Probst v. Basket & Box Co.

tiffs. In considering this point we feel it necessary to here set forth that part of the record which shows what took place at the trial when the plaintiffs offered to introduce evidence showing the date of the nonsuit and the date when this suit was filed. It is as follows:

"Mr. Leonard (attorney for plaintiffs): We offer in evidence the files in the case, number 86,879, entitled Elizabeth Probst, et al. v. St. Louis Basket and Box Company, and files in case 94,140, Elizabeth Probst, et al. v. St. Louis Basket and Box Company, being suits filed in this circuit court.

"Mr. Kelly, (attorney for defendant): Would like the gentleman to indicate the purpose of your first offer.

"The Court: Don't know the purpose of either one of them. For what purpose?

"Mr. Leonard: To show the statute in regard to the time for filing suit has been properly made.

"The Court: You limit the offer for the purpose of showing the date of the filing do you?

"Mr. Leonard: That is, I think, the only object I have in mind right now.

"The Court: You are offering the whole file.

"Mr. Kelley: Why, your Honor, would a suit filed by the then plaintiff, mother of these children Mrs. Elizabeth Lavere Probst, have anything to do with showing that the children's suit was filed within the period of limitation? It is not competent for any

purpose.

"The Court: Do you admit filed in time?

"Mr. Kelley: It is; yes, sir, the children's suit was. "Mr. Leonard: Of course, the question of a nonsuit, we would have to file suit again a year from the date of the nonsuit, that only would be—

case.

"Mr. Kelly (interrupting) He did that.

"Mr. Leonard: I have got to prove it, prove my

"Mr. Kelley: I will admit he filed suit within a year after the nonsuit, no use denying the records. I object to the files.

Probst v. Basket & Box Co.

"Mr. Leonard: We offer in evidence the files in the case on trial of Elizabeth Lavere Probst against St. Louis Basket and Box Company, being number 94,140.

"Mr. Kelley: No objection to that, my admission covers it; I have not any objection, the other one I do object to; files in suit by the mother.

"The Court: Objection to the files in the mother's suit is sustained; the other files will be admitted."

"The admission of attorneys of record bind their clients, in all matters relating to the progress and trial of the cause; but, to this end, they must be distinct and formal or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with a formal proof of some fact at the trial." [Greenleaf on Evi

dence (16 Ed.), sec. 186.]

"Judicial admissions, or those made in court by the person's attorney, generally appear either of record as in the pleading, or in the solemn admissions of the attorney made for the purpose of being used as a substitute for the regular, legal evidence of the facts at the trial, or in a case stated for the opinion of the court." [Greenleaf on Evidence (16 Ed.), sec. 205.] "When admissions of this character are formally made for the purpose of waiving certain proofs or rules of practice they are conclusive upon the client and cannot be withdrawn. It would operate as a fraud upon the adverse party, if, after he had been thus induced to withhold necessary proofs he should be compelled to prove the facts which had been admitted, or to submit to defeat." [Jones on Evidence (2 Ed.), sec. 257, and cases there cited.]

Defendant's solemn or judicial admission we hold was tantamount to a waiver of the fact that plaintiffs' petition failed to state a cause of action in that it did not allege that the present suit was filed within one year of the day on which the judgment of nonsuit had been entered against plaintiffs in their original suit. It would be extremely technical and almost unparalleled in our jurisprudence for us to hold otherwise. We re

Probst v. Basket & Box Co.

fuse to reverse and remand this cause on the sole ground that plaintiffs' petition was defective in failing to contain a necessary allegation when the record of the case shows that no objection was made by the defendant during the trial, to the introduction of evidence on behalf of the plaintiffs to prove the truth of such fact, the allegation of which was omitted from plaintiffs' petition, and when counsel for defendant, in open court, during the progress of the trial, solemnly admitted that the present suit had been instituted by plaintiffs within one year from the date of the former judgment of nonsuit, and as the attorney for defendant put it, “because there is no use in denying the record.' To thus lie in wait for an adversary and here raise the point of the omission of a necessary fact in plaintiffs' petition, as grounds for a reversal, which fact defendant has solemnly admitted the truth of during the trial of the case, is a practice which we will not subscribe to. It is a practice which if countenanced would, in our judgment, not alone be a large step backward, but would subject, and very properly so, the court which would uphold it to scathing criticism. [See Tebean v. Ridge, 261 Mo. 547, 1. c. 558, et seq., 170 S. W. 871 ad cases cited.]

Had objection been made at the trial to the introduction of any testimony by plaintiffs on the point in question it would have presented an entirely different problem for solution. In arriving at our conclusion, as above set out, we have done so after a careful consideration of the cases relied on by appellant, namely, Chandler v. Ry. Co., 251 Mo. 592, 1. c. 598, 599, 158 S. W. 18; Clark v. Ry. Co., 219 Mo. 524, 118 S. W. 40; Troll v. Gas Light Co., 182 Mo. App. 600, 169 S. W. 337, the facts in each of which are readily distinguishable from those in the case at bar, and we hold are for that reason not applicable here. We accordingly rule this assignment of error against appellant.

II.

It is next urged that the trial court erred in admitting evidence that there was no railing around the

Probst v. Basket & Box Co.

tank in question, and that a railing could have been placed in or on said tank without interfering with the work.

This point is without merit in that plaintiffs' petition particularly alleges and there was proof adduced on behalf of plaintiffs sufficient to make this a question for the jury. There was testimony to the effect that the men usually got on top of this south wall of the tank in order to be able to push the logs to the point in the tank where they could be attached to the derrick and lifted out; that this was done with the full knowledge of the superintendent and foreman and done in their sight and presence. This testimony, taken together with the admiited fact that there was no railing around the tank, and that the tank contained boiling water, and that the top of the walls of the tank were usually wet and slippery from the water that was precipitated from the condensation of the steam which arose from the tank when the boards covering the tank were removed whenever the batch of logs being steamed had been sufficiently heated, was sufficient to permit evidence to be introduced on the question of whether or not a railing should and could have been placed in or on the tank, without interfering with the doing of the work, and which would have protected the men while at work about and upon the walls thereof from falling in.

III.

The next objection is that the witness, Bohne, for plaintiffs, who was permitted to testify that a railing could be built about the tank, which would safeguard the men from falling into the tank while getting the logs out, and that such a railing would not interfere with the practical operation of the tank, was not sufficiently qualified to make the said witness competent to give an opinion on such matters. According to Bohne's testimony he had a mechanical trade, he was a carpenter and had been such for five years, and had worked off and on for eight years at the defendant company cutting logs and filling steam boxes, helping

(

Probst v. Basket & Box Co.

to put logs into, and helping to take logs out of the tanks. In the light of this testimony we are unwilling to rule that allowing this witness to testify on the point in question was reversible error.

IV.

A reading of the statement of facts which we have set out at great length above is sufficient, without a reiteration here, to show that plaintiffs made out a case for the jury. While the testimony of the main witness for plaintiffs was in direct conflict to what the same witness had testified to at a former trial, and also in direct conflict to what he had testified to at the coroner's inquest, it did not any the less make the case one for the jury, the determination of the credibility of the witness being exclusively a function of the jury.

V.

The learned counsel for appellant next sets up a number of assignments of error based upon the giving or the refusing of instructions by the court.

When we examine the defendant's motion for new trial we note that with reference to these assignments it merely states that, "(7) The court, at the instance and request of plaintiffs and over the objection of defendant, erred in giving improper and erroneous instructions to the jury." "(9) The court erred in refusing proper and correct instructions offered and requested by defendant.”

Under our interpretation of the most recent expressions of the supreme court on the question of what is sufficient in a motion for new trial to bring up for review on appeal the instructions given, or the refusal by a trial court, these said assignments by defendant in its motion for new trial, do not measure up to the requirements. [Wampler v. Railroad Co., 269 Mo. 464, 1. c. 472, 190 S. W. 908; Kansas City D. & M. v. Bates County, 201 S. W. 92. See, also, Lampe v. United Railways Co., 202 S. W. 438; Witchman v. United Railways Co., 203 S. W. 491.]