Plaintiff, to whom the policy was made paya-| ble, is the widow of the insured. The cause originated before a justice of the peace, where the plaintiff had judgment, and the defendant appealed to the circuit court. Two trials have been had in the circuit court, each before the court and a jury. Upon the first plaintiff received a verdict at the hands of the jury, which was by the court set aside on the ground that it was against the weight of the evidence. The second resulted in a verdict for plaintiff for the face value of the policy, to wit, $250, with 10 per cent. interest and $75 as attorney's fees as for a vexatious refusal to pay. Judgment was entered accordingly, from which the defendant has duly appealed to this court. It appears that plaintiff and deceased lived together after the latter returned from Texas until some time in February, 1906, when it seems that they separated; deceased going to his mother's home. It appears that the mother and this plaintiff were not on good terms; that upon the death of the insured the mother, learning that deceased's life was insured in favor of plaintiff, notified the defendant company to the effect that her son was sick at the time that the policy was issued. She testified that, while the deceased and plaintiff still lived together, and shortly prior to the time that deceased came to live with her she had a conversation with plaintiff at the latter's house in which plaintiff told her that deceased had just been insured, and that plaintiff said that she was very much worried for fear that he would have a coughing spell while the doctor was there examining him. This the plaintiff de nied, and her testimony and that of other witnesses was to the effect that the insured appeared to be in good health during the time in question. The application for the policy is dated February 6, 1906, and the policy was issued February 21, 1906. The insured died August 13, 1907. The proofs of death offered in evidence by plaintiff showed that the deceased died of phthisis pulmonaris, and the physician's certificate states that, in his opinion, the insured's health was first impaired 18 months prior thereto. This certificate, however, shows upon its face that the physician who made it had not attended or prescribed for the deceased prior to his last illness, and that he first visited the deceased on, March 16, 1906. In the application for insurance the deceased stated that he was in good health; that he had not within five years prior thereto had any sickness, disease, etc.; and that the last time he had consulted a physician prior thereto was in 1903 for a [1] The burden of proof as to this defense sprained ankle. The defendant's physician was upon the appellant. See Frazier v. Inwho examined the insured prior to the issu-surance Co., 161 Mo. App. 709, 141 S. W. ance of the policy certified that he appeared 936; Winn v. Modern Woodmen of America, to be in good health, and that the examiner 157 Mo. App. 1, 137 S. W. 292. recommended the applicant, without reservation, as being safely insurable. It appears that the insured had previously carried a policy of insurance in the defendant company which he had suffered to lapse, and that his desire was to renew the policy, but that he was told by the agent that it would be better to take a new one. The insured was a baseball player, and the evidence discloses that in the latter part of 1905 he came home from Texas, where he had been following this occupation; that upon his return he had a heavy cold and was not feeling well. There is evidence that he recovered from the cold, that his condition improved, and that he appeared to be in good health prior to and at the time of making the application for the insurance and at the time of the issuance of the policy. Such was the testimony of plaintiff and other witnesses in her behalf. There was testimony contra on behalf of defendant. The deceased's mother testified that he came home from Texas, in September, 1905, because he was sick; that in November of 1905 he had consumption, had a very bad cough, and hemorrhages from time to time, and night sweats; that he continued to grow We are asked to review the ruling of the lower court on the demurrer to the evidence upon the theory that the evidence conclusively shows that the insured was not in good health at the time that the policy was issued, as he represented himself to be, but that he was then suffering from the very disease which produced his death. But there are reasons why we cannot sustain appellant's contention in this respect. [2, 3] And if the insured was not in good health at the date of the issuance of the policy, his statement in the application to the contrary, and the condition of the policy to which this defense relates, regardless of all other questions involved, could operate to avoid the policy only in the event that the insured was then suffering from a disease or bodily infirmity which actually contributed to his death; and whether it so contributed was a question for the jury. See section 6937, Rev. Stat. 1909; Keller v. Insurance Co., 198 Mo. 440, 95 S. W. 903; Frazier v. Insurance Co., supra; Salts v. Insurance Co., 140 Mo. App. 142, 120 S. W. 714. As to the ruling upon the demurrer, learned counsel for appellant contends that the statute above referred to does not destroy or impair the power and duty of a trial court to direct a verdict when the evidence is all one way. And in support of this we are cited to Schuermann v. Insurance Co., 165 Mo. 641, 65 S. W. 723. But an examination of the opinion in that case will readily disclose that it does not in any manner support this contention. We apprehend that the statute means just what it says, and that the ques and with which the court has no concern. | ceive no error in this, prejudicial to the apSuch is the plain language of the statute, pellant. and so our courts have ruled thereupon. [7] The answers made by the insured in his application were not warranties under our law but representations, and are to be dealt with as such. We have carefully examined all of the assignments of error with respect to plaintiff's instructions and find the same to be without merit. [8] Error is assigned on account of the refusal of instructions requested by defendant, some of which were given after being modified by the court; but we can take no notice of such alleged errors for the reason that appellant did not complain thereof in its motion for a new trial. Finding no reversible error in the record, the judgment should be affirmed. It is so ordered. But even were we at liberty to review the lower court's ruling on the demurrer, there is another and altogether sufficient reason why that ruling was eminently correct. This is because the evidence touching the issue as to defendant's state of health at the time the policy was issued was highly conflicting, and the question was therefore pre-eminently one for the determination of the jury. It is true that the testimony on behalf of defendant tended to sustain the defense which it sought to make, but on behalf of plaintiff there was much evidence contra. Appellant lays much stress upon the doctor's certificate contained in the proofs of death, and particularly upon that portion thereof wherein it was stated that in the physician's opinion the deceased's health first became impaired 18 months prior to his death. As the deceased died on August 13, 1907, and the policy was issued February 21, 1906, a period of 18 months prior to his death would reach back to February 13, 1906. But this evidence was by no means conclusive against the plaintiff. See Frazier v. Insurance Co., supra, 161 Mo. App. loc. cit. 717, 141 S. W. 936; Almond v. Woodman, 133 1. CARRIERS (8_320*)—INJURY TO PASSENGER Mo. App. 382, 113 S. W. 695. Furthermore the physician's certificate shows upon its face that he had not attended the insured prior to the issuance of the policy, at which time it appears that the insured was thoroughly examined by appellant's examining physician, who found him in good condition and who unreservedly recommended him as a good risk. [4] The testimony was by no means all one way, and it was the peculiar province of the jury to determine the matter in hand. [5] With the conflict of testimony on that issue we have nothing to do. "The genius of our law has wisely and quite relieved an appellate court from that burden, at least. We neither hunger nor thirst after, nor assume, power to disturb the finding of twelve men in the box sanctioned by one on the bench on a question of fact on which the testimony ran pro and con. Theirs (not ours) the duty was to sift and winnow out the true from the false, to believe or disbelieve." Westervelt v. Transit Co., 222 Mo. loc. cit. 334, 335, 121 S. W. 114; Vaughn v. Brewing Co., 152 Mio. App. loc. cit. 56, 132 S. W. 293. See, also, Keller v. Insurance Co., supra; Adams v. Woodmen, 145 Mo. App. 207, 130 S. W. 113. [6] The cause was submitted to the jury on instructions on behalf of plaintiff which required the jury to find that, in order to avoid the policy, any representation on the part of the insured in procuring the insurance must not only have been with respect to a matter which contributed to the contingency or event on which the policy was to become due and payable, but must have been made with knowledge of its falsity. We per REYNOLDS, P. J., and NORTONI, J., con cur. STOKES v. METROPOLITAN ST. RY. CO. (Kansas City Court of Appeals. Missouri. June 16, 1913.) ALIGHTING-EVIDENCE. It cannot be said as matter of law that plaintiff's version of her injury that, while to alight, a sudden movement of the car threw standing on the lower step of a street car ready her off, she yet alighting on her feet, and so jarred her as to cause a prolapsed uterus, is so contrary to physical law and so incredible that it should be accorded no probative value. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1244, 1322; Dec. Dig. § 320.*] 2. CARRIERS (§ 318*)-INJURY TO PASSENGER CAUSE OF INJURY SUFFICIENCY PROOF. OF There being evidence that plaintiff received a sudden jolt when thrown off a street car by its sudden start, that such a sudden jolt is one of the causes of a prolapsed uterus, that immediately thereafter she had such trouble and said she failed in her proof of that being the previously had been free therefrom, it cannot be cause merely because of the bare possibility that her condition might have resulted from some other cause. Cent. Dig. 88 1270, 1307-1314; Dec. Dig. § [Ed. Note. For other cases, see Carriers, 318.*] 3. APPEAL AND ERROR (§ 261*) REVIEW - NECESSITY OF EXCEPTIONS. Complaint may not be made of remarks of counsel in argument; an exception thereto not having been preserved. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. § 261.*] 4. DAMAGES (§ 132*) - PERSONAL INJURIES EXCESSIVE VERDICT. A verdict of $7,500 for a prolapsed uterus, with its usual concomitants, is excessive and should be reduced to $4,000, though the evidence shows that the injury may be permanent and that the woman has endured great pain and suffering and may suffer future pain; she not being physically disabled, and her earning Icapacity not being impaired. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] Appeal from Circuit Court, Jackson Coun- | ages. On the Monday following the injury ty; Walter A. Powell, Judge. she returned to work and continued until in Action by Nellie Stokes against the Metro- | October, when she was confined to her home politan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed conditionally. John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellant. Kimbrell & White, of Kansas City, for respondent. JOHNSON, J. Plaintiff alleges that she sustained personal injury in alighting from a street car operated by defendant and that her injury was caused by negligence of defendant in prematurely starting the car while she was in the act of alighting. The answer is a general denial. The first trial of the case resulted in a verdict for plaintiff in the sum of $1,100, but this verdict was set aside and a new trial ordered. At the second trial the jury returned a verdict in favor of plaintiff for $7,500, and, after its motions for a new trial and in arrest of judgment were overruled, defendant brought the case here by appeal. The injury occurred early in the afternoon of Saturday, August 27, 1910, at the corner of Fortieth street and Woodland avenue in Kansas City. Plaintiff, a young widow, living with her parents and employed as a stenographer, was going home on a Woodland avenue car on which she had become a passenger, and in response to her signal the car was stopped at the regular stopping place at the intersection of Fortieth street and Woodland avenue to allow her to alight. She proceeded to leave the car and had reached the bottom step when the motorman, in answer to a signal from the conductor, started the car forward. At this instant plaintiff had both feet on the bottom step and was preparing to step to the pavement but did not have hold of a handhold and the unexpected starting of the car caused her to be suddenly thrown from the step to the pavement. She did not fall but landed on her feet with a jolt or jar so violent that she suffered a temporary suspension of the powers of locomotion. Her home was near by and her mother, who was standing on the front porch, observed the manner in which she left the car, her brief pause, and her evident pain and distress as she walked home. The evidence of plaintiff is to the effect that before her injury she had been in exceptionally good health and free from disease and that immediately thereafter she exhibited symptoms of internal injuries of a severe and permanent character. At first she did not understand these symptoms and attributed them to natural causes, but later, on consulting a physician, it was discovered that her uterus and ovaries were misplaced, enlarged, and inflamed. This discovery was made in October following the injury, and she immediately notified defendant of the for three weeks by the results of the injury. After that she resumed her occupation and at the time of the trial was receiving a larger salary than she was being paid when injured. [1] We are asked to reverse the judgment on the ground that plaintiff's version of her injury is so contrary to physical law and so incredible that it should not be accorded any probative value. We would not be justified in treating as substantial that which has no substance, in committing the solecism of holding in effect that testimony might be true which common experience and common knowledge of physical laws would reject as palpably false; and should we find the evidence of plaintiff "is so contrary to the daily experience of common life, so at war with the conceded physical facts," as to be beyond reasonable belief, we would not hesitate to brush it aside as wholly valueless. Waggoner v. Railroad, 152 Mo. App. 173, 133 S. W. 68; Payne v. Railway, 136 Mo. 562, 38 S. W. 308. On the other hand, it is our duty, as an appellate tribunal, to exercise great care and caution in applying the tests of common sense and common knowledge of physical law to a given state of facts. The testimony of unimpeached witnesses should not be lightly waived aside as impossible or incredible. Common experience and observation teaches us that strange and astonishing things sometimes happen in the physical world, and it would not do to give to dogmatic and undemonstrated conclusions, respecting natural laws, precedence over the testimony of apparently credible witnesses. We concede that the position of plaintiff on the car step as described in her testimony was such as would lead one to expect that a sudden forward movement of the car would have caused her to fall to the pavement, but we cannot say that it was impossible for her to land on her feet as she says she did. Much would depend on the character of the movement of the car. A sudden, violent movement undoubtedly would have jerked her feet from under her and caused her to fall, while one less violent might have produced the result claimed by her. We hold the issue of the reasonableness of plaintiff's testimony on this subject is one of fact which the court properly sent to the jury. [2] We regard the contention of defendant that no causal relation is shown between the pleaded negligence and the physical infirmities of plaintiff as clearly untenable. Her expert evidence is to the effect that a sudden jolt or jar of the body is one of the causes of prolapsus of the uterus and of injury to others of the reproductive organs. It is true such afflictions may result from numerous other causes, but given such cause, ease and of the appearance of the disease immediately after the injury, the inference is reasonable that the injury was the proximate cause. Courts should not indulge in conjecture either to aid or defeat a cause of action, and where, as here, the evidence of plaintiff points directly to the pleaded act of negligence as the real cause of her injury, we will not hold she has failed in her proof because of the bare possibility that her condition might have resulted from some other cause. The demurrer to the evidence was properly overruled. [3] Point is made of error in certain hypothetical questions propounded by counsel for plaintiff to expert witnesses, but we find the questions are not subject to the criticism of assuming facts not in evidence. And, in answer to the further point of improper argument to the jury by counsel for plaintiff, we call attention to the omission of defendant to preserve an exception to the argument. The bill of exceptions "does not show that any remarks made by the plaintiff's counsel were objected to or in any way brought to the attention of the court at the time they were made. This must be done to have the objection considered on appeal." Kennedy v. Holladay, 25 Mo. App. 503; Doyle v. Trust Co., 140 Mo. 1, 41 S. W. 255. [4] But we agree with defendant that the verdict is excessive. The evidence of plaintiff tends to show that her injury may be permanent; that she has endured great pain and suffering and may suffer future pain. In short, she has a prolapsed uterus with its usual concomitants, but she is not physically disabled, her earning capacity has not been impaired, and her pecuniary loss compared with the size of the verdict is trifling. Under such circumstances we feel that the outside limit of her recoverable damages should not exceed $4,000. We are mindful of the rule that gives a wide discretion to the jury in the assessment of damages, but there are limits to the exercise of such discretion, wide though it be, and we are persuaded that a judgment in excess of $4,000 should not be permitted to stand. Accordingly the judgment will be affirmed on condition that a remittitur of $3,500 be entered within ten days; otherwise it will be reversed and the cause remanded. It is so ordered. All concur. the company, or whether such organization had been fully perfected, and therefore alleged in it under one entire general contract with R the claim that the materials were furnished by and others as the "Berger Plumbing Company," subcontractors under a certain contractor, and served notice on the owner, reciting that the materials were furnished under a contract with R. and others as the Berger Plumbing Company, subcontractors under V., the contractor, for making the improvements for such owner. Held that the lien was not defective for failure of the notice to the owner to name all the persons with whom the contract was made as constituting the plumbing company. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 165-170; Dec. Dig. & 122.*] 2. MECHANICS' LIENS ( 157*)—NonLIENABLE ITEMS INCLUSION BY MISTAKE. Where certain nonlienable items were unintentionally included in an account for which plaintiff sought to enforce a mechanic's lien, and plaintiff disclaimed as to them at the trial, and they were easily separable and stricken, their inclusion did not invalidate the lien. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 268-274; Dec. Dig. § 157.*1 Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge. Kansas City Pump Company against Carl Suit to enforce a mechanic's lien by the Vrooman and others. Judgment for plaintiff, and defendants appeal. Affirmed. R. E. Rice and Austin & Davis, all of Kansas City, for appellants. New, Kennish & Krauthoff and John N. Davis, all of Kansas City, for respondent. TRIMBLE, J. This is a suit to enforce a mechanic's lien upon certain buildings in Kansas City for plumbing supplies furnished by the Kansas City Pump Company, purchased of it by B. Berger and J. R. Riley for use in said buildings. The defendant Carl Vrooman was the general contractor, and the defendant J. D. Cook was the owner of the property. Is seems that the general contractor, Vrooman, made a contract with Berger, as a subcontractor, to furnish and put in the plumbing, but Berger could not purchase any supplies on his own account, and made an arrangement with the defendant J. R. Riley by which the two were to buy the supplies and put them in. They went to the Kansas City Pump Company and bought the supplies for the buildings, and the same were sold to them and delivered at the buildings by said pump company, but the latter would not sell them to Berger alone, and agreed to charge, and did charge, them on their books to J. R. Riley. At this time Berger, Riley, and Theodore Stegner officed at the same place, and some arrangements were made between them, at least between Berger and Riley, to form a partnership under the name of the Berger Plumbing Company. member of the partnership or not, there was Whether Stegner was ever a ample evidence to show that, as to the Kan sas City Pump Company, Berger and Riley [ and a liberal construction should be given were partners in the purchase of these sup- its provisions. Constructive Co. v. Jones, 60 plies. The material purchased was partly Mo. App. 1; Faulkner v. Bridget, 110 Mo. installed in the building, but Berger left the App. 377, loc. cit. 381, 86 S. W. 483; Brucountry, and Vrooman completed the installa- ner, etc., Co. v. Klein, 100 Mo. App. 289, loc. tion of the supplies. After Berger and Riley cit. 292, 73 S. W. 313; Knapp Bros. Mfg. had abandoned the job, plaintiff presented Co. v. K. C. Stock Yards Co., 168 Mo. App. an order signed by Berger to Vrooman for 146, 152 S. W. 119. The allegation in the the amount of the claim, and Vrooman, al- petition was not contradicted by the facts. though the entire bill was charged to Riley, Riley and Berger did purchase the materials, agreed to pay same as soon as a garnish- and they were furnished for and went into There was no variance bement proceeding against him as a debtor of the buildings. Berger could be disposed of. He made no tween the lien claim and notice on the one objection to the order otherwise. hand and the petition on the other. In preThere were no findings of facts asked or paring and filing its lien claim, plaintiff was not able to definitely ascertain who con- given, and we cannot know whether the stituted the firm of the Berger Plumbing court found against Riley as one of the coCompany, or whether that organization had partnership or as one of the joint contractors. been fully perfected, and therefore drew up There was sufficient evidence from which said lien claim for materials furnished by the court could have found a copartnership, it under one entire general contract, with at least as between Riley and Berger. Cer“J. R. Riley et al., as Berger Plumbing Com-tainly so as regards their relation to plaintiff. There was certainly proof enough to pany, subcontractors under Carl Vrooman, contractor," and notice to J. D. Cook, the establish a holding out as partners on the owner, was served upon him that a lien part of Riley and Berger. Citizens' Bank would be claimed for the materials furnish- V. Lowder, 141 Mo. App. 603, 125 S. W. 1180. ed by "J. R. Riley et al. as Berger Plumbing Co., subcontractors under Carl Vrooman, the contractor for making the improvements for you." In the petition to enforce the lien, the subcontractors to whom the materials were sold were described the same way, and it was alleged that Berger, Riley, and Stegner were copartners. These three, and also Vrooman and Cook, were made parties defendant. Berger had left the state, and the court held that the order of publication against him was insufficient to bring him into court. The suit was thereupon dismissed as to him. The trial court found in favor of the defendant Stegner, and rendered judgment against Riley for $253.36 and enforced the lien on the buildings for that amount. Cook, Vrooman, and the holder of an inferior deed of trust appealed. [1] Appellants urge that the lien notice to the owner, Cook, was insufficient because it did not name all the persons with whom the contract was made and constituting the firm of the Berger Plumbing Company. The notice recited that the materials were furnished in the premises "under contract with J. R. Riley et al. as the Berger Plumbing Company, subcontractors under Carl Vrooman, the contractor for making the improvements for you." The notice to the owner in a mechanic's lien proceeding does not exercise the function of a summons, which is to acquire jurisdiction over the owner. Its purpose is merely to notify him of the claim so that he may investigate it before paying, and may protect himself in his settlement with the original contractor. In this case the owner was not misled nor prejudiced, nor does he claim to have been. Our courts hold that the lien law is highly remedial, [2] There were some nonlienable items in the account; but, as they were unintentionally inserted therein, and were easily distinguishable, and were separated from the rest of the account, and disclaimer as to them was made by the plaintiff at the trial, and the court struck them out, their inclu sion in the account could not invalidate the lien. Darlington Lumber Co. v. Pottinger, 165 Mo. App. 442, 147 S. W. 179; Eau Claire St. Louis Lumber Co. v. Gray, 81 Mo. App. 337. The evidence was sufficient to sustain the judgment rendered. In the absence of any findings of fact we must presume the case was tried on the correct theory. The plaintiff sold the materials with the understanding that they were to be used in the buildings, and delivered the materials there, and they were therein actually used. The original contractor was fully aware of the situation, and the owner were not misled in any way. and made use of the materials, and both he The judgment should be affirmed. It is so ordered. All concur. BADGER LUMBER CO. v. W. F. LYONS (Kansas City Court of Appeals. Missouri. 1. APPEAL AND ERROR (§ 1011*)-MECHANICS' Where the evidence is conflicting as to whether the last items of material for a build ing were furnished under the same or a different contract than the first items, or where different inferences might be drawn from the circumstances, the question is one for the jury or For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |