Summary
ruling that a party, having taken a position and itself bringing about a judgment of liability, cannot withdraw it and complain of the court's action prior thereto. "By making the concession, they have condoned any error that may have been committed by the court, . . ."
Summary of this case from All Star Awards & Ad Specialties Inc. v. HALO Branded Sols.Opinion
Opinion filed December 2, 1930.
1. — Automobiles — Negligence — Personal Injuries — Wife Operating Husband's Car — Evidence — Liability of Wife. In an action against husband and wife for damages for personal injuries sustained by plaintiff in the roadway after alighting from a street car, by being struck by an automobile operated by the wife and owned by the husband, the specifications of negligence being based on a violation the Motor Vehicles Act (Laws of 1921, 1st Extra Session, p. 91) and the humanitarian doctrine, evidence reviewed, and held that as to defendant wife there was such conflict in the evidence as justified the submission of the case to the jury.
2. — Same — Same — Same — Same — Ownership — Evidence — Prima Facie Case — Burden of Proof. Proof of the ownership of the automobile at the time of an accident makes a prima facie case against the owner, and places upon the latter the burden of proving that the driver was not using the automobile in pursuit of the business of the owner.
3. — Same — Same — Same — Same — Prima Facie Case Against Owner — Pleasure or Business Vehicles — Same Rule Applies. The doctrine that proof of the ownership of an automobile at the time of an accident makes a prima facie case against the owner, applies as well to pleasure automobiles as to business vehicles.
4. — Same — Same — Same — Same — Agency of Wife — Liability of Husband — Evidence — Jury Question. In an action against husband and wife for damages for personal injuries caused by plaintiff being struck by an automobile driven by the wife and owned by the husband, where plaintiff made out a prima facie case against the husband as the owner, the burden rested upon such defendant to disprove and overcome that case, and it was then for the jury and not the court to pass upon the credibility of the witnesses and the weight to be given to their testimony; the rule being that after a prima facie case has once been made out, the case can never be taken from the jury, and, therefore, the trial court was correct in refusing the peremptory instruction requested by defendant husband.
5. — Appellate Practice — Admissions — Counsel Conceding Liability in Personal Injury Action — Effect on Appeal. Where defendant's counsel in the trial court in argument to the jury in a personal injury action conceded liability, they cannot on appeal withdraw such concession and complain of instructions submitting to the jury the question of the negligence and the liability of the defendants for the injuries suffered by the plaintiff.
6. — Same — Same — Reversals — Error Not Materially Affecting Merits of Case — Statute. Under section 1513, Revised Statutes 1919, the appellate court may not reverse a judgment unless it shall believe that error was committed by the trial court against the appellant materially affecting the merits of the case.
7. — Same — Same — Personal Injury Action — Liability Conceded in Trial Court — Precludes Consideration of Instructions Submitting Question of Negligence and Liability. In a personal injury action where defendant's counsel in argument to the jury conceded liability, by making such concession they condoned any error that may have been committed by the trial court in instructions submitting the question of negligence and liability, and therefore, in view of section 1513, Revised Statutes 1919, the appellate court is in no position to hold that the verdict was the result of any action of the court materially affecting the merits of the action.
Appeal from the Circuit Court of the City of St. Louis. — Hon. O'Neill Ryan, Judge.
AFFIRMED.
Wilbur C. Schwartz, J. Edward Gragg and Charles E. Morrow for appellants.
(1) The court erred in refusing the instructions in the nature of a demurrer to the evidence requested by the defendant, W.L. Versen, at the close of plaintiff's evidence, and again at the close of all the evidence in the case. Mr. Versen is not liable for the negligence of his wife while driving his automobile kept for the use of his family and himself when used by the wife on a social mission of her own. Hays v. Hogan, 273 Mo. 1; Drake v. Rowan, 272 S.W. 101; Mount v. Narret, 253 S.W. 966; Norton v. Hines, 245 S.W. 346; Bright v. Thacher, 215 S.W. 788; Buskie v. Januchowsky, 218 S.W. 696; Oster v. Railroad, 256 S.W. 826. (2) The court erred in giving instruction No. 1 at the request of the plaintiff. (a) Said instruction submits in the disjunctive an assignment of negligence which directs a verdict, to-wit: "Or that she failed to stop, slacken speed, or swerve said automobile, and she thereby failed to exercise the highest degree of care." The instruction does not require the jury to find that the defendant saw or could have seen any danger to the plaintiff and the law did not require her to stop, slacken speed, or swerve the automobile unless such was present. (b) Said instruction also submits to the jury an assignment of negligence in the disjunctive which directs a verdict. Said instruction in this respect is broader than the allegations of the petition. (c) Said instruction is too long, is repetitious, confusing and misleading, and contains so many if so's and if you so find's that the same cannot be readily understood by the ordinary juror. Henry v. Railroad, 282 S.W. 423; Hegberg v. Railroad, 164 Mo. App. 514; Young v. Ridenbaugh, 67 Mo. 574; Stanley v. Railway Co., 114 Mo. 606; Talbot v. Mearns, 21 Mo. 427; Strother v. Milling Co., 261 Mo. 1; Becraft v. Grist, 52 Mo. App. 586. (3) The court erred in giving to the jury instruction No. 3, at the request of the plaintiff, purporting to submit plaintiff's case under the humanitarian doctrine. (a) Said instruction is broader than the plaintiff's pleading in that the same required the defendant to exercise the highest degree of care to discover plaintiff's peril when the petition charges: "That after said operator saw, or in the exercise of reasonable and due care could and would have seen and known of plaintiff's position and immiment peril." (b) Said instruction is erroneous because it imposes upon the defendant a higher degree of care than that required by law. It required the defendant to exercise the highest degree of care to discover plaintiff's peril and also required the defendant to exercise "a higher degree of care" to avoid injury. The humanitarian doctrine is of common law origin and under it the defendant was only required to exercise ordinary care. Banks v. Morris Co., 302 Mo. 254; Murphy v. Railroad, 228 Mo. 56; Morgan v. Railroad, 159 Mo. 262; Hanlon v. Railroad, 104 Mo. 388; State ex rel. v. Trimble, 300 Mo. 92; DeGonia v. Railroad, 224 Mo. 564; O'Flaherty v. Railway Co., 45 Mo. 70. (4) The court erred in giving instruction No. 6 at the request of the plaintiff. (a) It erroneously defines "the highest degree of care" to be "that degree of care which a person of the greatest prudence would use under the same or similar circumstances as in this case." Dougherty v. Railroad, 97 Mo. 647; Freeman v. Railway Co., 95 Mo. App. 94; Leslie v. Railway Co., 88 Mo. 75; Feary v. Railroad, 162 Mo. 75; Gilson v. Railway Co., 76 Mo. 282. (b) Said instruction erroneously defines "a high degree of care" as "that degree of care which a person of great prudence would use under the same or similar circumstances as those in this case." (5) The court erred in giving instruction No. 7 at the request of the plaintiff. There was no evidence in this case tending to prove that Mrs. Versen was in charge of and operating the automobile in question on behalf of her husband, and as his agent, or that she was acting within the scope and line of, and under authority from, and as the agent of, and for her husband. (6) The court erred in giving instruction No. 2 at the request of the plaintiff. (a) Said instruction is confusing and misleading and contains so many if so's and if you so find's, and is so long that it cannot be readily understood by the ordinary juror. See authorities under sub-head "c," point 2. (b) Said instruction is further erroneous because it permits a verdict in this case against both defendants when there was no evidence in the case tending to prove liability on the part of the defendant, W.L. Versen.
Ben Philipson and John A. Moore for respondent.
(1) (a) Admission of counsel made in open court with respect to and limiting the issues in a case on trial and conceding liability, excludes the necessity of proof to establish the liability so admitted, precludes the right to a new trial for error affecting only the question of such liability and, on appeal, an assignment of error going only to the liability so admitted is not available. Pratt v. Conway, 49 S.W. 1028, 30; Gabbert v. Evans, 155 S.W. 635, 7; Dittmeyer v. Laughein, 253 S.W. 776; Wood v. Wells, 270 S.W. 332, 4, and ca. ci.; Manion v. John etc., 273 S.W. 201, 3; National etc. v. Bohemian etc., 91 S.W. 538; Everett v. Marston, 85 S.W. 540; State ex rel. v. St. Louis etc., 38 S.W. 961; Hughes v. Eldorado etc., 197 Ill. App. 259. (b) Where, in the trial of a personal injury action, defendants' counsel, in argument to the jury, limits the argument solely to questions of injuries and damage and as part thereof states: "There is no question about the accident. . . . The only question is, how bad is she hurt? That is the only question in this case. I will concede that. . . . I want to compensate her for her injuries, . . . if you are fair about the injury proposition, I say to you, gentlemen, I will take it and pay the judgment. . . . You retire to your jury room and consider the evidence of your case and any judgment that you make which will be fair and liberal, I will say was fair," the defendants are bound by such admissions, concession and invitation and are estopped from asserting reversible error in instructions on liability. Authorities, supra, under point 1 (1). (2) (a) Assignments of error must be separately specified so that no one assignment shall embrace more than one specification of error and on a failure to comply with this requirement, the court will either refuse to consider the assignment or will overrule it if any one of the assignments of error cannot be sustained. Rule 18, St. Louis Court of Appeals; Sharp v. Quincy etc., 123 S.W. 507; State ex rel. v. Southern etc., 294 S.W. 123; Martin v. Fox, 40 Mo. App. 665; 3 Cor. Jur. 1362. (b) A joint assignment of error must be good as to all who unite in it or it will not be good as to any. Stein v. Schuneman, 273 P. 543; Meyer v. Meyer, 58 N.E. 842; McIntosh v. Wales, 134 Pac.; 3 Cor. Jur. 1352. (c) A joint motion for a new trial should be overruled as to all the parties joining therein if any one of them is not entitled to a new trial; the same rule applies as to any assignment of error therein. McCarthy v. Morgan, 96 N.W. 489; Prescott v. Houghly, 51 N.E. 105; Johnson v. Winslow, 53 N.E. 388; Wines v. State Bank etc., 53 N.E. 389; Hogan v. Petersen, 59 P. 162. (3) (a) In a personal injury action for damages caused by the operation of an automobile, when it is shown that the ownership of the automobile is in the defendants, the injury occurring while someone else was negligently driving the same, a prima-facie case is made against the owner defendant without affirmative proof to further establish the fact that the automobile at the time was being operated by a servant, employee or agent of the defendant owner, acting within the scope of his employment or authority. Edwards v. Rubin, 2 S.W.2d 205; McCarter v. Burger, 6 S.W.2d 979; Brucker v. Gambaro, 9 S.W.2d 919; State ex rel. v. Daues, 19 S.W.2d 700, 705. (b) The rule, both in automobile and other classes of cases, is that where a prima-facie case is once made for the plaintiff the truth of countervailing rebutting evidence, even though uncontradicted, is for the jury to determine. Warren v. Company, 196 S.W. 1030; Kelly v. City, 177 S.W. 966; Cases cited supra, under P. A. 3 (1). (4) (a) Neither instruction No. 1 nor instruction No. 2 is erroneous by reason of verbosity and length. Verbosity, length and minuteness of detail of an instruction do not constitute reversible error. Northern v. Chesapeake etc. Co., 8 S.W.2d 982; Block v. United etc. Co., 290 S.W. 429; Wolfe v. Payne, 241 S.W. 915; Kidd v. Railway Co., 274 S.W. 1079; Walter v. Cement Co., 250 S.W. 587; Henry v. Illinois etc., 282 S.W. 423, 4. (b) Neither of said instructions 1 and 2, respectively, is repetitious, confusing and misleading; where no attempt is made in the brief to point out wherein and in what manner the instruction is vulnerable as charged and prejudicial and no authorities are cited to support the assignment so stated, but not pointed out, the criticism should be disregarded unless the instruction on ordinary reading is clearly prejudicially erroneous for the reason stated. Authorities, supra (1); McKenzie v. Mo. Pac., 24 Mo. App. 392; Johnston v. Fidelity etc., 275 S.W. 973; Hunt v. Hunt, 270 S.W. 365. (5) Laws 1921 (First Extra Session), page 91, section 19, providing that an automobile driver, while operating the same upon a public street or highway, must exercise the highest degree of care, is applicable to negligence involved in, and requires the highest degree of care by the automobile driver under, the humanitarian rule as well as in primary negligence, both as to care in discovering and in avoiding the peril. Gude v. Wieck Bros. etc., 16 S.W.2d 60; Niehaus v. Schulties, 17 S.W.2d 604; Burke v. Pappas, 293 S.W. 986; Hulse v. Miller, 229 S.W. 85. (6) It is not essential that plaintiff prove all he alleges; it is only essential that he prove enough to make out a case. Hale v. Terminal etc., 12 S.W.2d 941; Holley v. Federal Truck Co., 274 S.W. 507. (7) Appellants are in no position on appeal to complain of error in an instruction given at their request and to which they took no exception. Instruction No. 6 may be ignored on this appeal in so far as appellants' assignment against it is concerned. (8) An instruction might be subject to criticism, yet not prejudicial; under sections 1276 and 1513, Revised Statutes 1919, if the verdict is manifestly for the right party, the judgment will not be reversed. Peterson v. Transit Co., 97 S.W. 860; Morris v. Railway, 190 S.W. 951; Briscoe v. Ry., 208 S.W. 885; Sollinger v. Cramer, 208 S.W. 871; Hannon v. Transit Co., 102 Mo. App. 216. (9) Where appellants' counsel in argument to the jury admitted to the jury in express words that the only question for the jury to decide is the amount of damages and, in effect, requested the jury to render verdict against the defendants in a personal-injury action, and then on appeal from the judgment on a verdict against them, the only assignments of error are on questions of liability, the appeal should be treated as frivolous and for vexation and delay, and should justify an award of damage by the appellate court not exceeding ten per cent of the judgment complained of, as may be just. Sec. 1515, R.S. 1919; Osborne v. Oliver, 23 Mo. App. 667; Simmons v. Railway, 19 Mo. App. 542; State etc. v. Brooks, 29 Mo. App. 286; Fulkerson v. Murdock, 123 Mo. 292. (10) Appellants having requested and obtained the giving of instruction No. 8, on the question and assuming that the issue of agency and authority of the automobile driver was submissible under the evidence, is not thereafter in position to complain of the giving of respondent's instruction No. 7 on the same question.
This is an appeal from a judgment for $5500 entered in favor of the plaintiff for personal injuries received by being struck by the automobile of the defendants.
The petition charged that the plaintiff had left a standing street car at Gravois avenue and Philips street and just as she had reached the roadway was struck by an automobile operated by defendant Mrs. Walter L. Versen who was operating the same on her own behalf and as the agent and servant of Walter L. Versen.
The petition contained three specifications of negligence, (1) the operation of the automobile in violation of section 19 of the Motor Vehicles Act (Laws of Missouri 1921, extra session, p. 91) which requires every person operating a vehicle on the highways of this State to drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person, (2) that the operator of said car violated section 21 of the same act (p. 93) in that the operator did not stop the same at a distance of not less than five feet from the rear of the street car which was going in the same direction and which had then and there stopped for the purpose of taking on and discharging passengers and the same did not remain standing or stand until such car had taken on or discharged such passengers, and in that the operator of the car did not then and there slow down and proceed cautiously and that she carelessly passed said street car with said automobile at a distance of less than eight feet from the street car, and (3) that the operator of the car failed to comply with and violated paragraph (b) of said section 21 of the Motor Vehicles Act aforesaid, page 93, in that when said automobile was in operation it was not kept as close to the right hand side of the highway as reasonably practicable. The petition also contained a paragraph under the humanitarian doctrine.
The defendant Walter L. Versen answered, admitting the ownership of the automobile, that he kept the same for pleasure and business use and that his co-defendant was his wife. He denied, however, that his co-defendant was employed by him or engaged in his business or was using or operating the automobile at his request or under his direction and that his co-defendant was engaged in her own private business and was not the servant of nor acting under the direction of, nor at his request.
Mrs. Versen answered by general denial and by a plea of contributory negligence, in that the plaintiff carelessly and negligently, without looking for approaching automobiles, stepped from the rear door of the street car and walked or ran and attempted to cross to the north side of Gravois avenue at a point twenty-five feet east of the east pedestrian walk on Philips avenue, and walked or ran immediately in front of and into the path of the defendant's automobile which defendant was then operating and driving westwardly over the northerly side of said Gravois avenue. The plaintiff filed a reply denying generally the allegations of the answer of Mrs. Versen and denying the allegation in the answer of Walter L. Versen that Mrs. Versen was not a servant of nor acting under the direction of nor at the request of said Walter L. Versen.
At the close of the plaintiff's case and again at the close of the entire evidence, each of the defendants offered a demurrer to the evidence and these were overruled in each instance.
The first matter for determination, therefore, is whether the demurrers to the evidence were properly ruled and this makes necessary a statement of the evidence.
The testimony of the mother of plaintiff, corroborated by several persons who were passengers on the street car, is to the effect that the plaintiff and her mother were riding upon the street car which was traveling along Gravois avenue, and they caused the car to be stopped at Philips avenue and it did stop with the front end of the car at the east line of Philips avenue; that the plaintiff and her mother went to the rear of the car, the mother looked out, saw a number of automobiles standing still, told her daughter, "The road is clear, you can get off;" that plaintiff stepped to the street and while the mother had her left foot off the step of the street car and her right foot on the step, the automobile of defendants passed so close that it hit the mother's knee, threw the purse out of her hand and tore the cuff off her coat sleeve, and the front of the automobile struck the plaintiff and the plaintiff was thrown under the street car in front of the rear trucks; that previous to stopping, the street car gradually reduced its speed until it came to a stop.
The deposition of the defendant Mrs. Walter L. Versen, taken by the plaintiff prior to trial, was offered in evidence by the defendant. She testified that she was driving as fast as the street car, that the street car stopped very abruptly and she stopped too, and the plaintiff jumped off the car and jumped in front of the automobile and the front fender of the latter just touched or bumped her and she fell down, and she immediately jumped to her feet and remarked that she was not hurt; that the street car had come to a stop and the automobile had practically come to a standstill when the plaintiff walked against the fender; that no part of her automobile had passed the extreme rear end of the street car when she came to a stop; that the front part of the automobile was about even with the back end of the street car when she stopped; that she had a friend with her, whom she was taking to the friend's home; that she had nothing in her car in the way of materials, goods or groceries but had been out on a pleasure drive; that her husband owned the machine, that she had no intention of calling for him to take him home; that the brakes of the automobile were in first-class working order.
The defendants also offered in evidence the deposition of the lady who was the guest of Mrs. Versen, who corroborated the testimony of Mrs. Versen.
A consideration of this evidence clearly demonstrates that as to the defendant Mrs. Walter L. Versen, at least, there was such a conflict in the evidence as justified the submission of the case to the jury. [Crowley v. St. Louis San-F. Ry. Co. (Mo. App.), 18 S.W.2d l.c. 543, and cases cited.]
It is contended, however, that there was no evidence that justified the submission of the case to the jury as to the defendant Walter L. Versen. In support of the contention defendants cite such cases as Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Drake v. Rowan (Mo. App.), 272 S.W. 101; Mount v. Naert (Mo.), 253 S.W. 966, and a number of other cases of similar character.
These cases do not rule the situation here. In the present case the defendant Walter L. Versen filed an answer admitting the ownership of the automobile in question. Ever since the decisions in the cases of Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361, and Rockwell v. Stamping Co. (Mo. App.), 241 S.W. 979, it has been held that proof of the ownership of an automobile makes a prima-facie case for plaintiff against the owner and places upon the latter the burden of proving that the driver was not using the automobile in pursuit of the business of the owner. This doctrine now applies as well to pleasure automobiles as to business vehicles. [Edwards v. Rubin (Mo. App.), 2 S.W.2d 205; McCarter v. Berger (Mo. App.), 6 S.W.2d l.c. 980.]
Has the defendant Walter L. Versen successfully borne this burden? Neither of the defendants testified at the trial but contented themselves with the introduction of the depositions of Mrs. Versen and her friend. As is recited in the statement of the evidence, Mrs. Versen testified that she had no materials, goods or groceries in the car, that she was taking her friend to the latter's home after having taken a pleasure drive and that it was just a social matter; that her husband owned the car and it was her intention to go to her own home after having taken her friend to the latter's home. As will be observed, there is absolutely no evidence in support of the allegation of the answer of the defendant Walter L. Versen that she was not engaged in his business or using or operating said automobile at his request or under his direction. But even if the evidence did support these denials of the answer of the defendant Walter L. Versen, it was still a question for the jury to determine whether or not such was the fact.
In the case of Barz v. Fleischmann Yeast Co., 308 Mo. l.c. 300, 271 S.W. 361, it was contended that because the plaintiff had offered no evidence to overcome or put in issue the evidence introduced by the defendant to the effect that the driver of the car was not acting within the scope of his employment but was bent on his own business at the time of the accident, the court said:
"This is a misconception. Respondent concedes that plaintiff made a prima-facie case. Respondent then took the laboring oar. We will not stop to point out the glaring contradictions in the evidence. The jury, however, was not bound to believe respondent's evidence even if it had not been contradicted. [Diehl v. Fire Brick Co., 253 S.W. 984, (10).]
In Peterson v. Railroad, 265 Mo. 462, 479, 178 S.W. 182, Judge WOODSON said: `As held in paragraph one of this opinion, the plaintiff having made out a prima-facie case, then according to the rule just announced the burden rested upon the defendant to disprove and overcome that case, to the satisfaction of the jury. That, of course, means that the jury and not the court must pass upon the credibility of the witnesses and the weight to be given to their testimony. That is, after a prima-facie case has once been made out, the case can never be taken from the jury.' (Citing many cases.)"
Under these decisions, therefore, the trial court was correct in refusing the peremptory instruction requested by the defendant Walter L. Versen. [Warren v. Mo. Kan. Tel. Co., 196 Mo. App. 549, 196 S.W. 1030; Kelly v. Higginsville, 185 Mo. App. l.c. 60, 171 S.W. 966.]
Defendants next complain that the court erred in the giving of certain of the instructions to the jury. The plaintiff responds that if any errors were committed in this respect, such errors were waived by the admissions in the argument of the attorney for the defendants to the jury; that the defendants are bound by such admissions and, therefore, cannot now predicate error as to such instructions.
During the course of the argument of the attorney for the defendants he said to the jury:
"There is no question about the accident. She says that herself. Counsel says that; all the witnesses say that there is no question about it. The only question is, how bad is she hurt? That is the only question in this case. I will concede that. I want to be fair about this injury situation. The question is, how much injuries has she got now? That is the injury situation, and that is for you gentlemen of the jury. . . . I will say to you if you are fair about the injury proposition, I say to you gentlemen I will take it and will pay the judgment . . . Now then, you retire to your jury room and consider the evidence of your case, and any judgment that you make which will be fair and liberal I will say was fair."
It has many times been held that where counsel for plaintiff, in their opening statement, state or admit facts, the existence of which precludes a recovery by their clients, the courts may close the case at once and give judgment against their clients. [Pratt v. Conway (Mo.), 49 S.W. l.c. 1030; Wood v. Wells (Mo.), 270 S.W. l.c. 334; Tootle v. Buckingham, 190 Mo. l.c. 195, 88 S.W. 619; St. Louis v. Babcock, 156 Mo. 157, 56 S.W. 732; Illinois Glass Co. v. Ingraham (Mo. App.), 264 S.W. l.c. 46.] It has also been held that although the instructions given by the court proceeded upon the wrong hypothesis, yet in view of the opening statement of plaintiff's counsel concerning certain facts, the declarations of law, even if erroneous, were harmless and non-prejudicial (Eaton v. Curtis (Mo.), 4 S.W.2d l.c. 824). So it has been held that an admission by counsel for defendant during the trial of ownership of the note in question by the plaintiff was binding upon his client (Pratt v. Conway (Mo.), 49 S.W. l.c. 1030), and that an oral admission or agreement made in open court for the purposes of the trial, or hearing and preserved in the record, has the same binding force and effect as a written, signed stipulation (Dittmeier v. Laughlin (Mo. App.), 253 S.W. l.c. 780.] It has also been held that where an attorney for a defendant makes a statement as to a fact admitted and plaintiff stood mute, the latter is estopped to deny the facts disclosed by the statement. [Manion v. John Hancock Mutual Life Ins. Co. (Mo. App.), 273 S.W. l.c. 203; Walsh v. Mo. Pac., 102 Mo. l.c. 588, 14 S.W. 873, 15 S.W. 757.]
In the case of Gabbert v. Evans, 184 Mo. App. 291, 166 S.W. 635, it was held that the defendant must be held to the same theory in the appellate court as that in the trial court where the attorney for plaintiff, by his statement, limited the negligence complained of and the trial proceeded on that basis. So also it was held that where an attorney informed the court that a transcript offered in evidence was in proper form he could not thereafter object that it was not properly certified and authenticated under the laws of the United States. [State v. Levy, 262 Mo. 191, 170 S.W. 1114.]
In the case of Matousek v. Bohemian R.C.F.C.U. (Mo.), 91 S.W. 538, the court held that the appellant had not successfully borne the burden of law laid upon his shoulders of pointing out reversible error, because the trial proceeded on the concession and assumption that facts constituting res judicata stood confessed and, therefore, the court said:
"It is not necessary to cite authorities to sustain the proposition that positions once taken and acted on may not be thus reversed and turned topsy-turvy. Such bouleversement (to timidly borrow a word respectably introduced to this court in another case by a counselor learned in linguistics and glossology) has no place in the practical science of jurisprudence."
Does the doctrine announced in the foregoing cases apply as well to the situation here as it does to the circumstances recited in those cases? We think it does.
Section 1513, Revised Statutes of Missouri 1919, provides, that: "The Supreme Court or Court of Appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action."
In the present case the court had given its instructions submitting to the jury the question of the negligence and the liability of the defendants for the injuries suffered by the plaintiff, but the attorney for the defendants, evidently convinced that the testimony warranted a judgment in favor of the plaintiff, completely and voluntarily abandoned reliance upon the testimony and the instructions given and conceded liability. Although we have not quoted the entire argument, but have limited the quotation to the concession made, his argument was directed solely to an effort to minimize the amount of the verdict, about the amount of which no question is raised on this appeal. In view of this situation can it be said that after having limited the issue for the consideration of the jury, that he may yet assert that error was committed by the court against his client materially affecting the merits of the action? We think not. Whatever errors may have been committed by the court in the instructions given, if any, were as distinctly waived by the defendants in making the concession which was made as if they had specifically stated that they waived all questions in the case and conceded liability but desired to be heard only upon the amount which should be awarded to the plaintiff. Having once taken that position and having themselves brought about the judgment of liability it is now too late to withdraw such concession and complain of the court's action prior thereto. By making the concession they condoned any error that may have been committed by the court and, therefore, we are in no position to hold that the verdict was the result of any action of the court materially affecting the merits of the action. Since the defendants themselves conceded liability, the only error committed, if any, was their own error, of which they may not complain. In compliance with the section of the statute before quoted our courts have uniformly held that we may not reverse a judgment unless we shall believe that error was committed by the trial court against the appellant materially affecting the merits of the case. [Lester v. Hugley (Mo. App.), 230 S.W. l.c. 356; Mayfield v. Geo. O. Richardson M. Co. (Mo. App.), 231 S.W. l.c. 293; Lampe v. United Rys. Co. (Mo. App.), 232 S.W. l.c. 255; Karagas v. U.P. Ry. Co. (Mo. App.), 232 S.W. l.c. 1105; Rosen-Reichardt B. Co. v. Chamberlain (Mo. App.), 238 S.W. 556; Murray v. St. Louis Wire I. Co. (Mo. App.), 238 S.W. l.c. 841; Lass v. Kansas City Rys. Co. (Mo. App.), 233 S.W. l.c. 72.]
We are confirmed in our view concerning the correctness of our conclusion by the fact that in two cases the Supreme Court of the State has held that admissions of counsel made before it upon appeals were such as to indicate that the appellant was not injured by the proceedings complained of in the trial court and entered orders accordingly. Thus, in the case of Pate v. Dumbauld, 298 Mo. 435, 447, 250 S.W. 49, the trial court had granted plaintiff a new trial from which an appeal was prosecuted by the defendant. On the hearing in the Supreme Court the attorney for the plaintiff conceded certain facts concerning the condition of the plaintiff. The court said: "We feel legally justified in accepting as true the statement of respondent's counsel, which clearly indicates that plaintiff's conjecture as to his prior physical condition, and defendant's alleged negligence, were not well founded" and accordingly held that the trial court erred in setting aside the nonsuit and granting plaintiff a new trial.
In the case of State v. Ray (Mo.), 225 S.W. 969, 974, the prosecuting attorney, in his argument to the jury, called attention to conditions in Kansas City in respect to a reign of terror, etc., without any evidence in the case upon which to base such statement. The defendant appealed from a conviction. The defendant's attorney in his brief in the Supreme Court, referred to the fact that at the time of the murder and for some months prior thereto, Kansas City had been overrun and infested by flashlight fiends and robbers of homes and that the citizens of Kansas City at that time were terror-stricken with this condition. The court held that it felt legally justified in accepting as true the statements so made by defendant's attorney and that with the conditions conceded, the remarks of the prosecuting attorney complained of afforded no ground for reversing the case.
The plaintiff (respondent) has filed objections to appellant's supplemental abstract of record. In view of the fact that we have not found it necessary to consider the matters presented in such abstract the objections will stand as overruled.
Finding no reversible error, the judgment of the circuit court must be, and the same is hereby, affirmed. Becker and Nipper, JJ., concur.