Forbs v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 18 October 1904
• Citation: 107 Mo. App. 661,82 S.W. 562
• Court: Missouri Court of Appeals
• Parties: FORBS v. ST. LOUIS, I. M. & S. RY. CO.

82 S.W. 562

107 Mo. App. 661

FORBS v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

October 18, 1904.

MASTER AND SERVANT—PERSONAL INJURY—RELEASE OF DAMAGES—CONSIDERATION—BILL OF EXCEPTIONS—PRESERVATION OF EVIDENCE.

1. Rev. St. 1899, § 866, as amended by Acts 1903, p. 105, providing that it shall not be necessary that any pleading, motion, instruction, or record entry or written or printed matter offered in evidence and properly identified be set forth in the bill of exceptions if the bill contains a direction to the clerk to copy the same, does not permit the trial judge to sign a bill as a true one until the parol evidence is written out and made a part thereof; and a skeleton bill, containing a direction to the clerk to copy the official stenographer's transcript of the parol evidence made, as required by section 10,129, is not sufficient to make such evidence a part of the bill.

2. In order to support an agreement a legal consideration is requisite, but it is not essential that the consideration should be adequate in value.

3. An employé who had been injured executed a release of his right to sue for damages "for and in consideration of the re-employment" of the servant "for such time only as may be satisfactory to" the employer. Held that, though agreement to re-employ was vague and indefinite in duration, it constituted a sufficient consideration for the release.

Appeal from Circuit Court, Butler County; Jas. L. Fort, Judge.

Action by Francis M. Forbs against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

D. W. Hill, for appellant. L. F. Dinning, for appellee.

REYBURN, J.

1. From judgment in an action for damages for personal injuries upon verdict for defendant rendered by a jury in obedience to an imperative instruction to so find given by the court at close of the testimony introduced by him, plaintiff has appealed.

At the threshold of this case we are confronted by the objection of respondent to the record on the ground that the evidence, which was made up entirely of oral testimony elicited from plaintiff and his witnesses, was not properly embodied in the bill of exceptions. At the June term, 1903, plaintiff's motion for a new trial, filed at the June term of the previous year, was overruled, and plaintiff appealed, being granted 60 days from June 19, 1903, in which to file bill of exceptions. July 27, 1903, plaintiff filed, with the clerk of the circuit court, a bill of exceptions duly signed by the trial judge. This bill was in skeleton form, and the evidence introduced at the trial was not copied therein, being in full as follows: "Now, on this twenty-seventh day of July, 1903, comes the plaintiff in the above-entitled cause, and files herein his bill of exceptions, which bill of exceptions is in the words and figures following: On the seventeenth day of June, 1902, it being the fourteenth day of the June term of said court, the above cause was tried in said court before the judge thereof and a jury, when the following proceedings were had and the following evidence was introduced, as fully set forth in the official stenographer's certified transcript of said evidence filed in the office of the clerk of said court on the twenty-second day of July, 1903, which said transcript of the evidence is in the words and figures following: (Clerk, here please copy same.) This was all the evidence offered. And on the twenty-first day of June, 1902, it being within four days after the taking of the involuntary nonsuit in said cause in said court, the plaintiff filed in said court this motion to set aside his nonsuit and to grant him a new trial herein, which said motion to set aside the nonsuit is in the words and figures following: (Clerk, here please copy same.) And on the fifth day of June, 1903, it being the fifth day of the June term of said court, after plaintiff's motion to set aside the nonsuit herein had been continued until that time, the court overruled plaintiff's said motion to set aside said nonsuit by an entry of record in the words and figures following: (Clerk, here please copy said order.) To which ruling and order of the court the plaintiff, by his attorney, then and there duly objected and excepted. And that the above matters and things, rulings and exceptions may be made a part of the record, plaintiff tenders this, his bill of exceptions, and prays that the same may be signed and sealed as such, which is accordingly done this twenty-seventh day of July, 1903. J. L. Fort, Judge of the Butler County Circuit Court. [Seal.] O. K.: David W. Hill, Attorney for Plaintiff. ____, Attorney for Defendant." Appellant, in reply to this objection urged by respondent, has answered that on the 22d day of July preceding the official stenographer's transcript of the testimony was duly filed in the office of the clerk of the court, and later attached to the bill of exceptions, forwarded to the attorney of respondent, and by him returned to plaintiff's attorney with suggestions of a few words additional to the testimony, to which the latter assented and such additions were made, and later the skeleton bill previously signed by the trial judge, together with the transcript of the testimony, was exhibited to him, approved and filed in the office of the clerk of the circuit court, but these latter facts, of course, do not appear in the record.

By enactment of the Forty-Second General Assembly, section 866, Rev. St. 1899, was amended so that after June 21, 1903, when the Laws of 1903 became operative, it was no longer necessary that any pleading, motion, instruction, or record entry in a case, or any printed or written matter offered in evidence at the trial, properly identified, and deposited with the clerk to remain in his custody till after determination of the cause in the appellate court, should be copied or set forth in the bill of exceptions filed in the lower court, provided such bill contained directions for the clerk to copy them, and they were copied into the record sent to the appellate court. The object and convenience of this act were apparent, and it was, in effect, but affirming the general practice usually employed in the preparation of bills of exceptions, but requiring as a further essential that written or printed evidence should be lodged with the clerk pending determination by the upper court. Laws 1903, p. 105. It will be observed that this amendatory act did not attempt to disturb the law existing relative to the preservation for proper presentment in the appellate court of evidence introduced in the form of oral testimony. The effect of the section of the statutes, the subject of the above legislative action, had been prior thereto considered by the Supreme Court, and an interpretation adopted. In State v. Buck, 130 Mo. 480, 32 S. W. 970— a prosecution for perjury—the evidence was not incorporated in the bill of exceptions, and the court, through Judge Sherwood, later quoting above section, being 2304, Rev. St. 1889, states: "The evidence, however, though referred to in the bill of exceptions as contained in index sheets marked `A' and `B,' herewith filed, and attached and made a part of this bill of exceptions, constitutes no part of the bill. Under the old régimé, such motions and instructions had to be incorporated in the bill of exceptions, but this statute has worked a change in this regard as therein specified; but that is the extent of the change. The evidence has, as formerly, to be incorporated into the bill, and cannot be made part thereof except by incorporation therein. Reference thereto in the bill will not do." Article 4, c. 162, of the statutes, contains the provisions for official stenographers in counties of less than 45,000 population, of which Butler county is one. Vol. 2, Rev. St. 1899, p. 2356. Section 10,129 of this article, which governs the making of transcripts by the court stenographer of testimony at a trial, has also received the attention of the Supreme Court. In Tipton v. Renner, 105 Mo. 1, 16 S. W. 668, the skeleton bill signed by the judge, after calling for the deed of trust and other documentary testimony employed at the trial, continued thus: "The plaintiff then introduced parol testimony as follows: (Here copy testimony taken by shorthand reporter). To the introduction of which defendant objected on the ground of incompetency, and, his objection being overruled by the court, he saved his exceptions at the time;" and the defense also used the like method. "Defendant also testified as follows: (Here copy testimony taken for defendant by shorthand reporter.) To the introduction of which plaintiff objected on the ground of incompetency and irrelevancy, and, objection being overruled, plaintiff excepted at the time, and this was all the evidence in the cause." In commenting upon above method, the court, through Judge Black, says: "The practice of filing a skeleton bill of exceptions in the circuit court had long prevailed in this state, and is now well established. Thus it is sufficient to say plaintiff read in evidence a deed, deposition on file, or other document, describing the same, so there can be no mistake as to its identity, and concluding, `which is in words and figures as follows,' or with words of like import. This will be sufficient to authorize the clerk to fill out the bill by inserting the document. Crawford v. Spencer, 92 Mo. 498, 510, 4 S. W. 713, 1 Am. St. Rep. 745; Myers v. Myers, 98 Mo. 262, 271, 11 S. W. 617. But we have held that a judge will not be required...