In Hill v. Ritchie, 90 Vt. 318, 98 Atl. 497, L. R. A. 1917A, 731, involving a principle of subrogation similar to the principle in the

case at bar, the court said:

as for the money advanced to pay the mortgage. This hardly distinguished this case from the case at bar in principle."

We think that plaintiff was entitled to the relief granted. As pointed out, defendant West will be in no worse position than he was. To deny plaintiff the right to be subrogated in the circumstances would be manifest injustice, and would result in giving defendant West a far better security than he had before the plaintiff paid off the Quick notes

and tax liens.

[6, 7] Respondent West makes the point "The facts reported are equivalent to a finding that the plaintiff paid the lien note at the that plaintiff's hands are unclean in that it request of Flynn, and upon an understanding charged the Blantons usurious interest. The with Flynn that he was to have a new security charge is bottomed on the fact that plaintiff on the property released. So the plaintiff was not an intermeddler or a mere volunteer, and his took five $500 notes due in five years, drawpayment of the first lien did not necessarily ing 7 per cent., and paid out only $2,375, regive priority to the second. If the payment was taining the 1 per cent. as discount. Whether made under a material and excusable mistake of this constitutes usury concerns the Blantons, fact, and no rights of innocent parties have intervened, the first security will be kept alive as and the plea of usury may not be invoked by It a stranger to the transaction which is chargagainst the holder of the subordinate lien. Hill v. Tayis distinctly found that the plaintiff had no ed to be tainted with usury. knowledge of Flynn's mortgage to Ritchie when he paid the lien note, and supposed that the lor, 125 Mo. 331, 28 S. W. 599; Real Est. Synd. v. Sims, 179 Mo. 679, 78 S. W. 1006; property was free from other incumbrance." Coleman v. Cole, 158 Mo. 253, 59 S. W. 106; Cable & Reed v. Duke, 132 Mo. App. loc. cit. 338, 111 S. W. 909; 2 Pomeroy's Equity JuBut if the conrisprudence (3d Ed.) § 937. tract between the Blantons and plaintiff be usurious, it would not defeat subrogation Corby et al. under the facts of this case. v. Bean, 44 Mo. 379; Patterson v. Birdsall, 64 N. Y. 294, 21 Am. Rep. 609; Wilkins v. Gibson, 113 Ga. 31, 38 S. E. 374, 84 Am. St. Rep. 204.

The wholesome rule of justice which prevailed in Tradesmen's Bldg., etc., Ass'n v. Thompson, and Hill v. Ritchie, supra, is supported in our own and other states by many cases clearly showing that the object to be obtained is substantial justice, and such application is universally made. Banking Co. v. See, 146 Mo. App. 269, 130 S. W. 354; Davenport v. Timmonds, 157 Mo. App. 360, 138 S. W. 349; Sears et al. v. Patterson, 54 Mo. App. 278; Moore v. Lindsey, 52 Mo. App. 474; Capen v. Garrison, 193 Mo. 335, 92 S. W. 368; Wolff v. Walter et al., 56 Mo. 295; . 126, Berry v. Stigall, 253 Mo. 690, 162 S. W. 50 L. R. A. (N. S.) 489, Ann. Cas. 1915C, 118; Fowler v. Fowler, 78 Mo. App. 334; Demeter v. Wilcox, 115 Mo. 634, 22 S. W. 613, 37 Am. St. Rep. 422; Straman v. Rechtine, 58 Ohio St. 443, 51 N. E. 44; Coal Co. v. King, 193 Ala. 438, 69 South. 549; Whiteselle v. Loan Co. (Tex. Civ. App.) 27 S. W. 309; Sidener v. Pavey et al., 77 Ind. 241; Bruse v. Nelson, 35 Iowa, 157.

The learned chancellor below made a separate finding of law and fact, and this finding is set out in plaintiff's additional abstract of the record. We quote from his finding on the law:

"In Sidener v. Pavey, 77 Ind. 241, a general creditor who paid a first mortgage at the request of the mortgagor and upon his representation that there was no other incumbrance on the land and where the mortgage was released on the faith of such representation and a new mortgage taken, the creditor who advanced the money to pay the mortgage was held to be entitled to subrogation against the holder of a judgment lien which was junior to the mortgage which was paid and prior to the new mortgage taken by the creditor, who advanced the money to pay the old mortgage. The case is parallel with the case at bar, except for the sole circumstances that the party advancing the money was a gen eral creditor, and desired by paying the mortgage to get security for his existing debt as well

It follows from the foregoing that the decree below should be affirmed, and it is so ordered.

STURGIS, P. J., and FARRINGTON, J., concur.

HOLLAND BANKING CO. v. SPENCER et al. (No. 2193.) Missouri. (Springfield Court of Appeals. March 11, 1918.) SUBROGATION_23(2) — TRUST DEEDS-DISCHARGE OF LIEN.

Where a bank, on false representations of grantor in trust deed, that two subsequent trust lienors had consented that their liens should be subject to a new trust deed, which should be a first lien, loaned money to pay amounts due under the first trust deed, it was entitled to subrogation to rights of the first trust lienor, as against holder of third mortgage, whose rights were not prejudiced by the transaction.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Holland Banking Company against George W. Spencer and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Watson & Page, of Springfield, for appellants. Mann, Todd & Mann and Barbour & McDavid, all of Springfield, for respondent.

BRADLEY, J. This is a companion case | port the verdict for plaintiff, only plaintiff's eviwith State Savings Trust Company v. Spenc-dence must be considered. er et al., 201 S. W. 967, decided at this term 2. MASTER AND SERVANT OF VEHICLES-PLEADING of our court, and to which case reference is made for the facts and the law as we see

FICIENCY.

329-COLLISIONS OWNERSHIP-SUF

A petition alleging injuries and damages in collision between a motorcycle and an automotomobile to be driven in a careless manner, and bile, charging that defendant permitted the authat defendant's agent was operating the automobile with defendant's permission, was sufficient allegation of ownership and of the scope demurrer was overruled and defendant then anof the agent's authority, especially after general swered.

3. PLEADING →433(2) — REQUISITES — Suf-
FICIENCY-PETITION.

judgment if, after allowing all reasonable in-
The petition is sufficient after verdict and
tendments in its favor, it notifies the defendant
with reasonable certainty of the character of
the action and the issues he is to meet, in view
of Rev. St. 1909, § 2119, prohibiting reversal
after verdict for defect in pleading by which the
parties are not prejudiced.
4. TRIAL 83(1)—OBJECTION TO EVIDENCE-
GENERALITY.

it affecting the present case. These cases were consolidated below and tried together, but separate decrees were rendered, separate motions for new trial filed, and separate appeals prosecuted here. Abstracts and briefs, however, were consolidated, and both cases were argued together in this court. The facts affecting plaintiff in this case do not differentiate it in principle from the State Savings Trust Company Case. Plaintiff can celed the Carter note amounting on June 2, 1914, to $668.60, and satisfied the record of the trust deed securing said note. It paid taxes amounting to $139.44. It did this in good faith at the instance of the Blantons. Defendant West contends that plaintiff released the Carter lien and paid the taxes at the instance of the State Savings Trust Com- the ground that it did not tend to prove any of Objection to the admission of evidence on pany, but the record does not support this the issues is general and unavailing if the evicontention. It was at the instance and re-dence is competent for any purpose in the case. quest of the Blantons that the negotiations 5. MASTER AND SERVANT 329 ACTS OF were begun which resulted in the creation of new trust deeds, and the release of old ones. Plaintiff is merely asking to be permitted to stand in the same shoes it stood in on June 2, 1914, with reference to the Carter lien and the taxes it paid. It surrendered its superior liens so far as West's lien is concerned, in good faith, and like the State Savings Trust Company was grossly imposed upon by Blanton. Plaintiff was in good faith, free from negligence, released its liens, and to deny the right it seeks in the case at bar, would be to deny justice, and this a court of conscience will not do, when the giving of justice to one does not infringe upon the rights of others. As pointed out in the State Savings Trust Company Case, Mr. West's rights were not changed.

The decree in this case and in the State Savings Trust Company Case in effect create liens superior to defendant's, but the amount is exactly what the Quick and Carter liens plus the taxes, with interest would amount to, had no change been made, and nothing paid.

Judgment should be affirmed, and it is so ordered.

AGENT-VEHICLE COLLISIONS-EVIDENCE
ADMISSIBILITY.

Where plaintiff alleged that defendant permitted an automobile to be driven by his agent so as to strike plaintiff, proof of the ownership of the automobile was admissible as tending to show that defendant did permit such driving, though it was not specifically alleged that defendant owned the automobile.

6. APPEAL AND ERROR ~1050(1)—HARMLESS ERROR.

In an action for injuries and damages in collision of vehicles on the street, defendant was not prejudiced by being refused permission to say whether the driver of the automobile was using it without defendant's knowledge or consent, where he had previously testified that it was without his knowledge or consent. 7. TRIAL 47(1)-OFFER OF EVIDENCE-OB

JECTIONS.

In an action for damages in collision between motorcycle and automobile, where defendant's evidence of how the automobile axle was bent, offered as tending to show contributory negligence of plaintiff, was excluded, and defendant made no offer of the evidence showing what it would be, sustaining the objection was not er8. MUNICIPAL CORPORATIONS 705(2) STREETS SPEED OF TRAVEL DUTIES OF DRIVERS.

ror.

One operating a motorcycle or automobile about to meet another vehicle must reasonably turn his own vehicle to the right of the center of the street so as to pass without interference. 1064(1)-HABMLESS

STURGIS, P. J., and FARRINGTON, J., 9. APPEAL AND ERROR
ERROR-INSTRUCTION.

concur.

EDWARDS v. YARBROUGH.

(Springfield Court of Appeals.

March 11, 1918.)

(No. 2143.) Missouri.

While the driver of a motor vehicle about to meet another such vehicle need not turn to the right unless it is practicable, failure to qualify an instruction stating the duty to turn to the right by the words "if practicable" was not prejudicial error, in the absence of evidence that it would at the time of the accident have been impracticable to turn to the right.

1. APPEAL AND ERROR 930(1) — SCOPE OF 10. MUNICIPAL CORPORATIONS REVIEW PRESUMPTIONS FINDINGS

FACT.

-

OF

705(2) STREETS CHARACTER OF USE-DUTIES OF DRIVERS.

In an action for injuries and damages in Where two motor vehicles approach each motorcycle and automobile collision, on appeal other on a city street, if it is impracticable for upon the ground that the evidence did not sup- one of them to turn to the right, and he must

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

otherwise cross the path of the other, it is his [ feet on his right where he could have and duty to stop.

swered over, we think the petition sufficient, your car out on the occasion spoken of? A. No, to support the judgment. sir."

[3] The petition is sufficient after verdict and judgment if, after allowing all reasonable intendments in its favor, it notifies the defendant with reasonable certainty of the character of the action and the issues he is to meet. Section 2119, R. S. 1909; Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155; Hoover v. Fulton, 177 Mo. App. loc. cit. 99, 163 S. W. 292.

It clearly appears that had defendant answered the question about which complaint is made it would have been no more than repetition, as he had previously stated that he did not know at the time that Patterson had the car out, and that Patterson was driving the car on the occasion in question for himself (Patterson) and not for defendant. Nothing more could have been covered by an

[4] The Admission and Exclusion of Evi-swering the question. dence. A careful examination of the record [7] Defendant sought to prove by a witness discloses that substantially all the evidence admitted for plaintiff over defendant's objection and exception upon which error is predicated relates to the ownership of the automobile, and some questions by the court endeavoring to make more clear the situation at the time of the collision. The ob

jection to proof of ownership was on the ground that such evidence did not tend to prove any of the issues. This is a general objection, and is unavailing if such evidence was competent for any purpose of the case. Reeves v. Lutz, 179 Mo. App. 61, 162 S. W. 280; Crandall v. Greeves, 181 Mo. App. 235, 168 S. W. 264; Tanner v. Railroad Co., 186 Mo. App. 264, 172 S. W. 443; Hafner Mfg. Co. v. City of St. Louis, 262

Mo. 621, 172 S. W. 28.

[5] No objection was made on the ground that ownership was not pleaded, but if that specific objection had been made, and the ruling had been adverse as it was, still we

the manner in which the axle of the automo-
bile was bent on the theory that this evidence
would tend to prove defendant's plea of con-
tributory negligence. Plaintiff objected on
the ground that any damages to the automo-
The trial court
bile was a collateral issue.
sustained the objection and defendant except-
ed, but made no offering tending to show the
manner in which the axle was bent, and ab-
sent an offering showing what the evidence
would be, the action of the trial court in sus-
taining the objection is not reversible error.
Bowman v. Coal and Mining Co., 168 Mo.
App. 703, 154 S. W. 891; Salts v. Insurance
Co., 140 Mo. App. 142, 120 S. W. 714; Louis
V. Louis, 134 Mo. App. 566, 114 S. W. 1150.
We cannot assume that the witness would
have given evidence tending to support de-
Defendant was entitled to offer all the evi-
fendant's plea of contributory negligence.
dence he had which tended to support his
defense, and this question was proper and
the court should have permitted the witness

think such ruling under the petition would to give such evidence if it would tend to

have been proper as proof of ownership of prove defendant's defense; yet when in such the automobile was evidence tending to circumstances the court rules adversely, and prove plaintiff's allegation that defendant the party seeking the evidence makes no ofpermitted the automobile to be driven by fering as to what that witness would testify his agent at the time and in the manner al-on that point, but merely excepts to the rulleged.

[6] As to the exclusion of evidence about which defendant complains, the following appears:

"Q. On this particular occasion if he was using your car, it was without your knowledge and consent and he was not on a trip for you, but on his own business?

"Mr. Reeves: I object, calling for a conclusion of the witness.

"By the Court: The court will sustain the objection, and defendant saved his exception."

This redirect examination occurred at the close of the defendant's evidence, after he had been examined and cross-examined. On direct examination of defendant these questions and answers among others appear:

ing of the court, there is in fact nothing of substance for review.

[8] We have carefully examined the instructions given for plaintiff, and those given and refused for defendant, and we think that the issues were fairly submitted when given instructions for both sides are considered together. Defendant's objection to plaintiff's instruction No. 1 is that it is too general and broader than the pleading, that it does not define the correlative duty of plaintiff to use the highest degree of care as plaintiff was driving a motorcycle, and was therefore required to exercise the same degree of care that defendant's agent was required to exercise. The instruction contains this language of which defendant complains:

"The court instructs the jury that under the law of this state any person owning, operating, or controlling an automobile running on, upon, along, or across the public roads shall use the highest degree of care."

"Q. Did you know he had the car out at that time? A. No, sir; not until afterwards, not until after it was done; I went up to where the collision was. I think Patterson had made a drive or two for me before the collision. That is my best recollection. Whenever I had a drive to make, whenever there was a trip, he would take the car and bring back the money The point made in substance is that the and I paid him one-third.. Q. Who was he driv- words "or motorcycle" should follow the ing your car for on this occasion? A. For himself. word "automobile" in said instruction, or Q. Did you have any knowledge or did you give him your consent for him to have that the correlative duty devolving upon

plaintiff be presented to the jury in some ap- I would have told the jury in substance that propriate way. The part quoted is the first of the instruction. Further on and in the next sentence therein we find:

"And you are further instructed that whenever a person operating a motorcycle or automobile shall meet on the public highway any other person riding or driving on said highway, the person so operating such motorcycle or automobile shall reasonably turn the same to the right of the center of such highway so as to pass without interference, that is, each party shall meet and turn to the right."

We think this last-quoted portion of the instruction fairly presented the duty of plaintiff under the circumstances.

if Arley Patterson was using the automobile for his own business or pleasure that plaintiff could not recover. In view of the evidence this instruction was properly refused. Defendant, who conducted a general store and livery stable, had employed Patterson to drive the automobiles used in his livery business. Patterson's pay was one-third of the fare received. Patterson had made a drive with this automobile, carrying passengers, just prior to the day of plaintiff's injury, and on that drive the automobile had gotten out of repair. Patterson had repaired the machine, [9] The point is further made that one is and was trying it out at the time of the colnot required to turn to the right unless such lision. In a sense, therefore, Patterson was is practicable. This might be true in the at the time of the collision driving the maabstract, and the instruction would be more chine on his own business, as his income dein conformity with McMahon v. Express Co., pended on the amount of fare he took in, and 132 Mo. 641, 34 S. W. 478, if some qualify. this depended on having machines ready; ing phrase such as "if practicable" had been but also he was equally on his master's busiinserted, but the failure to so qualify this ness, because the income of the master was instruction is not reversible error, because dependent upon the automobiles being in rethere is no evidence that it would have been pair when needed. "Trying out" the maimpracticable to turn to the right; rather is chine after repair was, of course, necessary the evidence that it was very practicable to to determine if it was in proper running conhave turned to the right as there was noth-dition. This instruction does not embrace ing to prevent such turning.

[10] We can conceive of no condition that would justify a driver of a motor vehicle when meeting any other vehicle, motor or otherwise, in turning across the path of the approaching vehicle if that vehicle is approaching on its proper side. If in such circumstances it should be impracticable to turn to the right, then it is his plain duty to stop.

the feature of the owner's business that was necessarily included in trying out the machine and was properly refused.

We think that this disposes of all assignments of consequence; and, on the whole, we think the verdict and judgment was for the right party, and should be affirmed, and it is so ordered.

STURGIS, P. J., and FARRINGTON, J.,

[11] Defendant's refused instruction No. 6 concur.