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(208 Mo. App. 169)

(232 S.W.)

HANCHETT BOND CO. v. GLORE. (No. 13996.)

(Kansas City Court of Appeals. Missouri. May 23, 1921. Rehearing Denied June 13, 1921.)

1. Action 71-"Determination" of action defined.

The "determination" of an action means, according to legal as well as ordinary use, the coming to an end in any way whatever.

Suit by the Hanchett Bond Company against S. O. Glore. Judgment for defendant, and plaintiff appeals. Affirmed.

Frank W. Ashby and W. W. Davis, both of Chillicothe, for appellant.

Paul D. Kitt, of Chillicothe, for respondent.

TRIMBLE, P. J. This is one of several suits brought by plaintiff against various lot owners to recover of the owners of each lot their proportionate part of the expense of paving a street in Chillicothe, Mo. While all of the suits were pending, a stipulation was 18(1)-Conclusive as to all duly entered into by all the parties thereto that

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

2. Stipulations

matters necessarily included.

A valid stipulation is conclusive as to all matters necessarily included in the stipulation. 3. Stipulations 13 When not controllable by court.

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A stipulation, relating to some interest of a party which is wholly under his control and in no way affecting the procedure in the cause, is binding upon, and cannot be controlled by,

the court.

4. Stipulations 14(5) - Agreement that Om judgment should be same as judgment in another case valid and binding.

Parties to a suit or their attorneys may enter into a valid agreement that the judgment or decree in that suit shall be determined by the judgment or decree in another suit which is of the same character and involves the same issues or interest.

5. Stipulations 14(5)-Dismissal of appeal held "determination" of action within meaning of stipulation in another suit.

Under a stipulation that the parties in one suit "shall abide the final result" of another suit, "it being understood and agreed that if this cause 'is appealed by the losing party, then this court shall render no judgment in the case at bar, until the determination of this cause in the appellate court, then this court shall dispose of each of said causes as herein agreed," held that there was a "determination" of the other suit within the meaning of the stipulation when an appeal to the Supreme Court was dismissed because appellant's brief did not comply with the rules of court, and a rehearing was denied.

6. Stipulations 14(1)-Liberally construed, except where there is no room for construc

tion.

One of them, namely, case No. 21999, Hanchett Bond Co. v. Palm et al., "shall be tried and submitted to the court" and that the other pending cases (including the one now before us) "shall abide the final result of the said above-entitled cause, viz., No. 21999, it being understood and agreed that if this cause, viz., No. 21999, is appealed by the losing party, then this court shall render no judgment in the above named and entitled cases until the determination of this cause in the appellate court, but that on such determination in the appellate court then this court shall dispose of each of sail cases as herein agreed."

The case No. 21999, in which said stipulation was filed, was tried in the circuit court, resulting in a judgment for defendants therein.

Plaintiff thereupon appealed to the Supreme Court of Missouri. That court rendered an opinion, holding that appellant's brief did not comply with the rules of court, and for this reason the appeal was dismissed See Hanchett Bond Co. v. Palm (Sup.) 220 S. W. 673. This was done on March 13, 1920, and a rehearing was denied April 17, 1920.

On April 14, 1920, defendant, in the case now before us, filed a motion asking for judgment in his favor, in accordance with the stipulation. On the 29th day of September, 1920, the trial court heard said motion based on said stipulation, and, sustaining same, rendered judgment for defendant, from which plaintiff has appealed.

We have nothing before us as to the circumstances under which the stipulation was given or obtained, nor as to the mutual intentions the parties had in mind in entering into it. There is nothing to show that in some way the stipulation failed to express the mutual intention of the parties. Only the bare statements of the stipulation itself, which are fully set forth above, are before

While it is true that stipulations are to be liberally construed with a view to effectuate justice, still construction can only be had where there is room for construction; and, in the absence of a showing as to surrounding circumstances, it is the duty of the courts to ascertain the intent of the parties from the us. Hence there is nothing for our considerastipulation as evidenced by the writing, and notion except the meaning of the plain bare words are to be added to it or substituted in statements of the stipulation. They are that its stead.

the Palm Case shall be tried and submitted to the court, and that the case at bar "shall Appeal from Circuit Court, Livingston abide the final result" in the Palm Case, "it County; Arch B. Davis, Judge. being understood and agreed" that if the

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

had where there is room for construction. As said in the Texas case cited supra:

Palm Case is appealed by the losing party, I ate justice, still construction can only be then no judgment is to be rendered in the case at bar "until the determination" of the Palm Case, but that "on such determination" in the appellate court, then the trial court "shall dispose of" each of said cases as in the stipulation agreed.

"Surrounding circumstances may be looked to in order to arrive at the true meaning and intention of the parties as expressed in words used, 'but as they have constituted the writing the only outward and visible expression of their meaning, no other words are to be added to it, or substituted in its stead. The duty of the courts in such cases is to ascertain, not what the parties may have secretly intendwords express, but what is the meaning of ed, as contradistinguished from what their the words they have used.'"

The controlling feature of the stipulation is that the judgment in this case "shall abide the final result" in the other case, and the final result in the other case was a judgment for defendant.

[1-5] The term "determination" may "prop erly, and according to legal use as well as according to its derivation, signify the coming to an end in any way whatever more specifically the final result of a proceeding." 18 C. J. 983. It means, "according to legal as well as ordinary use, the coming to an end in any way whatever." 14 Cyc. 236. A valid stipulation is conclusive as to all matters "necessarily included" in the stipulation. 36 Cyc. 1292. A stipulation relating to some interest of the party which is wholly under his control, and in no way affects the procedure in the cause, is binding upon, and cannot be controlled by, the court. 36 Cyc. 1293. "The rule is generally recognized that parties to a suit or their attorneys may enter into a valid agreement that the judgment or decree in that suit shall be the same as, or determined by, the judgment or decree in another, which is of the same character and involves the same issues or interests." 25 R. C. L. 1101. Such stipulations are valid and binding. City of St. Joseph v. Hax, 55 Mo. App. 293; State ex rel. v. Hannibal, etc., R. Co., 34 Mo. App. 591; Dowling v. Wheeler, 117 Mo. App. 169, 181, 93 S. W. 924. Indeed there is no contention to the contrary, the only claim being that the court improperly. construed the stipulation. But on this feature it will be observed that the stipulation nowhere says that if the Palm Case was ap- GASS v. UNITED RYS. CO. OF ST. LOUIS. pealed, the disposition thereof which should control the result in the others should be a

If a writ of error had been taken in the Palm Case within the time allowed by law, doubtless the judgment in the other case would not, on the date the court rendered judgment herein, to wit, September 29, 1920, have been the "final result" in that case, and in that event the judgment herein would perhaps have been premature. But no such point is raised, nor is there any claim that a writ of error was ever even applied for, so we cannot set aside the court's ruling on that ground.

The judgment is accordingly affirmed.
The other Judges concur.

(No. 16205.)

decision on the merits, nor is any language (St. Louis Court of Appeals. Missouri. Dec.

used which is capable of that construction. The language used is that it is the final result which shall control, and that the case should be disposed of upon the determination of the case in the appellate court. The stipulation did not (as it might have done and as some of the stipulations in the cases cited did do) contain a proviso that the determination should be upon the merits of the case. The stipulators did not see fit to do this, but made a very different agreement, one that is plain in its terms, making the right to a judgment in this suit depend on the result reached in the other case, and not on the manner in which it was reached. It is somewhat similar to the stipulation in the case of Watrous' Heirs v. McKie, 54 Tex. 65, 71, where it was held that the stipulation therein made the right to a judgment in that suit "depend on the fact of recovery, not the grounds of recovery" in the other suit. (Italics ours.)

[6] While it is true that stipulations are to be liberally construed with a view to effectu

7, 1920. Rehearing Denied
June 29, 1921.)

1. Evidence 333 (11)-Witnesses 255(2)
-Record not competent as original evidence,
but admissible to refresh memory.

Where a fire captain in charge of the station to which plaintiff was assigned testified that on the evening of the day upon which plaintiff was injured he made a record of the plaintiff's statement in a book which he was required by the chief to keep, but it did not appear that there was any ordinance of the city requiring the keeping of such book, it was not competent as original evidence of an admission made by plaintiff, but it might be used to refresh the memory of the captain, who testified to the admission.

2. Evidence 254-Written entry not admissible to refresh memory, where witness has independent recollection.

Where a witness stated that he had an in

dependent recollection concerning plaintiff's statement as to the cause of the accident, a book containing a memorandum of plaintiff's statement was not admissible to refresh the

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

(232 S.W.)

witness' memory, and hence, though the witness contradicted himself, defendant, who offered the book, cannot complain of its exclusion.

3. Appeal and error 854 (6)-Where proper, granting of new trial will be affirmed, though erroneous ground was assigned.

Though the ground assigned by the trial court did not warrant the granting of a new trial, the appellate court in passing on the matter is not confined to the ground assigned, but will affirm the trial court's action if the record shows that error was in fact committed war

ranting the granting of a new trial.

4. Appeal and error 901-Burden of showing error warranting granting of new trial on successful party.

On appeal from an order granting a new trial, where the ground assigned by the trial court was insufficient, the respondent has the burden of pointing out any other error which will justify the granting of a new trial. 5. Trial

243-Instruction on negligent injuries by street car held erroneous, as conflicting with plaintiff's theory.

Where plaintiff's petition alleged that he was riding a horse along defendant's car tracks, when it was struck from the rear by defendant's car, and plaintiff testified that the horse was on the track when struck, while defendant contended that the front of the car had passed the horse, which suddenly took fright and backed into the car, the animal being beside the track, an instruction, authorizing recovery if the horse had backed into the side of the car near the front corner, if defendant's motorman in the exercise of reasonable care might have known that the horse was frightened and avoided the accident, etc., was improper, conflicting with plaintiff's entire theory.

of which collision, plaintiff was violently hurled to the street, receiving serious injuries. It is alleged that the collision and plaintiff's consequent injuries were due to the negligence of defendant in the operation of its car in this: That the defendant's motorman in charge thereof, though he was then operating the same across the intersection of public and much-traveled streets, drove the car forward at a rapid rate of speed, in excess of 15 miles per hour, and was not looking in the direction in which the car was proceeding, but was negligently looking in the

opposite direction; that the motorman saw, or by the exercise of ordinary care might have seen, plaintiff upon horseback, proceeding eastwardly along said east-bound track and in a position of danger on the track, or near the same, in time, by the exercise of ornear the same, in time, by the exercise of ordinary care, to have stopped the car or checked the speed thereof and avoided injuring the plaintiff, but nevertheless negligently drove the car forward against plaintiff's horse; and that the motorman negligently failed to give any warning or signal of the approach of the car as it neared plaintiff. The answer is a general denial. The trial, The answer is a general denial. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $4,000. A motion for new trial, filed by defendant, was sustained on the ground that error had been committed at the trial "in excluding material, competent, and relevant testimony offered by the defendant." From the order thus granting a new trial the plaintiff has appealed to this court.

Plaintiff was a member of the fire department of the city of St. Louis, and was injured while riding a fire department horse east

Appeal from St. Louis Circuit Court; Karl wardly along Gravois avenue, upon which deKimmel, Judge.

"Not to be officially published."

Action by John Gass against the United Railways Company of St. Louis. Verdict for plaintiff. From an order granting defendant a new trial, plaintiff appeals. Affirmed. Brownrigg, Mason & Altman, of St. Louis, for appellant.

Chas. W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for respondent.

ALLEN, J. This is an action for personal injuries sustained by plaintiff by reason of the alleged negligence of defendant's motorman in charge of one of its street cars in the city of St. Louis.

The petition, so far as it need be here noticed, alleges that on February 9, 1917, near the intersection of Oregon and Gravois avenues in said city, while plaintiff was riding a horse eastwardly on Gravois avenue, along defendant's east-bound car track on said street, plaintiff and said horse were violently struck from the rear and on the left side by one of defendant's street cars, by the impact

fendant maintained two car tracks. The evi-
dence for plaintiff tended to show that he
was riding along the south side of Gravois
avenue as he crossed Oregon avenue, an in-
tersecting street extending north and south;
that at or about the east line of Oregon avenue
the horse shied at a drinking fountain, which
stood near the southeast corner of these two
streets, and began prancing about, and went
upon defendant's east-bound track; that at
that time defendant's street car was about 100
feet west of plaintiff, proceeding eastwardly
on said east-bound track at a speed of about
8 miles an hour; that plaintiff was unable to
get his horse off of the track, and that while
the horse's front feet were on or north of the
south rail of the east-bound track, the rear
portion of his body being south of the track,
the corner of the car struck plaintiff and his
horse, turning the horse and causing plain-
tiff's leg to be caught between the horse's
body and the side of the car, whereby the leg
was fractured and plaintiff was thrown to
the ground and otherwise injured. And plain-
tiff's evidence tended further to show that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-11

car could have been stopped in a distance of [ make, because I don't know any more what 17 feet. Mr. Gass did tell me at the time."

Defendant's evidence tended to show that

the street car was proceeding at the rate of 5 or 6 miles per hour; that plaintiff was riding 5 or 6 feet from the car tracks, and that the horse did not exhibit any signs or fright until the front end of the car was "just almost ready to pass the horse, probably 2 or 3 feet back of him," and that then "the horse shied and began to back around, and backed against the car door," the exit door at the side of the car near the front thereof, breaking the glass "in the panel nearest to the main body of car."

It appears that the rulings of the trial court referred to in the order granting the new trial are the rulings pertaining to a certain report of one Capt. Fey, offered by defendant. Capt. Fey was a captain in the St. Louis Fire Department, in charge of the station to which plaintiff was assigned. Being called as a witness by defendant, Capt. Fey testified that he had a conversation with plaintiff on the evening of the day upon which plaintiff sustained his injury, and that the witness made a record of the statement, thus said to have been made to him by plaintiff, in a book which he kept. He was asked by defendant's counsel if the city ordinances required him to keep such book, and he replied in the affirmative. And in answer to a similar question, he said: "My order is this, from the office, to keep a record of all accidents." And he further stated that he did this under "the chief's orders." And he stated that, having received plaintiff's statement that evening, after plaintiff had received his injuries, he returned to his station, and wrote in this book what plaintiff had told him.

Defendant offered the book in evidence, and upon plaintiff's objection the court excluded it, defendant excepting. The witness was then asked by defendant's counsel as to what he remembered of plaintiff's said statement. Plaintiff's counsel thereupon asked the witness whether he had any independent recollection of what plaintiff told him, and the witness replied:

"Yes, sir; he told me that the horse got frightened from the fountain, and shied in front of the car, and the car came along and hit him."

'Defendant's counsel then asked that the witness "be permitted to look at the book and refresh his memory." Objection of plaintiff's counsel to this was sustained. Thereupon the witness was asked by defendant's counsel if plaintiff did not state "that the horse got frightened and shied at the fountain and over on the side of the car"; and he said, "On the side of the car, as near as I can get to it." On cross-examination by plaintiff's counsel, the witness said:

"I can only tell you what this report shows, because I have so many different reports to

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Later defendant's counsel asked the witness if it did not appear in this written record that plaintiff stated that the horse became frightened at the fountain and shied into the side of the car. Objection of plaintiff's counsel was again sustained. Defendant introduced in evidence no ordinance of the city of St. Louis requiring a book or record of this character to be kept.

[1] We are of the opinion that under the showing here made this record was not competent, as original evidence, for the purpose of proving admissions of plaintiff made to Capt. Fey. But as a memorandum made by the witness at the time, it could quite properly be used by this witness in testifying, in order to refresh his memory as to what plaintiff said to him, unless the witness had a recollection thereof independent of the writing. While the witness at first stated that he had such independent recollection, his testimony as to plaintiff's statement was self-contradictory, and subsequently he stated that, without recourse to the book, he could not recall what it was that plaintiff said to him.

[2] When defendant's counsel asked that the witness be permitted to use the book to refresh his memory, the witness had just stated that he had an independent recollection of what plaintiff said to him. not prejudicial error, therefore, to then refuse to permit the book to be so used. And it does not appear that defendant thereafter made a further request that the witness be allowed to use the book to refresh his memory. Had the court specifically assigned, as the reason for granting the new trial, the refusal to permit the book to be used to refresh the memory of the witness, perhaps the granting of the new trial on such ground would be a matter within the court's discretion, though this we need not decide. But the court did not specifically grant the new trial on this ground, which was a ground of defendant's motion; and in the state of the record before us we cannot well say that error was committed in this regard for which a new trial should have been granted.

[3, 4] It is well settled that if the ground assigned by the trial court does not warrant the granting of a new trial, this court, in

(232 S.W.)

passing upon the matter, is not confined to the ground assigned, but will affirm the court's action if the record shows that error was in fact committed, complained of in the motion for a new trial, warranting the granting of a new trial; the burden being upon the respondent to point out such error.

[5] Respondent insists that the new trial was, in any event, properly granted, because of error committed in giving plaintiff's instruction No. 4; the giving of this instruction being one of the grounds assigned in defendant's motion for a new trial. This instruction is as follows:

the exercise of ordinary care, to have stopped said car," etc. (Italics ours.) But the words "or near the same," have reference only to the duty of the motorman in the premises, and are entirely consistent with the previous allegation that plaintiff's horse was on the track, and proceeding along the same, when struck; for, under plaintiff's theory, it may be that a duty arose on the part of the motorman before plaintiff's horse actually entered upon the track, and when he was "near the same."

"The first time I looked around after my horse got on the track, I looked around and saw a coal wagon pull out of the track, and a car * Then I startabout 100 feet in back. ed to get the horse out of the track; with all my pulling on the bridle I couldn't get him backward or forward, and I looked around again, and just as I turned around the car hit my head."

In his direct examination plaintiff stated, in substance that, as he was riding eastward"The court instructs you that, even thoughly on Gravois avenue, having "got about you believe and find from the evidence that the across Oregon avenue," his horse took fright horse that plaintiff was riding bucked or back- at the drinking fountain mentioned; that ed into the side of the car, near the southeast the horse "got in the track," and plaintiff front corner of same, yet if you further find could not "get him out of there." Plaintiff and believe from the evidence that said horse says: took fright and became unmanageable as plaintiff was riding eastwardly on the south side of the track on which said car was approaching, and that defendant's motorman saw, or by the exercise of ordinary care might have seen and known, that said horse was frightened and unmanageable and likely to move in front of the said approaching car and place plaintiff in danger of beign struck by said car at any moment, and if you further believe from the evidence that the motorman saw the said plaintiff in said situation of danger of being struck by said car in time to avoid said collision, by the exercise of ordinary care and with the appliances at hand and with safety to the occupants of the car, and nevertheless negligently allowed the said car to move forward to a collision with the plaintiff and said horse, and plaintiff was injured thereby, you may find for the plaintiff, notwithstanding that you may believe from the evidence that the horse came in contact with said car on the side of same." (Italics ours.)

The point made against this instruction is that it abandons plaintiff's theory of the case as shown by his petition and his own testimony, and authorizes a recovery upon a finding of the facts in accordance with the evidence adduced by defendant, and which is directly contrary to plaintiff's petition and his testimony.

On cross-examination plaintiff said:

"When he commenced to cut up there, he got on the track and stayed there until the car hit me."

And he stated that the horse jumped around, but did not buck or back. He said: "I couldn't get him to back. He just danced around sideways all the time."

And plaintiff's testimony is to the effect that he and his horse were struck by the front right-hand corner of the car at a point where a ledge projects out, it is said, three or four inches near the exit door thereof.

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On further cross-examination plaintiff was asked if he did not say in a deposition that "it was just back of the exit door" that struck him, and he replied in the affirmative. And in answer to further questions he said that the part of the car that came in contact with his head "was on the side of the body of the car." Later it was shown that he had said, in his deposition, "I never backed into the car at all;" that he was on the track when struck. And, testifying further, he said:

In considering the propriety of the giving of this instruction it will be necessary to direct attention to the petition and to plaintiff's testimony in the case. As shown above, the petition alleges that plaintiff was riding a horse eastwardly on Gravois avenue and along defendant's east-bound car tracks, when plaintiff and the horse were violently struck from the rear, and on the left side, by feet were in the one track, and the others not. "I was on the east track; the horse's two front defendant's car. The allegation of the peti-feet were in the one track, and the others not.

tion therefore, is to the effect that plaintiff's horse was proceeding eastwardly on defendant's car track when struck by the car. It is true that the petition subsequently charges negligence on the part of the motorman in that he saw, or by the exercise of ordinary care might have seen, plaintiff on horseback “on said track or near the same in time, by

* * The center part of the horse-I turned my horse over, when I turned my head after it hit the horse; that is how the exit door got my leg and knocked me off the horse."

And he said that his horse was headed "straight north"; that the horse's front feet were in front of the car, and his hind feet were on the outside of the track. Referring

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