97 S. W. 938; McDonnell v. G. B. Peck Dry Goods Co. (Mo. Sup.) 228 S. W. 759; Diamond Rubber Co. v. Wernicke, 166 Mo. App. 128, 148 S. W. 160; Hays Wood Products Co. v. Simmons Saddlery Co., 213 Mo. App. 434, 447, 255 S. W. 973. However, defendant has failed to call our attention to any statute which grants it the right to take an appeal under the circumstances. Section 1469, R. S. 1919, which provides instances where an appeal may be taken, does not mention an appeal from an order of the court setting aside a voluntary nonsuit. Defendant calls our attention to Coatney v. Railway, 151 Mo. 35, 51 S. W. 1036; Cohn v. Met. St. R. Co., 182 Mo. 577, 81 S. W. 846; Veatch v. Norman, 95 Mo. App. 500, 69 S. W. 472; State ex rel v. Arnold, 197 Mo. App. 1, 193 S. W. 292. These were all cases where there was an appeal from an order setting aside an involuntary nonsuit taken by plaintiff. An appeal is allowed under such circumstances, because the right of an appeal is given (section 1469) from "any order granting a new trial." In Coatney v. Railway, supra, loc. cit. 39, 40 (51 S. W. 1037), the court said: "The proceeding which results in a ruling that enforces a nonsuit is as much a trial as the proceeding which results in a verdict, and the judgment which follows an involuntary nonsuit is as final a disposal of the case in which it is rendered as is the judgment that follows a verdict in such case. The effect of the judg ment on the cause of action involved is not the same in both cases, the cause of action being extinguished in the judgment on a verdict, but surviving the judgment on the nonsuit; but, so far as the suit itself is concerned, it is as completely ended in the one case as the other. What is a trial? Our statute answers the question (section 2130, R. S. 1889): 'A trial is the judicial examination of the issues between the parties, whether they be issues of law or fact.' The proceeding in this case, then, amounted to a trial, although it culminated on an issue of law, and the effect of sustaining the motion to set aside the nonsuit is nothing more than granting a new trial of that issue. Defendant therefore had a right to this appeal." It There is quite a distinction between a voluntary and an involuntary nonsuit; in the former the court has not decided any issue, while in the latter the contrary is true. is because no decision has been rendered by the court in the case of a voluntary nonsuit that plaintiff is not forced to take a nonsuit, and therefore he cannot complain of the court's refusal to set it aside. Our statute (section 1397, R. S. 1919) defines a trial as "the judicial examination of the issues between the parties, whether they be issues of law or of fact." See, also, State v. Brown, 63 Mo. 439, 444; 38 Cyc. 1267. How can there be a judicial examination of the issues between the parties, when the case has been voluntarily discontinued by plaintiff before it has been submitted to the court or jury, in order that there be such an examination? The word "trial," as used in statutes similar to ours, embraces all the steps in the case, including its submission to the court or jury to the rendition of the judgment. Hotsenpiller v. State, 144 Ind. 9, 43 N. E. 234. It being apparent there is no right of appeal in a case of this kind, the appeal that defendant has sought to take is dismissed. ARNOLD, J., concurs. TRIMBLE, P. J., absent. On Motion for Rehearing. BLAND, J. [2, 3] Defendant insists that it has a right to an appeal, because an order setting aside a voluntary nonsuit is a "special order after judgment"; "that the order made in entering a voluntary nonsuit is a final judgment." We pointed out in the original opinion that there has been no judgment in this cause, and that fact is made more apparent by an examination of section 1410, R. S. 1919, which permits the plaintiff to take a nonsuit "at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward." It has been held that plaintiff as a matter of right can take a voluntary nonsuit, even without being given permission to do so by the court. Derrington v. City of Poplar Bluff (Mo. App.) 186 S. W. 561, 562, and cases therein cited. It is quite plain that there has been no final judgment in this case. The case of Whitfield v. Light & Power Co. (Mo. Sup.) 271 S. W. 52, is not in point. That case involved an involuntary nonsuit. The motion for a rehearing is overruled. SCHULTE v. CITY OF JEFFERSON. (No. 15341.) (Kansas City Court of Appeals. Missouri. June 15, 1925.) 1. Officers 15-Appointment by nomination and confirmation not complete, until action by all bodies concerned. Appointment of officer, as result of nomination by one authority and confirmation by another, is not complete, until action of all bodies concerned and confirming body may reconsider action before any action is taken on its first decision. 2. Municipal corporations 184(1) — Policeman, appointed by marshal to fill vacancy without confirmation by council, not entitled to salary. Under Rev. St. 1919, §§ 8232, 8239, 8241, 8242, and city ordinances, policeman, appointed by marshal of third class city to fill vacancy, after city council refused to confirm appoint (273 S.W.) ment, held at most a de facto officer, not enti- | such policemen shall serve for a term of one tled to salary of office. year. Special policemen may be appointed for such times and in such numbers as may be pre Appeal from Circuit Court, Cole County; scribed by ordinance." Henry J. Westhues, Judge. Action by William Schulte against the City of Jefferson. Judgment for plaintiff, and defendant appeals. Reversed. T. H. Antrobus and Oscar Williams, both of Jefferson City, for appellant. D. W. Peters, of Jefferson City, for respondent. Section 8242 provides: "The manner of appointing the assistant marshal and all policemen of the city, as well as the duties of the same, shall be defined by ordinance." The ordinances of defendant city provide that And that "At the first regular meeting of the city BLAND, J. This is a suit to recover sal-council, held after each city election, the marary alleged to be due from defendant to shal, with the advice and consent of a majorplaintiff. The case was tried before the ity of the members elected to the city council, court without the aid of a jury. The court shall appoint five discreet and competent perrendered judgment in favor of plaintiff in the sons to act as regular police officers of the sum of $448.33. Defendant has appealed. city of Jefferson, whose term of office shall be for one year. * * * The material parts of the agreed state- ficer shall hold his office for one year provided Each regular police ofments of facts, upon which the case was that the mayor, with the consent of a majority tried, show that defendant is an incorporated of all the members elected to the city council city of the third class; that Joseph H. Bruns may remove such regular police officer at any is the duly elected and qualified city marshal time at will, and that the city council, by a of said city; that plaintiff was a regular po- two-thirds vote of all the members elected to liceman of said city for a term of one year officer at any time, at will, without the mayor's the council, may remove such regular police beginning on the day of May, 1923, recommendation, or approval; and provided and ending on the day of May, 1924, further that, before entering upon the discharge having been regularly appointed and confirm- of their duties, each regular police officer shall ed by the city council at its May meeting take and subscribe to an oath or affirmation, in 1923. As its regular May meeting in 1924, as is required by the charter of the city for city being the first meeting after the annual city officer.' election, the city council rejected the name of plaintiff as a regular city policeman, after the city marshal had recommended and presented plaintiff's name, among others, to it for confirmation for another term of one year. On June 6, 1924, the city marshal directed a letter to the city clerk informing him that he had appointed plaintiff and one other, as regular police officers of the city, to fill two existing vacancies in the police force, intending thereby to appoint plaintiff as a regular policeman, but the city council again refused to confirm said appointment. The marshal again, at the regular July, August, September, and October meetings of the city council, resubmitted the name of plaintiff for the position of regular policeman, and on each of these occasions, as before, the city council refused confirmation. At each of these times, as recited by the agreed facts, the marshal "reissued and refiled a like appointment" as was done by him on June 6, 1924. Section 8232, R. S. 1919, relating to cities of the third class, defines the term "officer" "to include any person holding any situation under the city government or any of its departments, with an annual salary, or for a definite term of office." Section 8239 provides, among other things, that the marshal shall be chief of police. Section 8241 provides: "There shall be such number of regular policemen as may be deemed necessary by the council for the good government of the city; "Whenever, for any cause, a vacancy exists, or shall occur in the regular police force of this city, it shall be the duty of the marshal, with the advice and consent of a majority of the members elected to the city council, to appoint some suitable and competent person to fill such vacancy, and such appointee shall take and subscribe to a like oath or affirmation as is required by the charter for city officers, and thereafter shall be considered as a regular police officer of the city, with like duties and powers of regular police officers, and shall, untill the first annual city election, held after said less sooner removed from office, hold his office appointment, and until his successor is duly appointed, confirmed and qualified." (Italics ours.) It was admitted that plaintiff possessed all of the required qualifications of a police officer; that after the attempted appointment of plaintiff by the marshal, on each of the occasions above referred to, plaintiff began serving as a pretended police officer of the city, and so continued from month to month, acting under order of the marshal and without confirmation by the city council, and was so acting at the time of the commencement of this suit. Plaintiff was never at any time appointed or named as a special officer of the city but has been acting as a regular officer. Plaintiff is suing for pay for services rendered under an alleged "recess" appointment to fill a vacancy in the office of police officer. At the conclusion of the testimony, defend ant requested the court to declare that plaintiff was not entitled to recover; also, in another declaration, that it was incumbent upon plaintiff to prove that he was "a regular, duly appointed, and confirmed policeman of the city of Jefferson before he would be entitled to any compensation for any services rendered or pretended to be rendered in the capacity of a policeman." The court gave this latter declaration after having stricken out the words "and confirmed," indicating that the court decided the case on the theory that it was not necessary, in order for plaintiff to be a regular, duly appointed policeman, to be confirmed by the council. We think that the court erred in refusing to give the declaration in the nature of a demurrer to the evidence, and also the declaration that we have referred to. [1] It is well settled "Where the appointment is made as the result of a nomination by one authority and confirmation by another, the appointment is not complete, until the action of all bodies concerned has been had, and the body which has been intrusted with the power of confirming appointments may reconsider its action before any action based upon its first, decision has been taken." 13 Cyc. p. 1372; Meachem's Public Office and Officers, §§ 114, 124; 22 R. C. L. p. 433, § 84. utes of the state are revised generally), and it was the legislative intent, under the circumstances, that the Governor be allowed to make a recess appointment. The facts in the case at bar clearly are not like those in the Williams Case. Here the city council meets every month, and the ordinance expressly provides how a vacancy in the office in question may be filled, Substantially the same situation arose in the case of Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874. In that case, the charter provided: "In case of a vacancy in an elective office, from whatever reason, the council, upon nomination by the mayor, shall fill the vacancy by the selection of some person by a vote of a majority of the aldermen elected and qualified.” It was held that the mayor, without the concurrence of a majority of the council, could not fill a vacancy in the office of health officer. The judgment is reversed. D'WOLF v. STIX-BAER & FULLER DRY 2, 1925.) 1. Municipal corporations 706(7)-Automo [2] Plaintiff was not a de jure officer until (St. Louis Court of Appeals. Missouri. June at least confirmed by the council. If anything at all, he was a de facto officer, and such officer is not entitled to the emoluments of the office. 29 Cyc. 1393; Sheridan v. City of St. Louis, 183 Mo. 25, 39, 40, 81 S. W. 1082, 2 Ann. Cas. 480; Luth v. Kansas City, 203 Mo. App. 110, 113, 218 S. W. 901; Throop on Public Officers, § 517. bile driver's contributory negligence held for jury. In action for damages to plaintiff's automobile from collision with defendant's truck, evidence held not to show as matter of law that plaintiff was guilty of contributory negli gence. Plaintiff relies on the case of State ex inf. v. Williams, 222 Mo. 268, 121 S. W. 64, 17 Ann. Cas. 1006, and cases cited therein. The Williams Case involved the title to the office of state factory inspector. The act creating the office provided that, within 30 days after the passage of the act, the Governor, with the advice and consent of the Senate, should appoint a competent person to fill the position, to hold the office for a period of four years, but did not provide any method of filling a vacancy in such office. The court held that the Governor could make a recess appointment, the appointee to hold until the Senate acted adversely on his appointment. This holding was based upon the fact that the Legislature provided for the first appointment to be made when the Legislature would not be in session, and that it would not likely be in session when further appointments were made (the Legislature under the Constitution, §§ 16, 20, art. 4, regularly meets only biennially, beginning the first Wednesday after the first day of January and contemplates only a session of 70 days, except every 10 years, when the stat- for 2. Appeal and error 302 (4)-To change character of instruction, modification must be material. To change status of an instruction from that of a party to that of the court, so as to be made in motion for new trial, the modificarequire complaint as to court's instructions to tion must be material. 3. Appeal and error 302(4)-Court's modification of plaintiff's offered instruction held not so material as to make it court's instruction. instruction, adding requirement for finding that Court's modification of plaintiff's offered plaintiff was exercising highest degree of care at street intersection, held to merely emphasize that which plaintiff's instruction required jury to find, before plaintiff could recover, and not material, so as to make instruction that of court. 4. Appeal and error 302(4)-General assignment of error as to giving and refusing instructions sufficient. Defendant's general assignment, in motion new trial, that court erred in giving in . structions Nos. sufficient. (273 S.W.) offered by plaintiff, held | Judgment for plaintiff, and defendant appeals. Affirmed. 5. Municipal corporations 706 (8)-Instruction on rate of speed being proximate cause of collision held warranted. In action for injury to plaintiff's automobile from collision, evidence held to warrant inference that, if defendant's truck had been driven at lawful speed, driver could have averted collision, so as to warrant instruction as to rate of speed being proximate cause of collision. 6. Appeal and error 882 (3)-Insufficiency of plaintiff's petition to allege failure of defendant's truck to stop or slow up cannot be complained of, where case tried by both parties on such theory. Where action for injuries to plaintiff's automobile from collision with defendant's truck was tried by both parties, on theory that defendant failed to stop or slacken speed of truck, defendant cannot, on appeal, complain that plaintiff's petition lacked necessary allegations in that respect. 7. Trial 105(2)—Instruction on defendant's failure to slacken speed of truck at intersection held proper, though petition failed to rely on it, where evidence thereof. introduced without objection. Bryan, Williams & Cave, of St. Louis, for appellant. Case & Miller, David W. Voyles, and George L. Stemmler, all of St. Louis, for respondent. DAVIS, C. This is an action for damages to plaintiff's automobile, caused by a collision between it and a motortruck driven by a servant of defendant. Plaintiff obtained a verdict in the circuit court for $656.08; defendant appealing from the judgment entered thereon. The collision occurred at the intersection of Channing avenue and Locust street, in the city of St. Louis, on December 8, 1916, at about 5:45 p. m. The front end of plaintiff's automobile was badly damaged, the radiator was broken, both headlights demolished, the front axle bent, the hood mashed nearly flat, and a fender cracked off. Plaintiff paid $656.08 for repairs, a fair and reasonable charge. At the time of the accident, an ordinance of the city of St. Louis was in force prohibiting motor vehicles from traveling at a greater rate of speed than 8 miles In action for injury to plaintiff's automo- an hour in the business portion of the city, bile from collision with defendant's truck, or more than 10 miles an hour in other porwhere plaintiff introduced, without objection, tions. An ordinance gave vehicles going in evidence tending to show that defendant failed an easterly and westerly direction the right to stop or slacken speed of truck, court prop- of way over vehicles going in a northerly and erly instructed jury in that regard, notwith-southerly direction. Defendant's truck was standing petition failed to rely on it, especially in view of Acts 1911, p 327, requiring motor vehicle operator to slow down on approaching an intersecting highway. 8. Trial 105(2)-Defendant cannot complain of instruction because not warranted by petition, where evidence in support thereof admitted without objection. Where action for damages to plaintiff's automobile from collision with defendant's truck was tried on theory that petition alleged negligent failure to stop or slacken speed, and evidence thereof went in without objection, defendant cannot complain of instruction on such failure because it required precaution not demanded by ordinance pleaded by plaintiff. 9. Municipal corporations 705(5)-Motorist approaching intersection must have automobile under control; "negligence." No matter at what speed motorist approaches an intersecting highway, he must have motorcar under control, and Acts 1911, p. 327, places highest degree of care on motorist, and anything less than that is "negligence." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Negligence.] proceeding in a southerly direction along Channing avenue, and plaintiff's motorcar was traveling westwardly on Locust street. Another ordinance in force required all vehicles to keep as near the right-hand curb as possible. These were the undisputed facts in the case. Plaintiff's evidence tended to show that just prior to the collision he was driving westwardly on Locust street; that he heard the approach of defendant's motortruck before he arrived at the east curb line of Channing avenue. We here deem it necessary to set out in hæc verba portions of the testimony as shown by the record. Plaintiff testified: "I saw the truck when it was 15 or 20 feet north of the intersection of Channing and Locust-north of the curb line of Locust. I was traveling about 4 or 5 miles an hour as I reached the east curb line of Channing avenue. When I first saw the automobile truck north of Locust street, my front wheels were just about even with the east curb. I came to a dead stop 5 or 10 feet west of the east curb line of Channing avenue. The automobile truck was practically astride of the center line Appeal from St. Louis Circuit Court; Wil- of Channing, a little further to the east than liam H. Killoren, Judge. "Not to be officially published." to the west. I brought my car to a stop. possibly 5 feet east of the center line of Channing. The truck was coming south and the Action by Nelson S. D'Wolf against the driver of the truck was not looking where he Stix-Baer & Fuller Dry Goods Company. I was going. He did not diminish his speed at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes all. He made a motion like he was going to swerve to the left, and he swerved a little to the left and then the other way. As he swerved to the right, he caught the right front spring of my car and carried me around the corner, around the light, possibly 100 feet. Before the collison, I saw the driver in the cab of the truck. There were one or two men on the front seat with him. It was a rainy day. It was after sundown and dark. My headlights were burning. Locust street is 40, and Channing avenue 35 feet wide. I greatly diminished my speed in approaching Channing avenue. I started to diminish the speed 25 feet from Channing avenue." On cross-examination, plaintiff testified: "I was possibly right abreast of the curb when I saw it. My car struck the truck near the center and scraped along until it hung on something just in front of the rear wheel. The front of my car caught. The truck was going 15 or 20 miles an hour, and the driver was talking to a man on the seat beside him, and was looking the other way. I could see very plainly that the driver was not looking toward me, but was looking west, and was not paying any attention to any traffic coming in my direction. The truck was heavily loaded. It would have taken the driver of the truck a distance of 30 or 40 feet to have stopped the truck at the rate of speed at which the truck was traveling. I was on a line running east and west, which was not more than 20 feet south of the truck when I first saw it. It was 15 or 20 feet north of me." cust street; that the driver on the truck was on the right side, and if he had been talking to a fellow passenger he would have been looking to the east. [1] I. Defendant thinks the trial court erred in refusing to direct a verdict in its behalf. This contention is based on the assumption that plaintiff's evidence shows unequivocally that he saw the whole situation, relative to the inattention of the driver of the truck, when he reached the east curb of Channing avenue, at which place he could have stopped within 2 feet. We have purposely set forth the evidence at some length. Having carefully considered it, we are unable to say that it is, without doubt, subject to the interpretation defendant gives it. It is true the evidence shows with certainty that when plaintiff first saw the truck it was astride the center of Channing avenue, with the left wheels about 15 feet from the east curb. This situation would not convict plaintiff of negligence, as a matter of law, for he was not then in a position of danger, and did not, according to his evidence, proceed to such a position, provided the truck kept to its course. We take it that plaintiff could then assume that the truck driver would use his senses, observe the street and surroundings, confine his course to the line of travel on which he was proceeding, and refrain from a negligent act. Says the defendant, however, it was dem Plaintiff's two sons were in the car with onstrated with certainty that plaintiff, at the him. One testified: "Our automobile was between 5 and 10 feet east of the center line of Channing avenue when it stopped. When I first saw the truck, it was a little bit east of the center line of Channing avenue." The other son testified: "My father's car stopped about halfway between the center line of Channing avenue." Plaintiff further testified: "The first time I saw the truck it was 15 or 20 feet north of the curb line of Locust street, and a little east of the middle of Channing avenue. I judge the left wheels of the truck were about 15 feet from the east curb line of Channing avenue. I could have stopped the car at the rate I was going almost instantly, without skidding, in possibly half the length of the car. I think I could have stopped it within 2 feet when I approached the east curb line of Channing avenue." The driver of the truck, witness for defendant, testified, in substance, that he stopped at the intersection of Channing avenue and Locust street to permit traffic to pass east and west; that after the traffic passed, he started to cross Locust street and noticed an automobile halfway between Leonard and Channing, coming west at about 30 miles an hour, which ran into and struck the truck moment of reaching the east curb, when he could have stopped his car in 2 feet, saw the truck coming 15 or 20 feet north of Locust street, at a speed in excess of 15 miles an hour; that he saw the driver did not intend to slacken speed or stop and that the truck could not have been stopped in less than 30 or 40 feet; that he also saw the driver was not looking toward him but was locking in the opposite direction, engaged in conversation with some one riding on the same seat with him. We do not think the evidence unequivocally establishes the contention. The evidence does not demonstrate with certainty whether plaintiff saw the situation presented by defendant when he reached the east curb of Channing avenue, or whether he saw the situation when he stopped his car, as he states, 5 or 10 feet west of the east curb line of Channing avenue, or, as he further stated, possibly 5 feet east of the center line of Channing avenue. Without rehearsing the evidence, which may be read as set forth, we think that, while it may be interpreted as tending to show that plaintiff, when he first saw the truck, saw the chauffeur was inattentive to his surroundings, it may also be interpreted as tending to show that plaintiff did not observe such inattention until he came to a dead stop. In view of the rule |