PALMER v. PALMER et al. (238 S.W.) (No. 22113.) (Supreme Court of Missouri, Division No. 1. Dec. 19, 1921. Motion for Rehearing 1. Trusts 6334-Conveyance in instrument Where conveyance is intended as a gift outright, it constitutes a valid conveyance according to its import and meaning, and no resulting trust arises in favor of the grantor because the conveyance was voluntary and without consideration. 2. Deeds 177-Absolute deed without power of revocation can be set aside only for fraud, duress, etc. A deed, executed and delivered by a father, to his children reserving a life estate can only be set aside for fraud, duress, undue influence, or other cause in absence of reservation of power to revoke. 3. Deeds 196(1)-Conveyance from father to children is presumed to be a gift. A conveyance from a father to his children is presumed to be a gift, and no presumption of fraud, undue influence, duress, or other wrongdoing will be indulged in. acres of land in Saline county, Mo., made by appellant and his wife, Cynthia M. Palmer, William Notley Palmer and Nancy Palmer, and one Nancy R. Thomas to respondents now Nancy Palmer Callaway, of date April 15, 1897, upon an expressed consideration therein of $5 and love and affection, and filed by appellant for record on the 13th day of June, 1898, in the recorder's office of Saline county, Mo., and recorded in such office at Deed Book 89, at page 508 therein. An actual manual delivery of said deed was later made to respondents by appellants, in 1914. The respondents are grandchildren of the appellant, William N. Palmer, and, at the time said deed was made and recordand his wife, Cynthia M. Palmer, their ed, were infants residing with the appellant grandmother, and by whom they were raised and educated. The appellant acquired his title to said land from the above-mentioned Nancy R. Thomas by deed, found in the record at page 130; such deed to him was in consideration of the sum of one dollar, and placed the feesimple title, subject to certain reservations and charges against the land in favor of the said Nancy R. Thomas during her life Appeal from Circuit Court, Saline County; time. The said Nancy R. Thomas was an Samuel Davis, Judge. aunt of the appellant, and the land in quesSuit by William N. Palmer against Wil- tion seems to have been in the Palmer famliam Notley Palmer and others. From de ily from the grant of the same by the United cree for defendants, plaintiff appeals. Af-States government, and it was desired by firmed. This is a bill in equity instituted in the circuit court of Saline county by the plaintiff and appellant against the defendants and respondents, the object of which was to set aside and cancel a certain deed of conveyance made and executed by the former to the latter, conveying to them, 222 acres of land, situate in Saline county, Mo. The trial court found the issues for the defendants and rendered a decree for them accordingly, and, after moving unsuccessfully for a new trial, the plaintiff in due time and proper form appealed the cause to this court. The facts of the case are practically undisputed, and counsel for the respective parties have admirably complied to rules of this court regarding the statement of the case, and for that reason we have been spared much of the duties of investigating the record regarding the facts. We adopt the statement of counsel for respondents because it accentuates certain facts more clearly regarding the vital issues of the case, than does that of appellant's, yet their statement is most excellent. The facts are as follows: This suit was filed in the circuit court of Saline county, Mo., on the 12th day of December, 1918. It is a suit by W. N. Palmer, the appellant, to set aside the deed to 222 her to be so kept (although no such restriction appears in the deed to him). Both the said Nancy R. Thomas and the said Cynthia M. Palmer, the wife of the appellant, at the time said deed was made by the grandmother of the respondents herein, were dead at the time of the institution of this suit, and appellant had remarried. The respondent Nancy Palmer has since the making of said deed, intermarried with her codefendant, Samuel McR. Callaway, Jr., and is known in this record as Nancy Palmer Callaway. In 1897, at the time of the making of the deed sought now to be set aside, the appellant was a man of large business affairs and experience, a man of quick perception and understanding and of strong intelligence, with knowledge of trading and all kinds of business. He was advised at the time by his attorney to make a will, rather than a deed to the respondents, but he said he wished it all settled in his lifetime, and accordingly made the deed and procured his aunt, the said Nancy R. Thomas, to join him in the execution thereof, so that there would be no trouble between her and the children in the event of his death. By the deed in question, the property was conveyed to the respondents, subject to the reservations, limitations, and conditions in the deed from the said Nancy R. Thomas to the said William N. Palmer, and the estate for life therein For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes B. C. Howard and W. D. Bush, both of St. Louis, for appellant. Robert M. Reynolds and Harvey & Bel WOODSON, J. (after stating the facts as above). [1] I. Upon the foregoing state of facts learned counsel for appellant strenuously insists that, since the record conclusively shows that the conveyance was voluntary and without a pecuniary consideration, the conveyance in question created a resulting trust in favor of the grantor. Ordinarily that is a correct statement of a sound abstract proposition of law, but it, like most other rules, has its exceptions, and among others is the one which holds that such a conveyance, if intended as a gift outright, then the instrument constitutes a valid conveyance according to its import and meaning. was reserved to the said William N. Palmer | had met with financial reverses; but at the and his wife, Cynthia, together with the time of the institution of this suit he had right to use and enjoy said real estate dur- an income of some $3,000 or $4,000 from ing their natural lives. Said deed did not the rentals of his life estates in the farm contain any power of revocation or reserve described in the deed now in dispute, and a any such right to either of the grantors farm near Pleasant Hill, and other property named therein. It passed the present in- as well. terest in and to all of said lands in fee simple to the respondents, subject alone to the limitations and charges reserved in favor of Nancy R. Thomas during her life (set out in the deed under which the grantor, Wil-lamy, all of Marshall, for respondents. liam N. Palmer, held), and subject also to the life estates reserved by it to the said William N. Palmer and Cynthia M. Palmer. On the 1st day of January, 1917, the appellant, William N. Palmer, together with the present wife, Ella W. Palmer, joined in a deed to said land to the respondents, William Notley Palmer and Nancy Palmer Callaway, formerly Nancy Palmer, referring fully to the above deed of April 15, 1897, by which it was sought to correct and make more certain the description of the lands conveyed to said Palmer by said former deed. It would also appear that on the 25th day of November, 1916, the appellant, William N. Palmer, together with his present wife, Ella W. Palmer, in which the respondents, Nancy Palmer Callaway and Samuel MCR. Callaway, her husband, join, executed a certain deed of trust upon said lands, securing an indebtedness of $3,150 to J. Van Dyke, due three years after date. This debt of $3,150 was the debt due by appellant, and respondents Nancy Palmer Calla-sideration cannot be shown against a recital way and Samuel McR. Callaway, her husband, executed a note at his request as securities, and, at his request, also joined in the execution of the deed of trust, pledging their interest in the land as security for the payment of said note. Said note and deed of trust were still outstanding at the time of the trial. Prior to March 20, 1916, the appellant, for some reason, had conveyed his life estate in said lands to one Mary Louise Howard, of Jackson county, Mo., and, on said date, appellant caused the said Mary Louise Howard to enter into a contract with respondents Nancy Palmer Callaway and Samuel McR. Callaway, by which said lands were leased and rented to said respondents for a term beginning with said date and to continue during the life of the appellant and to end with his death, under which respondents took possession of the same and held the same for a short while, when they surrendered the same back to the appellant. While in possession under this contract, with appellant's consent, they expended some $2,500 and over in making needed changes and improvements upon the farm, which they would not have made had they not believed they owned the fee. This precise question was presented to this court long ago, in the case of Bobb v. Bobb, 89 Mo. 411, 4 S. W. 511, where it was expressly held that the consideration expressed in a deed is open to parole explanation for most purposes; but that a want of a con in a deed, for the purpose of defeating its operative words, as for the purpose of showing a resulting trust in favor of the grantor. The same principle of law as that just announced was, in different language, later decided by this court in the case of Doherty v. Noble, 138 Mo. 25, 39 S. W. 458, where it was said that, where a grantor makes a deed conveying certain real estate without suggestion from the grantee and entirely voluntarily, a court of equity would not set the same aside simply because the grantor might subsequently regret the execution of the deed. [2] And again we have repeatedly held that: Where a deed properly executed and acknowledged, conveying a present interest as here in property therein described, has been delivered to the grantees or other person for him, it is beyond the control of the grantors, and it can only be set aside for fraud, duress, undue influence, or other cause, unless the power to so set aside or revoke it has been reserved to the grantors therein. It cannot be set aside merely because it is asked to be done, unless by consent of all the parties, both grantors and grantees. Smelser v. Meier, 271 Mo. 178, 196 S. W. 22; O'Day v. Meadows, 194 Mo. Appellant had been a man of large busi-617, 92 S. W. 637, 112 Am. St. Rep. 542; ness and property affairs, but in recent years Priest v. McFarland, 262 Mo. loc. cit. 239, (238 S.W.) 171 S. W. 62. That seems to be the facts in entitled to recover if he attempted to alight this case. before the car came to a stop. [3] II. The record clearly shows that the grantees in this deed were the minor children of the grantor, and the law is that, where the parties stand in that relation to each other, as husband and wife, and he makes a conveyance of real estate to her, the law presumes that the conveyance was intended as a gift to her, and that no presumption of fraud, undue influence, duress, or other wrongdoing would be indulged in. Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 105. The same rule applies to parent and child. McKinney v. Hensley, 74 Mo. loc. cit. 332. And there is no pretense in this case that fraud, duress, or other wrongdoing was perpetrated upon the grantor. III. There are several other legal propositions presented by counsel for appellant, but a most casual observation of the record and briefs of counsel will clearly show that they are only germain and subservient to those we have heretofore decided, and that decision necessarily disposes of said other points against the appellant and in favor of the respondents. Finding no error in the record, the decree of the circuit court is accordingly affirmed. All concur. KEPPLER v. WELLS. (No. 22383.) 139(1)-Weight of testimony for jury. It is the province of the jury to pass on the weight of the testimony. 7. Trial 156(3)-On demurrer to evidence, respondent entitled to every reasonable inference. In considering a demurrer to his evidence plaintiff is entitled to every reasonable inference which a fair-minded jury of ordinary intelli (Supreme Court of Missouri, Division No. 2. gence may legitimately draw from the testiFeb. 18, 1922. Motion for Rehearing Denied March 18, 1922.) 1. Trial 186-Instruction held erroneous as commenting on detached portion of plaintiff's cause of action. In a passenger's action against a street railway company for injuries while alighting, due to an alleged violent jerk of the car, an instruction that the fact that the doors on the rear platform were open before the car stopped would not entitle plaintiff to a verdict was erroneous as a comment on a detached portion of plaintiff's action. 2. Negligence 119(6)-Contributory negligence must be specially pleaded. Contributory negligence is an affirmative defense unless shown by plaintiff's testimony, and must be specially pleaded in view of Rev. St. 1919, § 1232, 1239. 3. Carriers 348 (14)-Plea of contributory negligence held insufficient to warrant instruction as to liability for injuries to passenger alighting from moving car. In a passenger's action for injuries sustained by being thrown from a street car by a violent jerk while alighting, a plea of contributory negligence that the injuries were caused by plaintiff's "own carelessness and negligence in attempting to alight from a moving street car," being a legal conclusion, held insufficient to warrant an instruction that plaintiff was not mony given at the trial. 8. Carriers 318(10) -Evidence as to injuries to alighting passenger held to take the case to the jury. In a passenger's action against a street railway company for injuries sustained through being thrown through open gates by a violent jerk of the car while he was alighting, evidence for plaintiff held sufficient to take the case to the jury. 9. Trial 255 (11)—Plaintiff suing for personal injury need not submit instructions as to negligence. Plaintiff, in personal injury actions against carriers, is not compelled to submit instructions relating to the negligence complained of in the petition, but it is undoubtedly better practice to do so in order that the court may clearly understand the theory on which plaintiff is seeking a recovery. Hartmann, Judge. Action by William Keppler against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for defendant, a new trial was granted, and defendant appleas. Affirmed and remanded. This action was commenced by plaintiff in the circuit court of the city of St. Louis, Mo., For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on September 19, 1919, and on November 21, 1919, an amended petition was filed, on which the case was tried. Said amended petition, after alleging that the United Railways Company of St. Louis is a Missouri corporation, that Rolla Wells is its receiver, and that plaintiff, on August 23, 1919, was a passenger on one of defendant's cars operated northwardly on Jefferson avenue in said city, alleges that when said car was approaching Lynch street, along said Jefferson avenue, plaintiff signaled to defendant's agent and servant to stop said car at the southeast corner of Lynch street and Jefferson avenue; that at said time, plaintiff was on the rear platform of said car, near the doors which are opened and closed by a lever, operated and controlled by defendant's servant from the back platform of said car; that while plaintiff was on the back platform of said car approaching the southeast corner of Lynch street and Jefferson avenue, and before reaching said corner, the doors of said car were thrown open by defendant's servant; that said car was caused to slow down and slacken its speed; that it then gave a sudden, unusual, and violent jerk, causing plaintiff to be thrown from the rear platform to the street, and sustain the injuries complained of, etc. It is further alleged that plaintiff's injuries aforesaid were directly and proximately caused by the negligence and carelessness of defendant, his agents and servants in charge of said car, as follows: It denies every other allegation of the amended petition, and concludes as follows: "For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence in attempting to alight from a moving street car. Wherefore, having fully answered, this defendant prays to be hence dismissed with his proper costs." Plaintiff, by way of reply to said answer filed a general denial. The case was tried before a jury. Plaintiff's Evidence. Respondent testified, in substance, that on August 23, 1919, he was in the employ of the Newport Packing Company, in South St. Louis; that he left his place of employment about 9 o'clock on the night of above date; that he changed cars at Jefferson avenue and Cherokee, and took a north-bound Jefferson avenue car; that he was carrying two baskets, one filled with tomatoes, and the other with meats and vegetables; that each basket had a handle, and each held about one-half bushel; that each of said baskets weighed about 15 pounds; that he carried one in each hand; that he took a seat on the rear platform of a pay-as-you-enter car; that he paid his fare, placed his baskets under the seat, and sat down about the middle of the rear platform; that the conductor was on the rear of said car to take up the fare, where conductors generally stand, in a little box; that plaintiff saw the conductor opening and closing the doors of said car with a lever; that the first street south of Lynch street on Jefferson avenue was Pestalozzi; that after leaving the latter, going north, and about the middle of the block, before coming to Lynch street, plaintiff tapped the conductor on the shoulder and told him he wanted to get off on Lynch; that as plaintiff turned around to pick up his baskets, he faced the doors to go out; that the doors were open and the car gave an awful jerk and threw him into the street; that when the conductor opened the rear doors the car was about 10 feet from the regular stopping place; that he (plaintiff) fell about 8 or 10 feet south of the stopping place; that plaintiff did not know when the doors were opened by the conductor, but they were open when he was thrown out; that when plaintiff tapped the conductor on the shoulder the doors were not then open; that he turned west to get his baskets, and the doors were on the east and to his back; that as the car approached Lynch street, its speed was slackened about 50 or 60 feet back. Plaintiff testified that it was an awfully severe jerk; that it seemed like the car slackened up, gave another severe jerk, and threw him off. The plaintiff then deThe answer of defendant admits that Rol- scribed to the jury the extent and nature of la Wells was the receiver of said railways his injuries. He testified that there was no company, and was in charge of its property. | one between the conductor and himself when "That defendant, his agents and servants, were negligent and careless in permitting and causing the rear doors of said street car to be opened and remain open while said street car was still in motion, and before it had reached the regular stopping place, when they saw, or by the exercise of ordinary care could have seen, that plaintiff was on the back platform near the said rear doors and was likely to be thrown out of the street car and injured by the jolt and shock of the street car if either stopped suddenly, or if the speed should be suddenly accelerated. "Defendant, his agents and servants, were further negligent and careless in causing the car to jerk suddenly and violently, and in failing to properly and carefully bring said street car to a gradual stop, when they knew, or by the exercise of ordinary care might have known, that the sudden unusual jolt, jerk, or shock of a sudden movement of said street car would cause plaintiff to be thrown therefrom and to be injured." The petition then alleges that by reason of said negligence, plaintiff was thrown from the rear platform of said car, against the pavement of said street, and that he sustained the injuries described in petition, to his damage in the sum of $10,000. (238 S. W.) he gave the signal to stop at Lynch street; [ defendant, substantially, as follows: That that there was plenty of light, although it was a dark night. On cross-examination, plaintiff repeated in substance the testimony given by him in chief, and stated that the conductor was located on the east side of the car going north, by the side of the doors, on rear platform, Mrs. Hazel Muser testified in behalf of plaintiff, that she saw him picking up the contents of his basket about 10 feet south of the regular stopping point. Dr. Keim testified in behalf of plaintiff that the latter was suffering from a dislocated shoulder, with a severely contused and sprained back, with numerous contusions and abrasions of the chest, back, and limbs, etc. Counsel for defendant admitted that the car above mentioned was owned and operated by defendant, as receiver of said railways company. Thereupon the plaintiff rested his case, a demurrer to the evidence was interposed by defendant, and overruled by the court. Defendant's Evidence. Mrs. Clara B. Smith testified, in substance, in behalf of defendant, that she and her relative, Mrs. Becker, were standing near the southeast junction of Lynch street and Jefferson avenue, for the purpose of taking passage on the car in which plaintiff had been riding; that she saw a man jump off the car; that after he was off, he fell, and one of his baskets upset; that he commenced picking up his stuff, and told the conductor he was not hurt; that witness and her rela tive got on the same car and went north. This witness further testified, as follows: "Mr. Blodgett (Q.): When this car came to a stop where did it stop, Mrs. Smith? A. When it first stopped, just about, I think, 8 or 10 feet from where the right stopping place was." on August 23, 1919, he saw plaintiff, a passenger, on the rear platform of said car; that as they approached Lynch street, he received a signal from plaintiff to stop the car; that he (conductor) transmitted the signal to the motorman. Witness further testified as follows: A. Well, as we were approaching the crossing "Q. What happened after that, Mr. Witz? it seems I threw the door open just-I guess about 6 feet before the car should have stopped, and the next thing I knew Mr. Keppler fell off, and I really don't recollect seeing how he fell off." That he did not see plaintiff when the latter fell. That he did not know whether plaintiff fell off, or whether he stepped off. That it was a regular, ordinary stop. On cross-examination, witness testified that he opened the car door about 8 feet from the corner, while the car was still moving; that it was about 10 o'clock at night; that as they approached Lynch street the car was not going more than three or four miles an hour. Jacob Beisher, in behalf of defendant, testified, in substance, that he was sitting on the back platform of the car with plaintiff; that they were sitting on the circular seat, of the rear platform of said car; that plaintiff had two baskets; that he saw plaintiff tell the conductor he wanted to get off at Lynch street, and saw him pick up his baskets; that plaintiff walked to the door; that the conductor opened the door, and the next thing witness knew plaintiff was falling; that he could not tell how plaintiff fell out of the car; that he saw plaintiff kind of stumble when he was on the ground, and his baskets fly; that he (witness) did not notice any unusual lurch or jerk of the car. On cross-examination, witness testified that no one else was on the rear platform but plaintiff; that when the conductor opened the door, the car was still moving; that the next thing he noticed was that plaintiff fell from the platform, but he did not know how plaintiff fell; that plaintiff had one basket in each hand. The foregoing covers substantially the pleadings and testimony in the case. On cross-examination, witness testified that plaintiff stepped on the steps of the rear end of the car, and jumped off with the baskets while the car was still moving; that the door of the car was still open; that plaintiff landed on both feet when he struck the ground; that after he struck the ground he fell, and the tomatoes fell from his hand; that plaintiff left the car about 8 or 10 feet from the regular stopping place; that she saw plaintiff step from the platform to the first step; that she could not state whether | objection of plaintiff, instructions 2 and 3, it was a voluntary or involuntary jump of plaintiff in leaving the car. Mrs. Rebecca Baker testified, in behalf of defendant, that she was with Mrs. Smith, at the time of the accident; that she saw plaintiff step off of the car while it was going, and he fell when he touched the ground; that plaintiff jumped off the rear end of the car when it was about 10 feet from the pole, and while it was still moving. The plaintiff asked no instructions, except as to the measure of damages, etc. Defendant asked, and the court gave, over the hereafter mentioned. The court of its own motion gave instructions 4 and 5, over the objection of defendant. Nine of the jurors returned a verdict in favor of defendant. Plaintiff filed a motion for a new trial containing several grounds, but especially attacking the legality of defendant's instructions 2 and 3, supra. The court sustained plaintiff's motion for a new trial, on the ground that error was commitJ. W. Witz, defendant's conductor in ted in giving to the jury defendant's instruccharge of said car, testified as a witness for | tions 2 and 3 aforesaid. Appellant excepted |