Mo.) (252 S.W.) Charles W. Bates, T. E. Francis, and Nor-rections of the public roads are not clearly toni, Moore, Breaker & Green, all of St. given, but it will suffice to say that Natural Louis, for appellant. Bridge road runs practically east and west. Kelley, Starke & Moser, of St. Louis, for From the south comes Kienlen avenue, which respondent. terminates upon its entry into Natural Bridge road. Shortly east of the juncture of Kienlen avenue and Natural Bridge road, there runs, from said last road, Jennings road toward the north. So with a slight jog east at the intersection, Kienlen avenue and Jennings road form a continuous road, running practically north and south. This intersection is just west of the west line of the city of St. Louis, in St. Louis county. The rail GRAVES, P. J. Action for personal injuries. The defendant Rolla Wells is and was the receiver of the United Railways Company of St. Louis, and was operating the Plaintiff railway system of such company. was injured in a collision between a street car (operated by defendant) and the automobile in which he was riding at the time. The negligence charged is thus stated in the pe-way tracks from Ferguson to St. Louis cross tition: "That defendant negligently operated said street car at a high and dangerous rate of speed, to wit, at more than 15 miles per hour; that defendant negligently failed and omitted to sound a timely and sufficient warning of the approach of said car. "Plaintiff further states that at the time said street car was approaching the automobile in which plaintiff was riding defendant saw, or by the exercise of ordinary care would have seen, plaintiff and said automobile in a position of imminent peril of being struck by said street car, in time thereafter, by the exercise of ordinary care, with the means at hand and with reasonable safety to the passengers and other occupants of said street car, to have either stopped or slackened the speed of said car so as to avoid striking said automobile and injuring plaintiff, but that defendant negligently failed to do so." From the foregoing it will be observed that the petition counts upon (1) simple commonlaw negligence in two respects, and (2) that form of negligence denominated as the last As to the chance rule, or humanitarian rule. common-law negligence it is first said that the car was run at a high and dangerous rate of speed, and, secondly, that there was a failure to give notice of the approach of the car. The answer, after admitting the receivership, and that Wells was operating the railway, proceeds as follows: (1) A general denial, and (2) plea of contributory negligence stated in three slightly different paragraphs. Reply was a general denial. The case for plaintiff was submitted by an instruction on negligent speed solely. So the humanitarian rule, and failure to warn, drop out of the case. Upon trial before a jury plaintiff had a verdict for $13,500 upon which judgment was duly entered, and from this judgment defendant has appealed. Alleged errors and the pertinent facts are left to the opinion. I. The situs of the accident and incident facts become material, as it is urged that plaintiff made no case for the jury. The accident occurred at about 6:30 to 7 o'clock on January 8, 1920. A snowstorm was in progress at the time, making it difficult to see objects at any great distance. The exact di the intersection of these three roads on an The two were strang veered to the east over defendant's tracks for the purpose of entering Jennings road running northward. In the act of crossing, the rear of Kaemmerer's car was struck by the defendant's street car coming from the northwest and going to the city of St. Louis. In the collision the plaintiff was very seriously injured. The foregoing are the general facts. The particular facts we leave to the opinion. [1] II. It is insisted that the demurrer to the evidence should have been given. If so, then it must either appear (1) that defendant was guilty of no negligence, or (2) that plaintiff's contributory negligence barred his reSingular to say, the negligence covery. charged to defendant, i. e. negligent rate of speed, under the circumstances shown, is not controverted in a brief containing twelve much authorities. elaborated points and | What defendant refuses to discuss, upon such vital issue, we may take as a conceded fact. Especially is this true where the weather conditions (a blinding snow), the thickly populated community (shown by the evidence and the photographs), the amount of automobile travel at the crossing, all bespeak the utmost caution of defendant's agents in approaching the crossing under the shown circumstances. But we need not discuss this, or go into further details, because the only matter relied upon in the brief is the contributory neg ligence of plaintiff. The conduct of the case | cross; that when his car was on the first here is a concession of defendant's negligence, rail he saw the light of the street car when as to the rate of speed. 75 feet away; that he put on the gas and By the evidence the street car was running 15 to 20 miles per hour at this crossing, and even after the collision ran far beyond the passenger station, where it was supposed to stop. This, too, in the face of the fact that there were a number of passengers there to take the car. To say the least, plaintiff did not participate in the negligence of Kaemmerer, if Kaemmerer was negligent. Kaem. merer was in the front seat and in better position to see than was plaintiff. [2] III. The alleged contributory negli- had gotten so far over that the street car gence of the plaintiff is predicated upon some struck the rear portion of the machine where answers made by plaintiff during his cross-plaintiff was seated; that the slippery street examination, in this: That the plaintiff said made his car skid some, or otherwise he that his "mind wasn't on the street car. I would have cleared the track. Another inwasn't running the machine. I wasn't inter-stant would have put his machine in the clear. ested in the street car. My mind was on my order where I was going. I had no business to be"-meaning interested in the street car. The place referred to in these answers is material. The witness suffered from loss of memory. Both he and Dr. Tiernan so testified. Among his many injuries he suffered a severe concussion of the brain, and fracture of the skull. So severe was this that Dr. Tiernan says for practically two weeks he was almost wholly unconscious, and for a month was unconscious most of the time. It is true that both parties were familiar After leaving the hospital (he was there 4 or with the crossing, but the evidence does not 5 weeks) and upon his arrival home, he went show that they were advised that a car would to his store. This was some time after reach- be so run on such an evening as to be unable ing home. At the store for a long time he to stop at the station for its prospective pascould not recall the prices of his goods. He sengers. It is true that there was a downhill was in the grocery and meat market busi- | grade at this point, but this should have been ness. He says that the last thing that he a warning to the motorman to have his car can recall was seeing the little street railway slowed down and under control before he station as they passed it. This would make reached the crossing. This was a stopping him some 20 feet or thereabout south of Nat-place, and the driver of the automobile and ural Bridge road. He testified that he can- his passenger had the right to assume that not recall anything after they passed this the street car would be running at decreased point. Other evidence, that of his physician, speed over the crossing in approaching the strengthens the view that plaintiff stated the station or shelter house for passengers. All facts truthfully. The answers given above facts considered, we cannot declare either must therefore have reference to the things Kaemmerer or plaintiff guilty of negligence before the passage of this station house. So as a matter of law. It was at least a questhat even if there was a duty upon him (a tion for the jury. The demurrer to the evimere passenger) to look and listen, these an-dence was properly overruled. swers, having reference to a place far distant IV. With the foregoing ruling upon the defrom the actual crossing, are not so damaging murrer to the evidence the crux of this case to plaintiff's case. It must be borne in mind is passed. The cases urged and relied upon that from the point named the car had to go by defendant are not in point on the facts, some distance to reach Natural Bridge road, and we have omitted a discussion of them. and then jog east and go to the center of the Appellant ignores the weather conditions, as road before reaching the tracks. It should well as the passenger shelter or station, callalso be remembered that buildings obstructed ing for a slowing up of the car at this crossthe view of the railway line, until the auto- ing. These and other conditions are absent mobile was practically in Natural Bridge from the cases relied upon by the appellant. road. He said that they were going slow, and [3] It is next urged that the court erred in that Kaemmerer appeared to be a careful driv-permitting plaintiff to testify that Kaemmerer. With this explanation of his evidence, we er was driving carefully, because of the will take the further facts. Kaemmerer said weather conditions. The fact that Kaemmerthat his automobile was a closed top Max-er was driving carefully was competent upon well passenger car; that the curtains were the defendants' charge that plaintiff was negup, but that there were isinglass windows in ligent. This because one in an automobile the curtains through which you could see. with a reckless driver might be called upon. But this testimony as well as that of others to exercise more precautions for his own tends to show that the snowstorm was such safety. that you could not see a headlight of a street [4] Nor is there substance in the objections car more than 100 feet. The range of the to Dr. Tiernan's evidence. The doctor ataverage evidence is even less than 100 feet.tended plaintiff from the beginning. PlainKaemmerer says that he slowed down his ma- tiff was carried from the wreck to Dr. Tierchine to four or five miles per hour, and look-nan's office, which was near the accident, and ed in both directions before undertaking to | he continued with his patient to the day of (252 S.W.) trial. He testified that the bowels would not examined the plaintiff to determine his conmove without the use of artificial means, and dition in regard to nervousness. He was a being asked what caused that condition, he specialist in such diseases. The hypothetical said: question covered the facts of the case and closed thus: "That was caused by what is called an impaired peristalic, caused by an injury, an injury to the brain." "Take all those things into consideration, Doctor, and assume what you found in making your examination, I will ask you what, in your opinion, he is suffering from at the present time, or rather, at the time you made the ex amination." The objection to this question was: "I object to that as incompetent and calls for a conclusion of the witness and invades the province of the jury." The objection was overruled, and the witness answered thus: The doctor had already testified to the injuries to the brain. He was the attending physician and was testifying to facts coming under his observation. No hypothetical question was propounded to him. If he knew, and he said that he did, he could testify as to the cause of the condition. We are cited to a line of cases wherein the doctor was not the attending physician, and who was testifying purely as an expert upon hypothetical questions. The cases are not in point. These cases rule that such experts cannot invade the province of the jury by stating that in "In my opinion, he suffered a severe concustheir judgment the act of the defendant oc- sion of the brain; a general shock to his nerv. casioned the injury. Here the doctor (an ex-brain, and his system is suffering from the efous system; actual physical damage to his pert because of his training) does not express fect of those injuries to his brain and nervous an opinion such as is condemned in the line system in general." of cases cited. He merely states as a physician that the condition of the bowels was produced by an injury to the brain. The fact for the jury to find was whether or not the injury to the brain was occasioned by the act of defendant. This doctor was merely testifying to what was the result of that injury. [5] But aside from all this, the only objection to this testimony below was, "I will object to that as calling for a conclusion." The objection now urged is that it invaded the province of the jury. No such objection was made on the trial. Parties cannot shift their positions. As no such objection (now urged here) was made on the trial, it was waived and cannot be urged now. Gaty v. United Rys. Co., 286 Mo. loc. cit. 519, 227 S. W. 1041. V. It is next urged that the court erred in permitting Dr. Tiernan to testify that the bloody urine passed by plaintiff evidenced injury to the bladder. The objection was that such was not pleaded. The condition of bloody urinations or hematuria were pleaded as one of the results of the injuries received. The objection is not well taken. This concluded the matters objected to by counsel. It is not now urged in the brief. We mean the objection to the long hypothetical question. Just following we have the question which brought the answer now criticized in the brief, and the question and an swer read: "Doctor, again assuming those facts I mentioned and taking into consideration the amount of time that has passed since the date of the injury or up to the time of your examination, the 8th of January, 1920, and your examination was made on the 12th of May, 1921, I wish you would tell the jury whether, in your opinion, the injury to his nervous system is or is not a permanent one. A. In all probability there is permanent damage to his nervous system." To this question and answer there was no objection at all, yet it is urged here that the answer was improper "because this answer shows on its face it does not involve the element of mental certainty on the part of the physician, as is essential." This in face of the fact that counsel did nothing below to remedy what he now says is wrong. No mo Next it is urged that the court erred in tion to strike out this testimony was made. permitting Dr. Tiernan to testify to the nerv- The objection made here for the first time ous condition of the plaintiff. The doctor cannot be considered. There are other ob had treated the plaintiff from the beginning,jections to testimony, which we have examinand not only testified to his nervous condi- ed; but they are wholly without merit. tion, but also as to the matter of its permanency. There is no substance in the contention. Other objections to Dr. Tiernan's testimony are just as barren of merit. [6] It is urged as error that Dr. Hoge was permitted to make this answer in response to a question: "In all probability there is permanent damages to his nervous system." Dr. Hoge was testifying as an expert. He had [7] VI. Objection is made to plaintiff's instruction on the measure of damages. It is only to the latter part thereof to which objection is made. This portion reads: "And for such permanent injuries to plaintiff's left shoulder, if any, his left fourth and fifth ribs, if any, and his nervous system if any, which the jury may find from the evidence were occasioned by his injuries, if any, etc." The (Mo. MISSISSIPPI VALLEY TRUST CO. v. BEG- I. Contracts 95 (3)-Character of threats The objection is that the matter of permanent injury to the nervous system should not have been submitted, because there was no evidence upon which to submit it. The testimony partly lies within the answer of Dr. Hoge, as follows: "In all probability there is permanent damage to his nervous system." There was other evidence of nervous trouble up to and including the date of trial. inclusion of this element of permanency in the instruction in the form in which it was stated is not erroneous. Squires v. City of Chillicothe, 89 Mo. loc. cit. 231, 1 S. W. 23; Burns v. Polar Wave Ice Co. (Mo. App.) 187 S. W. loc. cit. 148; Chapman v. K. C. Railway Co. (Mo. App.) 217 S. W. loc. cit. 625. Dr. Hoge's testimony is as positive as tes-2. Bills and notes 104-Threatened suit timony of this character can be. He had thoroughly examined this plaintiff and says that in "all probability" the nervous trouble is permanent. This was ruled to be sufficient in the Squires Case, supra. This contention of appellant is therefore denied. [8] VII. Complaint is made of the court having refused two instructions offered by defendant upon the issue of contributory negligence. Suffice it to say that the court gave defendant three instructions upon this issue, and those given sufficiently cover the issue. [9] The next contention is that the verdict is excessive. This matter is so faintly urged that we really should not further lengthen this opinion. The contention is made that the erroneous rulings of the court augmented the verdict. We have ruled that there were no errors in these respects. It is urged that there was no permanency in the injury to the nervous system, but the man was so suffering in May, 1921, the date of the trial, and the doctor's evidence that it was in "all probability" permanent. It is said that the verdict is excessive, because "there should be no verdict at all against appellant"; but unfortunately we have been unable to view the evidence in that light. The shoulder bone was broken, and at the trial plaintiff had not recovered full use of the arm; the collar bone was broken; the breast bone was crushed in; the third and fourth ribs on right side protruded out in the back; the third, fourth, fifth, on left side were separated from the breast bone; there was a fracture of the skull and concussion of the brain; lapse of memory followed and continued in a degree to day of trial; he spit blood for a time; he had lost in flesh; his nervous system was injured. The man was but 41 years old, and was engaged in paying business. But we shall not go further in detail, as counsel have only made the points we have above suggested. it being sufficient to constitute legal duress if The character of threats is not material, they deprive the party purporting to be obligated by the contract of his free moral agency, and threats to expose the contracting party or his near relative by blood or marriage to deep disgrace may be sufficient. against son and son-in-law based on his forgéry held duress of father and mother-in-law. Where a man forged the names of defendants, his father and mother-in-law, to notes, and on presentation thereof by plaintiff payee and defendants' discovery of the forgery, payee note to take up the forged notes within one threatened that if defendants did not sign a hour, suit would be brought, based on the forgery, and it would expose the fact of felony in the home of defendants and bring the matter to the attention of the authorities, the note. signed under such circumstances, was void for duress, and it was not material that plaintiff did not threaten to itself criminally prosecute the forger, since it would be presumed that the auforger criminally on learning the facts, nor thorities would do their duty and prosecute the was it material that the alleged forger was in fact guilty of that crime. 3. Contracts 342-Not necessary, In pleadIng duress, to allege the will was overcome. from which duress may arise, it is not necessary Where the substantive facts are alleged to expressly allege that defendant's will was overcome. 4. Contracts 128(1), 342-Agreement not to prosecute for crime may be implied. An agreement not to prosecute another for crime, sufficient to invalidate the contract in consideration of which it is given, need not be express, but is sufficient if implied from all the circumstances, and the evidence of such imagreement was implied, it is sufficient to allege plied agreement need not be pleaded, but, if the that it was impliedly agreed or simply agreed. Graves, J., dissenting. Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge. Action by the Mississippi Valley Trust Company against Edith Ruth Begley, Effie M: Ruth, and George Begley. Judgment for plaintiff, and the last-named defendants appeal. Reversed and remanded. Sam M. Phillips and Abington & Abington, The verdict is not excessive, and the judg- all of Poplar Bluff, for appellants. ment is affirmed. All concur. Jourdan, Rassieur & Pierce and Samuel H. Liberman, all of St. Louis, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes SMALL, O. I. Appeal from the circuit court of the city of St. Louis. Suit on a promissory note filed March 24, 1920. There was judgment for the plaintiff on the pleadings on October 11, 1920, for $69,761.25, the amount of said note (less a voluntary credit of $2,278.20) against defendants Effie M. Ruth and George Begley. The suit was also instituted against Edith Ruth Begley, but no judgment was rendered against her, because she was not served with proThe cess and did not appear in the case. record shows that Edith Ruth Begley was the wife of George Begley, Jr., and defendant Effie M. Ruth was her mother and defendant George Begley was the father of said George Begley, Jr. "Defendants further answering state that on the 1st day of November, 1919, and after the maturity of the first note hereinabove mentioned, but before the maturity of the other notes hereinabove mentioned, the plaintiff, Misthrough its agents, servants, and employees, in sissippi Valley Trust Company, acting by and the scope of their employment and at the county of Butler and state of Missouri, presented all of the above-mentioned notes for payment, and upon being informed by these defendants and their legal representatives that said notes were forgeries, illegally and unlawfully induced, procured and compelled defendant Edith Ruth Begley to sign as surety and comaker and defendants George Begley and Effie M. Ruth to sign their names as indorsers on the back of the note mentioned in plaintiff's petition, under duress, by means of threats to defendants and their legal representatives, to the effect that, in the event Edith Ruth Begley would not sign said note as comaker and surety with her husband, George Begley, Jr., and that defendants, George Begley and Effie M. Ruth would not sign said note as sureties, comakers or in The note sued on was executed by George Begley, Jr., and Edith Ruth Begley as makers, and was indorsed by defendants George Begley and Effie M. Ruth. It was dated St. Louis, Mo., November 1, 1919. It was for $70,000, payable to the order of plaintiff, Mississippi Valley Trust Company, 90 days aft-dorsers, that the plaintiff, at the end of a period er date, with interest from date at 6 per cent, per annum. Demand for payment, protest and notice of dishonor were therein waived by all parties. Defendants Effie M. Ruth and George Begley filed joint and separate answer, which besides a general denial, set up that said George Begley, Jr., forged the name of his wife, Edith Ruth Begley, as maker, and the names of the defendants Effie M. Ruth, his mother-in-law, and George Begley, his father, as indorsers, at Butler county, Mo., to certain promissory notes payable to the Mississippi Valley Trust Company, as follows: One note, dated May 2, 1919, for $10,000, due 6 months after date; one note dated August 18, 1919, for $20,000, due 4 months after date; one note dated September 24, 1919, for $30,000, due 90 days after date; one note dated October 14, 1919, for $10,000, due 90 days after date. of one hour, would institute in the circuit court of Butler county, Mo., an action based upon the forgery of, and upon the forged notes aforesaid, the effect of which proposed action and suit of plaintiff would be to expose and publish broadcast, and particularly in Poplar Bluff, Butler county, Mo., the home of defendants, and their associates, friends, and relatives, the fact that said George Begley, Jr., was guilty of a felony, and which said fact at said time, was known only to the said George Begley, Jr., and the parties to this suit, their agents, and servants, and which threatened acts of plaintiff, its agents, and servants in giving publicity in Poplar Bluff, Butler county, Mo., in the manner and by the means aforesaid, to the fact that George Begley, Jr., was guilty of a felony, would bring knowledge of such fact to the relatives, friends, and associates of his wife, the defendant Edith Ruth Begley, her mother, the defendant Effie M. Ruth, and his father, the defendant George Begley, which result in the great humiliation and disgrace of the defendants The answer alleges that "said purported and each of them, and which said fact was well indorsements of Effie M. Ruth and George known to the plaintiff, its agents, servants, Begley and the signature of Edith Ruth Beg- and employees at the time of the making of ley, were forgeries as aforesaid, and were said threats aforesaid. Defendants state that committed and done by the said George Begas a further result of the institution of said ley, Jr., without the knowledge, consent, or threatened action and the prosecution of the approval of defendant Edith Ruth Begley, same would be to bring knowledge to the ofGeorge Begley, or Effie M. Ruth." The an- ficers of the law of Butler county, Mo., and swer further states that, after forging said particularly the circuit judge, prosecuting atnames upon said notes, the said George Beg-torney and sheriff thereof, that said George ley, J., for a valuable consideration, delivered Begley, Jr., was guilty of a felony under the the same to the plaintiff. The answer then laws of the state of Missouri, and which knowledge on the part of said officers would result contínues as follows: “And which said acts of the said George Beg-in said George Begley, Jr., being convicted of ley Jr., in forging said names upon and deliver- such felony and serving a term of imprisonment ing said note to this plaintiff as aforesaid, con- in the Missouri State Penitentiary, all of which Destitute a felony under the laws of the state of said facts would have been to the great humiliation and disgrace of these defendants. Missouri. fendants further say that their signatures upon said notes as aforesaid is not their free act and deed, but in the matter of placing their signatures thereon, at the county of Butler and state of Missouri, their free will was over "Defendants further state that all the wrongful acts of the said George Begley, Jr., in forging and delivering the said notes aforesaid were done without the knowledge, connivance, procurement, or consent of these defendants, |