layers. These boards were the regular cannot be assumed or presumed, but the plainsheathing boards for the roof, and were to tiff, before he can recover, must prove by the be used thereafter by the carpenters as the preponderance or greater weight of the evidence that the defendant was negligent in the particboards for making the permanent roof, but ular manner alleged. If he has failed to meet in order to save labor the boards were haul- this burden, he cannot recover. If in your judged to the roof joist and used as a platform ment the weight of the evidence is evenly balfor the bricklayers, and plaintiff, while mov-anced or preponderates in favor of the defending a wheelbarrow of bricks through the door of the west wall, was struck by a brick falling from above and was injured. At that time the bricklayers were at work on the scaffold immediately above him on the third floor. One witness testified for plaintiff that he saw the brick fall from above the door and strike the plaintiff on the head.

Plaintiff relies upon but one assignment of error, and that is that the court erred in giving defendant's requested instruction No. 4. The respondent insists that the defendant's demurrer to the evidence should have been sustained, because there was no proof of any violation of section 6802, supra, and hence the propriety of defendant's instruction No. 4 need not be considered.

[1] The argument is made by respondent that, since the sheathing boards used by the bricklayers were part of the permanent building, laid on the third floor joists inside of the building where they were to be ultimately nailed down permanently, therefore such sheathing boards could not be considered false work within the meaning of the statute, and that the statute did not apply in any event. Section 6802, Revised Statutes Missouri 1919, is as follows:

[2] Instruction No. 4 is as follows:

ant, then your verdict must be against the plaintiff, and in favor of the defendant."

It is said that this instruction is erroneous, first, because it refers the jury to the pleadings, and, secondly, because it requires a finding of specific negligence, although plaintiff's petition and instruction No. 1 is based on general negligence; that the instruction erroneously directs that "negligence cannot be assumed or presumed" under the facts and circumstances of this case.

[3] It will be observed that the instruction does not refer to the "petition" nor to the "pleadings," but refers to the negligence “in the particular manner alleged,” etc. However, as we view this instruction, it is one upon the burden of proof. It has been held that it is not error in all cases and under all circumstances to refer the jury to the pleadings in an instruction, though, of course, the rule is well settled that an instruction may not refer the jury to the pleadings for the issues involved. This is the general rule. When the instruction is one merely on the burden of proof, this rule has no application.

[4] In Williams v. Tucker (Mo. App.) 224 S. W. 21, this principle is conceded in the majority opinion, and is exhaustively dis

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