relating to the degree of the plaintiff's injuries.

2. The petition alleges that the defendant received the plaintiff on its car as a passenger, and for a valuable consideration paid by plaintiff undertook to carry him safely to his point of destination. In the instructions given for plaintiff the jury are told that if they should find certain facts, among them that "the defendant received the plaintiff as a passenger to be carried for hire," they should find for the plaintiff. There was no evidence that plaintiff paid any fare, or that fare was demanded. The submitting of that question to the jury is assigned for error. The argument in support of the assignment is that the relation of passenger and carrier is created only by contract, and that under the general denial the burden was on the plaintiff to prove the contract alleged, and, failing to offer any proof on that point, there was nothing to go to the jury-citing in support of that proposition Schepers v. Railroad, 126 Mo. 665, 29 S. W. 712; Schaefer v. Railroad, 128 Mo. 64, 30 S. W. 331. Those cases do hold that the relation of passenger and carrier grows only out of contract, but they also hold that the contract is either express or implied. The evidence in this case shows that the plaintiff boarded one of defendant's street cars at Lucas avenue, and was carried in it as far as the crossing of Park avenue and Gratton street, where the accident occurred. The facts that he was received in the vehicle of a public carrier and was being carried in the manner of a passenger, nothing else appearing, were sufficient for the inference that he was there under the implied contract that created the relation between him and the defendant of passenger and carrier. There was no error in submitting that question to the jury.

3. The petition alleges that, while the plaintiff was in a car of the defendant, its servants so carelessly and negligently managed another one of its cars by a "negligent and violent rate of speed" that it was brought into violent collision with the one in which plaintiff was being carried, and the accident resulted therefrom. In an instruction for the plaintiff the jury were told that if they should find certain facts, among them that the defendant "so negligently ran and operated said cars, or either of them," as to cause the collision, the verdict should be for the plaintiff. It is assigned for error that the words in quotation rendered the instruction erroneous, as authorizing a recovery on the finding of an act of negligence different from that stated in the petition; that is to say, on the finding that the car in which plaintiff was riding was negligently managed. If the instruction was broader than it should have been, the error does not reach the merits of the case. According to the uncontradicted evidence the accident was caused by the negligence of defendant's servants, either those on the Fourth Street car, which

crushed into the Bellefontaine car, or those on the latter in not avoiding the collision. Error not affecting the merits of the action is not to be regarded on appeal. Section 865, Rev. St. 1899.

4. Appellant complains of the instruction given for plaintiff on the measure of damages. The testimony for the plaintiff tended to show that his injuries were such as caused great suffering, physical and mental, that they disabled him from pursuing his avocation, and they were likely to be permanent. The instruction complained of is as follows: "If under the law and evidence you find the issues in this cause for the plaintiff, the damages which you may award him should be compensatory only, and in estimating such damages you will take into consideration and allow him for expenses for doctor's bill incurred, if any, in treating his injuries; also, compensation for the time lost, if any, during his illness occasioned by his injury. And while the evidence may not prove any specific sum in dollars and cents that plaintiff may have been damaged by reason of physical pain and mental anguish, yet you may allow him what you believe to be just and fair to compensate him for such sufferings, if any. You will also take into consideration, in estimating his damages, his diminished capacity for earning money, if you so believe from the evidence, and on account thereof make him such allowance as you may believe to be fair and just for any loss that you may believe from the evidence he has sustained in the past by reason thereof, and for any loss you may believe from the evidence he may sustain in his future earnings, by reason of such diminished earning capacity as may be occasioned by his injury." The criticism of plaintiff's instruction is that, it authorizes a recovery for loss of time, and also for diminished earning capacity during the same period, and for loss of what he may sustain in the future, with emphasis on the word "may." The instruction does direct the jury to consider the plaintiff's loss of time and diminution of his earning capacity, past and future, and possibly one reading that instruction might construe it to mean that plaintiff was to be compensated for time lost in the past and wages lost in the same past period by reason of diminished earning capacity; but that would be a strained construction and an unreasonable one. The value of his lost time could be estimated only by the value of his lost wages. During some of the time he might be entirely incapacitated, and in other some his earning capacity be only diminished. In view of this criticism, we see how the instruction might have been worded so as to render it more accurate; but that may be said of almost every instruction, when viewed under the microscope.

The learned counsel for appellant do not attach much importance to that point, but do attach importance to another point in the

Instruction. They say: "The vital error in this instruction, however, is that it directs a recovery for loss of future earnings that the plaintiff may sustain by reason of diminished earning capacity that may be occasioned by his injury." The counsel give to the word "may" in that connection the meaning of the term "possibly might," and they say: "This instruction violates the role that future damages for injuries, pain, or suffering must be confined to such as the evidence renders it reasonably certain will result from the injury." That is the correct rule, as shown by the numerous cases cited in its support, among which are Russell v. Columbia, 74 Mo. 480, 41 Am. Rep. 325; Bradley v. Railway, 138 Mo. 301, 39 S. W. 763; Chilton v. St. Joseph, 143 Mo. 192, 44 & W. 766. The word "may," used as an anxiliary verb, has a wide scope of meaning, into which the idea of mere possibility enters; but it also comprehends the idea of probability, and also the thought of what is with more or less certainty to be expected, and whether it is to carry the one thought or the other often depends on the context. The word "may" is used in this instruction nine times. If we should erase it whenever it occurs, and write in its place "possibly might." we would convert it into an instruction conveying a very different meaning from that which a casual reading of it now convers. This instruction is an almost literal copy of one approved by this court in Rodney v. Railroad, 127 Mo. 676, 28 9. W. 887, 30 S. W. 150, where the word "may" is used in the same sense. The term "may sustain in the future," in reference to the same subfect. has been approved in other cases by this court. O'Connell v. Railway, 106 Mo. 484, 17 S. W. 494; Duerst v. Stamping Co., 163 Mo. 617, 63 S. W. 827. A safer word than "may" could be used to express the Idea of probability or reasonable certainty; but we will not hold an instruction erroneous, where the context, in the light of the facts of the case to which the instruction is applied, shows that it is used to imply reasonable probability or reasonable certainty.

5. Lastly it is insisted that the damages are excessive. The testimony for the plaintiff tended to show that at the time of the accident he was 42 years old, in the prime of life, strong and healthy, weighing 190 pounds; by the collision he was thrown to the other side of the car in which he was seated, his back striking the edge of a seat on that side, inflicting a painful injury, and he was carried home in an ambulance; that be has never been able to stand or walk Ence that time; that he has lost 40 or 50 pounds of weight, is required constantly to take purgatives to move his bowels, has diabetes and paralysis of both his legs, and bas manifestation of progressive nervous decay. He is a helpless cripple, and there is httle hope of any improvement. The expert testimony on the part of the defendant

tended to show that the plaintiff's injuries were not as severe as he represented them to be; that the condition of his legs was due to hysterical anasthesia, which is a disturbance in the function of the central nervous system, and such cases usually get well. When recovery comes, it is spontaneous. A physician who examined the plaintiff by order of the court found no evidence of diabetes or ankylosis. Another learned witness testified that traumatic neurosis was not a disease, but was a condition. "The nervous system is in a bad condition-that is, does not act in a proper manner-and they are mentally disturbed more easily, and they are very miserable, irritable, little things worry them, and they may lose flesh, or else they may become weak as far as their muscular system is concerned. Under proper conditions they recover, sometimes very promptly, sometimes with time. They may run for the course of a year or two. * They do not die of traumatic neurosis. It is called hysterical paralysis. It is not a paralysis based upon a defined lesion of the spinal cord. * * The recovery of sensation may be rapid, or it may be slow. It may be blood, or it may be paralysis."

# *

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The award of the jury was $23,400. That award in our opinion is excessive. We recognize the difficulty in laying down a rule for the measure of damages in such cases, and it is always with great hesitancy that we interfere with the verdict of a jury on this question; but we feel constrained to do so in this instance. In our opinion $15,000 would be a fair compensation to the plaintiff for the injuries he has suffered. If, therefore, the plaintiff sees fit within 10 days to remit $8,400 of his award, we will affirm the judgment; otherwise, the judgment will be reversed, and the cause remanded for a new trial. All concur, except MARSHALL, J., not sitting.

3. SAME-DEMURRER TO EVIDENCE.

Where there was substantial evidence introduced by plaintiff to establish the allegations of the petition, a demurrer to the evidence was properly overruled.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 346, 347.]

4. SAME-ADMISSIBILITY OF EVIDENCE-ERROR CURED BY INSTRUCTION.

Where the issue was whether plaintiff had consented to an alteration in a written contract between himself and defendant, the admission of evidence bearing on the question whether defendant had by false representations induced plaintiff to agree to a modification was cured by an instruction that, if plaintiff had consented to the modification, the verdict should be for defendant.

5. CROSS-EXAMINATION-HARMLESS ERROR.

There was no error prejudicial to defendant in cross-examining him as to the meaning of letters written by him to plaintiff, defendant being thus offered an opportunity of explaining the meaning of his letters.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4140-4145.] 6. ACTION-DEMAND-WAIVER.

By the express provisions of Rev. St. 1899, § 1575, an objection that no demand for the subject-matter of the suit was made prior to the action is not available unless it is expressly set up by way of defense and accompanied by a tender.

Where brokers, without the consent of their customer, altered a written contract so as to give them a greater commission, the alteration rendered the entire contract void. 9. SAME-INSTRUCTIONS.

On an issue as to whether brokers, without the consent of their customer, had materially altered the written contract, it was not error to instruct that the customer was not bound by the alteration unless he was present in the office of the brokers at the time the alteration was made, the brokers' theory being that the alteration was made at their office, and there being no evidence to show that it was proposed, agreed to, or made at any other place. 10. SAME-ACTION AGAINST BROKER-MONEY RECEIVED-INSTRUCTIONS.

In an action against brokers to recover moneys retained by them out of the purchase price, an instruction that, though plaintiff gave defendants authority to sell his land at a specified sum per acre, such authority did not excuse defendants from selling for the best obtainable price, was not erroneous on the theory that it made the agent exceed the instructions of his principal, and made him liable if he did not.

11. SAME-FRAUD-INSTRUCTIONS.

Where a landowner sued his brokers, who had effected a sale, to recover a portion of the purchase money which had been retained by them on the ground that the contract was not binding on him because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading the contract to him, and also on the ground that the contract had been nullified by an alteration thereof by defendants, an instruction that, if plaintiff signed the original contract, defendants, in reading it to him having fraudulently

deceived him, then the contract was not binding, was not erroneous on the theory that the action was not one for the cancellation of a contract.

12. SAME-INSTRUCTIONS ASSUMING FACTS.

Where, in an action to recover from brokers a portion of the purchase money retained by them for effecting a sale of plaintiff's land, the evidence showed that the purchaser gave his check to plaintiff, and he turned it over to defendants, who subsequently gave plaintiff their check, an instruction assuming that defendants received the money from the purchaser was not erroneous.

13. SAME-ARGUMENTS of Counsel.

On an issue as to whether brokers had made an alteration in a written contract between themselves and their customer it was not error for plaintiff's counsel, in his argument to the jury, to comment on the fact that the contract which was before the jury appeared to be in five different handwritings.

14. APPEAL-REVIEW-QUESTIONS OF FACT.

The mere fact that the preponderance of the evidence may, in the opinion of the Supreme Court, be against the verdict, is no ground for disturbing the judgment where there is substantial evidence to support it.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Thomas Harrison, Sr., against J. J. Lakenan and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

C. A. Barnes, F. R. Jesse, and Geo. Robertson, for appellants. R. D. Rodgers and P. H. Cullen, for respondent.

MARSHALL, J. This is an action at law to recover $4,907.10 alleged to have been received by the defendants for the use of the plaintiff, and by the defendants retained without the knowledge or consent of the plaintiff. There was a verdict and judgment for the plaintiff for $4,888, from which, after proper steps, the defendants appealed.

The issues: The petition was originally in three counts, and upon motion of the defendants the plaintiff was required to elect upon which count he would stand, and accordingly he elected to stand on the first count of the petition. In substance, that count alleges that the defendants were and are partners engaged in the real estate business; that in June, 1898, the plaintiff employed defendants to sell his farm, consisting of 985.82 acres of land, in Callaway county, Mo., and agreed to pay them for so doing a commission of 5 per cent. on the first $1,000 realized from the sale, and 21⁄2 per cent. on each remaining $1,000 so realized; that the defendants agreed so to do for said commission; that thereafter, on the 14th of October, 1898, defendants sold the land to one L. K. Scroggins at the price of $25 an acre, aggregating $24,645.50, and that they collected said sum from purchaser therefor; that the defendants are entitled to retain, as their commission, the sum of $522; that about October 25, 1898, the defendants paid to the plaintiff the sum of $19,216.40, received by them from the sale of said land as aforesaid, "leaving a balance of $4,907.10 due me out of the purchase price

of said land"; that said last-named sum was ecllected by the defendants for the use of the plaintiff as a part of the purchase price of said land about the 14th day of October, 1898, and retained by them, without his knowledge or consent; and that, though demanded, the defendants have failed and refused to pay the same to the plaintiff.

The answer is a general denial.

The case made is this: Prior to and on the 11th of September, 1897, the plaintiff was a man 82 years of age, a farmer, and owned about 1,249 acres of land, more or less, in Callaway county. The defendants were partrers, and for many years had been engaged in the real estate business in Mexico, Mo. On said 11th of September, 1897, at plaintiff's solicitation, as the defendants say, or at defendants' request, as the plaintiff says, the plaintiff placed said land in the hands of the defendants for sale. A written authority or contract was then entered into between the parties, as follows:

"I hereby authorize and empower Lakenan & Barnes, of Mexico, Missouri, to sell for me the following real estate situated in Callaway County, Missouri: [Here follows a description of the land], and containing in all 1.249 acres, more or less, for the sum of $23 per acre, or my home place, 950 acres, at the same price, or the 300 acre farm occupied by Jack Harrison, at the same price, and also [a certain 80-acre tract described] at $20.00 per acre, separately or with other land.

"July 15, 1898, price reduced to $20.00 pr acre. L. & B. to get $500.00 out of $20.00 pr acre, and anything they can get over $20.00 pr acre.]

"One-half or more, option of buyer, cash or possession, and balance in one year with 8% interest from date.

"I promise to pay to said agents 5% commission on the 1st $1,000.00 of each sale; 2% on balance, per cent. commission on the gross amount of said real estate, or any part thereof may bring when by or through them, or if sold by me, to pay party to whom they have shown this property. •

In case

said agents desire they may trade or sell said property for what they please just so they account to me for said price less said commission."

The portions of the writing omitted are not material to this controversy. In the fall of 1807 the defendants procured Senator Wall, of Stanton, Ill., to examine the place. The defendants contend that on that occasion the plaintiff told the defendant Barnes that he would take $20 per acre for the land. The plaintiff says that in June, 1898, when Senator Wall examined the land a second time, the defendant Barnes told him he could not sell the farm at more than $20 an acre, and be then authorized him to sell at that price. The defendants say that in July, 1898, Senator Wall indicated to them that he would come to Missouri and buy the land if he could get it for $20 an acre, and that on the

11th of July, 1898, they wrote the following letter to the plaintiff: "We recently saw Mr. Wall and had quite a talk with him about your farm, and he talks like he might buy it at $20.00 per acre. Would come and take a look at it if it was priced at that; that is, 960 acres, or about that. Now, while we consider this a low price, it is very seldom that we get a cash buyer for a farm of that size, and if you think best we will write him to come to see it with the understanding that he can buy it at $20.00 per acre, if he wants it. Of course we did not go into particulars in regard to possession, etc. Let us hear from you." The defendants say that in response to the letter the plaintiff called upon them at their office in Mexico on the 15th of July, and authorized them to sell the land, and at the same time agreed with them to change the original contract so as to reduce the price of the entire tract to $20 per acre, and to change the commission of the defendants, as aforesaid, so as to give defendants the sum of $500, and all over $20 per acre they might sell the land for, and that accordingly the defendant Barnes, in the presence and with the consent and by the authority of the plaintiff, and in the presence of J. J. Lakenan and Latney Barnes, wrote in the blank space that had been left in the original contract the words above reproduced in said contract and embraced in the brackets therein and italicised, and which are to the effect just stated. On the other hand, the plaintiff denies that he made any such modification or change in the original contract, or that he saw the same written into the contract, or knew that it had been so done, or consented thereto. In August, 1898, Senator Wall was killed, and the defendants sent the plaintiff a paper containing an account thereof, and under date of August 20, 1898, wrote the plaintiff as follows: "We send you herewith a paper in which you will notice of the death of Hon. H. W. Wall marked. Mr. Wall was the gentleman to whom we showed your farm; of course this will put an end to all negotiations with him. We are working on another man from whom we will have to take some Kansas land at $25.00 and want you to price it at not less than that, and would like for you to price it at $27.50 to $30.00 in a general way. This don't keep you from selling it if you get a chance. Of course we know that in case we effect a sale or trade we account to you for the farm at $20.00 per acre less a commission of $500.00. We are in hopes we will have this man to look at the place this coming week." There is a conflict in the evidence as to whether or not the plaintiff received this letter; at any rate, he never answered it, and he says he never received it. Thereafter the defendants induced L. K. Scroggins, of Illinois, to examine the land. On the way back from the land to Mexico Scroggins offered to buy 985.82 acres at $25 per acre, and the defendant Barnes, representing the defendants, accept

ed the offer, the plaintiff having told Scroggins that he had put the land in the defendants' hands for sale, and would abide by whatever they did. Accordingly, on the 14th of October, 1898, the defendants entered into a contract of sale of the land to said Scroggins for $25 per acre, aggregating $24,645.50, of which $15,000 was to be paid when the deed was delivered, and the balance to be paid on March 1, 1899, less 6 per cent. interest on the $15,000 from the day of its payment until March 1, 1899. Said contract further recites that Scroggins executed and left with the defendants his check for $15,000. On the same day the defendants wrote the plaintiff as follows: "We, this afternoon, sold your farm of 1,000 acres, more or less, to Mr. L. K. Scroggins of Illinois so as to net you the amount agreed upon between you and ourselves, namely $20.00 per acre, less $500.00." Then follow certain directions as to plaintiff procuring an abstract of title and having a survey made; and then the letter continues: "We have a good big check to be presented for payment when you make the deed, which will be as soon as the survey is made. * As soon as survey, abstract and deed are made you will get $8,000.00 or $10,000.00 cash, and the remainder of your purchase money March 1st, 1899, less 6% per annum interest from now until March 1st, as interest on the cash payment he now makes. Possession to be given March 1st next. We have in your name gone into a written contract with Scroggins on this sale. Please do not mention price to any one for that is no one's business but yourself and ourselves, and Scroggins don't want the price known." The plaintiff immediately procured the abstract of title and had the survey made, and on the 20th of October, 1898, he went to the defendants' office and executed his warranty deed conveying 985.82 acres of land to said Scroggins for a recited consideration of $24,645.50. The revenue stamp placed upon the deed amounted to $25, and the defendants say they called the plaintiff's attention thereto at the time. The defendants further say that the deed was read to the plaintiff by Latney Barnes, who had prepared the same; and when said Barnes read the clause reciting the consideration he stopped, and called the plaintiff's attention to the fact that the consideration mentioned in the deed was $25 per acre, and offered to tell him exactly what they were making out of the transaction, but that the plaintiff replied, "It don't make any difference what you made," or "I have no desire to know what you sold it for." On the other hand, the plaintiff denies that any such conversation took place, and says that when he signed the deed he supposed the sale was at $20 per acre, and did not know until nearly a year afterwards, when some neighbor spoke to him about it, and said he heard he had sold it for $25 per acre, that the sale was for more than $20 an acre, and that upon receipt of such information he sent a man to

Illinois and ascertained from Scroggins that the price paid was $25 an acre. The plaintiff further says that when the consideration in the deed was read to him the defendant Lakenan told him that the consideration mentioned in the deed was not the correct consideration, and that after the deed was signed Lakenan remarked to him that they were making a good thing on the sale of the farm, and that he replied that he did not care what they made, thinking Lakenan referred to the commission the defendants would receive.

On the 25th of October, 1898, the defendants rendered to the plaintiff the following statement of the sale:

Thereafter Scroggins gave his check to the plaintiff for $9,320. The plaintiff took it to the defendants, and delivered it to them, and they gave the plaintiff their check therefor. Thus the matter stood until December, 1899, when this suit was brought to recover the said balance.

On the trial of the case the plaintiff called Scroggins as a witness, and he testified that after he had agreed with the defendant Barnes to purchase the land, and while on their way from the land to Mexico, Barnes said to him, "It won't make any difference to you to keep this thing still; maybe it will be to your advantage;" and he told Barnes it made no difference to him. The plaintiff tried the case upon the theory that the defendants were authorized to sell the land at not less than $20 per acre, and to have a commission of 5 per cent. of the first $1,000 and 22 per cent. on the remainder, and that the original contract was never modified except by reducing the price of the whole tract to $20 per acre, and that the memorandum of July 15, 1898, in the bracketed and italicised clause of the contract, was never made by him or agreed to by him, and was placed in the contract without his knowledge or consent. The defendants tried the case upon the theory that said modification of July 15, 1898, was agreed to by the plaintiff, and was inserted in the contract with his knowledge and consent, in corroboration of which the defendants referred to their letter of August 20, 1898, in which they said to the plaintiff that they were to account to him at $20 per acre, less a commission of $500, and further referred to the fact stated in the account sales that they charged the plaintiff with only $20 for revenue stamps, whereas they had placed $25 in revenue stamps on the deed, and further referred to the conversation testified to by them as to the consideration named in the deed and