text:
    Gertrude EDDINGS, Appellant, v. Henry J. KELLER, Administrator of the Estate of George David Porter, et al., Defendants, Willie B. Osbon, and Watkins Motor Lines, Inc., Respondents.
    No. 51019.
    Supreme Court of Missouri, Division No. 2.
    Jan. 10, 1966.
    Opinion Modified on Court’s Own Motion and Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 14, 1966.
    Further Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Joe C. Greene, David W. Bernhardt, Bus-sell, Hough & Greene, Springfield, for appellant.
    Glenn A. Burkart, Mann, Walter, Burk-art, Weathers & Schroff, Springfield, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment entered pursuant to unanimous jury verdict in favor of defendants in her suit for wrongful death of Henry Eddings, her husband, in which she sought damages in the amount of $24,200.

The collision which gave rise to this lawsuit occurred about one o’clock of the morning of May 25, 1963, on a bridge over the James River on Highway 60 a few miles southeast of Springfield, Missouri. An automobile traveling south on Highway 60 and operated by David Porter struck the rear of another automobile operated by John Hulston, and the Porter vehicle then veered across the highway into a head-on collision with a tractor-trailer operated by William Colburn. The tractor-trailer overturned, and it came to rest near the north end of the bridge lying on its side and blocking part of the highway. Shortly thereafter Henry Eddings drove his automobile south on Highway 60, and it collided with the overturned tractor-trailer. Following this a Ford, the operator being unidentified, was driven northward through the wreckage and was parked just north of the bridge on the east shoulder. The headlights on this automobile remained on. It was after the occurrence of all these events that defendant Willie Osbon drove his tractor-trailer south on the highway toward the bridge and collided with the Eddings automobile.

Prior to trial plaintiff abandoned certain allegations of primary negligence of Osbon, and her case was submitted to the jury on his humanitarian negligence in failing to stop. Plaintiff submitted that “Henry R. Eddings was in a position of imminent peril of being struck and injured as a result of a collision” between the truck operated by Osbon and the Eddings automobile, and then submitted that “Osbon saw, or by the exercise of the highest degree of care, could have seen the vehicle in which the decedent was situated in the aforesaid position of imminent peril, * * * in time thereafter, by the exercise of the highest degree of care and by the use of the appliances on said truck and with reasonable safety to himself and all persons thereat,” to have stopped the truck and avoided the collision.

Plaintiff challenges Instruction 10 which provided that if the jury found that Osbon was driving his tractor-trailer unit southward on Highway 60 toward the James River bridge and was “exercising the highest degree of care and was not negligent, as defined and submitted to you in other instructions,” and if the jury further found “that the bright headlights of an automobile stopped on the east shoulder of U.S-. Highway 60 and headed in a northerly direction, if so, obstructed defendant Osbon’s view of the decedent, Henry Eddings, and his automobile on the James River bridge, so that defendant Osbon did not see, and by the exercise of the highest degree of care on his part could not have seen, Henry Eddings in a position of imminent peril of being struck by said tractor-trailer unit in time for the defendant Osbon thereafter, by the exercise of the highest degree of care, to have stopped said tractor-trailer unit, so as to have prevented the collision between the same and the automobile driven by said Henry Eddings, then plaintiff is not entitled to recover, and you will find your verdict in favor of the defendants.”

Plaintiff asserts this instruction is “a positive misdirection of law and was prej-udicially erroneous” because “it exonerated [Osbon] of any duty to discover the reasonable appearances of the position of peril,” in that it “directed the jury that they must find for [defendants] unless they believed he [Osbon] could have seen the decedent Henry Eddings.”

Instruction 10 is a converse instruction. It submits a factual situation supported by the evidence, “the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff’s case.” Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662. The instruction apparently was taken from Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W. 2d 461, and except for the necessary changes to express the different factual situation it follows the converse instruction approved in that humanitarian negligence case.

Plaintiff cites numerous cases (See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15; Knorp v. Thompson, 352 Mo. 44, 175 S. W.2d 889; Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, and many others) which state in effect that it is the reasonable appearances of the situation which imposes a duty on the defendant in a humanitarian situation to take preventative action, and of course we do not disagree with that general proposition. Plaintiff’s argument seems to be that Instruction 10 exonerated Osbon of any duty to discover “reasonable appearances of the position of peril” because, as plaintiff contends, it “directed the jury that they must find for the [defendants] unless they believed he [Os-bon] could have seen the decedent Henry Eddings.” We do not agree that this is what the instruction did, and we are of the opinion that instead of accomplishing what plaintiff contends, the instruction was more restrictive than it needed to be.

In her verdict directing instruction, plaintiff submitted that “Henry R. Eddings was in a position of imminent peril,” and that Osbon saw or could have seen “the vehicle in which the decedent was situated in the aforesaid position of imminent peril.” In Instruction 10 defendants submitted that bright headlights of another automobile obstructed Osbon’s view “of the decedent, Henry Eddings, and his automobile * * so that [he] did not see and * * * could not have seen Henry Eddings in a position of imminent peril.” Apparently plaintiff contends that the submission in Instruction 10 should have been that the bright headlights obstructed Osbon’s view so that he did not see and could not have seen the vehicle in which Henry Eddings was situated in a position of imminent peril.

We do not rale in this case whether it was proper for plaintiff to submit in her verdict directing instruction that Osbon saw or should have seen the vehicle in which Henry Eddings was situated. Suffice it to say that the generally used statement in verdict directing instructions for the plaintiff in humanitarian cases is that the defendant saw or should have seen the plaintiff in a position of imminent peril. See Clifford v. Pitcairn, 345 Mo. 60, 131 S.W. 2d 508; Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; White v. Kansas City Public Service Co., 239 Mo. App. 571, 193 S.W.2d 60;

Missouri Civil Instructions (Mo Bar CLE) § 13.6, p. 191. However, we do not think any jury composed of reasonably intelligent persons would have been misled by these two instructions, and that is the ultimate test. Spritz v. St. Louis Public Service Company, Mo., 341 S.W.2d 790; Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479. Plaintiff’s instruction authorized a verdict for her if the jury found that Henry Ed-dings was in a position of imminent peril and if Osbon saw or should have seen the vehicle in which he was situated in the position of imminent peril. Instruction 10 authorized a verdict for defendant if the jury found as a fact that the bright lights of the Ford so obstructed Osbon’s view of Henry Eddings and his automobile that Os-bon did not and could not have seen Henry Eddings in the position of imminent peril referred to in plaintiff’s instruction. Henry Eddings and his automobile were equated in each instruction, and Instruction 10 was not a misdirection. It was plaintiff who deviated from the usual and customary submission, and if she was of the opinion that defendant’s instruction, when in the usual form, would have been confusing to the jury in view of her submission, she should have called the matter to the attention of the court when there yet was time to correct it.

Appellant relies on Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563. There a passenger in an automobile, whose host driver had run.a stop sign, brought suit based on humanitarian negligence against the operator and owner of the truck which struck the automobile. A new trial was granted, after a jury verdict for defendant, because an instruction given at defendants’ request told the jury that it could not find for plaintiff “unless the plaintiff has shown * * * that the [operator of the truck] saw, or by the exercise of the highest degree of care could have seen the occupants of the Teague car in a place of imminent, immediate and inescapable peril, * * This is not what was provided in Instruction 10 in this case. In the opinion in the Teague case it was pointed out that for plaintiff to recover under the facts of that case on the theory of “inescapable peril,” it was necessary that plaintiff, who was a passenger in the Teague automobile, be in a position of imminent peril because of the actual obliviousness of the host driver, and it was stated that “it made no difference whether he [the truck driver] saw or could have seen any occupants of the car.” The Teague case is in no way in conflict with the result we have reached, and the rule there applied is not applicable here. We find nothing erroneous in Instruction 10 which was prejudicial to plaintiff.

Plaintiff asserts error resulted from certain comments made in the opening statement and in oral argument to the jury pertaining to negligence of Henry Eddings and of third parties. A statement of some basic principles pertaining to the humanitarian doctrine is appropriate.

In a humanitarian case it is only when a position of imminent peril has arisen that the doctrine comes into play and seizes upon the then existing situation, in effect “blotting out primary or antecedent negligence.” Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930, and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury. Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, 673; Wilson v. Toliver, Mo., 305 S.W. 2d 423, 429. “Whatever transpires from the standpoint of either plaintiff or defendant prior to the time that plaintiff enters into a position of imminent peril does not affect the rights of the parties thereafter.” Yarrington v. Lininger, Mo., 327 S.W.2d 104, 108. The circumstances of how and why the collisions previous to that between the Osbon truck and the Eddings automobile occurred, and why the Eddings automobile with Henry Eddings in it came into collision with the Colburn truck and thereafter stopped on the highway, were all irrelevant to the issues in a humanitarian case by plaintiff against defendants based on Os-bon’s failure to stop'. Notwithstanding this, in her opening statement to the jury plaintiff gave a detailed description of the collision between the Hulston and Porter automobiles, of the head-on collision between the Porter automobile and the Colburn truck, and of the collision between the Edd-ings automobile and the Colburn truck. She also described the course of travel of the Ford, with the unknown driver, through the wreckage to its stopped position on the east shoulder of the road immediately north of the bridge. Plaintiff then presented evidence to show the above circumstances. She read portions of a deposition of John Hulston in which he testified to the details of the collision between his automobile and that of Porter, and of the collision between the Porter automobile and the Colburn truck. In addition, by this deposition plaintiff developed the details of Hulston’s activities during the entire evening prior to the collisions, that is, that he had taken a “date” to the Shrine Mosque, the time he took his “date” home, the names of friends he met thereafter, the route he took out of Springfield to Highway 60, and where he was going when he became involved in the collisions. Plaintiff also showed the condition of and the equipment on the Hul-ston automobile, the speed he was traveling, his estimate of the speed of the Colburn truck, the traffic conditions on the highway, and the fact that he did not know Porter. Finally, plaintiff read into evidence the following question asked of Hulston: “Did you notice beer bottles in [the Porter car] ?” and his answer, “Not at that time, I noticed them later.” Plaintiff also read into evidence the question asked Hulston on cross-examination as to whether he “had anything of an intoxicating nature to drink that evening,” and his answer that he had not. In addition, plaintiff read to the jury portions of a deposition by Colburn in which he described in detail the circumstances of the collision of the Eddings automobile with his truck. In her opening argument to the jury at the end of the case, plaintiff reviewed the evidence concerning the occurrence of these various collisions. With this background of the presentation of plaintiff’s case we will now examine the remaining assignments of error.

Plaintiff asserts error resulted when the trial court overruled her objections to a comment of defendants’ counsel in his opening statement which, plaintiff says, “injected * * * negligence of third parties.” The statement was as follows: “The evidence will further show that after the accident, certain people, deputy sheriffs and so forth, went up to the Porter car and smelled a very strong odor of alcohol.” Plaintiff objected on the ground “the antecedent accident occurrences of that first set of collisions are not relevant, not properly within the pleadings * *

We agree that the “antecedent accident occurrences of that first set of collisions” were not relevant to the issue of humanitarian negligence on the part of Os-bon in failing to stop. But the fact of their occurrence was pleaded in the petition, and in her opening statement plaintiff had just advised the jury that her evidence would show the details of all the collisions which occurred prior to the collision between defendants’ truck and the Eddings automobile. The primary purpose of an opening statement is to inform the judge and the jury in a general way of the nature of the action so as'to enable them to understand the case and to appreciate the significance of the evidence as it is presented. Hays v. Missouri Pacific Railroad Company, Mo., 304 S.W.2d 800, 804. When plaintiff advised the court and the jury that she was going to present evidence concerning these “antecedent accident occurrences” the trial court cannot be convicted of error in permitting defendants to tell the jury in their opening statement that their evidence would touch on the same issues.

Plaintiff also assigns as error several comments by counsel for defendants in oral argument to the jury on the basis that they injected antecedent negligence of Henry Eddings. We shall set out portions of the argument, and the parts italicized are those set forth in plaintiff’s brief as constituting error.

“[Mr. Burkart]: Now, Mr. Greene [counsel for plaintiff] has spent a great deal of time shouting at you about what Mr. Osbon could have seen, but bless your souls, there is one thing about this lawsuit that can’t be avoided, and that is, Mr. Eddings didn’t see it either.
“Mr. Hough: [Counsel for plaintiff] Well, now, Your Honor, we will object to that as a definite comment on antecedent negligence.
“Mr. Burkart: I am not talking about negligence, I am talking about visibility, Your Honor.
“The Court: The objection is overruled.
“Mr. Burkart: I am talking about visibility, ladies and gentlemen of this jury. Oh, yes, they bring Mr. Craig in here who testifies to you that bright headlights don’t blind you. Now you can get an expert to testify about nearly any thing.”

There followed an argument concerning the headlights on the Ford parked on the east shoulder and north of the bridge, and concerning the testimony of Mr. Craig. There was also reference made to a comment in plaintiff’s argument that Mr. Osbon was not accused of deliberately driving his truck into the collision. The following then occurred:

“Mr. Burkart: Henry Eddings had the same visibility that Mr. Osbon. It’s true, he wasn’t blinded by any headlights. All right, if you don’t want to believe that car [the Ford on the east shoulder] was there, if you don’t want to believe those headlights blinded Mr. Osbon, it’s your duty to forget about it. It’s your duty to put the Ford Fairlane out of the evidence in the case. That’s what — if that is what you want to do, all right. Let’s just take it out of the case for the purpose of the argument, and we have Mr. Osbon coming down the bridge just like Mr. Eddings did.
“Mr. Hough: Your Honor, this is a comment on antecedent negligence and a direct conflict with Instruction Number 5, or whatever number it is, that advised the jury that how he came to be here is not their concern.
“The Court: The objection is overruled.
“Mr. Burkart: So, with the Ford Fairlane out of the picture, we’ve got Mr. Osbon coming down toward the scene of this accident just like Mr. Eddings did, and they said ‘You should have seen this wreckage.’ Well do you think Mr. Eddings would have run into it if he had seen it? Now, talk about a white grill on Mr. Colburn’s unit. Mr. Colburn was dressed in blue denim; a brown hat on, blue denim, out in front of that truck. I expect Mr. Colburn obscured that grill to some extent. But whether he did or not, they are accusing us of the same conduct, the visibility Mr. Eddings had, and folks, if you bring in a -recovery on that theory it isn’t right.”

In this case, whether Osbon saw or should have seen Mr. Eddings (or his vehicle) in a position of peril was the principal issue. Defendants would not have been entitled to present evidence that Henry Eddings drove southward to the bridge and collided with the Colburn truck while overturned and blocking a portion of the highway, but plaintiff introduced such evidence. We necessarily assume that she did so because she thought it would result in some advantage to her. A fair inference from plaintiff’s evidence was that Mr. Eddings did not see or could not see the situation on the bridge in time thereafter to have avoided colliding with the overturned Colburn truck. “Counsel is allowed wide latitude in discussing the facts and arguing inferences from the evidence even though the inferences drawn are illogical or erroneous. * * * The trial court must necessarily be vested with a wide discretion in ruling on the propriety of jury arguments and' in determining whether prejudice has resulted; the exercise of such discretion will not be disturbed unless it is clearly abused.” Eick-mann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802; Glore v. Bone, Mo., 324 S.W.2d 633; Harp v. Illinois Central Railroad Company, Mo., 370 S.W.2d 387. Counsel for defendants was entitled to comment on plaintiff’s evidence as well as that of defendants, and to draw inferences therefrom. He made it plain that his remarks were directed to the issue of visibility, a proper subject for argument. In view of the contents of plaintiff’s objection the court’s ruling had the effect of advising the jury that this argument was for that purpose and not to be considered on the issue of antecedent negligence. It was only in the fourth comment which plaintiff has isolated that counsel failed to adhere strictly to the issue of visibility by his reference to the “same conduct.” However, when placed in context it clearly appears that counsel immediately corrected his statement to refer to “the visibility,” and in any event there was no objection to this one isolated deviation. In view of the plaintiff’s evidence, the trial court did not abuse its discretion in determining that the argument was within proper limits and in overruling the two objections made thereto.

Plaintiff’s next contention is that the trial court erred in overruling her “objection to closing argument” of defendants “which interj ected antecedent and contributory negligence of persons not parties to the suit in a case submitted solely on the humanitarian theory * * * with no sole cause submission against these third parties * * In the argument portion of her brief plaintiff sets out three isolated statements as constituting the argument of which she complains. No objection was made to two of them, and we shall set out and rule only as to the statement to which objection was made. See Stanziale v. Musick, Mo., 370 S.W.2d 261; O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904.

In the opening statement of plaintiff, counsel told the jury that plaintiff had settled her claims against the estate of David Porter and against William Colburn, stating the amounts received, and that she had dismissed her suit against them. In argument to the jury counsel again mentioned the amount received from others. As previously noted, plaintiff’s evidence placed before the jury the details and circumstances of the collisions which occurred before the Osbon truck came upon the scene. In argument, defendants’ counsel said this:

“Now, they say: ‘Oh, no, don’t talk about Mr. Colburn. Don’t talk about Mr. Porter,’ but the very first words out of Mr. Green’s mouth when he got up to make his opening statement were, ‘Oh, yes, we’ve settled with them.’ Already within two minutes after he started his opening statement, he was making his excuses and his alibis. He was talking about token payments. Lo-dics and gentlemen of this jury, I want to have their answer to this question: If Mr. Porter and Mr. Colburn didn’t have anything to do with this accident, why did they take that money from them?"

A general objection was made; that is, no reason was assigned, and the court stated that it did not “see anything objectionable about it.” Plaintiff then stated that “he is interjecting all this antecedent negligence.” The objection was overruled. The portion of the above argument to which plaintiff limits her objection on this appeal is that portion italicized.

The objection on this appeal is that the remark pertained to the negligence of persons not parties to the suit. Perhaps by a farfetched inference it may be said that it did; at least we will assume that it did, and of course in this humanitarian case that was not material to the issue of Osbon’s humanitarian negligence. There are two reasons, however, why we consider this comment not to be prejudicial to plaintiff.

First, plaintiff apparently thought it was to her advantage to advise the jury orally that she had settled with Porter’s estate and with Mr. Colburn, and to tell the jury the amounts of those settlements, although that was immaterial to the issue of liability in this case. In addition, she detailed in her evidence the circumstances of the collisions which led up to and brought about the position of imminent peril of Mr. Eddings, and in her argument to the jury she reviewed the circumstances of those prior collisions. All of this was immaterial to the issue of Osbon’s humanitarian negligence in failing to stop. She then told the jury that “You must set aside in your mind, those things, and you must concentrate on what happened thereafter.” It is evident by the opening statement of defendant’s counsel, as above set out, that he was replying to the previous argument of plaintiff, and we consider the comment to have been invited by plaintiff’s reference to her settlements with the Porter’s estate and Mr. Colburn, and her reference to the participation of Porter and Colburn in the antecedent circumstances.

Second, at the request of the plaintiff the court instructed the jury that if it found the facts as hypothesized in plaintiff’s verdict directing instruction its verdict must be in favor of plaintiff, and the instruction continued, “this is the law and it is true under the above circumstances and conditions set forth, if you so find them, even though you should also find and believe from the evidence that some act or omission on the part of Henry R. Eddings or on the part of William Colburn or on the part of David Porter or on the part of all three such persons directly contributed to cause Henry R. Eddings to be in the aforesaid position of imminent peril, if you so find.” In view of this instruction, which we cannot assume the jury disregarded, and plaintiff’s method of trial as previously set out, we decline to consider this isolated and invited comment to constitute prejudicial error.

Plaintiff next asserts that the trial court erred in overruling her objection to the cross-examination of four witnesses “as to the existence of drinking and the alleged drunkenness and negligent driving of David Porter” because this cross-examination prejudicially injected the issue of antecedent, contributory negligence of a third party. Plaintiff sets forth in her brief the challenged testimony of each witness, but an objection was made only to that of Highway Patrolman Gary Whitener. She asserts that she was not required to continue her objections to the same line of questioning of plaintiff’s witnesses to preserve the issue for appellate review, citing Knaup v. Western Coal & Mining Co., 342 Mo. 210, 114 S.W.2d 969. However, if the objection which was made was of no merit and was properly overruled it does not, in any event, preserve for appellate review a challenge to subsequent testimony. Therefore, in ruling this contention, we need set forth and consider nothing more than the testimony of Trooper Whitener.

On direct examination Trooper Whitener described the scene, the location and the condition of the various vehicles when he arrived. He stated that there were skid-marks on the south side of the bridge from the impact of the Porter automobile with the Colburn truck. He was also asked about the location of debris, and stated that he did not recall any particular concentrations of it. On cross-examination he was asked if he went to the Porter automobile and made an inspection of it and if he found “anything with reference to alcohol,” and he replied “yes, sir.” When asked to tell what he found, counsel for plaintiff objected “to these antecedent acts at this time because the case, as it now stands, rests solely upon the humanitarian basis, and what happened or occurred in placing Mr. Eddings in a position of peril is not relevant to be considered by the jury, * * The trial court replied that “this is cross-examination of the witness and I think probably this is proper cross-examination,” and overruled the objection. The Trooper then stated that he found a full bottle of beer in the car and one near the car, and also several broken bottles in the car.

Generally speaking, whether Porter had or had not been drinking was immaterial to the issue of Osbon’s humanitarian negligence in failing to stop. However, as previously noted, plaintiff, in outlining her evidence in her opening statement to the jury, declared her intention to show the complete details of the collisions prior to the one involving defendants’ truck. Trooper Whitener had testified on direct examination that he had investigated the collisions and he described in detail the location and condition of the various vehicles including the Porter automobile. This, of course, was proper to show the location of the vehicles from which the jury could determine the position of imminent peril. The question to Trooper Whitener on cross-examination tested the thoroughness of his investigation and observation, and it pertained generally to a subject of his direct examination. We are of the opinion that the trial court cannot be held to have erred in making the ruling that it did. In any event, this incident was not prejudicial. Plaintiff subsequently developed fully, except the fact that Porter had beer in his automobile and had been drinking, the details of the collisions between the Porter and Hulston automobiles and between the Porter automobile and the Colburn truck, and even went into the details of where and how Hulston had spent the previous evening. As previously noted, plaintiff also read into evidence the question asked Hulston on his deposition as to whether he “had anything of an intoxicating nature to drink that evening,” and also the statement of Hulston that he had noticed beer bottles in the Porter car.

Plaintiff announced in her opening statement that her evidence would extend beyond the proper issues in the case, and it subsequently did so. In fact, her evidence went to the precise issue of the presence of beer bottles in the Porter automobile. Defendant may, of course, object to the plaintiff going into these unrelated fields, but he is not limited to that remedy. When plaintiff opens them up, defendant may then present evidence in the area opened by plaintiff, or at least plaintiff is not entitled to complain if he does. Therefore, plaintiff cannot complain now on appeal that defendants asked questions on cross-examination on an issue as to which plaintiff presented evidence. For cases generally on this subject, see Bowyer v. Te-Co. Inc., Mo., 310 S.W.2d 892; Vanneman v. W .T. Grant Company, Mo., 351 S.W.2d 729; Jackson County v. Meyer, Mo., 356 S.W.2d 892.

Plaintiff’s final contention is that the trial court erred in sustaining defendants’ objection to the cross-examination of Osbon “when his testimony in trial was inconsistent with his prior testimony by deposition, and counsel for [plaintiff] inquired which of the two inconsistent statements was correct * * The transcript shows that the following occurred:

“Q. Now, the precipitation — the road wasn’t slippery out there, was it?
“A. It wasn’t exactly slippery. It was wet.
“Q. Was it slippery, that is my question.
“A. Well, when you put on your brakes, yes, sir, it would slide the wheel.
“Q. That testimony is inconsistent with your prior testimony — .
“Mr. Burkart: Just a minute. We object- — ■.
“The Court: That is an improper statement Mr. Greene.
“Q. You recall your deposition being taken, Mr. Osbon, earlier in the presence of your attorney in your attorney’s office, where you were asked certain questions ?
“A. Yes, I remember.
“Q. Now, at that time do you recall giving this question, having received this question and having given this answer:
“‘Q. Was it wet? A. Not that you could tell, not enough to be slippery or anything.’ Do you recall that question and answer?
“A. I don’t remember, sir. I wont be positive.
“Q. You were sworn to tell the truth at that time ?
“A. Yes, sir, I was.
“Q. And you were sworn to tell the truth here today?
“A. Yes, sir.
“Q. Which time you were sworn to tell the truth did you tell the truth?
“Mr. Burkart: Now, just a minute. Your Honor, that’s an improper comment.
“The Court: Yes, the objection will be sustained. That was arguing with the witness.
“Q. Which is correct?
“Mr. Burkart: Now, we object to that. That is not a proper statement, either. That is arguing, too, with the witness.
“The Court: The objection is overruled. You may answer the question.
“The Witness: I would say that it wasn’t exactly wet, but when you put on your brakes it was damp enough to cause you to come into a jackknife, or somethin’, if you slid your wheels.
“Q. I see, so it was slippery?
“A. Well, more or less, yes sir.
“Q. This prior statement is not correct then.
“Mr. Burkart: We object to that, Your Honor.
I
“The Court: Objection sustained.”

The precise contention on this appeal is that the trial court erred in sustaining an objection when plaintiff “inquired which of the two inconsistent statements was correct.” From the above it is obvious that the objection to the question “Which is correct” was overruled, and the witness was directed to and did answer. The following objection, which was sustained, and properly so, was to the argumentative statement of counsel for plaintiff that “This prior statement is not correct then.”

In ruling on an incident remarkably similar to this one, this court said, in Lonnecker v. Borris, Mo., 245 S.W.2d 53, 56, that “It is not 'proper to so frame the cross-examining questions that they are argumentative, or call for a conclusion, or assume facts,’ ” and it was expressly held that the question “Which is right,” made in the same circumstances as the question here of “Which is correct,” is argumentative. Of course, here, the objection to that question was overruled, and the witness made his answer. Plaintiff cites Wilson v. Maryland Refining Co., Mo.App., 7 S.W.2d 442, and Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.Zd 740, 142 A.L.R. 666, which set forth the scope and purpose of this type of cross-examination, and of course we do not disagree with the general statements there made. But, there is a correct way to carry on that cross-examination, and plaintiff cannot complain when she was not permitted to pursue an incorrect method. We find no error in the respect contended.

This is a case in which the plaintiff, apparently for trial strategy purposes, voluntarily elected to extend her evidence beyond the issues of her case based on the humanitarian negligence of Osbon in failing to stop. This invited evidence and comments by defendants on those otherwise immaterial matters, which evidence and comments in other circumstances might have resulted in prejudicial error. But, plaintiff having voluntarily selected the area of combat should not be permitted to complain on appeal that defendants met her on her selected ground. We conclude that the errors of which plaintiff complains, if in fact there was error, was not, under the particular circumstances of this case, prejudicial to plaintiff.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Thomas James ROBERTS, Appellant.
    No. 51636.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
    Thomas J. Roberts, pro se.
   FINCH, Judge.

Defendant was found guilty by a jury of assault with intent to kill with malice aforethought and upon a finding by the trial court of a prior felony conviction was sentenced by the court to life imprisonment. The judgment was affirmed on appeal. State v. Roberts, Mo., 332 S.W.2d 896. The evidence was detailed in that opinion.

On February 24, 1965, defendant filed in the Circuit Court of the City of St. Louis what is captioned “Petition for Certificate of Probable Cause. Title 28 U-S-C. Section 2253, To The Circuit Court’s City of St. Louis, Missouri, 6-23-1964 Motion To Vacate Sentence and Judgments. No. 193.” In the body of the petition reference also is made to Rule 27.26 of the Criminal Rules of this Court (V.A.M.R.). The petition was treated by the trial court and will be treated by us as a petition to vacate judgment and sentence pursuant to Rule 27.26. State v. Campbell, Mo., 307 S.W.2d 486. The trial court denied the petition without a hearing, and this is an appeal from that order.

The defendant’s petition asserts that he was convicted under the so-called Habitual Criminal Act, § 556.280, RSMo 1959 and V.A.M.S., and that such Act was declared to be unconstitutional in State v. Watson, Mo., 383 S.W.2d 753. That case did not hold said Act to be unconstitutional. It held merely that the information upon which defendant was tried in that case was insufficient to invoke the provisions of the Habitual Criminal Act. The amended information on- which defendant herein was tried and convicted was sufficient to charge him under § 556.280 with conviction of a prior felony. There is no merit in this contention of defendant.

The remaining parts of defendant’s petition consist of general statements such as “Missouri is facing a sever crisis in law enforcements, prosecution and administration of justice” and “The Court’s need to adopt a fresh approach to the State’s legal problems and instill new life in their Office.” Much of the petition simply is unintelligible. It does not state facts sufficient to entitle petitioner • to any relief. Under these circumstances the trial court properly overruled the petition without granting defendant a hearing thereon. State v. Childers, Mo., 328 S.W.2d 43; State v. King, Mo., 380 S.W.2d 370, cert. den. 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569.

The order of the trial court overruling the motion to vacate sentence and judgment is affirmed.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Anna K. MOORE, Appellant, v. Carrie KOPP and R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased, Respondents.
    No. 51059.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Robert A. Mcllrath, Flat River, and W. T. McGhee, Brentwood, of counsel, for appellant.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Kopp.
    E. L. McClintock, Jr., Flat River, for respondent, R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased.
   PRITCHARD, Commissioner.

Plaintiff, a guest passenger, contends that prejudicial error was committed against her in the trial of her $75,000 personal injury action in these particulars: The giving of a contributory negligence instruction of plaintiff; the giving of sole cause instructions of the acts of one Blain in operating his Cadillac car on passing plaintiff’s host, defendant Mrs. Kopp; that the sole cause instructions were in conflict with the contributory negligence instruction; that the court erroneously permitted the record of plaintiff’s testimony in another previous trial to be read; and in permitting counsel for defendant Manley to argue an innuendo of settlement with said Blain. The action was dismissed without prejudice as to Blain at the outset of the trial because of lack of service of process upon him. Defendant Manley’s decedent, Schramm, died subsequent to the collisions in question.

The verdict and ensuing judgment were for both defendants and against plaintiff upon her claims of negligence. The facts pertinent to this appeal are: On the morning of September 11, 1959, defendant Mrs. Kopp and another passenger, Mrs. Sigman, picked up plaintiff at her home in Flat River, Missouri, in order that they all might go to their work at Lee’s Shopping Center in Farmington, Missouri. Mrs. Kopp was driving her Mercury car, Mrs. Sigman was seated in the front seat to her right, and plaintiff was seated in the rear seat directly behind Mrs. Kopp. They drove out of Flat River onto Highway 67 and proceeded south thereon for five miles at a speed of between 35 and 40 miles per hour. They arrived at the Parkview Cemetery which was to the east of Highway 67 which is there built on a slight gradual curve, curving to the left as one proceeds southward. The weather was dry, the sun was shining, and it was a little after 8:00 o’clock in the morning. The highway there was of concrete, 18 feet wide, with two lanes, southbound and northbound, separated by a marked line in the center. At the north end of the curve there was a yellow “no passing” line in the southbound lane. Along the west side of the pavement there was a shoulder 17 feet wide which widened at an entrance to the residential property of Ratleys. A wide, open shoulder extended the length of the cemetery on the east side of the pavement.

As Mrs. Kopp’s car approached the extreme northern end of the cemetery, plaintiff noticed Blain’s car pull alongside them, its front end right by plaintiff. Plaintiff immediately glanced at Mrs. Kopp who had her head turned toward Mrs. Sigman, and was saying something to her — talking to Mrs. Sigman. Plaintiff immediately glanced ahead at the highway, and saw a northbound car (Schramm) coming toward them at a speed between 45 and 50 miles per hour. Blain was in the left (northbound) lane going southward and attempting to pass Mrs. Kopp’s car. A distance of 360 feet (on cross-examination plaintiff testified 375 to 400 feet) then separated Blain and Schramm. Schramm did not swerve to the right or slow down, but continued coming north in the northbound lane. Blain then started to pull in front of Mrs. Kopp’s car (Schramm being then 300 feet away), and as he did so he “sort of” brushed or tapped it, and plaintiff said, “Oh, Carrie, watch it.” As Blain continued to turn into the southbound lane in front of Mrs. Kopp, her front left fender hit him about the middle of the back door. Blain continued, and Schramm, who was then turning to his right, was struck by Blain, the left fenders of the cars coming together, and just as they did, Mrs. Kopp’s car struck Blain’s car in the rear — '“it wasn’t a hard bttmp” — for the third impact between them.

As soon as Mrs. Kopp bumped Blain in the back (the third impact) he speeded up, followed the highway down quite a distance and stopped. Mrs. Kopp, after the last impact, screamed and threw up her hands. Instead of following the curving highway she picked up speed (her statement to witness Parker later at the scene was: “I evidently hit the gas instead of the brake and shot up over this bank.”), went straight on the west shoulder for about 100 feet, crossed Ratley’s driveway, went up an embankment for 24 feet, broke a telephone pole guy wire, went through a shrubbery bush, and crashed head on into a huge tree in Ratley’s lawn.

Mrs. Sigman testified that as they were driving along all of them were talking, and she was reading a letter from her son to both of them. She heard plaintiff say, “Oh, Carrie” or “Look out, Carrie” at a time when Mrs. Kopp was looking at Mrs. Sig-man, and when Blain was coming up alongside the Kopp car. At the time Mrs. Kopp hit Blain (the second time) as he came around the front left of Mrs. Kopp’s car, Schramm was still in the northbound lane 100 to 150 feet away. At the time of the impact between Blain and Schramm, the latter was partially on and partially off the pavement, and had not prior thereto swerved to the right or left or slackened his speed.

Mrs. Kopp (who married Huff after the time of the collisions and before trial) testified she saw Blain as he came from behind, around her, at which time Schramm’s car was approaching from the south. As' she saw Blain starting around her she tried to pull over, to swerve to the right (and managed to swerve a foot or so to the right), but he hit her and knocked her on out of the road. Blain hit Schramm also just before he hit Mrs. Kopp with his right front fender (one time only) on her left front door. Mrs. Kopp’s car left the road immediately and went up the embankment. She was unable to get it under control after that. She denied that she ever threw her hands up in the air, and testified that her hands never left the wheel. She denied that as she was proceeding south on the highway and just before Blain started around she turned her attention from the road and looked toward where Mrs. Sigman was sitting. She did not remember whether Mrs. Sigman was reading a letter to her as she was driving down the highway, or that Mrs. Sigman was talking about photographs of her son or son’s children. She denied also that she told Parker she had put her foot on the accelerator and not on the brake — she did not remember Parker being there. On cross-examination Mrs. Kopp testified that her automobile was in good condition, with good brakes, good steering apparatus, and that it responded easily and readily to her brakes and gas acceleration, and that she did put on her brakes as soon as her car started to leave the road.

With respect to Schramm, Mrs. Kopp testified that just his rear fender was on the highway when Blain struck it, and then struck her. She heard the other collision take place before Blain hit her car. Blain was in the northbound lane (he never did pull in front of Mrs. Kopp so that she hit him in the rear of his car). She first saw the Schramm car when it was right at the top of the hill (to her south), but she did not keep watching it — she was watching the the one which was passing her. After the Schramm car came over the hill she saw it next about the time they were hit. Mrs. Arthur Smith testified that she was riding in an automobile being driven by her daughter, Alice Trokey, following Mrs. Kopp when Blain passed them. At the time Blain started to pass Mrs. Kopp she saw the Schramm car approaching, and later saw Blain hit Mrs. Kopp’s car (once) which was immediately knocked into the yard and into the tree. Immediately after the Blain car got into the left lane the Schramm car started off toward the shoulder, its left rear (fins) being involved in the collision with Blain. Mrs. Trokey testified that when Blain got about half way around Mrs. Kopp’s car the Schramm car had already started trying (gradually) to pull off the highway, and had pulled completely off except for the left back fin which was out on the highway, within three or four seconds after she first saw him.

Plaintiff submitted her case against Mrs. Kopp on the theory that Blain turned his automobile back into her lane and that she permitted the left front of her automobile to strike Blain’s rear, and thereafter she failed to follow the curve of the highway and went straight into a tree, and in thus operating her automobile she failed to exercise the highest degree of care. Against defendant Manley, plaintiff’s theory was that Schramm negligently failed to reduce his speed or to swerve his car to the shoulder, but forced the Blain car to turn sharply and abruptly into the southbound lane in front of Mrs. Kopp.

Instruction No. 6, upon the subject of plaintiff’s contributory negligence of which she complains, submitted that when plaintiff first observed the Blain car starting to pass Mrs. Kopp’s car, and saw the Schramm car approaching, she saw that Mrs. Kopp was conversing with Mrs. Sigman and was unaware of the presence and position of the Blain car, and that plaintiff failed to promptly warn Mrs. Kopp of the presence and position of the Blain automobile, and in so failing she failed to exercise ordinary care for her own safety and was thereby negligent, plaintiff could not recover, and the verdict must be in favor of Mrs. Kopp and against plaintiff.

As to the instruction barring plaintiff’s claim against Mrs. Kopp because of the submitted finding that she failed promptly to warn Mrs. Kopp of the presence of the Blain automobile, plaintiff says that it was error to give it without sufficient evidence to support same. In this we agree. The evidence shows that as the Blain car started to pull in front of Mrs. Kopp’s car, plaintiff did warn Mrs. Kopp. The burden of proof as to the promptness of the warning (i. e., the sufficiency of the warning) as the basic fact of the contributory negligence was, and as in any other case, upon Mrs. Kopp, unless the plaintiff’s evidence shows contributory negligence as a matter of law. Parsons v. Noel, Mo., 271 S.W.2d 543, 544 [1-3]; Alexopoulos v. Simmons, Mo., 371 S.W.2d 229, 231 [2], Mrs. Kopp here argues that during the interval of time from the point at which plaintiff first saw Blain until Blain started to pull in front of them, there was ample opportunity for plaintiff to have warned Mrs. Kopp before she did, and thus to have influenced the situation for safety. Now the evidence shows that the first time plaintiff saw Blain he was pulling alongside them. She next saw Mrs. Kopp with her head turned toward Mrs. Sigman, immediately upon which she looked ahead and saw Schramm 360 feet ahead coming at a speed of 45 to 50 miles per hour. Mrs. Kopp was driving 35 to 40 miles per hour. It was then that Blain started to pull in front of Mrs. Kopp and plaintiff gave her warning. There was no evidence of the length of time between when plaintiff first saw Blain and when she actually gave the warning. The jury could have found from the distances between the automobiles and their relative speeds that only 2½ to 3 seconds elapsed before the collisions. There was no evidence that plaintiff could have given a warning sooner than she did, or if so that such sooner warning would have been effective to prevent the collision. Compare Corn v. Kansas City, C. C. & St. J. Ry. Co., Mo., 228 S.W. 78, 82 [3]. In Ward v. Missouri Pac. Ry. Co., 311 Mo. 92, 277 S.W. 908, 911 [7], a railway crossing case, the court said, “The timely warning of an approaching train is a warning in time for one who is warned to avoid being hit,” and thus here there was a necessity that defendant show sufficient facts and circumstances, beyond speculation and conjecture, that plaintiff could have given a “more prompt” and effective warning to Mrs. Kopp. See Sandoz v. Beridon, La.App., 150 So. 25, 29, where plaintiff guest exclaimed immediately to her host, upon seeing defendant, who was driving a forward car, “Look, he is turning in,” and the court held that although it was the duty of a guest, when aware of impending dangers unknown to his host, to warn the latter at once (as is the duty in Missouri, see Toburen v. Carter, Mo., 273 S.W.2d 161; Wilson v. Cade, Mo.App., 375 S.W.2d 5773, ⅛ did not appear that plaintiff had failed to do anything that he should have done, or that he could have warned his host sooner than he did. Instructions to the jury must he supported by the evidence, Hough v. Rapidair, Inc., Mo., 298 S.W.2d 378, 386; Carlisle v. Tilghmon, Mo., 159 S.W.2d 663, 665, and it was error, for that reason alone, for the court to give Instruction No. 6.

There is another reason why the giving of Instruction No. 6 was error. That is that defendant testified that she saw Blain as he came from behind, around her, at which time Schramm’s car was approaching from the south. She denied that she turned her attention from the road and looked toward where Mrs. Sigman was sitting. An occupant of a motor vehicle, here plaintiff Mrs. Moore, is not required to warn the driver of what the latter already knows and appreciates. 61 C.J.S. Motor Vehicles § 488a, p. 104. The reason is obvious : a warning of imminent danger would add nothing to what the driver already knows so as to influence the situation of safety, and the following cases so hold: Rosenstein v. Lewis Automobile Co., Mo. App., 34 S.W.2d 1023, 1026 [4]; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, 965 [5]; Cheatham v. Char-trau, 237 Mo.App. 793, 176 S.W.2d 865, 869 [4]; and Fann v. Farmer, Mo.App., 289 S.W.2d 144, 149 [10, 11].

Mrs. Kopp argues further that even had there been no evidence to support the submission of contributory negligence, such failure is cured by plaintiffs own submission (i. e., in her verdict-directing Instruction No. 1 concluding, “unless you find plaintiff guilty of contributory negligence as submitted in Instruction # 6.”). In view of recent cases upon the subject of invited error such as here contended, Mrs. Kopp’s argument is without merit. In the case of Myers v. Buchanan, Banc, Mo., 333 S.W. 2d 18, 23 et seq., the court discussed the case of Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756, where there was a tail instruction similar to the one here referring to contributory negligence, and the proposition of invited error was thoroughly explored. In view of the case of Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 22 [6], requiring reference in plaintiff’s verdict-directing instruction to a submitted contributory negligence instruction, which reference amounts to a compulsion of plaintiff to do so, the court in the Myers case held that the plaintiff was forced to take a position disadvantageous to him; he did not voluntarily adopt defendant’s theory of contributory negligence or the manner of submitting it; and he did not invite error and could not be held to have waived his objections or be estopped to complain of the instructions. The Ferguson case was overruled in its conflict with the views expressed in the Myers case, and Mrs. Kopp’s cited case, Stephens v. St. Louis Public Service Company, Mo., 276 S.W.2d 138, 141 [1], not referred to in the Myers case, but following the same rule as in the Ferguson case, should likewise no longer be followed. See also Shaffer v. Sunray Mid-Continent Oil Company, Mo., 336 S.W.2d 102, 108 [9, 10]; Pasternak v. Mashak, Mo.App., 392 S.W.2d 631, 639 [12].

We shall now take up the points of error contended by plaintiff as to defendant Manley. Plaintiff says that the following argument of defendant Manley’s counsel'was prejudicially erroneous so as to entitle her to a new trial:

“When you tell this lady she can’t recover against Mrs. Kopp and against
Mr. Manley you’re not telling her she doesn’t have a right to be paid or to get a judgment against somebody for her injuries, you’re telling her you sued the wrong people, that’s what you’re telling her. And that’s exactly what she’s done. She ought to seek out this man that caused this thing and let him pay for it. Now, I don’t know whether she has or not. Maybe she’s received some payment from him, we don’t know — •
“BY MR. McILRATH: If the Court please, that’s highly improper and he knows it.
“BY MR. McCLINTOCK: Well, I don’t know any such—
“BY MR. DERRICK: If the Court please, we want to move for a mistrial because of that prejudicial remark. I don’t think that’s—
“BY THE COURT: Let’s—
“BY MR. McILRATH: He’s clear out of the record.
“BY THE COURT: Let’s limit the argument to the facts in evidence, gentlemen. The request for—
“BY MR. McILRATH: He’s clear out of the record, if the Court please, and he knows the whole set up.
“BY THE COURT: Well, let’s proceed, gentlemen. The objection is overruled.”

Although counsel are allowed a wide latitude in argument, they should stay within the evidence and reasonable inferences which may be deduced therefrom. Harp v. Illinois Central Railroad Company, Mo., 370 S.W.2d 387; Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802; Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355. The portion of the argument quoted above dealt principally with the defense of the sole cause of the plaintiff’s injuries being the acts of Blain, to which, under the evidence and in conjunction with the testimony of Mrs. Kopp, Mrs. Smith and Mrs. Trokey tending to show Mrs. Kopp and Schramm not negligent, both defendants were entitled. The portion of the argument dealing with a settlement with Blain was unsupported by the evidence and was improper. However, plaintiff requested only the drastic relief of a mistrial when the matter could have been removed by a request that the court instruct the jury to disregard the same, which was not done. Furthermore, the court cautioned counsel to limit the argument to the evidence. In view of the lack of a proper request by counsel that the jury be instructed to disregard the matter, we rule that the erroneous single statement of counsel with respect to a possible settlement with Blain does not require a reversal and a new trial as to defendant Manley. Compare Olsten v. Susman, Mo., 391 S.W.2d 328, 330 [3-6], and cases there cited. Plaintiff’s point raising this issue is overruled.

Plaintiff next complains that the court erred in giving sole cause instruction No. 5, which submitted the negligent acts of Blain in attempting to pass Mrs. Kopp at a time when Schramm was approaching so closely as to constitute an immediate hazard of collision. As to defendant Manley, there was no issue of contributory negligence of plaintiff — Manley did not participate in the giving of Instruction No. 6, and the instructions as between Manley and plaintiff in no way refer to any negligence of plaintiff. Therefore, there could be no contradiction, inconsistency or self-destructiveness between Instructions Nos. 5 and 6 concerning plaintiff’s claim against Manley and his sole cause defense thereto. The further contention as to Instruction No. 5 is that it failed to hypothesize sufficient facts to demonstrate a sole cause situation. First, it is said, there are not sufficient facts (hypothesized) from which the jury could find that Schramm could have avoided the collision and that he exercised the highest degree of care in the operation of his car prior to the collision with Blain. Suffice it to say that plaintiff’s verdict-directing instruction against Schramm’s executor required the jury to find that Schramm failed to exercise the highest degree of care, and Instruction No. 5 required the jury to find that Schramm was not guilty of any negligence as submitted in other instructions. Second, it is said that the instruction did not hypothesize sufficient facts to demonstrate a causal connection between Blain’s negligence and plaintiff’s injuries — that there is nothing said about her duty to exercise the highest degree of care in the operation of her car after the collision with Blain’s car. The argument is without merit. Instruction No. 5 absolves defendant Manley from liability if the jury find Blain’s negligence as submitted, and that Schramm, was not negligent. It does not foreclose a recovery from Mrs. Kopp if the jury find her to be negligent in the operation of her automobile, as submitted in plaintiff’s separate verdict-directing instruction against Mrs. Kopp. In its essential hypotheses Instruction No. 5 is sufficient under the cases of Happy v. Blanton, Mo., 303 S.W.2d 633, 639 [11, 12] ; Lynn v. Kern, Mo., 323 S.W.2d 726, 728 [1], and other cases there cited. There was no error in the giving of Instruction No. 5 as to defendant Manley, and plaintiff’s point on this issue is overruled.

Plaintiff says that the court erred in permitting Mrs. Kopp to read parts of her testimony given at a previous trial (see Sigman v. Kopp et ah, Mo., 378 S.W.2d 544, decided by Division No. 1 of this Court) without having laid a proper foundation therefor. The point is without merit because, as the record reveals, plaintiff, when asked about her former testimony upon cross-examination, gave equivocal and indecisive answers with respect thereto. It was therefore proper for counsel to cause to be read her exact former testimony for impeachment purposes as was done, and no error was committed.

As to defendant Mrs. Kopp, we determine that the erroneously given instruction No. 6 as to plaintiff’s contributory negligence entitles plaintiff to a new trial. Inasmuch as the new trial will be governed by the Missouri Approved Instructions we need not consider whether Instruction No. 4 on the subject of sole cause was properly given. MAI No. 1.03 provides that “No instruction shall be given on behalf of the defendant which hypothesizes that the conduct of one other than defendant was the sole cause of the occurrence,” and on retrial that rule will be followed.

The judgment is affirmed as to defendant Manley, and as to defendant Mrs. Kopp the judgment is reversed and the case is remanded for new trial.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. William T. POWELL, Appellant.
    No. 51332.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Rehearing Denied March 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ronald R. McKenzie, Sp. Asst. Atty. Gen., Hannibal, for respondent.
    No attorney for appellant.
   PRITCHARD, Commissioner.

Defendant was convicted by the verdict of a jury, rendered on November 10, 1964, of the commission of the crime of forgery (altering a check), a felony under § 561.011, RSMo 1959, V.A.M.S. It was alleged in the amended information that defendant had been convicted, sentenced to imprisonment, served the sentence, and was discharged therefrom, for the commission of a previous felony. The matter of defendant’s previous conviction was taken up by the court outside the hearing of the jury, and a finding was made thereof. In accordance with the second offender act, § 556.280, RSMo 1959, V.A.M.S., the court on November 20, 1964, having on the day of verdict deferred the assessment of punishment to that time, fixed defendant’s punishment at five years in the State Penitentiary.

At the time of the assessing of defendant’s punishment, November 20, 1964, his counsel requested the court for the statutory time of ten days and an additional time of thirty days within which to prepare and file a motion for new trial. That forty days’ time, excluding the date of November 20, 1964, was granted by the court. Defendant’s motion for a new trial was filed December 30, 1964, more than forty days after the date of the verdict, November 10, 1964, as specified by Supreme Court Rule 27.20(a), and thus was not timely filed so as to preserve anything therein for review. The state’s point raising this matter must be sustained because it has been repeatedly held that the time for filing a motion for new trial, ten days after the return of the verdict and before judgment, unless on application of the defendant the court shall extend the time for filing such a motion not to exceed an additional thirty days, is mandatory. State v. Hamilton, Mo., 391 S.W.2d 872; State v. Crow, Mo., 388 S.W.2d 817; State v. Cooley, Mo., 388 S.W.2d 807; State v. Franklin, Mo., 379 S.W.2d 526.

We are thus limited in our review to those matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.

The amended information is sufficient in that its charge: “* * * [T]hat William Powell, on or about the 5th day of June, 1963 at and in the County of Andrew, State of Missouri, did then and there unlawfully, willfully, feloniously and with the intent to defraud one Ed Achter (E. J. Achter), possess with the intent to utter as true and genuine, a forged, counterfeited and falsely made check having legal efficacy and commonly relied upon in business or commercial transactions, which had been forged, counterfeited and falsely made by changing and altering the said check so that said check as changed and altered appeared in different terms than in its original tenor * ⅜ follows the words of said § 561.011, subd. 1 (1), (2) and (3). Compare State v. Adamson, Mo., 346 S.W.2d 85, 89 [9]. The allegations of previous conviction, sentence and imprisonment therefor were adequate. The verdict, although merely finding defendant guilty without reference to the charge contained in the amended information, was sufficient for the one offense charged. There are no lesser included offenses, or degrees of the offense, under said § 561.011. The verdict could only relate to the pleading and to the evidence adduced, and it clearly reveals the intent of the jury to find defendant guilty of the one offense charged against him: changing and altering a check, with intent to utter it as true and genuine, unlawfully, willfully and feloniously with intent to defraud. It is responsive to that single issue. Compare Supreme Court Rule 27.01, V.A. M.R.

Defendant was present at the trial in person and by counsel. Allocution was accorded him before judgment, and the sentence is within the permissible limits of two to ten years’ imprisonment under said § 561.011. We find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Golda Mae OSBORN, Appellant, v. Tom McBRIDE, Jr., Respondent.
    No. 51480.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 14, 1966.

      Donnelly & Donnelly, by Robert T. Don-nelly, Lebanon, Morgan M. Moulder, Cam-denton, for appellant.
    Gerald H. Lowther, James K. Prewitt, Henry W. Westbrooke, Jr., Miller, Fair-man, Sanford, Carr & Lowther, Springfield, for respondent.
   FINCH, Judge.

This is an appeal by plaintiff from an adverse judgment entered following a jury verdict for defendant in a suit wherein plaintiff sought recovery of $50,000.

The issues raised by plaintiff on appeal are that the trial court erred in denying permission, following the voir dire examination, for plaintiff to amend her petition to allege violation of a speed ordinance of the City of Lebanon, and erred in the giving and refusing of instructions. Defendant asserts that any alleged trial errors are immaterial on the basis that plaintiff failed to make a submissible case, and a verdict for defendant should have been directed.

This suit arises out of a collision which occurred May 25, 1963, at approximately 12:30 p. m., at the intersection of Jefferson and Sixth Streets in Lebanon, Missouri. State Highway No. 5 follows Sixth Street in a westerly direction until it intersects with Jefferson Street, which also is State Highway No. 64. Sixth Street is 40 feet 4 inches wide at its intersection with Jefferson. Jefferson Street is 40 feet wide at the south side of the intersection, changing to 22 feet in width north of the intersection. An electric amber blinking caution light was suspended overhead at the center of the intersection and a stationary metal stop sign was posted for westbound traffic on Sixth Street at the northeast corner of the intersection. A similar stop sign for traffic traveling east on Sixth Street and entering the intersection was posted on Sixth Street at the southwest corner of the intersection.

Plaintiff was riding with her husband in the right front seat of their jointly owned 1956 Chevrolet as they drove westwardly on Sixth Street approaching the intersection with Jefferson Street. They had come from Camdenton to Lebanon on a shopping trip. With reference to the collision, plaintiff testified as follows: The Osborn car was traveling 5 to 10 miles per hour as it approached the intersection. The car stopped at the stop sign within 5 feet of the east edge of Jefferson Street. Both plaintiff and her husband (deceased at the time of trial) looked both to the right and to the left on Jefferson before proceeding into the intersection. At that time it was misting and the pavement was wet but not slick. Plaintiff did not see any car approaching from the south on Jefferson Street. She estimated she could see a block to the south on Jefferson. Plaintiff’s husband started across the intersection and started to turn left and was over half way across the center of the intersection when their car was hit on the left side by a car driven by defendant. Plaintiff first saw defendant’s automobile when it was not more than 15 to 25 feet away and “it was going all of 25, I would say, and it seemed to me like more than that, we go an awful lick.” Defendant swerved to his left and his car was close to the middle of Jefferson when it struck the left side of the Osborn car, pushing it sideways toward the northwest corner of the intersection.

Sons of plaintiff, based on visits to the scene during the afternoon of the day of the collision, placed broken glass and debris on the intersection from about 1½ feet east of the center line of Jefferson to a point 6 or 7 feet west of the center line, and told of skid marks of a car going sideways, extending 18 to 20 feet toward the northwest corner of the intersection. One son stated that the left side of the Osborn car was mashed in almost a foot and the frame was bent.

One of plaintiff’s sons told of a conversation at the hospital on the following afternoon with defendant wherein the latter said he saw Osborn pulling into the intersection, whereupon defendant cut to the left, thinking Osborn would stop, but he kept on coming and they collided. The son testified that defendant further stated that had he cut to the rear of Osborn and to the right side of Jefferson, he either would have missed Osborn or there would have been a scraping of the fenders.

Defendant testified as follows: He was going not more than 25 miles per hour as he drove north on Jefferson toward the intersection with Sixth Street. It was raining sufficiently that he had his windshield wipers on and the pavement was wet and slick. He first saw the Osborn car when he was 65 to 70 feet south of the intersection. At that time Osborn was going 5 to 10 miles per hour and decreasing his speed as he approached the intersection. He either came to a complete stop or was barely rolling. Defendant then looked to the west side of the intersection, where another car was stopped, and he then glanced back and saw the Osborn car proceeding into the intersection in front of him. At that time the Osborn car was 35 to 40 feet away. Defendant immediately hit his brakes and tried to cut his wheels to the left to miss Osborn. His tires slid and the car did not slow very much. He swerved not over 2 feet and he hit the Osborn car broadside, a little bit more to the front than to the rear of the car. The left front of defendant’s car was just about at the center line at the time of impact and at that time the front of the Osborn car was over the center line perhaps 2 feet. The impact pushed the Osborn car 4 to 6 feet sideways toward the northwest corner of the intersection.

A photographer testified that one could see south on Jefferson a distance of 1560 feet from a point 25 feet east of the east edge of the intersection, and could see further south when closer to the intersection. He gave the length of the first block south of the intersection as 480 feet. Defendant testified that at the east edge of the intersection one could see four or five blocks south on Jefferson.

An employee at a filling station located at the southeast corner of the intersection, Jack Glendenning, testified that he was watching at the time of the collision; that the Osborn car did not make a complete stop at the stop sign; that when Osborn pulled on out into the intersection the defendant’s car was coming north on Jefferson at 20 to 25 miles per hour; that defendant was 35 to 40 feet from the intersection when the Osborn car pulled out, and that it looked as though defendant tried to stop and was skidding possibly somewhat to the left. Another witness, Ray Vibbard, who was the driver of the second car behind Osborn as they drove west on Sixth Street, testified that defendant could not have been over 30 to 35 feet from the intersection when Osborn pulled out in front of him; that he did not believe defendant then was going over 25 miles per hour, and that he was going perhaps 10 to 12 miles per hour when he hit Osborn.

There was evidence that one and one-fourth blocks south of this intersection there was a metal 25 mile per hour sign posted on the east side of Jefferson, and that just north of the intersection on the east side of Jefferson there was a metal 35 mile per hour sign posted.

The rule is well established that trial errors are immaterial if plaintiff failed to make a submissible case. Hoock v. S. S. Kresge Co., Mo., 230 S.W.2d 758; Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702. Our first inquiry, therefore, is whether plaintiff herein made a submissible case. This involves a determination of three questions, viz.,. (1) whether the evidence justified submission on primary negligence based on alleged excessive speed; (2) whether plaintiff, even if permitted to amend to plead a speed ordinance of Lebanon allegedly fixing a speed limit of 25 miles per hour at the point of collision, made a submissible case, and (3) whether plaintiff should have been permitted, under the evidence offered, to submit under the humanitarian doctrine for failure to swerve. We proceed to consider these three questions, viewing the evidence from the standpoint most favorable to plaintiff.

1. This case was submitted to the jury on the primary negligence issue of alleged excessive speed in excess of 25 miles per hour. Actually, there was no evidence to establish a speed in excess of 25 miles per hour. Plaintiff’s only evidence on the subject was her own testimony. Her exact words were, “It was going all of 25, I would say, and it seemed to me like more than that, we got an awful lick.” It will he observed that when she was asked to fix the speed of the defendant, plaintiff said “it was going all of 25,” which amounted to saying that defendant was going 25 miles per hour. She went on to say that it seemed like more since the impact was so hard, but this was merely descriptive of the effect of the impact on her, and not of a different speed. If she had been undertaking to testify that the speed actually was greater than 25 miles per hour, then she should and would have fixed the speed to which she was testifying. Her testimony is not sufficient to establish a speed greater than 25 miles per hour. For the defense, the speed was fixed at 25 miles per hour by the defendant himself, at 20 to 25 miles per hour by Glendenning, the station attendant, and at not to exceed 25 miles per hour by witness Vibbard. Thus, there was no evidence on which to submit on the theory that defendant was traveling at a speed in excess of 25 miles per hour. Furthermore, plaintiff offered no evidence that excessive speed was the proximate cause of the collision. Mere speculation or conjecture is not sufficient. Plaintiff must produce sufficient evidence from which the jury may find or reasonably infer that excessive speed was the direct and proximate cause of the collision. Bauman v. Conrad, Mo.App., 342 S.W.2d 284.

2. Plaintiff’s next contention is that the trial court abused its judicial discretion in denying plaintiff the right during the recess following the voir dire examination to amend her petition to allege violation of a city speed ordinance. It allegedly fixed a speed limit of 25 miles per hour on Jefferson Street where the collision occurred. Whether to permit the amendment at that time was a matter resting within the judicial discretion of the trial judge. As we said in Simpson v. Kansas City Connecting Railroad Co., Mo., 312 S.W.2d 113, 118, ‘“it is settled in this state that a trial court has the discretion to permit amendments to pleadings to be made out of time before final judgment and its discretion in allowing or denying amendments will not be interfered with by the appellate courts unless the trial court has palpably abused its discretion.’” We find nothing in this record to justify a holding that the trial court abused its discretion.

We observe further that permitting plaintiff to have so amended would have availed her nothing. There was no evidence to show a speed in excess of the alleged limit of 25 miles per hour, and hence no evidence to show a violation of the ordinance. Even if the evidence could be construed to be sufficient to submit that issue, the plaintiff offered no evidence of causation, and it may not be inferred. There is no presumption that violation of a speed ordinance is the proximate cause of an ensuing collision. Hinds v. Kircher, Mo., 379 S.W.2d 607; Bauman v. Conrad, Mo. App., 342 S.W.2d 284.

3. Plaintiff asserts error in the denial of her Instruction “A” wherein she sought to submit under the humanitarian doctrine on the basis of a failure of defendant to swerve and avoid the collision. We are of the opinion that there is no merit in this contention. What we said in Branscum v. Glaser, Mo., 234 S.W.2d 626, 628, is particularly appropriate: “One of the essential elements of the humanitarian rule is that ‘defendant after receiving such notice (of a person’s position of imminent peril) had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others’. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484. There is a total failure of proof herein as to this element. Of course, Branscum was not in peril at all while his car was stopped at the stop sign and defendant’s driver was under no humanitarian duty to take any action until he started his car toward the highway.”

Plaintiff testified that her husband drove up to the stop sign and stopped. Defendant said that the Osborn car either stopped or almost stopped. At the time when stopped or nearly stopped at the stop sign, the Osborn car was in a position of safety and was not then in a position of imminent peril. If the car had stayed at that point, no collision would have occurred. Davis v. Quality Oil Co., Mo., 353 S.W.2d 670. Paraphrasing language in that opinion at page 674, it is evident that plaintiff came into a position of peril at some time after she left or immediately upon leaving her position of safety which was when she was stopped or almost stopped. Absent obliviousness, which was not claimed or submitted here, “the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it.” Yarrington v. Lininger, Mo., 327 S.W.2d 104, 110.

At that time, according to the uncontradicted testimony, defendant was 35 to 40 feet away from the intersection. One-half the width of Sixth Street was another 20 feet, so that at most only 55 to 60 feet separated defendant from plaintiff when she entered the zone of imminent peril (some of the witnesses fixed a shorter total distance between the cars, but this is the maximum under distances fixed by anyone). At 25 miles per hour, the speed at which the evidence indicates defendant was traveling, he traveled 27.45 feet during reaction timp of three-fourths of a second. That left him at most a little less than 23 feet in which to swerve and miss plaintiff’s car. Plaintiff introduced no evidence to show that this could have been done. Defendant testified that he cut his wheels to the left and on the wet pavement he swerved and skidded not more than 2 feet to the left, hitting plaintiff’s car broadside at its left center or a little to the front of what would have been the center of that side of the car. The front fender of the Osborn car was hit by the defendant, but the back one was not. There is no basis to assume or infer that defendant could have swerved further to the right than to the left. Obviously, if defendant had swerved to the right instead of to the left and moved right 2 feet instead of left 2 feet, he still would have collided with plaintiff’s automobile. A mere possibility of avoiding a collision is insufficient to make a submis-sible case within the humanitarian doctrine. Bauman v. Conrad, Mo.App., supra; Shaw v. Griffith, Mo.App., 291 S.W.2d 230. Defendant’s statement to a son of the plaintiff the next afternoon that if he had cut to the right, he could have missed Osborn or just scraped fenders, at most, is a statement of possibility, and in the light of the physical facts as disclosed by the evidence, it was not sufficient to sustain plaintiff’s burden of introducing substantial evidence tending to show that defendant had the present ability, with the means at hand, to have avoided the collision without injury to himself or others after he had notice of plaintiff’s position of peril.

In view of our conclusion that plaintiff did not make a submissible case and that no error was committed in denying the right of amendment of the petition after conclusion of the voir dire examination, it would serve no useful purpose to consider the instructions to which objection was made.

The judgment is affirmed.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Noah E. COX, Respondent, v. Margaret B. HARRIS, Appellant.
    No. 51459.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.

      Robert A. Dempster, James R. Robison, Dempster, Edwards & Robison, Sikeston, for respondent, Noah E. Cox.
    Thomas L. Arnold, Benton, Harold D. Jones, Bock & Jones, New Madrid, for appellant, Margaret B. Harris.
   BARRETT, Commissioner.

In this suit by Noah E. Cox to recover $25,000 damages for personal injuries a jury by a nine to three vote returned a verdict in favor of Margaret B. Harris. On the ground that the jury verdict was against the weight of the evidence (RSMo 1959, § 510.330, V.A.M.S.; Civil Rule 78.01, V.A. M.R.), the trial court granted Cox a new trial and Miss Harris has appealed. She contends that the court erred in granting a new trial on the specified ground “even though defendant may have been negligent as a matter of law” because the jury could have found that plaintiff “sustained no personal injury.” In support of this contention she argues that since plaintiff made no claim for property damage and because of the nature of the accident — the defendant’s automobile hitting a third automobile, with no damage to it, which in turn struck the plaintiff’s station wagon with, as she argues, no damage to his vehicle — he was not entitled “to some damages as a matter of law.” She points to five or six items of evidence and possible inferences and says that from these circumstances “the jury found that plaintiff was not injured.” And, the appellant concludes, “since there was not substantial evidence of enough impact or force to cause injury” to plaintiff Cox there could be no justification for granting a new trial on the discretionary ground that the verdict was against the weight of the evidence.

Largely out of deference to counsel the court at this term reexamined the history and rationale of the rule entrusting to the trial court the discretion of granting one new trial (Civil Rule 78.01) on the ground that the verdict is against the weight of the evidence (Clark v. Quality Dairy Company, Mo., 400 S.W.2d 78) and there is no point in reconsidering and restating the rule here. As to negligence and liability, the plaintiff Cox was parked at the curb in a parking meter zone preparing a statement for services in repairing an electrical appliance when, as Miss Harris said, “I was coming in at an angle and I just didn’t turn quick enough.” She said that she “misjudged” the distance, that her automobile, the front fender and bumper, struck the Limbaugh automobile and shoved it forward two or three feet into the Cox station wagon. The damage to her automobile was $95.43 and she said, “Yes, I got a jolt” and, “Well, I got shaken up a wee bit.” Thus necessarily negligence and liability on the appellant’s part are admitted and her entire argument here is addressed to the claim, in its essence, that the jury could have found that plaintiff was not injured and that therefore the court abused its discretion in granting a new trial on the weight of the evidence.

This appeal is unique only in that it is concerned alone with the issue of damages and not with the substantive problem of liability. But on the issue of damages as it is with the initial factual problem of negligence “the situation is the same in its legal aspect as though we were reviewing the court’s refusal of defendants’ motions for a directed verdict. If plaintiffs made a case for the jury, the order awarding a new trial is to be affirmed, but otherwise it is to be set aside and the verdict reinstated in defendants’ favor.” Rosenblum v. St. Louis Public Service Co., Mo.App., 242 S. W.2d 304, 305. In arguing in effect that plaintiff was not injured the appellant points to detailed evidence, facts and circumstances favorable to her, and from the testimony of her one medical witness the jury could have found that he in fact sustained no objective, demonstrable injury, or it could have disbelieved him entirely and found no damages. But in considering whether the trial court abused its discretion in granting a new trial this court is not concerned with the testimony favorable to defendant “unless it aids plaintiff’s case.” Madsen v. Lawrence, Mo., 366 S.W.2d 413, 416. As indicated this case is unique only in the respect that appellant, all but admitting liability, contends that there was an abuse of discretion because the jury could and should have found that plaintiff sustained no personal injury. The parties have cited no authority and the only case concerned with this unique problem is the concurrently decided condemnation case of State ex rel. State Highway Commission v. Vaught, Mo., 400 S.W.2d 153. That case of course was concerned with injury and damages to land, not personal injuries, but its general principles are applicable here.

In the first place the proof and facts as to plaintiff’s lack of injuries do not indubitably appear as the appellant argues. Very briefly the testimony as to his injuries and as to any loss or damage to his automobile is this: Cox did not seek to recover any sum by reason of injury to his station wagon or specifically for medical expense. But as to his automobile he said, “The bumper and the back end, the taillight, and the rim around the taillights was damaged, and sprung the door just a little bit. You have to slam it to get it shut.” While the appellant would not admit that the accident necessitated his hospitalization the parties stipulated that respondent was in the Missouri Delta Community Hospital from August 25, 1964 (the collision was on August 20, 1964) to September 6, 1964, and that his hospital bill was $310.30. His doctor testified that his bill for services was $104.-00. While there were no broken bones or even visible bruises the plaintiff testified to his aches, pains and general bad health, all of which he attributed to “all at once they was a great blow that hit the back of the car and throwed me forward, and I dropped my book and pencil and lashed me back in the seat.” His doctor first saw the appellant on August 24 and after examination hospitalized him on August 25, had him in traction for eight days and finally diagnosed his injury in this language: “There is no doubt in my mind this man has at least two damaged intervertebral discs with resultant nerve root pressure as well as soft tissue damage around the spinal cord and the vertebral column.” The doctor was of the opinion that Cox “has a permanent disability at this time” and he recommended an operation by a neurosurgeon. It is not necessary to further detail the doctor’s testimony, he concluded, “as to what brought about this condition,” that “This man had no pain before the accident. He was in an accident. He had trauma, injury, torsion and a blow, and it obviously is due to that.”

This very briefly noted testimony is sufficient to demonstrate that the trial court did not abuse its discretion in granting plaintiff a new trial on the specified ground that even as to injuries and damages the jury’s verdict was against the weight of the evidence. 25A C.J.S. Damages § 162(5) (6), pp. 86, 96; State ex rel. State Highway Commission v. Vaught, supra; State ex rel. State Highway Commission v. Belvidere Development Company, Mo., 315 S.W.2d 781. Since there was no abuse of discretion the judgment is affirmed and the cause remanded.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.