author: JOHNSON, Justice.

text:
    R. R. HUTSON et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 23.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Sept. 13, 1967.
    Rehearing Denied Oct. 11, 1967.

      MacNaughton, Brady & Marlatt, Thomas O. McWhorter and Eugene Brady, Houston, for appellants.
    Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, and Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellee.
   JOHNSON, Justice.

This is a suit by R. R. Hutson and wife, Jewel Evon Hutson for personal injuries sustained by the said Jewel Evon Hutson and for property damage to the automobile of the said plaintiffs; the suit is further by Ralph Billings, Jr., who was a minor at the time of the institution of the suit but who is now an adult and Ralph Billings, individually, for personal injuries sustained by the said Ralph Billings, Jr.

The claimed injuries and damages resulted when the frame of an automobile in which the plaintiffs were riding collided with a sanitary manhole casing which protruded from the surface of the traveled portion of a public street in the limits of the City of Houston. The case was tried before a jury and at the conclusion of plaintiff’s testimony, the defendant moved the court to withdraw the cause from the jury and to render a judgment for the defendant, City of Houston, against all of the plaintiffs which motion was sustained. Judgment was entered for the defendant on the ground that the notices filed by the plaintiffs with the City of Houston were insufficient to comply with Article IX, Section 11 of the Charter of the City of Houston. It is from the aforesaid judgment that the appellants, plaintiffs below, have perfected appeal.

It is apparently undisputed in the testimony that in the early evening or semidarkness of the day in question, an automobile being driven by the plaintiff, R. R. Hutson, in which Jewel Evon Hutson and Ralph Billings, Jr., and the two Hutson children were riding, was proceeding north on Lake Street in the City of Houston approaching the intersection of Lake Street and Richmond Avenue. As the automobile approached the intersection at a slow rate of speed and with its lights on, the driver saw an obstruction protruding from the surface of the street near the center of the traveled portion thereof, and to prevent his left front wheel from striking the object, he suddenly turned his car to the left so that the wheel of his automobile would not hit it. However, the object was too high for the body of the car to clear it and the “A-frame” of the car struck the object, which was subsequently determined to be a manhole casing. According to plaintiff’s testimony, the collision caused the automobile to stop suddenly throwing the passengers about in the automobile and producing the injuries and damages complained of. The manhole casing protruded approximately six inches above the dirt surface of the street, according to the testimony of the police officer who investigated the accident.

Article IX, Section 11, of the Charter of the City of Houston regarding the notice of claims against the City for damages provides as follows:

“Before the City of Houston, shall be liable for damages of any kind, or for injuries to or destruction of property of any kind, the person injured * * * shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within 90 days after the same has been sustained, stating in writing such notice when, where, and how the injury or destruction occurred ⅝ ⅝ * a

Pursuant to this provision of the Charter of the City of Houston, the plaintiffs filed their notices of claim with the City’s Secretary’s office. The notices of claim state that the automobile in which plaintiffs were riding “was abruptly and suddenly halted by a fixed object in the middle of the said Lake Street, to-wit: a manhole, said object protruding upwards, leaving insufficient space for an automobile to pass over it” and that the impact caused the plaintiffs to be thrown violently about in the automobile causing the personal injuries complained of. Included in Article IX, Section 11 of the Charter of the City of Houston is the requirement that the notice state “Where and when and how the injury or destruction occurred.”

In the case at bar there is no question of variance of the notices as was presented in Ramundo v. City of San Antonio, Sup., 416 S.W.2d 395. See particularly the analysis of this point in the San Antonio Court of Civil Appeals opinion in the City of San Antonio v. Ramundo, 411 S.W.2d 428. No contention was made that the notices were not timely or that they did not sufficiently state “when” and “where” the claimed injury or destruction occurred. The sufficiency of the notice to comply with the “how” requirement of Article IX, Section 11 of the Charter of the City of Houston was contested and it was on this ground that the trial court’s judgment for the defendant was entered. The court’s judgment recites that “ * * * The court being of the opinion that such motion should be sustained on the grounds stated in such motion that the claims filed by plaintiffs Jewel Evon Hutson and Ralph Billings, Jr. with the Mayor and City Counsel of the City of Houston were insufficient to comply with Article IX, Section 11 of the Charter of the City of Houston, and only upon such grounds, and that judgment should be for the defendant, City of Houston * *

The purpose of the notice provision in the City Charter is to give the City an opportunity to investigate while the facts are fresh and conditions remain substantially the same, thereby enabling the City to guard against fraudulent and unfounded claims and to settle the claim or prepare for trial. City of Waco v. Landingham, Tex.Civ.App., 158 S.W.2d 79, err. ref.; City of Houston v. Holden, Tex.Civ.App., 336 S.W.2d 193; err. ref., n. r. e.

In this instance, the notice states facts from which a conclusion of negligence can clearly be drawn. It is not necessary that the legal consequences of such facts be set out. City of Houston v. Hagman, Tex. Civ.App., 347 S.W.2d 355, err. ref., n. r. e. Nothing of benefit to the City would have been added by stating in words that the City was “negligent” in causing and permitting such obstruction to be and continue within the traveled portion of the street. If true, the facts set out in the required notice gave the City full notice as to “how” the injuries occurred. Nothing more is required.

As the court stated in the City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App.1964 err. ref., n. r. e.) at p. 29, “The provisions of the City Charter are not such as to require the injured party to state the acts and omissions of negligence he expects to rely upon in court with the same particularity and meticulosity that may be required in the pleadings. 62 A.L.R.2d 340, at 403; City of Houston v. Holden, Tex.Civ.App.1960, 336 S.W.2d 193, writ, ref., n. r. e.; Perry v. City of San Diego, 80 Cal.App.2d 166, 181 P.2d 98.”

As the court stated in Hagman, “There must at least be substantial compliance with the statute. The description of the cause or circumstances of the injury must be sufficient to direct attention with reasonable certainty to the substantial defect or act of negligence for (which) such recovery is demanded. 43 C.J. 1200.” We hold in the instant case that the notification given to the City of Houston substantially complied with the statute, did so with reasonable certainty and was sufficient.

It is fundamental, however, that before a City may be held liable for an injury caused by a defect in the street, the City must have had actual or constructive notice of such defect. City of San Antonio v. Esquivel, 163 Tex. 222, 353 S.W.2d 410. (Tex.Supp.1962); City of Houston v. Watson, 376 S.W.2d 23, (Tex.Civ.App.1964, err. ref., n. r. e.).

In this instance the record reveals an approximate six-inch protrusion of the manhole casing in the street and nothing more. There is no showing as to the length of time the condition existed or might have existed. There is no showing as to who or what caused or might have caused the condition. There is no testimony of any previous incidents or accidents at the location of the street and no evidence to indicate that the City had been informed in any way or had any knowledge whatsoever of' the condition. The- only testimony on this subject was contained in the answer to an interrogatory which was to the effect that the condition on the street was “good as far as known to the defendant” and that the defendant had no knowledge of the street being under repair at the time.

The record is likewise devoid of any testimony that would impute implied or constructive notice to the defendant. The record is silent on how long the condition existed or might have existed and there is no indication in the record that those charged with the supervision and superintendence of the street could, by the exercise of reasonable care and diligence, have. known of the defective condition. 40 Tex. Jur.2d, pp. 328-331, §§ 639, 640.

As the plaintiff did not meet the fundamental burden of proof, the directed verdict as requested by the defendant in his motion after plaintiff rested, was proper. This is true even though the reason assigned by the court for the judgment was erroneous. Lance v. City of Mission, 308 S.W.2d 546 (Tex.Civ.App.1958, error ref. n. r. e.); Anthony v. Creech, 303 S.W.2d 414 (Tex.Civ.App.1967, error dism.); Flores v. Logan, 307 S.W.2d 813 (Tex.Civ.App.1957, error ref. n. r. e.).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FRASER, Chief Justice.

license: Public Domain

text:
    CITY OF MIDLAND, Texas, Appellant, v. Leonard E. WALLER et al., Appellees.
    No. 5845.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 6, 1967.
    Rehearing Denied Sept. 27, 1967.
    J. M. Nuessle, City Atty., Midland, Tex., for appellant.
    Kerr, FitzGerald & Kerr, and Leonard Howell, Midland, Tex., for appellees.
   OPINION

FRASER, Chief Justice.

This is an action filed by plaintiff-appellant, City of Midland, Texas, against Leonard E. Waller, a contractor, and The Travelers Indemnity Company. The trial court rendered summary judgment that the plaintiff take nothing.

It appears that after advertising for competitive bids, the appellant entered into a general construction contract with appellee, Leonard E. Waller, to construct a swimming pool in one of the appellant’s public parks. The performance bond was furnished by appellee Travelers Indemnity Company. The structure was substantially completed about September 15, 1963 and, subsequently, the appellant’s architect issued a Certificate of Completion, and final payment of the contract price was made by appellant to Waller. In November, 1965, appellant filed this case against appellees, alleging that the swimming pool was improperly constructed resulting in damages and expenses for needed repairs, and asked for judgment against both the contractor and the Travelers Indemnity Company. It seems that there was a one-year warranty involved in this transaction, but such is not here concerned, as appellant does not appear to attempt to recover from Waller under that feature and it is evident that the year had elapsed before any action was taken. Both appellees filed Motion for Summary Judgment, and Travelers Indemnity Company also maintained that they were not liable because suit was not filed within one year from September IS, 1963.

The trial court declined to specify any particular contention of either defendant as the basis for the judgment that appellant take nothing.

The appellant has alleged a number of points of error. Appellees’ first counterpoint states that this case should be affirmed because the contract upon which appellant’s claim was based provided that the architect’s decisions were final as to all matters sued upon by the appellant herein, and therefore there could be no material issues of fact to be decided and, as a matter of law, appellees were entitled to summary judgment as entered by the trial court.

We have gone through the briefs and the record in the case and have reached the conclusion that the decision of the trial court was correct.

We include pertinent portions of the original contract between the contractor and the appellant. One of these pertinent provisions is as follows:

“1:07 AUTHORITY OF ARCHITECT
All work shall be performed under the supervision of Architect or his authorized representative in a workmanlike manner and to his satisfaction.
He shall decide all questions which arise under this work regarding the following, and his decisions and estimates shall be final.
A.Quality and acceptability of the following :
1. Materials furnished and/or proposed for use.
2. Work performed.
3. Manner of performance.
4. Rate or progress of work.
5. Sequence of construction.
B. Interpretation of Plans, Specifications and Contract Documents.
C. Acceptable fulfillment of the Contract.
D. Compensation.
E. Mutual rights between Contractors and Sub-Contractors under these Specifications.
F. Suspension of the work.
G. Determination of amount and quality of work performed and materials furnished.
His estimate in such an event as listed under subparagraph ‘G’ shall be a condition precedent to the right of the Contractor to receive money due him under the Contract.”

In pursuance of the language and clear intent of this portion of the original contract, it is obvious that all work was to be performed under the supervision of the architect, and the architect was charged with deciding whether or not the work and materials were furnished according to the plans, specifications and other documents involved in this contract. Then we find in the transcript a letter from said architect to appellant which states, inter alia:

“We ask by this letter to notify you and the City Council that Mr. Waller’s completion of the items as ¿numerated above bring to conclusion and fulfillment the obligations of his contract with the City in constructing the 50 meter pool at Alamo Park. A one year guaranty-warranty period covering workmanship and certain equipment items remains in effect until August 1, 1964.
“It is our recommendation that final payment of any remaining funds due Mr. Waller be authorized at the next meeting of the City Council.
Very truly yours,
NEUHARDT and BABB architects
/s/ Charles H. Neuhardt Charles Neuhardt, AIA”

It further appears that the appellant itself prepared the contract. We believe that when the architect was given the authority to supervise and approve or disapprove performance of this job in the original contract, it was intended by the parties that he should do just that. His letter to the City hereinabove quoted indicates that he was satisfied with the work and the materials used, and recommended that the City pay the contractor. For this reason we will not take up the many items of damage and improper material alleged by the City-appellant, as these matters were obviously left to be taken care of under the supervision and authority given and granted to the architect. When the City paid appellee Waller, it was merely following the architect’s statement that Waller had built the swimming pool in accordance with the contract. We again point out that the City here makes no effort to attempt to recover under the one-year warranty, and it is true that it didn’t file any suit within one year, but filed this suit in the year 1965.

It is our belief that this contract is clear and unambiguous and sets up a contractual relationship between the City of Midland and the contractor, Leonard Waller who, in turn, executed a performance bond through Travelers Indemnity Company; and that the entire construction and completion of the swimming pool was under the supervision of the architect, who obviously had authority to approve or disapprove. He did approve the job and recommended payment by the City. We see no fact matters of any material consequence herein contained. The decisive matters are all documentary. Whether the pool was leaking and in bad shape at the time the suit was filed is another matter, as it had already been accepted by the City and paid for. It has long been held that when an architect has been given final determination of matters similar to those herein involved, and his findings and recommendation are accepted, the contractor or builder is then exonerated by the very terms of the contract and the action of the architect. In other words, the architect’s decision is final. Kettler Brass Mfg. Co. v. O’Neil, 57 Tex.Civ.App. 568, 122 S.W. 900 (wr. ref.) ; Houston Fire & Cas. Ins. Co. v. Riesel Ind. School Dist., Tex.Civ.App., 375 S.W.2d 323 (n. r. e.). Again we should like to point out that the decisive matters here are found in the contract and the letter of the architect, so there is no apparent material fact dispute.

With regard to the co-appellee, Travelers Indemnity Company, their liability, of course, depended on the liability of the prime contractor, and it having been certified by the authorized architect that he had performed the job in accordance with the contract, and more than a year having elapsed under the warranty, the Travelers Insurance Company is also entitled to its summary judgment.

We have not discussed all of the points and counter-points of the various parties, as we feel this is a clear-cut contractual, documentary matter, and that the first counter-point of contractor Leonard Waller sets this matter up, and the arguments thereunder are decisive.

In summation let it be said that plaintiff-appellant, The City of Midland, entered into a contract with Leonard Waller to construct a swimming pool, and placed the supervision and authority for the manner of construction (according to the specifications and contract) in the hands of the architect. The architect having supervised and approved the work and recommended payment, the matter was thus concluded. As we have said before, the matters involved are all documentary and non-controverted; therefore we feel that the trial judge was well within his authority in granting the summary judgment as he did.

For these reasons, all of appellant’s points are overruled and the decision of the trial court is in all things affirmed.


author: BARRON, Justice.

text:
    Milton O. MOORE, Appellant, v. Johnle C. WERNER et ux., Appellees.
    No. 12.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Sept. 13, 1967.

      James P. Wallace, Houston, for appellant.
    John C. Werner, Houston, for appellees.
   BARRON, Justice.

This action was filed in the trial court by appellees, Johnie C. Werner and wife, purchasers of the house involved, against Milton O. Moore, contractor, the appellant. Plaintiffs, Werner, alleged various defects in workmanship and materials in the house which they purchased from Moore and particularly alleged inferior concrete used in the construction of a pea gravel patio and driveway. The remaining .items complained of were abandoned by plaintiffs and their entire suit involves the matter of the driveway and patio. Plaintiffs sought damages in the sum of $955.00 by reason of defective workmanship and materials in the house they purchased.

Trial was to the court. At the conclusion of the testimony the trial judge rendered judgment for plaintiffs, Werner, in the sum of $900.00, and made findings of facts and conclusions of law which were duly filed. The trial court found that there was an express warranty made by defendant contractor to plaintiffs regarding the construction of the house in a good and workmanlike manner; that there was an implied warranty of proper construction existing by law concerning the alleged defective and inferi- or patio and driveway, and that plaintiffs’ damages amounted to the sum of $900.00. Appellant, Moore, perfected his appeal to this Court.

Appellant attacks the trial court’s judgment on grounds of no evidence. He contends by his first point that there is no evidence to support the trial court’s conclusion that the appellant expressly guaranteed or warranted the work and materials for a period of one year. Both plaintiffs testified that the defendant did make such an oral warranty, and that they both “assumed” that a warranty existed for a period of one year. But the plaintiffs went to trial alleging and proving a written contract consisting of an earnest money contract, with description of materials to be used in the construction of the house, and plans and specifications. Nowhere in such instruments do we find a written or express warranty concerning the construction of this house. The oral testimony which bears upon this subject, if otherwise adequate at all, is incompetent and without probative force. This court will disregard any oral testimony of the parties received in violation of the parol or extrinsic evidence rule. Ross & Sensibaugh v. McLelland, 262 S.W.2d 205, 209 (Tex.Civ.App.) error ref., n.r.e.; Patton v. Crews, 264 S.W.2d 467, 470 (Tex.Civ.App.) error ref. n. r. e.; 23 Tex.Jur.2d, p. 504, Sec. 343.

While plaintiff Werner, an attorney trying his own case, stated to the trial court that an express warranty was agreed to before, during and after the date of the written contract, there was no competent evidence to sustain such a theory, and clearly there was no evidence to prove a parol modification of the written contract. His statement to the court as counsel will not suffice. We sustain appellant’s first point of error.

Appellant’s points two to six inclusive deal with the findings of the trial court to the effect that an implied warranty of fitness existed; that it was the duty of appellant to construct the house in a good and workmanlike manner, and that adequate materials were required to be used. The trial court made various findings that the materials used were defective, that the workmanship was defective, and that the driveway and patio were not subject to any abuse or to any use out of the ordinary. The trial court concluded that the rule of implied warranty of proper construction applies to this case, and that such warranty renders the appellant liable for damages. The appellant, contractor, was bound to do his work in a good and workmanlike manner. Metropolitan Casualty Co. of New York v. Medina Rural High School Dist. No. 5, S3 S.W.2d 1026, 1028 (Tex.Civ.App.), writ dismd.; 10 Tex.Jur.2d, Sec. 17, p. 17. And the contractor must furnish adequate materials required to do the job. See New Home Construction Corp. v. O’Neill, 373 S. W.2d 798 (Tex.Civ.App.), ref., n. r. e.

The testimony of witness, Fleming, was to the effect that there was some mud or clay in the materials and there was only a thin layer of gravel or cement over this area of the driveway; that after a certain period of time it washed out, and there were holes as big as three or four inches around. In other areas there were holes as large as twelve or fourteen inches in width, where gravel was coming out. ■ This, according to the witness, was caused by mud or dirt from beneath deposited by the workmen while they were doing the job. This condition existed throughout the driveway and patio areas. His testimony was also to the effect that the quality of the pea gravel and driveway was poor, and that all of the work would have to be torn out to do the job properly.

Fleming, who qualified as an expert witness, further testified that $1,889.00 would be required to correct the defects.

The parties in this case are the original parties to the contract. We think it is established in this State that a seller from whom property is purchased impliedly warrants that such property is reasonably fitted for and will reasonably perform the service for which it was sold. Fyfe Cement & Supply Co. v. Hacker, 372 S.W.2d 735 (Tex.Civ.App.), writ dismd.; Johnson v. Agricultural Bond & Credit Corp., 114 S.W.2d 385 (Tex.Civ.App.) no writ, and cases cited. Especially is this true when the seller knows that the property was bought for a special use or for a special purpose. 50 Tex.Jur.2d, Sec. 159, p. 468. Many of the authorities cited involve personalty, but we see no reason for any distinction between the sale of a new house and the sale of personalty, especially in a suit between the original parties to the contract, one of whom constructed the house, in question. It was the seller’s duty to perform the work in a good and workmanlike manner and to furnish adequate materials, and failing to do so, we believe the rule of implied warranty of fitness applies. Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474,476; Mann v. Clowser, 190 Va. 887, 59 S.E.2d 78, 84; 13 Am.Jur.2d, p. 29, Sec. 27. The trial court determined the issues against appellant. We are bound by the trial court’s findings and conclusions if there is any competent evidence to sustain them. We accordingly overrule appellant’s points of error 2-6 inclusive.

Appellant’s seventh point of error asserts that there is no evidence to support the trial court’s findings that appellees were damaged in the sum of $900.00. We overrule this contention. The Witness Fleming testified fully as to the cost required to remedy the defects in the patio and driveway. It is well established that the measure of damages for construction defects which can be remedied without impairing the building as a whole is the reasonable cost of remedying the defects. That $900.00 is reasonable, we believe the evidence in this case fully establishes. The evidence is sufficient. New Home Construction Corp. v. O’Neill, 373 S.W.2d 798, 800 (Tex.Civ.App.) ref., n. r. e.

The judgment of the trial court is affirmed.


author: EAGER, Judge. HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Clinton Edward HAWKINS, Appellant.
    No. 51078.
    Supreme Court of Missouri, In Banc.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, David Dempsey, Special Asst. Atty. Gen., Clayton, for respondent.
    H. L. C. Weier, Dearing, Richeson, Weiér & Roberts, Hillsboro, for appellant.
   EAGER, Judge.

Defendant was charged by amended information as an habitual offender, § 556.280, with robbery in the first degree by means of a dangerous and deadly weapon. Section 560.120. A jury found him guilty as charged and, after an unavailing motion for new trial, he was sentenced by the court to confinement in the custody of the Department of Corrections for a period of ninety-nine years. Section 560.135. He appeals.

The case has pursued an unusually lengthy course since sentence was imposed. Additional time was granted for filing the transcript; thereafter the case was submitted and an opinion was written in Division Two of this Court. Upon a dissent it was transferred to the Court In Banc and argued there twice. Prior to the last argument we ordered that counsel be appointed to represent defendant upon the appeal, and a continuance was granted upon his request. Thus, highly competent counsel briefed and argued the case for the appellant prior to the last submission. We consider only the questions so presented. The points raised involve the evidence to such an extent that we shall need to state the facts in some detail.

On the morning of February 28, 1964, a man driving an automobile and wearing a stocking mask approached the Farmers Bank of Antonia in Jefferson County, and stopped in front of it. Shirley Recar, a teller, was looking out the window from her teller’s counter at the front of the bank, saw him and screamed “here comes a man wearing a mask, someone lock the door”; thereupon she ran to the rest room in the rear and appeared no more in the sequence of events. Wilma Otto, assistant cashier, was at her window or counter, presumably the next one; she picked up her purse and took out some keys; the masked man walked in with a revolver in one hand and a brown satchel in the other. He came directly to her window, laid the gun on her counter and said “move back”; Wilma took one step back and the man said “move back farther”; she did. The man then climbed over the counter and, with the gun in his hand, said to her “move back farther or I’ll blow your head off”; apparently she did so, and the man immediately began taking the money out of the cash drawer next to hers, putting it in his satchel; at that time he told her to go to the back office which she did, since he was pointing the gun at her; at this time the telephone rang and he told her not to answer it, but she came back into the bank proper and then saw that he was still taking money from the “cash drawers.” Wilma had tripped the burglar alarm and expected one or more of the business neighbors to come; at this time she saw Mr. Freedman (one of such neighbors) outside and yelled to him “run Mr. Freedman, it’s a holdup.” At that time the robber left the bank and was intercepted by Mr. Freedman who, with some rather delayed help, subdued and captured him. One shot was fired from the revolver and it penetrated the bank window, shattering glass on Wilma. Five loaded shells remained in the gun. The money was recovered, $5,712, the precise amount missing from the cash drawers. At the trial defendant was definitely identified as the robber by certain of those who saw him after his mask was removed.

Granville Cook, cashier of the bank, was in his office about 25 feet from the door when the robber entered; he saw the man enter and tripped the burglar alarm in his office. He could not and did not (from his position) see the man actually taking the money from the cash drawers, and he apparently did not leave his office until the man left. Various exhibits were identified at the trial, but they are not material to our discussion.

The defendant did not testify; the evidence in his behalf consisted only of the testimony of his mother and wife to the effect that he had suffered two head injuries (one when a child) and that there were periods when he would seem dazed and uncommunicative for days at a time; also, that he had bad headaches and at times did not have any recollection of where he had been. A psychiatrist from the Farmington State Hospital, Dr. Dor-onila, where defendant had been kept for more than a month for examination, testified that all of defendant’s reactions were within normal limits, that he had no psychosis and, in substance, that no mental disease or defect was found. The jury was fully instructed on that subject pursuant to Section 552.030.

The points briefed and argued here all concern Instruction No. S-l, which, in its pertinent parts, was as follows: “You are instructed that if, upon consideration of all the facts in the case, in the light of the court’s instructions, you believe and find from the evidence, to a moral certainty and beyond a reasonable doubt, that at the County of Jefferson and State of Missouri, on the 28th day of February, A.D. 1964, the defendant, Clinton Edward Hawkins, did feloniously and wilfully, by means of a dangerous and deadly weapon, towit: a revolver, by force and violence or by threats of force and violence to the person of Granville Cook, Wilma Otto, and others, employees, clerks, agents and officers of the Farmers Bank of Antonia, if you so find, and against their will, if you so find, and by putting them, or any of them, in fear of any immediate injury to their person, did rob, steal, take and carry away from their presence, person and possession, Five Thousand Seven Hundred Twelve Dollars ($5,712.00) lawful money of the United States, or any part of said sum of money, * * *.

“The word ‘robbery’, as used in these Instructions, means the felonious taking of the money or property of another, of any value whatever, from a person, or in his or her presence, or from his or her possession, and against his or her will, by violence to his or her person, or by putting him or her in fear of an immediate injury to his or her person.”

We shall note first certain well established principles as fixed by our decisions, and then consider appellant’s points. Section 560.120 proscribes one offense, i. e., first degree robbery, which may be charged or proven as having been accomplished in either of two ways, — namely, by violence to the person or by putting him or her in fear of some immediate injury. The State need not prove both. State v. Van Horn, Mo., 288 S.W.2d 919; State v. Thompson, Mo., 299 S.W.2d 468; State v. Pope, Mo., 364 S.W.2d 564; State v. Johnstone, Mo., 335 S.W.2d 199; State v. Reeder, Mo., 394 S.W.2d 355; State v. Burns, Mo., 280 S.W.2d 119. And it has been held that where both alternatives are submitted in the conjunctive with evidence to support only one, there is no error, for the State has assumed a greater burden than necessary. See the discussion in State v. Neal, Mo., 416 S.W.2d 120, opinion filed June 12, 1967; and see also State v. Burns, supra; State v. Cusumano, Mo., 372 S.W.2d 860. We are not concerned with that proposition here and need not rule on it, for we hold that on this record there was substantial evidence of both violence and of putting in fear. Except in Neal, supra, the Missouri courts do not seem to have held clearly that conduct such as we have here constitutes “violence.” We so hold now. The following authorities tend to support that holding: State v. Rose, Mo., 325 S.W.2d 485; State v. Hall, Mo., 7 S.W.2d 1001; State v. Broderick, 59 Mo. 318; State v. Eddy, Mo., 199 S.W. 186; 46 Am.Jur., Robbery, §§ 14 — 16, pp. 145-147. Even an assault may be committed without a striking or touching. Eddy, supra. According to accepted definitions, “violence” may consist of violent, menacing, turbulent, and threatening action or procedure. (Webster’s International Dictionary, 3rd Ed.), and particularly so if the actor possesses the obvious means of inflicting injury or death. Here, the flourishing and pointing of the gun, climbing over the counter, ordering the assistant cashier back (twice) and threatening to blow her head off, constituted substantial and submissible evidence of violence under § 560.120. The decision in State v. Vandament, Mo., 299 S.W.2d 532, was based on acts held to have occurred subsequent to the taking and to aid an escape, and the facts are therefore different. The purse snatching cases, as indicated in State v. White, 326 Mo. 1000, 34 S.W.2d 79, seem to be based upon the theory that the violence is not used to overpower the person, but merely to get the property. In any event, we do not regard them as binding or even persuasive here.

The specific complaints made of Instruction S-l are: (A) that it permitted the jury to find violence or threats of violence to persons not named; (B) that it permitted consideration of such as offered to persons not employees of the bank and after defendant had obtained possession of the money and was leaving; (C) that “threats of violence” are not a proper element of the offense of robbery, although perhaps evidence of intimidation; that the term should not have been used in the disjunctive with “violence,” and as used with the “loose references” to “others,” it was prejudicially erroneous; (D) that the submission of “putting in fear” as to different “victims” in the disjunctive allowed the jury to speculate and the submission was not supported by the evidence.

Points A and B may be considered as one. What counsel seems to suggest is that the language of the instruction permitted the jury to consider the scuffle between defendant and Mr. Freedman outside the bank as a part of the violence or threats upon which a finding of guilt might be based. It has been held that evidence of violence or intimidation used in effecting an escape after a robber had obtained possession of the property, was not sufficient to support a charge of robbery. State v. Vandament, Mo., 299 S.W.2d 532. See also State v. Holmes, 317 Mo. 9, 295 S.W. 71; State v. Parker, 262 Mo. 169, 170 S.W. 1121. Counsel is thus correct in suggesting that violence or intimidation used or effected by defendant on Freedman may not constitute an element of the offense of robbery. But this does not prove the instruction to be erroneous. The term “and others,” in the instruction was followed immediately by the words “employees, clerks, agents and officers of the Farmers Bank of Antonia,” and these words, as we construe them, clearly limited all such “others” to persons who were employees of the bank. The jury could hardly interpret the instruction otherwise; all the employees were inside the bank, and the instruction did not, as contended, unduly expand the consideration of “violence” or “threats of violence.”

(C) We agree with counsel that “threats of violence,” as such, do not constitute an element of first degree robbery. The authorities cited by him on this point indicate generally that an instruction is improper when it is broader than the evidence, or when it submits a different offense from the one charged. That may be conceded as a general proposition. We have held that that was substantial evidence of “violence” here, and hence a submission of that element would have been proper. But at the trial the State, in a multiplication of words, submitted a taking “by force and violence or by threats of force and violence.” The element of threats, submitted thus in the disjunctive, may “be evidence of intimidation or putting in fear” (as counsel for defendant concedes); but it is not the equivalent of violence. Hence, by that part of the submission the jury was only required to find the lesser of the two elements, i. e., an intimidation or a putting in fear, which actually was a mere duplication of the second phase of the total conjunctive submission, namely, “and by putting them, or any of them, in fear of any immediate injury * * *.” We hold that, although the first submission was thus insufficient as a submission of violence, it was mere surplusage or, at the most, harmless error. The reference to “others” was hot reasonably subject to the interpretation which counsel places upon it, as we have already indicated, and did not render the instruction erroneous.

(D) We now consider the submission of taking the property by “putting in fear”; the “them, or any of them,” as used in that part of the submission, necessarily referred back to “Granville Cook, Wilma Otto, and others, employees, clerks, agents, and officers” of the bank. Counsel say that this disjunctive submission (i. e., “them, or any of them,”) “allowed the jury to speculate as to the objects of defendant’s purpose and was not supported by the evidence.” This statement is not particularly clear to us. By reference to the argument, however, we see what is apparently the meaning. Counsel there says that, for one thing, the instruction permitted the jury to find defendant guilty by reason of having put Shirley Recar in fear although she never saw the robber outside his car; also, that by permitting the jury to find that fear was created in “others” in connection with the “episode” outside the bank it was erroneous. We have already eliminated this latter contention. It thus seems that the objection really is: that there was no evidence to support a finding of guilt based upon a “putting in fear” of Recar or Cook, because the money was not obtained by placing them or either of them in fear. If counsel means, conceivably, that there was no evidence that Recar and Cook were actually put in fear we deny the contention without difficulty. Recar immediately screamed and ran, and Cook, after seeing the robber enter, remained well out of the way in his office until the whole affair was over. Fear may be presumed in such instances, and need not be expressly shown. State v. Thompson, Mo., 299 S.W. 2d 468; State v. Kennedy, 154 Mo. 268, 55 S.W. 293; State v. Ball, Mo., 339 S.W.2d 783, 91 A.L.R.2d 1042; State v. Pope, Mo., 364 S.W.2d 564. Both the presumption and the testimony of Wilma Otto show that she was also placed in fear; her earlier testimony was to the effect that at the time it all seemed like a movie, but she later said that she guessed she was afraid and just didn’t realize it. She saw the gun, and followed defendant’s orders; as stated in State v. Thompson, Mo., 299 S.W.2d 468, at loc. cit. 474: “By all standards of logic it is not conducive to one’s sense of security and well being to be kept under the nose of an automatic pistol for 10 or 15 minutes, especially when one of the robbers has said to the victim: ‘Give me your money or I will shoot.’ Fear need not be shown expressly.”

The statute very obviously means that the fear created should have a direct connection with the obtaining of the property, but this does not necessarily require such proof as that of proximate causation in personal injury cases. In the usual robbery case only one victim is involved and the issue is simple; here the money belonged to the bank and it was the bank which was robbed; all three of the employees were jointly in charge of the money. Defendant did not merely take money from Wilma Otto’s drawer; he first took the money from “the cash drawer next to mine” (presumably Shirley Recar’s) and later was “still taking money from the drawers.” This was the hank’s money, not Otto’s, and no one employee had exclusive possession of it. There was substantial evidence and a presumption that all three employees were placed in fear, and defendant took the money from the possession or constructive possession of all three. The words of the statute, namely, “by putting him or her in fear," may equally be construed as the plural “them,” under the express direction of § 1.030. The jury was specifically required to find that defendant ' “did rob, steal, take and carry away * * ” the money by putting these persons “or any of them” in fear, and it was thus required to find that the taking resulted from the fear which it found to exist (be it to one person, two or three). The use of the term “or any of them” was certainly not to be recommended but its use was harmless under these circumstances, and it could not have misled the jury. We so hold, noting again that every one of the three was fairly shown to have been put in fear, and also that every one of the three was included in a joint possession and control of the money. See, generally: State v. Reece, Mo., 324 S.W.2d 656, 660-661. The evidence in this case was clear and wholly undisputed; the issue was simple. There was no real possibility of an acquittal on this evidence, unless the jury found the defendant not guilty by reason of mental disease or defect. It seems clear to us that the finding of guilt could not possibly have been influenced by any irregularity or surplusage contained in Instruction S-l. It was not a misdirection and it did not mislead the jury. The finding of defendant’s guilt is affirmed.

However, one further point remains for our consideration. Defendant was charged by amended information under our Second Offender Act, § 556.280. That section provides, insofar as it concerns our present question, that: “Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.”

The Court received, over objection; a document certified by the Department of Corrections to show prior conviction and imprisonment. That document is not shown in our transcript and we may not determine its sufficiency as proof. Thereafter the Court found that: “ * * * the defendant will, by the Court, be found to have been imprisoned in the penitentiary previously in accordance with the certification of the record, as shown in Exhibit #6.” This was not a sufficient compliance with the statutory requirement which is, as we construe it, that in order to make the act applicable the Court must find that the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary and that he had subsequently been imprisoned, fined, paroled or placed on probation therefor (in the alternative, to accord with the evidence). See, State v. Crow, Mo., 388 S.W.2d 817, and State v. Hill, Mo., 371 S.W.2d 278. The present findings do not follow the statute and we cannot rewrite it. Nor is it our function to make the findings here. The judgment is therefore reversed, and the cause will be-remanded in order that the trial court may bring the defendant before it, with counsel, at an appropriate time, for further consideration of the evidence already submitted on this issue, and of any such additional evidence as may be submitted, and thereupon to make appropriate findings as indicated in this opinion. If the trial court then finds one or more prior convictions, sentences, and imprisonment or parole therefor in accordance with § 556.280, it may proceed to grant allocution and to render judgment and impose such sentence as it deems proper; if not, then a new trial must be ordered, for the jury would then be entitled to assess the punishment. Such procedure is discussed at length in State v. Hill, Mo., 371 S.W.2d 278, at pp. 282-283.

Except as indicated, we find those parts of the record which we examine under Rule 28.02 to be sufficient. The judgment is reversed and the cause is remanded for further proceedings as indicated in this opinion.

FINCH, DONNELLY and STORCK-MAN, JJ., concur.

HENLEY, J., dissents in separate dissenting opinion filed.

HOLMAN, C. J., and SEILER, J., dissent and concur in dissenting opinion of HENLEY, J.

DISSENTING OPINION

HENLEY, Judge.

I respectfully dissent for the following reasons.

I find myself unable to agree with the majority holding that defendant’s conduct constituted “violence to the person” within the meaning of § 560.120. That section provides that the offense of robbery in the first degree may be committed in either of two ways, namely: (1) by violence to the person, or, (2) by putting in fear of some immediate injury to the person. ■ It is my opinion that in describing alternative methods by which the offense could be accomplished the legislature intended to and did make a distinction between the two; that the legislature understood and intended that each method have a separate, distinct meaning, and that one requires proof different from the other. As I see it, “putting in fear of some immediate injury to the person” is a step short of “violence to the person; ” it is a state of mind, a state of “fear” that some immediate physical injury which has not been wrought upon the person may be inflicted. I would hold that “violence to the person” means violence to the person, inflicted; some physical violence to or assault of the person, however slight; that it does not mean a display of “violence,” by threats or conduct, in the presence of the person causing fear of personal injury that may never be accomplished. The latter accords solely with “putting in fear of some immediate injury to the person,” the second method as distinguished from the first. The first method requires proof of infliction of physical violence; the second does not. I hold the opinion that it is this distinction that the legislature intended to make between the two methods. Having this opinion, I would hold that there was no substantial evidence in the record of violence to the person of the agents and employees of the bank.

However, I would hold that the evidence does support a taking of the bank’s money by putting Wilma Otto in fear of some immediate injury to her person. But, in submitting the method of taking by putting in fear, instruction S-l does not correctly state the law.

The statute proscribes a taking from the person of the agent in charge, against the will of the agent, by putting him or her in fear of some immediate injury to his or her person. It is the taking from the person and against the will of the agent in charge by putting that person in fear that the statute proscribes; not the taking from that person, against the will of one or more other agents of the owner by putting in fear “any [one or more] of them.” This instruction, by the use of the words “or any of them,” directs a verdict of guilty upon a finding by the jury of a taking of the bank’s money from Wilma Otto by putting someone else in fear of some immediate injury to his person. In other words, the instruction would authorize a verdict of guilty if the jury found that the taking from Wilma Otto was by putting either Granville Cook or Shirley Recar, or both, in fear, although the agent from whose person the money actually was taken may not have been in fear and the taking not against her will. Put another way, the instruction authorizes a verdict of guilty if any of the other agents of the bank were put in fear without a requirement that the jury also find that the taking was by putting the agent from whose person the money was actually taken in fear of some immediate injury to her person. In these respects the instruction misled and positively misdirected the jury as to the law of the case. Had the instruction required that the jury find that Wilma Otto, alone, as the agent from whose person the money was taken, was put in fear of some immediate injury to her person, or that all, Granville Cook, Shirley Recar and Wilma Otto, were put in fear, the instruction would not be subject to the objection noted.

For the reasons stated, I would reverse the judgment and remand the case for a new trial.

      . All references to statutes are to Revised Statutes of Missouri, 1959, and V.A.M.S.

      . The proof is that the bank’s money was taken from the possession and in the presence of Wilma Otto rather than from her person. This court has held that a charge of robbery from the person is satisfied by proof that the money was taken in the presence of the person. State v. Davis, Mo., 58 S.W.2d 305, 308-309 [8, 9], and cases there cited. Therefore, for brevity and clarity, in referring to the money having been taken from the person of Wilma Otto, I use the word “person” in the sense that it was from her possession and in her presence that the money was taken.

      . State v. Emmons, 285 Mo. 54, 225 S.W. 894, 895 [3].


author:
PRITCHARD, Commissioner.
      PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Audrey Loretta BATCHELOR, Appellant.
    No. 52676.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Robert D. Kingsland, Special Atty. Gen., Jefferson City, for respondent.
    Dan K. Purdy, Pierce, Duncan, Beitling & Shute, Kansas City, for defendant.
   PRITCHARD, Commissioner.

For armed robbery a jury found appellant guilty and assessed her punishment at fifteen years’ imprisonment in the Department of Corrections. Judgment and sentence followed the overruling of appellant’s motion for new trial. Appellant was represented by counsel throughout the trial and the same counsel was appointed by the court for this appeal, appellant being allowed to appeal as a poor person. Before judgment and sentence were imposed, appellant was accorded allocution.

Two points are presented by appellant in seeking reversal and a new trial. The first is that “Instruction No. 2 is fatally defective in that it does not require a finding that the ‘money and, or narcotic drugs’ allegedly taken were the property of Joe Eisberg, d/b/a Medical Arts Pharmacy as charged in the information and gave the jury a roving commission to convict the appellant of the taking of any money or property belonging to anyone.” The second is that “The court erred in failing to sustain defendant’s motion to strike testimony as to the identification of the defendant in the lineup when it became apparent that the defendant was the only woman exhibited.”

The information did charge the ownership of the property, $140.57 in money and $150.00 value of narcotic drugs (the latter value being added by amendment under the evidence during trial), to be in Joe Eisberg, d/b/a Medical Arts Pharmacy, and that the armed robbery was committed with a loaded .38 calibre Hopkins & Allen revolver upon one Melvin L. Rogers from whom the property was taken. Instruction No. 2 required the finding that appellant “either alone or knowingly acting in concert with another, did feloniously make an assault upon one Melvin L. Roger with a dangerous and deadly weapon, to-wit, a .38 Calibre Hopkins & Allen Revolver, loaded with gunpowder and leaden balls, and took and carried away any money and, or narcotic drugs from his person, or in his presence, and against his will,--by force and violence to his person, or by putting him in fear of some immediate injury to his person, with felonious intent to convert the same to her own use, without any honest claim to said money and, or narcotic drugs, and with intent to permanently deprive the said Melvin L. Roger, of his custody and control without the consent of the said Melvin L. Roger, if such be your finding, then you will find the defendant guilty of Robbery, First Degree and so find in your verdict.”

Appellant argues that when the allegation is made that the property taken belonged to someone other than the person robbed, it follows that the jury should be required to find the facts as alleged in the information in order to sustain a conviction on that information. As is noted, the information did allege ownership in Eis-berg ; the uncontroverted evidence was that he owned the property; the information further alleged that the property was taken from Rogers; and the evidence is uncon-troverted that Rogers had care and custody of such property. The purpose of alleging, proving and submitting for a finding by the jury of the ownership of property taken in an armed robbery is to show that the same is not in the accused, “as he cannot be held for converting his own property, also to bring notice to the accused of the particular offense for which he is called to answer and to bar subsequent prosecution of the accused for the same offense.” State v. Nelson, 362 Mo. 129, 240 S.W.2d 140, 142 [1-3]. This information informs appellant that the property was owned by Eisberg and was taken from Rogers. The evidence supports the allegation. The instruction, while not precisely and desirably requiring a finding that Eis-berg was the true owner, did require a finding that the property was taken by appellant without any honest claim thereto, and with intent to permanently deprive the said Melvin L. Rogers of his custody and control. This reasonably requires the finding that appellant had no title or ownership, and that Rogers did have some limited rights therein, i. e., care and custody so as to be a special owner with sufficient interest to support a robbery conviction. State v. Johnstone, Mo., 335 S.W.2d 199, 203; State v. Gilliam, Mo., 351 S.W.2d 723, 725; and State v. Wilwording, Mo., 394 S.W.2d 383, 388: “ * * * The facts specifically hypothesized in the instruction fairly required a finding that Wilkinson was at least one of those in lawful possession of the money, and that was sufficient.” Point I, having no merit, is overruled.

With respect to the second point, the facts bearing thereon and showing also pertinent details of the robbery are:

Joe Eisberg testified he owned the Medical Arts Prescription Shop, 4800 East 24th Street, Kansas City, Missouri, and made an inventory check of narcotics and value thereof which were taken from the shop on April 5, 1966, and he identified State’s Exhibit 1 from cost stamps placed on bottles containing narcotics which were in his safe.

Melvin Lee Rogers, a pharmacist, was employed on April 5, 1966, by the Medical Arts Prescription Shop, having control of the store since 1964. At about four o’clock on the afternoon of April 5, as he was filling prescriptions, two persons, a colored female and a colored male, started to enter the store, the lady first. They appeared to change their minds; the gentleman pulled her away from the door and they walked in front of the store window, on down the street, and in about two minutes later they reappeared walking in the opposite direction. At approximately seven-thirty o’clock that evening, the same man entered the store while Rogers was on the telephone. Rogers recognized him and saw that he had a gun down to his side, carrying it in his right hand. The man came back to Rogers, jammed the gun into his side and said, “This is a holdup.” As the man got up to Rogers, the same lady who had attempted to enter the store that afternoon entered with two other men. All four persons had weapons, and the lady walked up to Rogers and touched or punched him in his back with her gun. Rogers was taken to the rear of the store by the other man who there told him to get the money which was back there. The man finally decided it was not there so they went to the front of the store where the safe was located. They were all saying, “Shoot him, shoot him,” and were shoving him toward the front. The other two men were attempting to open the cash register in front of the prescription department. Rogers opened the safe at the front of the store and as he did so the woman took off her coat, laid down her gun, and took the narcotics out of the safe (value $150.00 to $160.00) putting them into a box. She then put her coat back on and got her gun again. One man took Rogers by the arm to the cash register where the other two men were, and he was told to open the drawers which he did. Approximately $140.00 cash was taken. Both the narcotics and the money were in Rogers’ personal possession, at least by his employment — his responsibility — at that time.' Something was then said about making Rogers lie down, and as they were taking him to the rear of the shop one of the men struck him on the head, causing a wound which required surgical stitches. He fell, and the four were “hollering,” “The cops are here,” or “The police are there,” and they were running by him out the back door. Rogers got up and ran out the front and down the side of the building, there colliding with one of the men and knocking him to the ground. Rogers then tackled him and got him down to the ground when a policeman had his gun and told the fellow to get up. Rogers told another policeman there was a lady involved. They got a dog, went down the street and in about three minutes returned with the same woman who came into the store, whom Rogers identified at the trial as appellant, there being no doubt in his mind. The narcotics which were taken were strewn in the back alley, and Rogers identified them as being the property under his control, belonging to Eisberg. Appellant was carrying a chrome plated gun; the others were blue colored.

Anna June Gearhart had a little dry goods store located “cater-cornered” across from the Medical Arts Pharmacy on 24th Street, which she could observe from her window. At about four o’clock in the afternoon of April 5 she saw a lavender colored Cadillac drive down 24th Street a half block from her store and park. Four people, three men and a girl, all colored, got out of the car. One of the men had a pair of black leather gloves which he was putting on very meticulously. The four walked up to the corner where the Medical Arts Pharmacy was located, walked on down the street to an antique curio shop, looking up and down the street. Then the girl went on ahead to the Medical Arts Pharmacy, and the others followed “like ducks.”

The girl stood there a few minutes, and two of the men took her and “practically drug” her down the street to the car. They got in it and left. Mrs. Gearhart’s mother then called Rogers to be on the alert. Later that day, about six-thirty or six forty-five, Mrs. Gearhart saw the car again and called the police. She then saw the four persons inside the Medical Arts Pharmacy, three men and a girl, the same persons who were there earlier that afternoon. She saw one of the men raise his hand to strike Rogers, but did not see any weapon. One of the men brought Rogers to the front window where the safe was and while he was opening it the girl took off her coat and laid it on one of the chairs, then went to the safe and reached in. One man was with her and the other two were behind the prescription counter. Then she saw all four with Rogers grouped at the prescription counter around the cash register. They escorted Rogers toward the back of the store and about that time the police came. Two policemen went in the front door and a third went down the side of the building, all with riot guns. Rogers also went down the side of the building and collided with one of the men. Mrs. Gearhart went across the street after the police had caught the persons, and saw three — two men and a girl. She had previously seen the girl come down apartment steps over the Medical Arts Pharmacy and run east on 24th Street. She saw her next when the police had her handcuffed and inside the police car. She was the same woman who attempted to go into the place of business at four o’clock that afternoon, who went into the place at seven-thirty o’clock, and who got into the safe inside the shop. There was no doubt in her mind but that appellant was the same woman and she pointed her out at trial. She also saw appellant in the lineup at police headquarters with two men.

Michael Steven Gwinn, a Kansas City police officer, was two blocks from the Medical Arts Pharmacy, in his car, and heard the call come over the radio that a robbery was in progress. He was first to the scene, and officers Faulconer and Brown followed within one minute. Gwinn observed one colored male stuffing coins into his hat behind the Medical Arts Pharmacy counter, and a colored female to his right looking on. He saw another colored male to the right of the female. One officer went to the rear of the store and Gwinn went in the front. The persons inside ran to the rear of the store and out the door. He saw the female run east. Two men were apprehended at the scene. Gwinn followed east in the back yards and he heard a rustling noise in the basement of one of the houses. He and officer Brown called into the basement, “If you don’t come out, we are going to come in with the dog.” A female voice came from downstairs, “I can’t come out, I’m stuck.” They went down with a dog which led them to the suspect whom they found behind a furnace next to a wall. They pulled her out, and Gwinn, without any doubt in his mind, identified her as appellant. He found a silver snubnosed .38 calibre revolver in the alley along with narcotics, and some gloves stuffed with money.

Officer Hadley V. Hathcock identified appellant as the person the other two officers brought from the basement. Of-icer Brown testified that appellant was the woman whom he and Gwinn found in the basement wedged between the furnace boiler and the wall.

Officer Harold Kirchhoff conducted a special showup or lineup on April 6, 1966, concerning the robbery. Present were Mrs. Gearhart, appellant (the only woman in the lineup) and three males, all colored. Mrs. Gearhart identified appellant and Kirchhoff took a statement of identification from her. There were no other women in custody to place in the lineup with appellant, as was the normal custom. Appellant did not learn that only one woman was in the lineup until Kirchhoff took the stand after Mrs. Gearhart had identified appellant as being one of “a certain number of persons” referred to by the prosecution as being in the lineup. Appellant moved that the testimony of Kirchhoff (only) be stricken from the record on the ground that the showup was highly prejudicial to her with just one woman present, and moved that the jury be admonished to completely disregard it. The motion was overruled.

Appellant argues: “It would be - hard to imagine a more flagrantly suggestive situation. What amounted to the exhibition of a single suspect to a witness for identification was, through the testimony of Anna June Gearhart, elevated to the status of unimpeachable evidence by being represented to the jury as an identification made by picking the defendant out of several colored women.” Relied upon is the recent opinion of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, where the accused alone was exhibited to a hospitalized witness (Mrs. Behrendt) from her hospital bed who identified him as her assailant and as the man who stabbed Dr. Paul Behrendt to death. She and the officers present testified at the trial to her identification of the petitioner in the hospital room and she also made an in-court identification of him. Petitioner claimed that the admission of Mrs. Behrendt’s identification testimony violated his rights under the Fifth, Sixth and Fourteenth Amendments because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances which unfairly focused the witness’ attention on him as the man believed by the police to be the guilty person. It was there held that the principle that counsel is required at pretrial confrontations of witnesses by the accused as being a “critical stage” of the proceedings (as held in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178) was not retroactive because that application “ ‘would seriously disrupt the administration of our criminal laws.’ ” 87 S.Ct. 1971 [8]. For that reason appellant does not here claim lack of counsel at the time of the lineup identification as being constitutional error, her trial being prior to the June 12, 1967 Stovall decision. She claims that the “conduct of the present lineup, or showup, was so flagrantly prejudicial as to be a denial of due process of law in violation of Article 1, Section 10 of the Missouri Constitution 1945, and the 14th Amendment to the Constitution of the United States.” The same claim was made by petitioner in the Stovall case. It was said, 87 S.Ct. 1972, [10-12], “This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.” In United States v. Wade, supra, although the dangers in confrontation between the accused and the victim or witnesses to a crime to elicit identification evidence which might derogate from a fair trial were extensively discussed (87 S.Ct. 1933), a new trial was not granted Wade. Rather, the case was remanded to first give the Government “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” 87 S.Ct. 1939 [13, 14]. “On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. * * * We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error.” 87 S.Ct. 1940 [16]. See also Gilbert v. State of California, supra, loc. cit. 87 S.Ct. 1956 [8-10],

The in-court identification of appellant by Mrs. Gearhart as being the woman who participated in the robbery clearly appears on this record not to be based upon the lineup identification alone. Although Mrs. Gearhart admitted that the first close-up look she had of appellant was when she was in the police car at the scene, she had the opportunity to and did, as she testified, observe appellant several times before the lineup was conducted: First, on 24th Street at four o’clock in the afternoon when appellant started to enter the pharmacy and apparently changed her mind; second when from the front of her store she could see three colored men and a colored girl inside the pharmacy, the same four persons she had seen earlier that day; third, when appellant came down some stairs over the pharmacy and ran east on 24th Street; and, fourth, when the police had appellant handcuffed inside the police car. There was nothing done here by the officer conducting the lineup which would tend to suggest to the identifying witness that appellant was the guilty culprit in the minds of the police. Mrs. Gearhart’s identification of appellant had an origin independent of the lineup identification. There was no violation of any constitutional right inherent in the identification. Besides, appellant was identified (independently of any lineup) as one of the robbers by the victim, Rogers; and by officers Gwinn, Hathcock and Brown as being at the scene, and cross-examination of them was had by appellant’s counsel. Point II is overruled.

The information in accordance with the statute, § 560.120, RSMo 1959, V.A.M.S., is sufficient. It alleges that appellant, with others, with force and arms in and upon one Melvin L. Rogers unlawfully and feloniously did make an assault with a dangerous and deadly weapon, a revolver, taking goods and money of Joe Eisberg from Rogers against his will by force and violence by putting him in fear of immediate injury to his person. The verdict is responsive to the charge of first degree robbery. Appellant was informed of the verdict and allocution was granted. She was sentenced in accordance with the verdict and judgment was pronounced by the court. The sentence was within the permissible limits of § 560.135, RSMo 1959, V.A.M.S., for robbery by means of a dangerous and deadly weapon. Complied with are the matters specified in Supreme Court Rule 28.02, V.A.M.R.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Doris WARD, Appellant, v. TEMPLE STEPHENS COMPANY, a corporation, Respondent.
    No. 52362.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1967.

      Scott O. Wright, Brown, Wright & Willbrand, Columbia, for appellant.
    J. Turner Jones, Columbia, for respondent, Welliver, Porter & Cleaveland, Columbia, of counsel.
   EAGER, Judge.

This is a suit for personal injuries arising from a fall in defendant’s store in Columbia, Missouri. Plaintiff alleged that defendant had negligently “caused, allowed and permitted” a rural mailbox to extend out into the aisle, causing her to fall. There was evidence of substantial injuries; but since the verdict was for defendant, no further reference thereto will be necessary. We have jurisdiction, since the prayer was for $30,000. The defendant denied all substantive allegations, and alleged that plaintiff’s own negligence caused or contributed to her injury. Plaintiff has briefed three specific points of alleged error; defendant’s first point is that no submissible case of negligence was made by plaintiff, and we shall therefore need to state the evidence in some detail.

The store was located at Business Route 70 and Garth Avenue; it faced east. It was 70 feet east and west and 180 feet north and south. The main display shelves or counters ran east and west through the store with aisles between. Some of those shelves were shorter than the others and at the ends of these defendant had set up three “display islands” or counters running north and south with ample room (approximately six feet) to pass between these and the ends of east-west shelves. These north and south counters were approximately five feet high, about three feet wide at the bottom, and tapered to about two feet at the top. Much effort was made and much space in the transcript is consumed by both parties in attempting to develop further the exact layout of the store, but some of this evidence has been more confusing than enlightening. It will suffice for our purposes to say that the events involved here happened at the side of and perhaps extended just north of one of the north-south display counters or islands, probably the south one; and also that there was an open space south of that counter. Plaintiff, a married woman then 46 years old, entered the store at about 4:00 p. m. on December 3, 1964, picked up two small cartons of cream at the rear, and walked east down an aisle to a card display where she stopped and selected one or more cards; from that point she saw farther east the island counter in question with a display of clocks on the top shelf. She then proceeded down the aisle to the clocks, put down her cream, and proceeded to try out three of the clocks by winding the alarms (and perhaps the time mechanism) and listening to them; she estimated that she consumed ten minutes in this endeavor. As she was about ready to select one of the three, she saw a clock on the other side of the top shelf which she wanted to look at, but could not reach. In this situation, she (then facing east toward the counter) turned her body to the left and, still glancing back at the clocks and never looking down, took three or four steps along the counter at a “normal” distance from it, hit something with her right foot or ankle and then with her left, “started flippin’ around” and fell; she landed facing in the direction from which she had come and leaning against a counter, apparently having struck the floor largely on her buttocks. She testified that she first looked down, and first saw the mailbox after her second (left) leg had struck it. All this occurred near the north end of the counter; she suffered a severe cut on her left leg, and claimed other and permanent injuries. The mailbox was in the aisle somewhere near the end of the counter after plaintiff’s fall. It was two feet or more in length and perhaps 15-18 inches high. At least one piece of crockery had been knocked from the counter and was broken in the aisle. Plaintiff was given prompt assistance and taken to a hospital. She testified that while she was looking at the clocks she did not notice anyone else around but that she “wasn’t paying any attention to anything else.” She gave no testimony whatever as to the position of the mailbox at any time before she struck it with her left foot or leg.

Another customer, Mrs. Stuart Sprad-ling, was produced on behalf of plaintiff. Considerable confusion developed over the partial use and attempted further use of a statement previously taken from her by counsel for plaintiff, but her testimony in substance was: that she had passed up that aisle pushing a cart, but had not noticed the plaintiff; she thought that she had seen the mailbox as she passed and that it had seemed to her to be a little unusual in a display on a Christmas counter; she had not seen it in the aisle, but did not know its precise position or location at the time; after she proceeded on to the next counter she looked back (past plaintiff) for her little boy, and then saw plaintiff, about ready to fall, put up her hand, twirl, and fall, with a smashing of crockery; after the fall the mailbox was within two feet of the end of the counter. At one point (and during considerable controversy over her statement) she said that she could not remember whether the mailbox was on the floor or on the counter when she first saw it, but that she pushed her cart along the aisle about one foot from the counter and had no difficulty.

A cigarette salesman, Don Cardwell, was in the store at the time, arranging a display in the open space just south of the island counter in question; he heard the fall, walked around the corner and saw plaintiff on the floor. He had been talking to the manager, Kenneth Morrow, at that location for about five minutes; he testified that there was a clear view up the aisle from that general location if one had looked, depending somewhat on the exact position, but that he had not looked up the aisle. He saw the mailbox on the floor after the fall, and not “too far out” from the counter. Cardwell assisted in giving first aid to the plaintiff.

Kenneth Morrow, the manager, and Fred Holmes, assistant manager, testified for the defendant. Mr. Morrow’s testimony was in substance as follows: that he had passed along that aisle about ten or fifteen minutes before plaintiff’s fall, but he did not “observe” the mailbox at that time; that it was kept on the bottom shelf; that he had talked to the cigarette salesman for a few minutes shortly prior to the accident about the display he was putting in south of the counter, but that he was back in the storeroom when he learned of it; the counter was three to four feet wide at the bottom and approximately two feet wide at the top; that after the accident the mailbox was lying on the floor beside the counter; that they (in the store) were careful to keep the aisles clear, realizing that customers frequently were looking at the merchandise and not at the floor. Mr. Holmes testifed: that he had swept the aisles of the whole store with a wide push broom on that afternoon beginning at about 3:00 o’clock; that he saw the mailbox on the bottom shelf of the counter at around 3:30; that it was near the north end of the counter; that there was no mailbox in the aisle. Mr. Holmes was of the opinion that the counter holding the mailbox was the middle one of the three island counters rather than the south one, as the other evidence indicated.

There was no testimony concerning the actual location of the mailbox immediately prior to plaintiff’s fall except that, at about 3:30, it was on the bottom shelf of an island counter. It was not shown, by either plaintiff’s or defendant’s evidence, whether it protruded into the aisle, how it was first moved, or how it got into a position on the floor in front of plaintiff.

We first consider defendant’s contention that plaintiff did not make out a submissible case of negligence. In so doing we naturally give her the benefit of all favorable inferences from the testimony of her witnesses and the benefit of any favorable testimony from defendant’s witnesses which is not inconsistent with her evidence and theory.

The liability of a defendant store-owner in such cases is based upon his superior knowledge of a defective condition on his premises which results in injury. Brophy v. Clisaris, Mo.App., 368 S.W.2d 553, 557; Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623; McElroy v. S. S. Kresge Co., Mo.App., 244 S.W.2d 425. The opinions in such cases frequently cite 2 Restatement, Law of Torts, § 343, in support of the rule. Liability under this doctrine requires notice to the defendant, actual or constructive, of the defective condition. Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648, and numerous cases there cited. Generally, defendant is deemed to have had actual notice if it is affirmatively shown that an agent of the defendant has placed an obstruction in the aisle of a store, for that act supplies the requirement of notice. Seigel v. Kroger Grocery & Baking Co., Mo.App., 164 S.W.2d 645; Richardson v. Safeway Stores, Inc., Mo.App., 379 S.W. 2d 827. In the absence of such a showing, there must be evidence that the defect has existed for a sufficient length of time to constitute constructive notice, or, in other words, to show that defendant should reasonably have known of it. Robinson, supra; Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401; McElroy v. S. S. Kresge Co., Mo.App., 244 S.W.2d 425; Poe v. Safeway Stores, Inc., Mo.App., 409 S.W. 2d 746; Brophy v. Clisaris, Mo.App., 368 S.W.2d 553; Richardson, supra; Hopkins v. Sefton Fibre Can Co., Mo.App., 390 S.W.2d 907.

In the present case there is no evidence to show that defendant or its employees placed the mailbox in the aisle, nor is there any evidence that it was kept by defendant in such manner that it protruded into the aisle. Insofar as the time element is concerned, as affecting constructive notice, there is no evidence that the mailbox was in the aisle until the moment plaintiff struck it. We have not been cited to any case fairly identical on its facts, nor have we found any. Plaintiff’s counsel argue that a customer may reasonably presume that the aisles of a store are clear and free of obstructions, citing Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14; Seigel v. Kroger Grocery & Baking Co., Mo.App., 164 S.W. 2d 645; and Casciaro v. Great Atlantic & Pacific Tea Co., 238 Mo.App. 361, 183 S.W.2d 833. That is true, but the statement does not answer our essential question, i. e. — whether defendant was negligent in placing or leaving an obstruction there. The asserted proposition goes mainly to the question of a plaintiff’s contributory negligence. In the first two of the cited cases there was substantial evidence to indicate that the defendants had placed obstructions in the aisles, and in the last case the judgment was reversed and the cause remanded because there was no such evidence and further, because there was no evidence of the length of time the obstruction had remained in the aisle.

Cases which, by analogy, are worthy of mention are: Brophy v. Clisaris, Mo.App., 368 S.W.2d 553; Poe v. Safeway Stores, Inc., Mo.App., 409 S.W.2d 746; Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648; Richardson v. Safeway Stores, Inc., Mo.App., 379 S.W. 2d 827, and Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401. In all those cases the plaintiffs were allegedly caused to fall because of the presence of foreign objects in the aisles, walkways or traveled portions of the defendants’ places of business. In Brophy and Robinson it was held in substance that the presence of a box of potatoes in a vestibule or of food or grease on a ballroom floor for 10 or 15 minutes was not sufficient to create constructive notice. In Poe, where plaintiff slipped on a piece of lettuce near the check-out counters of a supermarket, with no showing as to how it got there or how long it had been there, no recovery was permitted, although a check-out clerk and a “sacker” could apparently have seen the lettuce, had they looked, from their respective positions. In Richardson, plaintiff had supposedly slipped on a round bone on the floor near the meat counter; there was no evidence to show how or when it got there and the floor had been checked about half an hour previously. No recovery was permitted. In Lance, there was a similar lack of evidence concerning the presence of part of an ice cream cone on a step and no recovery was permitted. Two other cases should probably be mentioned by way of distinction. In Alvey v. Sears, Roebuck & Co., Mo., 360 S.W.2d 231, the court held that there was sufficient evidence to show that plaintiff had slipped on a small, round plastic object on the floor of an aisle, and that the assistant manager had walked along that aisle 15 feet ahead of the plaintiff. Recovery was permitted (although the court stated that the question was “close”) upon the theory that the assistant manager’s failure to see and remove the object constituted sub-missible evidence of negligence. There, the object was. presumably in the same spot when he passed along the aisle. Here, there is no showing as to where the mailbox was until plaintiff struck it, except that it was on the shelf. In Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, plaintiff fell over the base of a platform scales located between two sets of swinging entrance doors; when she approached one door to go out, she found it locked; turning to go out the other door, she fell over the scales. Most of the discussion concerning defendant’s negligence involved the doctrine that one may not recover where risk of injury is open and obvious; recovery was nevertheless permitted upon the theory that defendant had, by locking one door and leaving the scales platform directly in the pathway of those who acted as plaintiff did (and more or less out of his or her line of vision) created a sort of trap. No question arose there as to the responsibility for placing the scales, or as to how long they had been there. The facts are therefore entirely different from ours.

It is hardly necessary to consider what various acts might conceivably have been responsible for placing the mailbox in plaintiff’s path. She may have bumped against it and knocked it down herself, or some other customer or intermeddler may have pulled it out and left it on the floor within the preceding few minutes. It is true that plaintiff testified that she had noticed no one else around the counter as she looked at the clocks, but in the same breath she testified that: “I wasn’t paying any attention to anything else.” Such negative evidence is not of sufficient force to eliminate the possibility of interference by someone else. See 32A C.J.S. Evidence § 1037, p. 720; Borrson v. Missouri-Kansas-Texas R. Co., Mo., 161 S.W.2d 227. Plaintiff had not even seen Mrs. Sprad-ling who pushed her cart through that spot probably a minute or two before the fall. Under all the circumstances we find no evidence sufficient to raise a fair inference that: (1) defendant negligently placed the mailbox in the aisle or caused it to protrude into the aisle; or (2) that it had permitted the mailbox to remain in either of such positions for such a length of time as to reasonably give it constructive notice. An inference here based upon either of such theories would rest upon pure conjecture. On these facts, plaintiff did not make a submissible case, and defendant’s motion for a directed verdict at the close of all the evidence should have been sustained.

It will thus be unnecessary to consider plaintiff’s specific points of error concerning an instruction, the argument of defendant’s counsel, and the refusal of certain evidence. On this record the judgment was for the right party and it will be, and is, affirmed.

All of the Judges concur.