text:
    James F. MORRELL, Appellant, v. Mrs. Gilbert HARRIS et al., Respondents.
    No. 52424.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Transfer to Court en Banc or for Rehearing Denied Sept. 11, 1967.

      Orville Richardson, St. Louis, for appellant.
    Leo Lyng, Russell N. MacLeod, St. Louis, for respondents.
   BARRETT, Commissioner.

In March 1964 the appellant Morrell was appointed Commissioner of School Buildings of the City of St. Louis for the statutory term of four years. In March 1966, after a newspaper report of Morrell’s “working school board employees at (his) residence,” the Board of Education discharged him. On April 20, 1966, alleging that there was no other provision for judicial review of the board’s actions, Morrell filed in the Circuit Court of the City of St. Louis a “Petition for Review of a Final Decision of an Administrative Agency Under Chapter 536, V.A.M.S.” In this petition the action of the Board of Education was attacked for a number of reasons, among others that in violation of his constitutional rights he was discharged “without cause” and “without notice, hearing, (or) opportunity to be heard.” It was charged that the board failed to follow prescribed statutory procedure, failed to give him a reasonable opportunity to prepare, that his discharge was “without support in law or evidence,” that it was not only without cause but constituted an abuse of discretion. For all these reasons Mor-rell prayed that the court take jurisdiction of the petition for review, require the board to file its record for the court’s review and finally that the court “consider evidence” and under the Administrative Review Act review and set aside his discharge or enter such order as the record demanded.

To this petition, the board filed a motion to dismiss for the reasons (1) that chapter 536 “is not applicable to the fact situation set out in plaintiff’s petition” and (2) that the petition fails “to state a claim for relief against these defendants, upon which the relief prayed for can be granted.” The trial court, without indicating its reasons, sustained the board’s motion and dismissed the petition with prejudice and the plaintiff has appealed alleging that by reason of his discharge in violation of the due process provisions of the state and federal constitutions this court has jurisdiction of the cause. Dittmeier v. Missouri Real Estate Commission, Mo., 316 S.W.2d 1.

Although the record as presented here, particularly the supplemental transcript agreed to by the parties, suggests several interesting problems the only question the parties have briefed and argued is whether the proceeding before the board was a “contested case” and therefore subject to judicial review under the Administrative Procedure Act. The board’s claim is that the proceeding was not a “contested case” and therefore it was not required to follow contested case procedures, that the statutes “now make a categorical division between contested and non-contested cases based on whether or not a hearing is required by law” and so it is urged that neither directly nor by implication do the statutes require a hearing. The board’s sole reliance in support of its position is State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353 and its interpretation of chapter 536, the administrative procedure act. It is sufficient here to note that that case recognized that a “contested case” is one “which must be contested before an administrative agency because of a requirement * * * for a hearing before it of which a record must be made unless waived.” (318 S.W.2d 1. c. 356.)

Not only does the act by its own terms define a “contested case” as a proceeding in which “legal rights, duties or privileges of specific parties are required by statute to be determined after hearing” (RSMo 1959, § 536.010(3), V.A.M.S.), the right to an appeal is given to one who is “aggrieved by a final decision in a contested case.” RSMo 1959, § 536.100, V.A.M.S. It is not necessary here to enter upon a discussion of the purposes and scope of the administrative procedure act, its broad scope is indicated by the amendment of 1953 (Laws Mo.1953, p. 678) in which it is provided that when “any administrative officer or body” renders a decision which is not subject to administrative review “such decision may be reviewed by suit for injunction, certi-orari, mandamus, prohibition or other appropriate action.” RSMo 1959 Supp. § 536.150, V.A.M.S. And the appellant Mor-rell contends that if his petition for review is not good and sufficient under the general provisions of the act it should be treated “as one in the nature of an action for relief in the nature of certiorari,” and, of course, misconceiving the precisely applicable remedy should not be fatal. Ruedlinger v. Long, Mo.App., 283 S.W.2d 889.

The statute under which the appellant Morrell was appointed specifically provides that he “may be removed by the board of education for cause by a two-thirds vote of the entire board.” RSMo 1959, § 168.231 (3), V.A.M.S. Another general statute relating to metropolitan school districts provides that “All testimony taken upon any investigation made by the board, or in any proceedings before the board for the removal of any officer or employee of the board, or in any investigation made by any committee of the board, shall be under oath, which oath may be administered by the secretary and treasurer, or any officer authorized to administer oaths.” RSMo 1959, § 162.651, V.A.M.S. While the record here refutes several of the appellant’s claims, it does show that there was a hearing before the board, witnesses were heard and there were charges of misconduct, including a violation of appellant’s duties with respect to the employees under his supervision (RSMo 1959, § 168.241, V.A.M.S.) and it is difficult to conceive of the proceeding in any light other than one to remove him from his office “for cause.” RSMo 1959, § 168.231, V.A.M.S.

While repealed and superseded in 1963 (Laws Mo. 1963, p. 200), in prior years the circuit court had jurisdiction over certain board of education problems including, upon breach of trust, the power “to remove any [such] member or officer upon proof or conviction of gross misconduct.” RSMo 1959, § 165.583, V.A.M.S. In a petition by board members under this statute to remove the commissioner of school buildings for misconduct in unnecessarily hiring employees the court said of then section 165.600 (now section 168.231) that it did not preempt the field of supervision over school employees and was “a remedy conferred only upon the Board” on a two-thirds vote “for cause” and it is plain that the court treated and considered a proceeding under that section as a quasi-judicial proceeding and as a “contested case.” Antoine v. Fletcher, Mo.App., 307 S.W.2d 898, 904, 907. See also Antoine v. McCaffery, Mo.App., 335 S.W.2d 474, in which a board member was removed under this provision, and State ex rel. Brokaw v. Board of Education, Mo.App., 171 S.W. 2d 75, 81. While these cases are not precisely in point they in fact contain persuasive lessons.

This is not to delimit the procedure or indicate just what issues may be raised and resolved, it is to indicate, however, that upon this record this particular proceeding was a “contested case (Scism v. Long, Mo.App., 280 S.W.2d 481) and final decision of an administrative tribunal within the meaning of chapter 536 and the constitution (Const.Mo. Sec. 5, Art. 22, V.A.M.S.) and that the trial court erred in summarily adjudicating the cause upon the respondents’ mere motion to dismiss for the assigned reasons of failure of the petition to state a claim for relief or because the statute was not applicable. Accordingly the judgment is reversed and the cause remanded.

STOCKARD, and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John Hillary DURHAM, Appellant.
    No. 51653.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Motion for Rehearing or for Transfer to Court en Banc Denied Sept. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Joseph Langworthy, Pacific, for appellant.
   DONNELLY, Judge.

Appellant, John Hillary Durham, was convicted of statutory rape under § 559.260, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.-280, RSMo 1959, V.A.M.S., was assessed at imprisonment for a term of thirty-five years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. However, a brief summary is in order. Prosecutrix is Flora Jean Young, a female child, who was eleven years of age when the incident in question occurred. Appellant is her stepfather, husband of her mother, Vera Durham. Prosecutrix was living with her grandparents (Vera Durham’s parents) at 936 Laurel in the City of St. Louis. Her home was about one block from the home of appellant and Vera Durham. At noon on December 24, 1963, she went to their home to take care of their children. About 8:00 p.m. that evening appellant left the home and returned about 10:45 p.m. smelling as if he had been drinking. Prosecutrix asked appellant to take her home so she could go to church." Prosecutrix testified that after she and appellant got to the bottom of the stairs outside the house, appellant put a knife to her neck, threatened her, took her to the basement, raped her and committed an act of sodomy. She then ran home, reported the incident to her grandmother, and was taken to Homer G. Phillips Hospital where she was examined by a doctor. There is ample medical evidence in the record to corroborate the attack. Appellant and his wife, Vera Durham, testified in his behalf. Appellant denied he raped prosecutrix. The evidence is sufficient to sustain the conviction.

By stipulation, seven prior convictions of appellant were admitted into evidence. Appellant was granted a pardon for these offenses by the Governor of Missouri on October 8, 1963. Appellant contends that he was erroneously tried and sentenced under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S. He asserts that he was thereby deprived of his right to trial by jury. This contention has been raised many times in this Court and is without merit. State v. Wolfe, Mo.Sup., 343 S.W.2d 10, 12, 13; State v. Maxwell, Mo. Sup., 411 S.W.2d 237, 239, 240. He also asserts that because, after conviction of his prior offenses, he was pardoned by the Governor of Missouri, he is no longer subject to trial and punishment under the Habitual Criminal Act. He contends that his trial and punishment under the Habitual Criminal Act is in violation of Art. II, § 1, and Art. IV, § 7, Const, of Mo.1945, V. A.M.S.

Art. II, § 1, Const, of Mo.1945, divides the powers of government “into three distinct departments — the legislative, [the] executive and judicial — * * Art. IV, § 7, Const, of Mo.1945, gives the Governor power to grant “pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, * *

Appellant characterizes application of the Habitual Criminal Act to him in this case a “legislative and judicial encroachment upon the executive prerogative by diminishing the effect of the pardon.” We do not agree. The Habitual Criminal Act does not affect the punishment the law inflicts for the prior crimes committed. It assesses additional punishment for the subsequent commission of a crime. It seeks to deter subsequent crimes by the same offender. The. Governor may relieve a defendant from punishment assessed for the commission of a crime. However, the Governor’s power to pardon for this offense is not involved or encroached upon by the assessment of increased punishment resulting from the commission of a subsequent offense. State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716; State v. Asher, Mo.Sup., 246 S.W. 911. Appellant’s contention is without merit.

Appellant next questions rulings of the trial court in connection with admissibility of evidence and cross-examination of witnesses. He first complains the trial court erred in permitting witnesses Dr. Morris Moore, Ruth McKnight, Paul London, Gerald Wheatley, and Ernest Troop to testify for the State because their names were endorsed on the indictment by leave of court before, not after, notice to appellant. See S.Ct. Rule 24.17, V.A.M.R.; § 545.070, RSMo 1959, V.A.M.S. The names of Dr. Morris Moore, Ruth McKnight, Gerald Wheatley and Ernest Troop were endorsed on the indictment on May 12, 1964. Trial commenced on May 15, 1964, and a mistrial was declared. The name of Paul London was endorsed on the indictment on May 26, 1964. The trial commenced again on June 16, 1964, and a mistrial was declared. Trial commenced again on November 17, 1964, and a mistrial was declared. Finally, the trial from which this appeal was taken commenced on January 4, 1965, and a verdict was returned on January 8, 1965. Appellant was given adequate notice of the persons the State proposed to call as witnesses against him. This contention is without merit.

Appellant complains of testimony elicited from the prosecutrix concerning an inspection of her body evidencing the commission of acts of sodomy by, appellant at the time of the alleged rape. We need not decide whether this evidence, relating to another crime, comes within the res gestae exception. See State v. Taylor, 320 Mo. 417, 8 S.W.2d 29. The trial court denied a request for mistrial but ordered the evidence stricken and instructed the jury to disregard it. Appellant also alleges the trial court erroneously permitted the jury to view an evidence bag on which the words “and sodomy” were written. It was the considered opinion of the trial court “that the jurors would not have been able to read the writing on the bag.” We find no error prejudicial to appellant in this regard.

Appellant contends the trial court erred in refttsing to declare a mistrial in connection with certain testimony elicited from Dr. Mitchell, who examined the pros-ecutrix at the hospital. That portion of the testimony complained of, to which objection was made, is as follows: “Q Would you tell me, in your own words, what the results of the examination were, and how you conducted it ? A This was an eleven-year-old girl that was brought to the hospital with history of rape. MR. LANGWORTHY: I am going to object to that, and ask for a mistrial. THE COURT: Overruled. Ordered stricken; jury instructed to disregard it. Overruled on the mistrial. THE WITNESS: This was history given to myself. MR. LANGWORTHY: I object to that, and ask for a mistrial. The witness volunteered that without instruction from anybody. THE COURT: Voluntary statement ordered stricken. Jury instructed to disregard it. Overruled as to mistrial.” The trial court instructed the jury to disregard the evidence and ordered it stricken. The trial court dicj not abuse its discretion in refusing to declare a mistrial. State v. Walker, Mo.Sup., 46 S.W.2d 569.

Appellant contends the trial court erred in refusing to allow appellant to show, on cross-examination of prosecutrix, that appellant denied at the police station that he raped her. This evidence was self-serving and incompetent unless part of the res gestae. State v. Wright, 352 Mo. 66, 74, 175 S.W.2d 866, 871. In State v. Stallings, 334 Mo. 1, 64 S.W.2d 643, cited by appellant, it is pointed out that appellant’s statement, in order to be considered part of the res gestae, must be “the apparently spontaneous result of the occurrence operating upon the perceptive senses of the speaker,” and that “the ultimate test is spontaneity and logical relation to the main event.” The element of spontaneity is absent here. There is nothing in the record to indicate that appellant was in such confused mental state as to be unable to think clearly when he allegedly made the statement at the police station nearly two hours after the commission of the crime. Appellant had time to deliberate. The statement in question was not part of the res gestae and the trial court did not err in excluding it. State v. Crouch, 339 Mo. 847, 855, 98 S.W.2d 550, 555; 22A C.J.S. Criminal Law § 737.

Appellant contends the trial court erred in admitting evidence and permitting cross-examination relating to attempts of Vera Durham, wife of appellant, to commit suicide.

On cross-examination by appellant’s counsel, Flora Jean Young testified as follows : “Q I hand you what has been marked Defendant’s Exhibit A. Is that note from you to your mother? A Yes. Q Did you write that to her? A Yes. Q Would you like to read it? Can you read it? A (Reading) Dear Sweetie Pie: I am sorry about the terrible things that I said John did to me Christmas Eve. They were not true. I didn’t like the way he had been treating me. Love Flora Jean Young.” She later testified on cross-examination that her mother, Vera Durham, told her to write the note “and if I didn’t write it down she would kill herself.”

On redirect examination the following testimony was elicited from Flora Jean Young: “Q Do you have any knowledge of the attempts of Vera Durham, your mother, to take her life at any time? MR. LANGWORTHY: I object to that. Beyond the issues in this case. THE COURT: Overruled. MR. LANGWORTHY: I object to it as being leading. THE COURT: Overruled. A Yes. Q And was she admitted to a hospital for that? MR. LANG-WORTHY: I object to that for the same reason. THE COURT: She may answer. A When? Q Well, at any time prior to this particular case, that was in your knowledge? A Was she in the hospital? Q Yes. Did she go down to the hospital? or do you know? A I don’t know. Q You did say that she stated that she would commit suicide if you didn’t write that note; is that correct? A Yes.”

Appellant attacks this testimony as an attempt to impeach the testimony of Vera Durham on a collateral matter and before she had been called as a witness. We do not so construe it. On cross-examination, appellant introduced the note written by Flora Jean Young, wherein she absolved appellant of guilt. She later testified she wrote the note because her mother, Vera Durham, threatened to commit suicide. On redirect examination she was properly permitted to give her reasons for writing the note in order to refute the unfavorable inferences brought out on cross-examination. State v. Vickers, 209 Mo. 12, 106 S.W. 999; City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1009. In the course of a trial, the “order in which testimony is admitted is a matter largely resting in the discretion of a trial court.” State v. Vickers, supra, 209 Mo. 12, 31, 106 S.W. 999, 1004.

Emma Carter, grandmother of Flora Jean Young, and mother of Vera Durham, was asked whether, during the eight years Vera Durham lived with her, she was aware of an occasion when Vera Durham attempted to take her life. Objection was made and the question was never answered.

Vera Durham was cross-examined as follows: “Q. Now, isn’t it a fact, madam, that you took some Lysol in an attempt to commit suicide ? * * * A. The answer to that is no, I have never taken anything in my life to take — make suicide, you can believe that. * * * Q. Had you been a patient in the psychiatric ward in connection with any suicide attempt, have you never been a patient in the psychiatric ward at Homer G. Phillips Hospital?

* * * A. My Mother took me to the hospital at that particular time, but just what they took me there for, I didn’t exactly know, other than I was talking to my first husband over the phone and some of them were eavesdropping or something and out of the conversation they got — after the conversation was over with, they started— my Daddy said what happened and all and my grandfather and my Mother took me over to the hospital and they asked me and the doctor said, ‘Did you take anything?’ and gracious no, I didn’t take anything. They pumped my stomach. You look for the record, there was nothing in me. I had not taken anything. And they kept me there overnight. Everybody was so sorry, just like they told me about their— * * * Q Have you attended Doctor Weekes as a patient for psychiatric help? [No answer given.] Q. During what time of years did you go to Doctor C. V. Weeks, how long have you know the man ? A. Well, he delivered Flora Jean, and that is how I was introduced to Doctor Weekes, through Doctor Young. Q. And that has been then, over at least a twelve year period, is that correct? A. Yes. Q. You have known him for twelve years? A. Yes. Q. Have you gone to him for medical problems over that twelve year period? A. Sure. Q. During this time that you went to him, did he consult with you about any suicidal or psychological problems you may have had? A. No. Q. Did he suggest that you see also and consult with another doctor? A. No. Q. He has never said that at all? A. No, sir. Q. You have never consulted with him about that? A. No. Q. You have never consulted with him about anything to do with taking your life at any time ? A. No.”

Appellant cites State v. Kain, Mo.Sup., 330 S.W.2d 842 and State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503, for the proposition that it is error to impeach the credibility of a witness in a criminal case by showing that her general reputation for morality is bad. These cases are not in point. The State was entitled to show that Flora Jean Young was justifiably intimidated by her mother when she wrote the note. If the child knew her mother had previously attempted suicide, she was more easily intimidated by the threat. We hold the evidence of previous attempts to commit suicide was properly admitted. The cross-examination of Vera Durham was directed to this issue and was proper. Its scope and extent were within the discretion of the trial court. State v. Barnes, 325 Mo. 545, 29 S.W.2d 156; State v. Flinn, Mo. Sup., 96 S.W.2d 506.

Appellant asserts the trial court erred in admitting into evidence a hospital record card, Exhibit No. 4, in that it contained matter that was inadmissible hearsay, was not fully identified, and violated his right under Art. I, § 18(a), Const, of Mo., 1945, “to meet the witnesses against him face to face.”

Appellant’s objection that the hospital record card was inadmissible hearsay is of no substance if it was properly qualified under The Uniform Business Records as Evidence Law. §§ 490.660-490.690, RSMo 1959, V.A.M.S. In Rossomanno v. Laclede Cab Co., Mo.Sup., 328 S.W.2d 677, at 681, this Court said: “The Business Records as Evidence Law abrogated many of the antiquated and technical common law rules regarding the admission of business records in evidence and expanded the operation of the common law rule for the admission of such records as an exception to the hearsay rule. Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663, 669[11, 13]. Therefore, an objection to a business record on the ground that it is hearsay is unavailing if the record meets the requirements of the act for admission in evidence. Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 667[7], 55 A.L.R.2d 1022.”

Hospital records come within the purview of § 490.680, RSMo 1959, V. A.M.S. In order for a record to qualify, there “must, of course, be a preliminary showing of the identity of the record, the mode and time (or times) of its preparation, and that it was made in the regular course of business; if this, and the ‘sources of information,’ are sufficient ‘in the opinion of the court,’ then the record, generally, is admissible.” Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666, 55 A.L.R.2d 1022. “The trial court must of necessity be given a large discretion in his determination of whether the statutory requirements for admission of the business records have been satisfactorily complied with.” Rossomanno v. Laclede Cab Co., supra, 328 S.W.2d 677, 683.

Mary Wilkins, Custodian of the Medical Records at Homer G. Phillips Hospital, identified Exhibit No. 4 as the hospital outpatient card, dated December 25, 1963. Dr. Morris Moore, a microbiologist employed at Homer G. Phillips Hospital, identified the card as a report of some examinations which were made at the hospital. He testified that it bears his handwriting on the front and back, the subject of the card is Flora Jean Young, that he saw it in the hospital, and that he filled out a portion of it as a result of his examinations. We hold this qualification sufficient. The card is competent evidence.

The next question is whether admission of .the whole exhibit into evidence violates appellant’s right under Art. I, § 18(a), Const, of Mo., 1945, “to meet the witnesses against him face to face.” We hold that it does not. In State v. Mc-O’Blenis, 24 Mo. 402, at 416, the Court considered this constitutional right, and said: “The purpose of the people was not, we think, to introduce any new principle into the law of criminal procedure, but to secure those that already existed as part of the law of the land from future change by elevating them into constitutional law. It may as well be the boast of an Englishman living under the common law, as of a citizen of this state living under our constitution, that in a criminal prosecution he has a right to meet the witnesses against him face to face; and yet it was never supposed in England, at any time, that this privilege was violated by the admission of a dying declaration, or of the deposition of a deceased witness, under proper circumstances; nor, indeed, by the reception of any other hearsay evidence established and recognized by law as an exception to the general rule.”

In Missouri, hospital records, if qualified under § 490.680, supra, constitute an exception to the general hearsay rule. Allen v. St. Louis Public Service Company, supra. Therefore, as a general rule, the admission into evidence of a properly qualified hospital record in a criminal case does not violate Art. I, § 18(a), Const, of Mo., 1945.

Appellant cites State v. Gorden, 356 Mo. 1010, 1014, 204 S.W.2d 713, 715, where this Court said: “The Bill of Rights of our Constitution, Art. 1, § 18, Mo.Const.1945, Laws 1945, p. 5, Mo. R.S.A., provides: ‘That in criminal prosecutions the accused shall have the right * * * to meet the witnesses against him face to face * * This provision assures to one accused of crime the rights of confrontation and of cross-examination under oath and excludes extrajudicial statement of witnesses as probative evidence of a defendant’s guilt in the circumstances of the instant case.”

Appellant made only a “blanket objection” to Exhibit No. 4 in the trial court and did not specify those portions of the card considered objectionable. The objection made was properly overruled. Allen v. St. Louis Public Service Company, supra, 285 S.W.2d 663, 667[8-12]. Further, we have examined Exhibit No. 4. We find the words “Alleged Rape” twice written on its face. However, we find recorded on the card no statements made by Flora Jean Young to hospital personnel which would constitute substantive probative evidence that appellant had raped her. State v. Gorden, supra, is not in point. The trial court did not err in admitting Exhibit No. 4 into evidence.

Appellant next alleges the trial court erroneously instructed the jury. He first asserts that the trial court erred in instructing the jury that “feloniously” means “wickedly and against the admonition of the law.” It is true, as appellant contends, that it was not necessary to define “feloniously” in the instruction. The word is used to classify offenses. A felony is an offense punishable by death or by imprisonment in the penitentiary. Section 556.020, RSMo 1959, V.A.M.S. If the facts establish a felony, then the crime was committed “feloniously.” However, in our opinion, the definition could not have prejudiced appellant’s case. State v. Turner, Mo.Sup., 272 S.W.2d 266, 271, 48 A.L.R.2d 1008; State v. Jones, Mo.Sup., 365 S.W.2d 508, 514.

Appellant contends Instruction No. 3 given by the trial court was erroneous and that the trial court erred in refusing his instructions defining “reasonable doubt” and “substantial doubt.” The portion of Instruction No. 3 complained of reads as follows:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.”

Identical language was considered in State v. Davis, Mo.Sup., 365 S.W.2d 577, 580, where this Court said: “The defendant contends that the instruction is erroneous because it creates an inference that something more than a reasonable doubt is necessary for an acquittal and fails to define the term ‘substantial doubt’. It is clear from the context that ‘substantial’ is used in the sense of ‘Not seeming or imaginary; not illusive; real; true’. Webster’s New International Dictionary, Second Edition. The use of the word without further definition did not render the instruction erroneous. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343[14]. Any attempt to make the meaning of the term plainer would probably have the opposite effect.

“Furthermore the instruction does not create an inference that something more than reasonable doubt is necessary for acquittal and it does not take away defendant’s right to have his guilt proved beyond a reasonable doubt. State v. Sanders, Mo., 358 S.W.2d 45, 48 [4] ; State v. Velanti, Mo., 331 S.W.2d 542, 545[4] ; State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227, 232 [12].”

Nearly identical language was considered in State v. Nerzinger, 220 Mo. 36, 49, 119 S.W. 379, 383, where this Court said: “It has often been remarked by this court that this last instruction embodied the true doctrine as to reasonable doubt in criminal causes. As said in State v. Leeper, 78 Mo. 470, its use in this form is almost canonized, and this court has often admonished the circuit courts that it is better to adhere to instructions that have received the approval of this court and not to attempt definitions which add nothing to the meaning of well-understood terms.”

Appellant contends the trial court erred in giving Instruction No. 4 and in refusing to give Instruction G. Instruction No. 4 is identical with Instruction No. 8 given and approved in State v. Knicker, Mo.Sup., 366 S.W.2d 400, 404[8]. Instruction No. 4 properly and sufficiently instructed the jury on “alibi.”

We find no error in the instructions. Appellant’s contentions in this regard are without merit.

Appellant finally complains of comments made by counsel for the State during the trial and in closing argument. We have reviewed the record in this regard and find no abuse of the trial court’s discretion in ruling the matters presented. State v. Eison, Mo.Sup., 271 S.W.2d 571; State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582; State v. Robertson, Mo.Sup., 328 S.W.2d 576.

An examination of the record as required by S.Ct.Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All of the Judges concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM:

text:
    George L. HOUGHTON, Willie D. Houghton, Deana Houghton Rancour, Naida Houghton Hunt, Hertha Houghton Tranter and Essel Houghton Beresford, Respondents, v. Frederick JONES, Jr., Executor of the Estate of Jack Rector, Deceased, Frederick Jones, Jr., Wanda Lee Koeppe, Church of the United Brethren, New Cambria, Missouri, Charles Westen, Executor of the Estate of Theodore Houghton, deceased, James (Jim) Rector, and Mrs. Robert (Bob) Pippin, Appellants.
    No. 52234.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Rehearing Denied Sept. 11, 1967.

      Edwin Yagel, Brookfield, James J. Wheeler, Keytesville, Robert DeVoy, Brookfield, for respondents.
    Harry L. Porter, Marceline, for appellants.
   HENRY J. WESTHUES, Special Commissioner.

This is an action to contest the last will and testament of Theodore M. Hough-ton, deceased, who died on September 18, 1959. The petition was filed in the Circuit Court of Linn County, Missouri, on the 25th day of May, 1960. The case was continued from time to time and, on August 4, 1965, on application of the respondents, the case was transferred to the Circuit Court of Chariton County, Missouri. A trial in January 1966 resulted in a jury verdict finding that the paper writing was not the last will and testament of Theodore M. Houghton. A judgment was entered and appellants appealed. This court has appellate jurisdiction on the grounds that Houghton died leaving real estate and, further, that the value of the estate far exceeds $15,000.

The issue submitted to the jury was whether the testator, Theodore M. Hough-ton, on August 1, 1958, the day the alleged will was executed, was of sound and disposing mind.

In this opinion we shall refer to respondents as plaintiffs and to appellants as defendants.

The beneficiaries of the alleged will of Theodore M. Houghton were the Church of the United Brethren of New Cambria, Missouri, which was given $100, and Jack Rector, to whom all the remainder of the estate was devised. The estate consisted of about 400 acres of land and personal property, all of the value of more than $40,000.

Jack Rector died in 1959 before this suit was filed. He left a will and the beneficiaries'named therein were made defendants in this case.

The plaintiffs in the present suit are George L. Houghton, Willie D. Houghton, Deana Houghton Rancour, Naida Hough-ton Hunt, Hertha Houghton Tranter, and Essel Houghton Beresford, nephews and nieces of the testator and his sole and only heirs.

The defendants are Frederick Jones, Jr., executor of the estate of Jack Rector, deceased, who also was named as a beneficiary in the will of Jack Rector, Wanda Lee Koeppe, a niece of Jack Rector, deceased, and a beneficiary in his will, the Church of the United Brethren, New Cambria, Missouri, a legatee in the alleged will of Theodore M. Houghton, Charles Westen, executor of the estate of Theodore Houghton, and James (Jim) Rector and Mrs. Robert (Bob) Pippin, brother and sister of Jack Rector, deceased. The last two named, being the brother and sister of Jack Rector, claim no interest in the present case. The other defendants filed an answer denying the allegations of plaintiffs’ petition concerning the mental incompetency of Theodore M. Houghton to execute a will.

Defendants briefed eight points. However, in the brief they state correctly that the first seven relate to the question of whether defendants were entitled to a directed verdict on the theory that the evidence was insufficient to justify submitting the question of mental incapacity to a jury. The last point briefed pertains to the giving of an instruction on the burden of proof. Defendants claim that “the burden of proof on the issue of testamentary incapacity is on plaintiffs.” The questioned instruction placed the burden on the defendants.

The facts, in so far as material for a disposition of the issue as shown by the record, are: At the time the will was executed the testator, Theodore M. Houghton was 86 years of age. He had lived with his brothers on the land here in question near New Cambria, Missouri. Theodore never married and all of his brothers and sisters predeceased him. A number of his relatives, nephews and nieces, lived nearby. The evidence was that they visited their uncle frequently, cultivated some of his land, and were on friendly terms. Theodore became ill and was taken to St. Francis Hospital at Marceline, Missouri, for a short period in 1952. In December 1953, he again was taken to St. Francis Hospital. On December 19, 1953. Theodore, by deed, conveyed the 400 acres in question to Dr. C. O. West and his wife, Alta. Dr. West had been treating Theodore for his illness. In December 1954 Theodore filed a suit to set aside that deed on the grounds of mental incapacity and undue influence. The trial court set the deed aside on both grounds. That decree was affirmed by this court. See Houghton v. West, Mo., 305 S.W.2d 407. Dr. Robert W. Smith, one of the doctors who treated Theodore at the hospital, testified for the plaintiff in that case concerning the mental incapacity of Houghton. Jack Rector testified for the plaintiff as to Houghton’s mental incapacity and also as to the undue influence charged against Dr. West. Dr. West died prior to the time the case was filed. His widow was named as the defendant. Harry L. Porter was attorney for plaintiff Houghton in that case. Theodore M. Houghton was a patient in the hospital from 1953 until his death. He was released on only a few occasions and then only for a short time. Dr. Smith treated Houghton during all of those years. Jack Rector, who testified in the first case, is the same person who was the principal beneficiary in the will of August 1, 1958, which is the subject of this lawsuit. Dr. Smith, who testified for Houghton in the first case, testified for the defendants in the present case. Mr. Porter, the attorney for Houghton in the first case, represents the defendants in this case.

In their petition plaintiffs asked that the will be set aside on the grounds of mental incapacity and undue influence. However, as above noted, the case was submitted to the jury on the issue of mental incapacity only. We shall now examine the record and determine whether the evidence was sufficient to submit the question to the jury.

At the trial the defendants, proponents of the will, called as witnesses Betty Burstert and Marguerite Slater who testified that they signed the alleged will of Theodore Houghton and that, in their opinions, he was of sound mind.

The plaintiff s-contestants then introduced their evidence which supports the following statement of facts.

Prior to 1953, Theodore Houghton and plaintiffs in this case were on friendly terms. They visited each other from time to time and had meals together. Often food was taken by plaintiffs to “Uncle Theodore.” One of the nephews cultivated a portion of Theodore’s land. While he was preparing the soil for the next year he was told by Jack Rector to stop, that he, Rector, was taking care of Theodore’s business. Jack Rector began doing some work for Houghton about 1950 and continued to look after him and his business to a great extent from that time to the day of Hough-ton’s death. Rector made statements that he was being paid for his work and wanted others to stay away. A paper writing was produced dated December 17, 1952, which read:

“To Whom It May Concern:
“This is to certify that I want Jack Rector to attend to all my Estate and not allow anyone to move or dispose any of my belongings. If anyone does I have ordered him to swear out papers and have them arrested.
“Respectfully,
“T. M. Houghton.”

There was evidence that the signature was that of Houghton but the remainder of the writing was not.

One witness testified that in 1956 he, Jack Rector, and others went to church together; that on the way home Rector told him that he had taken over the management of Houghton’s place; that he had had an encounter with Lloyd Bivins over it and that he would shoot Bivins if he caught him on the premises; and that Jack Rector told the witness that he was getting $1.50 an hour for his work.

Kenneth J. Munn, an auctioneer by trade and the operator of a sale barn, testified that in July 1955 Jack Rector arranged for a public sale of Theodore Houghton’s machinery, household goods, and some antiques; that the proceeds of the sale were paid to Jack Rector; that in November 1957 he sold some cattle at public auction belonging to Houghton; that Rector wanted the money but that he, Munn, deposited it to Houghton’s account in a bank. This witness testified that he saw Houghton at the hospital a number of times in 1957 and 1958; that in 1957 Houghton did not know him and that in 1958 his condition was worse; that in 1958 Houghton was unable to transact business.

There was evidence that on the day of the sale in 1955 Theodore Houghton was present and asked who was having the sale; that he, Houghton, did not want the sale; that shortly before the sale he gave a few articles to one of the plaintiffs and stated that he wished the articles to remain in the family.

A number of plaintiffs and others who were not interested parties testified that Houghton grew gradually worse as the years passed and that on many occasions he did not know them when they visited him at the hospital.

Jonathan Biswell, who lived near Theodore Houghton, testified that he had known Houghton for about 18 years and visited with him from time to time; that Theodore always called him “Jonathan”; that after Theodore was taken to the hospital he visited him now and then all through the years from 1953 to 1959; that in his opinion Theodore “was a pretty sick man” and never improved; that when he would visit him he never called him by name and often did not know him; that Houghton would ask “Who are you ?”; that in his opinion Houghton was unable to transact any business during 1958 and was incompetent.

Now we shall review the medical evidence offered by plaintiffs and such evidence of the defendants which, in our opinion, aids plaintiffs’ theory.

Dr. John R. Dixon testified for plaintiffs. His qualification as an expert was not questioned. He was a graduate of Kansas University and for a time was an instructor in pathology in Cook County Hospital in Chicago, Illinois, and had had training in psychiatry in San Antonio, Texas. He had practiced medicine in Marce-line, Missouri, from 1953 to the time of trial. He testified that he visited patients at the St. Francis Hospital during all of those years. He stated he knew Theodore Houghton and had seen him frequently; that Houghton was not a patient of his but that he had visited with him quite often. He testified that Houghton had a peculiar step, referred to in French literature as a “marche a petits pas which means a short marching step” which “has been associated with advanced degeneration of the brain commonly referred to as encephalomala-cia” ; that a damaged brain does not regenerate but gradually worsens. The doctor examined the hospital record which was in evidence and testified that in his opinion, based on his observation of Theodore Houghton through the years and on the hospital records, Houghton, on August 1, 1958, did not have the mental capacity to comprehend the act of making a will.

Dr. George Gary testified for the defendants. He treated Houghton in connection with Dr. Robert M. Smith. These two treated Houghton during all the years that Houghton was in the hospital. Dr. Gary testified that in his opinion Houghton was of sound mind on August 1, 1958. Note his evidence. “During theses times when Theodore Houghton was well controlled and didn’t have any minor afflictions of any kind, well, he was very lucid and he would conduct his business, you know, as he usually did and would be very aware of what was going on, and during this time, well, he apparently had no difficulty with his blood sugar and his mental capacity were relatively normal. He had no difficulty during the time when his blood sugar wasn’t swinging wildly to carry on his business as he usually did.” On cross-examination Dr. Gary testified as follows :

“Q Did you ever diagnose Mr. Hough-ton as suffering from encephalomalacia or softening of the brain? A I don’t know.

“Q Well, did you ever diagnose and come to your conclusion that he was suffering from that? A Surely everybody has some and I don’t know if he—

“Q (Interrupting) How does that affect the mental process, Doctor? A Well, it lessens their acuity, of course, and makes them more or less poor in their judgment.

“Q It certainly does affect the mental process, doesn’t it, doctor? A Yes.

“Q Is that ever repaired? A Well, no.

“Q Once the brain is damaged it does not repair itself, does it, Doctor ? A Well, from encephalomalacia, from the arteriosclerosis.

“Q Well, what is encephalomalacia? A Well, it’s a, it’s actually a deterioration of the grey matter due to poor blood supply.

“Q And that is a frequent condition when a patient or a person suffering from arteriosclerosis, is it not? A Well, I think it occurs in everybody.

“Q It occurs to everybody? A Yes; it’s more pronounced in some.

“Q Once that has occurred is there any cure or regenerative process? A No; no, there isn’t.

“Q Would you say that Mr. Theodore M. Houghton had brain damage in 1954? A I think so.

“Q Would you say he was suffering from arteriosclerosis in 1954? A Yes.

“Q And is that a progressive thing, Doctor? A Yes, it is.

“Q It gets worse in each passing year? A Yes.”

Dr. Robert M. Smith, who testified for the defendants, treated Houghton from the day he entered the hospital to the day of his death. The doctor stated that in his opinion Houghton on August 1, 1958, was mentally competent to execute a will; that Houghton at times was incompetent, especially when his diabetes was out of control; that when the diabetes was brought under control by medication he would return to normal. It may be stated here that the hospital records disclosed that Hougton was treated for his diabetes condition during the month of July 1958, and that he had an infection on July 26, six days before the will was executed. Dr. Smith testified that in December, 1953, Houghton was not competent to make a deed; that at that time he was suffering from diabetes, arthritis, arteriosclerosis, and, to a mild degree, encephalomalacia. On cross-examination, Dr. Smith testified that in 1953 it was determined that Houghton had considerable arteriosclerosis and also softening of the brain. He admitted that in the trial of Houghton v. West, supra, he was asked the following question, to which he made the following answer:

“Question. With respect to this arterioZsclerosis will you tell us what that is, what it means, Doctor? ‘Answer. ArterioZsclerosis is simply hardening of the arteries. He has • a generalized type of arterioZsclerosis with diabetes which makes it considerable worse and this involves the arteries over his whole body as well as in his brain.’ ”

Dr. Smith testified that arteriosclerosis and encephalomalacia, or softening of the brain, were progressive in nature and could not be any other way.

Defendants introduced evidence that on a number of occasions Houghton made statements that he did not want any of his property to go to his nephews and nieces. They also introduced three prior wills executed by Mr. Houghton to show that he did not wish any of his relatives to have his property. Not one of the plaintiffs was mentioned in these wills. However, a deed executed in 1953 was set aside on the grounds that Houghton was of unsound mind and that it was the result of undue influence. A will, executed in 1955, contained the following clause:

“SECOND: I direct that my Administrator shall have my name and other appropriate engraving accomplished on the Houghton family mowument in the New Cambria cemetery and that my Administrator further purchase an appropriately engraved head stone or foot stone to be placed upon my grave in such family plot.”

The evidence showed that prior to 1948 the name of Loren Houghton, a brother of Theodore, had been engraved on a headstone with the year of his birth, 1874, and the year of his death, 1940. Also engraved on the headstone was the name of the testator, Theodore M. Houghton, and the year of his birth, 1872. The date of death was left blank.

Defendants’ witness, Dr. Gary, testified that a person suffering from arteriosclerosis may turn against his relatives and friends. We may state here that in this case a jury could well find as a fact that Jack Rector had been a material accomplice with Houghton’s arteriosclerosis to turn him against his relatives.

Jack Rector was a witness in the trial of Houghton v. West, supra. His evidence at that trial was introduced as evidence in the present case. Rector testified at that trial that he often purchased feed supplies from a farmers’ exchange to feed Houghton’s stock and that he would take the check to Houghton and he would sign it. Rector was asked: “Question. He knew what you were about, he knew when you would bring the check over? Answer. I don’t know whether he did lots of times or not. I would have to put hand on the line. Question. But he would sign it? Answer. I would tell him to sign it and he would sign it.”

In the case now before us, Mrs. George Houghton testified that she had a conversation with Rector about some matters pertaining to Theodore Houghton’s affairs and Jack Rector said, “I can talk Theodore into anything.” This evidence may be more material on the issue of undue influence but it also tends to show a weakened mind on the part of Houghton and that he was not able to manage his own affairs.

The evidence pertaining to the execution of the will was, in our opinion, far from impressive. Betty Burstert and Marguerite Slater, practical nurses at the hospital, witnessed the will. Betty Burstert was the first to testify at the trial. Note her evidence as to being requested to be a witness to the will and the information given by Houghton when the will was signed. Direct examination by Mr. Porter:

“Q Will you state the circumstances which led to the execution of that will please? A Well, I was on duty and you come up to me and wanted me to witness it in his room.

“Q Anyone else? A Marguerite Slater.

“Q And who is Marguerite Slater? A She is a practical nurse at the hospital.

“Q Was she employed there at that time? A Yes, sir, she was.

“Q All right, will you tell the Court and Jury what happened at the time this will was executed? A Well, what do you—

“Q — (Interrupting) State what occurred? A Well, you asked us to come in and witness it', and you read the will, and then he signed it and we witnessed it. And you asked us to stay and you asked him about the property and his relatives, I don’t recall just what was said but—

“MR. YAGEL (Interrupting): Object to that, conclusion of the witness and move it be striken; she’s testifying to a conversation not—

“THE COURT: I didn’t get the last what you objected to there, I couldn’t hear you—

“MR. YAGEL: (Interrupting): Conclusion of the witness.

“THE COURT: Overruled.

“Q (By Mr. Porter) Was the will read to Mr. Houghton? A Yes.

“Q Do you know whether or not he stated that that was what he wanted in his will?

“MR. WHEELER: Object to the leading. THE COURT: Sustained.

“Q (By Mr. Porter) Did anyone inquire of Mr. Houghton whether that will was the way he wanted it?

“MR. WHEELER: Object to the leading. THE COURT: Sustained.

“Q (By Mr. Porter) Did I make any inquiry of Mr. Houghton after I read the will to him? A Yes, you did.

“Q. What was that inquiry? A Well, you asked him about his relatives and about his property that he had.

“Q Was any request made that you sign as his witness?

“MR. YAGEL: Object to the leading, Your Honor.

“A Yes.

“THE COURT: Overruled.

“Q (By Mr. Porter) You may answer that. A Yes, he asked — you asked him if he wanted us to witness it and he said yes.”

On cross-examination this witness was asked:

“BY MR. YAGEL:

“Q Mrs. Burstert, did Theodore Hough-ton ever tell you who his relatives were? A No.

“Q Did you ever know he had any? A Yes, I knew he had some.

“Q On this day, August the 1st, did he say who they were ? A No.”

It was shown that all through the years from 1953 to the day of his death Mr. Houghton spent most of his time in bed. He was unable to walk without help. He usually used a walker but sometimes someone would help him.

It is obvious from the facts stated that the evidence was sufficient to submit the question of the mental incapacity of Houghton to a jury. Defendants cited cases such as Delaney v. Coy, Mo., 407 S.W.2d 902, and Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84, where this court held the evidence insufficient to submit the case to a jury. However, in the case before us the evidence concerning the mental incompetency is much stronger than in the cases cited by defendants. We need not restate the evidence. But in the case before us, in addition to the evidence of non-medical witnesses as to the condition of Houghton, we have the evidence of a medical doctor, well qualified, who observed the testator over a period of years and who examined the hospital records. It was his opinion that Houghton was not competent to execute a will on August 1, 1958. This doctor’s opinion was supported by much of the evidence given by the doctors who treated Houghton. We rule the trial court did not err in submitting the case to the jury. McGrail v. Schmitt, Mo., 357 S.W.2d 111, 1.c. 120 [10, 11], 9 A.L.R.3d 1; Sturm v. Routh, Mo., 373 S.W.2d 922, 1.c. 928 [27], 929, 930 [4, 5]; 95 C.J.S. Wills § 462b (3), p. 428, § 462b (4), pp. 429,430.

As to the burden-of-proof instruction, we rule that the trial court did not err. The established rule in Missouri is that in the trial of a will contest where the issue of mental iricompetency is at issue, the proponents of the will are required to show that at the time the will was executed the testator was of sound mind. The contestants, to make a case for a jury, are then required to come forward and introduce substantial evidence to prove that the testator did not have the mental capacity to make a will. The proponents may then present further evidence of competency. That procedure was followed in this case.

As to the burden of proof in such a case, it remains with the proponents of the will. See 94 C.J.S.Wills § 31b(2), p. 737, notes 40, 41, 42; Foster v. Norman, 346 Mo. 850, 143 S.W.2d 248; Weaver v. Allison, 340 Mo. 815, 102 S.W.2d 884, 1.c. 885 [3], 110 A.L.R. 672.

Defendants cited cases such as Delaney v. Coy, supra, 407 S.W.2d 902, and McGrail v. Schmitt, supra, 357 S.W.2d 111, as authority that the burden of proof on this issue of mental incapacity is on the contestants. An examination of those cases shows that the ruling there made is that after the proponents have made a showing of due execution of a will, then to make a case for a jury the contestants have the burden to introduce substantial evidence that the testator was of unsound mind. The cases do not rule the question of a burden-of-proof instruction.

Plaintiffs filed a motion and a supplemental motion to dismiss the appeal of defendants on the ground that defendants’ points relied on are mere abstracts of law and do not preserve any question for review. A further ground alleged is that defendants’ statement fails to contain a concise statement of facts to the questions presented for determination. Since we have written the case on the merits, it will not be necessary to consider the motions and we overrule them without comment.

The judgment of the trial court is hereby affirmed.

PER CURIAM:

The foregoing opinion by Henry J. West-hues, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.


author: HOUSER, Commissioner. PER CURIAM:

text:
    Walter William BOLLMAN, Jr., by His Next Friend, Betty Lou Sanderson, Respondent, v. KARK RENDERING PLANT, a Missouri Corporation, Appellant.
    No. 52216.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion for Rehearing or to Transfer Cause from Division to Court en Banc Denied Sept. 11, 1967.

      Downs & Pierce, St. Joseph, for respondent.
    J. F. Allebach, Albany, Pickett, Andereck & Hauck, by Eugene E. Andereck, Trenton, for appellant.
   HOUSER, Commissioner.

Walter William Bollman, Jr., a minor, filed suit pro ami against Kark Rendering Plant for personal injuries allegedly sustained as a result of negligent failure to install guards to cover the working parts of a winch on defendant’s premises or to warn plaintiff of the known dangerous condition. A trial jury rendered a verdict for plaintiff for $37,500. Kark has appealed from the judgment entered upon the verdict.

The petition charged that plaintiff was on defendant’s premises assisting his father in unloading dead animals from his father’s truck into the plant; that plaintiff was using a winch installed by defendant for the purpose of such unloading and that while so engaged plaintiff’s right hand became caught in the working gears and apparatus of the winch, which was unsafe as above specified. Kark’s answer denied that it owed any duty to plaintiff and alleged that plaintiff was on the premises as a volunteer for his own purposes only and not for the benefit, pleasure or convenience of defendant; that in any event plaintiff’s injuries were caused by plaintiff in that the winch, gears, etc. were plainly visible and obvious and as well known to plaintiff as to defendant.

We state the evidence from the standpoint most favorable to the prevailing party. Plaintiff, 13 years, 10 months of age and weighing 82 pounds at the time of the casualty, was a student at a special education school for children who learn more slowly than most children. He was doing school work at the 3rd or 4th grade level. He showed more ability in manual skills than in academic skills. He lived with his mother, who was divorced from his father, Walter William Bollman, Sr. We will refer to the father as Senior and the son as Junior. Senior’s business was buying, collecting and selling dead animals and offal to rendering plants. He owned a truck which he used for this purpose. He had Kark’s permission to make deliveries to the plant and the right to use the winch at any time of the day or night, whether or not Kark employees were present. If no Kark employees were on hand when he arrived he would open the door, attach a cable to a carcass, turn on the electric motor which operated the winch, engage the gears and wind up the cable on a revolving drum. By this method the carcasses were dragged from the bed of the truck into the plant and onto the 30 x 40 foot plant floor. For 2 or 3 years prior to the casualty Senior had been delivering dead stock to Kark’s plant once or twice a day and using the winch in question. Sometimes when plant employees were there and not otherwise occupied they would help Senior unload. If they were busy doing something else, or if Senior arrived when Kark employees were off duty, Senior would unload by himself, without assistance. Senior performed this operation alone about half the time. When Kark employees assisted it was done as a courtesy, to save him time. Senior was an independent contractor, not an employee of Kark. He was paid by the hundredweight. The delivery of dead animals to be rendered at the plant was beneficial and to the economic advantage of Kark, indeed was essential to the operation of the business.

Junior had assisted Senior in unloading dead animals at the plant 15 or 20 times. In the manager’s presence Junior had helped his father “take boxes of bones and stuff” and put them on the tailgate of the truck, from which Senior would take them into the plant. Every once in a while Junior would take a box, if it was small, over by the switch near the south wall. Junior had “seen the grown men and fellows around there working that winch,” and had seen Ralph Stamper’s 15-year-old son on the rendering plant floor, helping Mr. Stamper. Kark’s manager had seen Junior at the plant a couple of dozen times, always accompanied by his father. He had seen Junior “right inside the door,” on the rendering floor. Although the manager said that he had never seen Junior doing any work in the plant, he knew that in that county boys help their fathers with their chores. Kark’s manager had talked to Junior but had never “run [Junior] out” or told him to stay away from the plant. Junior was not paid a “salary.” Senior did not “hire” Junior as a worker, in the conventional sense. His father “paid” Junior by giving him money “to buy models and stuff” (his hobby was little model cars, of which he had about forty) but the father also gave his son gifts at times when he did not ride on the truck.

Junior was injured on Washington’s birthday, 1965. Because of the holiday Junior was not in school. He was visiting his father that day. When Junior told Senior that he was supposed to return to his mother’s home by 3 p. m. his father called his mother and asked her if the boy could go with him out to the plant. She agreed. That day Junior “helped” Senior go around and pick up dead animals. After they had accumulated a load of dead stock and offal Senior drove the truck to the rendering plant, arriving after dark. Kark’s employees had left the plant. After weighing the loaded truck on the scales Senior went into the basement, turned on the lights, went upstairs, opened the door at the loading dock and backed the truck to the dock. Junior had remained in the truck. As Senior pulled down the tailgate Junior asked if he could run the winch, and Senior said “Okay.” Junior had never previously operated the winch, but he knew how by having observed grown-ups operate it. There was also a winch on Senior’s truck which Junior knew how to operate.

The winch at the plant was located at the east side of the room. It was operated by an electric motor. The electric switch which turned the motor on and off was located on the south wall of the room, 30 feet from the winch. The switch was also 30 feet distant from the unloading dock on the west side of the room. The winch mechanism consisted of an electric motor, a gear box, a model A transmission with a gear shift (no clutch) and a drum. When the motor was turned on a chain drive started to revolve. The main gear was engaged by pushing the idling gear by hand. The transmisssion gear shift lever was then moved to engage the transmission. The main gear turned the idling gear, which turned the drum gear, which caused the drum to revolve. The revolving drum wound up the winch cable, which was attached to the carcasses which in turn were pulled from the truck bed onto the plant floor. The transmission gear shift was then disengaged, the gears stopped, and the idling gear slipped out (by hand), thus letting the drum turn freely. The cable was then pulled back to hook onto the next carcass, and the operation would be repeated. If the gear shift lever was moved to engage the transmission without first setting the idling gear the main gear would turn but the drum gear and drum would not turn. The gears could be stopped by disengaging the gear shift, without first turning off the electric switch.

There were no guards or warning signs on the machinery. Neither Senior nor Junior had been warned by Kark’s manager about the machinery. There were no instructions on how to operate the winch. An expert testified that the winch did not meet the state’s minimum safety standards because it had no cover over the gears to guard them. It was also unsafe because there was no switch immediately in the area of the machinery to stop it in case of emergency. An operator caught in the machinery could not turn off the electric motor because of the position of the switch, 30 feet away. The winch could have been properly guarded so as to have made it impossible for an operator to injure himself, at a cost of $25.

When Senior gave Junior his “Okay” Junior went across the room to the winch. Senior turned on the switch. The electric . motor started. Junior knew how to work the winch from having watched the grown men operate it, and knew that the winch was dangerous. The plant was lighted. Junior’s eyesight was good. He had no physical defects. He said that he was not confused. The motor started the chain to run but did not activate the gears. Instead of first setting the idling gear Junior shifted the transmission gear shift lever. This started the main gear moving, but did not start the gear on the drum or the drum to move. Junior saw that the idling gear was not engaged. Without disengaging the transmission gear he reached his gloved right hand down and pushed the idling gear which was not moving, against the main gear which was moving. Junior had seen Kark employees move the idling gear back and forth with their right hands. He testified that he ran the winch just as he had seen the Kark people doing it. When he pushed the idling gear over into gear with his hand he knew that the gears were moving and dangerous; knew and was aware that it was possible to get caught in them and get hurt. He testified that his hand “must have been caught, somehow” and he was pulled into the machinery. After his hand was caught in the gears he was unable to reach the gearshift lever to stop the moving gears. As a result his right hand and lower arm had to be amputated between wrist and elbow and he lost skin and underlying tissue on his right hip and thigh.

The first question is that of the status of plaintiff while at and on Kark’s premises and what legal duty Kark owed him. Kark claims that having been guilty of no active or affirmative negligence it owed plaintiff no duty of ordinary care because plaintiff was a trespasser, volunteer or mere licensee.

There can be no doubt that Senior, an independent contractor having Kark’s permission to use its facilities, including the winch, was a business invitee of Kark to whom Kark, as owner-occupier, owed the duty to have its plant building and facilities in reasonably safe condition. This duty extends to the employees of an independent contractor who are on the premises prosecuting the work of the independent contractor. As to them the landowner owes a nondelegable duty to exercise ordinary care for their safety. Schneider v. Southwestern Bell Tel. Co., Mo.App., 354 S.W.2d 315, 318; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo.Sup., 323 S.W.2d 788, 794; Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S.W. 865; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443. See Prosser on Torts, 2d Ed., 374, note 6. Note also 57 C.J.S. Master and Servant § 604, which attests to the liability of a contractee to the employees of an independent contractor for injuries resulting from an unsafe appliance or instrumentality furnished by the con-tractee.

Was Junior an “employee” of Senior? A servant has been defined as “one who serves, or does service, voluntary or involuntary; a person who is employed by another for menial offices or for other labor, and is subject to his command; a person who labors or exerts himself for the benefit of another, his master or employer; a subordinate helper.” 3 Bouvier’s Law Dictionary, pp. 3047, 3048. There is nothing to prevent a father and his son from entering into a contract of employment. 67 C.J.S. Parent and Child § 38; 98 C.J.S. Work and Labor § 17. Payment for the servant’s services is not an essential element; the relationship of master and servant may exist although the servant neither expects nor is entitled to compensation. LaJoie v. Rossi, 225 Mo.App. 651, 37 S.W.2d 684, 687.

Notwithstanding Junior worked for Senior only occasionally, was not “hired” in the usual sense of the term, and actually received no wages for his work, sufficient elements were present to form the basis of a jury finding that the relationship of master and servant existed between them at the time and place in question; and that Junior was an invitee of Kark when injured. On the day in question, by mutual agreement, Junior accompanied Senior on his rounds, picking up carcasses and offal, helping and assisting him; performing personal services under his direction and control. Senior had the right to control and did control Junior’s physical activities and conduct in the performance of the services. This most important element of the relationship existed. The operation was more efficient and time was saved if one person operated the winch and another hooked and unhooked the cable. Junior’s operation of the winch would have benefited Senior. When Junior undertook to run the winch he was acting with the consent of Senior, for and on behalf of Senior, in the performance of a function which Kark had authorized, encouraged and expected Senior to perform. The operation of the winch was necessary, useful and beneficial to Kark. Junior’s operation of the winch would have benefited Kark. Considered in the light most favorable to plaintiff, it is reasonable to conclude that Kark’s manager knew or should have known that sometimes boys helped their fathers perform work on the premises, that for some time Junior had been performing minor services and rendering some assistance to his father at the plant, by unloading boxes of offal, bones, etc. from Senior’s truck into the plant, and that Kark’s manager had acquiesced therein. He did not remonstrate with Junior or rule out his entry into the plant to assist his father. Qui non improbat approbat. In a strikingly similar situation in Hollowell v. Greenfield (1966), Ind.App., 216 N.E.2d 537, it was ruled a jury question whether David, 11-year-old son of an employee of a rug-cleaning plant, was an invitee or licensee; whether the owner of the plant owed David a duty of care, where the father had permitted David to accompany him to the plant on Saturday mornings, and where to the knowledge of the plant manager David sometimes played and sometimes assisted his father in the performance of his duties, including putting washed rugs through the wringer. The manager had never objected. On the Saturday morning in question David and his brother and another playmate were attracted to a quantity of comic books near the wringer. One of the children started the wringer and when David tried to pass a comic book through the rollers his left hand got caught between the rollers, mashing off all of his fingers save one. The court could not say that no legitimate inference could be raised that the boy was not on the premises “without at least the implied permission of the owner.” We hold that the jury could find that Junior entered the rendering plant to assist his father on the evening in question with the implied consent of Kark’s manager; that at the time and place in question Junior was not a trespasser, volunteer or mere licensee, but was an employee of a business visitor, as to whom Kark owed the duty to exercise ordinary care.

Twine v. Norris Grain Co., 241 Mo.App. 7, 226 S.W.2d 415, is no authority for appellant’s position, because in that case the 16-year-old boy entered defendant’s premises for the purpose of shooting pigeons, and not “for any purpose of real benefit or interest to defendant”.

Gayer v. J. C. Penney Co., Mo.App., 326 S.W.2d 413, is distinguishable. There the 10-year-old boy exceeded the bounds of his invitation, went into the stockroom in which customers were not permitted, looking for his mother, and at that place he was merely a permissive licensee in pursuit of his own purpose and business, required as such to take the premises as he found them. Robidoux v. Busch, Mo.App., 400 S.W.2d

Robidoux v. Busch, Mo.App., 400 S.W.2d 631, points out that the real test of the status of invitee is the purpose of the visit; that one cannot be an invitee unless he is on the premises for some purpose of real benefit or interest to the owner or possessor of the premises. Plaintiff in that case was hurt on Grant’s Farm while on a sightseeing tour. There was no evidence that her visit was of real benefit or interest to the landowner. In Roe v. St. Louis Independent Packing Co., 203 Mo.App. 11, 217 S.W. 335, plaintiff, one of a class of students permitted to visit a packing plant on request of their instructor, injured on the tour, was held a mere licensee, not an invitee, because the students were there solely for their own benefit and not for the benefit of the proprietor. These cases are to be distinguished from this case, in which Junior was hurt as he prepared to perform a function which would have been a real benefit to the owner of the premises, an act in which Kark had a real interest.

The next question is whether Junior was guilty of contributory negligence as a matter of law, in view of his testimony that he knew the machinery in question was dangerous, knew the gears were running, and yet pushed the gear that caught his hand and injured him. Appellant urges that “a minor can be found guilty of contributory negligence as a matter of law when the minor is shown to- have knowledge and appreciation of the danger which would be occasioned by his act that contributed to his injury.” The applicable rule in the case of an adult employee was announced as follows, in passing upon the claim that a 30-year-old man who became entangled in the revolving drive shaft of a grain mill was guilty of contributory negligence as a matter of law: “Even where there is evidence of knowledge on the part of the employee of the danger of his place of work, or of the machinery with which he is provided, the question whether his acts and conduct in the light of such knowledge constitute contributory negligence is a question of fact for the jury, unless the evidence is such that all reasonable men would conclude that he was guilty of negligence which contributed to the casualty. He will not be declared guilty of contributory negligence as a matter of law unless the danger is so glaring, open and obvious as to threaten immediate and almost certain injury, or that a man of ordinary prudence would not attempt to occupy the place or use the machinery [citing five and quoting from two additional cases].” Keeney v. Callow, Mo.Sup., 349 S.W.2d 75, 81 [10]. While the minority of a plaintiff does not preclude the defense of contributory negligence, the standard for judging the conduct of a minor is not that care and prudence that would be exercised by an adult but only that ordinarily exercised by one of the age, intelligence, discretion, knowledge and experience of the particular plaintiff, under the same or similar circumstances. Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106, 111 [3], and the many Missouri cases and authorities cited, fn. 2. Other principles pertinent to an inquiry such as this are that an essential element of contributory negligence is “a voluntary exposure to known danger,” and that it is knowledge and appreciation of the danger and risk of injury in an instrumentality or condition that bars recovery for contributory negligence, and not merely knowledge of the physical characteristics of the instrumentality or condition; that “[m]ere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.” Capacity to appreciate the danger is of vital importance in making the determination. In Bridges the court considered the “sorry scholastic record” of the 16-year-old plaintiff significant. In Lynch v. Rosenthal, Mo.App., 396 S.W. 2d 272, a 22-year-old farm helper was injured when his right arm was caught in a cornpicker. In ruling that his contributory negligence was a matter for the jury to determine the court stressed the evidence indicating that his full usable mentality was below that of a 10-year-old child.

In Cathey v. DeWeese, Mo.Sup., 289 S.W.2d 51, a 17-year, 5-months-old farm hand of average intelligence and a ninth grade education lost his leg while operating a hay baler. He knew that there was danger in his mounting the machine with the power take-off in gear and in attempting to disengage the tie arm with his foot or in attempting to unclog the machine. He had used the machinery for three weeks, and his employers had instructed and warned him of the danger. Notwithstanding, this Court held his contributory negligence a jury question; that “It is not enough that a boy may have been warned, or that the danger was visible, or that he had some knowledge of the hazard, the question is whether, by reason of his youthfulness and inexperience, reasonable minds could differ as to his realization and appreciation of the danger. [Citing cases.] Leon’s awareness of some danger is not conclusive evidence of contributory negligence. Rupp v. Chicago, B. & Q. R. Co., Mo.App., 234 S.W. 1050, 1054, and his testimony that he knew it was dangerous to come in contact with the rollers is not an admission that he appreciated the hazard. Benjamin v. C. Hager & Sons Hinge Mfg. Co., Mo.App., 273 S.W. [754,] loc. cit. 757; Carter v. Baldwin, [107 Mo.App. 217, 81 S.W. 204] supra. Not only must the minor employee have had knowledge of the danger, it is essential that he must have appreciated the hazard before it can confidently be said that there could be no reasonable difference of opinion as to the rashness and imprudence of his conduct. As the court said of the seventeen year old boy injured on a cotton spin-dryer in Evans v. General Explosives Co., 293 Mo. 364, 375-376, 239 S.W. 487, 491, ‘although the danger in operating machinery may be visible, if by reason of the youth and inexperience of the operator he does not realize, or, in other words, is not aware of the danger to which he is exposed, it is the duty of the employer to warn him of his peril.’ Or as it was stated in the leading case of Burger v. Missouri Pac. Ry. Co., 112 Mo. 238, 249-250, 20 S.W. 439, 441, ‘In the conduct of a boy, we expect to find impulsiveness, indiscretion, and disregard of danger, and his capacity is measured accordingly. A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, but at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person.’ In all the circumstances reasonable minds could well differ as to Leon’s comprehension, realization, or appreciation of the hazards to which he was exposed and the adequacy of his employers’ instructions and warning, and his contributory negligence and his employers’ liability were not plainly determinable as a matter of law. [Citing 8 cases involving boys seventeen, eighteen and nineteen years of age.]” 289 S.W.2d, 1. c. 56, 57.

That the question of contributory negligence of a minor servant (whether he knew and appreciated the dangers of the employment and the risk of injury) is usually a jury question was well expressed in the able analysis of the Missouri cases in Wilson v. White, Mo.App., 272 S.W.2d 1 [13-17], beg. p. 7. And see “Contributory Negligence of a Minor as a Matter of Law in Missouri,” James W. Starnes, Washington University Law Quarterly, 1959, p. 281, beg. p. 287.

While Junior knew the physical characteristics of the winch and the working gears; knew that the gears were running; knew generally that there was danger involved and that injury might result, we cannot conclusively say, as a matter of law, that in pushing the idling gear over he voluntarily exposed himself to a known danger, or that the danger was so glaring, open and obvious as to threaten immediate and almost certain injury, or that all reasonable men would conclude that he actually appreciated the hazard, considering his mental ability (a boy almost 14 years old, in a special opportunity school, doing third or fourth grade work which is ordinarily done by 9 and 10-year-old children). Many children with a mental age of 9 or 10 years and an interest in things mechanical would likely have acted as this child acted. “To many active and enterprising children, risks not absolutely appalling, are attractive; * * *. [T]he adjudged cases in the books show that children do frequently incur equal, or even greater, hazards. We cannot, therefore, account this boy’s conduct unnatural or extravagant.” Pennsylvania R. Co. v. Kelly (1858), 31 Pa. 372, 378. The question of contributory negligence was properly left to the jury.

ERROR IN INSTRUCTIONS ?

Plaintiff’s main verdict-directing Instruction No. 2 hypothesized the exposure and unguarded condition of the gears and working parts, as a result of which “the winch was not reasonably safe for the use by persons upon defendant’s premises upon the furtherance of defendant’s business”; knowledge of this condition by defendant and lack of knowledge thereof by plaintiff and failure of defendant “to use ordinary care to either install guards or to warn of said condition.” It concluded with the submission that as a direct result of such failure plaintiff was injured “unless you believe plaintiff is not entitled to recover by reason of Instruction No. 6.”

The other instructions are short and will be recited verbatim:

“INSTRUCTION NO. 3

“The term ‘ordinary care’ as used in these instructions with respect to the defendant, means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

“INSTRUCTION NO. 6

“Your verdict must be for the defendant, whether or not defendant was negligent, if you believe:

“First, plaintiff either:
“failed to keep a careful lookout, or placed his hand in contact with working gears of the winch; and

“Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and

“Third, such negligence of plaintiff directly caused or contributed to cause any damage plaintiff may have sustained.”

“INSTRUCTION NO. 7

“The term ‘negligence’ as used in these instructions with respect to the plaintiff, means the failure to use that decree of care which a ordinary prudent boy of the same age, capacity and experience would use under the same or similar circumstances.”

“INSTRUCTION NO. 9

“Your verdict must be for defendant if you believe plaintiff undertook to operate the Kark winch for his own purpose, pleasure, or curiosity without the consent of defendant.”

The first ground of attack is that while No. 2 referred to No. 6 it did not refer “to the affirmative defense offered” in No. 9; that No. 2 ignored the element of duty, was inconsistent with and confusing when read with No. 9, and in effect told the jury that the qualifying phrase in paragraph Fifth of No. 2 was not applicable to “the affirmative defense” in No. 9. Citing MAI comments at page XXXIV of the Committee on Jury Instructions, Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, and § 509.090, V.A.M.S., appellant argues that under MAI 22.03 it is mandatory that the main verdict-directing instruction refer to every instruction which sets up an affirmative defense; that No. 2 fails to refer to No. 9, and that under Civil Rule 70.01, V.A.M.R., it is error to violate the rule. In our judgment No. 9 did not undertake to submit an affirmative defense but in form and substance was an instruction conversing that portion of paragraph First of No. 2 referring to the use of the winch “by persons upon defendant’s premises upon the furtherance of defendant’s business.” A defendant has the option to submit its theory of the case by way of a converse instruction, without being required to directly negative the plaintiff’s theory of the case. Number 9 follows the third approved method of giving converse instructions. MAI § 29.01, p. 246.

Next, it is argued that No. 2 improperly submitted failure to warn of the defective condition “when there was no duty shown on the part of the defendant to so warn and there was no evidence to support the submission of failure to warn.” There was direct evidence of failure to warn and there was a duty to warn. While there was considerable evidence that Junior had knowledge of the physical conditions (the motor, the open gears, the lever, and the fact that the gears were turning) and was generally aware of the danger, there is no conclusive evidence that this boy with his 3rd or 4th grade mentality possessed a sufficiently keen sense of appreciation of the danger to relieve the owner-occupier of the premises from the duty of issuing a warning of the potential danger involved in assaying to operate this machinery, which the evidence showed was substandard from the standpoint of statutory safety regulations.

Complaint is made that Instructions 2 and 3 did not use the word “negligence,” but instead employed the phrase “failed to use ordinary care,” which it is said does not carry with it the requirement of a finding of “a legal duty to conform to a standard of conduct for the protection of others against unreasonable risks.” Number 2 is an adaptation of MAI 22.03, and No. 3 follows MAI No. 11.05. Neither of the approved instructions used the word “negligence” and there is no necessity of, or magic in, using that term when the same concept is projected by the use of other appropriate language. In our judgment Nos. 2 and 3 properly fixed the proper standard of care as that of ordinary care, defined the failure to use ordinary care, and hypothesized defendant’s failure to conform to that standard.

It is further argued in appellant’s brief that under No. 2 the jury could have returned a verdict for this plaintiff upon finding that defendant failed to exercise ordinary care as to the persons in a class (“persons upon defendant’s premises upon the furtherance of defendant’s business”) without being required to find that plaintiff was a member of the class to whom the legal duty was owed, and therefore plaintiff failed to instruct on all the necessary elements of his case. No objection was made at trial to No. 2. The only objection to No. 2 in the motion for new trial in any way related to this point is that there was no evidence in the record to support the above quotation, and that this phrase assumed and directed a finding that plaintiff was not a bare licensee or volunteer. Our previous analysis demonstrates that there was sufficient evidence to find that Junior was upon defendant’s premises upon the furtherance of defendant’s business. That the phrase above quoted does not assume and direct a finding that plaintiff was not a bare licensee or volunteer seems evident. Any doubt of that fact is dissipated by considering No. 9, in connection with No. 2. Reading the two instructions together, as must be done, it does not follow that No. 2 assumes or directs a finding on this issue. It is more reasonable to conclude that the court is leaving it up to the jury to decide whether plaintiff was upon the premises pursuing his personal business or in furtherance of defendant’s business.

The final attack on the instructions is that No. 7 used the word “decree” instead of the word “degree.” Pointing out the dictionary definitions of the two words, appellant contends that the confusing implication of the word “decree” amounted to a misdirection of the jury. This is obviously a typographical error, and the “obvious misspelling of the word was an insubstantial and trivial imperfection. Absolute perfection in form is not the test. The test is whether the instruction is substantially correct.” Wegener v. St. Louis County Transit Co., Mo.Sup., 357 S.W.2d 943 [3], in which we approved an instruction mistakenly using “eminent” for “imminent” peril. The instruction is substantially correct, and we are not convinced that the jury was misled or confused by this minuscule mistake.

A point is made that the court erred in failing to discharge the jury because plaintiff’s attorney, in closing, argued to the jury that the damages should be computed on the basis of $2,000 per year for 50 years of life remaining to plaintiff, the complaint being that by this “per unit basis” argument the jurors had implanted in their minds figures not admissible and not admitted in evidence. The court sustained the objection with the comment that “You can’t make a mythical calculation based on life expectancy, and the jury will disregard that part,” but declined to discharge the jury. In support of this point appellant cites Faught v. Washam, Mo.Sup., 329 S.W.2d 588, 602-604. In that case the trial court did not sustain but in effect overruled the objection. In this case not only was the objection sustained but also the court made a pointed comment which had a tendency to neutralize the effect of the suggestion and in addition directed the jury to disregard that part of the argument. Under the circumstances we are not persuaded that the unjustifiable argument entered into the verdict to the prejudice of appellant.

The final point is that the verdict is excessive. Plaintiff’s injuries include the loss of his right hand between wrist and elbow (he was right-handed); the loss of the skin and one inch of the underlying tissue over an area 5-10 inches square on the right anterior hip and thigh; permanent scar tissue on leg and thigh; pain and suffering; psychological effect of amputation of a hand. At trial time the injured areas were well healed, but there remained a scooped out area at the anterior hip and behind the lower posterior thigh. Shortly before trial an examination revealed that plaintiff’s right leg was almost as good as the left; that the boy walks and runs normally ; and although he has a slight loss of power in moving the leg to the outside, he mows lawn for several families, and can climb and jump. A physician did not believe that the affected areas of hip and thigh (where the tissue now is thinner than normal) would be bruised in the future so as to cause broken bone, inflammation or infection, although these are possibilities. Junior has an artificial hand which he works quite well. He can tie his shoe laces, dress himself and he has learned to write with his left hand. Considering the serious nature, extent and permanence of the injuries: the amputation of his hand and a part of his arm; the other painful and practically nondisabling but cosmetically repulsive injuries; the fact that because of plaintiff’s mentality and inclination toward manual, not mental, activity and pursuits he will likely be dependent upon the use of his hands for his livelihood; his age and life expectancy of approximately 55 years; the mental and physical pain and suffering; that medical and hospital expenses, loss of earnings, and other special damages are not a factor in this minor’s case; that his earning capacity has not been demonstrated because of his youth, and all of the many other factors which must be weighed, we are of the opinion that this verdict is not excessive in this day and time

Judgment affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.

      . as pointed out in Bridges, supra, 410 S.W.2d 1.c. 111 [4, 6], fns. 3 and 4.