. * 2. INSURANCE 131(1) – ORAL CONTRACT — and the next day plaintiff received a letter Omw from the agents, which was mailed at 11 a. PROOF OF OWNERSHIP OF PROPERTY-SUFFI- refusing to write the insurance, was intro- duced in evidence by defendant. Defendant had power to solicit and take applications, 4. PRINCIPAL AND AGENT Cm 21 PROOF OF AGENCY_TESTIMONY OF AGENT to collect premiums, and to countersign and ADMISSI- deliver policies for defendant. Defendant An agent may testify as to facts within his introduced a contract between it and its said knowledge that create his agency. agents wherein it was provided that the 5. APPEAL AND ERROR Omw979(3) — REVIEW DENYING MOTION FOR NEW TRIAL. agents should be soliciting agents, "with Discretion of trial court in denying motion power to receive applications for insurance for new trial on the ground that the verdict is in Nevada and its vicinity, such against the evidence will not be interfered with applications to be submitted to the office on appeal. * * of said company, at Chicago, and * Appeal from Circuit Court, Vernon Coun- not to be binding upon said company until ty; B. G. Thurmond, Judge. approved and policy issued by the managers "Not to be officially published." of said company, at Chicago." Action by Edmund K. Prichard against [1] Defendant makes the point that the the Connecticut Fire Insurance Company of only power conferred upon its agents at NeHartford, Conn. Judgment for plaintiff, and vada was the power to solicit applications defendant appeals. Affirmed. for insurance, and to submit them to the Charles E. Gilbert, of Nevada, Mo., for ap- company for approval before any insurance pellant. D. A. Murphy, A. J. King, and w. became binding upon the company; that the M. Bowker, all of Nevada, Mo., for respond agents could not bind the company by a verent. bal contract of insurance. This point is not well taken. It was said by this court in BLAND, J. This is an action upon a fire Sheets and Day v. Insurance Co., 153 Mo. insurance policy. Plaintiff having recovered App. loc. cit. 633, 135 S. W. 84: a verdict and judgment, defendant has ap "We are not saying that a foreign insurance pealed. The facts show that plaintiff and company may not employ soliciting agents of limited powers in this state, but we are holding his wife were the owners of a frame mer- that countersigning resident agents are presumcantile building in the town of Walker, Mo., ed to possess authority to make contracts of inand desired to insure the same. On February surance for their principals." 14, 1917, plaintiff's wife went to the office of And in view of section 7047, R. S. 1909, Ferry Bros., the agents of defendant at Ne- it is no longer a question but that agents of vada, Mo., and told a Mr. Ferry, the person a foreign fire insurance company who have in charge, that she wanted insurance on the power to solicit and take applications, colproperty in the sum of $450, and that the lect premiums, and countersign and deliver insurance was to be in her husband's name, policies, may bind their principal by an oral explaining that the property was owned by contract of insurance. Sheets and Day V. both of them. Mr. Ferry told her that the Insurance Co., supra; Bealmer v. Insurance amount of the premium was $21.50, and Co., 193 S. W. 847. $21.50, and Co., 193 S. W. 847. The evidence in this plaintiff's wife paid Mr. Ferry that amount, case indisputably shows that these agents and received a receipt for the same, signing had such power. The contract had between a written application for the insurance. Aft- defendant and its agents circumscribing the er this was done plaintiff's wife asked Mr. authority of the latter could not limit their Ferry, "What about the insurance; are we power to make this oral contract of insurinsured now?" and he replied, "Yes, you ance, as it is to be assumed from the eviare insured; rest easy; you are dence that the insured had no notice of this insured now; you will get your limited authority of the agent. Sheets and policy in a few days.” Day v. Insurance Co., supra. The insurance was from February 14, 1917, [2] It is urged by the defendant that beto February 14, 1918. The application was cause the application stated that the truth made out by Mr. Ferry, and afterwards sign- of the the representations contained therein ed by plaintiff's wife by affixing plaintiff's “concerning the property to be insured, being name thereto. About 8 a. m. on February 24, the basis on which the insurance is to be 1917, the building was destroyed by fire, effected,” etc., that it is shown on the face * * of the application that the insurance was / of which struck the car upon which plaintiff to be a written policy, and that all verbal was riding, defendants are not permitted to understandings were merged into the writ bring into the case the relative duties and obli gations between themselves; the controversy inten application. It is not necessary for us volving the liability of each to plaintiff. to say what effect, if any, such a construction 4. RAILROADS C297(6) CROSSING ACCIof the application would have upon the sta- DENTS-QUESTIONS FOR JURY. tus of the insurance, as there is nothing in In a street car passenger's action for injuthe application indicating that it was the ries in a collision between the car and a railthe application indicating that it was the road train, evidence held to require submission understanding that there should be no insur- to the jury of all the circumstances of the inance until a written policy of insurance was jury, including the failure of defendant railroad delivered. We cannot see why there could company to give warning before crossing the street. not be a written application for an oral con- 5. RAILROADS m297(2)—CROSSING ACCIDENTS tract of insurance as well as for a written -BURDEN OF PROOF. one. In an action by a street car passenger [3] There is nothing in defendant's con- against the company and a railroad company, tention that there is no proof that plaintiff the train of which struck the car upon which plaintiff was riding, general negligence merely owned the property. Plaintiff's wife testi- being charged against the street car company, fied, without objection, that the property was evidence introduced by plaintiff did not show owned by her husband and herself, and that her to be in possession of all the facts, so as she notified the agent of this fact, and that a mere attempt to prove negligence not justify to place the burden on her of proving negligence; the agent agreed to insure it in the name of ing an assumption that plaintiff knows the her husband. cause of the accident. [4] Defendant's contention that there is no 6. NEW TRIAL @ww101 – NEWLY DISCOVERED proof that the wife was plaintiff's agent in EVIDENCE-PERSONAL INJURY ACTIONS. In a street car passenger's action for damnegotiating the insurance is not well tak- ages due to collision, evidence that prior to the en. She testified directly on this point to accident plaintiff had been riding a motorcycle the effect that she was his agent. Defend- and was thrown therefrom was not sufficient to ant seems to confuse the principle of law warrant a new trial on the ground of newly dis covered evidence, where it appeared that dewhich requires more than merely the decla- fendant knew such facts at the time of the trial. ration of an agent to show his agency with 7. NEW TRIAL On99 NEWLY DISCOVERED the principle that one may testify on the EVIDENCE. witness stand as to facts within his knowl- Motions for a new trial on the ground of edge that create his agency. newly discovered evidence are not encouraged. [5] Defendant makes the point that the 8. NEW TRIAL C-99 - NEWLY DISCOVERED motion for a new trial should have been sus- EVIDENCE-DISCRETION. tained because the verdict was against the the ground of newly discovered evidence is The allowance or refusal of a new trial on weight of the evidence. We have reiterated largely in the discretion of the trial court. over and over again that this court will not 9. NEW TRIAL On99 NEWLY DISCOVERED interfere with the discretion resting in the EVIDENCE-ESSENTIALS. trial court in matters of this kind. That a new trial may be granted on the The judgment is affirmed. All concur. ground of newly discovered evidence, it must appear that defendant was diligent, that a differ ent result would probably be produced, and the (199 Mo. 'App. 64) new evidence must not be merely cumulative or to impeach the character or credit of the witKNOX v. MISSOURI, K. & T. RY. CO. et al. (No. 12748.) 10. NEW TRIAL Om 102(1)-NEWLY DISCOVER(Kansas City Court of Appeals. Missouri. Feb. ED EVIDENCE-DILIGENCE. 18, 1918.) In a street car passenger's action for per sonal injuries, resulting in womb trouble, caused 1. RAILROADS 312(11)--STREET CROSSINGS by a collision, newly discovered evidence that -WARNING. A railroad company may not start up and plaintiff frequently had improper relations with , back its trains or “kick” them across a public was not ground for a new trial, where defendstreet without giving warning. ant's employés had knowledge of such facts pri2. RAILROADS Om 297(3) – TRIAL O121(1) - or to the trial, and defendant by the exercise of CROSSING ACCIDENTS--EVIDENCE. due diligence could have discovered them. In an action for injuries sustained by a pas: senger while in a street car struck by a railroad 11. DAMAGES Ow132(5)—PERSONAL INJURIES train, brought against both carriers, it was error -EXCESSIVENESS. to exclude evidence by the street car company A verdict for $2,500 was not excessive, that the railroad company had failed to give where a young woman of good health, engaged warning before crossing the street, and to refuse as a piano player, was injured in a street car acto allow such failure to be argued; the object cident, was confined to her bed for weeks, susof the evidence being to show that the street car tained bruises, and became nervous, afflicted company was in the exercise of due care, to with womb trouble, and had irregular and painwhich object it could have been limited by prop- ful menstrual periods. er instructions. 12. APPEAL AND ERROR 882(1) JOINT DE3. RAILROADS O 297 (3) — STREET RAILROADS FENDANTS-INVITED ERROR. Om113(1)-ACTIONS FOR INJURY-EVIDENCE. In a personal injury action against two de In an action for personal injuries to a street fendants, where reversible error is brought car passenger, brought jointly against a street about by one, such defendant cannot ask that car company and a railroad company, the train the judgment be reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ness. 13. APPEAL AND ERROR 1173(1) JOINT DE-, standing still; that he then motioned for the FENDANTS—REVERSAL AND REMAND. Where a personal injury action has been it was in the nighttime, and there was no one motorman to proceed across the tracks; that brought against two joint defendants, and a judgment returned in favor of one, but prejudi- on the rear of the freight train or anything cial error has occurred as to the other, the cause there that one by looking could see and tell must be reversed and remanded as to both, un- when the train moved ; that he did not noder Rev. St. 1909, $ 2090, providing that a judgment is the final determination of the right tice that the freight train had moved until of the parties in the action, its rear end had reached a point 40 to 50 Appeal from Circuit Court, Jackson Coun- feet from the Interurban Company's tracks; ty; 0. A. Lucas, Judge. that he knew that it moved at that point Action by Edna E. Knox against the Mis only by reason of his hearing the jamming souri, Kansas & Texas Railway Company of the cars; and that it was then too late and another. Judgment for plaintiff, and to avoid the accident. The motorman testidefendants appeal. Reversed and remanded. fied that the conductor alighted from the Hadley, Cooper, Neel & Wright, of Kansas car and went to the place described by the , City, for appellants. Brewster, Kelly, Brew. conductor, and that the conductor gave him ster & Buchholz, of Kansas City, for re- able to see the freight train approaching, a signal to proceed across; that he was unspondent. for the reason that there was a string of cars BLAND, J. This is an action for personal standing on a track between him and the injuries. Plaintiff recovered a verdict and track upon which the freight train was judgment against both defendants, and they standing which obscured his view until he have appealed. reached a point 8 feet from the track upon As a matter of convenience the defendant which was the freight train; that at that Missouri, Kansas & Texas Railway Company time he first saw the train and immediately will hereinafter be referred to as the Rail- attempted to stop his car, but was unable road Company, and the defendant the Mis- to do so, but thought that he might beat the souri & Kansas Interurban Company will train across, so he speeded up, but was unbe referred to as the Interurban Company. able to get across before the collision. He The accident happened in the city of Olathe, further testified that when he reached a Kan., at about 9:55 p. m. on the 4th day of point where he could see the train he was January, 1915, while plaintiff was a passen- going at a rate of speed that would require ger upon one of the cars of the Interurban a distance of 20 feet in which to stop the Company. At the point of the accident the car. There was evidence on the part of the Frisco Railroad Company maintained four Railroad Company that the Interurban car tracks running northwardly and southwardly was late, that it made no stop, that no one across a public street in said city. The de- alighted from it before it proceeded across fendant Interurban Company's track ran the railroad tracks, and that when the Railalong said street and crossed said four road Company started its train, the latter tracks in an easterly and westerly direction. gave three whistles. When the car in which plaintiff was seated [1] At the trial the defendant Interurban (which was a west-bound car) reached a Company sought to prove and argue to the point with its rear trucks on one of the rail-jury that, when its conductor went onto road tracks, a caboose and freight train of the tracks and saw the stationary train, he the defendant Railroad Company, using the was justified in assuming that the train tracks of the Frisco Railroad, backed into would not back across the street and the Inthe Interurban car and injured plaintiff. terurban's tracks without giving some warnThe petition charges general negligence ing: that the train started up and ran into against the Interurban Company and spe- the Interurban car without giving any warncific negligence against the Railroad Coming or signal whatever to show that it was gopany. ing to cross the street. The court refused this Plaintiff called as her witnesses the motor-evidence and refused to permit counsel for man and conductor on the Interurban Com- the Interurban Company to argue the matpany's car upon which she was a passenger. ter before the jury and reprimanded him for The conductor testified that, when the Inter- referring to it. This evidence, and the effort urban Company's car reached a point 20 to argue the same to the jury, was refused or 30 feet from the railroad tracks, it by the court on account of objections made stopped and he alighted from the car and by the defendant Railroad Company. The went onto the tracks and looked in both basis of these objections was that there directions for trains; that a Frisco train was nothing in plaintiff's petition in referwas standing to the north and near the cross-ence to any failure of the Railroad Company ing and had an engine attached to it; that to give any warning or signal before backabout 100 or 140 feet south of the Interurban ing its train across the street in question. tracks he saw the caboose and rear end of On the rulings of the court in reference the freight train that later backed into the to this matter the Interurban Company car; that at that time the freight train was bases a claim of error, and in support thereof it urges that it had a right to introduce tes- [3] There is a rule that two joint defendtimony tending to show and to argue to the ants are not permitted to bring into the case jury any fact that would exculpate itself the relative duties and obligations existing from negligence. There was evidence tend- between themselves, as the controversy ining to prove that the cars were “kicked" or volves the liability of each to plaintiff, and "shunted" across into the Interurban car; not their responsibilities among themselves. and in this connection this defendant sug- Defendants are not authorized to invoke gests that there is a rule of law that a rail- agreements, rules, or customs made among road company may not start up and back themselves, designed to define their rights in its trains or "kick" them across a public their business relations to each other under street without giving some warning. This ordinary circumstances, and about which the is undoubtedly the rule. Wilkins v. St. plaintiff has no concern; nor can one of such Louis, 1. M. & S. R. R. Co., 101 Mo. 93, 13 defendants shift the entire responsibility, so S. W. 893; Fusili v. Mo. Pac. Ry. Co., 45 Mo. far as may effect plaintiff, upon the offendApp. 535; O'Connor v. Mo. Pac. Ry Co., 94 er against the agreement, rule, or custom Mo. 150, 7 S. W. 106, 4 Am. St. Rep. 364; among themselves, when the nonoffender Tabor v Missouri Valley Ry. Co., 46 Mo. 353, could have avoided the accident by the use 2 Am. Rep. 517; 2 Shearman & Redfield on of ordinary, or the highest degree of, care. Negligence, § 471 (6th Ed.). The lawmaking power and not the defend[2] There was no mention in the pleadings ants can alone promulgate the obligation and of a failure on the part of the railroad com- liability of defendants to their passengers. pany to give a signal or warning, and for this Taylor v. Grand Avenue Co., 137 Mo. 363, 39 reason plaintiff, if objection had been made, s. W. 88; O'Rourke v. Lindell Rd. Co., 142 Mo. could not have introduced evidence tend- 342, 44 S. W. 254. Plaintiff attempts to ining to show such failure. However, the offer voke this rule as against the right of the made on the part of the Interurban Company Interurban Company to show that it was not had nothing to do with plaintiff's right to re- guilty of negligence on account of the Railcover against the railroad company. The offer was made for the purpose of showing duty of the railroad company to give the road Company not giving the warning. The that the Interurban Company had used a warning was not based upon any rules or high degree of care in the operation of its customs existing between these defendants, car, as it was required to do. We think that and the evidence was not introduced for the the court erred in refusing to allow the In purpose of bearing on any duties, rights, or terurban Company to introduce this evidence liabilities of the defendants between themand to argue the matter to the jury. Had selves. The rule was one made by the law such evidence been admitted, as it should over which neither one of the defendants had have been, the defendant Railroad Company any control, and it was a rule that the jury could have been protected by asking an in. might have found the conductor of the Instruction from the court to the effect that terurban Company had a right to assume the jury was not to consider the evidence in would be observed by the Railroad Company. connection with the railroad company's lia [4] It will not do to say that, even if the bility to plaintiff. State v. Phillips, 24 Mo. Interurban Company was not advised of the 475; Union Savings Association v. Edwards, movement of the train by the required warn47 Mo. 445 ; Sotebier v. St. Louis Transit Co., 203 Mo. loc. cit. 721, 102 S. W. 651; Carle ving, nevertheless it was negligent in another De Soto, 63 Mo. App. 161; Phillips v. Hamil- respect; that is, that the jury might have ton Brown Shoe Co., 178 Mo. App. 196, 165 found that the motorman, in discharging the , S. W. 1183. The rule as to the admissibility burden of using the highest degree of care, of evidence under circumstances as presented was guilty of negligence in running his car in this case is stated by Wigmore as follows: to within eight feet of the railroad track, when he was unable to see the approach of "It constantly happens that a fact which is trains from the south on such track, and not inadmissible for one purpose is admissible for other purposes; while, on the other hand, a having his car sufficiently under control, so fact which is entirely admissible, so far as some that when he reached a point where he could rules are concerned, is excluded because it fails see he could have stopped the car before it to satisfy some other rule. * * * In other words, when an evidentiary fact is offered for reached the track. As already stated, the one purpose, and becomes admissible by satisfy evidence shows that when the motorman ing all the rules applicable to it in that capaci- reached the place where he could see he was ty, it is not inadmissible because it does not sat-8 feet from the track, and that the car was isfy the rules applicable to it in some other capacity and because the jury might improperly going at such a rate of speed that he could consider it in the latter capa * * Here not stop it in less than 20 feet. Unless we the only question can be what the proper means could say as a matter of law that this was are for avoiding the risk of misusing the evidence. It is uniformly conceded that the in negligence on the part of the motorman, and struction of the court suffices for that purpose, that upon a showing to this effect plaintiff and the better opinion is that the opponent of was entitled to an instruction that the jury the evidence must ask for that instruction; oth- should find for the plaintiff, we do not think erwise, he may be supposed to have waived it as unnecessary for his protection." Wigmore that it would make any difference in the on Evidence, f 13. matter under discussion. All of the circum ! stances should have been submitted to the tempt on the part of plaintiff to prove neg. jury, as it was their peculiar province to ligence under the facts, and did not show pass upon them. The motorman had received that she knew all about the accident. A the signal from the conductor to proceed mere attempt to prove negligence can hardly across the track, and the freight train was justify the assumption that plaintiff knew not the only train present to indicate danger the cause of the accident. Kilroy v. K. C. & and that required the attention of the serv- K. V. Ry. Co., 195 S. W. 522; Price v. Railants of the Interurban Company. The jury way, 220. Mo. 435, 119 S. W. 932, 132 Am. might very well have found that under such St. Rep. 588; Loftus v. Railroad Co., 220 circumstances it was the duty of the motor- Mo. 470, 119 S. W. 942; Dollie C. Mining man to hurry across the track as quickly as Co. v. Railroad, 194 Mo. App. loc. cit. 41, 182 possible to avoid new dangers that might be S. W. 1055. ushered in at any moment. On the other [6] A point is made that the court erred hand, it might have found that the motorman in not awarding defendants a new trial upon was under some obligation to watch the Fris- the ground of newly discovered evidence. In co train. While the jury might have actual support of their motions for new trial, dely found that the motorman of the Interur- fendants introduced an affidavit which statban Company was not negligent in proceeding ed that plaintiff had been riding on a motoracross the track as he did, yet they were not cycle and had been thrown therefrom prior allowed to consider whether the conductor to the collision in question. (Plaintiff claimhad discharged his full duty by relying upon ed that the accident sued for had resulted the signal that should have been given by in womb trouble.) Evidence brought out at the Railroad Company. A showing by the the trial tended to show that defendants at Interurban Company that it relied upon the that time knew of the motorcycle incident. Railroad Company to discharge a duty im-Other affidavits stated that plaintiff, before posed upon the latter by law to give some the collision, frequently had improper resignal or warning before crossing the street, lations with men, was very nervous, and had tended to exculpate the Interurban Com- ovarian trouble. The affidavits show that pany from fault, and this company had a defendants first obtained a clue to this inright to have the jury consider this, with all formation after the verdict and from some other competent matters that tended to show of the employés of the Interurban Company. that it had discharged its full duty. It is [7-9] Motions for a new trial on the ground true that there was evidence, introduced by of newly discovered evidence are not enplaintiff without objection, that the con- couraged. Grocery Co. v. Hotel Co., 183 Mo. ductor of the Interurban car relied upon the App. 429, 166 S. W. 1125, and cases cited railroad company to give some such warning. therein. The matter of refusing or granting Plaintiff urges that in view of this fact the such motions is largely in the discretion of court did not err in refusing the Interurban's the trial court. McPherson v. Harvey, 183 evidence to the same effect. However this S. W. 653, and cases therein cited. In ormay be, the court erred in refusing to permit der that such a motion may be granted, a the Interurban Company the privilege of ar- number of things must be present including guing the matter to the jury and in repri- the element of diligence, the probability of manding counsel for so doing. the new evidence producing a different re[5] A point is made that the court erred sult, the new evidence must be not merely in submitting the case to the jury on the cumulative, and not simply to impeach the theory that the burden was upon the Inter- character or credit of the witness. State urban Company to show that it was not neg- v. Speritus, 191 Mo. 24, 90 S. W. 459. ligent. In this connection it is said that as [10] We think that the evidence claimed against the Interurban Company the petition by defendants to have been newly discovered charges general negligence, but that plaintiff, might well have been found by the trial court having introduced the evidence of the con- to have failed to meet the requirements of ductor and motorman to explain how the ac- diligence and that it be not cumulative. As cident occurred, by her evidence showed that to the motorcycle incident, there is evidence she was in possession of all the facts in re- that defendants knew the facts at the trial. lation to the cause of the accident. This As to the other matters, defendants' affievidence of plaintiff did not show that she davits show that they were known to their knew the whole cause of the accident. There employés. The trial court, no doubt, found was evidence in the case, not introduced by that, had the defendants exercised diligence, plaintiff, that the conductor did not get off the matters could have been discovered beof the car to watch for the approach of the fore or during the trial, and that the evitrain and to signal the Interurban car to dence was merely cumulative. Defendants cross the tracks, but that the car was late, put on the stand many doctors, who had exand was seen to cross the tracks without amined plaintiff, and who testified as to any care on the part of any one in control the causes of her ailments. We do not think of it, and that the train signaled before mov- the trial court abused the discretion vested ing. The introduction of the evidence of the in him in his ruling on these matters. |