*1 1001 matically delinquency due when occurred. became position But is the this held to untenable. It established be rule that acceleration clause is not self-execut- almost universal ing, merely option upon it an treat confers holder to the debt as due.” 896,
In Bank & v. et Duing al., Tower Grove Trust Co. 346 Mo. 69, (2d) provision 144 S. W. in the trust acceleration was deed of securing provision pay any The the note. that “failure to interest note would cause the whole sum to due.” It was become when.due also, held provision optional. See 32 Harvard Law 767, Review in the Bank Company cited Tower Grove & Trust case. In the Bank Tower Grove Trust it is most & case stated that provisions optional, of the acceleration then : cases'construe to be “We think that is the view provi- correct because such acceleration ’’ may sion is for the benefit of the holder which he waive. Boyd Buchanan, App. v. 56,
Defendant cites: 176 Mo. 162 S. W.
1075; 353, Gooding, App. 333; Stark Co. v. 175 Mo. Bros. 162 S. W. City, 150, (2d) 74, 78(14);
Coleman v. 182 1. Kansas 353 Mo. S. W. c. & Savings Assn., 897, Bisesi v. Farm & Home Loan 231 Mo. App. 78 (2d) 871, 874; (Mo. W. 1. v. & Light S. c. Allison Mo. Power Co. Magee App.), (2d) 771; 59 W. v. S. Mercantile-Commerce Bank & 1022, Co., (2d) 343 Mo. 124 W. 1121; Trust Cleveland v. Laclede- Christy Clay (Mo. App.), (2d) Products Co. et al. S. W. v. Hughes Register Co.,
1. c. Toledo & Cash App. Scale 112 Mo. may ruling But any S. W. 895. whatever be the of these cases indicative the notion such an provision acceleration as mandatory, here is out general of line rule. judgment should be reversed the cause remanded with
direction to allow the claim. is so Osdol, It ordered.- Dalton and Van concur. CC.^ PER foregoing CURIAM: The C., is adopted opinion.by Bradley, opinion judges of the court. All the concur. Guy
L. J. Jackson, Respondent, A. Trustee Missouri Thompson, a Corporation, Appellant. No. Company, Pacific Railroad 41144. 218 S. W. Two,
Division *2 O’Bryen Williams, Schlajly, Williams,, . F. & Fred L. Boland O’Bryen, F. Schlajly, Baumgarten Robert appel- for and Charles n , . lant. ,. Cox, Kirby Cox respond- é Abraham William B. for Altman n ' ' '-I ent. : WESTHUES, C. This is an action to recover damages for injuries alleged 'plaintiff ih/a'cpL to'have been' sustained personal ‘by judgment two of defendant’s trains. There was verdict and lision.of ap- $20,000. railroad plaintiff’s favor in the sum Defendant pealed. por- Plaintiff, pullman
A bi’ief will suffice. statement case aof August duty on the rear car ter, assigned for (cid:127) Louis, Near Worth, a run from Ft. Texas to St. Missouri. train another Jacksonville, Arkansas, train was at a while .standstill, collided with traveling in the same direction trains -defendant’s Plaintiff sus- employed. train on which rear injuries and .this suit tained ensued. injuries. principal issue tried ivas the extent De- head, knee, injured. had been Plaintiff claimed that and back standing long back were of fendant contended alleged. were not so Plaintiff introduced sub- serious as he serious, permanent in- stantial medical evidence that he had suffered *3 any jury to manual The spine,-so his as to be unable to do labor. attempting prove defendant introduced evidence to that ‘ mainly back condition was to had for a due arthritis which existed number, years. of The defendant also records of the Santa introduced ‘Hospital Temple, disclosing plaintiff Texas, Fe that had been of 1938; years treated 'for the and It various ailments in 1937 "was brought plaintiff out in operation the evidence underwent an in rupture in and that a another he suffered with -192.1 which was of an in the result accident 1945. The records of the hos- pital years for plaintiff the 1937 and indicaté suffered with pains shortly in his back after the during collision period. plaintiff Defendant also showed that had signed statement n as- serting injuries “Bumped right that his consisted side of head and right skinned injury knee”. No mention of a appeared back on the statement. Plaintiff previous injury testified that to the re- wreck, in ceived he had had no trouble his back. He tes- tified signed further that he had the abovementioned statement but suffering that hé was so much at pain the time did not remember he hád thought said but he had his all stated that back hurt. . briefed points seeking .Defendant has four judg- reversal of the They plaintiff ment. are: that perjury testimony committed in his concerning health; his condition that the trial court erred previous excluding in permanent disability evidence as to total paid benefits plaintiff alleged to accident; before newly that there was discov- evidence; and.lastly, ered that the verdict was excessive. only We question need discuss admissibility of evidence payments to plaintiff made to in by the Southwestern Life Company Insurance for permanent disability. total The defendant on cross examination disclosed that insurance the hospital paid expenses medical by incurred reason ' in received collision. The defendant then questioned also, whether compensation;
pla^ iff whether he had'been íiaid acci- him since-the any to Company Pu mi i had made' Retiré- Railroad with the ’ain, filed a claim df whether he had b; t ,nt ivere sustained. questions B all these Objections ard. to !of n ' n following': hbseq-u, questioning nt disclosed the furlough from ‘Jackson, you on iPBryen: Q. “Mr. ' ' : (cid:127) (cid:127)‘Yes,-sir'.’ A. 6, 1947, you?’ ti weren’t June from months recent any-furlough notice Q. you ‘Have received you Weren't furloughed? 'you 'been Company-? the Pullman Have - n ' n furloughed ‘Yes, A. sir.-’ March?’ Mr.-Kirby: ‘That is 1948.’ O’Bryen:' Mr. ‘1948.’ ' furloughed.’: A.. ‘And'1947'T ‘Yes, A: March-30th;-1948', also-?’ Q. you furloughed ‘Were ' n nn ' ' n - (cid:127) - sir, time, suppose.-’ I This you {We paying company
(cid:127)';Q. talking were- about that insürance permanent for money. by companies paid You insurance have been n n total you-?? disability, haven’t Your questioning,(cid:127) line of Kirby: object Mr. -‘I to to that want ’ ’1i" n going thing that has been Honor. That is'the sáme sustained, the-jury-in its deliberations ‘Objection The Court: ' ' (cid:127) disregard is instructed to it-’ testify, "witness, to, if O’Bryen: allowed prove -Mr. to ‘Offer n that-September 19th,' Life that Southwestern! o'r soon thereafter benefits connected paid -permanent him total Insurance Luminary J. on the life of group 'with' certificate insurance issued : Jackson.’ proof?’ ‘Object to the/offer of Court: *4 - Kirby: Mr. ‘Yes.’ ' ' sustained;’ ‘Objection The Court: ” O’Bryen:- “Mr. all.’ ‘That is question objection.to was properly Plaintiff éóntends tlie the n sustained for the reason to attempting. that defendant’was the not but, by .plaintiff question ba,ck’ injury’ show had the that that had ’ company. The plaintiff payments an insurance had received from indicated',.¿Hat interroga discloses, the'precéding as we have .record tion, plaintiff after and payments made to of did'concern plaintiff from',the, objections collision. The injuries resulting because of the defendant, not to was” properly were sustained because the entitled , Reiling v. Russell, 345 Mo. have the of such See benefit evidence. 517 Garland, Inc., (2d) v. W. 33, (6). 134 W. 1. c.36 Wells Thomas S. ) 8 (7, 1. S. W. c. evidence The-rule, applicable offered however, no.t to.the applied for and received prove had attempt plaintiff, in an to total to-the prior .in :the benefit sustained disability collision. theory '-Such ivas not -oil plant- evidence acbnissible the that money tiff had received but was to plaintiff admissible show that had considered himself totally disabled. This, evidence was also having bearing plaintiff’s admissible as credibility aas wit ness, déféndaiit'Vtheory to support and tended the plaintiff’s that back injury long standing. was of Again, such evidence was ad missible an admission against,interest. See Wiener Mutual Life York, Insurance New 352 Mo. (2d) 39, S. W. (14);
1. c. 43 Chavaries v. National Life and Accident Insurance Plaintiff-says Tennessee, Company of 110 W. (2d) 790, 5). c. 793 (4, th¿- question therefore, immaterial and, e even evi if th admissible, it dence was was'-harmless cannot-agree. error. We We question ‘because:plaintiff deem the material claimed major that the in injury was that sustained Collision to his-back. The records of years-1937 hospital the f'Or the and 1938 indicate that' then complained supports back. also This the evidence offered injury, may that the to the back defendant have’to some extent been. Therefore, previous permanent disability due to trouble. if the bene back, fits, any, paid of'injury'to if because certainly, right jury the defendant have then the to have the should whether, question in such ¿vid'eny.e'on'.the consider entirely, only partially, collision.'.-Plaintiff, or due to the juries wei’e right explain'the hate- to or show course, circumstances' would the. of. ’ .ruling unnecessary 'fully In this it. is. view .of. had that.he recovered. ruling'in refusing trial a new consider’the:question:of court’s to newly ; discovered-evidence. oh thé' basis trial"'sought appeal alleging to dismiss de filed a motion that Plaintiff :'(b') of ,Rúle’"T.08í'’ta) and'Rule court in T.0'8 (this, 'violated fendant’ b,y repe appellant,is.argumentative, of'facts the statement that made extremely lib has been This court and not eoincise. titious, unfair, eral, y regard, In have the..enforcement>,.of.-its Perhaps this we rules for', loathe to dismiss a case is that we The reason liberal. too been We to decide prefer rules. the cases with the comply to failure lawyers conclude in should not view -of However, their merits. this Rule. disregarded. (b) be 1.08 states are to the rules liberalism concise statement of shall be-in clearly “The.fair the.facts questions facts,relevant to presented of a statement the form Stating separately evidence of each witness for determination”. witness evidence a com from the quoting verbatim of.each not. motion, ,'ru]e. in the asserted, Plaintiff alsp pliance authorities, points to pertaining violated Rule' (ai3');,’ T.08 *5 find we the brief The points "in 'this appellant, sufficient. regard cited, ip and eases were concisely stated support, of. reiied on. ’rehictaney.to 'to dismiss cases for viola ’.our the.points made. ..Due. Judgment, demy riiles, we ilie dismiss. tion, motion reversed fo .1006- Boliling BárreU, GO., t-lie cause remanded for retrial. con-
cur. foregoing opinion by Westtiues, C.,.
PER CURIAM: Tlie adopted All opinion judges as the court. concur. Individually and as Administrator the Estate Woods, Seth Woods, Deceased; Woods, of Minnie Robert B. Woods, Lillie Clyde Woods, Deceased; Executrix of the Estate of H. T. Woods, E. and Roscoe Plaintiffs and Hiser, Marie Schafer, Schafer Appellants, De Cantrell, Lester H. Cantrell Frances .3 Appellants. fendants 40734. 218 S. W. 61 No. One, February 14,
Division Rehearing Denied, Lincoln, Johnson, Joseph
Harold T. Arch A. N. Brown, and' Frank B. plaintiffs-appellants. Williams for