author: LEEDY, Judge.

text:
    Dorothy A. BROWN, Appellant, v. Tom Warren WOODERSON, and C. J. Fleetwood, Ed Fleetwood and M. E. Lomax, Co-partners doing business as Fleetwood Chevrolet Company, Respondents.
    No. 48910.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.
    John C. Milholland, A. J. Anderson, Har-risonville, Norman O. Sanders, Kansas City, for appellant, Dorothy A. Brown. Quinn, Peebles & Hickman, Kansas City, of counsel.
    William J. Burrell, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, Robert W. Spangler, Harrisonville, for respondent Fleetwood Chevrolet Co.
   LEEDY, Judge.

Action for the alleged wrongful death of plaintiff’s husband, Wm. Roy Brown, who was killed when struck by a Chevrolet automobile driven by defendant Wooderson, to whom it had been lent for his personal use by the owners thereof, defendants C. J. Fleetwood, Ed Fleetwood and M. E. Lomax, copartners doing business as Fleet-wood Chevrolet Company. At the close of all the evidence the court directed a verdict in favor of all of the defendants, entered judgment in conformity with the verdict returned as so directed, and plaintiff appealed.

The sole issue here is whether a submis-sible case was made for the jury. Plaintiff claims primary liability on the part of Wooderson, as the active tort-feasor whose negligence proximately caused her damage, and the vicarious liability of coconspirators on the part of the other defendants, the owners of the automobile, under the doctrine of imputed negligence. The conspiracy upon which the latter claim is based is allegedly the prior agreement of such owners and Wooderson for the latter to operate, for the benefit of the defendant-partners, ’the said Chevrolet on the public highways as a prohibitively loaned automobile displaying the defendant-partners’ dealer’s registration license plate in violation of § 301.250, subd. 3, RSMo 1959 and V.A.M.S. (to which revision all section references are made unless otherwise expressly noted).

We examine first the assignment that plaintiff made a submissible case against Wooderson. If she made no case against him, it follows that none was or could have been made against the other defendants. If she did make a case against Wooderson, but failed to make one against the other defendants, she would nevertheless be entitled to a reversal of that part of the judgment in Wooderson’s favor, and to have the case remanded for a new trial as to him. Whether a submissible case was made is to be determined, of course, under the time-honored formula that the evidence is to be considered in the light most favorable to plaintiff, and that she is to be given the benefit of any and all reasonable inferences therefrom, etc., as applied (and more fully stated) in See v. Wabash R. Co., 362 Mo. 489, 493, 242 S.W.2d 15, 17; Sibert v. Boger, (Mo.) 260 S.W.2d 569, 571, and countless other cases. As thus viewed, the facts immediately surrounding the casualty (as distinguished from those in relation to the conspiracy issue which we reserve for later consideration) are, in substance and effect, these:

The casualty occurred on U. S. Highway 71 two or three miles south of Belton, Missouri, about 9:30 p. m., on April 15, 1960, as the decedent .Brown, a tow truck operator employed by a Belton garage, was engaged in a tow truck operation by which he was attempting to pull back onto the paved portion of the highway a loaded sand truck which had accidentally gotten off and mired down. At the point in question the highway runs north and south. The paved portion is 24 feet in width and consists of two 12-foot lanes, one for northbound traffic and the other for southbound traffic. There are shoulders on each side. There had been an “extremely large amount of rain” that night — so much so that at a point 25 feet south of the stalled truck the highway was under water, and a mile farther south it was completely closed for that reason.

Edward Resse was the driver of the stalled truck. It was southbound, enroute to Butler, when Resse “got into high water [at least two feet deep] and got off the road * * * and mired down by the side of the road” (i. e., on the west shoulder), “the bed might have been sticking over one or two feet off the shoulder.” As soon as the water receded sufficiently (“it went down fast”), Resse got out of the truck and “put out” or placed two fusees (which “light and burn a red flame”) on his, the west, side of the highway, one about 150 feet north of the stalled truck, and the other in the opposite direction “toward Harrisonville.” These fusees burned about 30 minutes, but they got wet (“the water ran over them”), and a highway patrolman came by and gave Resse additional fusees which he “put out.” The tow truck or wrecker, driven by Brown, was dispatched to the scene by a highway patrolman who had discovered Resse’s plight. After the wrecker arrived, kerosene flares, in addition to the fusees, were also put out. The wrecker was equipped with two seven-inch flasher red lights, located at the rear outside corners of the truck. It had a six-inch red light on top, and two three-inch lights on the outside rear on the “headache rack” on top of the truck at the rear of the cab. It had a spotlight ■directed to the rear working area. It was also equipped with six fusees and four kerosene flares. The wrecker was there a half hour or longer in trying to “winch out” the stalled vehicle, this by fastening a chain from the rear of the tow truck to the front •end of the stalled truck. Said Resse, “he hooked at two or three or four different angles and he never did get me out, and he finally pulled me in further.” While Resse was unable to state positively whether lights on the wrecker were flashing, there was, nevertheless, as he put it, “plenty •of light to see anything you wanted to do. ■* * * There was a lot of light there * * * there was all kinds of lights.” The following appears in his cross-examination in that same connection: “Q. Do you actually remember for sure whether there was any fusees out at the exact time of the collision to be certain? A. I know they had to be burning. Q. Could they have burned out? A. They couldn’t have burned out that quick.”

Brown and Resse worked to the rear of the wrecker on the pavement. A few sec■onds before the collision occurred, the wrecker was almost completely covering the west half of the highway, and these men (being the only persons present at the time) were working side by side in the southbound lane, unhooking the chain, at the center rear of the wrecker, which vehicle was then “just a few feet * * * possibly four feet * * * in front of the truck, sitting kind of angling in front of the truck” with its front end “slightly across” the center line of the highway. There was room for traffic to go by the wrecker, some (northbound) having actually done so.

The following excerpts from the testimony of Resse give his version (incomplete and fragmentary, though, it is) of what next transpired, i. e., at the moment of impact: “Q. Was there anything unusual occurred as you got back there to unhook from this car? A. I don’t know what happened. I never seen or heard anything. I felt something and turned around and the car [Chevrolet] was setting there smashed up and he [Brown] was gone. Q. You felt something and then you saw this car was smashed up ? A. I thought something brushed me, I don’t know what it was I felt, something on my sleeve. Q. Something brushed your left arm? A. Yes, sir.”

When Resse turned around and saw the smashed up automobile after having felt something brush his sleeve, he found these conditions: The wrecker was off of the highway, on the east side, “at an angle over in the ditch — the front end over in the ditch off the highway”; the stalled truck was on the west shoulder; Brown’s body, apparently dead, was “in front of” the witness, partly on the west shoulder and partly on the pavement. Prior to finding Brown’s body, Resse had not heard any horn sounded by the car which he later found “smashed up”; the weather was “dark and rainy * * * trying to rain * * * trying to mist; wet and foggy.” Resse never at any time saw the car approaching, nor to the best of his knowledge, did he hear anything before the collision.

The “smashed up” car thus referred to was the Chevrolet driven by Wooderson. Although present at the trial, Wooderson did not testify; however, portions of his deposition were introduced by plaintiff as admissions against interest, which (on the negligence issues) were in substance and effect these: That as he drove south toward the scene of the stalled truck and the wrecker, traffic conditions were “pretty bad. Everything was all balled up that night. Lot of traffic” in both directions; that his highest speed was 30 or 35 miles per hour; that when approaching from the north (the direction from which he came), there is normally a view of the scene of the accident “say possibly 500 yards — daytime”; that during the last 1000 feet before reaching the scene, there were northbound cars passing him, the last of which passed him about 100 yards north of the scene; that he first saw the tow truck when he was not more than 50 feet from it, and at that moment there was no northbound traffic, nor did he see any other vehicle; that he saw the collision with the man at the moment it happened; and that he had had occasion to use the brakes en-route to the scene, and that they worked “all right.” The Chevrolet appears to have come to rest “sort of katty wampus” in front of the stalled sand truck, but at a distance not disclosed by the record. It suffered severe front-end damage. Photographs introduced in evidence show that the front fenders, bumper, lights, grill and hood were a bent and twisted mass, and all of such parts were telescoped into that portion of the body to the rear of the windshield. Fragments of Brown’s clothing were found embedded between the frames of the dual right headlights which are located at the extreme right side of the car.

Trooper Buesing of the State Highway Patrol, a witness for plaintiff, testified as follows: That as he was proceeding north along Highway 71, setting out flares where the road was under water south of the scene of the subsequent accident, he came upon the stalled sand truck; he continued his northward course along Highway 71 for a distance of about two and one-half miles to the junction of Highways 71 and 58 (the Belton turnoff) where the wrecker was working on stalled cars in that immediate area, and the witness told Brown about the stalled sand truck. He then saw Brown head south on 71 Highway with “red lights turned on the wrecker,” the exact number or their location he did not remember. After the wrecker left on this mission, the witness and another highway patrolman continued to direct traffic at the intersection. They stopped cars and turned back the southbound traffic on 71. As they were thus engaged, Wooderson came east on 58, and as he was turning right onto 71 (toward Harrison ville, his home), the witness “called to him to stop and he continued a little bit until I called to him again. At that time I told him that the road was closed, and he said he was going to Harrisonville.” (At this time “there was a light rain or it had just almost stopped raining.”) Wooder-son nevertheless “continued on,” and in “just a very few minutes” the witness headed south on 71 and as he approached the scene of the collision, with weather conditions remaining “about the same” as last above mentioned, he “saw the red lights were on,” and he assumed they were working on the stalled truck. The witness did not recall exactly how far he could see the red lights as he approached the scene, “but for some distance.” There was no visible obstruction of the scene by weather conditions, “although the rain wasn’t as hard as it had been, if there was any at all,” and the witness could see “the range” of his headlights shining down the road ahead of him. The witness described the conditions at the scene of the collision to be substantially as hereinabove stated with respect to the location of the several vehicles, Brown’s body, etc., adding that the “driver of the 1960 Chevrolet was still sitting in the car, and several other cars had stopped.” The license plate displayed on the Chevrolet was “a 1960 Missouri dealer’s license, 601K.” The driver, Wooderson, made this statement to the trooper at that time as to how the collision occurred: “There was a truck stalled there and I swerved to miss it and that was it.” The witness reached the scene at approximately 9:43 p. m., and he estimated the collision had occurred “approximately three minutes before that.”

James O. Branham, an ambulance driver, who had been assisting the patrolmen in directing traffic at the junction of Highways 58 and 71, estimated he reached the scene of the collision “around seven minutes” after receiving word of the accident from a passing motorist. He fixed the location of the vehicles involved in the collision as heretofore described, and stated that Brown “was lying with his head to the west in the mud on the side of the highway * * * his right leg almost completely cut off”; that as he came upon the scene he observed that the red blinker lights on the wrecker were operating, and that there were flares on the right-hand side of the road both north and south of the scene of the accident.

Although the photographs show some damage to the rear end of the tow truck— and obviously this was the point of contact —it is difficult, if not impossible, to determine from such photographs the precise point on the rear end of the tow truck at which the Chevrolet struck or collided with it. The hitch at the rear center was damaged, a housing on the rear end sprung, and the drive shaft and transmission broken loose. The fan was jammed into the radiator and the motor mounts broken loose, but this was ascribed to the fact that when the tow truck was knocked across the highway its front end struck the embankment of the ditch on the east side of the highway.

On these facts we are of the opinion, and accordingly hold that plaintiff made a submissible case against Wooderson. The Chevrolet was equipped with dual headlights, and under the statute, § 304.350, the uppermost distribution of light or composite beam thereof is required to be “so aimed and of such intensity as to reveal persons and vehicles at a distance of at least three hundred and fifty feet ahead,” and as to the lowermost such statutory required distance is that “of at least one hundred feet ahead. * * * ” In the absence of evidence to the contrary (and there is none before us), it will be presumed that the Chevrolet Wooderson was driving met these minimum standards. Peterson v. Tiona, (Mo.) 292 S.W.2d 581, 583.

The jury could have reasonably found that not only were the wrecker and highway well illuminated, but there were conspicuous kerosene flares and fusees burning both north and south of the tow truck operation; that the view from the north, the direction from which Wooderson approached, was unobstructed either by physical objects or weather conditions for a distance of 1500 feet, and that his brakes were in good working order. Notwithstanding all of this, Wooderson gave no signal or warning of his approach, and, indeed, by his own admission, he did not see the wrecker until he was within 50 feet of it, and even then he did not see the stalled sand truck. He saw the collision with Brown, but only at the moment it happened. He neither swerved nor stopped. There being no oncoming traffic from the south, he could have swerved to the left and into the northbound lane and thereby have passed to the east of the wrecker, as northbound traffic had done previously. It is also fairly inferable from the location of fragments of Brown’s clothing found imbedded between the frames of the right dual headlights that his position when struck was well to the driver’s (Wooderson’s) extreme right (being within the path of the oncoming car by only a matter of inches — a half a step to the west and the victim would have been in the clear). This circumstance, when taken in connection with Resse’s testimony that he heard or saw nothing of the Chevrolet immediately before the collision, would support the inference that Brown, too, was oblivious, so that by Wooderson swerving only slightly to the left, or by sounding a warning of his approach, the jury would have been warranted in finding the collision, and the resulting death of Brown thereby, could have been avoided.

Our conclusion is that the jurj might reasonably have found that Wooder-son, in the exercise of the highest degree of care, should have seen the warnings of danger ahead when he was yet far enough away to take any of several effective evasive actions, and thereby have avoided the collision. Compare Van Sickel v. F. M. Stamper Co., (Mo.App.) 198 S.W.2d 539 (where the parties to the action were reversed). The plaintiff there was the widow of a motorist who was killed when his car ran into or collided with the rear end of a truck parked partially on the highway at night. The controlling facts were so closely analogous to those surrounding the casualty in the case at bar as to make them practically identical. There the deceased motorist was held guilty of contributory negligence as a matter of law, precluding recovery. By parity of reasoning, it must be, and it is, held that plaintiff made a submissible case against Wood-erson on these charges of negligence as alleged in the petition: In failing to keep a lookout; in failing to swerve, in failing to stop, and in failing to sound a warning of his approach.

The holding just made necessitates the further determination of whether a submis-sible case was also made against the other defendants, who are C. J. Fleetwood, Ed Fleetwood and M. E. Lomax, copartners doing business as Fleetwood Chevrolet Company, and hereinafter referred to as “defendant-partners” or merely as “Fleetwood.” Consideration of plaintiff’s claim that they are liable for Wooderson’s negligence solely by imputation of law requires a brief statement of the nature of, and the facts surrounding the allegedly illegal conspiracy upon which such claim is based; but before making that recitation we note that on this branch of her case plaintiff’s principal reliance is on Wooldridge et al. v. Scott County Milling Co., et al., (Mo.App.) 102 S.W.2d 958, and it is obvious that her petition was framed to bring it within the purview of that case. The Wooldridge case was an action for personal injuries arising from the negligent operation of a truck in which there was proof of a conspiracy between the driver of the truck, a shipper (the milling company) and the truck owner to violate the statutes and rules and regulations of the Public Service Commission by operating said truck in hauling the milling company’s products without the required permit. The holding was that the conspirators were jointly and severally liable for damages and injuries caused by the driver’s negligent operation of the truck while the conspiracy was being carried out.

In the case at bar, the petition charged that the defendant-partners did “wrongfully, fraudulently and in violation of law, agree, combine and conspire together with defendant Wooderson and with each other (for the purpose of causing pecuniary benefits to flow directly and indirectly to defendant co-partners) to cause the above said Chevrolet automobile to be operated on the public highways of the State of Missouri, fraudulently and in violation of law without having first obtained registration plates for said Chevrolet automobile as required by law [§ 301.130, subd. 5] and to fraudulently, illegally, and for the direct benefit of defendant copartners to cause said Chevrolet automobile to be operated upon the public highways of the State of Missouri as a loaned automobile, displaying the dealer’s license registration plate issued to defendant copartners,” in violation of the terms and provisions of § 301.250, subd. 3.

The next paragraph of the petition alleged: “10. That at the time and place of the casualty abovesaid defendant Wooder-son was driving, managing, operating and controlling said Chevrolet automobile illegally and fraudulently upon U. S. Highway No. 71 without said Chevrolet automobile bearing and displaying proper and legal registration license plates and while said Chevrolet automobile, borrowed from defendant copartners and loaned by them, illegally and fraudulently bore and displayed only defendant copartners’ dealers registration license plate, all as overt acts on the part of coconspirator defendant Wooder-son in the furtherance of and execution of the abovesaid illegal combination agreement and conspiracy.”

From plaintiff’s point of view, the facts surrounding the conspiracy are, in summary, these: The Chevrolet car Wood-erson was driving at the time and place of the casualty was owned by the defendant-partners, and it displayed their dealer’s registration license plate, D601K. Wooder-son lived at Harrisonville, but was employed in a grocery store at Belton. Since 1957 he had been a customer of the defendant-partners’ service department, but he was not employed by them. About three days before the fatal collision Wooderson had wrecked his automobile, and thereafter Ed Fleetwood, on behalf of the partnership, personally sought out Wooderson at his place of employment and solicited and obtained from him (to the exclusion of a Har-risonville garage to which the vehicle had already been removed) the business of repairing the damaged car. As a part of that arrangement, Ed Fleetwood agreed to furnish Wooderson “a car while his was being repaired for the purpose of going to and from his home to work from Harrisonville to Belton.” Fleetwood at that time kept two 1953 Chevrolets, both properly registered with standard tags (not dealer’s). These were “primarily for loaning — in case customers had cars tied up in our shop for work.” It ’'occasionally happened” that when these two cars were out, a company demonstrator displaying a dealer’s tag would be loaned in their stead, the partners feeling that this “was within normal application of demonstrator automobiles.” A large sign was posted in the Fleetwood garage, and of which Wooderson had actual notice, reading as follows:

“MISSOURI LAW (SEC. 301.250 ET AL.)
PREVENTS US FROM LOANING VEHICLES TO OUR CUSTOMERS
Missouri Automobile Dealers Association”

We fail to appreciate the significance of the posted sign as an aid to plaintiff’s case. In the first place, the sign is an incorrect statement of the law of which it purports to give notice. The section mentioned, § 301.250, prohibits lending to others a vehicle displaying dealer’s license plates, and has no reference to regularly licensed vehicles, such as the two 1953 Chevrolets mentioned above; and, insofar as charging all of the defendants, including Wooderson, with actual knowledge of the foregoing section, as urged by plaintiff, they are chargeable with such knowledge as a matter of law, wholly apart from having seen the inaccurate conclusion displayed on the sign. The plaintiff concedes there was no direct evidence of any agreement on Wooderson’s part to violate said section. Indeed, there is nothing in the record to show that Wood-erson knew or had reason to believe that the car he drove into the fatal collision was displaying a dealer’s license plate. His only declaration concerning that element of the alleged conspiracy appears in the portion of his deposition which was offered by plaintiff and received in evidence as an admission against interest, as follows: “Q. To your knowledge, the 1960 Chevrolet was owned by the Fleetwood Chevrolet Company and had their license plates on it? A. I believe so.” We agree with respondents that, contrary to appellant’s contention, this statement does not show Wooderson had knowledge that a dealer’s license plate was on the automobile. The quoted language is as susceptible to being interpreted as meaning regular license plates as it is to meaning dealer’s license plates.

There is no contention that the alleged violation of the statute was a proximate cause of decedent’s death. It was relied on exclusively for the purpose of showing an illegal concert of action on the part of all the defendants, and thus to invoke the doctrine of imputed negligence.

The most important single fact to which plaintiff can point is that Wooder-son, at the time of the casualty, was operating a motor vehicle which, during the time of his possession of it on loan, was illegally licensed; but when this fact is taken collectively with all of the other facts and circumstances hereinabove set forth on this branch of the case, the proof remains insufficient to support an inference that Wooderson had agreed, combined or conspired with the defendant-partners to do an act made unlawful by statute. Therefore, at the time of the casualty, Wooderson could not have been carrying out any conspiracy to which he was a party to commit the unlawful act charged, and therefore the defendant-partners could not be held liable for damages resulting from his negligence. See in this connection (although the relative positions of the parties are reversed), Hanson v. Dalton Coal & Materials Co., (Mo. App.) 264 S.W.2d 897, an action for personal injuries and property damage bottomed on the principle of the Wooldridge case. It was there charged, and the proof showed, that the defendant-trucker at the time of the accident was engaged in hauling the company’s property in violation of certain statutes and regulations of the Public Service Commission. The evidence was examined and held insufficient to establish that the corporate defendant conspired with the trucker to so unlawfully operate his truck, and hence no liability on its part for the trucker’s negligence. Because of the inevitability of the foregoing conclusion, it was deemed unnecessary to discuss the facts in relation to the alleged conspiracy having been entered into for the purpose of causing pecuniary benefits to flow to defendant-partners.

The plaintiff’s evidence having made out a submissible case of actionable negligence against defendant Wooderson, the judgment on directed verdict in his favor is reversed, and the cause remanded for new trial as to him; and, for the reasons stated, the judgment in favor of the defendant-partners should be, and it is, affirmed.

All of the Judges concur.

      . § 301.130, subd. 5. “Before being operated on any highway of this state every motor vehicle or trailer shall have displayed the license plates or temporary permit issued by the director * *

      . § 301.250, subd. 3. “The dealer plates may be displayed on any motor vehicle used by an employee or officer and owned by the manufacturer or dealer, but shall not be displayed on any motor vehicle or trailer hired or loaned to others or upon any regularly used service or wrecker vehicle.”


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    Clarence MITCHELL, a Minor, by His Father and Next Friend, James Mitchell, Appellant, v. Carl MOSHER and Andrew M. Munro, Respondents.
    No. 49342.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.

      James F. Koester, St. Louis, for appellant.
    Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, Ralph M. Crow, Breuer, Northern & Crow, Rolla, for respondents.
   HOLLINGSWORTH, Judge.

Plaintiff, a minor suing by next friend, sought damages in the sum of $75,-000 for personal injuries sustained when an automobile operated by defendant Carl Mosher, in which plaintiff was a passenger, came into head-on collision with an automobile operated by defendant Andrew M. Munro. Oscar O. Groff, whose automobile was stopped upon the highway at the scene of the collision, was also named as a party defendant. Trial of the issues resulted in a verdict in favor of plaintiff against defendants Mosher and Munro in the sum of $2,500 and a directed verdict in favor of defendant Groff. Plaintiff appealed to the Springfield Court of Appeals from the judgment rendered in accordance with the aforesaid verdict. That court transferred the cause to this court on grounds the amount in dispute vested jurisdiction in this court. Mo.App., 352 S.W.2d 932. After the appeal reached this court, it was dismissed as to defendant Groff. The amount in dispute, exclusive of costs, ($75,000 sought, $2,500 awarded) being in excess of $15,000, jurisdiction lies in this court. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040 RSMo 1959, V.A.M.S.; Glore v. Bone, Mo., 324 S.W.2d 633, 634 [1, 2]; Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 725.

Plaintiff has briefed and urges but one of the assignments of error set forth in his motion for new trial: that the trial court erred in denying him a new trial because of gross inadequacy of the verdict. A brief statement of the nature of the collision sheds some light upon the question before us. The collision occurred on State Highway No. 19, nine miles south of Owensville, Missouri, immediately south of the crest of a hill, at about 12:35 a. m., on May 3, 1959. The northbound Mosher car, in which plaintiff was riding as a passenger in the front seat, came up to the scene of an earlier collision. There two automobiles, both facing north, rested partly upon the east lane and partly upon the east shoulder of the highway. Mosher slowed his car and started around the left side of them. As he was passing the second (Groff) automobile, defendant Munro, southbound, at 45 to 60 miles an hour, came over the crest of the hill and into head-on collision with the Mosher car, knocking it backward a distance of 30 feet to and against a stone wall erected upon or adjacent to the west shoulder of the highway.

Plaintiff, then aged 17 years, was thrown forward and his head went through the windshield of the Mosher car. He went immediately to see a doctor at Owensville, who “checked [him] over”, but gave him no treatment and made no mention of finding any injury to his back. He returned to and examined the scene of the collision and then went home, arriving around 3 or 4 o’clock in the morning. On the next day, he consulted Dr. Fiedler, an osteopathic physician at Bland, Missouri, who sent him to the Charles E. Still Osteopathic Hospital at Jefferson City. He remained in the hospital for a period of five days, under the care of Dr. Richard A. Michael, an osteopathic physician.

The records of the hospital were placed in evidence. To the extent read into the record, these records showed, in substance, that plaintiff was a 17-year-old white male, well nourished, whose chief complaint was radiation of pain in the left scapular region, caused in a car wreck, and that X-rays showed radiographic evidence of compression fractures in the dorsal region. The diagnosis was compression fractures of dorsal vertebrae. The treatment consisted of a. body cast made of plaster of paris being-placed upon him.

Plaintiff testified: He never had any trouble with his back prior to the collision.. At the time of the collision and for sometime prior thereto, he was regularly employed by the Brown Shoe Company at Dixon as a “laster”, for which he was paid the sum of $1.00 per hour. He wore the cast fitted to his body at the Still Hospital, which extended from his shoulders to his. hips, for six weeks, during which time he stayed “mostly in bed”. At the end of that, period, the cast was removed by Dr. Michael and a Taylor brace was fitted to his-back. ’ He wore the brace regularly for a period of six months; since then he has-worn it two or three times a week, when his. back hurts the most. He was unable to do-any work of any kind for eight months. He then went to work at Monarch Furniture Company in St. Louis, where he remained employed for four months, but was-unable to defray his living expenses on the-wage there received. He then went to work, for Kingsford Charcoal Company, where he-was paid $1.35 to $1.40 an hour. That job, among other tasks, required him to lift bags, some weighing as much as 50 pounds. At the end of ten months, he was unable to-continue because of his back and inability to sleep and quit that job on October 22,. 1960. For five months thereafter he was-unable to find employment. About three weeks before trial time he found a job at Buford Transfer Company, Belle, Missouri, where he is now employed, although his back still hurts when he twists or bends, his body.

Dr. Richard A. Michael, a qualified osteopathic physician, testified: He graduated in 1944. He specializes in general sur ge ry and is a member of the staffs of the Still Osteopathic Hospital, the Callaway County, Phelps County and Pulaski County Hospitals. He caused X-rays to be made of plaintiff’s back upon the latter’s admission to the hospital on May 4, 1959. They revealed multiple injuries in the dorsal spine, compression fractures to the fifth, sixth, seventh and eighth dorsal vertebrae. A compression fracture flattens, mashes down the vertebra and causes it to be wedge-shaped. Such a fracture is caused by severe flexion or forcible bending of the spine. An X-ray, taken in September following the collision in May, still showed the injured condition found in the first X-rays taken. When fractures such as those shown occur, they cause the muscles and ligaments between the vertebrae to become bruised and torn and fibrous excess growth sets up. That occurred in plaintiff’s back. The body cast, as described by plaintiff, was applied, followed by the Taylor brace. The brace consisted, primarily, of a rod which fitted the contour of his back and was held in place by straps which extended around his body and fastened in front. Its purpose was to keep his spine from being bent forward during the period it was worn. Plaintiff will require further medical care; bending or twisting of his body will always cause him pain. His spine is permanently injured to the extent of 20 per cent of its condition prior to his injuries; and it is the witness’ belief that the condition thus shown is the result of the collision.

The evidence adduced by defendants, insofar as material to the question presented on appeal, was that of Dr. Fred Tietjen, a duly qualified doctor of medicine, residing in Jefferson City, specializing in orthopedic surgery and maintaining offices in Jefferson City and Rolla. He testified: He graduated from medical school in 1948 and is on the staffs of the Phelps County Hospital and St. Mary’s and Memorial Hospitals in Jefferson City. At the request of defendants, he examined and caused X-rays of plaintiff to be made at Phelps County Hospital on February 23, 1961. When shown one of the X-rays taken of plaintiff at the direction of Dr. Michael, he said it revealed four vertebrae to be involved. It was his judgment, however, that the condition found was due to juvenile epiphysitis. That is a condition causing abnormality of the skeletal system, which occurs during the adolescent period of a child, especially between the ages of 12 to 16 years, during which time the vertebrae are growing. As the witness interpreted the X-ray, there was a roughening between the inter-vertebral spaces, an irregularity and some wedging, some compressing between the seventh and eighth vertebrae. A “wedging” is one sign of injury, but in this case the witness could not believe that force would create injury to so many vertebrae. Such a condition as that shown in the X-ray is more commonly the result of unusual epi-physitis.

When shown the later X-ray, taken at the direction of Dr. Michael in September, 1959, the witness said it also revealed evident wedging but he could not see any protrusion of the bone, as is nearly always shown in cases of fracture.

X-rays taken at Rolla at the direction of the witness were then introduced in evidence and interpreted by him. He said they showed no evidence of compression as the result of fracture. He did testify, however, that one of the X-rays taken at his> direction did show a “minimal compression fracture of the intervertebral body”, which, he said, could be consistent with a fracture on May 3, 1959, but he saw nothing else on the films taken at his direction to indicate injury to the back from the automobile collision in May, 1959. He further testified that a minimal fracture of less than 10 per cent compression is common, seen frequently, and results only in minimal injury. The witness admitted that the differences shown between the X-rays taken at his direction and those taken at the direction of Dr. Michael were that the X-rays taken at the Still Hospital were “actually in better quality than the films” taken at Rolla. He further testified, in substance, however, that the extent of the wedging shown in Dr. Michael’s pictures indicated that the condition there shown resulted from epiphysitis rather than trauma, because, he said,, if the condition seen in the Michael X-rays was the result of trauma, there would not be as many vertebrae involved; an injury such as would produce the condition shown in the Michael X-rays would tear apart the spine, instead of the minimal compression shown in those pictures; the wedging of four or five vertebrae resulting from force tears apart the spine, dislocation and paralysis from that time on.

In considering whether the- trial court erred in overruling plaintiff’s motion for a new trial predicated upon inadequacy of the verdict, the appellate court views the evidence in the light most favorable to the ruling of the trial court. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 811; Glore v. Bone, Mo., 324 S.W.2d 633, 635 [3]; Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728 [2], [3]. The appellate court, unlike the trial court, does not weigh the evidence. Rather, it seeks to ascertain only whether the trial court abused its discretion in ruling as it did. In other words, was there substantial evidence to support the verdict? “Substantial evidence to support the verdict”, as that phrase is applicable to the question here presented, requires determination of whether the amount of damages awarded is responsive to the evidence; and where the jury, as in this case, has found liability, it is also the jury’s duty to award plaintiff damages commensurate with the personal injuries and other compensa-ble loss sustained by him. Consequently, a verdict which is not supported by the evidence as to the amount of damages must be set aside as promptly as a verdict that is not supported by the evidence at all. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728-729, and the cases therein cited and relied upon.

One of the troublesome features of the problem with which we are confronted is that the evidence as to the severity of the injuries sustained to plaintiff’s spine is directly conflicting and may support a finding by the jury either that the injuries were quite extensive or that they were “minimal”. The testimony of plaintiff relating to the loss of earnings sustained by him was that he was regularly employed as a “laster” by Brown Shoe Company at a wage of $1.00 per hour when the collision occurred and that he was unable to work at all thereafter for a period of eight months; that he then went to work for a furniture company in St. Louis at an hourly wage of $1.10 and raised to $1.25, which employment he voluntarily relinquished; that the next employment obtained by him was at Kingsford Charcoal Company, where he worked regularly for a period of ten months at a wage of $1.35-$1.40 per hour; that the work at the Kingsford Charcoal Company required him sometimes to lift bags weighing 50 pounds, which caused his back to hurt and rendered him to be unable to sleep, necessitating his leaving that job; and that he was unable to find any other employment for a period of five months. The two periods of unemployment computed, respectively, on the basis of a loss of earnings, viz., 8 months (35 forty-hour weeks at $1.00 per hour) and 5 months (22 forty-hours weeks at $1.35 per hour), would amount to a total loss of wages in the sum of $2,588.00. His contention is that the amount of the verdict shows that the jury undertook to award him damages for the amount of his wages only and awarded him nothing for his injuries.

Defendants contend that plaintiff’s position is not tenable because there is no ground upon which such a conclusion may be reached other than pure speculation; and, moreover, that no award could lawfully have been made for wages earned by plaintiff, for the reason that there was no evidence that he, a minor, had been emancipated. As a general rule, of course, loss of earnings or loss of earning capacity of a minor is a loss to his parents, who are entitled to both his earnings and his services Evans v. Farmers Elevator Company, 347 Mo. 326, 147 S.W.2d 593, 598. But, where, as here, a parent institutes and ■prosecutes the action as next friend and in the petition alleges loss of earnings on the part of the minor by reason of his injuries and seeks judgment therefor in the name and for the use of the minor, a different rule applies. The record shows no objection whatever was raised to the right of plaintiff to recover for loss of earnings, as pleaded in the petition, as testified by him at the trial, and as expressly submitted in the measure of damages instruction given in his behalf. Under these circumstances, defendants cannot now assert that he was •not entitled to recover for any loss of earnings sustained as a direct result of negligence of defendants. Hufft v. Kuhn, Mo., 277 S.W.2d 552, 555; Garrison v. Ryno, Mo., 328 S.W.2d 557, 564.

Defendants further contend, however, that it was the sole province of the jury to believe or disbelieve every word or any portion of plaintiff’s testimony about his injuries and his physical condition and to return its verdict in accordance with those findings; and that the verdict reflects that the jury did not believe he sustained either personal injuries or loss of earnings to the extent shown by the evidence adduced in his behalf. We find nothing in the record to indicate how the jury arrived at the amount of its award or the reasoning upon which the trial court, after weighing the evidence, approved it. So the question, as we see it, is: May the verdict be approved as being founded upon any reasonably rationalized basis ? Without any suggestion whatever as to what we may think as to the extent of plaintiff’s injuries or his loss of earnings as a result thereof, we have concluded it may. One possibility will suffice: The verdict could reflect an effort on the part of the jury to compensate plaintiff for the loss of wages during the first 8-month period of his unemployment, denying compensation for wages thereafter on grounds that the later 5-month period of his unemployment was not attributable to his injuries, and then awarding him $1,000 or more for the personal injuries sustained by him, which the jury found not to be so extensive and painful as to warrant a larger award on that account. In any event, we think it clear that a verdict based upon a finding such as that above hypothesized would not be so unreasonable as to require the trial court to set it aside. Conceivably, it could be so justified upon numerous other bases within the range of the evidence and the jury’s belief or disbelief of one or more of the several aspects thereof.

It follows that the verdict being within the range .of reasonably possible findings made by the jury, the trial court, whose duty it was to weigh that evidence and who both saw and heard the witnesses in behalf of both plaintiff and defendants, cannot be convicted of an abuse of discretion in approving it.

The judgment is affirmed.

All concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Richard Eugene SUMMERS, Appellant.
    No. 49237.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      Peter J. J. Rabbitt, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
   STORCKMAN, Judge.

The defendant was convicted of burglary and stealing. The jury assessed his punishment at two years’ imprisonment on each of the two convictions. The court ordered the terms to run concurrently and sentenced the defendant to two years in the custody of the Department of Corrections. The defendant has appealed.

The defendant was represented by counsel in the circuit court, but he is not represented here and has filed no brief. Therefore, the case is before us on the transcript of the record and the brief of the state. In this situation, our review will be of the assignments of error properly preserved in the defendant’s motion for a new trial and designated portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947 [1], . The principal grounds for new trial alleged in the defendant’s motion are that the trial court erred in the admission of certain evidence, that the trial court erred in refusing to direct a verdict of acquittal because the state failed to prove a prima facie case, and that the verdict did not represent a fair expression of the opinion of the jurors because the jury was re-' quired to deliberate an unreasonably long time under the existing circumstances.

The offenses charged are that on the night of June 10, 1960, the defendant forcibly entered a farm shed belonging to Wilbur Hoffman near Rhineland in Montgomery County and stole twenty gallons of gasoline worth approximately $6.00 belonging to Mr. Hoffman. On the night of June 13, 1960, a deputy sheriff lay in wait at a place that was a likely prospect for a gasoline thief. The defendant appeared and was questioned. On the representation of the deputy sheriff that he would get a search warrant, the defendant opened the trunk of his car revealing two empty 5-gallon gasoline cans, two tires, and a length of hose. The defendant was arrested and taken to Montgomery County Jail where later in the day he orally admitted participating with his cousin, Donald Lotshaw, in a burglary and theft on the night of June 10, 1960. Lotshaw pleaded guilty to a charge of burglary and theft of gasoline from the Hoffman shed and was paroled. The defendant Summers stood trial.

Lotshaw testified on behalf of the state that he and the defendant, each in his own automobile, went to a farm on Highway 94 near Rhineland; that he, Lotshaw, broke the hasp from the shed door with a tire tool, and that he and the defendant each took two of the four cans of gasoline that were in the shed and carried them away in their automobiles. The sheriff of MonL gomery County and a deputy sheriff also testified on behalf of the state. The defendant did not take the stand or offer any evidence in his behalf. The evidence will be referred to further in connection with the questions. presented.

The general allegation that the verdict is contrary to the law of the state fails to set forth in detail and with particularity the specific ground or cause for which a new trial is requested and preserves nothing for appellate review. S.Ct. Rule 27.20, V.A.M.R.; State v. Roberts, Mo., 332 S.W.2d 896, 898 [3] ; State v. Daegele, Mo., 302 S.W.2d 20, 22 [2]; State v. Gaddy, Mo., 261 S.W.2d 65, 67 [3].

The motion for new trial further alleges there was a failure of proof in that there was no evidence as to the value of the property stolen. Deputy Sheriff Brongel testified without objection that the value of gasoline at the time in question was “about twenty-nine or thirty cents a gallon”. Furthermore, gasoline is known to have some value and the amount of the value of property stolen in connection with a burglary is not a material factor in the case. Section 560.110 RSMo 1959, V.A.M.S.; State v. Ruyle, Mo., 318 S.W.2d 218, 221 [5],

The defendant also contends that the court erred in admitting into evidence a gasoline can because there was no evidence connecting the can with the property allegedly stolen and “no chain of custody was shown”. The sheriff of Mont-i gomery County testified the gasoline can, state’s exhibit 1, had been brought to his office and that the defendant Summers told the sheriff that it was one of the cans taken from Wilbur Hoffman’s shed. When the can was offered in evidence, defendant’s counsel in response to an inquiry by the court stated, “No objection.” Thereupon the court stated, “The exhibit will be admitted, without objection”. Since the objection to the admission of the gasoline can in evidence was first raised in the motion for new trial, it comes too late and does not properly preserve the question for review. State v. Leonard, Mo., 182 S.W.2d 548, 550 [2]; State v. Rector, 328 Mo. 669, 40 S.W.2d 639, 643 [6]; State v. Koch, 322 Mo. 106, 16 S.W.2d 205, 210 [2], Nevertheless, the exhibit was sufficiently identified if it was otherwise admissible.

Another assignment of error is that the verdict was rendered by means other than a fair expression of the opinion of all the jurors in that the temperature on the day and night of trial was 90 degrees or more and the courtroom and jury room were not air-conditioned; that after nearly five hours of deliberation the jury reported it was unable to reach a verdict but was instructed to keep trying; that after another hour the jury again reported it was unable to reach a verdict but was further instructed to keep trying, and in another fifteen or twenty minutes of confinement the verdict was reached; that when the verdict was announced the jurors were obviously physically and mentally exhausted and some of the women jurors appeared to have been crying and were on the verge of hysteria. These allegations of the motion for new trial do not prove themselves. State v. Clark, Mo., 331 S.W.2d 588, 591 [8], In large part they are not supported by any proof in the transcript.

The record does show that the jury commenced its deliberations about 3:15 or 3:20 p. m. and with the exception of a short interval when they made an inquiry of the court they continued their deliberations until 6:10 p. m. when they were taken to supper. They resumed their deliberations about 7:15 or 7:20 and continued until 8 p. m. when they were called into the courtroom and told by the court of the desirability of their reaching a verdict and the reasons therefor. After the jury again retired the court announced to counsel that his statement to the jury had followed as nearly as possible the statement made and approved in State v. Roberts, Mo., 272 S.W.2d 190, 192. The record does not show how much longer the jury deliberated before returning its verdict. The only information we have on the subject is the statement in the motion for new trial that it was an additional fifteen or twenty minutes. The defendant made no objection during the deliberations of the jury or at any time prior to the filing of his motion for new trial.

Since there is no proof in the record of the atmospheric or other conditions in the court and jury room, or of the mental and physical condition of the jurors, such matters cannot be considered on appeal in connection with the specification of error. State v. Livers, Mo., 340 S.W.2d 21, 25 [4].

All that appears from the record is that the jury deliberated an overall period of about five hours with approximately one hour out for supper and that on two occa-1 sions the court told the members of the jury that they should continue trying to reach a verdict without indicating that any particular kind of verdict should be rendered. The court’s statement to the jury is not attacked as being unfair or improper as to its content.

The length of time that a jury is permitted or required to deliberate is a matter very largely within the discretion of the trial court. State v. Hampton, Mo., 317 S.W.2d 348, 353 [4]; State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 22 [7]; State v. Shelby, 333 Mo. 610, 62 S.W.2d 721, 726 [8], In the circumstances shown by the record, we cannot say that the court abused its discretion. See State v. Herring, Mo., 92 S.W.2d 132, 134 [11]; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 90 [40]; and State v. Rose, 142 Mo. 418, 44 S.W. 329, 332 [5].

During the testimony of Donald Lotshaw, the state’s first witness, he was asked by the prosecuting attorney if he and the defendant “had been on a spree, a series of these acts” and “engaged in a series of these gasoline thefts in the south part of the county”. The defendant’s first objection was sustained whereupon the prosecuting attorney presented his theory as to the admissibility of the evidence and the court explained its ruling out of the hearing of the jury as follows:

“MR. OLIVER: If Your Honor please, I think it’s admissible to show a series of events and actions, a series of thefts, because it was a part of the res gestae and also because it is cumulative evidence to show the nature of the activity of the defendant during this period in question.
“THE COURT: That may or may not be true but the form of the question is not the proper way to show it. It may have overburdens. The objection is sustained.”

Immediately thereafter, the witness was again asked if he and the defendant had stolen gasoline at other places during the period of four or five days before his arrest and, over the defendant’s objection, was permitted to answer: “Three or four different places, to my knowledge.”

Richard Brongel, a part-time deputy sheriff serving without compensation, was also permitted to testify regarding other offenses. He testified in effect that prior to June 13 he had “received complaints from people in the neighborhood around Rhineland about thefts of gasoline” and that he “investigated this shed that Wilbur Hoffman had gas taken from and investigated other areas of the community which had had gasoline taken from them.” The sheriff, Clarence Landrum, in his testimony, volunteered the statement: “We was having a lot of gas stealing right about that time.” The prosecuting attorney then interrogated the sheriff as to the defendant’s being implicated “in a series of gasoline thefts”. The defendant’s objection that the “other occasions are not relevant and material to the issues in this trial” was sustained as to the form of the question, the court stating: “The objection will be sustained to the form of that question for the reasons I have-heretofore given.” Thereupon the prosecuting attorney asked several leading questions, some of them calling for conclusions of the witness to the effect that the defendant had admitted a series of thefts of gasoline “in the neighborhood of five or ten days time”. On cross-examination, the sheriff injected1 a statement that once before he had talked •to the defendant about “a $75.00 check that was passed in McKittrick” on some of the defendant’s “kin people”. He further volunteered that while the defendant was in custody the sheriff of Gasconade County came over and talked to him.

The defendant was charged with breaking and entering “a building belonging to one Wilbur Hoffman” and stealing twenty gallons of gasoline of the reasonable value of $6.00, “the personal property of the said Wilbur Hoffman”. Obviously the other offenses referred to were not and could not have been a part of the res gestae as urged by the state’s attorney. The other part of the state’s theory was that a series of events, actions or thefts could be shown “because it is cumulative evidence”.

The evidence of other offenses was not admissible on the theory relied on by the state or for any other reason apparent from the record. The well-established general rule is that proof of the •commission of other crimes by the defendant is not admissible unless such proof tends to establish the charge for which he is on trial, even though the other crimes were of the same general nature and committed at about the same time and place. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24 [3]. There was no contention that the evidence was within any of the exceptions stated in the Garrison case, such as intent or knowledge. See also State v. Ingram, Mo., 286 S.W.2d 733, 736 [4, 5],

The evidence concerning other thefts of gasoline committed in the same general neighborhood at about the same time as the offense charged was not competent for any purpose and constituted prejudicial error. State v. Whitener, 329 Mo. 838, 46 S.W.2d 579, 581 [1]; State v. Priesmeyer, 327 Mo. 335, 37 S.W.2d 425, 427 [5] ; State v. Irvin, 324 Mo. 217, 22 S.W.2d 772, 773 [1] ; State v. Dixon, Mo., 253 S.W. 746, 748 [8],

Since the case must be reversed and remanded because of prejudicial error noted above, we need not decide the contention that the state failed to prove a prima facie case, but in view of a probable retrial it might be well to examine the shortcomings of the evidence relating to proof of the corpus delicti. This deficiency results largely from the fact that Wilbur Hoffman, the alleged victim of the burglary and theft, was not tendered as a witness. No explanation of his absence was made. The state seemed to consider ownership of the shed and gasoline, and the fact that a burglary and theft had been committed, to be so well known as not to require strict proof. But the corpus delicti cannot be presumed and must be proved by legal evidence sufficient to show that the specific crime charged has actually been committed by someone. 23 C.J.S. Criminal Law § 916(2), p. 626; State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713, 715 [4, 5]; State v. Hawkins, Mo., 165 S.W.2d 644, 646 [5-8],

Unless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extrajudicial admissions, statements or confessions of the accused are not admissible in evidence, and where improperly admitted are insufficient to sustain a conviction. State v. Cooper, 358 Mo. 269, 214 S.W.2d 19, 20 [2, 3] ; State v. Bennett, Mo., 6 S.W.2d 881, 882 [2]; City of St. Louis v. Watters, Mo.App., 289 S.W.2d 444, 446 [6],

The testimony of the accomplice Lotshaw tended to show that he and the defendant forcibly entered an old shed and carried away four 5-gallon cans of gasoline, but the testimony falls short of proving whose shed it was and to whom the gasoline belonged. He specifically stated that he did not know whose property it was. Richard Brongel, the part-time deputy sheriff, testified that he “investigated this shed that Wilbur Hoffman had gas taken from” and that he arrested the defendant and heard his admissions, but Brongel’s testimony adds little, if any, independent proof of the essential elements of the corpus delicti. Sheriff Clarence Landrum testified that he received a call from Wilbur Hoffman, the nature of which was that “somebody had broke into his shed out at his farm in the bottom where he keeps his machinery and his gas”; and that he, the sheriff, went down and saw that the hasp had been pried off of the shed. The sheriff further testified that Mr. Hoffman told him that “there was four gasoline cans, five gallon cans, full of gas” missing. This, of course, is hearsay evidence, but it was not objected to.

It has been held that where hearsay evidence is not objected to, it is in the case and has some probative value. State v. Willis, Mo., 283 S.W.2d 534, 537 [2]. Also the defendant’s constitutional right to meet the witnesses against him face to face has been held to be a personal privilege which the defendant may waive. Art. I, § 18(a), Constitution of Missouri 1945, V.A.M.S.; State v. Harmon, Mo., 243 S.W.2d 326, 328 [2] ; State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 259 [5], 122 A.L.R. 417; State v. Wagner, 78 Mo. 644, 648. On the other hand, hearsay statements of the prosecuting witness are not admissible over proper objection. State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713, 715 [3]; State v. Stillman, Mo., 301 S.W.2d 830, 833-834 [4]; State v. Chernick, Mo., 278 S.W. 2d 741, 747-748 [4, 5] ; State v. Gallina, 352 Mo. 557, 178 S.W.2d 433, 434 [2],

Furthermore, some of the hearsay testi-' mony has the appearance of being conclusions of the witness and of doubtful evi-dentiary value. With all the favorable inferences to which the state’s evidence is entitled, the record presents at best a borderline case on proof of the corpus delicti. This is especially true with regard to the ownership of the gasoline and the charge of theft. But under the circumstances it is not necessary to pass on its sufficiency and we do not do so.

Likewise, it is unnecessary to pass on defendant’s complaint that the court erred in instructing the jury in response to an inquiry as to whether burglary and stealing were offenses requiring the assessment of separate punishments. This matter is not likely to recur at another trial.

The judgment is reversed and the cause remanded.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    John Phillip POTTS, Appellant, v. Charles C. VADNAIS, Jr., Administrator of the Estate of Charles C. Vadnals, deceased, Respondent.
    No. 49113.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      Stephen J. Millett, Kingston, Joe H. Miller, Carrollton, for appellant.
    David Thomas, Dudley Thomas, Car-rollton, Don Chapman, Sr., Chapman & 'Chapman, Chillicothe, for respondent.
   EAGER, Presiding Judge.

This appeal again raises a question of the •effect of our Probate “non-claim” statutes; more specifically, the effect of § 473.360, as originally enacted and as revised in 1959, upon failure of plaintiff to file notice in the probate court of the pendency of a suit against an executor or administrator. We bad thought that all suits controlled by the former act had been disposed of. The statutory history is well reviewed in State •ex rel. Whitaker v. Hall, Banc, Mo., 358 S.W.2d 845, and other cases, and we shall mot quote the pertinent statutes here.

In this case Charles C. Vadnais died on July 22, 1958, presumably as the result of an automobile collision which occurred on July 19; on the 25th of July letters of administration were issued to his son, Charles C. Vadnais, Jr., by the Probate Court of Livingston County. The first publication of notice of letters was made on July 31, 1958. This was not a non-asset estate; the balance in personal property, after the payment of claims, was $4,767.83. This suit was filed against the Administrator on September 11, 1958, in Livingston County. A more or less formal motion to dismiss was overruled and answer filed; thereafter, a change of venue was granted to Carroll County. In a first amended answer filed on June 9, 1959, defendant raised the failure of plaintiff to file the proper notice under the non-claim statutes. Thereafter, an amended petition (alleging additional negligence) was filed, followed by a motion to dismiss; that motion renewed the objection that the action was barred because of plaintiff’s failure to file in the probate court within the nine-months’ period any notice of the suit o.r copies of the process and return. Plaintiff’s counsel filed a “counter-affidavit,” asserting that he had filed both a notice and the requisite copies. The court heard considerable evidence in support of and in contravention of the motion. The Clerk of the Probate Court of Livingston County produced her minute book or index (marked and .received as an exhibit), the complete court file folder and filed papers in the Vadnais estate, the order approving the final settlement and discharging the administrator, and the decree of heirship and distribution. The clerk, who had been such since 1947, explained her methods of filing, indexing and recording, and further testified: that she had checked the complete record and the files in this estate, had found no such notice or copies, and that she found nothing to indicate that any such papers had ever been filed; she finally stated that “Definitely it was never filed,” and that all the papers filed in the estate were in the folder. On cross-examination she thought she had seen plaintiff’s counsel in her office on some business or record search, and she denied receiving from him any such paper as the copy of a notice, process, etc., exhibited to her on the stand; she stated that abstrac-tors and the interested attorneys frequently checked the files out on receipt; she did not recall any such notice of suit being filed in any estate. Stephen J. Millett, plaintiff’s counsel, testified: that he was in the Circuit Court at Chillicothe on October 20, 1958, on motions in this case; that when he concluded there, he went to the probate court and handed to the clerk a notice of the pendency of the present suit, along with copies of the summons and return; also, that he had since examined the clerk’s minute book for the period from July 3, 1953, to March 31, 1960, and had found no entry concerning any such notice in any estate. Portions of Mr. Millett’s testimony were received over the objection that it was thus sought to impeach the probate records. Counsel also offered, as Plaintiff’s Exhibit 1, a copy of the notice and other papers supposedly so filed; the ruling upon the objections to this exhibit was reserved. Upon application of plaintiff for the hearing of additional evidence, the court heard later the testimony of John Phillip Potts, the present plaintiff, who testified that he had been in the Circuit Court on October 20, 1958, to put up money for security for costs, that he went to the Probate Court with Mr. Millett, that he saw the latter hand “some papers” to the clerk, and that Plaintiff’s Exhibit 1 looked like the paper that was filed. The Circuit Court record showed that a cash cost deposit of $100 was made on October 20, 1958.

The court, after taking the matter under advisement, sustained the motion to dismiss and ordered the petition dismissed for failure to perfect the claim in the Probate Court. A motion for new trial was filed and overruled in due course, and this appeal followed. In overruling the motion, the court noted in its order that plaintiff’s rights were extinguished under the Laws of 1955, prior to the amendment of 1959.

Boiled down somewhat, plaintiff’s points here are: (1) that plaintiff did file the notice and copies of summons and return and complied in all respects with the provisions of §§ 473.360 and 473.367, as they existed prior to the 1959 amendment, and that the court improperly excluded the proffered copy; (2) that the motion to dismiss came too late, being filed after the effective date of the 1959 amendment; (3) that the non-claim statutes are procedural acts, affecting the remedy only, and that plaintiff, having filed suit within nine months, had and has a right to proceed under the general law as it existed prior to the enactment of the non-claim statutes; and (4) that procedural statutes such as these, and particularly the 1959 amendment, apply to all actions falling within their terms unless a contrary intention is expressed, and since this action was pending on August 29, 1959, plaintiff should be permitted to proceed even if no notice was filed.

Plaintiff has briefed as a fact issue here the question of the filing of the notice and copies. The contention that the notice was filed is based upon the oral testimony, plus the offer of Exhibit 1 which purported to be a copy of the notice allegedly filed, and with its attached papers. Objections were made at the trial upon the grounds that such evidence constituted an attempt to impeach the record of the Probate Court and constituted a collateral attack. The trial court proceeded to hear the oral testimony, apparently upon the theory that the presumption created by the clerk’s testimony and the absence of any entry in the record book was a rebuttable presumption; it reserved a ruling on the exhibit and, so far as we can find, never ruled on it. The latter is immaterial in our view of the case, for if the evidence is to be considered here, we may also consider excluded evidence. Civil Rule 73.01(d), V.A.M.R.

The objections thus made below raised a somewhat unusual question. There was no affirmative record of non-filing in the Probate Court, and there could ordinarily be none. The book and the clerk’s testimony were of a negative nature, but all this might well be considered as evidence showing the state of the record. Were the question properly presented here, we would have considerable doubt of the admissibility of the oral testimony offered by plaintiff, and of the exhibit (which actually stood on the same ground). We would also doubt whether such an attack could be made initially in the Circuit Court, rather than by some form of direct attack in the Probate Court. But defendant has not followed up here the objections made in the trial court, and has not raised the inadmissibility of any of this evidence. In this state of the record we do not exhaust the questions thus suggested, nor rule them.

The decision of the trial court on the factual question should be viewed here in the manner in which we consider a court’s action upon the review of a court tried case. That rule is that we review the case upon the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses, and not setting the judgment aside unless clearly erroneous. Section 510.310; Civil Rule 73.01(d); Ennis v. Korb, Mo., 347 S.W.2d 671, 675. Defendant’s counsel are incorrect in stating that where there is substantial evidence supporting the trial court’s finding, we must accept it. Where any such statements have been made since the enactment of our Civil Code, they should simply be taken to mean that the evidence is such that the appellate court feels that it must adopt the rule of deference. We are not bound. In this case, where the court has seen and has so carefully and patiently heard the witnesses at length, and has viewed the records, we do not feel that we would be justified in rejecting a finding so obviously based upon its view of the credibility of the witnesses. We accept the finding inherent in the trial court’s ruling, that neither a notice of suit nor copies of the process and return were filed in the probate court.

Plaintiff apparently recognizes, as he must, the controlling authority of Clarke v. Organ, Banc, Mo., 329 S.W.2d 670, as applied to suits governed by § 473.360 of the original probate code (Laws 1955, § 139, p. 434). That case also determined authoritatively that the fact that a defendant’s pleading, raising the question of a failure to file notice, was filed after the nine-month period had expired, was immaterial. The court there said, in part, loe. cit. 679, referring to the statute: “This language can leave no doubt as to the effectiveness of the provisions here. It makes no exceptions and its provisions are mandatory. In view of the all-pervading terms of these non-claim statutes we hold that they bar a suit for death against the estate of a deceased tort-feasor unless the conditions there imposed are complied with.” That case was followed in the recent case of State ex rel. Whitaker v. Hall, Banc, Mo., 358 S.W.2d 845. There the court held, among other things: that despite the Act of 1959 the causes of action were barred, since they had already been extinguished under the provisions of the original § 373.360; that the so-called amendment of 1959 was actually a new act, enacted upon the repeal of the 1955 sections, and that it should not be construed as applicable to “causes of action already barred,” there being nothing in the new sections to indicate such an intent. Whitaker, loe. cit. 851.

In Smith v. Maynard, Banc, Mo., 339 S.W.2d 737, the decision in Clarke v. Organ was also re-affirmed, and a contention of defendant’s waiver by participating in the case generally before raising the question of a failure of notice, was disallowed. It seems possible that the dissent of two judges in that case may have given rise to some of plaintiff’s contentions here, but that can afford him little legal solace.

Plaintiff’s counsel rely principally upon the cases of Rabin v. Krogsdale, Mo., 346 S.W.2d 58; Darrah v. Foster, Mo., 355 S.W.2d 24; and Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. We consider first the Wentz case, merely for the principles declared. It involved a Workmen’s Compensation claim and is inapplicable upon its facts. There the statutory limitation upon the time of filing claims had been extended from six months to one year before the old limitation had fully run upon the claim involved; the claimant had filed within the period of the new and extended limitation. It was held that the filing was within time; however, the court said, loc. cit. 853: “Ordinary statutes of limitation are held to affect the remedy only. The principle is well settled that the period of limitation prescribed by such statutes may be enlarged and become applicable to existing causes of action, but an enlargement of the period of limitation may not revive a cause of action which has been barred under the limitation as it previously existed.” The statute was held to be merely procedural. We have no quarrel with the holding there, but fail to see that it aids the present plaintiff.

In Rabin v. Krogsdale, supra, a defendant died while a personal injury action was pending and his executor was substituted. No notice of pendency was filed in the Probate Court within nine months after the first publication, but the 1959 Act became effective during the nine-month period. Under that Act, § 473.360(2) RSMo 1959, actions were not barred by the failure to file notice, the alternative being that “no recovery may be had * * ⅜ out of any assets” of the estate. The court held that these statutes merely affected the remedy, and that the legislature might have extended the time for filing notice as to existing causes of action; it said, loc. cit. 60, 61: “Conversely, since statutes of limitation relate to the remedy only, ‘the legislature has the power to increase the period of time necessary to constitute limitation, and to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations.’ Annotation 46 A.L.R. 1101. * * If the legislature may lengthen or shorten the nonclaim period as to pending actions a fortiori it may otherwise alter or change its procedural effect.” (Last italics ours.) That opinion did not purport to hold that the 1959 statute was applicable to a cause of action against which the nine-month period had run prior to the effective date of the 1959 Act, namely, August 29, 1959. The Rabin case was extensively discussed and expressly distinguished in Whitaker, supra, at 358 S.W.2d loc. cit. 849-850.

In Darrah v. Foster, Mo., 355 S.W.2d 24, the court relied, in part at least, upon the Rabin case, stating, loc. cit. 29: “In the Rabin case, as in the case at bar, the effective date of the 1959 enactment occurred before the nine-month period had elapsed. This court held that the legislature could regulate the time and manner of bringing and maintaining suits including an existing cause of action and concluded that plaintiff’s action was governed by the new statutes.” The court in Dar-rah adhered to the rule that these statutes affected the remedy only, and that the new act might apply to an existing right of action. The court further said, loc. cit. 31: “Under the 1959 act the effect of failing to file the statutory notice in probate court is limited; it is not made an indispensable prerequisite to the maintenance of such an action and becomes important only if the judgment creditor undertakes to file his judgment in probate, have it classified as a claim and paid out of assets in the probate court or out of assets that have been distributed.” And the court concluded, loc. cit. 32: “Within the time permitted for filing the notice in probate court, the need for doing so was extinguished by the 1959 act.” (Italics ours.) We find nothing in the Darrah case which is controlling here.

As pointed out long ago in the Wentz case, a remedial statute may be made applicable “to existing causes of action, but * * * may not revive a cause of action which has been barred under the limitation as it previously existed.” This is a fair expression of the retrospective scope of a remedial statute. We may not ignore the effect of § 473.360(2) as enacted in 1955, and as construed in the Clarke, Smith and Whitaker cases, supra. Since we affirm the finding that no notice (or copies of process and return) was filed within nine months, the necessary result is that this right of action was barred before the 1959 Act became effective.

As already indicated, the controlling distinction in the Rabin and Darrah cases lies in the fact that in those cases the 1959 Act became effective during the nine-month period, and while the causes of action were still alive. An enlargement of the statute cannot revive a cause of action which is already dead. We regard as immaterial the fact that this case was still pending on the circuit court docket when the 1955 Act became effective; the underlying and essential right of action was barred upon the expiration of nine months following the first publication of notice of letters granted.

Counsel argue that plaintiff, in view of the 1959 Act, should be permitted to proceed under the “general law,” since that Act removed the “harsh penalty.” This idea of “general law” apparently arises from the dissenting opinion in Smith v. Maynard, Banc, Mo., 339 S.W.2d 737, and from a phrase used (355 S.W.2d loe. cit. 31) in Darrah v. Foster. The dissenting view in Smith did not prevail there, nor is it controlling here. The Darrah case has already been distinguished. This Court, in Banc, has re-affirmed the majority view in the Qarke and Smith cases in the Whitaker case, supra. We hold that the 1959 Act is of no avail to plaintiff since his right of action had already been barred, and there is no point in a further discussion of this additional suggestion.

We mention briefly plaintiff’s attempted distinction of the Whitaker case. Counsel say, in substance, that the suits under consideration there had been re-filed long after the nine-month period, after the dismissals of prior suits; that the suit in our case was filed promptly, and that it remained “pending” until dismissed involuntarily. True, the facts showing delay in the Whitaker case were more exaggerated than here; but the essential principles declared there re-affirmed the rulings in Clarke v. 'Organ and Smith v. Maynard, supra. That case was not decided upon the narrow point that the prior suits had been dismissed and had thus been stricken from the court docket. The Whitaker case is the last word from our Court in Banc, and it confirms the conclusions which we have reached here. Finally, in connection with the same discussion, counsel say that there was at all times a dispute in the present case as to whether the appropriate notice had been filed; — and that the case certainly was a pending case until that question was determined. Surely, if it were eventually determined that the notice had been filed, then the suit was and is a pending suit with all necessary conditions fulfilled. But conversely, if the finding and decision were (as as we have affirmed) that the notice was not filed, then original § 473.360 was at all appropriate times effective upon it, and the bar of that statute was not tolled, because in fact no notice had been filed. The existence of a factual dispute as to the notice, once it has been determined, cannot alter the basic law.

Further discussion would avail nothing. The judgment of dismissal is affirmed.

All of the Judges concur.

      . All statutory references are to RSMo and V.A.M.S.


author: WESTHUES, Chief Justice.

text:
    Osie FAIRLEY, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, A Corporation, Defendant-Appellant.
    No. 49369.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1962.
    Donald L. Schmidt, St. Louis, for appellant.
    Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for respondent.
   WESTHUES, Chief Justice.

Plaintiff Osie Fairley filed this action in the Circuit Court of the City of St. Louis against the St. Louis Public Service Company to recover damages for injuries alleged to have been sustained while she was a passenger on a bus operated by the defendant company. A trial resulted in a verdict and judgment in plaintiff’s favor for $2,000. On appeal, the St. Louis Court of Appeals remanded the case for retrial on the question of damages only. Fairley v. St. Louis Public Service Co., 352 S.W.2d 393. On application of the defendant, the cause was transferred to this court.

In the circuit court, the cause was submitted to a jury on the theory of res ipsa loquitur. On appeal, the Court of Appeals held that such a submission was proper. On the application to transfer, this court was of the opinion that the case should not have been submitted on res ipsa loquitur but should have been submitted on specific negligence. We are still of that opinion.

On the morning of July 6, 1958, plaintiff was a passenger on a bus operated by the defendant. As the bus approached the intersection of Waterman Avenue and Union Boulevard, plaintiff pulled the cord which operated the buzzer signaling her intention of getting off the bus. She was sitting next to a window and a man occupied the seat beside plaintiff on the aisle side. This man stepped into the aisle to permit the plaintiff to pass. As plaintiff slid over the seat to the aisle, she felt a sting on her left leg below the knee. After she reached the aisle, she noticed her leg was bleeding. The man who had been sitting next to her gave her a handkerchief which another passenger, a Mrs. Thompson, tied around plaintiff’s leg. Later, she was taken to a hospital. (For a more complete statement of plaintiff’s injuries, see the opinion of the Court of Appeals, supra.) Plaintiff did not examine the seat. However, Mrs. Ruby Thompson, a plaintiff’s witness who had aided plaintiff with her injuries, testified that she did examine the seat and found a metal obj ect protruding from the seat. Mrs. Thompson, in describing the metal object, stated:

“A Well, as near as I can describe it, it was a flat object, and it seemed to be cut and left little jagged ends on this piece of iron, whatever you call it.
⅜ * ⅜ * * *
“Q Now, when you noticed this thing protruding, you say you had to look down?
“A Yes, you have to look down.
“Q It was visible to the naked eye; is that correct?
“A Yes.
⅜ ⅝ ⅜ ⅝ ⅜ ⅝
“Q Now, you say that you saw this piece here for about ten minutes, is that correct?
“A Yes. I was on the bus and sat back in this seat and felt this thing and sat there and felt it.
“Q When you noticed this piece of metal, could you describe the condition of that piece of metal?
“A Well, it’s a flat piece of metal and it had been cut, it had a jagged end.
“Q Did you notice anything else about the piece of metal, anything on it that you could describe?
“A Nothing but the jagged end.
“Q Was it painted?
“A No, unpainted.”

Dr. Vaughn Payne testified he treated plaintiff after her injury. Note his evidence with reference to plaintiff’s injury:

“Q Now Doctor, did you notice any cut or anything on the leg?
“A She had a laceration or puncture wounds in the same area where that blood was coming from.
“Q Could you describe this area, Doctor, or this puncture or cut that you just described?
“A Well, it was cut, a wound. You could tell it was cut because it was kind of jagged. It had — some blood had already clotted in the wound. Of course, I didn’t do a whole lot of washing out because I was trying to control the hemorrhage at that time myself.
“Q Now Doctor, what did you do on that first trip, what did you do for Mrs. Fairley?
“A Well, we cleaned it up on the outside and then pulled the wound together with adhesive tape because I didn’t want to put a suture in it because it was probably infected and I didn’t want to sew up any infection in her leg, so I pulled it together with adhesive plaster.”

On cross-examination, defendant’s counsel asked Dr. Payne if due to plaintiff’s condition of having varicose veins the bleeding might have been the result of a spontaneous rupture. Note the doctor’s evidence on this question:

“Q What would be the force that pushes it against this object that would cause the vein to rupture?
“A Well, it is more due to the type of object which it goes against, because a sharp object would almost immediately rupture with almost no force at all.
“Q That’s right. So then Doctor it would be your testimony that there is a relation to the force that you place against the particular object might have something to do with the rupture of a vein?
“A No, my testimony was that we had a cut there, a laceration. There is no question about it being cut. The vein was not burst in my opinion, the vein was cut.”

Dr. E. C. Funsch testified as a witness for the defendant. The doctor had examined plaintiff a few days before the trial. Note a portion of his evidence:

“Q Now Doctor, this scar that you were talking about, was there anything unusual about that?
“A No, it was just a superficial scar.
“Q Had this scar shown the normal healing process?
“A It was healed.
“Q Doctor, was there anything, as you said a thickening, did you find any swelling or thickening about her legs?
“A No. Some of her veins of her legs were a little large, but the skin was normal.”

Defendant offered in evidence a seat (from a bus) similar to but not the one on which plaintiff claimed to have been injured. This seat was Exhibit A. On cross-examination of Dr. Funsch, the following occurred:

“Q Now Doctor, I am going to call your attention to Defendant’s Exhibit ‘A’ and ask you to look at these two metal clamps on the sides of it Doctor, and ask you to move the seat this way, please Doctor (indicating).
“(Witness moves seat)
“Q Would a person brushing against one of those, would that cause a laceration?
“A Sure.
“MR. SCHMIDT: I would like to object to that as calling for speculation on the part of the Doctor.
“THE COURT: He is qualified as an expert. The objection is overruled.
“A I don’t think it takes an expert to tell that. You could skin your shin on that.”

Defendant’s negligence, if any, in this case, as shown by plaintiff’s evidence, was having a metal strip with a jagged edge supporting the bus seat which was likely to produce an injury. Defendant says the metal strip was in fact a clamp to hold the seat cushion to the frame. The unsafe condition, if it was so, was not the result of an unusual occurrence but was a part of the permanent equipment on the bus. Plaintiff’s evidence left nothing to speculation. The evidence of plaintiff was specific on the question of what caused her injury. The court’s instruction submitting the case should have been, in substance, one that informed the jury that the defendant was liable only if the jury found that the defendant was negligent in having the metal strip, as described in plaintiff’s evidence, on the bus seat and that such a metal strip rendered the equipment of the bus unsafe and that such unsafe condition caused plaintiff’s injury.

In Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 1. c. 85(13), this court had before it a case wherein a suitcase was caused to fall from an overhead baggage rack of a coach and to strike the plaintiff. Plaintiff’s evidence was that there was a violent sidewise lurch of the train coach causing the suitcase to fall. It was contended by the defendant that plaintiff’s evidence tended to prove specific negligence. This court, in holding that contention to be faulty, stated: “The circumstance of the ‘unusual and extraordinarily violent sidewise lurch,’ as we see it, may be reasonably inferred to have been a circumstance, a result, due to ‘some negligence,’ the proximate cause of plaintiff’s injury, of which negligence the circumstance itself and the fact of the carrier-defendant’s exclusive control of the train afford bases. The extraordinarily violent lurch ‘speaks’ of some kind of negligence, but does not ‘spell out’ the specific fault. Belding v. St. Louis Public Service Co., supra, [Mo.App., 205 S.W.2d 866]. And compare Jones v. Thompson, 353 Mo. 730, 184 S.W.2d 407; La Vigne v. St. Louis Public Service Co., Mo.Sup., 181 S.W.2d 541; Jones v. Kansas City Public Service Co., supra, [236 Mo.App. 794, 155 S.W.2d 775.”

In the case before us, plaintiff’s evidence did “spell out” the specific negligence which was claimed to have caused the injury. Our ruling is that the trial court erred in submitting the case to a jury by an instruction on the theory of the res ipsa loquitur doctrine.

Defendant, in its brief, asserts that the trial court should have directed a verdict for the defendant for the reason that the evidence was insufficient to sustain a plaintiff’s verdict. A reading of the evidence quoted supra should be sufficient to demonstrate that a jury could find that the defendant was negligent in furnishing a seat to passengers not reasonably safe and likely to cause injury. We rule the point against the defendant.

Defendant says further that the instruction on the measure of damages was erroneous because it authorized damages for loss of future wages and future medical treatment and expense when there was no evidence to support such a submission. The evidence as to future medical treatment is vague and uncertain and the record contains no evidence as to future loss of wages. On a retrial, such errors may be avoided either by not submitting such items in the damage instruction or by plaintiff’s offering direct evidence in support of such claims.

The judgment of the trial court is reversed and the cause remanded for retrial. It is so ordered.

All concur