When this note was offered in evidence it was objected to on the ground, first, that it not appearing that the note was ever inventoried or otherwise charged to Henry W. Blanke, as executor, or otherwise acknowledged by Blanke as of the assets of the estate of Weber in his hands and chargeable to him as such executor, Blanke is not, in this proceeding, chargeable with or liable to account for the note or any moneys due thereon; and, second, that plaintiff's remedy, if any, upon the note is solely by suit for recovery of judgment thereon in some court of competent jurisdiction, it being claimed that the circuit court in this proceeding on appeal from the Probate Court, has no jurisdiction to directly or indirectly give any judgment against Blanke on account of this note. These objections were overruled, defendant excepting, and the note admitted in evidence. The circuit court thereupon, on February 14th, 1913, entered judgment against Blanke, as executor, finding him indebted The only evidence here material which was taken at the trial of the case above referred to that we there find, is the record evidence of the appointment of Mr. Blanke as executor of Frank Weber. It appears that under the terms of the last will and testament of Frank Weber, Henry W. Blanke was appointed administrator of his estate April 13th, 1905, without bond, and that, by affidavit of Blanke for the letters, he put the value of the estate at $1,500. It also appears that he never filed an inventory of the estate, nor did he make any settlement of his dealings with the estate from the time of his appointment in 1905, up to the time of the revocation of his letters in 1912; that having removed to California, on the application of one of the sons, an heir of Frank Weber, filed in the Probate Court of Franklin County February 13th, 1912, Blanke was cited to appear before that court on May 13th, 1912, at the May Term of the court, to show cause why his letters as such executor should not be revoked. By order entered May 13th, 1912, the Pro-to the estate in the sum of $1,128.32, adbate Court revoked his letters and appointed R. E. Weber administrator d. b. n. c. t. a. Weber duly qualified and entered on the duties of his office. It further appears that sometime in the year 1913, the date not given, but apparently after revocation of his letters, Blanke submitted a statement of his account of his administration of the estate from the date of his appointment to the date of the revocation of his letters May 12th, 1912, submitting this as his final settlement. In this he charges himself with having received $1,000 in cash March 19th, 1906, the proceeds of an insurance policy, and of date January 24th, 1907, with $103.40, cash received from Blanke-Wenneker Candy Company, a total of $1,103.40, but does not charge himself with any interest. He claimed credits for dis bursements on various small accounts, amounting to $503.03, and claimed and cred judging that he pay that sum to R. E. Weber, as administrator d. b. n., and further allowed and taxed against Blanke the sum of $100 as an attorney's fee and taxed all costs of the removal of Blanke as executor against Blanke. This $1,128.32 is made up of $200 on the note, $154.66 as interest on it, that is, $354.66, and the $575.22 admitted as due the settlement with interest thereon amounting to $198.44, that, it appears, being the interest at 6 per cent. from 2 years after the granting of the letters until the date of the judgment. in Blanke filed a motion for a new trial, in which he assigned as error the action of the court in charging Blanke with the $200 principal and $154.66 interest on the note; and second, as charging Blanke, as removed executor, with this sum, that is $354.66. This motion was overruled, Blanke excepting and the appeal Blanke died and one Daniel W. perfecting his appeal to our court. Pending Oviatt having been appointed administrator of his estate appeared in our court and was duly substituted as appellant. [1, 2] The action of the circuit court in allowing this $200 note and the interest on it, a total of $354.66, was error. Whether Blanke was solvent or insolvent, does not appear; nor is that fact, which ever way it may be, here material. Assuming, although that is not a fact, that Blanke, as executor, had taken up this $200 note as an asset of the estate, that did not make it money in his hands as executor. ited himself with the $25.15 as his commission on the $503.03 disbursed, showing a balance due by him to the estate of $575.22. The last item of expenditure in this settlement is dated August 27th, 1906, and in the affidavit to the settlement Blanke affirms that it is a complete statement and settlement of the administration of the estate from the date of his appointment to the date of the revocation of his letters as executor. Exceptions were filed to this settlement on the ground that it is incomplete and incorrect in that it fails to account for all moneys that came into the hands of Blanke as such executor and belonging to the estate. The fail- In McCarty, Admr., v. Frazer, 62 Mo. 263, ure to account for all moneys, on which failour Supreme Court, passing on statutes ure the exception to the settlement is found- which are practically identical with sections ed, rests on the failure of Blanke, as executor, 107 and 108, Revised Statutes 1909, has held to charge himself with the sum of $200, evi- that where the administrator owes a debt denced by a note for that amount, the note to the deceased, it should not be charged dated March 25th, 1903, payable to the order against him as cash until it is paid unless of Frank Weber one year after its date, with he charges himself with it as a cash item interest at 6 per cent. per annum from date. by inventory or settlement. In that case (loc. 194 S.W.-6 said: cit. 265), referring to what is meant by the [ 442), on the authority of Ridgway v. Kerterm "assets," in the administration law, foot, supra, and Young v. Thrasher, supra, some portions of the law treating the term "assets" as synonymous with the word "money," Judge Sherwood, who wrote the opinion of our Supreme Court, discussing the contention of counsel that "assets" meant "money," says: "The evident inference intended to be drawn from this is that, as money is assets within the meaning of one section, therefore assets means money within the meaning of another. There is no warrant for such conclusion. Even had the Legislature, in express terms, provided that debts due to the testator by the executor should be money in his hands, the deduction desired by plaintiff's counsel would not follow, whereby worthless assets are transmitted into cash, unless, indeed, the creative faculty can be accorded to our law makers or the touch of Midas to their enactments." This case of McCarty v. Frazer, supra, is cited approvingly on this point by our Supreme Court in State ex rel. Welch v. Morrison, 244 Mo. 193, 148 S. W. 907. In that case it appears that the executors, when they took charge of the estate, they being solvent at the time, took up various notes which they had given to the estate and charged themselves with them in their inventory as assets in their hands and they were accordingly charged with them. But that was not the case here. This removed executor never inventoried this $200 note at all, much less did he charge himself with it. "The debt owing by an administrator to the estate is an asset in his hands. But it is not treated as cash. The debtor administrator may necessarily a collectable asset. It is not to be be insolvent. It is only such an asset as it would be if owing by anyone else, and is to be administered as such." No subsequent authorities that have been called to our attention, or that we have It follows found, disturb these decisions. that the action of the circuit court in charging the removed executor with the $200 note and interest on it, was error. That is the only error apparent in this case. The judgment of the circuit court of Franklin County is reversed and the cause is remanded to that court with directions to en ter up a judgment in favor of respondent in the sum of $575.22, the amount admitted by him in and by his settlement to be due that estate and in his hands in 1907, and with interest thereon to February 14th, 1913, in the amount of $198.44, a total of $773.66, together with interest on that sum at 6 per cent. per annum from February 14th, 1913, to the date of rendering such judgment, together with the costs. ALLEN and BECKER, JJ., concur. (No. 12313.) Missouri Our court, in Young v. Thrasher, 48 Mo. App. 327, cited McCarty v. Frazer, supra, at GARNER v. KANSAS CITY BRIDGE CO. page 331, and construed that case as holding "that, under the operation of our statute, debts due by the administrator to the intestate do not become moneyed assets by operation of law in such a sense as to make the sureties in his administration bond responsible for their proper administration." There our court also referred approvingly to the decision of the Kansas City Court of Appeals in Ridgway v. Kerfoot, 22 Mo. App. 661, loc. cit. 665, as construing McCarty v. Frazer to hold "that the mere fact of the administrator owing the debt to the estate does not make the debt actual money but it remains a debt like any other, good or bad, as the case may be. And, being like any other debt, it must be inventoried and accounted for as other debts.' The just conclusion seems to be, that the operation of the statute is to prevent the assets being transmuted into money as soon as the administrator takes possession of the estate, but that it leaves them in his hands to be collected and accounted for exactly as any other assets.' McManus v. McDowell, 11 Mo. App. 436, loc. cit. 443, is cited in support of this, which see. Our court concluded, in Young v. Thrasher, supra, that if the debt is evidenced by notes, the assets remain in the form of such notes until the executor, by some unequivocal act, as by charging himself in his account with so much money, cancelling the notes, or otherwise, expresses the plain intention of paying them. In Wilson v. Ruthrauff, 82 Mo. App. 435, the Kansas City Court of Appeals (loc. cit. (Kansas City Court of Appeals. 1. APPEAL AND ERROR 13-PREMATURE APPEAL-STATUTE. Under Rev. St. 1909, § 2038, providing that any party to a suit aggrieved by any judgment may take an appeal to a court having appellate jurisdiction from any order granting a new trial, etc., an appeal will lie from a motion granting a new trial, although a motion in arrest of judgment has not been passed upon. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 47, 1895.] 2. TRIAL 105(1) OBJECTIONS STRUCTING ON MATTERS NOT PLEADED WAIVER. IN an instruction permitting recovery for loss of In a personal injury suit against master, past earnings is without prejudice, although not specifically covered by allegations of complaint, where plaintiff without objection has introduced evidence thereof, failure to object being a waiver of the objection. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 260, 261, 266.] 3. TRIAL105(1) INSTRUCTING ON MATTERS NOT PLEADED WAIVER OF OBJECTIONS. In a personal injury suit against master, plaintiff having alleged that injuries were permanent, an instruction permitting compensation for future suffering is without prejudice where plaintiff without objection has introduced evidence thereof. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 260, 261, 266.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. DAMAGES 208(4) LOSS OF FUTURE for permanent injuries from which he will conEARNINGS AND EARNING CAPACITY-SUB- tinue to suffer is not excessive. MISSION TO JURY-EVIDENCE. [Ed. Note.-For other cases, Cent. Dig. § 372.] In an action by a servant for personal injuries, evidence of loss of future earnings and earning capacity held sufficient for submission of issue to jury. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 533, 534.] An instruction permitting jury to assess damages which will compensate for injury to gether with loss of earnings and earning capacity is not subject to objection that it allows the jury to compensate twice for same injury. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 548, 549.] 6. APPEAL AND ERROR 977(3)-REVIEWGRANTING NEW TRIAL DUTY TO SUSTAIN. It is the duty of this court to sustain the action of the lower court in granting a new trial if it can be done on any ground. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3862.] 7. MASTER AND SERVANT PLACE TO WORK. 103(2) SAFE That servant under direction of master's foreman moved a plank so that it projected about four inches over the edge of a beam on scaffold did not make the scaffold one contructed by himself so as to relieve master from duty to furnish a safe place to work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175.]* 8. MASTER AND SERVANT 203(1)—ASSUMP TION OF RISK-NEGLIGENCE OF MASTER. A servant never assumes the risk of the master's negligence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 538-540, 542, 543.] 9. MASTER AND SERVANT 208(1)-ASSUMPTION OF RISK UNSAFE INSTRUMENTS KNOWLEDGE OF SERVANT. If a master furnishes a servant unsafe implements, and he uses them knowing them to be unsafe, a question of contributory negligence arises, but not of assumption of risk. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 551.] 10. MASTER AND SERVANT 280(18)-INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE. A servant who, after moving a plank on which he is standing so that it projects about four inches over edge of beam on scaffold, continues to use scaffold, although there are no bolts in the ends of the planks to keep them from slipping off, is not negligent as a matter of law; the danger not being so great as to threaten immediate injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1109.] 11. MASTER AND SERVANT 107(4) SAFE PLACE TO WORK "TRANSITORY APPLIANCE"-"SHIFTING APPLIANCE." A plank scaffold laid on needle beams supported by ropes from a trestle and used by riveters is not of a "transitory" or "shifting" nature relieving master from duty to furnish a safe place to work. 12. DAMAGES 132(1)-PERSONAL INJURIES -EXCESSIVE DAMAGES. Where plaintiff, 31 years old, at time of injury was strong, and steadily employed at his trade, earning $5.20 a day, a verdict for $2,100 see Damages, Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge. "Not to be officially published." Action by John H. Garner against the Kansas City Bridge Company. From an order sustaining defendant's motion for a new trial, plaintiff appeals. Reversed and remanded, with instructions. Langsdale & Howell, of Kansas City, for appellant. Battle McCardle and Frank L. Barry, all of Kansas City, for respondent. BLAND, J. In the circuit court of Jackson county, Mo., at Kansas City, plaintiff recovered a judgment for $2,100 damages for personal injuries. The court sustained the motion for a new trial, filed by defendant, upon the express ground that there was error in the instruction as to the measure of damages, without pointing out specifically the defects in said instruction. The evidence shows that on the 9th day of October, 1914, the defendant was constructing a steel bridge or viaduct for the Frisco Railroad across the line of the Kansas City Southern Railroad, near Belton, Mo. About four days prior to that date plaintiff was given employment by the defendant as a riveter; his duties being to stand upon a scaffold and there to use an air-driven device, known as an air gun, to batter down the heads of rivets that were being used to fasten together the steel in the structure. Plaintiff had been engaged in the work of riveting about a day and a half before the accident. The scaffold was constructed of two beams, called "needle beams," which were placed side by side forming somewhat of a V shape. The needle beams were supported by ropes dropped from the bridge and tied to their ends. The scaffold was below the bridge, and was braced by a board placed under the floor system of the bridge and lashed to the needle beams for the purpose of steadying the scaffold. Several planks were laid across the needle beams to form the flooring of the scaffold. There were no cleats upon the ends of the planks, neither were there holes in the ends of them for the reception of the bolts. The scaffold thus furnished by the defendant consisted of two 4x4's, about 18 feet long, called "needle beams," with a loose floor laid thereon composed of one plank 9 feet long and three planks from 41⁄2 to 6 feet long. On the day of the accident plaintiff and other members of the riveting gang removed the scaffold and placed the same in a position to rivet steel bracing near one end of the bridge. After plaintiff and his coworkers had gone upon said scaffold in its new position to begin riveting, defendant's foreman, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant, the latter thereby waived its right to thereafter complain of the evidence being considered as properly in the case. in this case there was testimony, unobjected to, that bore directly upon the point of loss of earnings; such loss beginning with the time of the accident. Clyde Combs, came to the top of the bridge, the same was not objected to by the defendnear where plaintiff was working and told the latter to shove said 9-foot plank towards the needle beam so that there would be no danger of it being struck by any passing train of the Kansas City Southern. While the foreman remained above, the plaintiff did as directed by him, and when the end of said plank projected beyond the end of the needle beam 3 or 4 inches defendant's said foreman told plaintiff, “That will do," and plaintiff stopped. Upon returning to his work after driving back the plank, plaintiff took up a proper position to drive rivets. In this position an iron column was between him and the end of the plank that had been driven back, obscuring plaintiff's view of such end. The riveting device being used by the plaintiff weighed 30 to 40 pounds, and while being used in battering down the heads of the rivets it caused a considerable vibration. After the removing of the said 9-foot plank plaintiff resumed his duties and had driven one rivet and had nearly finished driving the second one, the whole operation requiring some 15 minutes from the time he moved back the plank, when the end of said plank, by reason of such vibration, slipped off the needle beam, allowing plaintiff, while still driving the rivet, with the air gun on a line with his shoulder, to be precipitated to the ground, striking on his head. Three witnesses, including the foreman, testified that it was the general, ordinary, and usual custom to prepare floor boards for riveting scaffolds by nailing cleats to, or by boring holes through, the ends of the planks, and dropping bolts through such holes, so that when fixed, either by the use of cleats or by means of bolts, such cleats or bolts would be against the needle beams and thus prevent the plank from slipping off the same, [1] Respondent claims that this appeal should be dismissed because it was taken prematurely, in that the motion in arrest of judgment had not been passed upon, although it is admitted that the motion for new trial had been sustained. We rule against the respondent on this point. Section 2038, R. S. 1909; Ormiston v. Trumbo, 77 Mo. App. 310. [2] The allegation of injuries in plaintiff's petition charges, among other things, "that his earning capacity has been greatly impaired." Defendant urges that on account of the fact that plaintiff's instruction on the measure of damages permitted recovery for a loss of past earnings, both those accruing from the time of the injury to the filing of the suit and from the filing of the suit until the trial thereof, the same was erroneous, in that the petition does not allege any loss of past earnings. While it is true that loss of earnings is not necessarily a result of the injuries complained of in this case, and for that reason it is not embraced within the general allegation of damages, still if plaintiff introduced evidence upon the point, and "Loss of earnings is a kind of injury which is not regarded as a necessary consequence of such not embraced within the plaintiff's general alacts as are complained of here, and therefore is legations of damage. It is one sort of special damages, and consequently must, in some wise, be counted upon to constitute a basis for evidence on the subject. The purpose of this rule is to prevent surprise, and to inform defendant of the exact scope of plaintiff's demand. But defendant may waive its benefits, and plaintiff at the time of the accident has been where, as here, evidence of the earnings of admitted, to furnish a basis for such a recovery without objection, it will be regarded_as such a waiver." Mellor v. Mo. Pac. Ry. Co., 105 Mo. loc. cit. 462, 16 S. W. 849, 851, 10 L. R. A. 36. We therefore rule that defendant was not prejudiced by the giving of the instruction which permitted the jury to award plaintiff damages for loss of past earnings. [3] Defendant further contends that, because the instruction permitted the jury to compensate plaintiff for pain that he might reasonably suffer in the future, it was erroneous, for the reason that, although plaintiff avers that the injuries were permanent, that averment is not equivalent to a statement that plaintiff will suffer pain in the future. We have thoroughly examined the record and find evidence, unobjected to, that bears directly upon the point of future pain and suffering on the part of the plaintiff. Plaintiff testified that he was still suffering as the result of his injury, and his physician stated that plaintiff's injury was permanent, and that he was suffering therefrom and would probably continue to so suffer. We therefore hold that defendant was not prejudiced by reason of the giving of the instruction permitting recovery for pain and suffering in the future. Mellor v. Railway Co., supra; Litton v. Railway Co., 111 Mo. App. 140, 85 S. W. 978; Elliott v. Railway Co., 157 Mo. App. loc. cit. 522, 138 S. W. 663; McFall v. Railroad, 181 Mo. App. 142, 168 S. W. 341; Wilbur v. Railway Co., 110 Mo. App. 689, 85 S. W. 671; Smith v. Transit Co., 133 Mo. App. 202, 113 S. W. 216. [4] Respondent further urges that appellant introduced no evidence authorizing the awarding of damages for loss of earnings and earning capacity in the future. Both plaintiff and his physician testified that plaintiff's back and neck were injured. The doctor testified there was a separation of a small ligament about the cervical vertabræ of the neck, and that there was a like separation of a small ligament in one of plaintiff's fingers of the left hand, caused by dislocation of one of the joints of said finger. They both testified that plaintiff had recovered the point that the demurrer to the evidence should have been sustained, because: First, the plaintiff assumed the risk; second, because the plaintiff was guilty of contributory negligence; and third, on account of the device that plaintiff and his fellow servants were using being constantly changing. the nature of the work was shifting and transitory, and for that reason the defendant claims that it owed the plaintiff no duty to furnish him a safe place in which to work. from none of the injuries at the time of the | In pursuance of this idea, respondent raises trial; that he was still suffering pain therefrom. Plaintiff testified that he had a severe swelling in the neck that gave him pain when he turned his head from side to side and in raising or lowering the same, all of which affected his ability to work at his trade; that his back was hurt to such an extent that after he returned to work he was unable to lift heavy objects. While plaintiff testified that he was at the time of the trial working at his trade and receiving the same compensation as other workmen for performing like duties (he testified that he was physically able to "get by" with his work), from all of the evidence we cannot say as a matter of law that plaintiff might not have suffered loss of earnings or earning capacity in the future. As the verdict was small, it is evident that the jury did not award plaintiff any great amount of money, if any, for any such loss. [5] Respondent makes a further point that the instruction tells the jury to compensate plaintiff for the injury itself, and, in addition, tells the jury to compensate plaintiff for loss of earnings and earning capacity in the future on account of the injury; in other words, defendant claims that the instruction allows the jury to compensate plaintiff twice for the same injury. The instruction permits the jury to assess plaintiff such damages as— "will reasonably compensate him for the in- We do not believe the instruction is subject to the criticism made of it by the defendant. The instruction does not say that the jury may compensate plaintiff generally for the injury received by him, and then specifically for the elements going to make up the whole injury, but it alone sets out what elements of compensation the jury may consider, and in no sense does it say that the jury may consider more than once any future loss of earnings, or earning capacity, or that it may compensate plaintiff twice for such loss. The instruction is worded so as to provide that the loss of earnings and earning capacity were not to be included within the injury to the neck, spinal column, and finger, but as a result thereof. However, we believe it to be better practice to tell the jury that they may take into consideration all the elements that go to make up the whole damage. [6] It is the duty of this court to sustain the action of the lower court in granting a new trial if it can be done upon any ground. [7] The scaffold in this case was not constructed by plaintiff, the same being completed and in its place when plaintiff was first employed, about four days prior to the accident, except it was removed a few feet on the day of and before the accident. The mere fact that plaintiff drove back the ninefoot plank on which he was standing so that it projected three or four inches over the edge of the needle beam did not make the scaffold one that he had constructed himself. It was merely a minor change in the scaffold which was directed to be made by defendant's foreman, and was made in the latter's presence and under his supervision and control. [8, 9] Defendant contends that the danger, if any, in using the scaffold after it had been changed by order of the foreman aforesaid, was open to the observation of the plaintiff, and that the defect, if any, was patent, and that plaintiff worked without objection in a place known to him to be more dangerous than if the scaffold were properly constructed, and for these reasons plaintiff assumed the increased risk of injury. It was shown in this case that the general, ordinary, usual, and customary method of constructing scaffolding of this kind was either to put cleats upon the ends of the boards or to bore holes in such ends and to place bolts therein so that the boards composing the platform could not slip off, and it was shown that these precautions were not taken by the defendant. A servant never assumes the risk of the master's negligence. Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Cole v. Transit Co., 183 Mo. 81, 81 S. W. 1142; Shore v. Bridge Co., 111 Mo. App. 278, 86 S. W. 905. "If his master furnishes him unsafe implements, and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but not of assumption of the risk." Cole v. Transit Co., supra. [10] Can we say as a matter of law that because plaintiff used the scaffold when he knew that there were no cleats or bolts in the ends of the planks of the flooring to keep them from slipping off, and that one of the boards upon which he was standing had been, by the direction of the foreman, slipped back so that it projected over the needle beam only three or four inches, that he was guilty of contributory negligence? We think not. |