For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

H. W. Currey and George V. Farris, both | error complained of by plaintiff is the giving of Webb City, for appellant. Stonewall of instructions for defendants submitting the Pritchett, of Webb City, and R. A. Pearson, question of plaintiff's contributory negliof Joplin, for respondents. gence.

[1] The record merely shows that plaintiff objected and excepted to the court's giving each and all the instructions given for defendants. The specific objection now made is that no issue of contributory negligence is raised by the pleadings, and that the instructions should not broaden the issue. De Donato v. Morrison, 160 Mo. 581, 61 S. W. 641; Pryor v. Railroad, 85 Mo. App. 367; Mitchell v. Railroad, 108 Mo. App. 142, 151, 83 S. W. 289. There is nothing in the record to show that plaintiff raised this specific objection to the instructions in the trial court. Having tried this case on the theory that the issue of contributory negligence was rais

the position taken by him in the trial court. Dahmer v. Street Railway, 136 Mo. App. 443, 449, 118 S. W. 496.

STURGIS, J. This is a suit for damage to plaintiff's automobile, caused by same coming in violent contact with a rope stretched across Second street, in Webb City, Mo., while plaintiff was driving down that street. The defendant Sahlman was assisting in building a church on the south side of that street, and stretched this rope from the top of a gin pole, used in raising heavy material, to a telegraph pole on the opposite side. The rope was so low near the north side of the street that it caught the top of the automobile in passing under it and demolished the same. The petition counts on the neg-ed by the pleadings, the plaintiff is bound by ligence of the defendant Sahlman in stretching this rope across the street in such manner as to be dangerous to persons traveling along this street in automobiles or other vehicles, and that the defendant city was negligent in permitting such negligent obstruction of this much-traveled street. The defendants answered separately. The answer of the city consists of a general denial and this clause: "Further answering, defendant states that if plaintiff's automobile was damaged at the time and place alleged in plaintiff's petition such damage was caused by the carelessness and negligence of plaintiff in operating his said automobile." The answer of the defendant Sahlman consists of a general denial and this clause: "And for further answer said defendant says that if plaintiff sustained the damages to his property as in his petition alleged it was because of his own careless and negligent acts and omissions in and about the running of his automobile, and the wrongful, excessive, and dangerous speed with which he was running the same."

It will be noticed that these answers do not, directly at least, charge that plaintiff's negligence contributed to his loss; and it is argued that they charge that such negligence was the sole cause of such loss.

For the purposes of this appeal, it is sufficient to say that plaintiff's own evidence shows that the street where the accident occurred is downgrade, and that he was traveling at the rate of 10 or 12 miles per hour; that he had previous knowledge that the church was being erected at this place, and that the street was being more or less obstructed by lumber and other material used in the building; that the rope in question was an inch and a quarter to an inch and a half in diameter; that he did not see the rope at all before it caught his machine, although it was a clear bright day, and there was nothing to prevent his doing so. He said he did not know where he was looking at the time of the accident, and gave it as his own opinion that if he had been looking down the street in front of him that he would have probably seen the rope in time to have stopped the machine, which, he says, he could have done in the distance of the car length. Plaintiff also said that he knew of a city ordinance limiting the speed of automobiles to 8 miles per hour. There was evidence of other witnesses, introduced without objection, that plaintiff was traveling as fast as 20 to 25 miles per hour; that at and just before the time of the accident he was looking at the church and work being carried on there; and that if he had turned a little nearer the middle of the street he would have passed under this rope without the accident.

The case was tried, at least so far as the introduction of evidence was concerned, on the theory that these answers set up the defense of contributory negligence, and at no time did plaintiff object to any evidence brought out on the cross-examination of his own witnesses, or to the evidence offered by defendants tending to show contributory neg- The instructions (Nos. 7 and 8) complained ligence on the part of plaintiff, on the ground of submit the question of plaintiff's contributhat no such issue was raised by the plead- tory negligence, in that plaintiff was travelings. After the evidence tending to show ing at an excessive rate of speed, and that the negligence of defendants and the con- "the plaintiff was inattentive and not looktributory negligence of plaintiff was all in, ing in the direction in which he was travelthe court submitted the case on instructions, ing," and that "he failed to use reasonable hereinafter mentioned, based on defendants' care and ordinary diligence in driving his negligence, on the one hand, and plaintiff's automobile to discover the danger and avoid contributory negligence, on the other. The the injury," and that such negligence on his jury found for defendants, and the principal | part contributed to the injury to his car.

son:

All these rulings are based on the theory that a general and indefinite allegation as to negligence, whether in the petition or answer, has been allowed to stand without being attacked by motion or otherwise before trial, as on such attack the same would be held bad. Harrison v. Railroad, 74 Mo. 364, 41 Am. Rep. 318. The same rule of particularity in setting up the facts constituting negligence apply to the petition and answer

[2] It is evident that plaintiff's objection | in point that such general allegation is suffithat these instructions are erroneous, in that cient. they relate to an issue not raised by the pleadings, is not well taken, for this reaEvery ground of contributory negligence mentioned in the instructions is based on plaintiff's own evidence. The authorities all hold that, while contributory negligence is an affirmative defense, and as a general rule must be alleged in order to be available, yet, in cases where the plaintiff's own evidence shows or tends to show that he was guilty of contributory negligence which | alike (Harrison v. Railroad, 74 Mo. 364, 369, defeats his right of recovery, the defendant may take advantage thereof, although the answer contains no plea of such contributory negligence. Kile v. Light & Power Co., 149 Mo. App. 354, 359, 130 S. W. 89; Hudson v. Railroad, 101 Mo. 13, 30, 14 S. W. 15; Engleking v. Railroad, 187 Mo. 158, 164, 86 S. W. 89.

41 Am. Rep. 318), and it is generally held
that a general plea of negligence, whether in
the petition or answer, is sufficient without
specifying the particular acts, unless object-
ed to by motion or otherwise before trial
| (Schneider v. Railroad, 75 Mo. 295; Conrad
v. De Montcourt, 138 Mo. 311, 325, 39 S. W.
805; Borden v. Falk Co., 97 Mo. App. 566,
570, 71 S. W. 478).

Plaintiff might have successfully objected to the introduction of any evidence, other [3] We cannot assent to the proposition than that of himself, tending to show con- that plaintiff was under no obligation to tributory negligence, on the ground that no use reasonable care to discover the danger such issue was raised by the pleadings. It and avoid the injury, and that the court is too plain for argument, however, that if | erred in instructing the jury that "every perdefendants are entitled to the instructions son using the streets of a city owes the duty mentioned, based on plaintiff's own evidence, to the city and to every other person using even in the absence of any plea of contribu- the streets to exercise care to see and avoid tory negligence in the answer, the jury would obstructions in such streets." It is true that necessarily consider all the evidence intro- plaintiff was not required to anticipate and duced in determining that question, and no keep watch for this or any other particular error can be predicated on the court's giving obstruction in the street, but the jury had a these instructions. right to infer, as proving contributory negliThe reason for excepting plaintiff's own gence, that if plaintiff had used that degree evidence, and instructions based thereon, of watchfulness and caution demanded of from the rule requiring contributory negli- every one driving an automobile along a gence to be pleaded is doubtless based on the much-used and more or less obstructed street fact that contributory negligence is an af- that he would have discovered this particufirmative defense, and all affirmative defens-lar obstruction and avoided this particular es must be pleaded in order to give plaintiff | injury. Wheat v. St. Louis, 179 Mo. 572, an opportunity to be apprised of and prepare to meet the same. A plaintiff cannot be heard to say, however, that he did not know of and had no opportunity to prepare to refute his own evidence.

This view of the case relieves this court of the difficult problem of reconciling the decisions of the other Courts of Appeals on the question of whether the general averment of plaintiff's negligence in the answer of either defendant, without averring that such negligence contributed to the injury complained of, is sufficient to raise the question of contributory negligence. The case of Cain v. Wintersteen, 144 Mo. App. 1, 128 S. W. 274, is a ruling by the Kansas City Court, almost directly in point, that such general allegation that plaintiff's injuries were caused by his own negligence is not a sufficient plea of contributory negligence. See, also, Ramp v. Railroad, 133 Mo. App. 700, 704, 114 S. W. 59; Allen v. Transit Co., 183 Mo. 411, 81 S. W. 1142. On the other hand the ruling of the St. Louis Court in Harmon v. Railroad, 163 Mo. App. 442, 143 S. W. 1114, is equally

582, 78 S. W. 790, 64 L. R. A. 292; Ryan v. Kansas City, 232 Mo. 471, 487, 134 S. W. 566, 985; Windle v. Southwest Missouri Railroad, 153 S. W. 282.

The plaintiff says that no one would be required to keep watch for a lion or tiger (not of the "blind" variety, however) on the streets of Webb City, as he could not reasonably anticipate such an animal there. That is true; but the exercise of the care and watchfulness required of him in reference to horses or vehicles or obstructions which are to be expected on such streets would most likely cause him to see and avoid running into a sleeping lion or blind tiger, should such an animal by chance be found on the streets of that city.

Plaintiff also complains of certain instructions relative to the proof required in order to charge the defendant city with notice of the obstruction in its street. It is obvious that the jury found, either that there was no negligence proved on the part of either defendants, or that plaintiff was guilty of such contributory negligence as precluded his re

covery. This question of the city having no- the original opinion correctly declared the tice, actual or constructive, of this obstruc- law and decided the case on the facts pretion was of no importance under either find- sented. We think it did. The motion critiing. If the jury found that there was no cises the opinion for holding that plaintiff negligence of defendant Sahlman, then the was negligent if he failed to travel at a city could have had no notice, actual or con- lawful rate of speed and use ordinary care structive, of such negligence; and if plain- to discover and avoid the rope stretched tiff was guilty of contributory negligence it across the street so low near one side of the would not matter whether the defendant city same as to strike his automobile. If we had or had not knowledge of Sahlman's neg- understand the point made, it is that defendligence. ant Sahlman cannot invoke the rule of plaintiff's contributory negligence as defeating his action, for the reason that defendant is not within the class of persons who are to be protected by the speed law or ordinance, in that he was doing an unlawful act in stretching the rope across the street; and as the rope was there unlawfully plaintiff was not bound to travel at a lawful rate of speed or use other ordinary care to discover it. Plaintiff says that his duty is limited to avoiding this rope after actually discovering it. We think, however, that the reading of what our Supreme Court said in Woodson v. Railroad, 224 Mo. 685, 123 S. W. S20, 30 L. R. A. (N. S.) 931, 20 Ann. Cas. 1039, and the cases there cited, as to the duty of a traveler upon a public highway, not only to use care to avoid known and expected obstructions and defects, but also to discover those which are unknown, unexpected, and unlawfully there, will convince any one of plaintiff's error.

[4, 5] Complaint is also made that the court erred in permitting defendant Sahlman to testify that he was doing this work in the ordinary and approved manner in stretching the rope across the street in the manner shown by the evidence. The act of defendant Sahlman in stretching this rope across the street so as to obstruct a small part of it to persons in automobiles, and without warning people of the danger, was not necessarily and as a matter of law an act of negligence, as the court instructed the jury it was. Whether it was or was not negligence was a question for the jury, under all the facts. Tuck v. Traction Co., 140 Mo. App. 335, 341, 124 S. W. 1079. Where the question whether or not a certain act is or is not negligence is a debatable one, it is not error to permit proof that such act was done in the usual and customary manner. 21 Ency. Law (2d Ed.) 524; 29 Ency. Law (2d Ed.) 418; Knorpp v. Wagner, 195 Mo. 637, 659, 93 S. W. 961; Spencer v. Bruner, 126 Mo. App. 94, 102, 103 S. W. 578.

We have carefully considered all the errors complained of by learned counsel for appellant, and are convinced that plaintiff had a fair trial, and that this case ought to be and is affirmed. It is so ordered.

FARRINGTON, J., concurs. ROBERTSON, P. J., not sitting.

On Motion for Rehearing. STURGIS, J. This case illustrates the difficulty the courts have in keeping the length of their opinions within reasonable boundsa thing greatly to be desired. The motion for rehearing in this case assigns 12 reasons therefor, though not complying with the rules of this or any of our appellate courts relative to such motions. The motion is accompanied by a brief of 32 closely typewritten pages, with many citations of authorities from this and other states. If we do not discuss and rule on each and every one of these 12 reasons and discuss and distinguish all the cases now cited, there will still exist the same reason for saying that this court overlooked the points, and that the decision is in conflict with all the cases now cited, as there is for so alleging as to the original opinion.

[6] We have, however, given due consideration to this motion and brief with the

[7] Nor do we think, if that makes any difference, that said defendant's act in stretching the rope across the street in aid of his work in erecting a building adjacent thereto was an unlawful act, regardless of the manner or purpose for which it was done. We think there is nothing more than negligence on such defendant's part, and that his negligence, if any, in so doing was merely in stretching the rope so low near the north side of the street as to interfere with the lawful travel thereon.

We ruled, without serious thought of its being questioned, that the plaintiff, having tried the case on the theory that the issue of contributory negligence was raised by the answers, was bound by that position in the appellate court, and we cited only one case supporting it. The plaintiff now contends that "a party may try his case on a theory entirely outside of the issues and then raise the question in the appellate court that the instructions given are not within the issues," and this, too, when the record shows, as we have pointed out, that no objection on this ground was made to the evidence showing contributory negligence, although plaintiff testified himself as to that matter, and numerous witnesses were examined and crossexamined along this line, and no specific objection was made to the instructions, or anywhere else in the record, before it reached this court, calling the court's attention to

and a tender of the unearned premium amount-
ing to a cancellation by mutual consent.
[Ed. Note.-For other cases, see Insurance,
Cent. Dig. § 504; Dec. Dig. § 232.*]

as supporting our position: Rigsby v. Oil | insured of an unequivocal notice of cancellation, Well Supply Co., 115 Mo. App. 297, 307, 91 S. W. 460; Stewart v. Outhwaite, 141 Mo. 562, 572, 44 S. W. 326; Heffernan v. Ragsdale, 199 Mo. 375, 382, 97 S. W. 890; Hales v. Raines, 162 Mo. App. 46, 63, 141 S. W. 917; Taussig v. Railroad, 186 Mo. 269, 284, 85 S. W. 378.

[8] Besides this, we call attention to the fact that plaintiff's petition alleges that while traveling in his automobile he was "in the exercise of reasonable and proper care on his part," and that "he was running his automobile at a lawful and reasonable rate of speed." This was denied by the answer and the general allegations of contributory negligence made as stated. Besides this, no less than three of plaintiff's instructions predicated his right to recover on condition that he was traveling along the street in his automobile "at a lawful rate of speed," and was "without fault or negligence on his part" in running into said rope. The plaintiff cannot complain of instructions based on the same theory and which are the converse of those asked by himself. Huss v. Bakery Co., 210 Mo. 44, 51, 71, 108 S. W. 63.

The motion for rehearing is overruled.

FARRINGTON, J., concurs. SON, P. J., not sitting.

PAYNE et al. v. PRESIDENT, ETC., OF
INS. CO. OF NORTH AMERICA.
(Kansas City Court of Appeals. Missouri.
April 21, 1913.)

3. INSURANCE (§ 230*)-CANCELLATION-ACTS CONSTITUTING.

Where, in attempting to cancel a policy, the company did not offer to return the unearnagent by insured stating that, if the agent ed premium, a letter written the company's could place the insurance in any other good company, he might do so, did not authorize the agent to hold the unearned premium as the agent of insured, but merely gave the insurer the option of procuring a new policy in another company, instead of tendering the unearned premium.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 509-512; Dec. Dig. § 230.*1 Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action by D. A. Payne and another against the President and Directors of the Insurance Company of North America. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fyke & Snider, of Kansas City, for appellant. John W. Bingham and Earl F. Nelson, both of Milan, for respondents.

JOHNSON, J. This is an action on a policy of fire insurance of $1,200 covering a store ROBERT- building owned by plaintiffs in Milan. The principal defense is the alleged cancellation of the policy by defendant before the occurrence of the loss. The policy was issued September 11, 1911, and was to continue in Plaintiffs force one year from that date. paid the premium of $34.80, which covered the whole term. The fire occurred April 9, 1912, during the term for which the policy was issued and according to the evidence of plaintiffs damaged the property in the sum of $1,172.56. Defendant refused to pay the loss on the ground that the policy had been canceled, and this suit followed. The contract provided that "this policy shall be canceled at any time at the request of the insured; or by the company by giving five days notice of such cancellation."

1. INSURANCE (§§ 229, 230*)-CANCELLATION -NOTICE-RETURN OF UNEARNED PREMIUM, An insurance policy providing that it might be canceled by the company by giving five days' notice of the cancellation was not canceled by a letter written insured by the company's agent informing him that the company wanted to cancel it, and asking where the policy was, without any tender of the unearned premium, since the notice should have expressed a clear and unequivocal action on the subject of cancellation, and not a mere purpose to take such action at some future time, and, moreover, the policy could not be canceled without placing insured in statu quo by returning or offering to return the unearned premium.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 500-503, 509-512; Dec. Dig. 88 229, 230.*]

2. INSURANCE (§ 232*)-CANCELLATION-ACTS CONSTITUTING.

Where a letter written insured was insufficient as a cancellation of the policy because merely an expression of an intention to cancel it at some future time, and because there was no tender of the unearned premium, a letter written by insured stating that he saw no reason for canceling it, but that if the company would not carry it any longer, and the company's agent could place the insurance in any other good company, he might do so, and a conversation between insured and the agent relative to searching for the policy in which the agent stated that the old policy would stand until it could be changed, was not a waiver by

[1] The subject of cancellation arose between the parties early in March, 1912, in a letter written by defendant's agent at Milan to plaintiff, D. A. Payne, who at the time was temporarily in Colorado Springs, Colo. Neither the letter nor a copy could be found at the time of the trial, and the only evidence of its contents is in the testimony of Mr. Payne, who stated that the agent informed him "that the company wanted to cancel the policy and he wanted to know where the policy was." The answer to this letter which was written, and mailed at Colorado Springs, March 4, 1912, was as follows: "Mr. W. J. Wattenberger, Milan, Mo. Dear Sir: Yours regarding cancelling insurance on Depot Restaurant Bldg. at hand and in reply will say I am very much surprised at this, and I hardly know what to say. I don't see any reason for cancelling

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes