text:
    Tom MAY, Respondent, v. Theodore George BRADFORD, Appellant, and William W. Mann, Respondent.
    No. 49400.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Dwight Crader, Sikeston, for appellant Bradford.
    Hal E. Hunter, Jr., New Madrid, for respondent May.
    Harold D. Jones, Bock & Jones, New Madrid, for respondent (Defendant) William Mann.
   STORCKMAN, Presiding Judge.

The defendant Theodore George Bradford has appealed from a $25,000 judgment rendered against him and in favor of the plaintiff Tom May in an action for the wrongful death of plaintiff’s wife Vivian May who died as a result of injuries received when an automobile in which she was a passenger collided with a truck. At the end of the plaintiff’s case, a motion for a directed verdict was sustained as to the defendant William W. Mann. A previous judgment in favor of the plaintiff was reversed and the cause remanded for a new trial. See May v. Bradford, Mo., 348 S.W. 2d 133. On this appeal the defendant Bradford contends that the trial court erred in sustaining the defendant Mann’s motion for a directed verdict and in giving two instructions offered by the plaintiff.

On September 7, 1958, Mrs. May was a passenger in the right front seat of a Buick automobile owned and being driven by the defendant Mann north on U. S. Highway 61, Moth of a mile south of the intersection of Route AA in Jefferson County, Missouri, at which time and place the Buick and a Ford truck being driven southwardly by the defendant Bradford collided. At the time of the collision, Bradford’s Ford truck was undertaking to' pass a Studebaker automobile also being driven south. Mrs. May was thrown from the Buick automobile and was found underneath the Studebaker. She died shortly thereafter.

At the place in question the highway is of concrete construction consisting of two lanes of traffic each about 10 feet in width. While the highway runs generally north and south, it is upgrade at the place of collision and curves to the west for southbound traffic. The east shoulder of the highway was about 13 feet wide and the one on the west 11 feet. There were no yellow stripes on the highway indicating a no-passing zone in the area of the accident. The casualty occurred about 11 a. mu on a clear, dry day.

There was broken glass, grass, oil, grease and other debris on the center line of the highway and scattered in both lanes of traffic. There were no skidmarks in the southbound lane of traffic. Two skidmarks on the highway made by the rear dual wheels of the truck in the northbound lane were 2 feet 6 inches east of the center line. The bed of the truck extended about 5 feet behind the rear wheels. There were skid-marks made by the Buick which measured 178 feet in length indicating that the Buick had gone almost wholly onto the east shoulder, then came back onto the pavement, and made a short arc-like skidmark in the middle of tlie northbound lane at the point where the debris was on the pavement. The Buick came to rest on the east shoulder 47 feet north of the debris, the truck stopped partially in the southbound lane but mostly on the west shoulder 152 feet south of the debris, and the Studebaker was standing behind the truck.

The defendant Bradford makes no contention that the evidence of his negligence was insufficient for submission to the jury. In brief the defendant Mann testified in the plaintiff’s case that he was driving about 60 miles per hour when he first saw the truck 350 to 400 feet north of him undertaking to pass the Studebaker. Mr. Mann applied his brakes immediately and went partially onto the shoulder until something, apparently a lip on the edge of the pavement, caught his wheels and turned his car back onto the pavement into a sideways skid and collision with the Ford truck. The testimony of the defendant Bradford given in his own case was to the effect that he was traveling 45 to 50 miles per hour when he undertook to pass the Studebaker; that his front wheels were about even with the rear wheels of the Studebaker when he saw the Buick approaching 1800 or 2000 feet down the road at a speed of 80 or 90 miles an hour; that he slowed down to drop behind the Studebaker but the Studebaker also slowed up so he speeded up and attempted to complete the pass; and that when the collision occurred his front wheels were in the southbound lane although the rear wheels and the rear end of the truck were in the northbound lane.

A member of the State Highway Patrol arrived at the scene shortly after the accident and testified to the physical conditions as well as statements made by the parties. Another witness, John Denton Hughey, was sitting in his automobile in a churchyard near the intersection of Route A A and U. S. Highway 61. He testified that at the time of the collision the front wheels of the Bradford truck were straddling the center line and most of the rear of the truck in the northbound lane. He estimated the speed of the truck at 60 miles an hour and the Studebaker at 35 miles per hour. When he first saw the Buick it was approximately 100 feet from the point of impact and mostly on the shoulder. He could not estimate its speed.

The appellant Bradford contends that plaintiff’s evidence considered in its most favorable light made a submissible case against the defendant Mann, and that the court erred in sustaining defendant Mann’s motion for a directed verdict at the close of the plaintiff’s case. When offered, the plaintiff confessed the motion and in view of that admission the court sustained it. The court then advised the jury that defendant Mann’s motion “for a directed verdict in his favor was confessed or admitted by the plaintiff, and * * * defendant Mann is no longer in the lawsuit.” At that time the defendant Bradford had not testified. The trial court and the parties obviously treated the event as a voluntary dismissal by the plaintiff and so shall we. Since our view is that the defendant Bradford has suffered no legal prejudice in these circumstances, we need not examine the evidence to determine if a submissible case was established against the defendant Mann at the time the motion for directed verdict was offered and sustained.

As a general rule a plaintiff may dismiss as to a part of the defendants at any stage of the proceedings without discharging or lessening the liability of those remaining in the case. Civil Rule 67.01, V.A.M.R.; Section 510.130, RSMo 1959, V.A.M.S.; Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.2d 50, 61 [7] ; Kre-gain v. Blake, 292 Mo. 498, 239 S.W. 495, 500 [5] ; Hunter Land & Development Co. v. Caruthersville Stave & Heading Co., 223 Mo.App. 132, 9 S.W.2d 531, 533 [2],

One of the defendants in a tort action cannot complain of the court’s action in directing a verdict in favor of another defendant since all such defendants are jointly and severally liable. McCamley v. Union Electric Light & Power Co., Mo. App., 85 S.W.2d 200, 201 [1]; Schneider v. Campbell 66 Express, Inc., Mo.App., 324 S.W.2d 363, 366 [1].

The defendant Bradford asserts that he was prejudiced by the dismissal in that the jury under the evidence could have rendered a verdict against both defendants or could have found that the defendant Mann was solely responsible. The jury found that the defendant Bradford was liable and he makes no claim that a submissible case was not made against him. He has not demonstrated that his defense or submission was adversely affected by the dismissal. See Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171, 172[3],

Nor is it of any avail to the defendant Bradford that the jury might have rendered a verdict against both defendants. A defendant tortfeasor has no vested right in a plaintiff’s cause of action and since the statutory right of contribution between joint tortfeasors does not come into existence until a joint judgment is obtained, a plaintiff, prior to judgment, can discharge one of the joint defendants without impairing his right to prosecute his claim to judgment against the remaining defendant. Section 537.060, RSMo 1959, V.A.M.S.; State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 131 [9]; Schneider v. Campbell 66 Express, Inc., Mo.App., 324 S.W.2d 363, 367[5]; Judd v. Walker, 158 Mo.App. 156, 138 S.W. 655, 659[3]. The assignment of error is denied.

Defendant Bradford’s next contention is that the plaintiff’s verdict-directing instruction No. 1 was prejudicially erroneous in that it failed to hypothesize essential facts and circumstances concerning speed, distance, time, and the point of impact. After certain preliminary hypotheses, the instruction charged the jury that if it found that the defendant Theodore George Bradford “carelessly and negligently failed to drive his said truck in the right half of the roadway at said time and place and negligently attempted to overtake and pass the 1952 Studebaker operated by Walter Edwin Mungle when the said highway ahead at said time and place was not free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of the approaching Mann vehicle,” and if the jury found that as a direct and proximate result of such negligence the collision occurred and the plaintiff’s wife was fatally injured the verdict should be for the plaintiff. The grounds of negligence hypothesized in instruction No. 1 have a statutory basis.

Section 304.015, subd. 2, provides that “Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway" with certain exceptions, among which is when overtaking and passing another vehicle proceeding in the same direction. Section 304.016, subd. 3, provides that: “Except when a roadway has been divided into three traffic lanes, no vehicle shall be driven to the left side of the center line of a highway or public road in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken.”

In cases of statutory violation, it is generally sufficient to couch a verdict-directing instruction substantially in the language of the statute unless the statutory language requires construction. Miles v. Gaddy, Mo., 357 S.W.2d 897, 902[5]; Gaffner v. Alexander, Mo., 331 S.W.2d 622, 626 [2]. The meaning of the parts of §§ 304-015 and 304.016 here involved are quite clear and do not require construction.

The instruction follows substantially the language of the statutes and is not erroneous because it does not hypothesize matters of “speed, distance, time and the point of impact.” Byrd v. McGinnis, Mo., 299 S.W.2d 455, 460[5]; Cuddy v. Schene-wark, Mo., 231 S.W.2d 689, 691 [3],

The defendant Bradford’s final point is that plaintiff’s instruction No. 2 is prejudicially erroneous in that it permits the jury to consider exemplary and punitive damages which are improper elements of damage. Instruction 2 charges the jury that in fixing the damages “you may take into consideration the mitigating and aggravating circumstances, if any, attendant upon the fatal injuring of deceased and your verdict if for plaintiff will be in such sum as a whole stated in one lump sum as you believe from the evidence will represent fair and reasonable compensation for the afore-submitted pecuniary loss so sustained, * * *»

The defendant Bradford asserts that under Civil Rules 55.21 and 71.06 exemplary or punitive damages shall be separately pleaded and assessed. This contention is without merit since the decisions of this court hold that these Civil Rules and §§ 509.200 and 510.270 have no application to proceedings under the wrongful death statutes. Contestible v. Brookshire, Mo., 355 S.W.2d 36, 41 [11]; Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 521 [4],

If justified by the proof, “mitigating or aggravating circumstances attending the wrongful act, neglect or default” may be submitted and considered by the jury in assessing the amount of damages. Section 537.090, RSMo 1959, V.A.M.S.; Contestible v. Brookshire, Mo., 355 S.W.2d 36, 42 [13]; Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 521 [5]; Hertz v. McDowell, 358 Mo. 383, 214 S.W.2d 546, 551 [11]; Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123, 127[8],

The jury could reasonably have found from the evidence that the conduct and acts of the defendant Bradford were reckless and wanton and in gross disregard of the rights and safety of the occupants of the Buick automobile and others on the highway. Mr. Bradford testified that he saw the top of the Mann automobile over an embankment inside the curve when it was 1800 to 2000 feet away before the occupants of the car could see him; he did not disclose at what point the driver of the northbound automobile could see the approaching truck. Despite this and the further fact that he was operating a 9000-pound truck with a load of water weighing 24,000 pounds, the defendant Bradford persisted in his attempt to pass the Studebaker on the upgrade curve, and when the collision occurred he had the northbound lane substantially blocked. This and other evidence tended to show aggravating circumstances within the meaning of the statute and the court did not err in giving instruction No. 2

We have considered all of appellant Bradford’s claims and find them to be without merit. Accordingly the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Lawrence REIFSTECK, by and through his next friend, Marie Reifsteck, Appellant, v. Guy MILLER, Kenneth Earl and Vivian Gregory (Limbach), Respondents.
    No. 49612.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Gregg Wm. Keegan, St. Louis, John E. Bardgett, Clayton, for appellant.
    Morris Chapman, Granite City, Ill., Fred J. L. Schuler, Clayton, Herbert E. Barnard,' James E. McDaniel, McDonald, Barnard, Wright & Timm, St. Louis, for respondent Guy Miller.
    Murphy & Kortenhof, Joseph M. Korten-hof, St. Louis, for respondent Vivian Gregory (Limbach).
   STOCKARD, Commissioner.

Lawrence Reifsteck, plaintiff in the trial court and appellant here, brought this suit in two counts for damages for personal injuries sustained in an automobile collision occurring in Illinois on December 3, ‘ 1960. By Count I he sought $75,000 damages for the alleged negligence of three persons, Kenneth Earl, in whose automo-ble he was a passenger, and Guy Miller and Mrs. Vivian Gregory, the operators of two ■ other automobiles. By Count II he sought an additional sum of $30,000 from Miller and Mrs. Gregory as punitive damages on the theory that their conduct was willful and wanton. The trial court directed a verdict at the close of plaintiff’s evidence in favor of Earl and Mrs. Gregory on Count I, and in favor of Miller and Mrs. Gregory on Count II. After trial, and pursuant to ’ jury verdict, judgment was entered in favor of Miller on Count I. Plaintiff has appealed. As to that part of the judgment in favor of Miller on Count I he assigns error in the giving of instructions and in the admission of evidence. He assigns no error as to that part of the judgment whereby a verdict was directed in favor of Earl and Mrs. Gregory on Count I. As to Count II he assigns error in directing a verdict in favor of Miller and Mrs. Gregory.

Respondent Miller has filed a motion to dismiss the appeal pursuant to Civil Rule 83.09, V.A.M.R., because of the failure of appellant’s brief to comply with Civil Rule 83.05, V.A.M.R., in that the brief does not contain a fair and concise statement of the facts. We have decided to rule those mat- , ters which have been properly presented for appellate review on the merits, and so the motion to dismiss is overruled without further comment.

The collision occurred a few miles south of East St. Louis on Highway 3, a four-lane highway. The Earl automobile was traveling north. According to witness Gaynor it was in the inside or passing lane, but witness Stillman said it was in the outside or curb lane. Behind it about three car lengths, but in the outside or curb lane, was the Gaynor automobile. Both were traveling about 40 miles an hour. The Gregory and the Miller automobiles were traveling south on the highway between 40 and 45 miles an hour in the inside or passing lane with the Gregory automobile in front. The Johnson automobile was traveling south ahead of the Gregory and Miller automobiles. According to Mrs. Gregory, the Johnson automobile was in the passing or inside lane, but Michael Stuart, age eleven at the time of trial and who was a passenger in the back seat of the Johnson automobile, testified that it was preparing to turn right into a gasoline service station on the west side of the highway. Witness Stillman said it was in the outside or curb lane. According to Mrs. Gregory, when the Johnson automobile was 60 or 70 feet ahead of her it started to swerve to the left without a signal. After glancing in her rear view mirror she swerved to the right around the Johnson automobile. After she had passed she looked in her rear view mirror to see what it was going to do, and she saw the Miller automobile strike it. According to Miller, as he was traveling south in the passing lane, the automobile in front of him (Gregory automobile) made a swerve to the right, he then removed his foot from the accelerator preparatory to putting on his brakes, and a black “object” suddenly appeared before him. He could not then tell if it was an automobile. He tried to apply his brakes and swing to the right at the same time, but he collided with the object. The hood of his automobile flew up and after careening to the right and then left he stopped on the east side of the northbound lane after colliding with an automobile which was being operated by Golda Moran who had stopped because of the collision ahead of her. Either immediately before or after the Miller and Johnson automobiles collided, and this is the principal factual dispute in the case, the Johnson automobile crossed into the northbound lane of the highway and collided, as one witness said, left headlight to left headlight, with the Earl automobile in which appellant was riding. It was from this collision that appellant sustained his injuries upon which this suit is based. After that collision the Earl automobile spun around and it and the Gaynor automobile collided. The essential factual question as to which appellant and respondent Miller differ is what caused the Johnson automobile to cross over into the northbound lane and into collision with the Earl automobile. This becomes important on this appeal because of the instructions, and we shall now review the provisions of those which are pertinent to the issue.

By Instruction No. 4, appellant’s verdict directing instruction, the jury was told that if it found that Miller was operating his automobile southwardly on Highway 3 behind and to the rear of the Johnson automobile in the southbound portion of the highway; that plaintiff was a passenger in an automobile being operated northwardly in the northbound lane of the highway; that a collision occurred between the front of Miller’s automobile and the rear of the Johnson automobile; that “as a direct result of such collision, if you find that same took place, that the Johnson car was caused to cross into the northbound portion of Highway 3 and into the automobile in which plaintiff was riding as a passenger and if you further find that as a direct result thereof plaintiff was caused to be injured” while exercising ordinary care for his own safety ; and that Miller by the exercise of ordinary care in keeping a lookout ahead for vehicles could have discovered the automobile of Johnson in time to have avoided the collision but failed to do so and thereby was negligent and that such negligence directly caused or directly contributed to cause plaintiff to be injured, then the verdict should be in favor of plaintiff. It is thus evident that appellant’s theory was that Miller negligently struck the Johnson automobile while it was in the southbound lane of Highway 3 and caused it to cross into the northbound lane and into a subsequent collision with the Earl automobile.

Miller’s Instruction No. 5 was as follows: “The court instructs the jury that if you find from the credible evidence that on the occasion in question the Johnson automobile referred to in evidence was being operated southwardly on Highway 3 in the State of Illinois at or near the Phillips 66 Service Station mentioned in evidence, and if you further find that the Defendant Miller was operating his automobile southwardly on Highway 3 and in a direction toward the Johnson car and if you further find that plaintiff was a passenger in an automobile being operated northwardly in a northbound lane of said Highway 3 at or near the Phillips 66 Service Station mentioned in evidence, and if you further find that at said time and place mentioned in evidence the Johnson automobile collided with the automobile in which plaintiff was a passenger and that thereafter a collision occurred between the said Johnson automobile and defendant Miller’s automobile, then you can not find for the plaintiff and your verdict must be for the defendant.”

Appellant assigns error in giving Instruction No. 5 for the following reasons: (a) there was a total absence of evidence “that Johnson had ever collided with Earl before such, was caused by Miller admittedly striking him;” (b) the instruction did not seek to controvert the failure on the part of Miller to keep a lookout as submitted in plaintiff’s verdict-directing instruction, but sought to exonerate Miller on the ground that Johnson’s negligence was the sole and proximate cause of plaintiff’s injuries, and the instruction does not sufficiently hypothesize facts which would absolve Miller from fault; and (c) the instruction “did not set any standard for the jury but left the entire matter for the jury to speculate about under most confusing instructions.”

Appellant asserts that Instruction No. 5 purports to be a sole cause instruction. Without going into detail it may be said that it does not meet the requirements of such an instruction. See Happy v. Blanton, Mo., 303 S.W.2d 633; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Ketcham v. Thomas, Mo., 283 S.W.Zd 642. Therefore, the contentions of appellant in (b) above are meritorious if, but only if, the instruction purports to submit the defense of sole cause. However, Miller contends that Instruction No. 5 is a converse instruction, and that it is sufficient as such.

In Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, it was said: “The defendant can submit either the exact converse of plaintiff’s verdict-directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the exact converse of any essential element of such instruction. Reger v. Nowotny, Mo.Sup., 226 S.W.2d 596; McCarty v. Milgram Food Stores, Inc., Mo.Sup., 252 S.W.2d 343; Oshins v. St. Louis Public Service Co., Mo.Sup., 254 S.W.2d 630. When either is done the result is what is referred to as a ‘true converse instruction,’ and such an instruction does not require affirmative testimony in support of it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464. However, the defendant may also submit facts in an instruction, the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff’s case. See Rose v. St. Louis Public Service Co., Mo. Sup., 205 S.W.2d 559. This form of an instruction also is sometimes referred to as a converse instruction. But when the defendant submits this form, whether or not it is referred to as a converse instruction, it must have factual support in the testimony.” A “true converse” instruction in this case, for example, would have been the submission that Miller did not hit the Johnson automobile, or if he did that the collision did not cause the Johnson automobile to cross into the northbound lane and into collision with the Earl automobile. Instruction No. 5 did not do this. Therefore, it is not what is referred to as a “true converse” instruction. See Schaefer v. Accardi, Mo., 315 S.W.2d 230; McCarty v. Milgram Food Stores, Inc., Mo., 252 S.W.2d 343; and Dell’aria v. Bonfa, Mo., 307 S.W.2d 479. Instead, it submitted a set of facts, which if found to be true, disproved or controverted appellant’s theory of recovery. It is obvious that when it is appellant’s theory that he was injured as the result of the Miller automobile striking and propelling the Johnson automobile into collision with the Earl automobile, his theory of recovery is destroyed if the Johnson and Earl automobiles collided before the collision between the Johnson and Miller automobiles. The Miller automobile, by colliding with the Johnson automobile, could not have propelled it into another collision which had previously occurred. Therefore, if Instruction No. 5 has support in the testimony it meets the requirements of that form of instruction which is sometimes referred to as a converse instruction but which is not a “true converse.”

No one witness saw all of the occurrences, and the events to which every witness testified b> could not have occurred because of the conflicts and inconsistencies contained therein. However, this was a matter to be resolved by the jury. No witness testified that he saw the Johnson and Earl automobiles collide in the northbound lane and that thereafter the Miller and Johnson automobiles collided, which is Miller’s theory. But, we note that no witness testified that he saw the collision of the Johnson and Earl automobiles occur after the collision between the Johnson and Miller automobiles, which is plaintiff’s theory. Circumstantial evidence is necessary to establish either sequence of events. We are only concerned in this discussion with whether the evidence authorizes a finding of the occurrence according to Miller’s theory and as submitted in Instruction No. 5. In making that determination we must keep in mind that all testimony as to distance, speed or time is based on estimates, and in an automobile collision case, especially one of this complexity, parties should not be too strictly bound by such estimates. Fisher v. Gunn, Mo., 270 S.W.2d 869, Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 357.

Richard K. Odem, a witness called by plaintiff and who at time of trial was a police officer, was driving north near the scene at the time of the collision. He testified that his attention was directed to the collision when he heard a “crunch like metal to metal and like cars hitting together.” He looked up and saw an automobile spinning around in the middle of the road. It had collided on the east side of the highway center line with a southbound automobile. These two automobiles were identified as being the Johnson and Earl automobiles. To him, contrary to another witness, it appeared that the left front of the Johnson automobile had hit the side and rear of the Earl automobile. When Odem stopped a Ford stopped nearby, which apparently was the automobile of Golda Moran. According to Mr. Odem, “We stopped there a few minutes [at another time he used the term ‘a minute or two’] and this blue Chevrolet station wagon [the Miller automobile] came out around this and came across the highway, veered across the highway and headed in a southerly direction and was rolling slow with the hood up and [there] was a minor collision into this car [Golda Moran] next to me.” Miller testified that he was about three car lengths behind the Gregory automobile, and Mrs. Gregory testified that she did not see the Johnson and Earl automobiles collide, but that she did see, in her rear view mirror the Miller automobile collide with the Johnson automobile. It is evident that to be consistent with Mrs. Gregory’s testimony and with Miller’s estimate of distance, Odem’s use of the term “minute” had to refer to a small period of time and not necessarily to a period of time composed of sixty seconds. We know that the term is frequently so used, and that is one of its accepted meanings. Webster’s Third International Dictionary, Unabridged.

Golda Moran was traveling north on Highway No. 3 and saw the rotating light on a police car ahead of her. She slowed down and then stopped, and it was at that time that the Miller automobile, with its hood up, came down and across the highway and collided with the front of her automobile. She saw no collision, other than the one with her automobile, and the inference is that some collision had previously occurred a sufficient period of time for the police to arrive (the officer estimated that he was there in “two minutes”) before the Miller automobile collided with hers.

Elmer Stillman was driving north on Highway 3. He saw a blue flame or flash come from beneath an automobile in the outside lane traveling south and he heard a muffled explosion. Seconds later he drove through a shower of glass which came from that automobile. At the time of the explosion, this automobile, otherwise identified as the Johnson automobile, swerved across the highway in a southeasterly direction. He speeded up to run out of its path. The Johnson automobile proceeded across the highway, and in his rear view mirror Still-man saw it collide with the automobile behind him which was the Earl automobile. He did not see the Miller automobile strike the Johnson automobile, but he testified that if it had hit the Johnson automobile at the time of the flash and explosion he would have seen it. Mrs. Stillman, who was a passenger in her husband’s automobile, testified that she saw the Johnson automobile in the outer southbound lane, that she saw a flash and the Johnson automobile went diagonally across the highway into collision with the Earl automobile, and that at the time of the flash there was no other automobile within fifty feet of the Johnson automobile. She did not see a collision between the Johnson and Miller automobiles. Mrs. Odem, a passenger in the automobile driven by her husband, also testified that she heard a noise and then saw “this flash of light.” It was, she said, “a white light, sort of blue tinged like a flash bulb going off.” Mrs. Odem further testified that it was after her husband had stopped his automobile that the Miller automobile came across the highway and collided with the Moran automobile.

While it is true that there is no direct testimony that the collision of the Johnson and Earl automobiles occurred before the collision of the Miller and Johnson automobiles, the above testimony authorizes such a finding. We therefore conclude that Instruction No. S was supported by the evidence. We do not agree with appellant’s conclusion that Instruction No. 5 provided no “standard for the jury” and that it left the determination of the issue to speculation. The instruction is not erroneous for any of the reasons assigned.

Plaintiff’s remaining points, in their entirety, are as follows: “II. The court greatly overemphasized the burden of proof as to plaintiff to where such was prejudicial error;” “III. The admission of FeuchtePs ‘Expert Opinion’ that there was an internal explosion was gross error and “IV. To strike out the punitive count and to exclude the testimony of Johnson that Miller was going 75 miles per hour was error.” Civil Rule 83.05(e), V.A.M.R., requires that a point relied on “shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely why it is contended the Court was wrong in any action or ruling sought to be reviewed.” As pointed out in Domijan v. Harp, Mo., 340 S.W.2d 728, 731, this rule is printed in the front of every docket for the convenience of the Bar. The rule has a twofold purpose. It gives the appellate court a short concise summary of what appellant claims the trial court did that was wrong and why he claims it was wrong, Conser v. Atchison, T. & S. F. Ry. Co., Mo., 266 S.W.2d 587, 589, certiorari denied 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653, and equally important, it informs respondent’s counsel just what appellant’s contentions really are and what he is required to answer. Domijan v. Harp, supra, 340 S.W.2d at p. 732. The three points quoted above contain no explanation whatever to show why appellant contends the trial court was wrong-, and in fact the statements are so general that it can hardly be said that they concisely inform either the court or respondent what is contended to be wrong. In Schlanger v. Simon, Mo., 339 S.W.2d 825, 829, it was stated that sometimes an appellate court in its discretion will look to the argument in the appellant’s brief for aid in determining the precise contentions of error. We have done that in this case, and in addition we have read the transcript carefully, with the twofold purpose of determining the precise contentions if possible and to see if there occurred plain error affecting substantial rights within the meaning of Civil Rule 79.04, V.A.M. R. We shall comment briefly on what we have found.

As to the contention concerning the burden of proof. Plaintiff first asserts that Miller’s short and concise burden of proof instruction, which was in the form approved in Gildehaus v. Jones, 356 Mo. 8, 200 S.W.2d 523, wrongfully required plaintiff to prove “by a preponderance or greater weight of the credible evidence” the fact, as expressly submitted in plaintiff’s verdict directing instruction, that plaintiff “was at all times shown in evidence exercising ordinary care for his own safety.” Plaintiff has failed to recognize that the rights of the parties in this action were governed by the substantive law of the State of Illinois, and that “under the law of Illinois it was incumbent upon plaintiff to allege and prove that he was in the exercise of ordinary care for his own safety at the time of the accident.” Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 273 S.W.2d 228, 233; Gerhard v. Terminal Railroad Association of St. Louis, Mo., 299 S.W.2d 866. Plaintiff cites and relies on Thompson v. Byers Transportation Company, Mo., 362 Mo. 42, 239 S.W.2d 498, but it has no application whatever. It pertained to a case governed by the substantive law of Missouri, and it was held to be error for a burden of proof instruction to impose on the plaintiff the duty to prove he was not con-tributorily negligent contrary to the substantive law of Missouri. Plaintiff also asserts that the court gave six other burden of proof instructions, but in this he is in error. We have examined each instruction referred to in the argument. They are all cautionary instructions, and plaintiff does not assert that any are erroneous as such.

As to the contention concerning the expert opinion. A little over two months after the collision Miller arranged for Joseph Feuchter to make an examination of the Johnson automobile which was then at what plaintiff calls a junk yard, but which Mr. Feuchter said was Fahey’s Auto Parts in East St. Louis. Following that examination the deposition of Mr. Feuchter was taken at which he qualified as an expert in “traffic and transportation” and in “traffic accident investigation.” At the time of trial Mr. Feuchter was in a hospital, and over the objection of plaintiff portions of the deposition of Mr. Feuchter were read to the jury. The substance of his testimony was that because of the nature of the damage to the rear of the Johnson automobile, which he described in detail, it was his opinion that “a severe blow was struck on the left rear corner of the vehicle,” that “a closed object [the trunk of the automobile], such as indicated * * * which is fully enclosed, can normally only be forced outward from practically all directions from an internal explosive type of force,” and that there had been an internal explosion within the trunk which was not from gasoline but he could not determine the source. Plaintiff asserts that Mr. Feuchter was not qualified, but he does not elaborate. The trial court found that he was and we think the evidence supports that finding. Next, plaintiff mentions several times that the witness was a “paid performer,” or words to that effect. Mr. Feuchter admitted that he was being paid to make the examination, and compensation to expert witnesses is a common and acceptable practice. Next, it is asserted that Mr. Feuchter “did not even go to the scene, nor did he seek to learn how the car got on the junk yard,” he “never saw the collision,” and he “testified about lack of debris.” As to this latter statement the comment is added, “great day, he never even had the decency to go to the scene of the accident.” The reference by the witness to the lack of debris did not pertain to the place where the collision occurred, but to the “fact that there was a lack of debris” in the trunk of the Johnson automobile “from the results of combustion.” These contentions all are totally without merit. Lastly, plaintiff says the opinion was based on hearsay. When Mr. Feuchter was asked to express an opinion he did so upon the basis of his examination of the Johnson automobile. On cross-examination he was asked if he had been “more or less informed of how the accident happened,” and he replied as follows: “To the best of my recollection,, I was permitted to see a report of the police who investigated the accident, and it may be quite possible, I am not sure, that statements of certain witnesses or others were read to me or told to me.” He was not asked if the opinions he expressed were in any way based on this information, and there is nothing in the record to indicate that they were. We find no merit to any of these contentions.

As to the contention concerning the punitive count. Plaintiff offered the testimony of Robert Lee Jackson that about one and one-half miles from the scene of the accident a Chevrolet station wagon with one man in it passed him going 70 to 75 miles an hour, and that he later saw this same automobile at the scene of the collision. The inference is that this was the Miller automobile. Upon objection this offered testimony was ordered stricken by the trial court, and properly so. See Sisk v. Industrial Track Construction Company, 316 Mo. 1143, 295 S.W. 751; Wood v. Claussen, Mo.App., 207 S.W.2d 802. Both Miller and Mrs. Gregory were named as defendants in Count II in which plaintiff sought punitive damages. No evidence whatever justified any action of any nature against Mrs. Gregory. Plaintiff says that there was evidence that Miller had an odor of alcohol on his breath and that this and the rejected evidence of speed authorized an action for punitive damages. He cites no authority whatever for such right of action, under the facts he has outlined, pursuant to either the statutory or common law of Illinois. The burden was on him to establish that the trial court erred in directing a verdict as to- Count II, and he has not done so.

In our review of this case we have gone further than the applicable rules provide or authorize; a procedure not to be taken as a precedent. We find no prejudicial error, and for that reason the judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Eugene Edward DAVIS, Appellant.
    No. 49567.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Martin M. Lipsitz, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   DALTON, Presiding Judge.

Defendant was charged and convicted of robbery in the first degree under the Habitual Criminal Act. See Secs. 560.120 and 556.280 RSMo 1959, V.A.M.S. Three prior felony convictions were alleged and shown to the court. The jury found defendant guilty of the offense charged and the court, finding that defendant had previously been convicted of a felony, assessed his punishment at ten years’ imprisonment in the state penitentiary. Sec. 560.135 RSMo 1959, V.A.M.S. He was permitted to appeal as an indigent person. Sec. 485.100 RSMo 1959, V.A.M.S.

On arraignment in the trial court, defendant entered a plea of not guilty. The court found defendant to be indigent and unable to employ counsel and appointed counsel to serve without compensation as the attorney for defendant in this case. Counsel appeared and represented defendant in the trial of the cause, filed the motion for a new trial and took the appeal to this court, but he has not favored us with an appellant’s brief. We shall first examine the assignments set out in his motion for a new trial. Supreme Court Rule 28.02, V.A.M.R. These assignments are directed to the exclusion of testimony offered by defendant and to the trial court’s alleged release of a certain witness before the trial was concluded.

The State’s evidence tended to show that on February 16, 1962, one Paul Grunmann was the owner of a building located at 4361 Washington Avenue in the City of St. Louis; that it had four floors and a basement and was divided into six units or apartments; that, on the date in question, Grunmann went to his property around 5 p. m. to collect some rents; and that at that time it was getting dark. When he arrived there he found King Edward Adams standing in the hallway. Grunmann was discussing with Adams the making of some repairs to the building when a colored man arrived, and Adams advised Grunmann that the man was looking for some rooms and he wanted to see them. Grunmann then went up to the third floor with this man to show the rooms and, when they had gotten into the back apartment, the man pulled out a gun and asked Grunmann for his money. The man took Grunmann’s wallet but, upon request, returned it together with the driver’s license and other identification papers, after removing approximately seventy-five dollars. The man also took Grunmann’s initial ring, his wrist-watch and a small box of silver rings. He then tied Grunmann’s legs to a chair, tied his hands together, threatened him with the gun and told him not to move. A piece of rope six or eight feet long, which the colored man pulled out of his pocket, was used in tying Grunmann to the chair. After the man left, Grunmann freed himself from the chair and reported the matter to the police. Police officers arrived within five to ten minutes and discussed the matter with Grunmann and other parties at the location, and obtained a description of the robber.

A month or so after the robbery, Grun-mann examined various pictures presented to him by the police department and he also viewed the defendant after his arrest. Although Grunmann noted quite a similarity between the defendant and the robber he refused to positively identify defendant as the robber. He was able, however, to say that the man who went up the steps with him was the man he had met on the first floor of the building and was the man that took his money and other property from him. On the trip to inspect the rooms they were not joined by any other persons from the time they left the first floor until after the robbery was completed on the third floor.

Isom McGee, a tenant on the first floor of the building, had visited with and talked to the man who said he wanted to rent rooms in the building. The man had been in McGee’s room and had visited there for some time, but went out to get some cigarettes and returned just before Grunmann arrived. The man asked Grunmann what the rooms rented for and wanted to see them. Only Grunmann and the stranger went upstairs together. McGee had observed the stranger talking to Grunmann on the steps outside the building and had heard some of the conversation between them. About twenty minutes later Grun-mann came downstairs and said that he had been robbed by the stranger. McGee subsequently saw defendant at the police station and identified him as the man previously seen at the building and as the man who had asked Grunmann about renting rooms. McGee also testified that, although he didn’t know the name of the man that came into his apartment and waited for Mr. Grunmann, he knew of him. “I know of him, * * * I don’t know his name.” He had also heard Grunmann say to the stranger, “I will show you the room,” and they then went upstairs. McGee had seen this man about three or four weeks before that. “I never knowed his name. He had named himself to me, but I could not remember the name.” He so advised the police and told the police where the stranger’s mother lived, or was supposed to live. McGee testified that defendant was the man who came to his apartment and then went upstairs with Grunmann.

King Edward Adams, who at one time had been the caretaker of the building for eight years and who had done some repair work and painting for the owner, testified that he was at the building to meet Grun-mann and collect for some work. Adams was standing in the front door waiting for Grunmann, when McGee called to him and asked him when Grunmann would arrive. Adams said Grunmann would he there about 4:30 p. m. to collect the rents. When Grunmann arrived Adams asked him for his money, but Grunmann said wait until he had collected the rents. Adams saw the colored man who was waiting there and heard the man ask Grun-mann about a room or an apartment for rent and ask about the “price.” Grunmann said that he would go up and show the apartment. About fifteen or twenty minutes later Grunmann returned with a rope tied around his arm and said he had been “held up.” Adams identified the defendant as the man who was asking Grunmann about renting the apartment. He had seen the man in McGee’s room, but didn’t know his name. The man he saw in Isom McGee’s room was the defendant in the courtroom. “I say it is him.” Adams said he could not be mistaken. He had also seen the man coming downstairs from the second floor before Grunmann arrived and he had seen this same man going up the steps with Grunmann to look at the apartment.

Two police officers testified that they received a report of the robbery about 6:20 p. m. on February 16, 1962, and that they had talked to the victim (Grunmann) and made up a report of the robbery. Police Officer Dolan testified at the trial, as follows : “We learned that the man wanted for the holdup was the son of a woman by the name of Inez, who lived over on Delmar, a block away. We went over and investigated that area, and talked with several people * * * and we learned, by talking to them, that the man wanted for the holdup was the defendant here.” Do-lan then got a picture of the defendant and showed it to McGee and Adams and they positively identified the exhibit as a photograph of the person who went up the stairs with Grunmann, but Grunmann was unable to positively identify the photograph as that of the person who committed the robbery.

The defendant was arrested on March 8, 1962, and, when arrested, the defendant stated to Officer Dolan that he was the man that “spoke” with Mr. Grunmann at 4361 Washington on February 16th; however, he said that he had used a toy pistol instead of a real one; that he went there to rent a room and when he got Mrs Grunmann to the third floor he put the pistol on him, tied him to a chair, took his money (approximately $40) and rings and ran out the front door. He said that he had been drinking heavily that day; and that he threw the pistol in the sewer, but he didn’t remember the exact location. He also said he had disposed of the rings at various taverns in St. Louis and East St. Louis. Another officer (McDermott), who was present at the time of defendant’s arrest, also testified that defendant told him substantially the same story.

Defendant testified in his own behalf and his testimony tended to show that he was 25 years of age; that he spent a part of Friday afternoon, February 16, 1962, with Isom McGee in McGee’s apartment; that he stayed approximately two hours and they drank a bottle of wine together; that he left McGee’s apartment during the rush hour in the evening, which would have been between 4:30 and 5 o’clock; that he did not see King Edward Adams; that he came to the apartment looking for Friedman Lee Shelby, who owed him some money for some shoes; that he was not able to find Shelby and that he went over to his stepfather’s house at 4300 on Delmar, arriving there about 5:30 p. m. He sat around there and listened to the radio and waited for his mother; that she came home close to 8 p. m.; that he saw police officers there that evening and talked to them; that they asked him about the time he was at McGee’s apartment and if he had seen a man loitering in the halls; that they gave him a description of the man they wanted; that he told them he hadn’t seen such a man; that Isom McGee was downstairs and they took him (defendant) downstairs and asked McGee whether he (defendant) had been around his house; that McGee told them he had been, but had left early that day; that no arrest was made at that time; that the first time he ever saw Grun-mann was when he saw him on March 9, 1962, at the Ninth-District Police Station; and that the first time he had seen King Edward Adams was when he saw him at the preliminary hearing sometime in March. Defendant testified that he did not take any money from Mr. Grunmann on. February 16, 1962, or at any other time. He denied that the officers had questioned him about the alleged offense and he denied that he had told them he had taken any money or anything else from Mr. Grunmann or had tied him up. Defendant admitted that he had pleaded guilty to a charge of robbery in 1958 in St. Louis; that he had also entered pleas of guilty to charges of carrying a concealed weapon and of having Cannabis Sativa (Marijuana) in his possession; that he had been sentenced to four years on his plea of guilty to robbery with a dangerous and deadly weapon; and that he received two years each on the other two charges.

Defendant testified that perhaps he had been in the building at 4361 Washington Avenue, St. Louis, ten to twelve times; that he did not go upstairs with Mr. Grun-mann ; that he was in McGee’s apartment the whole time, until he left the building; that he did not go after any cigarettes and come back to the apartment; and that on the 16th he didn’t go up to the second floor of the building and no one could have seen him coming down from the second floor.

Roy Davis, Sr., defendant’s father, testified that he was familiar with the charge against his son and had talked to King Edward Adams subsequent to the date of the alleged offense and had first met Adams at defendant’s preliminary hearing. He also testified that he had seen the officers at his apartment on February 16, 1962, and that he and his wife were there at that time; that the officers inquired for Eugene and he told them he lived there but wasn’t at home; that he let the officers go through the house; that he was told by the officers why they were looking for his son; and that he showed the officers the room in which his son lived, but the officers did not return to his house. He said that Officer Dolan gave him a business card and his name and told him when his son came home to call or to notify the police station as they wanted to see him; that his son did come home that night and was advised of the police officers’ visit but he did not call the officer after his son reached home.

Considered favorably to the State the evidence was entirely sufficient to sustain the conviction for robbery in the first degree. Sec. 560.120 RSMo 1959, V.A. M.S.

The first assignment in defendant’s motion for a new trial is, as follows:

“1. That the Court erred in refusing to allow Roy Davis, a witness for the Defendant, to testify as to certain prior conversations he had with King Edward Adams, a witness for the State, when such testimony, if admitted, would have served to impeach the said King Edward Adams, when such testimony was admissible under the following:
“a. The said King Edward Adams testified on cross-examination that he had always identified the Defendant as the man that had gone upstairs with Paul Grun-mann (the victim of the alleged robbery) when the testimony of Roy Davis, if admitted into evidence, would have shown that the witness King Edward Adams had not always identified the Defendant as he testified.
“b. The defense should have been allowed to impeach the witness King Edward Adams without the laying of a foundation for the impeachment because King Edward Adams was the principal witness for the State who identified the Defendant as the person who went upstairs with Paul Grunmann and as such was a party to this action.”

The record presented here fails to show what “certain prior conversations he had with King Edward Adams * * * would have served to impeach the said King Edward Adams.” No offer of proof was made and no evidence stated which, if admitted, “would have shown that the witness King Edward Adams had not always testified * * * as he testified” at the trial and at the preliminary hearing. Clearly the record does not show what the proposed impeaching evidence consisted of, and it is impossible for us to determine from the record what the facts were or what evidence the defendant claims he should have been allowed to show without laying a foundation for the alleged impeachment of Adams. As stated, Adams had identified the defendant and testified that defendant was the person who went upstairs with Mr. Grunmann, but Adams was not a party to this action and the rule stated in Stratton v. City of Kansas City, Mo.Sup., 337 S.W.2d 927, 931, with reference to a party to the action does not apply here.

If we assume that some evidence was available which defendant’s counsel intended to offer and that such evidence, if admitted, would have, in fact, been contradictory of and would have tended to impeach witness Adams, still there would have been no reversible error in the action of the court in excluding such evidence for the reason that it is well established that a foundation must first be laid for the alleged impeachment by interrogating the witness, sought to be impeached, concerning the alleged inconsistent statements and permitting the witness to admit, to deny or to explain the alleged inconsistent statements. State v. Thompson, Mo.Sup., 280 S.W.2d 838, 840 [2-5]; State v. Clough, 327 Mo. 700, 38 S.W.2d 36, 39 [7]; State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914, 917 [10, 11, 12].

The only other assignment of error in defendant’s motion for a new trial is, as follows:

“The Court erred in allowing the witness King Edward Adams to leave the area of the trial of this cause without the knowledge and/or consent of the Defendant and/or his attorney when, in order for Defendant to have a fair trial on the issue of the identity of the perpetrator of the alleged holdup, it was necessary for the jury to receive additional testimony from the witness King Edward Adams as to prior inconsistent statements which alleged statements only came to the knowledge of the attorney for the Defendant on the morning of the third day of trial.”

We find nothing in the transcript of the record tending to show that the court did allow witness King Edward Adams to leave the area of the trial of this cause. Nothing in the record tends to show that the court was consulted about the matter in any manner, even if the witness did, in fact, leave the area of the trial, “or did leave without the knowledge and/or consent of the defendant and/or his attorney.” We find nothing in the transcript to sustain this assignment, or any part of it. It is well settled that unverified allegations in a motion for a new trial in a criminal case do not prove themselves and cannot be considered, unless substantiated by the record or shown by proper affidavit. State v. Gray, Mo.Sup., 360 S.W.2d 642, 646 [10, 11]; State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 780 [12-14]; State v. Smart, Mo.Sup., 328 S.W.2d 569, 576 [12, 13]; State v. Westmoreland, Mo.Sup., 126 S.W.2d 202, 203 [6, 7].

The record fails to show that witness King Edward Adams had made any prior inconsistent statement or what the alleged inconsistent statements consisted of. Nor does it appear from the record that any such alleged inconsistent statements had, in fact, come to the knowledge of the attorney for the defendant on the morning of the third day of trial. The motion for a new trial was not verified and no offer of proof was made. The allegations, unsupported by the record, do not prove themselves.

On the issues sought to be presented, the record shows that defendant’s father, Roy Davis, Sr., testified that he had talked to King Edward Adams subsequent to the date on which the alleged offense charged against his son was committed. He stated that he had met and had conferences with Adams at the time of the preliminary hearing. Davis was then asked did he (Adams) say anything about the identity of the man who went upstairs with Mr. Grunmann. Objection was made and, out of the hearing of the jury, counsel for the defendant stated that he was trying to impeach the State’s witness by showing that different statements were made by Adams to the witness Davis. The State objected on the ground that no foundation had been laid for impeachment while Adams was on the stand, since Adams had not been asked whether he had made any particular statements inconsistent with the testimony he had given. The objection was sustained. The record shows the following:

“MR. WATSON: [defendant’s counsel] I would like to recall Adams to put him on the stand. Is he here today?
“MR. CRAWFORD: [representing the State] No, sir.
“MR. WATSON: I thought he would be available today.”
* ⅜ * ⅜ * ⅜

(The hearing was then resumed before the jury.)

⅜ ⅜ ⅜ ⅜
“Q (By Mr. Watson) Did he [Adams] make any statement as to whether or not he recognized the man who went upstairs with Mr. Grunmann?”

Objection was again made that no foundation had been laid for this question when Adams was on the stand. The objection was sustained.

The record does not show how or why the witness Adams had left “the area of the trial,” or that Adams had made any prior inconsistent statements in conflict with his testimony at the trial. Defendant’s counsel did not file an affidavit of surprise, or claim oversight or surprise, nor did counsel state the evidence that he proposed to offer. The motion for a new trial is equally defective. Defendant’s counsel did not request a continuance or recess until Adams was available, nor did he ask the court to issue a subpoena for Adams and have the sheriff produce him. State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 697 [17]. Defendant’s counsel did subsequently offer into evidence the transcript of Adams’ testimony at the preliminary hearing. We find no material variance between Adams’ testimony at the trial and that given at the preliminary hearing.

At defendant’s preliminary hearing Adams testified, in part, as follows:

“Q Directing your attention to February 16th this year at approximately — . well, in the afternoon, were you at 4361 Washington ?
“A I was.
“Q What were you doing there, sir?
“A Waiting for Mr. Grunmann, to get my pay. I work for him.
“Q Was anybody else there with you, at that time ?
“A Yes, lots of children out there in the hallway and Mr. Isom was out there.
“Q Did you see Eugene Davis?
“A I don’t know him by name, I don’t; I saw the fellow.
“Q Did you see the fellow in custody of the police?
“A Yes, sir, at the showup.
“Q Do you see him? Do you see him in the courtroom?
“A Yes, sir, it’s the same fellow.
“Q Did you see him at that apartment on that evening?
“A That’s the same fellow; yes, sir.
“Q Where is he now in the courtroom ?•
“A I don’t know him. That’s him.”

On the record presented both assignments of error in the motion for a new trial must be denied. It is so ordered.

We have further reviewed those record matters not required to be preserved in the motion for a new trial, which matters we examine irrespective of whether they a.re questioned on the appeal (Supreme Court Rule 28.02), and we find no error therein prejudicial to defendant.

The judgment is affirmed.

All concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri ex rel. Forrest William STONE, Relator, v. Franklin FERRISS, Judge of the Circuit Court of St. Louis County, State of Missouri, Respondent.
    No. 50026.
    Supreme Court of Missouri, En Banc.
    July 8, 1963.

      Charles M. Shaw, Clayton, for relator.
    Forrest M. Hemker, Greensfelder, Hem-ker & Wiese, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

This is a proceeding in prohibition originally filed in the St. Louis Court of Appeals. Following rendition of an opinion therein, 364 S.W.2d 49, this court, on application of respondent, ordered the cause transferred to this court en banc for hearing and determination, in accordance with Article V, § 10, Constitution of Missouri, V.A.M.S., and S.Ct. Rule 84.05, V.A.M.R.

The questions presented arise out of an action brought by relator in the Circuit Court of St. Louis County against his wife, Dorothea Carla Stone, wherein relator sought a divorce and custody of their four minor children and in which defendant, in the first count of her answer, sought a divorce from relator and custody of said children; and in the second count thereof, by alternative cross claim invoking the equitable jurisdiction of the court, prayed that, in the event the relief was denied relator as sought in his petition and defendant as sought in her cross-bill, the court award her custody of the children and judgment for their support.

Trial of these issues by respondent as judge of said circuit court resulted in a decree entered August 1, 1962, dismissing with prejudice both relator’s petition and defendant’s cross-bill. On defendant’s cross claim, respondent found that relator was unfit to have permanent custody of said children; that defendant was a devoted, conscientious and capable mother; that relator walked out of the home with the children on August 21, 1961, and went to live with them in his mother’s home; that it would be in the children’s best interest to be in the care and custody of their mother, subject to relator’s right of reasonable visitation and reasonable temporary custody. The decree accordingly awarded defendant custody of the children, subject to the right of relator to have temporary custody at the times in said decree expressly set forth; and awarded defendant the sum of $500 per month for their support.

Relator appealed from the decree in its entirety and filed an appeal bond in the amount of $5,000. Defendant appealed from that part of the decree dismissing her cross-bill. After these appeals were taken, defendant filed motion for attorneys’ fees and suit money, for support pending the appeals and for temporary custody and support of the children during the pendency of the appeals and until the St. Louis Court of Appeals, by its mandate, directed respondent as to its final decision in the case. Relator then filed his “Petition and Affidavit for Disqualification of Judge”, which respondent denied.

Relator’s petition for prohibition was then filed in the St. Louis Court of Appeals. The petition alleged that defendant’s motion for temporary custody pending appeal “is a new and separate cause of action and by said Motion Defendant, Dorothea Carla Stone, in Cause No. 242461 is seeking to obtain custody of the minor children, when in fact the custody is now with Forrest William Stone, Plaintiff herein, and a supersedeas bond has been duly filed and approved.” Respondent’s return admitted the facts well pleaded in relator’s petition. In due course, following submission, the court of appeals, in an opinion rendered, held that respondent, as judge of the Circuit Court of St. Louis County, was without jurisdiction after an appeal with bond to entertain an after-trial motion for temporary custody of children during the pendency of the appeal and made its provisional rule in prohibition absolute. Respondent filed motion for rehearing and, in the alternative, sought transfer of the cause to this court, which motion was denied. Respondent petitioned this court for transfer, which, as stated, was sustained.

The verified after-trial motion for custody of the children, which is embraced in paragraph 5 of defendant’s motion for other orders pending appeal, reads as follows:

“On the 21st day of August, 1961 the plaintiff took the four children of the parties away from the home of the parties and to the home of plaintiff’s mother at Imperial, Missouri, where they have ever since remained. This action was filed on August 22, 1961. Thereafter, and until April 18, 1962 plaintiff refused to permit defendant to have custody of the children and only allowed defendant to visit the children for short periods of time on the premises at the home of plaintiff’s mother. At no time was defendant allowed to be with the children without plaintiff or plaintiff’s mother being in close proximity. By order entered herein on April 18, 1962 plaintiff was ordered to allow defendant to see the children for a period of two hours uninterfered with beginning at 10:30 A. M. on Sundays on the premises at the home of plaintiff’s mother at Imperial, Missouri. After the decree entered herein on August 1, 1962, defendant requested the plaintiff to deliver said children to the defendant in accordance with said decree. Plaintiff failed and refused to do so, and still fails and refuses to do so. During the pendency of this action, and after the trial thereof, and to this date plaintiff maintains an attitude of hostility toward defendant, and has at all times since August 21, 1961 stated to defendant that he will never permit defendant to have custody of the children, and will fight defendant through the Courts and finally leave the country with the children if necessary to keep them away from defendant. Since August 21, 1961, it is impossible for defendant to maintain any semblance of a normal relationship with her children, and to give to them the company, companionship, love, affection, care and nurture essential to their growth, development, emotional stability and general welfare. By reason of the long separation of defendant from all meaningful contact with her children from August 21, 1961 to this date, the normal affection of said children for their mother is, and will in the future become dormant, and the children will be further alienated from their mother. At the home of plaintiff’s mother the care of the children is entrusted to plaintiff and to elderly persons who are incapable of giving the children the maternal love and care essential to the nurture of children of tender years. The continued separation of the children from their mother during the pendency of this action on appeal will involve an additional critical period in the formative years of the lives of the children of from 9 months to 12 months, during which the children will be deprived of the care and love and affection of their mother, all to their irreparable injury ■and damage. The best interest of the ■children demands and requires that said children be temporarily placed in the care and custody of the defendant, and ■defendant awarded a reasonable sum for their support and maintenance during the pendency of this action on appeal so that said children will be enabled to re-establish a normal mother-child relationship with their mother, the defendant.”

The question for determination on the merits of the motion is whether, when relator appealed from the decree entered in the divorce case and filed supersedeas bond, in the amount and with sureties as required by the court and as prescribed by § 512.080, the chancellor was vested with jurisdiction to hear and determine an after-trial motion for temporary custody of the children pending the appeal, the statute notwithstanding.

The opinion of the St. Louis Court of Appeals held: “If the trial court had the power to order the appealing plaintiff to turn the children over to the defendant, it would be executing an order from which an appeal had been taken. In State ex rel. Gray et al. v. Hennings, 194 Mo.App. 545, 185 S.W. 1153, this court ruled that under such circumstances, the power of the trial court was stayed and it was powerless to proceed with the enforcement of the order appealed from during the pendency of the appeal. We restated this rule in Green v. Perr, Mo.App., 238 S.W.2d 922. The Missouri Supreme Court made a like holding in State ex rel. Burtrum et al. v. Smith, 357 Mo. 134, 206 S.W.2d 558, and citing with approval State ex rel. Gray et al. v. Hennings, supra.”

State ex rel. Gray v. Hennings, supra, so holds. Relator insists that to hold otherwise would allow enforcement of a possibly erroneous decision and, in effect, destroy an aggrieved appellant’s right of appeal; and that the statute declares the public policy of the state cannot and should not be overruled. Respondent says that: “If the Gray case is controlling, it is a fact that there is a period between the entry of the decree and the final determination of the case on the merits by the Appellate Court, during which one or the other of the spouses does not have and cannot obtain a Court order with respect to custody or visitation, however much the welfare of the children calls for such action.” Respondent also further contends that the decision of this court in the Burtrum case does not approve the holding in the Gray case but, to the contrary, strongly suggests that it should not be followed, especially under pleadings and facts such as are found in the instant case; and that, in any event, the Gray case should no longer be followed.

In the Burtrum case, State ex rel. Burtrum v. Smith, Judge, 357 Mo. 134, 206 S.W.2d 558, Myrtle Burtrum obtained a divorce from Joe Burtrum in the Circuit Court of Jackson County and was awarded custody of their minor child, Ronald, during certain periods of each year. She appealed only from the portion of the decree limiting her custody of the child to certain portions of the year and gave a supersedeas bond. Pending the appeal, Joe, by petition for habeas corpus filed in the Circuit Court of Newton County, sought to regain custody. This court, on petition of Myrtle (and her parents), prohibited the Circuit Court of Newton County from entertaining jurisdiction of the habeas corpus proceeding, declaring, 206 S.W.2d loe. cit. 562:

“Judge Smith’s counsel makes two other contentions. They urge, first, that his court may properly ascertain in the habeas corpus case whether Joe Burtrum had custody of the minor child when his wife instituted the divorce suit, citing Sec. 1526, R.S.1939, Mo.R. S.A. [now § 452.150], and State v. Huhn, 346 Mo. 695, 699(1), 142 S.W.2d 1064, 1066(1). We do not agree. That decision merely construed the cited statute as meaning that if a married couple are living apart, the parent who has custody of the unmarried minor children when a suit to adjudicate their custody is instituted, shall retain it exclusively during the pendency of the suit. It did not hold the issue of custody could be determined in habeas corpus while it was involved in a pending divorce suit previously brought. Furthermore, the circuit court here had finally adjudicated that issue and the plaintiff Myrtle Burtrum had appealed, giving a supersedeas bond which preserved the status quo pending the appeal. State ex rel. Gray v. Hennings, 194 Mo.App. 545(1), 185 S.W. 1153(1); * * =¡=.
“If ad interim orders respecting the custody of the child can be sought pending the appeal, the petition must be addressed either to the circuit court which rendered the divorce decree, or to the proper Court of Appeals. It is held under [now § 452.070] that the trial court may allow alimony pendente lite even after a final divorce decree and appeal. Jones v. Jones, Mo.App., 164 S.W.2d 162(1) ; State ex rel. Clark-son v. St. Louis Court of Appeals, 88 Mo. 135, 138. And the same statute grants the right to adjudicate the custody of minor children. See the Morgan case, supra [117 Mo. 249, 21 S.W. 1122], and Annotations, 163 A.L. R. pages 1319, 1321, 1326; 82 A.L.R. page 1147. We are not deciding whether the circuit or appellate court has the power; and make the above citations only to show that no third court can interfere by habeas corpus against either.”

In the early (1893) case of In re Morgan, 117 Mo. 249, 21 S.W. 1122, above cited, this court (by majority vote; see dissent 22 S.W. 913), after noting what is now § 452.070, said, 21 S.W. loc. cit. 1123:

“While the statute does not in terms say the circuit court shall have power to make ad interim orders concerning the custody of children, still the general power granted by the statute carries with it the power to make such temporary orders. * * * Statutes like the one in question exist in many, if not most, of the states; and it is generally held that they give the court ample power to make orders concerning the custody of children while the suit is pending.”

Obviously, the instant case is pending until its final disposition on appeal. Nolker v. Nolker, Mo., 257 S.W. 798, 807.

Relator’s petition averred that § 452.150' denied respondent the right to make an ad interim order relating to temporary custody of the children pending the appeal. That section provides that a father and mother living apart are entitled to an adjudication! with respect to custody of their children;, and that pending such adjudication the parent who has custody shall have the right of custody. We think it would require a narrow construction of the true meaning and effect of that section to hold it applicable under the facts of this case, where, it is alleged, the husband, on August 21, 1961, took the children from the home of the parties and took them to the home of his mother and on the following day brought an action for divorce. But, be that as it may, the question is: Does the statute divest the trial court of its inherent jurisdiction to adjudicate temporary custody of the children pending appeal upon proof that during that interim their welfare is materially endangered?

In Ex parte Badger, 286 Mo. 139, 226 'S.W. 936, 14 A.L.R. 286, this court said, .226 S.W. loc. cit. 939-940:

“In the evolution of equitable jurisdiction we find that in a proper case, where it appears that the welfare of the infant will be best promoted by-removing it from the custody of its guardian, this power may be exercised, although it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion ■of the other. The paramount right of ■a father to such custody, upon which this court has explicitly ruled (State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140), need not be considered, and, while it may be conceded, as a general proposition, it will not suffice to shorten the arm of equity to prevent ■its reaching the father to deprive him ■of the child’s custody and transfer it to the mother, where by his moral turpitude he has forfeited the right to ■such custody. * * *
“ * * * Cases which hold that a •court’s right to the determination of the ■custody of children is dependent upon a decree of divorce will be found upon ■an examination to be limited to those in which the right to the custody was sought as an incident to the suit for the decree, and not, as in the instant •case, to the purely equitable ground of the unfitness of the father to continue in the exercise of that right. In the majority of the cases cited in this opinion in support of the court’s jurisdiction the gravamen of the action was mot to secure a decree of divorce, but 'to determine the custody of the children. In Wellesley v. Wellesley, supra, which may be considered as one of the leading cases on the subject, the purpose of the suit was to determine the custody of minors. In numerous other ■ cases where a decree of separation was sought and denied the courts have •nevertheless awarded the custody of ¡minor children to one parent or the other as the facts warranted. [Cases cited.]”

Since that opinion came down, it has been consistently held in this state that an action between the father and mother with respect to custody of minor children is not one born of the statute, § 452.150; rather does the statute declare the law as it already existed in courts of equity. And, when minor children are properly before any court for any purpose and their welfare is involved, they become wards of that court with respect to the issues of the case and that court has inherent jurisdiction to adjudicate the custody of the children as it deems will best preserve and protect their welfare. Such is the public policy of the state. I- v. B-, Mo.App., 305 S.W.2d 713, 722. See also State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W. 2d 1, 4; In re Duncan, Mo., 365 S.W.2d 567, 571; 27 Mo.L.R., p. 406.

We think those principles are sound and abiding and that, when the pleadings and facts warrant their application, they should be followed. In so holding, we do not overlook the line of cases holding that where a divorce is denied, the court may not adjudge custody of the children. See Price v. Price, Mo.App., 311 S.W.2d 341, 348-349; Green v. Perr, Mo.App., 238 S.W.2d 922, 923. But as noted in the Price case, supra, 311 S.W.2d loc. cit. 348, the pleadings therein did not invoke “[t]he inherent jurisdiction of a court of equity to provide for the comfort and well-being of minor children as against the parent.” In the instant case, not only did the defendant wife seek custody of the children as a matter of parental right under the cross-bill but she also sought custody of them in a separate count in equity, predicated primarily upon grounds that their welfare required that their general custody be in defendant, subject to the right of relator of visitation. We are not here concerned with the wisdom of the decree rendered on the merits in that respect, nor for that matter are we here concerned with the merits of any ruling that the trial court may make either as to the sufficiency of the motion for ad interim custody or as to its merits. Our concern is only whether the trial court had jurisdiction to hear and determine the motion.

But, first, as to the refusal of respondent to sustain relator’s motion to disqualify respondent and call in another judge: S.Ct. Rule 88.08 provides that in suits for divorce or separate maintenance the provisions of the rules of civil procedure with respect to joinder of separate claims and causes of action shall be permitted. In accordance with that rule, it is now permissible to join other justiciably equitable issues between the parties plaintiff and defendant with an action for divorce. Dallmeyer v. Dallmeyer, Mo., 274 S.W.2d 250; Builderback v. Builderback, 241 Mo.App. 508, 244 S.W.2d 377. So it is also clear, we think, that in a divorce action, where, as here, defendant, in a separate count invokes the equitable jurisdiction of the court seeking a decree awarding her custody of the children irrespective of the outcome of plaintiff’s petition and her cross-bill for divorce, the conscience of the court must protect not only the public interest but the welfare of the children of the parties litigant at all stages of the proceedings. In re Morgan, supra, 21 S.W. loe. cit. 1123; In re Badger, supra; State ex rel. Couplin v. Hostetter, supra, 129 S.W.2d loc. cit. 4; In re Duncan, supra, 365 S.W.2d loc. cit. 571. Both counts of defendant’s answer, i. e., her cross-bill and her equitable cross claim, constituted but one action, both counts of which were triable only to the court. Once the parties announced ready for trial on all of the issues and went to trial to the same judge and the judge entered a decree awarding custody of the children to defendant under her equitable cross claim, an anomalous situation would indeed ensue in permitting one of the parties to disqualify that judge from making any ancillary ad interim order which he had jurisdiction to make. The contention made by relator in that respect is without merit.

The Burtrum case, supra, 206 S.W.2d 558, found it unnecessary to consider the question of whether an ad interim order awarding temporary custody pending appeal should be addressed to the trial court or to the proper appellate court. However, the case of In re Morgan, supra, 21 S.W. 1122, cited therein, had long since decided that precise question. Also, in the case of State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135, this court considered whether the court of appeals had jurisdiction to determine ad interim orders for suit money, etc., and held that an appeal from a decree in a divorce suit to the St. Louis Court of Appeals vested that court with the jurisdiction to hear and determine the cause solely on the record and it had no authority to make an allowance against the respondent in favor of the appellant for the payment of her attorney’s fees and expenses of prosecuting her appeal. Thereafter, this court, en banc, in the case of State ex rel. Kranke v. Calhoun, Judge, Mo., 232 S.W. 1038, 1040, affirmed a decision of the St. Louis Court of Appeals holding that the trial court, and only the trial court, could make an order for alimony pendente lite and suit money pending an appeal. We think it must inevitably follow that the trial court is possessed of jurisdiction to make an ad interim award of custody of these children, as wards of the court, upon pleading and showing of facts that their welfare, as distinguished from the personal and parental rights of relator and the defendant wife, so requires.

The statutory bond given by relator, under § 512.080, is conditioned “for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a different amount or orders security other than the bond. When the judgment determines the •disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages, or when such property is in the custody of the sheriff, or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.”

It has been held that in the instance of the breach of such a statutory bond given by a spouse in an attempted appeal from an order modifying a custodial decree made under the statute in a divorce case, such bond affords no relief to the appellee for any damages other than such damages as may be lawfully reckoned in money. In the instant case, the wife would have no right of recovery by reason of being deprived of the custody of her children during the pendency of the appeal on account of her mental distress, etc. Green v. Perr, supra, 238 S.W.2d 922, 923. We think, therefore, it logically follows that no judgment could be awarded her, either as a parent or natural guardian under such a bond, as compensation for any physical, mental, moral or spiritual hurt done the children by reason of their custody being in relator pending the appeal, however irreparable any of those hurts might be.

The decision in the Gray case (State ex rel. Gray et al. v. Hennings, 194 Mo.App. 545, 185 S.W. 1153) is based upon the divorce statutes. There, the parents, twice divorced and three times intermarried, jointly sought modification of a decree priorly entered in one of their divorce actions awarding the custody of their children to an aunt and uncle of the husband. The trial court granted the relief sought. The aunt and uncle appealed and gave a statutory supersedeas bond. The trial court, upon application of the parents, however, ordered the aunt and uncle forthwith to deliver the children as in its decree directed.

There is nothing whatever in that case tending to show that preservation of the welfare of the children was of such immediate concern during the pendency of that appeal as to call for an exercise of the equitable powers of the trial court to make any ad interim order in that respect. Rather does it appear that the trial court had decided the merits of the case as an incident of the divorce statutes, predicated upon the well-known principle of the law of domestic relations that, in the absence of compelling reason to the contrary, the parents are entitled to the custody of their children as against the world; and that the trial judge then undertook to compel general execution of its final decree despite pendency of the appeal or the outcome thereof. In this case, the court is asked only to award temporary custody pending final disposition of the appeal.

In the motion before us, the welfare of the children during the pendency of the appeal has been brought squarely before the chancellor. These children became wards of the court upon joinder and trial of the issue presented under defendant’s cross claim. Our conclusion is that the jurisdiction of that court to make an ad interim order with respect to their temporary custody pending the appeal, upon pleading and proof that their welfare is substantially endangered during that period, is not divested by the giving of the statutory supersedeas bond. See Vol. 27 Mo.L. R. 406-479.

The provisional rule in prohi bition is discharged.

All concur, except HOLM AN, J., not sitting.

      . Philip Andre, born October 15, 1954; Jeffrey Charles, born September 15, 1953; Forrest Carl, born April 5, 1952; awl Pamela Lynne, bom December 4, 1950.

      . All statutory references herein are to RSMo 1959, V.A.M.S.