author: HIGGINS, Commissioner. PER CURIAM.

text:
    Ileen BEAN, Appellant, v. Wendell George RIDDLE, Respondent.
    No. 52448.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.
    Motion for Rehearing or to Transfer to Court Bn Bane Denied Feb. 12, 1968.

      James S. Formby, Kansas City, for appellant, Ileen Bean.
    E. E. Thompson, Ernest H. Fremont, Jr., Kansas City, for respondent; Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   HIGGINS, Commissioner.

Action for $25,000 damages for wrongful death. Plaintiff appeals from verdict and judgment for defendant.

The incident out of which this suit arose occurred near midnight, Saturday, August 18, 1962, on Missouri Highway 6 approximately 2.4 miles east of the junction of Missouri Highways 6 and 129. Plaintiff’s husband, Leslie Bean, had been a passenger in his own 1953 Oldsmobile driven by Lloyd G. McFarland. Carlos Craig and Stanford Potter were also passengers in the Bean Oldsmobile. The automobile was eastbound between Green City and Greencastle when it apparently ran out of gasoline; it had come over the top of a hill west of the home of Dr. R. D. Smith and had started “spitting and sputtering.” The vehicle went east down the hill and had started up the hill toward Dr. Smith’s house when it stopped. The driver, McFarland, let it roll back to the south side of the highway where it was parked headed east and as far off the road as possible without being in the ditch. It was about two feet on the black-top pavement.

A 1957 Ford automobile, driven by Her-shal W. Bramble westbound on Highway 6 came over the Dr. Smith hill east of the above scene and was “flagged” to a stop by Craig and Potter. Air. Bramble stopped as far to his right on the north side of the road as he could without being in the ditch. When parked the Bramble Ford was some west of the Bean Oldsmobile. Mr. Bramble did not know if he was clear of the pavement; respondent estimated that the Ford was on the pavement by two or three feet. According to measurement by Sheriff Everett Vannorsdel, the paved portion of the highway was 22 feet in width.

The boys who flagged Mr. Bramble “hollered” they were out of gas and inquired where they might get some. Mr. Bramble told them of a service station operator in Green City and that he would let someone go with him to get the gas. The operator then would bring him back to the scene. The boys relayed this information to Leslie Bean who then walked from his own car across the road to the Bramble car. Mr. Bean stood facing in a generally northerly direction as he conversed with Mr. Bramble.

While Mr. Bean and Mr. Bramble were talking, respondent came over the hill from the west going east. He was traveling around SO to 55 miles per hour as he crested the hill. He saw taillights on the Bean car on the south side of the road and headlights on the Bramble car on the north side of the road. It appeared to him as though the automobiles were directly across the road from one another. Mr. Bramble watched respondent’s car and said, “ ‘Boys, watch out! Here comes a car.’ Well, it come on up through there, and when it went through, I just felt a kind of a thud hit my car, and I turned around and seen this Bean laying there in the center of the road.”

Respondent, when about one hundred feet west of the two parked automobiles, saw Mr. Bean standing talking to Mr. Bramble. Mr. Bean was at that time about two or three feet south of and facing the Bramble car. He had been slowing and continued to slow his car and at the 100-foot distance “didn’t see any danger, and there was plenty of room to get through.” He “seen no reason to stop (and) continued to drive on through.” At a point about thirty to forty feet from the parked cars he glanced at the Bean car to make sure he did not hit it and then glanced back, at which time Bramble’s lights (on low beam according to Bramble) blinded him temporarily. He was then a foot and a half south of the center of the road with the Bramble car nine and a half to ten feet to his left. He next saw Mr. Bean “practically agin” the left front fender of his car, in an upright position, just to the south of the center line of the highway, facing in a southeasterly direction. His right leg and thigh were toward his car and the left front fender at the corner of the bumper struck Mr. Bean. Mr. Bean then came down the side of his car and struck the rolled-out ventilator glass and the rear side glass. Mr. Bramble was blinded by respondent’s lights and could not tell where respondent’s car was in relation to the center line of the highway. He did not know whether Mr. Bean turned around, stepped back, or got closer to his car.

Mr. McFarland sat at the wheel of the Bean car and watched through the rear-view mirror as respondent approached the scene. He saw respondent swerve toward the center of the road, and the last place he saw Mr. Bean was at the side of Bramble’s car. As respondent went through, he was across the center line and on the north side of the road. After respondent’s car passed, he saw Mr. Bean lying face down in the middle of the road.

Stanford Potter did not see any impact between Bean and respondent’s car. He last saw Mr. Bean leaning against the Bramble car and afterward saw him about the center of the highway and a little behind the Bramble car. Carlos Craig also placed Mr. Bean at the side of and against the Bramble car when struck by respondent.

Everett Vannorsdel, Sheriff of Sullivan County, arrived at the scene (which he located by reference to Dr. Smith’s house) about 12:10 a. m., August 19. He found the body of Leslie Bean almost directly north of the Oldsmobile and in the center of the highway. He found the paint scuffed on the left fender over the headlight of respondent’s car. The left vent glass was broken and the molding around the left rear window was bent and had blood on it. There were two streaks of blood on the trunk of the car. He also located a quantity of beer and empty cartons in the Bean car.

Dr. E. W. Simpson, a regularly licensed and practicing osteopathic physician in Milan and Sullivan County coroner, examined the body of Leslie Bean at the scene. He found the body lying in the center of Highway 6, lying with the road, not crosswise, with the head to the east. He ordered the body removed by ambulance to a funeral home in Green City where he examined the body further and formed the opinion that Leslie Bean died from brain damage due to head injury and possibly chest injuries. He felt also that Mr. Bean had been standing or walking facing north, west, or northwest when struck by the left fender of respondent’s car and that, as he passed along the left side of the car, his head struck the vent window. The sheriff’s accident report reflected his opinion that the “pedestrian” (Mr. Bean) was “obviously drunk.” Dr. Simpson aspirated 10 c.c. of blood from the femoral vein of the body and placed it in a glass container. He gave it to the sheriff who, in turn, gave it to Trooper Plumley of the Missouri State Highway Patrol who began a relay which ultimately put the specimen in the hands of Charles Durham, chemist for the Highway Patrol in Jefferson City. The specimen was marked by a label or wrapper written by Sheriff Vannorsdel: “Leslie Bean Killed Struck By Car Driven by Wendal Riddle Blood Drawn by Dr. R. D. Smith Green City Mo. 8-19-62 at 230 A.M. Request Alcohol Content test made & Results Phoned to Sheriff and then Letter Sent.” Mr. Durham described the tests made of the specimen and stated that it showed twenty hundredths of one percent (0.20%) of alcohol calculated on a weight-to-volume basis.

Appellant’s first point is that the court erred in overruling her motion to quash and in admitting the testimony of Charles Durham because “A proper foundation for the admission of testimony relating to the results of a chemical blood analysis had not been established (and) There was an offer of proof of such positive evidence of contamination of the hypodermic syringe as to require positive proof of its sterility as a foundation for the admission of Durham’s testimony.”

The general rule respecting the foundation for admissibility of tests for blood alcohol content in civil cases is stated, 29 Am. Jur.2d, Evidence, § 830, p. 922: “ * * * it must be proved, as a foundation for the admissibility of evidence of tests for blood alcohol content, that the blood tested was that of the party or person in question, that the continuous custody of the blood sample has been accounted for until its analysis for alcoholic content, and that the blood specimen was properly preserved or cared for until the analysis, so that the results of the tests are reliable. But it has been held that in a civil case the foundation laid for the introduction of evidence of a blood analysis need not preclude every possibility of a doubt as to the identity of the specimen or the possibility of a change of condition of the blood. If the routine and procedures of a laboratory are shown by the evidence as having been commonly accepted by the medical profession, and the business of the laboratory is the securing, handling, and analysis of blood specimens, among other types of specimens, those routines and procedures ought to be acceptable to the courts. The fact that the internal workings of a laboratory permit one or more employees to handle a blood specimen and to transport it should not bar the admission into evidence of the results of blood tests, nor should the fact that a blood specimen is something that could conceivably be tampered with make that evidence inadmissible.”

There is ample evidence in this case to satisfy the requirements of the rule and to show a proper foundation for admission of the results of the blood analysis.

The Sullivan County coroner, Dr. E. W. Simpson, was a witness through deposition in appellant’s case. He went to the scene, examined the body of Leslie Bean and determined him to be dead. He ordered the body removed by Mr. Wade and Mr. Kent to their funeral home in Green City. He assisted in removal of the body from the ambulance and before it was undressed Dr. Simpson, at his own request, withdrew a 10 c.c. blood sample from the femoral blood vessel of the body. The specimen “was placed in a bottle — placed in a container for handling.” He got the container from the funeral home; it was glass; it could be sealed; and it had nothing in it before the blood was put into it. He had no knowledge of previous use of syringe and container. He gave the sample to Sheriff Vannorsdel to deliver to the highway patrol. He added no anticoagulant to the specimen. Dr. Simpson used a syringe at the funeral home to aspirate the blood. “It was clean and bright at the time I used it.”

Sheriff Vannorsdel saw Dr. Simpson withdraw the blood specimen from the body and he received it from Dr. Simpson in a closed glass container. He took it to Kirks-ville the following morning and delivered it to Trooper B. P. Plumley in exactly the same condition as he had received it from Dr. Simpson.

Trooper John W. Danklef received a blood specimen from Trooper Plumley near LaPlata around 9:30 p. m., August 21. He relayed the specimen to Jacksonville where, at 10:30 p. m., he gave it unopened to Trooper Roy L. Beal. At that time the specimen contained a label from the Sullivan County sheriff’s office. Trooper Plumley apparently died before trial, and Trooper Beal identified by badge number his relay report concerning receipt at Kirksville of a specimen from the Sheriff of Sullivan County. Trooper Beal, after receiving the sample from Trooper Danklef at Jacksonville, delivered it unopened to the Columbia police station at 11:45 to 11:50 p. m., August 21. He recalled the specimen as one taken from Leslie Bean.

Derby Martin, desk sergeant in the Columbia police department, recalled the sample left with him around midnight by a state trooper. He did not open nor look into the package. He knew only that a trooper would leave it there for another to receive.

Trooper T. D. Cameron received a blood sample from Sergeant Martin in Columbia around 12:30 a. m. He took it to patrol headquarters in Jefferson City and accompanied the man on duty when he unlocked the laboratory and deposited the specimen in the refrigerator. He was advised that the sample was to be tested for a sheriff in a northern county.

Charles Durham, the chemist, received the sample in the evening or during the night of August 21. It was in a Skippy Peanut Butter jar, glass, with screw top, and contained a label taped to the jar. He was trained in making blood alcohol tests and, in addition to testing for alcohol, tested the specimen for presence of formaldehyde and acetone, tests which are normally made if the source of the specimen is dead or possibly diabetic. The formaldehyde and acetone tests were negative. The alcohol content was 0.20% weight to volume. The specimen was in liquid form without evidence of coagulation or spoilage and it remained so until ordered destroyed March 29, 1963, by the sheriff. He had on rare occasions performed tests where the aspirating instrument was contaminated with alcohol, in which case the reading would be so far out of line as to indicate unreliability. The same would be true if the instrument was contaminated by formaldehyde. Mr. Durham saw nothing to suggest contamination of either container or syringe. Unless an anticoagulant is added, blood coagulates within hours after extraction. Upon examination by plaintiff he stated that a person whose blood tested 0.20% would definitely be intoxicated.

That the foregoing is a sufficient chain of evidence to serve as a foundation for admission of the chemical analysis made by Mr. Durham is borne out by the criminal law of Missouri. The defense to a manslaughter charge in State v. Kelton, Mo., 299 S.W.2d 493, was that defendant shot her husband after physical abuse by him while he was drinking. The state showed that deceased’s blood had a concentration of alcohol of but 0.03 percent. The defendant objected that the specimen had not been sufficiently identified. The chain and foundation was that a physician testified he took the sample and delivered it to a Joplin policeman. The policeman testified he received the sample and sent it by mail to the Missouri State Highway Patrol Laboratory at Jefferson City. The officer in charge testified he received a bottle of blood through the mail, postmarked from Joplin, with accompanying notes from the Joplin police department. The court held that “while the proof of identity sagged a bit in one or two places, we deem the chain to be complete.” 299 S.W.2d l. c. 496 [3]. In State v. Sprout, Mo., 365 S.W.2d 572, blood from defendant’s trousers and from a sample taken from defendant’s arm were tested and compared. The objection was that the trousers and test result were not admissible because the trousers were not in the same condition as when seized. The court quoted from 32 C.J.S. Evidence § 607, p. 766, “ ‘It is unnecessary to show an absence of tampering on the part of every person through whose hands the article has passed; as long as the article can be identified it is immaterial in how many or in whose hands it has been.’” 365 S.W.2d l. c. 575[5]. The chain and foundation in this case compare favorably to those found to satisfy requirements for admission of a test result leading to conviction of murder by strychnine poisoning in State v. Smith, Mo., 222 S.W. 455. A chemist from Springfield testified to what he found in the contents of a human stomach and in a Tanlac bottle delivered to him by the Prosecuting Attorney of Wright County. On July 5, the day following his demise, the victim’s stomach was removed (at Astoria) by Dr. Latimer who placed it in a glass jar which was not fastened but had a glass top that “set down in the jar.” Part of the contents of the stomach spilled out in the jar. Dr. Latimer delivered the jar to the prosecuting attorney who took it to Hartville where he left it in charge of persons in control of an ice plant. It remained there two days and “it appears from the testimony of the two men in control that it was undisturbed, though it is possible that other persons may have seen it while it was there.” The prosecutor next took the jar in his automobile to Mountain Grove. “The jar, packed in ice in a box and covered with an old sack was placed in the front of his car.” He parked his car and spent an hour or two trying a case before the justice of the peace. He drove from Mountain Grove to Norwood and remained overnight, leaving the jar in that condition all night. Next day he delivered the jar to the chemist in Springfield. The court answered charges that the substance to be analyzed had not been given the necessary care to make a chemical test of it admissible : “In order to admit testimony showing the result of the analysis it was necessary to satisfy the court of the identity of the stomach examined with that of Hutsell and that it was in the same condition when examined as when removed from his body. It was not necessary that it should have been hermetically sealed so as to be inaccessible to anybody; it was not necessary to show that there was an entire absence of opportunity for anybody to tamper with it; it was only necessary to show the circumstances were such as to establish a reasonable assurance that it was the same and in the same condition. * * * The viscera of the deceased * * * were not preserved with that care which should characterize the conduct of an officer in such a case, and the glass jar * * * was carted around in a careless sort of way; but there was no time when anything occurred to suggest a suspicion that the stomach was molested or that any one who might be interested in tampering with it knew that the prosecuting attorney had the jar in his possession when he drove to Mountain Grove and to Norwood. We think the court did not err in admitting the evidence.” 222 S.W. l. c. 458-459 [5, 6].

The question here does not appear to have been ruled in a civil case in Missouri; however, appellant concedes that “the quantum of proof is different in civil cases,” and other jurisdictions have ruled chemical tests admissible in civil cases similar to this case. Woolley v. Hafner’s Wagon Wheel, Inc., 22 Ill.2d 413, 176 N.E.2d 757, was a dram shop action by a widow in which plaintiff urged that the trial and appellate courts erred in holding results of a test of blood from decedent’s body were inadmissible due to insufficient foundation. An employee of Quad-Cities Pathologists Group took the specimen on the day of the occurrence and placed it in a refrigerator in the laboratory of the Moline, Illinois, Public Hospital after labeling it and making an entry in the night call book. The specimen was taken next morning by Lantz or Summers, employees of the Group. Lantz analyzed the specimen that day at the Group Laboratory in St. Luke’s Hospital in Davenport, Iowa. Identifying entries in the laboratory record were taken from the label on the specimen. Defendant’s contention was that the test was properly suppressed because no one person of the Group could testify as to the actual transportation of not only Woolley’s blood but any blood specimen and that no records were kept regarding transportation and delivery of the specimen in the organization. It also was shown that Lantz and Summers were the only persons who ever delivered specimens between Mo-line Public and St. Luke’s Hospitals and that there had not been any prior loss or incorrect record entry. The court emphasized that the lower court’s holdings refusing the test made plaintiff responsible for the internal procedures of the analyzing laboratory over which she had no control, and in reversing noted: “All available records of a laboratory * * * have been placed in evidence, and every person having any knowledge of material matters about the test has testified. Any discrepancy in their testimony or concerning the adequacy of the records goes to the weight to be accorded the evidence rather than to its admissibility. From an examination of the entire record * * * we think that plaintiff proved by a preponderance of the evidence and by the highest degree of proof available * * * that the blood sample analyzed was taken from decedent and was in an unchanged condition when analyzed. Evidence of the results of the test should therefore have been admitted into evidence.” 176 N.E.2d l. c. 760 [3, 4], Ritter v. Village of Appleton, 254 Minn. 30, 93 N.W.2d 683, involved an objection that the evidence was insufficient to establish a foundation for admission of expert testimony on alcoholic content of blood taken from a body. An automobile accident on December 31 involved an automobile driven by Hanson who was killed in the collision. A state highway officer, Holbrook, went to the mortuary and requested the coroner to take a blood sample from the body. He saw the coroner take two clean, white bottles for the purpose but did not see the specimen drawn. Next day he received two bottles from the coroner, one labeled “Henry Hanson.” He took these to his home until the morning of January 4, and then mailed them to Goodwin Joss Laboratories in Minneapolis, from whom he subsequently received reports respecting alcoholic content. The bottles were not returned. The coroner testified that on the night of the accident an officer called at the mortuary and requested samples from Hanson and one Ritter; that the mortician took the samples; that the bottles were labeled at that time, stored in the refrigerator, and called for later by an officer. The mortician testified that an officer or the coroner requested blood samples from Hanson and Ritter and that either he or the coroner or someone at their direction labeled the bottles. Two clean bottles were used. He said it was not likely that he confused the two samples. The proprietor and chief chemist (also deputy coroner and toxicological chemist for Hennepin County) testified that on January 5 he received by registered mail from Officer Holbrook two vials of blood specimens, labeled “Hanson” and “Ritter,” “December 31,” and that he made an analysis of them. Upon this foundation the chemist was asked to give his analysis as to ethyl alcohol content and, in reference to Hanson, stated his specimen contained 0.18% alcohol by weight which, in his opinion would be sufficient for obvious symptoms of intoxication. The “Ritter” sample was negative. He stated also that there was no formaldehyde or embalming fluid in the Hanson specimen. The court said, “Based upon all the foregoing, we feel that the trial court did not abuse its discretion in determining that the identification of the two bottles submitted to the laboratories for analysis was sufficient to support the opinion of the chemist as to the alcoholic content found in Hanson’s blood.” 93 N.W.2d l. c. 688 [2]. See also Annotation, 21 A.L.R.2d 1216.

In Neblett v. Hunter, 207 Va. 335, 150 S.E.2d 115, plaintiffs decedent was the driver of an automobile involved in a collision. About 9:50 p. m., following the collision at 7:00 p. m., the state medical examiner drew a sample of blood from decedent’s body, put the same in a tube furnished by the chief medical examiner’s office, corked and labeled it with the name of decedent, time of drawing blood, and his name. He kept the sample overnight and next day placed it on the desk of the state toxicologist for analysis of alcohol content. The toxicologist made the test and found that the blood contained 0.18% alcohol. He described his test as standard and accepted procedure and gave his opinion on effect of such concentration of alcohol upon a person’s ability to react. Plaintiff objected to admission of the test result but the court found no error. “The sample of blood analyzed by the State Toxicologist was sufficiently identified as that * * * of Mrs. Neblett. The result of the test was adequately established, and was admissible in connection with the expert opinion * * * as to the effect of alcohol upon the faculties of a person.” 150 S.E.2d l. c. 118-119 [1, 2].

Appellant cites State v. Myers, 351 Mo. 332, 172 S.W.2d 946, where the court was in error in admitting results of a chemical test made of some gloves. The case is not in point because, although “the evidence was sufficient to establish the identity of the gloves tested as those taken from defendant when he was arrested” (it was) “insufficient to show that their condition was the same at both times.” 172 S.W.2d l. c. 949-950 [4]. All the evidence in this case indicates the blood tested to have been in the same condition as when taken from the body of Leslie Bean and the situation is to be distinguished from that in State v. Myers, supra, where the gloves taken from defendant were wet and twisted but the gloves received by the chemist were dry.

Appellant’s citations from other jurisdictions are subject to similar distinctions. Dobson v. Industrial Accident Commission, 114 Cal.App.2d 782, 251 P.2d 349, was a workmen’s compensation proceeding where the insurer attempted to prove that intoxication was the cause of the employee’s accident by a blood alcohol analysis. The objection that no proper foundation had been laid was properly sustained “because there was no proof that the blood sample the doctor analyzed was Dobson’s blood.” 251 P.2d l. c. 351. By contrast, the specimen tested by Mr. Durham was sufficiently identified in that it was labeled “Leslie Bean” by Sheriff Vannorsdel who saw it aspirated from the body of Leslie Bean by Dr. Simpson as described by him, and the evidence further shows custody of the specimen while so labeled from the time of withdrawal to test. Apodaca v. Baca, 73 N.Mex. 104, 385 P.2d 963, was an action for injuries in which plaintiff objected to admission of results of a blood test on the ground of lack of proper foundation. It was obviously error to admit the test because “there is a missing link in the chain of evidence between the time that the specimen was mailed by Officer Shaw in Tucumcari on May 23, 1960, and the time that it was received by the Beighley Laboratory in Albuquerque on May 27, 1960. The record shows that the package was addressed by Dr. Gordon to Van Atta Laboratory in Albuquerque, but, as herein-before pointed out, when, how, by whom and in what manner or condition the blood specimen was received by Van Atta Laboratory, and how, in what manner and by whom it was delivered to Beighley’s Laboratory, is not shown by the evidence.” 385 P.2d l. c. 966 [2]. No such gaps appear in the chain shown by evidence here which follows the blood of Leslie Bean from aspiration from his body to the test made by Mr. Durham. In Robinson v. Life & Casualty Ins. Co. of Tenn., 255 N.C. 669, 122 S.E.2d 801, refusal of the blood analysis was obviously proper because “there is no evidence tending to show who took the sample of blood from the body * * *, or as to whether or not it was taken before or after embalming fluid had been injected into his body. Likewise, there was no evidence as to the manner in which the blood was han-died after it was taken, if actually taken, from the body of the insured.” 122 S.E.2d l. c. 804 [4]. Such omissions are adequately covered in the chain from Leslie Bean to Charles Durham in this case. Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534, is another “missing link” case which is not in point because there is sufficient evidence as demonstrated to follow the sample of Leslie Bean’s blood from aspiration to test. Appellant also cites 2 Am.Jur., Proof of Facts, Blood Tests, Proof 2, Concentration of Alcohol in Blood, pp. 599-606, suggesting questions as to disposition of specimen. This, too, is lacking in point because there is no attempt to present the specimen in evidence and its destruction is not in question.

Appellant emphasizes the notation on the label affixed to the blood specimen by Sheriff Vannorsdel to the effect that the blood was drawn by Dr. R. D. Smith rather than Dr. E. W. Simpson as all the other evidence shows. There was ample evidence upon which to find that the blood was drawn by Dr. Simpson and upon which the jury could resolve the discrepancy between that and the name of Dr. Smith on the label. In particular, as evidence explaining such error, it is noted that Sheriff Vannorsdel, as well as others present, located the scene in reference to the house of Dr. R. D. Smith and the “Smith Hill.” Appellant argues similarly in respect to the effect on the specimen of failure, if so, to add an anticoagulant. Any discrepancy in this matter would, as in the discrepancy between Dr. Smith and Dr. Simpson as the aspirator of the specimen, go to the weight and credibility of the evidence and be for the jury to resolve. Woolley v. Hafner’s Wagon Wheel, Inc., supra.

Appellant complains in Point II of the court’s refusal of certain rebuttal evidence tendered by appellant on matters “first introduced * * * by respondent.”

The first such complaint is stated: “Appellant * * * (at the close of all the evidence) offered testimony from the deposition of Erman Alonzo Riddle, father of the defendant in rebuttal to respondent’s testimony that he had never at any time crossed over the center line of the road and had driven on the wrong side thereof and that at the time of the fatal accident he was on his own right side of the road and the deceased Leslie Bean was south of the center line of the road. Respondent objected for the reason that appellant had previously taken Mr. Erman Alonzo Riddle’s deposition and contended on that basis that the plaintiff had him available by means of his deposition at the time of the case in chief and further objected that the testimony would be cumulative and not proper rebuttal testimony.” Appellant charges the court erred in sustaining this objection on the proposition, 88 C.J.S. Trial § 101, pp. 212-213: “Either party is entitled to introduce evidence to rebut that of his adversary, and for this purpose any competent evidence to explain, repel, counteract, or disprove the adversary’s proof is admissible, although it tends to support his case in chief. The fact that it was not then introduced does not make it discretionary with the trial court subsequently to exclude it.”

The above rule continues, 88 C.J.S., supra, p. 214: “Although the court may, in its discretion, allow it, evidence in rebuttal which is merely cumulative to that offered in chief is not generally admissible.” Appellant concedes that “the discovery deposition of Erman Alonzo Riddle was available to both parties during the trial” and that “it is true that the testimony offered in rebuttal did tend to support appellant’s case in chief and was somewhat cumulative in nature, and on that basis might be held to be a matter within the discretion of the trial court, nevertheless, the refusal * * * was an abuse of * * * discretion *

All the witnesses in plaintiff’s case who were able to testify on the subject placed respondent on the north side of the center line or wrong side for him at the time his automobile struck Leslie Bean; and it appears that if Erman Alonzo Riddle had testified either in plaintiff’s case in chief or in rebuttal that he would have placed the car driven by his son, respondent Wendell George Riddle, on the north or wrong side of the road, contrary to the son who gave the only testimony that he was at all times south of the center line of the road as he drove east through the scene. Such testimony obviously would have been admissible in plaintiff’s case in chief. Under these circumstances, the general rule, 88 C.J.S. Trial § 102, p. 215, is applicable: “One cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief, even though it tends to contradict the adverse party’s evidence, and, while the court may in its discretion admit in rebuttal evidence which more properly should have been introduced in chief, it may, in its discretion, and generally should, decline to permit either party to introduce evidence in support of his case in chief on rebuttal, * * See Peters v. Dodd, Mo., 328 S.W.2d 603, 610 [9] : “A party cannot, as a matter of right, offer in rebuttal evidence which would have been admissible had it been offered in the case in chief, even though it tends to rebut or contradict the opposite party’s evidence.”

The remainder of appellant’s complaint under the point appears to go to the court’s refusal of the offer of the deposition of Karl C. Kent and testimony of Dr. Lappi as claimed rebuttal respecting the blood test. Appellant’s offer was made at the close of all the evidence and is stated: “ * * * would like to offer in rebuttal to the defendant’s case the deposition of Karl C. Kent, mortician at Green City, Missouri, who, if permitted, will testify that the syringe at his establishment was cleansed with a substance known as hydrol tissue builder solvent, that the method of cleansing is simply by taking the needle of the instrument and placing it in solvent and moving the plunger up and down and then setting it aside. * * * also the testimony of Dr. Lappi, a pathologist and chemist, who has examined two samples of hydrol tissue builder solvent, one being a portion of a bottle obtained * * * at the Kent Funeral Home * * * and another coming from a fresh, unopened bottle of hydrol tissue building solvent. His testimony will be that the composition, chemically, of hydrol tissue builder solvent is ninety-nine per cent methyl alcohol. This is offered in rebuttal to the evidence introduced by the defendant that there was an alcoholic content in the blood sample which he (Mr. Durham) examined and which was allegedly taken from the body of Leslie Bean.”

Assuming this offer to be sufficiently “specific and definite,” Rutledge v. Baldi, Mo., 392 S.W.2d 244, 248 [3-5], its denial is well within the rules that “The trial court has considerable discretion in admitting and excluding testimony in rebuttal which was available and should have been offered in the presentation of the case in chief,” Rutledge v. Baldi, supra, l. c. 248 [6, 7], and that “when evidence is thus offered out of order the trial court has a judicial discretion to admit or exclude it,” Peters v. Dodd, supra, 328 S.W.2d l. c. 610 [10].

Appellant, in the colloquy following the offer, stated that the offer “will in no way contradict the testimony of Dr. Simpson,” and that the evidence of Mr. Durham, the chemist, “is what I am contradicting.” The evidence of Mr. Durham was that of results from his test of a blood specimen from the body of plaintiff’s deceased showing 0.20% concentration of alcohol in decedent’s blood and his opinion that such concentration indicated deceased’s intoxication. Appellant’s offer, she appears to contend, would tend to invalidate the test and thus discredit the result and opinion.

Plaintiff undertook in her case in chief to prove that her decedent, Leslie Bean, was not under the influence of intoxicating liquor in that she presented the evidence through Lloyd McFarland that Bean “wasn’t staggering or anything like that”; that, according to Peggy Sue Bean, decedent’s daughter, there was no indication he had been drinking at 5:30 o’clock prior to the accident; that Carlos Lee Craig, who was with decedent from 8:00 p. m. until the accident, “never seen him take a drink.” In addition all testimony from Dr. Simpson’s deposition was in plaintiff’s case in chief and such included the taking of the blood sample for alcoholic content analysis and the manner in which it was taken by Dr. Simpson including instruments and vessels used and their condition. It is obvious from these excerpts that plaintiff elected in chief to adduce evidence touching on her decedent’s sobriety or intoxication, all of which would have been admissible and cumulative of other evidence in chief, Peters v. Dodd, supra, and, after having partially pursued the subject, could not reserve a portion such as her evidence tending to show contamination, for rebuttal as a matter of right. See 88 C.J.S. supra, p. 214: “One may, if allowed in the discretion of the court, introduce rebuttal evidence on his case in chief, as discussed supra, § 99. However, if this is done, the party is not entitled as a matter of right to introduce further evidence to the same point in rebuttal of his adversaries’ case. Having elected to rebut it in advance, he should then put in all his evidence on that point. Hence, the court, in its discretion, may properly refuse to admit further evidence to the same point in rebuttal, and ordinarily it should do so.”

The bulk of appellant’s remaining argument under this point in summary is that the trial court “should not be permitted to advise appellant that appellant could offer any witnesses to refute that testimony (Mr. Durham’s), lead appellant to rely upon that statement, base rulings to appellant’s objections to respondent’s evidence on the assumption that appellant would introduce such testimony and then in the guise of discretion refuse to admit the evidence which it had previously advised appellant it would permit.” This argument apparently stems from a statement made by the court upon overruling appellant’s pretrial motion to quash evidence pertaining to a chemical blood alcohol analysis: “The admissibility of the evidence that is attacked in this motion is material to the issues in this case. The various issues raised by you, Mr. Formby, are matters for the jury to pass upon as to the credibility of the various witnesses, and you have a right, of course, to offer any evidence that you desire in your case and you mentioned that you have various witnesses here. You certainly have a right to offer any witnesses to refute any testimony relating to the blood sample, and the manner in which it was obtained. Those are matters for the jury to pass on ah to the credibility of the various witnesses.”

There is nothing in the court’s statement inconsistent with the authorities cited and quoted supporting the court’s exercise of discretion in this case. The court gave appellant ample opportunity to present her case and was not obligated to receive in rebuttal that which was admissible in chief and therefore properly a part of her case in chief.

Finally, error is charged to the court’s refusal to permit appellant to comment on respondent’s failure to call his father, a passenger in respondent’s car, as a witness. The court’s refusal of such comment was on the ground that the witness was equally available to both parties.

“[I]t is well settled that the failure of a party having knowledge of the facts and circumstances vitally affecting the issues on trial to testify in his own behalf, or to call other witnesses within his power who have knowledge of such facts and circumstances, raises a strong presumption that such testimony would have been unfavorable and damaging to the party who fails to proffer the same. * * * Such failure may be commented upon in argument.” Block v. Rackers, Mo., 256 S.W.2d 760, 764 [5-8], See also Duboise v. Railway Express Agency, Inc., Mo., 409 S.W.2d 108. This rule is limited in that “ ‘no inference may be drawn, and no unfavorable comment made by counsel on account of non-production of witnesses whose evidence is equally available,’ ” and the parent of a party would not be equally available to the adverse party. Spica v. McDonald, Mo., 334 S.W.2d 365, 370 [4]. See also Williams v. Ricklemann, Mo., 292 S.W.2d 276 (defendant’s wife not equally available to plaintiff). However, in this case the deposition of Erman Riddle, respondent’s father, was taken by plaintiff and plaintiff was fully advised of the nature and extent of his testimony as shown by her offer to read certain items from it, the refusal of which was part of the error charged in Point II, supra.. In that posture, plaintiff’s knowledge in respect to the testimony Erman Riddle could give was equal to that of defendant, and Lix v. Gastian, Mo.App., 287 S.W.2d 354, is directly in point. In that action plaintiff sought damages for injury to his automobile resulting from a collision with defendant in which the automobile was being operated by plaintiff’s stepson. There were two trials of the case, the stepson testifying in the first but not in the second. Plaintiff asserted error on appeal after the second trial in respect to defendant commenting on plaintiff’s failure to call his stepson as a witness. The argument was held erroneous because a transcript of the stepson’s testimony in the first trial was on file and the witness, although related to the adverse party, was thus equally available. “ * * * Such an argument was improper. The transcript of Adams’ testimony could have been ‘used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause,’ Section 492.410 RSMo 1949, V.A.M.S., and was equally available to both parties. No inference may be drawn and no unfavorable comment made in argument on account of the non-production of witnesses whose evidence is equally available to both parties.” 287 S.W.2d l. c. 357 [4-7].

Judgment affirmed.

HOUSER, C., not sitting.

WELBORN, C., concurs.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William MALLORY, Appellant.
    No. 52993.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Cyril J. Clancy, Asst. Atty. Gen., Clayton, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   BARRETT, Commissioner.

A jury found the appellant William Mallory guilty of robbery in the first degree and fixed his punishment at ten years’ imprisonment.

Appellant’s counsel briefed and argued two points, the first is that the information was “so confusing and nonsensical as to not be a plain, concise and definite statement of the essential facts constituting the offense charged and was therefore an unconstitutional denial of due process of law in that it did not notify the appellant of the nature and cause of the accusation against him.” While the appellant cites the due process clauses of the state and federal constitutions, (Const.Mo. Art. I, Sec. 10, V.A.M.S.; Fourteenth Amendment Const. U.S.) the only constitutional provision with specific relevance to the claim here is in the Constitution of Missouri, Art. I, Sec. 18(a) that “in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation.” The rule, Criminal Rule 24.01, V.A.M.R., provides that “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney * * *. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.” In the argument portion of his brief it is said that the information did not allege “who did the robbing and stealing” or “what property was stolen and it is not alleged who the owner of the property was.” These latter assertions are not in fact supported by the record, other than differences in dates, names, place and amounts the information here is all but identical with several other informations that have been set forth in full or narrated (State v. Medley, 353 Mo. 925, 185 S.W.2d 633; State v. Kelly, Mo., 107 S.W.2d 19) and it is not necessary to encumber this record by setting forth this one. The language in many respects is medieval and it has been said that “(t)he form of the information is archaic and its continued use is not to be commended” but even so the court in that case held that the “allegations of the information refute the charges that it failed to allege ownership and that the ‘injured party’ was the owner or agent in charge of the property. * * * The information alleges all essential elements of the crime sought to be charged, and clearly informed him of the nature and cause of the accusation against him. * * * There is no merit in his contention that the information charges that the articles stolen (two revolvers and $1800.00 in money) were used to make the assault and for that reason was fatally defective.” And finally the court said, “Actually, defendant’s attack upon the information in this particular is no more than an objection to its form; not that it lacks an essential element or that it fails to inform him of the offense with which he was charged. The form of the information does not in any respect tend to prejudice substantial rights of defendant, and such objection as he may have to alleged imperfections in its form should have been made before his plea of guilty.” State v. Benison, Mo., 415 S.W.2d 773, 776. This is the principal case upon which the appellant relies and for the reasons set forth in the quotations the information here is sufficient in form and substance and sufficiently charges the offense of robbery in the first degree by means of a dangerous and deadly weapon. RSMo 1959, §§ 560.-120, 560.135, V.A.M.S.

In brief the facts were that about ten o’clock on the evening of May 12, 1966, Rufus Calloway, driving a Black & White Taxicab was dispatched to 913 Woodland. There he picked up two colored boys, one of whom he identified as the appellant Mallory. Mallory got in the front seat, the other boy, Vicky Shockley, got in the back seat. One of the boys told Calloway to take them to 1715 Montgall. When Cal-loway stopped and “leaned over” to look at the taxicab meter “then one put the gun back to my neck and the one in front, he taken and put it up under my throat.” The boy in the back took his billfold containing $26.00 from his pocket and the defendant took $16.00 company money and “my cigarettes.” Calloway says that he kept his hands up, that the one in the back seat “told me, he says, he should kill me.” Instead “(t)hey made me get out of my shoes” and Mallory “cut my radio wire, where I couldn’t call in, and threw the ignition key away,” and the two of them walked north on Montgall. These circumstances support the charge and the jury’s verdict. State v. Kelly, supra.

The appellant’s second claim and assignment is that he is entitled to a new trial because the court “committed plain error” in refusing his request for a mistrial because of the “prejudicial and inflammatory testimony by state’s witness Park Kaestner that he arrested appellant because he was a known holdup suspect.” Kaestner was the police officer who arrested the appellant and the statement objected to arose on direct examination: “Q. What reason did you have for arresting this particular individual? A. He fit the description, and he is a known holdup subject.” Defense counsel made the general objection “I’m going to object to that, Your Honor.” The court said, “The jury will disregard the last answer.” Defense counsel then said, “And I am going to move that the court declare a mistrial — and I’m going to move the court discharge the jury and declare a mistrial.” The court overruled the latter motion and the trial proceeded.

There is no point in matching statements, it is sufficient to say that the remark is not comparable to the inflammatory argument in State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, or to the improper appearance and testimony of the juvenile judge in the statutory rape case of State v. Spinks, 344 Mo. 105, 125 S.W.2d 60. It is only fair to say, however, as the court said of the policeman’s response “which burglary are you talking about?” that it was an “unresponsive and voluntary answer (and) was improper.” State v. Lira, Mo., 372 S.W.2d 80, 82. The difficulty with the appellant’s contention, despite the impropriety of the response, is that the isolated statement is taken out of context of the trial. Almost immediately following on cross-examination there were these questions and answers:

“Q. Did you pick him up just generally or for some specific crime?
“A. We picked him up for the specific —this particular holdup.
“Q. Oh, you were looking for Mallory particularly ?
“A. We were looking for Mallory and also another suspect by the name of Vicky Shockley.
“Q. And Shockley was not with Mallory at the time you arrested him?
“A. No, sir, they were in Mallory’s —or in Shockley’s automobile.
“Q. Do you know it to be Shockley’s car of your own knowledge ?
“A. I do.
“Q. How do you know that?
“A. Well, I have checked Shockley many a time and Mallory many a time in this particular automobile.”
******
(Defense counsel requested the witness to bring in a certain “Special Operation Bureau file.”)
“Q. —That is the State Registration Office?
“A. No, we have a complete file on this boy and—
“Q. (Interrupting) Well, now, never mind the complete file. Will you bring back the registration of this automobile that you say belonged to Vicky Shockley?”

These matters were all developed on cross-examination (State v. King, Mo., 334 S.W.2d 34, 39) and the implication of the answers is as plain and injurious to appellant as the officer’s response on direct examination. In State v. Statler, Mo., 331 S.W.2d 526, a sodomy case, the 12-year old companion of the victim ran home and reported to his family and there were these questions and responses : “Q. They knew what you meant? A. Because Statler tried to get me before. Q. Beg pardon? A. Tried to bribe me before.” As to these statements the court said, quoting in part from other cases, ‘Declaring a mistrial for conduct of a witness or spectator lies largely within the discretion of the trial judge’ (State v. Baker, Mo.Sup., 293 S.W.2d 900, 902, and cases cited); and this is true where a voluntary statement is made by a witness. * * * Although it would have been proper and better for the court, on its own motion, to have told the jury to disregard that part of his answer, nevertheless, under all the circumstances, we cannot hold that there was an abuse of discretion in refusing to declare a mistrial.” The only specific relief sought by the appellant was a mistrial, an experienced trial judge instructed the jury to disregard the statement objected to and again, no doubt, considered the prejudicial effect on the motion for a new trial and it may not be said in all these circumstances that the isolated response was so manifestly inflammatory as to demand the granting of a new trial by this court. 98 C.J.S. Witnesses § 356, p. 79; State v. Lira, supra; State v. Statler, supra; State v. Curtis, Mo., 325 S.W.2d 489, 492; State v. Pitchford, Mo., 324 S.W.2d 684, 688-689; State v. Siekermann, Mo., 367 S.W.2d 643, 649-650.

Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: EAGER, Judge. SEILER, Judge. PER CURIAM.

text:
    Gloria BELL, Appellant, v. Gordon GREEN and Fruehauf Trailer Company, a Corporation, Respondents.
    No. 53129.
    Supreme Court of Missouri, In Banc.
    Jan. 22, 1968.
    Rehearing Denied Feb. 12, 1968.

      Gerritzen & Gerritzen, by Ray A. Ger-ritzen, St. Louis, for plaintiff-appellant.
    Robert H. Burns, Clayton, for respondent, Green.
    F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary and Jaeckel, St. Louis, for respondent, Fruehauf Trailer Co.
   EAGER, Judge.

Plaintiff sued Gordon Green and the Fruehauf Trailer Company jointly for personal injuries sustained when the car in which she was riding struck a Fruehauf tractor-trailer, on U. S. Highway 66 on Jan. 21, 1959, about 7:50 a.m. One Perry Becker was the driver of the car; plaintiff was a passenger in the front seat; Green and Carol Brocato (then Hawkins) were in the back seat. The jury returned a verdict for $14,500 against Green and in favor of Fruehauf. Green’s after-trial motion for judgment was sustained, and plaintiff’s motion for judgment or a new trial against Fruehauf was overruled. Plaintiff appealed to the St. Louis Court of Appeals where an opinion was filed on July 21, 1967, affirming the action of the trial court. Subsequently, we ordered the case transferred here on plaintiff’s application. In the application for transfer plaintiff’s counsel specifically asked that we “transfer her appeal as to Defendant Gordon Green” for the various reasons alleged. We consider, and rule, that plaintiff has affirmatively abandoned her appeal as to Frue-hauf, although certain points as to that defendant had been briefed in and ruled by the Court of Appeals. They will not be further considered here. We shall consider plaintiff’s case against Green as though brought here upon an original appeal.

The principal issue arose from the fact that defendant Green was a minor, not yet 20 years of age. Becker was also a minor, which is not so material; both girls were minors, plaintiff being 17, Carol 14. As will be developed later, the collision occurred in the lane of the tractor-trailer, under circumstances which obviously would create a submissible case of negligence against the driver of the car. In plaintiff’s amended petition it was alleged: that Green was a passenger in the 1958 Chevrolet and that Becker was operating it under Green’s “direction, authorization and orders”; that Becker was the “Instrument” of defendant Green, and on a joint venture with him; that Green, through Becker, was negligent in crossing into the westbound lane of the highway and into collision with the tractor-trailer, and in driving onto the wrong side of the highway. We omit all allegations of negligence as to Fruehauf. Green’s answer consisted of denials of the substantive allegations of the amended petition and a plea of contributory negligence; also, an affirmative allegation that Green was a minor, and that he was asleep in the rear seat at the time of the collision. We note here that Becker was killed almost instantly in the collision; so far as the record shows, no suit was filed against his estate.

We shall endeavor to restrict our statement of the rather voluminous evidence as much as is practicable. Green and Becker worked at the McDonnell Aircraft plant in St. Louis County; they lived at Green’s sister’s house in “Villa Ridge” in Franklin County located on U.S. Highway 66, and drove back and forth to work in the Chevrolet in question. The evidence fairly showed that the title to the car in question, acquired in July, 1958, was in the name of Green’s father, Chester Green, who lived at Hartshorn, Missouri (Green’s claimed place of residence), but that Green had made all the payments on it with his own money and had kept it continuously in his possession and control; he said that his father used it when he wanted to; he further testified that his father turned in a 1950 truck as the down payment on the car. In any event, Green had been using the car continuously for months and no other use was specifically shown. He had referred to it as “his car.” Green and Becker had met the two girls in question at the “Diamonds,” a restaurant located very near Green’s sister’s home; the girls had worked there for a few weeks as waitresses.

There are discrepancies in some parts of the evidence, but we shall follow the version of the plaintiff and her witnesses whenever available, since she had a verdict. The boys picked up Carol at about 7:00 p. m. on Jan. 20, in Green’s car; they went to a movie in Pacific, drove around some, and then picked up Gloria Bell (then Webb) at the Diamonds at about 11:00; they went to another restaurant and ate, came back to the Diamonds and parked in the driveway of the “dormitory’.’ for a period described as from one to two hours. There is no evidence that anyone drank any alcoholic beverage at any time. After such lapse of time someone suggested (no one ever admitted who did so, and Green denied that he did) that they drive to Rol-la. It had been snowing or sleeting intermittently during the evening and this continued at the time. Nevertheless, the group drove to a nearby filling station and got gas, which Green paid for; up to that time Green had done all of the driving. Green went to the restroom and perhaps Becker got out. Plaintiff’s evidence was that when Green came out he asked Becker to drive or suggested that he drive, that the girls changed seats and Green got in the back seat. Green denied this and testified that Gloria had made some protest of Becker’s actions and that when he came out of the station Becker and Gloria were already in the front seat, so he got in back. Plaintiff and Carol vehemently denied this. At any rate, Becker drove the remainder of the ill-fated expedition. No one knew what time they left for Rolla, but the speculation was that it was around 3:00 a. m. The girls, according to their testimony, soon went to sleep and remembered substantially nothing of any subsequent occurrences until after the accident; the only exception was that Carol said she faintly remembered the car being turned around after daylight and starting towards home.

At perhaps 5:30 or thereabouts (only Green testified on this) Becker stopped at a restaurant, which Green thought was in Sullivan, and the two boys ate breakfast. Green did not remember the girls going in; both of them denied doing so. When the boys returned to the car, Becker, having kept the keys, took the driver’s seat and resumed driving. The bad weather continued, with snow and sleet, during all or part of the time, although Green thought the snow and sleet had slackened when they finished breakfast. He testified, however, at that time that “it would be dangerous to drive.” It was not shown that at any time Green gave Becker any specific directions about driving. In any event, Becker continued driving. Green testified that he went to sleep in the back seat, and subsequently the collision occurred. Many facts are vague. Carol says she remembered the car being turned around at a place where there were some butane tanks, because the “weather was getting bad.” That would seem to indicate that Becker drove on some distance towards Rolla but later turned back. Green gave no such testimony, but it seems to be conceded that Becker was driving east, back towards home, at the time and place of the collision.

Highway 66 was then a three-lane road, approximately 28 feet wide. The Fruehauf unit was headed west, a tractor with trailer, of a total length of 50 feet. Melvin DeGrasse, its driver, was the only witness who knew anything personally about the facts of the accident; he was put on the stand by the plaintiff. We shall omit many controversial details which could only concern the liability of Fruehauf. DeGrasse had spent the night at a motel outside of St. Louis and had driven about 45 miles westerly at the time of the collision; the trailer was empty, in the process of being delivered to Ft. Worth; although it was daylight, the “marker” or parking lights were burning on the tractor and trailer. In substance, DeGrasse testified: that the road was icy in patches, with snow and sleet “squalls”; that the road was straight with a slight downgrade toward the west; that he had come up behind a cattle truck (covered with a canvas) to a point about 100 feet from it; that the truck was moving at about 38 miles an hour, and DeGrasse had accelerated slightly intending to pass it, but he saw the Green car coming east about 1100-1200 feet away and saw also that at about 900 feet it began to enter the center lane; he determined then not to pass the truck until the car had passed; that he, DeGrasse, was traveling at approximately 35-40 miles an hour strictly in his own lane; that he estimated the speed of the car at about 60; after he saw it begin to enter the center lane it was obscured by the cattle truck, and when he next saw it, it was just clearing the left rear corner of the cattle truck and coming into his westbound lane at the same speed, headed directly at his vehicle; that he pulled his vehicle to the right, and did not have time to sound any horn; that his tractor was largely on the right shoulder at the time of impact; that the front, chiefly the left front, of the car struck the left rear side of his tractor; the car was demolished and the tractor was later rebuilt. The car bounced or was knocked backward about 56 feet, ending upon the south shoulder. When DeGrasse saw the Green car coming into his lane at approximately 100 feet, he saw no driver, although he could see the back of the front seat. He further testified: that probably a second elapsed from the time he saw the Green car clearing the cattle truck until the impact; that the cattle truck was probably eight feet wide, and that it was running very close to the line dividing the center lane from the westbound lane; that he could distinguish the dotted lines on the road; that his only thought was to try to get out of the way; that his speed originally was about 40 miles an hour, but that he had slowed down some when he first saw the car enter the center lane; that his tractor was equipped with a governor set at 55 miles an hour.

Jim [sic] Thompson, a former highway patrolman, then employed at Washington University, testified: that he was at his home in St. Clair at the time of this collision, but he answered this call, arriving at the scene at 8:25 a. m.; that the roadway was snow and ice covered; that the people had all been removed from the car; he examined the vehicles, the roadway, and talked with Mr. DeGrasse; that he found what he believed to be the point of impact, so located from certain parts of the dirt and debris, and that it was approximately one foot over into the westbound lane of the tractor-trailer (no suitable objection was preserved to such conclusory testimony), although there was other debris scattered all around; he found the tractor on the north shoulder headed southwest, with the end of the trailer on the highway at an angle, the rear being 33 feet west of the point of impact; that the road there ran practically east and west; the car was 56 feet southwest of the point of impact, headed generally east; that the road conditions were such that a sudden application of brakes would cause a skid, and a sudden swerve would have been dangerous.

Under these circumstances, we need digest only a small part of Green’s further testimony, for plaintiff is entitled to have us consider only that part favorable to her. He testified, in person or by deposition, that: Becker had asked to use the car earlier on the fatal evening to go to the Diamonds, but that he had refused and told Becker that he would go with him; that Becker had driven the car for several hours before the collision, and he had never told him to quit or asked for the keys; that he went to sleep about 15-20 minutes before the collision and knew nothing of it; that when he woke up after the collision Becker was slumped over the wheel; that he had made the payments on the car with his own money, had paid for all repairs, paid for the oil and gas, and kept both sets of keys; that he and Becker had both worked at McDonnell’s on Jan. 20, 1958, the day before the collision; that there was no pre-arranged date with the girls; that snow and sleet had continued, at least spasmodically, from the time they left the Diamonds (and perhaps earlier) until the time of the collision, and that shortly before the collision it was “dangerous” to drive; that when he went to sleep the highway was “ice covered.”

Plaintiff submitted her case upon the theory that Becker was driving the car “as the instrument” of Green, and that if Becker was negligent in certain hypothesized respects, and such negligence concurred with the acts of Fruehauf in causing the injuries, then Green was liable (except for a possible finding of contributory negligence). Another instruction attempted to explain the use of the word “instrument”; we shall not find it necessary to pass upon its propriety. Plaintiff’s counsel insist here that the Court erred in setting aside the verdict against Green and in entering judgment in his favor because: the evidence clearly showed that Green had at all times the right of control of the car and that he was present in it; that Becker was acting as the “instrument” of Green when he drove the car into the wrong lane, for which Green is liable; and that no “agency” as such was necessary. Counsel for Green say: that Green was a minor and could not appoint an agent; that he was asleep and did not participate in any way in the driving; that neither upon any theory of instrumentality or otherwise could the negligence of Becker be imputed to Green; also, that if there was any joint venture, a member thereof, i. e., plaintiff may not impute the negligence of Becker to Green.

The Court of Appeals held: that Becker was not and could not be the agent of Green, because a minor cannot appoint an agent; that there was, under these circumstances, no imputed negligence; and that Green, he being asleep, did not participate in Becker’s negligence, and that his mere presence did not make him liable. Plaintiff relies very largely on the case of Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105. There, the minor son of the owner of a car had taken it out on a pleasure trip and picked up three other friends, all minors. One of these, a boy, was driving at the time the car hit a pedestrian and killed him. The son of the owner was sitting beside the driver in the front seat, specifically watching the side of the road to see that they did not go off the road, and he had made at least one suggestion about the driving. The contentions of the plaintiff, were, in part, the same as those here, including the theory that the driver was a mere instrument; but it was also claimed that actually both of the boys were driving the car. The Court upheld the liability of the son, as well as that of the driver; it disclaimed the theory of imputed negligence, but relied upon evidence showing the son’s right of control and his actual participation in the driving, holding that he thus became and was concurrently negligent. On these facts it held that the driver was a mere instrumentality; but in so doing the Court expressly distinguished the case of Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90, where the minor defendant was not present in the car and, of course, was not participating. The Haynie case was submitted to the jury upon the theory that both of the defendants were driving the car; actually, the son seems to have been held liable primarily because of his own concurrent negligence.

Plaintiff cites and discusses sundry cases in which adult defendants, riding in cars over which they had full control or right of control, have been held liable for the negligence of their drivers; in such cases the defendant is also ordinarily the owner of the car. It would be useless to discuss those cases, for they proceed definitely upon the theory of agency and of imputed negligence because of the agency; some have proceeded more specifically upon the doctrine of joint venure. See generally: Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; James v. Berry, Mo.App., 301 S.W.2d 530; Hill v. St. Louis Public Service Co., Mo., 64 S.W.2d 633; Blashfield, Cyclopedia of Automobile Law & Practice, Vol. 5A, § 3132; Berry, Automobiles, Sixth Ed., Vol. 1, § 642; Ritchie v. Burton, Mo.App., 292 S.W.2d 599; Counts v. Thomas, Mo.App., 63 S.W.2d 416.

In Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90, 103 A.L.R. 483, the Court considered the liability of a minor son of the owner of a car who had taken it out with permission and had picked up several other minors. One of the latter was driving the car around while the son talked to a filling station operator. During this period the injury occurred. The Court held that the son was not liable. The Court held specifically that the son, a minor, could not legally appoint or have an agent for the purpose of driving the car and that the driver’s negligence could not be imputed to him. The Court expressly distinguished a prior Springfield Court of Appeals case, McKerall v. St. Louis-San Francisco R. Co., Mo.App., 257 S.W. 166, on the ground that the deceased minor there (riding as a passenger in the front seat) “actively participated in the negligence” of the driver in driving the car upon a railroad track in front of a train. The Hodge case stands firmly for the theory that a minor cannot have an agent under such circumstances; and that a minor, not in control of a car at the time of an injury and not participating in the driving, is not liable for the driver’s negligence, because he or she cannot legally have an agent; ergo, no imputed negligence.

The theory of liability based upon a right to control the driving of a car is dependent upon “common law principles applicable to the relation of master and servant or principal and agent.” 8 Am. Jur.2d, Automobiles, § 572, p. 123. And the owner is only chargeable with the negligence of the driver when the doctrine of respondeat superior may be invoked. Id.

The theory now advanced in this case, i. e., that a minor may have an “instrument” but not an agent is unsound as applied to the facts we have here. The so-called “instrument” cases are sustainable upon the theory that the minor defendant is not only present in the car with the right of control, but that he is participating in the driving. Otherwise, they would simply constitute an evasion of the universally recognized rule that a minor may not appoint an agent. The same principle excludes consideration here of the theory of a joint venture, for that relationship is founded upon a contract of express or implied partnership or agency. State ex rel. Knight Oil Co. v. Vardeman, Banc, Mo., 409 S.W.2d 672; Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109; Gales v. Weldon, Mo., 282 S.W.2d 522; Anderson v. Steurer, Mo., 391 S.W.2d 839; Haynie v. Jones, supra. In Shafer, supra, the Court said, at 295 S.W.2d, loc. cit. 116: “A ‘joint adventure,’ as a legal concept, is of comparative recent origin, Neville v. D’Oench, 327 Mo. 34, 34 S.W.2d 491, 503, and is founded entirely on contract, either express or implied. It can exist only by voluntary agreement of the parties to it. It has been defined as an ‘association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.’ 48 C.J.S. Joint Adventures § 1 a. It is in the nature of a partnership, generally governed by the same rules of law, the principal difference being that a joint adventure is usually limited to a single transaction. As a general rule, in order to constitute a joint adventure, there must be a community of interest in the accomplishment of a common purpose, a mutual right of control, a right to share in the profits and a duty to share in the losses as may be sustained. 48 C.J.S. Joint Adventures § 2 a.” Since an infant cannot make a valid contract and cannot become a partner, he may not be a member of a joint venture within the legal meaning of the term. The doctrine of joint venture has sometimes been applied in cases arising from automobile collisions, usually to impute contributory negligence (as James v. Berry, Mo.App., 301 S.W.2d 530), but we fail to see how it can logically be applied to a minor. Haynie and McKerall, supra, have already been discussed and distinguished. They rested on further facts. In citing Counts v. Thomas, Mo.App., 63 S.W.2d 416, where the liability of the owner’s son (present in the car) was fixed upon the theory of imputed negligence, by reason of his right of control, and perhaps partially on a theory of “joint enterprise,” plaintiff’s counsel erroneously state in their reply brief that the defendant was a minor. It is expressly stated at 63 S.W.2d, loc. cit. 418, that the defendant was “the adult son” of the owner. We hope this mistake was inadvertent.

Plaintiff’s counsel has cited Woodson v. Hare, 244 Ala. 301, 13 So.2d 172, and Wilson v. Moudy, 22 Tenn.App. 356, 123 S.W.2d 828, as authority for the liability of Green. In the first place, we feel that our own law is sufficiently settled that we should follow it to the exclusion of out-state cases, at least until we are convinced that it is wrong. We are not so convinced here. In Woodson, the negligence of a minor driver was apparently imputed to the minor (defendant) daughter of the owner of the car, she being present in it. The decision was apparently based upon the daughter’s supposed right of control and a theory of joint venture, although seeking to avoid a finding of strict agency. In so doing the Court seems, in certain places, to have lost sight of the defendant’s minority, particularly in discussing generally the liability of an owner because of his right of control; finally, however, the Court held that the negligence, committed by an “alter ego” appointed by the minor, might be imputed to her. For all the reasons heretofore stated, and because the opinion is, in our view, out of harmony with our cases and illogical, we decline to follow it. The same may be said generally of the Wilson case, supra.

We suggest that if a minor is to be held liable in such actions merely because of his presence in the car and a supposed right of control, such liability may and should be declared by the legislature. Such liability, however evasively expressed, rests upon imputed negligence through a relationship of principal and agent. We do not choose to declare, as a matter of common law, that a minor may appoint an agent for one purpose but not for any other. It may well be that this involves a matter of public policy which should be regulated by legislation.

There is one principle which might involve a possible liability on the part of Green, the validity of which, as applied to these facts, we do not decide; this for the reason that the case was not pleaded or submitted on that theory and we do not know what the evidence may be upon a possible retrial. A minor is always liable for his own negligence. Hodge v. Feiner, supra. In this case Green obviously had the right to designate the driver of the car, and presumably to continue or discontinue the trip; he knew the weather and road conditions, knew that Becker had worked the preceding day and had had no sleep, but he permitted him to continue driving from perhaps 3 :00 a. m. until the time of the collision at 7:50; and this, notwithstanding the fact that the driving conditions were admittedly “dangerous” when they finished breakfast, that the girls had long since gone to sleep and that Green himself soon succumbed to sleep, leaving Becker alone responsible. Obviously, Becker also had gone to sleep just prior to the collision. We refer, by way of analogy, to the line of authorities holding that the owner of a car may be liable if he, knowingly or having the means of knowledge, turns his car over to a driver who is incompetent by reason of age, inexperience, habitual recklessness or otherwise; such liability further depends upon a finding that the act of the owner concurs with the negligence of the driver as a proximate cause of the injury. Thomasson v. Winsett, Mo.App., 310 S.W.2d 33; Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696; Saunders v. Prue, 235 Mo.App. 1245, 151 S.W.2d 478; Lix v. Gastian, Mo.App., 261 S.W.2d 497; Ritchie v. Burton, Mo.App., 292 S.W.2d 599; 8 Am.Jur.2d, Automobiles, § 573, p. 125; Restatement of Torts, Vol. 2, § 390, and illustrations listed at p. 316; 36 A.L.R. note, loc. cit. 1148; 68 A.L.R. note, loc. cit. 1013; 100 A.L.R. note, loc. cit. 923. Thus, it is said in 8 Am.Jur.2d, at loc. cit. 127: “Nor does such liability rest upon imputed negligence or upon ownership or agency; it rests upon the combined negligence of the owner and the driver — negligence of the owner in entrusting the vehicle to an incompetent driver, and negligence of the driver in its operation.” This rule has been applied to the act of an owner in permitting an intoxicated person, or one likely to become intoxicated, to drive. 8 Am.Jur.2d, § 576, pp. 130—131, and cases there cited. And see, particularly, Harrison v. Carroll, C.A. 4, 139 F.2d 427. The facts of the present case do not coincide with the precise facts of any of the cases decided upon that theory, so far as we have seen. In Ritchie v. Burton, supra, the Court noted that the personal negligence of the owner-passenger in entrusting the driving to an inexperienced person was not pleaded or submitted. The case was reversed on instructions and remanded.

Plaintiff having affirmatively abandoned her appeal as to defendant Fruehauf Trailer Company, the judgment is affirmed as to it; that judgment should be held in abeyance, pending a final disposition of the case as to Green. The judgment entered for defendant Green is reversed and the cause remanded in order that plaintiff may, if so advised, ask leave to amend her petition and thus seek a retrial. We deem it unfair to tax all the costs of this appeal upon the defendant Green, although the judgment in his favor has been reversed; it is ordered that they be equally divided between plaintiff and that defendant.

All concur except SEILER, J., who concurs in result in separate concurring opinion filed.

Concurring Opinion

SEILER, Judge.

Although Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90, states specifically that the defendant there, being a minor, could not be held in tort on the doctrine of respon-deat superior, the court did not say this was the only way a minor could be vicariously liable in tort. It did not discuss what the situation would have been had the minor been present in the car. It several times stressed the fact the tort was not committed in the minor’s presence. Indeed, at one point, 90 S.W.2d l. c. 91, the court seems to say that since the minor was not present in the car it was incumbent on plaintiff to establish agency but this could not be done against a minor. In its discussion of McKerall v. St. Louis-San Francisco Ry. Co., (Mo.App.) 257 S.W. 166, which involved a minor who was present in the car with right of control, the court distinguishes it from Hodge v. Feiner on the ground that the former involved a minor who was present and had the right to direct the driver of the automobile in the manner of its operation, while the latter sought to hold the minor in tort solely on respondeat superior, when the minor was not present.

There are several Missouri cases which charge the person who has the right of control and who is present in the car with the negligence of the driver when they are engaged in something of mutual interest, even though it clearly is not a joint adventure or enterprise in the technical sense at all, involves no element of contract, partnership, profits or losses and, actually, no master-servant or principal-agent relationship in fact. For example, in Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014, plaintiff and his wife were merely returning home in plaintiffs car after a visit with plaintiff’s mother-in-law. In James v. Berry (Mo.App.) 301 S.W.2d 530, plaintiff and her brother, who was driving her car, were returning to her home after a fishing trip. In Counts v. Thomas (Mo.App.) 63 S.W.2d 416, the parties were on a pleasure trip, the son of the owner riding and a friend driving. If defendant Green had been twenty-one years old, his responsibility for the negligence of Becker would probably not be considered debatable, but under the facts before us, liability should not turn on the happenstance of whether the defendant is just under or just over the age of twenty-one. Defendant was present and clearly had the right of control and he and the driver were jointly engaged in an evening of mutual pleasure — what is commonly referred to as a “double date” and which does not require agency or contract.

Therefore, while I concur with the action of the majority in reversing and remanding this cause and Brocato v. Green et al., Mo., 423 S.W.2d 735, for the purposes stated, I must respectfully dissent from that portion of the opinion which seems to me to hold that liability based upon right to control, when the owner is present in the car, can exist only when the facts and the ages are such as to show the existence of a master-servant or principal-agent relationship between the owner and driver, or a true joint adventure relationship founded on contract.

On Rehearing

PER CURIAM.

Plaintiff’s motion for rehearing consists largely of a reargument of the issues discussed and decided in our opinion. Counsel assert that we misconstrued the opinion in Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105, in stating that the case was actually submitted to the jury upon the theory that both defendants were driving. A close examination of the opinion will show that Instruction No. 2 submitted that issue (loc. cit. 109) and the Court (at loc. cit. 110) obviously regarded that submission as a necessary element of plaintiff’s case. Thus, we believe that our interpretation of the opinion was correct, but we further note that it is not binding upon us in any event insofar as it may be contrary to our opinion. Counsel for plaintiff also assert that if the case is to be reversed and remanded, it should be retried only on the issue of liability because “no one has contested” the amount of the verdict. Defendant Green raised an issue of ex-cessiveness in his motion for a new trial, but when judgment was entered in his favor and plaintiff appealed, the amount of the verdict was in nowise an issue; the matter was not briefed or considered on appeal. Under these circumstances, we should not foreclose the defendant on that issue. Plaintiff’s motion for the adoption of the concurring opinion of Judge Seiler or for a rehearing is overruled.

Defendant-Respondent Green has filed a motion for rehearing, basically upon the contention that we have violated § 512.160 (2), RSMo 1959, V.A.M.S. and Rule 83.13, providing that no appellate court shall reverse a judgment unless it believes that material error was committed by the trial court against the appellant; also, that without a proper reversal there can be no remand for a new trial. More specifically, it is thus argued that we have actually affirmed on the merits the action of the trial court in entering judgment for defendant Green on this record, but have remanded for possible amendment and retrial upon a different theory.

Our courts have frequently declared the principle that: “ ‘ “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.” ’ East v. McMenamy, supra at page 732, of 266 S.W.2d 728.” Yarrington v. Lininger, Mo., 327 S.W.2d 104, loc. cit. 111. Defendant Green apparently recognizes this principle, but insists that we did not rightly reach that point in the present case. It is true that in substantially all of the cases in which that principle has been declared the appellate court did find some error, usually in the failure of the plaintiff to make a sub-missible case. Reece v. Reed, Mo., 326 S.W.2d 67; Smith v. St. Louis Public Service Co., Banc, 364 Mo. 104, 259 S.W.2d 692; Houfburg v. Kansas City Stock Yards of Maine, Mo., 283 S.W.2d 539; Snyder v. Jensen, Mo., 281 S.W.2d 819; McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704. These cases illustrate the liberality exercised in remanding for a new trial where there has been a reversal.

In essence, defendant’s counsel say here that we had no right to reverse. Our action in doing so, and in remanding, was motivated by the particular circumstances of this case, in that plaintiff’s counsel had relied upon a theory discussed in the case of Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105, which case had not been overruled or disapproved. The theory (more fully discussed in our opinion) was that the driver might be considered as the “instrument” of the minor defendant so as to make the latter liable for the driver’s negligence. We have now disapproved that theory, but for the first time. We have held that plaintiff’s theory of submission was erroneous. The trial court, it is true, corrected that by the entry of judgment for defendant Green.

In Aiken v. Clary, Mo., 396 S.W.2d 668, this Court held upon plaintiff’s appeal from an adverse verdict and judgment, that his evidence in a malpractice case was insufficient because it did not include the necessary expert testimony; it further found, however, that plaintiff and his counsel had relied upon a prior decision of this Court holding, under rather similar circumstances, that such testimony was not necessary. Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017. It thus appeared that plaintiff’s evidence was not in fact insufficient under the law as it stood at the time of trial. The Court nevertheless reversed, but remanded the case for a new trial because plaintiff had been misled by the prior state of the law. The further finding of error on the voir dire is immaterial in any consideration of our present point, for it was of no importance in view of the finding that no submissible case was made; that matter was obviously included merely as a guide for another trial. The Aiken case, supra, is authority for a reversal without a finding of specific error, under such unusual circumstances as are present here. We do not consider that the spirit of either the statute or the rule has been violated. For a further analogy, see also Cudney v. Midcontinent Airlines, Banc, 363 Mo. 922, 254 S.W.2d 662; there the cause was remanded upon a determination (for the first time) that the res ipsa doctrine was inapplicable in suits for injuries to airline passengers.

Defendant also complains of our order dividing the costs; we adhere to that ruling. The motion of Defendant-Respondent Green for a rehearing is overruled.


author: EAGER, Judge. PER CURIAM.

text:
    Carol BROCATO, Appellant, v. Gordon GREEN and Fruehauf Trailer Company, a Corporation, Respondents.
    No. 53128.
    Supreme Court of Missouri, In Banc.
    Jan. 22, 1968.
    Rehearing Denied Feb. 12, 1968.
    Gerritzen & Gerritzen, by Ray A. Ger-ritzen, St. Louis, for plaintiff-appellant.
    Robert H. Burns, Clayton, for respondent, Green.
    F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent, Fruehauf Trailer Co.
   EAGER, Judge.

This action for personal injuries arises out of the same automobile collision as did the case of Bell v. Green and Fruehauf Trailer Company, Mo., 423 S.W.2d 724, and the same parties are defendants. Our opinion in that case is filed concurrently with this opinion. The collision was between a car operated by one Becker and a tractor-trailer of defendant Fruehauf; for all practical purposes the car was owned by Green, who was a rear seat passenger. Both Green and Becker were minors.

This case was tried one week after the Bell case, in the Circuit Court of the City of St. Louis, but in a different division. The jury, as in the prior case, returned a verdict against Green ($10,000) but in favor of defendant Fruehauf. The trial court set aside the judgment against Green and entered judgment in his favor, upon the theory that no case had been made against that minor defendant; it overruled plaintiff’s motion for judgment or for a new trial against Fruehauf. Plaintiff appealed. The St. Louis Court of Appeals affirmed, and we subsequently transferred this case and the Bell case to this Court for review. As in the Bell case, plaintiff’s application for transfer asked only that we transfer her appeal “as to Defendant Gordon Green to the Supreme Court of Missouri * * We rule, as we did in the Bell case, that the plaintiff has thus affirmatively abandoned her appeal as to Fruehauf.

The two cases were argued here at the same time. We have examined the present transcript in full, and find no substantial differences between the evidence in this case and that in the Bell case. The facts were fully related in that opinion and the issues between plaintiff and defendant Green were stated, discussed and determined. Our rulings and our opinion there govern this case in all particulars.

For the reasons stated in the opinion in Bell v. Green and Fruehauf Trailer Company, a corporation, the judgment in favor of defendant Gordon Green is reversed and the cause as to him is remanded. The judgment in favor of defendant Fruehauf Trailer Company is affirmed, but it should be held in abeyance pending a final disposition of the case against defendant Green. The costs of this appeal are taxed equally against the plaintiff and defendant Green.

All concur except SEILER, J., who concurs in result for reasons appearing in concurring opinion filed in Cause No. 53129.

On Rehearing

PER CURIAM.

For the reasons stated in a per curiam filed this day in Bell v. Green et al., Mo., 423 S.W.2d 724, the motion of Plaintiff-Appellant for the adoption of the concurring opinion of SEILER, J., or for a rehearing is overruled, and the motion of Defendant-Respondent Green for a rehearing is overruled.


author: HENLEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Luther WILLIAMS, Appellant.
    No. 52903.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   HENLEY, Presiding Judge.

Luther Williams appeals from a judgment entered March 9, 1967, imposing a sentence of ten years on his conviction by a jury of robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.135, RSMo 1959, V.A.M.S. We affirm.

Jackson Audrain Johns testified that on the night of May 27, 1966, shortly after nine o’clock, he was walking north on Harrison street, north of Linwood street, in Kansas City, Missouri, when he saw two colored men step out from behind a retaining wall of a parking lot and walk south toward him; that they walked up to him and stopped, one on each side of him; that one, the defendant, had a gun in his hand; that defendant’s companion struck him (Johns) in the eye, knocking him down; that while he was lying on the sidewalk, this man struck him again in the face and defendant immediately struck him in the back of the head with the gun; that defendant took his (Johns’) billfold from his left back pocket after which the assailants ran east toward Troost street; that his billfold contained his driver’s license and $303 in currency. He identified defendant and his companion later that night in a “line up” at police headquarters; he also identified defendant and the gun used in the robbery at the trial. He further testified that when the two men left he got up and walked south to Linwood where he found a policeman and reported the assault and robbery, describing his assailants; that he was taken to a hospital later that night for treatment of severe injuries to his eye.

Patrolman Robert Thornburg of the Kansas City, Missouri, police department testified that Mr. Johns found him on Linwood between Harrison and Troost and reported that two colored males had attacked and robbed him a few minutes before; that Mr. Johns “* * * was in a somewhat disheveled condition * * * ” with “ * * * blood on his shirt * *;” that before meeting Mr. Johns he had observed two colored males walking southwest across Linwood near Troost; that after the report from Mr. Johns, he immediately reported the robbery by radio and requested that any police cars in the vicinity look for and stop the two suspects he had seen earlier crossing Linwood; that he left Mr. Johns and walked east to Forest street and south on Forest a short distance where he found defendant and his companion in the custody of police officers, being searched; that as he walked up to this scene he “ * * * discovered some money lying on the ground in the leaves * * *,” Mr. Johns’ billfold containing his driver’s license, and a revolver, all on the ground three to five feet from defendant. The place of apprehension of defendant and his companion was about two or three blocks from the scene of the robbery.

Mr. Johns further testified that the area of the robbery was lighted by light from a parking lot approximately thirty feet distant; that he identified his two assailants from their clothing and by the size and shape of their'faces; that at police headquarters, before the “line up,” the police told him “ * * * they had men in the show up room and they wanted me to look at them. That is all I remember them saying.”

Defendant’s first point relied on is: “In his motion for a new trial defendant assigned as error that the verdict of the jury was against the weight of the evidence and was based on bias and prejudice.” The words we have italicized are the exact words of the first ground alleged in his motion for new trial. This assignment of error is not sufficient to preserve anything for appellate review. Rule 27.20, V.A.M.R.; State v. Kukovich, Mo., 380 S.W.2d 324, 326 [6-7] and cases there cited.

In the argument portion of his brief on this point defendant says that the evidence is not sufficient to sustain the conviction, that the state failed to make a submissible case of first degree robbery. He argues, that the evidence is insufficient to support the conviction without Mr. Johns’ inden-tification of him at the trial; that Mr. Johns’ in-court identification of him should have been excluded, because it was “tainted” by Mr. Johns’ identification of him in the lineup at police headquarters in that he was without counsel at the lineup. In this connection he cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.E.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, frankly admitting that the Wade and Gilbert cases decided June 12, 1967, are not applicable, because, as held in the Stovall case decided the same day, they “ * * * affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date.”

Aside from the fact that the assignment of error contained in the first point of defendant’s brief preserved nothing for review, the testimony related above demonstrates that the evidence is sufficient to sustain the conviction. State v. Smith, Mo., 298 S.W.2d 354; State v. Pruett, Mo., 342 S.W.2d 943; State v. Moss, Mo., 316 S.W.2d 539.

The other point briefed is: “The court erred in failing to discharge the jury and to declare a mistrial when the attorney for the state, during his closing argument, made prejudicial and improper arguments to the jury over the objections of the defendant.” The point is in exactly the same language as the second assignment of error in defendant’s motion for new trial. From the argument portion of his brief we learn that his specific contention or point is that during closing argument counsel for the state commented on defendant’s failure to testify. That portion of the state’s argument to which defendant refers, defendant’s objection, and the court’s remark or ruling, are as follows:

“Now, counsel for the defense never once denied that the defendant had committed this crime, and I think that—
“MR. WILSON: (Interrupting) I am going to object to that, Your Honor.
“THE COURT: Yes, I think—
“MR. WILSON: (Interrupting) It certainly is a misstatement.”

Defendant did not object to the argument on the ground he now raises or, for that matter, on any ground; he did not request the court to instruct the jury to disregard that portion of the argument; he did not move that a mistrial be declared and the jury be discharged; he did not even call this ground to the attention of the trial court by specifying it in his motion for new trial. Therefore, his contention in this court was not preserved as a point for appellate review. State v. Armstead, Mo., 283 S.W.2d 577, 582 [13]; State v. Cheatham, Mo., 340 S.W.2d 16, 20 [11]; Rule 27.20, V.A.M.R. We decline defendant’s invitation to consider the point under the plain error rule, Rule 27.20(c). While the court did not clearly sustain the objection, its remark indicates that it would have done so, specifically, had it not been interrupted by counsel for defendant. Moreover, the remark of the court was treated by state’s counsel and by defense counsel as a sus-tention of the objection, because the subject of that portion of the argument was not referred to again, and defense counsel requested no further action by the court. Furthermore, the argument was not a direct or indirect reference to defendant’s failure to testify. State v. Hayzlett, Mo., 265 S.W.2d 321, 323-24 [3,4]; State v. Cox, Mo., 352 S.W.2d 665, 670 [7,8].

Examination of the record as required by Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.