the record discloses that not one single objection was made or sustained to any evidence offered by defendant, and that while 36 objections to testimony offered by the state were made by defendant, 31 of these objections were sustained by the court. To 4 of the adverse rulings no exceptions were saved to the action of the court, and in the other and remaining one the court was clearly right.

defendant, at which it was agreed to burglar- and against defendant. An examination of ize this laundry. The witness Stanton testified positively that defendant and he were stationed outside of the building, pursuant to agreement, to watch for officers and to give the alarm, while King and Maglett entered the building and blew the safe. Defendant himself admitted his presence at the place where the other witnesses placed him, to wit, upon the street in front of the burglarized building, but he explains his presence there by saying that he had been to visit his sister in another part of town, and on returning toward his lodging place had stopped in front of this building to catch a car. As to his visiting his sister he is corroborated by her and by another sister who testified for him. Further details of evidence, if they shall become necessary, will be referred to and set out in the subjoined opinion.

[4, 5] The testimony was sufficient, if the jury believed it (and the sequel would indicate that they did), to sustain the conviction of defendant, although it cannot be said that the evidence in the case precludes the possibility of the defendant's innocence. Almost all of the direct evidence of defendant's participation as an accessory in the crime charged came from ex-convicts and accomplices. Touching the credibility of all of these, the court gave the necessary precautionary instructions as to the manner of weighing their testimony. All matters and details necessary to prove this offense were abundantly shown by testimony other than that of accomplices, save the specific intent with which defendant happened to be at the scene of the burglary. That he was so [1] He complains that the verdict is un- present is not denied. He admits his presreasonable, and that such unreasonablenessence, but says he was there waiting to catch

Loyd Martz, of Kansas City, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.

FARIS, P. J. (after stating the facts as above). Defendant is not represented in this court by counsel, so we are compelled, guided by his motion for a new trial, to examine the

whole record for error.

indicates passion and prejudice. There appears upon the record no reason whatever for the existence of passion or prejudice on the jury's part. The record is singularly free from any inflammatory argument by counsel for the state. The punishment inflicted by the verdict of the jury is admittedly severe, but it yet falls five years short of the maximum punishment prescribed by the statute for the offense of which defendant was con

victed. Section 4526 and section 4527, R. S. 1909. Since, therefore, there are no indications of passion or prejudice, save the inferences arising from the severity of the punishment, and since this severity was fully warranted by the statute, we disallow the

contention.

[2] Neither an objection nor an exception was made or saved to the instructions as given by the court, nor is any matter preserved for our review upon any question pertaining to the instructions. The general assignment of error is made in the motion for a new trial that "the court erred in failing to instruct on all of the law governing the case." We have held many times that such an assignment is not sufficient, in that it fails definitely to point out to the trial court wherein he erred. State v. Harris, 245 Mo. 445, 150 S. W. 1040. If the trial court is to be convicted of error for his failure to instruct on all of the law of the case, he ought to be

given an opportunity to correct his error by granting a new trial before the expense and delay of an appeal have been incurred.

[3] Formal complaints are lodged as to the

a street car; one of his accomplices and the witness Harry Brown, a confessed ex-convict, say he was there as a lookout for those engaged in burglarizing the building, and that he gave a signal of the approach of the police officers. As to this signal these witnessThe credibility of these witnesses was for es are corroborated by one of the officers. the jury, and not for us. State v. Maggard, 250 Mo. 335, 157 S. W. 354; State v. Concelia, 250 Mo. 411, 157 S. W. 778.

In the above case of State v. Concelia, 250 Mo. at page 424, 157 S. W. at page 781, touching the sufficiency of the evidence to take a criminal case to the jury, we said:

has been rather loosely called any 'substantial "Where there exists upon the record what

evidence' of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. "The rule is that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality.' State v. Glahn, 97 Mo. 689 [11 S. W. 260]; State v. Howell, 100 Mo. loc. cit. 659 [14 S. W. 4]."

Weighed by this rule, we are not able to say, upon the facts as the record shows them,

that the evidence does not warrant the verdict found by the jury.

Finding no error meet for reversal, after a painstaking combing of the record in the light of defendant's motions for a new trial and in arrest, we conclude that the judgment should be affirmed. Let this be done.

PARRIS v. CRUTCHER. (No. 1424.) (Springfield Court of Appeals.

1. TRIAL

March 1, 1915.)

252-INSTRUCTIONS

BILITY TO EVIDENCE.

Missouri.

APPLICA

Where there was no evidence that plaintiff's injuries were permanent, an instruction submitting to the jury the question of compensation for permanent injuries was improper.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. 252.] 2. TRIAL 243-INSTRUCTIONS - INCONSISTENT INSTRUCTIONS.

Where, on request of defendant, the jury were charged that there was no evidence of permanent injury, and plaintiff could be allowed no compensation therefor, the giving of an instruction submitting the question of compensation for permanent injuries was erroneous. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 564, 565; Dec. Dig. 243.] 3. WITNESSES MODE.

2822 IMPEACHMENT

While Rev. St. 1909, § 6383, authorizes proof of the conviction of a criminal offense to discredit a witness, it was error, in an action for damages for an assault, to ask defendant several times if he had not been convicted many years before of assaulting a little girl who stayed in his house; the obvious purpose of the question and repetition being to prejudice defendant as the assault might either have been a mere misdemeanor or a felony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 928, 990-992; Dec. Dig. 2822.1

Appeal from Circuit Court, Greene County; John Schmook, Special Judge.

Action by Sarah E. Parris against L. F. Crutcher. From a judgment for defendant, plaintiff appeals. Reversed and remanded. C. O. Hamlin, of Dallas, Tex., and Hamlin & Seawel, of Springfield, for appellant. R. C. Patterson and Orin Patterson, both of Springfield, for respondent.

prove any permanent injuries to the plaintiff as the result of the alleged conduct of the defendant, but, in an instruction given in behalf of plaintiff upon the whole case, the jury was told that, in determining the amount of plaintiff's damages, they should take into consideration "the extent of the plaintiff's injuries, if any such are shown by the evidence, including the physical pain and mental anguish, if any, suffered by her on account of such injuries both at the time of the assault and such mental anguish and physical pain, if any, as she may be reasonably certain to suffer in the future therefrom." The objectionable feature of this instruction we have italicized. It was error to give it, because there was no testimony upon which to base it, but there was such testimony as that the jury would necessarily be misled thereby.

On behalf of the defendant the jury was instructed that there was no evidence that plaintiff's injuries, if any, were permanent, and that, if they found the issues in favor of the plaintiff, no sum should be allowed her for permanent injuries. These two instructions are so inconsistent that it is not possible to tell which the jury followed. Stid v. Missouri Pacific Railroad Co., 236 Mo. 382, 399, 139 S. W. 172.

[3] The defendant testified in his own behalf, and upon cross-examination he was asked if he was not convicted a number of years ago and fined $100 for assaulting a little girl that stayed at his house. The question was objected to, but, before the court ruled on the objection, the question was repeated. Another objection was interposed after it was repeated, and the court overruled it. The question was again repeated, and we are convinced that the object in doing so was to arouse in the minds of the jury a prejudice against the defendant. The offense to which the inquiry was directed was a charge of common assault, apparently, to which the defendant entered a plea of guilty about 30 years ago. While section 6383 R. S. 1909, authorizes the conviction of a criminal offense to be proved to affect the credibility of a witness, yet there is no reason in this case for not having particularly designated the offense, so that there might not have been any misunderstanding, in the minds of the jury, of the charge to which the defendant entered his plea of guilty; neither should the plaintiff have mentioned the fine imposed, who the party was, or that she stayed with the defendant at his house. State v. Kimmel, 156 Mo. App. 461, 471, 137 S. W. 329, and State v. Spivey, 191 Mo. 87, 111, 90 S. W. 81. The court should have promptly sustained the objection to the question in the form in which it was propounded. There are two kinds of assault defined by our statute-one committed with an in[1, 2] There is no testimony that tends to tent to commit a felony and the other a

ROBERTSON, P. J. The defendant and plaintiff's husband engaged in a fight at the Parris home, which terminated in the defendant calling for "Mamma" (his wife), who was near, and who pulled the plaintiff's husband off of the defendant. The defendant, as a result of the altercation, received the usual black eyes, scratches, and bruises. In the preliminary skirmishes the plaintiff appeared and undertook to prevent any trouble, and the defendant grabbed her by the throat, as the testimony tends to prove, and knocked her off of the porch backward, as the result of which she claims to have received injuries for which she sued for $1,500 actual and $2,000 punitive damages. The defendant's testimony tends to prove that he did not in any manner injure the plaintiff. The Parrises lived in defendant's house, and he went there to collect rent. A jury trial resulted in a verdict for plaintiff in the sum of $500 actual damages, and the defendant has appealed.

Mo.)

JOHNSON v. AMBURSEN HYDRAULIC CONST. CO.

The

The question should have common assault. properly defined the character of the assault, otherwise the jury may have inferred that it was the more heinous one. practice of seeking to obtain an advantage, in a trial of a case, by injecting therein unfair insinuations, should have the severest condemnation and suffer the most disastrous result permissible under the law. In a case of this character, if the testimony in behalf of the plaintiff is believed, then the defendant is necessarily held in such contempt by the jury and the courts that he will receive no more at their hands than is necessary to be given him under the law. The testimony in behalf of the defendant, if believed by the jury, would justify a verdict in his behalf, and he is entitled to have the fair judgment of a jury thereon.

To the end that the defendant may have a fair and impartial trial, and on account of errors above discussed, the judgment is reversed, and the cause remanded.

STURGIS and FARRINGTON, JJ., con

cur.

JOHNSON v. AMBURSEN HYDRAULIC CONST. CO. (No. 1372.) (Springfield Court of Appeals. Missouri. Jan. 30, 1915. Rehearing Denied Feb. 16, 1915.) 1. MASTER AND SERVANT 277-FACT OF EMPLOYMENT SUFFICIENCY OF EVIDENCE. Evidence held sufficient to justify a finding that plaintiff was in defendant's employ at the

time of accident.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. 277.] 2. MASTER AND SERVANT 268- FACT OF EMPLOYMENT EVIDENCE.

The fact that defendant's name appeared on pay checks of certain laborers was competent evidence that such men, plaintiff among them, were in defendant's employ at the time of accident.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 910; Dec. Dig. 268.] 3. NEGLIGENCE 56-PROXIMATE CAUSE.

The leaving open of a so-called "scuttle hole" was the proximate cause of plaintiff's injury, where it was so linked and bound by the succeeding events that all created or became a continuous whole, the one so operating upon the others as to make the injury the result of the primary cause.

jury, as is also the question whether defendant
of its act had it exercised reasonable precau-
might have foreseen the probable consequences
tion.

[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 1001-1003, 1006–1008,
1010-1033, 1035, 1036-1044, 1046-1050, 1053;
Dec. Dig. 285, 286.]
6. MASTER AND SERVANT

226-INJURY TO

SERVANT-NEGLIGENCE OF MASTER AS AF-
FECTING DOCTRINE OF ASSUMPTION OF RISK.
Where defendant did not use ordinary care
assume the risk,
toward the plaintiff in leaving a "scuttle hole"
uncovered, plaintiff did not
only such risks as would remain if the master
under the Missouri rule that a servant assumes
had used ordinary care.

[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 659-667; Dec. Dig.
226.]

7. MASTER AND SERVANT 234-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.

Where the defendant had provided but one way in which plaintiff could oil a sprocket wheel, i. e., by straddling an open "scuttle hole," which subjected him to the danger of being caught in revolving cogwheels, unless the danger was so obvious that no ordinarily prudent man would have attempted the work, the plaintiff was not barred of his recovery by contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. 234.]

8. EVIDENCE 177-SECONDARY EVIDENCECHECKS.

Where defendant's reply to an order of the court requiring it to produce certain checks was that they were beyond the jurisdiction of the court, it cannot object to the introduction of plaintiff; their absence being accounted for. see Evidence, secondary evidence as to their contents by the [Ed. Note. For other cases, Cent. Dig. §§ 557, 570-579; Dec. Dig. 177.] 9. EVIDENCE 471 — OPINION OPINION.

-

- ADMISSIBLE

While in the nature of things testimony that a certain person was defendant's superintendent on a job is more or less of a conclusion facts not stated directly to the jury, it is none drawn by the witness himself from observed the less admissible in evidence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. 471.] 10. APPEAL AND ERROR 1053-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Any error in the admission of evidence, applicable only to the first count of a petition, was harmless, where such count was subsequently dismissed by the plaintiff, and no element of liability thereunder was submitted to the jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. 1053.]

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. 56.] 4. MASTER AND SERVANT 278-INJURY TO SERVANT LIABILITY OF MASTER-SUFFI-11. PLEADING 420-DEPARTURE-WAIVER. a second count of an CIENCY OF EVIDENCE.

Evidence held sufficient to show that defendant, since it might have foreseen plaintiff's injuries as the reasonable effects of its own act, was liable for leaving open a "scuttle hole,' which compelled plaintiff to lean over revolving cogwheels to oil the machinery.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 954, 956-958, 960-969, 971, 972, 973; Dec. Dig. 278.] 5. MASTER AND SERVANT

285, 286-INJURIES TO SERVANT-QUESTIONS FOR JURY. Whether the injury sued for was the proximate result of defendant's act is generally

By answering to amended petition and proceeding to trial on the issues, the defendant waived any right to object that such count was a departure from the original cause of action pleaded.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1408-1412; Dec. Dig. 420 12. TRIAL 260 - REQUESTS FOR INSTRUCTIONS-POINT COVERED.

It is not error to refuse a charge on a point that another given charge covers correctly. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.]

other cases see same topic and KEY

DISREGARDING RULE.

The printing of the record verbatim, on appeal, is not a compliance with the court's rules as to the abstracting of testimony, and, now that attorneys have had opportunity to familiarize themselves therewith, the day is not far distant when the court will rigidly enforce it by affirming judgment against the delinquents. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2595-2597, 2600-2605; Dec. Dig. 586.]

13. APPEAL AND ERROR 586- RULES OF Construction Company, and also dismissed COURT ABSTRACTS OF EVIDENCE-EFFECT OF as to the first count of his third amended petition. The judgment therefore is based on the second count of the third amended petition, wherein the charge of negligence is that defendant negligently and carelessly failed and neglected to provide a covering for the scuttle or pit on the inside of the boat on which covering plaintiff might have stood in safety while engaged in oiling bearings on the shaft; that he was required to stand on the inside of the boat astride the scuttle hole or pit, and, by reason of being so compelled to stand astride said scuttle or pit, his clothing and a rain coat which he was wearing at the time was caused to come in dangerous nearness to the cogwheels aforesaid, and the said coat was, by reason of the position in which he was required to stand while so engaged in oiling said shaft bearings, caught by the cogwheels aforesaid, and the plaintiff was thereby injured. As to his injuries, the plaintiff alleged, and the uncontroverted evi

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Err Johnson against the Ambursen Hydraulic Construction Company. Judgment for plaintiff for $7,500, and defendant appeals. Affirmed.

Lyon & Swarts and Dwight D. Currie, all of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant. Watson & Page, of Springfield, and Moore & Aubrey, of Ozark, for respondent.

FARRINGTON, J. The plaintiff recover-dence shows, that his left arm was caught

ed a judgment against defendant for $7,500 between the cogwheels that engaged each othon account of personal injuries alleged to er and ground off near where the arm joins have been sustained by him while in the em- the shoulder. The defendant brings its apploy of the defendant. Plaintiff in the origi-peal to this court, charging numerous errors nal petition sought to recover damages on committed by the trial court which will be the charge that defendant negligently and noticed in the course of the opinion. carelessly failed to cover certain machinery, The facts are that respondent at the time consisting of cogwheels and shafts on a boat of his injury was a man about 21 years of used on White river in the construction of a age and had been working for a number of dam several miles up the river from Forsyth months in the construction of the White rivin Taney county, Mo. The suit was brought er dam near Forsyth, and that defendant against several defendants. A first amended was engaged in building this dam, and that petition was filed against three defendants, in this work several hundred men were emnot necessary to be discussed. A second ployed. There was used in connection with amended petition was filed consisting of two the work two river boats, designated "A" and counts; one of the defendants named in the "B," which were identical in size and conoriginal petition and in the first amended pe- struction. These boats were propelled by tition being dropped. The first count charg- gasoline engines located near the front end ed negligence in failing to securely guard of the boats. The power was transmitted certain machinery. The second count sought from the engine to the stern wheel of the recovery on the common-law liability of de-boat by shafts and cogwheels. In its mechfendants in failing to furnish plaintiff a rea-anism there were two cogwheels about two sonably safe place in which to work, requir-feet in diameter, one located above the other ing him to perform duties at a place near the and engaging each other. They were about cogwheels where a hole in the floor of the nine inches from the side of the boat, and a boat, called a "scuttle hole," was left open shaft extended from the upper cogwheel with no covering, alleging that, owing to the through the side wall of the boat, and on position the plaintiff was required to assume the outer end of this shaft was a sprocket in performing his duties by reason of the wheel over which a chain ran back to the scuttle hole being left open, he was subjected stern of the boat, operating the wheel or to unnecessary risk and hazard amounting sprocket. The side wall of the boat was to negligence on the part of his master. The about three feet high, and outside the wall third amended petition was filed against this was a bearing on an axle which required oildefendant (appellant) and one other; the ing at intervals of every few hours. On the first count thereof going to the failure to se- inside of the boat on the floor, and about a curely guard the cogwheels, and the second foot in front of the cogwheels, was a hole cut count proceeding on the common-law liability in the false bottom of the boat, called a "scutof the defendant for failure to furnish plain- tle." This scuttle was about three feet long tiff a reasonably safe place in which to do and two feet wide, and from the false bottom his work. At the conclusion of the evidence, to the bottom of the boat was about eight the plaintiff dismissed his suit as to all the inches, and on the day of the accident this defendants except the Ambursen Hydraulic space was full of water. Along the side of