author: SEILER, Judge. STORCKMAN, Judge.

text:
    Marjorie M. CHANDLER, Respondent, v. NEW MOON HOMES, INC., Appellant.
    No. 52704.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.

      E. J. Murphy, Butler, William J. Cason, Clinton, for plaintiff-respondent.
    A. Warren Francis, Lloyd A. Hamrick, Roger J. Staab, Kansas City, Robert L. Spurrier, Butler, for defendant-appellant.
   SEILER, Judge.

This is an action for personal injuries arising out of an automobile collision. From a verdict and judgment for plaintiff for $5,000 defendant appealed to the Kansas City Court of Appeals, which affirmed the judgment, and on defendant’s application the case was by our order transferred here, largely because of the general interest involved in the holding of the Court of Appeals that proof by plaintiff of ownership by defendant corporation of the vehicle involved was sufficient to raise the presumption that the tractor unit was then and there being used in the defendant’s business and that unless defendant offers evidence otherwise, the presumption continues and will finally support a verdict and judgment.

At about 3:30 p. m. on May 14, 1963, the plaintiff, Marjorie M. Chandler, was riding as a guest passenger in the right front seat of a 1959 Ford sedan, owned and driven by her husband, Russell Henry Chandler. The Chandlers were dairy farmers and resided about four miles south of Butler in Bates County, Missouri. They were on their way home, proceeding in a southerly direction on U.S. Highway 71. About three miles south of Butler, Highway 71 is intersected by Highway 52, which runs east. Abutting to the north and east of this intersection is a filling station and restaurant. Highway 71 is paved and carries two lanes of traffic, one north and one south. The weather was fair and the surface was dry.

Mr. and Mrs. Chandler said they had been proceeding south at about 65 miles per hour, but slowed down 200 to 300 feet from the north edge of the driveway to the restaurant, where they planned to stop for coffee, as was their custom. Mr. Chandler said his brakes were good and his signal lights were working. He signaled for a left-hand turn, did not see any northbound vehicle approaching when he got to the north edge of the restaurant parking area and made his left turn. It was not established where he turned on his signal with relation to where he turned or exactly what he did about looking south before turning or how far he could see to the south. Mr. Chandler continued his description of what then occurred: “When I had my car approximately half way off of the highway I seen this truck coming at me from the south.” He estimated the truck’s speed at this moment at 70 miles per hour (another witness placed the speed of the truck at “at least 70 miles”) and his own at 5 to 10 miles per hour. The back half of his automobile was then “approximately middle of the northbound lane of traffic”. He said the truck’s course of travel was “coming off of the highway”, between 100 to 150 feet away, closer to 100, when he first saw it. He testified further: “Well, I started to speed up first, but then I seen he was coming on off of the highway and I set my brakes.” “He hit us right on the right front corner of the car.” Mr. Chandler said the front of his car was 18 to 20 feet off the east edge of the pavement and no portion of his car on the highway when the collision with the truck took place; that his car was practically at a standstill. The Ford spun around, rolled north and stopped on the shoulder of the highway. The truck was a 1963 International tractor unit with a shortened wheel base. A witness testified the truck left the slab at the intersection. It started rolling or somersaulting on impact, overturning three times and coming to a stop in the east ditch, next to the fence some 20 to 30 feet off the highway.

Ronald Kahn, manager of Kahn Chevrolet Company, Butler, Missouri, where the tractor was towed and stored, said the drive shaft and wheel base had been shortened, which made the vehicle top-heavy and hard to handle under braking. He said he was familiar with such vehicle modifications and had driven such a vehicle; that the wheel base is shortened to enable such vehicles to transport a long load, that this was “a trailer-hauling vehicle.” Kahn testified without objection that according to his records “New Moon, Incorporated, 1515 East 4th Street, Grand Island, Nebraska” was the owner of the vehicle. Plaintiff’s exhibit 7, the repair invoice, was so made out, with a wrecker service charge of $30.00 and storage charges of $75.00 and was marked “Paid”. Witnesses testified they observed, and the snapshot exhibits of the tractor show, the words “New Moon” on the doors and rear of the tractor.

The defendant offered no testimony.

Defendant contends its motion for directed verdict should have been sustained because no showing was made the driver was guilty of any negligence. Excessive speed was the only ground on which plaintiff submitted. From the evidence the jury could reasonably have believed the northbound tractor unit approached the intersection at a speed of 70 miles per hour, left the slab on Highway 71 at the junction, travel-led across the parkway area, hit plaintiff’s vehicle well out on the east shoulder, and then overturned three times before coming to rest in the ditch. This authorized submission of the excessive speed issue to the jury and defendant’s contention is overruled.

Defendant says further there was no evidence that the operator of the tractor unit was “an agent” of defendant and “acting within the scope of his employment at the time of collision”. Another assignment presents this same question by alleging error in giving Instruction No. 3, which submitted “scope of employment” to the jury — defendant says, without evidence.

The plaintiff offered no evidence as to either the status or the mission of the driver of the truck. The only evidence as to his identity comes from the defense attorney’s inquiry of Dr. Ronald, coroner of Bates County (who was also plaintiff’s treating doctor) whether he had occasion “to examine the other driver involved in the collision of May 14th, 1963, Mr. George H. Gallagher”. The coroner responded that he had examined this person whom defendant’s attorney had named as Gallagher, but upon objection, the court refused the answer. Plaintiff’s main instruction referred to the driver of the truck as Gallagher. Defendant’s answer denied generally plaintiff’s allegations that the truck at the time was in charge of defendant and was being operated by its agent, servant and employee. The plaintiff at no time made an effort through interrogatories or by deposition to determine if the truck driver was defendant’s employee or to determine if he was at the time acting within the scope of his employment. Of course, unless the negligent operation of the truck by the driver at the time, whatever his name, was within the scope of his employment, defendant would not be liable. This is an essential element of plaintiff’s case which she carries the burden of proving by evidence.

The record shows only the following: (1) the vehicle in question was being operated as a tractor unit at the time of the collision, without any trailer or load; (2) the words or sign name of “New Moon” were stamped or painted on two of the truck doors and on the rear end, and the garage owner testified without objection that according to his records, “New Moon, Incorporated, 1515 East 4th Street, Grand Island, Nebraska,” was the owner; (3) the towing and storage were billed to and apparently accepted by the defendant company; (4) defendant’s attorney referred to “George H. Gallagher” as driver of the truck at the time of the collision.

It appears, therefore, that plaintiff’s proof on this essential element consists only of whatever presumption, if any, arises from proof that defendant company owned the vehicle. We find no proof, or showing, or definite affirmative evidence that Gallagher was an employee of any sort of defendant company at the time of the accident or if he were, that he was within his scope of employment. Plaintiff says that proof of truck ownership is sufficient to raise the presumption that defendant not only owned the truck, but that it was then and there being used in defendant’s business, and that unless defendant offers evidence otherwise, this presumption continues, and will finally support a verdict and judgment. Defendant disagrees.

The proposition enunciated in Guthrie v. Holmes (banc) 272 Mo. 215, 198 S.W. 854, that proof of ownership of the vehicle together with proof that the driver was in the general employ of the owner raises the presumption that the driver was acting within the scope of his employment, has been reaffirmed many times by this court, Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S.W. 777, 782, State ex rel. Kurz v. Bland (banc), 333 Mo. 941, 64 S.W.2d 638, 641; Collins v. Leahy, 347 Mo. 133, 146 S.W.2d 609; Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35, 42; Rosser v. Standard Milling Company (Mo.Sup.), 312 S.W.2d 106, 111; Snead v. Sentlinger (Mo.Sup.), 327 S.W.2d 202, 205; Terminal Warehouses of St. Joseph, Inc. v. Reiners (Mo.Sup.Div. 1), 371 S.W.2d 311, 316.

In Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A.1918C, 715, decided the same year as Guthrie, the court rejected the contention that ownership of an automobile by the father together with the fact it was being driven by the son with the father’s consent was sufficient to raise a presumption the son was acting as agent and servant and within the scope of his authority. In Berry v. Emery, Bird, Thayer Dry Goods Co., 211 S.W.2d 1. c. 42, the admitted facts that the truck belonged to the defendant transfer company and that the driver was in its general employ were declared by the court to be “barely sufficient in themselves to give rise to the procedural presumption that defendant Bailey, who was driving the truck, was acting within the scope of his employment when plaintiff was injured and to thus make out a prima facie case under the doctrine of respondeat superior” (emphasis added). In Snead v. Sentlinger, supra, 327 S.W.2d 1. c. 205, the court said, “Proof that the automobile [note: it was a dump truck] involved in a collision was owned by and that its operator was in the general employment of the defendant gives rise to and is the bare minimum for a procedural presumption that the operator was acting within the scope of his employment at the time; and if there is no evidence for plaintiff other than this bare minimum, the presumption disappears upon defendant’s introducing substantial controverting evidence” (emphasis added).

However, from time to time it has been asserted that proof of ownership alone is sufficient to raise the presumption the driver is the agent of the owner and acting within the scope of his authority. The authority usually given for this proposition is Barz v. Fleischmann Yeast Co. (banc), 308 Mo. 288, 271 S.W. 361. There the evidence showed the truck was owned by defendant, had defendant’s name on the side and was driven by an employee of the defendant, although defendant contended the employee was using the truck during his noon hour without permission and not on behalf of defendant. There also was evidence which the court held should have been admitted that the driver made statements that he had some deliveries to make. The opinion stated that “Respondent concedes that plaintiff made a prima facie case” and mentions there were “glaring contradictions in the evidence,” which would seem to indicate the existence of a factual dispute beyond mere presumptions. It would appear, therefore, that the Barz case meets the requirements of Guthrie— ownership plus general employment of the driver by the defendant. However, the Barz opinion, at 271 S.W. 1. c. 363, referred to the fact the vehicle “was a business vehicle, operated during business hours” and quoted from O’Malley v. Heman Const. Co., 255 Mo. 386, 391, 164 S.W. 565, 566, a 1914 case involving a wagon, as follows: “There being sufficient evidence to warrant a finding of defendant’s ownership of the wagon, it was not necessary * * * to show affirmatively that the driver was defendant’s servant” and “was acting within the scope of his employment.” The opinion in the Barz case was written by Commissioner Higbee in Division Two. It was adopted as the opinion of the court en banc, three of the judges concurring in the opinion, three judges dissenting without opinion and one judge concurring in result. The actual decision was to reverse and remand the cause. The jury had returned a $3000 verdict against the driver and the trial court had directed a verdict for the defendant owner at the close of all the evidence.

The Barz case has sometimes been relied upon as holding that proof of ownership of an automobile makes out a prima facie case against the owner and places upon him the burden of proving that the driver was not using the automobile in pursuit of business of the owner (for example, Hampe v. Versen, 224 Mo.App. 1144, 32 S.W.2d 793, 795; Edwards v. Rubin, 221 Mo.App. 246, 2 S.W.2d 205, 206; Murphy v. Tumbrink (Mo.App.), 25 S.W.2d 133, 134), although this court en banc has twice pointed out that Barz is not a controlling ruling because the opinion did not have the concurrence of a majority, that there was a decision on the facts of the case but no authoritative pronouncement of law, State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638, 640, and State ex rel. Vesper-Buick Automobile Co. v. Daues, 323 Mo. 388, 19 S.W.2d 700, 707, 67 A.L.R. 157. Division Two pointed out the same thing in Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717, 722. See also Mulanix v. Reeves, 233 Mo.App. 143, 112 S.W.2d 100, 108. Apparently the last time the Barz case was cited by a Missouri appellate court was in 1946, Foster v. Campbell, 355 Mo. 349, 196 S.W.2d 147, 150, where the court said under the evidence in that particular case it was not necessary to determine whether plaintiff was entitled to have the owner’s liability submitted upon the mere fact of the nature of the vehicle (a pick-up truck) and his ownership of it.

We are of the opinion the rule should not be expanded beyond what is allowed under Guthrie v. Holmes, supra, and that both proof of ownership and general employment of the driver by the owner are required to raise the presumption that the driver was acting within the scope of his employment. The burden is still on the plaintiff as the moving party, the one seeking to collect, to establish his case, whether it be in tort, contract or something else. The owner can only be made liable for the negligent use of a motor vehicle, whether commercial or pleasure, by another upon some application of the principle of re-spondeat superior. When the allegation as to agency is denied, as here, the burden of proving it is upon plaintiff.

What plaintiff is contending for here is that upon proof of fact A (ownership) a presumption arises from which fact B (that the driver was an employee of owner) and fact C (that the employee was within scope of employment at time of collision) can be assumed, in the absence of evidence to the contrary. Justification for this is stated in a 1922 decision, Rockwell v. Standard Stamping Co., 210 Mo.App. 168, 241 S.W. 979, 981, as follows: “Since the advent of the automobile and its almost universal use many' accidents occur where the automobile speeds away from the scene. * * * In such cases it would be a harsh rule to require the plaintiff to do more than prove the ownership of the vehicle. * * * It is a just rule and one of necessity, especially since the advent of the automobile. It casts no special hardship on the owner, who can easily show by positive evidence that the vehicle was not under his control at the time, or, if in charge of his agent, that such agent was not acting for him, if such are the true facts.”

However, if plaintiff is the victim of a hit-and-run driver who actually gets away, the presumption being sought will not help plaintiff ascertain the identity of the owner. The presumption assumes plaintiff can prove ownership. If plaintiff can do this he can proceed to file suit and once suit is filed, the presumption can no longer be justified as a matter of necessity, based on the assumed inability of the plaintiff to do more than prove ownership, because under our present day discovery procedures whatever the defendant knows about agency and scope of employment the plaintiff can also know, although this was not always the case. It used to be that the primary source of discovery was depositions, which involved many practical limitations, such as might have been encountered here had depositions been attempted of the corporate officials of defendant in Nebraska. It might have been difficult for plaintiff to locate the particular officer who had the information sought. It might have been prohibitively expensive in time and money for plaintiff to have financed the depositions. But this changed with the new code in 1945 with respect to finding out what the controverted issues are and what the proof will be on them.

In the present case it was apparent on the pleadings that agency was a controverted issue. But it could not be determined from the pleadings whether this was to be a controverted issue in fact or not at the trial. In comparing the new code with the old, which they said, “ * * * made it possible to conceal issues and spring surprises at the trial”, Judges Hyde and Douglas wrote in their articles in the Missouri Bar Journal, “The basic principle of the new code is just the opposite; its aim is to determine what are the controverted issues before the trial begins and limit the trial to them. Immaterial and uncontroverted matters are sifted out so that trial time will not be wasted on them. This is done both with the aid of new procedural methods and by better use of old ones. * * * ” (Carr, Missouri Civil Procedure, Vol. 2, p. 536).

On the issue of whether the defendant owner’s vehicle is being operated by his agent, servant or employee and if so whether such operation is within the scope of his employment, plaintiffs today have available under rule 56 interrogatory procedure by which, inexpensively and promptly, a defendant can be compelled to state the relevant facts pertaining to such issue. In fact, where there is a corporate defendant, as here, it is required that such knowledge as is available to defendant be furnished. If the answers show agency and scope of employment, plaintiff’s problem is solved, or can be by correct further use of such information, such as request for admission of truth of relevant facts or for a pre-trial conference. If the answers show the opposite, then plaintiff knows the issue is genuine and he will have to muster what proof he can, the same as on any material disputed issue. In neither event is it necessary that plaintiff be aided by a presumption that proof of mere ownership in the absence of evidence to the contrary will get him to the jury. Getting to the jury on agency is a matter of trial preparation. That is where it belongs and where it should stay. If plaintiff decides to go to trial without information on this issue and without ascertaining whether it is in truth and in fact to be a disputed and not a conceded issue at trial, that is plaintiff’s lookout and defendant need do nothing about it if that is the way plaintiff wants to try the case.

In Detrich v. Mercantile Trust Company (Mo.Sup.), 292 S.W.2d 300, 304, the court said: “Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience.” As to general experience or probability, it by no means follows in this day and age, with the widespread use of motor vehicles, that ownership of a particular vehicle means that the driver is using it as the agent, servant or employee of the owner and if so, within the scope of his employment at the crucial time. In the case at bar, for example, the tractor unit, which was described as a “trailer-hauling vehicle”, having a shortened wheel base in order to carry a long load, was not hauling anything at the time of the accident. Also, the fact that defendant paid the towing and storage charges on the vehicle is equivocal. It would appear that an owner would do this to obtain his property regardless of whether it was or was not being used on his business at the time of the accident. As to policy and convenience there does not seem to be any sound reason of policy or convenience why with the means of obtaining information which are available to present day plaintiffs that a presumption such as here contended for should be raised merely from proof of ownership, even where a commercial vehicle is involved. It does not appear that failure to extend the presumption as requested will cause meritorious causes to fail through inability of plaintiff to produce affirmative evidence of the essential facts. We therefore see no compelling reason to extend the rule beyond that long established by Guthrie v. Holmes, supra, and rule that on the record before us plaintiff failed to make out a case of agency against the corporate defendant. However, since the case was tried on the erroneous theory accepted by the trial court that plaintiff need prove no more than ownership of the vehicle by the defendant and there was thus no occasion for plaintiff to attempt to prove anything more, although better evidence is doubtless available, the case should be remanded so as to give plaintiff an opportunity to develop the facts on the issue, Kickham v. Carter (Mo.Sup.), 314 S.W.2d 902, 907. Cases which state or intimate that proof of ownership of the vehicle involved is sufficient to raise the presumption that it was then and there being used in defendant’s business should no longer be followed.

It is true it can be argued that no matter how much times have changed with respect to use of motor vehicles, the fact remains that the owner is in better position than the injured plaintiff to know whether the person driving his car was his agent, servant or employee and whether he was within the scope of his employment; that, by analogy, the matter of defendant possessing superior knowledge or means of information is one of the elements of the res ipsa loquitur doctrine and that the argument has been advanced, but rejected, that the discovery procedures available “have now made the evidence of the true cause of an accident as accessible to plaintiff as to defendant, and hence the res ipsa loquitur doctrine should now be abolished in Missouri”, Warner v. Terminal R. Ass’n of St. Louis, 363 Mo. 1082, 257 S.W.2d 75, 80; Jones v. Terminal R. Ass’n of St. Louis, 363 Mo. 1210, 258 S.W.2d 643, 645; Bone v. General Motors Corporation (Mo.Sup.), 322 S.W.2d 916, 922, 71 A.L.R.2d 361, and hence it is also unsound to reason that since the discovery procedures have made the information as to whether the driver is acting as the owner’s agent and within the scope of his authority as accessible to the plaintiff as to defendant owner, there is no need or justification for the presumption sought by plaintiff herein. However, there are some valid distinctions between the two. For one thing, as pointed out in Warner, supra, the court said the discovery procedures have not made “full knowledge or information relating to the evidence tending to show the causes of all casualties” as accessible to a plaintiff as to a defendant. On the other hand, discovery as to whether the driver was the agent, servant or employee of the owner defendant and if so whether he was acting within the scope of his employment relates to a much narrower field of inquiry. The evidence on this would be as accessible to plaintiff as to defendant. Such information would not be privileged or work product. Furthermore, the res ipsa doctrine has other important requirements besides superior knowledge or means of information on the part of the defendant before it applies, so that its justification does not rest alone on the element of access to information.

The case also has to be remanded on another assignment raised by appellant, namely, failure to include a definition of “agency” in the instructions. Since the trial court held plaintiff had made a sub-missible case on respondeat superior and defendant had denied agency, plaintiff’s main instruction, No. 3, contained the finding, “First, the driver, Gallagher, was operating the New Moon Home motor vehicle within the scope and course of his employment by New Moon Homes at the time of the collision”, but plaintiff failed to submit an appropriate definition of agency, as required by MAI (see Missouri Approved Jury Instructions, Notes on Use, p. 145). This was reversible error, Peak v. W. T. Grant Company (Mo. Sup. banc), 409 S.W.2d 58, 60. On retrial, if agency is a contested issue, plaintiff should also include the requirement of MAI 18.01 of a finding that the driver was an employee of the defendant, which was omitted in plaintiff’s Instruction No. 3.

There is no need to pass on the other assignments raised by defendant, some of which may not re-occur upon a retrial and others of which the parties may see fit to avoid in view of the objections which have been made to them.

The judgment of the trial court is reversed and the cause is remanded for a new trial on all issues.

HENLEY, FINCH, EAGER and DON-NELLY, JJ., concur.

HOLMAN, C. J., concurs in result.

STORCKMAN, J., concurs in separate concurring opinion filed.

CONCURRING OPINION

STORCKMAN, Judge.

With my concurrence I wish to note that all commercial motor vehicles are required by law to display in a conspicuous place on both sides thereof the name of the owner and the address from which such motor vehicle is operated. Section 301.330, RSMo 1959, V.A.M.S. A commercial motor vehicle is one designed or regularly used for carrying freight and merchandise, or more than eight passengers. Section 301.-010, subd. 1, RSMo 1959. Logically these legal requirements should at least furnish a basis for a presumption or inference that the person whose name appears on a commercial motor vehicle is the owner of it. It is not necessary to hold otherwise in this case and the opinion should not be so interpreted.

      . The court in its discretion ruled Mr. Kahn qualified as an expert to testify on these matters. His statements were neither denied nor really disputed and we do not consider there was any abuse of discretion by the trial court in permitting the testimony.

      . By “general”, of course, is not meant employment limited to a superior rank, such as a general agent or a general manager. It is used in the sense of not being limited to a particular class, type, or field of employment.

      . This includes O’Malley v. Heman Const. Co., supra, Barz v. Fleischmann Yeast Co., supra, Rockwell v. Standard Stamping Co., supra, Edwards v. Rubin, supra, Murphy v. Tumbrink, supra, and Hampe v. Versen, supra.

      . The court did say however, 257 S.W. 2d 1. c. 80, that the use of the discovery process “in many cases should enable a plaintiff to state and prove a claim on specific negligence, although before he would have been obliged to rely upon a res ipsa loquitur inference” and Judge Storckman, in his dissent in Adam Hat Stores v. Kansas City (Mo.Sup. banc), 316 S.W.2d 594, 601, observes, “Since the res ipsa loquitur doctrine is a part of the law of evidence, the need for invoking it has tended to diminish because of the improved discovery provisions of the new Civil Code * *


source: Caselaw Access Project

author: PRITCHARD, Commissioner. PER CURIAM.

license: Public Domain

text:
    Olivia BURNS, Respondent, v. David A. MAXWELL, Appellant.
    No. 52372.
    Sept. 11, 1967.

      William P. Carleton, and Sherman Landau, St. Louis, for respondent.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for appellant.
   PRITCHARD, Commissioner.

Appellant claims that the trial court abused its discretion in granting respondent a new trial on the ground that the verdict of the jury was against the weight of the evidence because respondent did not make a submissible case under the humanitarian doctrine. The sole assignment of negligence under that doctrine was failure to slacken speed so as to avoid the collision (MAI No. 17.15).

Respondent’s claim for damages for personal injuries, in the amount of $25,000, arose out of a collision between two automobiles on April 29, 1963, at the intersection of Spring Avenue and Natural Bridge in the city of St. Louis.

Respondent testified that after ending her work as an assembler for Carter Carburetor Company, 2840 North Spring, she drove a 1957 Lincoln two-door convertible north on Spring about four or five blocks to Natural Bridge. There was a stop sign on Spring as it made a “T” intersection with Natural Bridge. Respondent edged her way up to the stop sign behind four or five preceding cars. She then stopped at the south curb of Natural Bridge and looked to her left and saw two cars coming east on Natural Bridge near Prairie Avenue, which was about 537 feet away. It was misting rain at the time. On the southwest corner of the intersection was a used car lot, and along it, just west of Spring, there was no parking for about 40 or 50 feet. Natural Bridge was eight lanes wide, and at the intersection with Spring was practically level. • Eastward toward Grand Avenue, there was a slight upgrade. There was a double yellow line for the center of Natural Bridge and white lane lines for the cars. When she looked to her left respondent saw the two cars coming east in the second and third lanes (“the first one was close to the parked car lane and the other was in the other lane”; one car was in the third lane over from the center lane and the other in the second lane over from the center lane; the lane immediately next to the center lane was open with no cars in it). She then looked east and saw two cars just crossing Grand Avenue, then looked to her left again and saw the two cars midway (in the center of the block) between Prairie and Spring, over 250 feet away. She started out after looking the second time to the left and was curving to the left to make the left turn into Natural Bridge. As she started across her speed was between 5 and 10 miles per hour. When respondent’s front wheels were over the yellow line, the front end of appellant’s car collided with her left rear fender, as appellant told her afterward. Respondent’s convertible was yellow with a black top, and she heard no horn sounded by any eastbound vehicle.

According to Police Officer William D. Smith, who investigated the collision, Natural Bridge was approximately 90 or 92 feet wide; there were three eastbound lanes on its south side, and a curb lane for parking. At the intersection, Spring Avenue was approximately 36 feet wide, with one north and one south lane for traffic, and parking areas on both sides. He found the left rear fender of respondent’s car damaged and appellant’s Chevrolet was damaged on its left front, and appellant told him that as he was eastbound on Natural Bridge approaching Spring he was going about 30 miles per hour in the center lane. On deposition, appellant testified that he had slowed to 25 miles per hour when vehicles (two) in f^pnt of him braked and slowed and when respondent suddenly appeared in view. His speed at impact was about 20 miles per hour. When respondent’s car came to a stop it was almost to the north curb of Natural Bridge. He estimated respondent’s car was going 5 to 10 miles per hour when he first saw it.

Appellant’s version of the facts preceding the collision differed from that of respondent. He testified that he was following a car length behind two other vehicles in lanes to his either side and did not see respondent crossing in front of him until he was one car length away at 25 miles per hour. He had slowed from 30 miles per hour to 25 miles per hour when he saw the vehicles ahead also slowing. According to appellant it was raining hard at the time and his windshield wipers were on. The car which was on appellant’s left stopped (short of respondent) ; the car on his right swerved around her. In determining the submissibility of respondent’s case, her evidence and legitimate inferences therefrom are to be regarded as true and that of appellant is to be disregarded unless it aids the respondent. Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 870 [6],

These parties were on collision courses at their respective distances and speeds from the point of impact. (At respondent’s slowest speed of about 5 miles per hour, and appellant’s speed of 30 miles per hour, each would have used between five and six seconds to reach the point of collision.) According to respondent, when she started up from her stopped position at the south curb of Natural Bridge she saw appellant (with one other car alongside) 250 feet or more away to her left. If she could see his vehicle, certainly he could see her. Although there was then no situation of danger upon which humanitarian duty to act would seize, appellant was charged with knowledge of the movements of respondent’s yellow convertible thereafter. Wyckoff v. Davis, Mo., 297 S.W.2d 490, 493 [1]. The jury could find that at sometime thereafter, as respondent proceeded across the intersection at her slow speed she came into and was in a position of immediate danger by reason of a fixed purpose of entering the path (the lane) of appellant’s travel. The exact place of such immediate danger is for the jury to determine. West v. St. Louis-San Francisco Railway Company, Mo., 295 S.W.2d 48, 52; Harrington v. Thompson, Mo., 243 S.W.2d 519, 525 [8, 9].

Respondent needed only a fraction of a second (perhaps one-half second, if the jury should believe she had attained her highest speed of 10 miles per hour, 14 feet per second) to escape the collision. Under the facts and circumstances here, with at least a damp or wet street from mist under respondent’s testimony, it cannot be judicially known the precise distance in which appellant could have stopped, Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 12, and to infer from such stopping distance that his speed could have been sufficiently slackened to permit respondent to escape. But the jury could legitimately infer from the relative speeds and distances of the vehicles from each other, and considering the factor of when respondent was in immediate danger of being injured, as appellant could see, that appellant had somewhere around three seconds within which so to reduce his speed. See the case of Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972, where the plaintiff pedestrian needed only another foot or foot and a half to have avoided the accident; Diel v. St. Louis Public Service Co., 238 Mo.App. 1046, 192 S.W.2d 608, 611 [1], where plaintiff pedestrian needed only a step to clear the path of the streetcar, and the court said, “The slightest checking of the speed of the car would have saved plaintiff from harm.” In Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70, 74 [8], the truck moving across the railroad crossing would have been out of danger from being struck by the train (at its sustained speed ten or eleven seconds away) in a little more than a second. The court said, “If all this is true, no further testimony was necessary to raise a warrantable inference that the en-ginemen could have checked its speed sufficiently to have avoided the collision.” See also Keithley v. St. Louis Public Service Company, Mo.App., 379 S.W.2d 149, 152 [5], where it was said, “No lengthy or involved mathematical calculation is necessary to reach the conclusion that an earlier application of the brakes with a corresponding decrease in the speed of the bus, or a slight swerving of the vehicle a few feet to its left, would have been sufficient to allow the plaintiff’s car to have safely cleared the path of the motorbus”; and Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 924 [7, 8], “But, it must be recognized that in some situations ‘the facts speak for themselves without the aid of expert evidence, as where the evidence shows that the plaintiff’s vehicle had but barely failed to get in the clear before the occurrence of the collision, so that only the least additional time would have enabled the plaintiff to make his escape.’ (Citing cases).” Appellant had somewhere around three seconds to slacken speed after it would have been reasonably apparent to him that respondent would drive into his path. His distance at his speed of 30 miles per hour would have been about 132 feet to the west of respondent’s path. His reaction time being judicially known at ¾ second, Vietmeier v. Voss, Mo., 246 S.W.2d 785, 789, he would still have had about 100 feet to reduce his speed and delay reaching the point of collision by at least 1/2 second, as the jury could find. A submissible case was made by respondent, and the court did not abuse its discretion in awarding a new trial to her on the ground that the verdict was against the weight of the evidence. Civil Rule 78.01, V.A.M.R.; Losh v. Benton, Mo., 382 S.W.2d 617, 619.

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.

FINCH, P. J., and DONNELLY, EAGER and STORCKMAN, JJ., concur.


author: PRITCHARD, Commissioner. PER CURIAM:

text:
    Marie LIENEKE, Respondent, v. EVANGELICAL DEACONESS HOSPITAL, Employer, et al., Defendants, M. E. Morris, State Treasurer and Custodian of the Second Injury Fund, Appellant.
    No. 52567.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Quinn & Quinn, William B. Quinn, Julia M. Quinn, Robert L. Weise and Morris B. Kessler, St. Louis, for respondent.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for appellant.
   PRITCHARD, Commissioner.

On behalf of appellant the Attorney General contends that an award of the Industrial Commission to respondent from the Second Injury Fund (§ 287.220, RSMo 1959, V.A.M.S.) is “clearly contrary to the overwhelming weight of the evidence.” The appellant, State Treasurer and Custodian of the Second Injury Fund, is a party and this court has appellate jurisdiction. Grant v. Neal, Mo., 381 S.W.2d 838.

It is argued that respondent when she suffered an accident in which she broke her left wrist on January 17, 1963, was already totally disabled from progressive degenerative arthritis of the right hip resulting from an accident on June 22, 1959. The evidence, says appellant, demonstrates conclusively that respondent was totally disabled prior to- the last accident, and therefore the Second Injury Fund cannot be held liable for compensation. The final award from that .fund, from which the appeal was taken to the Circuit Court, which affirmed, was for 238.75 weeks’ compensation at $38.01 per week, or $9,074.89, and $22.81 per week for the remainder of respondent’s life.

Respondent’s motion to dismiss the appeal for appellant’s failure to comply with the rules on preparation of briefs is overruled. While there are deficiencies in that the brief does not set forth a complete statement of facts, in the argument portion thereof sufficient facts, with transcript references, are set forth so that the issue may be determined. This review is limited to a determination of whether the finding of the Industrial Commission could reasonably have been made and is supported by competent and substantial evidence, and this court may set aside such finding only if it is clearly contrary to the overwhelming weight of the evidence. § 287.490, Subd. 1, RSMo 1959, V.A.M.S.; Conley v. Meyers, Mo., 304 S.W.2d 9,10 [2].

Respondent began working for the Evangelical Deaconess Hospital on March 27, 1950, as a nurses’ aid. Her duties were bathing, feeding and caring for patients, making beds, cleaning rooms and running errands, all of which required her to be on her feet 8 hours a day for a five-day week, alternating shifts. After four years she was assigned the easier work of a ward clerk (making menus and daily reports for personnel records, requisitioning supplies, etc.), and while she was performing that duty she slipped and injured her hip on a bannister on June 22, 1959. She was given medical treatment, lost a few days from work but continued as a ward clerk. She was x-rayed, saw doctors, and there was prescribed for her heating pads and hot baths, aspirin and bufferin, as she kept working. The condition of her hip worsened, and she saw a Dr. Scheer on June 20, 1960, who treated her with cortisone and medications, and had further x-rays taken. She was re-examined by Dr. Scheer in March, 1961 and January, 1962. Until January 15, 1963, respondent was having “an awful lot” of pain in her hip. Dr. Scheer told her to go ahead and try to work, take a day or two off now and then, and keep up with the medications. She lost about 2¾ days’ work when first injured; and from October 23, 1959 through May 2, 1960 she was absent from work to be with her invalid mother; her hip condition caused an absence from work from June 27, 1960 to July 11, 1960; from July 25' through August 18, 1960; October 19 through October 22, 1960; on December 23, 1960; February 27 through March 5, 1961; April 4 through April 8, 1961; August 2 through September 10, 1961; October 11, December 15, 30, and 31, 1961; January 20 through January 24, 1962; February 25, and May 1 through May 3, 1962; June 28 through July 1, 1962; September 5 through September 23, 1962; October 25 and 26, and November 13 through November 17, 1962; December 4, 5, and 22, 1962; and after January 17, 1963, the date of her last injury.

After the first injury, respondent had persistent pain and difficulty in getting up and down, and could not completely squat down. In May, 1962, respondent was reassigned the job of nurses’ aid after the hospital eliminated ward clerk jobs. She was later, before October 2, 1962, assigned as a nurses’ aid to a group nursing section where the critically sick and surgical patients are cared for. In this work she limped slightly and experienced pain in her right hip; she could not get down on her knees or reach up, but she was on her feet helping to bathe, turn and feed patients, make beds, run errands, answer the telephone, walking patients, and getting them in and out of bed. It was a difficult job, physically and mentally strenuous. There were many emergencies requiring fast action. Nurse Bess Polhemus, employed privately at the Deaconess Hospital since 1953, had been acquainted with respondent’s work in group nursing since 1961, when respondent was under the supervision of Nurse Jean Crake who in turn was in the charge of Deaconess Sister Huida Weise. Nurse Polhemus testified that respondent performed the duties assigned to her in a cheerful and willing manner, and there was nothing to indicate that she wasn’t able to move as rapidly as the nurse wanted her to; she had no occasion to make complaint concerning respondent’s work or activities. There was nothing about respondent’s limp which was in any way disabling or interfering with her work.

Nurse Jean Crake testified that from 1959 until 1963 she worked a part of the time around respondent when she was a ward clerk and in group nursing; that she walked with a limp occasionally, and would he on her feet most of the time. Immediately before January, 1963, considering respondent’s physical condition, Nurse Crake would have hired her as a nurses’ aid; she kept right up with the rest of them; she never performed her work in such a manner as to endanger a patient; her mobility was about the same from 1960 up to January, 1963 — she moved very well; and she never made any complaint about respondent.

The second injury happened while respondent was on duty at the hospital when she tripped and fell from an elevator which did not level with the floor. The diagnosis was: “Fracture lower end of radius, left; contusion right shoulder; contusion right knee, complicated with Drug rash, old arthritis right hip, causing a flare-up of condition of this hip,” for which respondent was hospitalized from January 17 through February 2, 1963. She had whirlpool and active exercise therapy of the left hand from May until August 13, 1963, but the finding was that she could not use her hand functionally any better than before treatment was begun. Her hand got worse, and she did not return to any employment, and she was advised not to continue work. Her employment was terminated June 19, 1963, with this entry: “Nurses’ aid unable to work at the level expected because of poor health. Would not re-employ.” The x-rays taken on the date of the second injury showed impaction of the radius and a reversal of the angle of the wrist to the radial side of the hand rather than the ulnar or normal side. The fracture is known as a Colles fracture, and a derangement of the carpal bones of the left hand, the deformity being a permanent condition.

On January 22, 1962, respondent had a permanent partial disability of 50% of the lower extremity at the right hip, the condition of producing the disability being progressive, according to Dr. Stephens. An arteriosclerosis and hypertension condition for which respondent was hospitalized in 1958 would not have prevented her being employed. On October 22, 1963, she was permanently partially disabled 35% of the left hand at the wrist, and 65% of the right hip, a combined permanent partial disability of 55% of the body as a whole. In January, 1964, it was his opinion that respondent was permanently totally disabled. The wrist injury increased the symptoms in her right hip and added to the total sum of disability.

Appellant relies upon respondent’s testimony that before January, 1963, her hip was very bad; she could not squat and was unable to put on her shoes and stockings; that for long periods of time she was off work; that after her hip accident she could not be a nurses’ aid, the work was harder than that of a ward clerk for which she could not perform all her duties such as walking a lot. As long as she was in bed and rested, her hip did not bother her. She did the job as ward clerk as best she could and took a day off from time to time to rest and take medication. Appellant also relies upon Dr. Stephens’ testimony that if respondent had just the hip condition and the (previously existing) cardiovascular disease, and not the wrist condition, she would not have been able to be employed. Further relied upon is the testimony of Dr. Bert Klein. Both of these doctors were respondent’s witnesses. Dr. Klein testified that he hospitalized respondent in 1958 for an arteriosclerosis disease which had existed approximately three years. He repeatedly advised her to quit working since 1958, that she rest and not seek employment and that employment might be detrimental to her. He felt that her cardiovascular condition was a permanent disability and that she was not able to carry on any type of employment.

Two of respondent’s superiors testified for appellant that she was not able to do her work since the injury to her hip. Sister Huida Weise, a Deaconess nurse (director of interservice education at Deaconess Hospital), testified that prior to January, 1963, she observed that respondent had difficulty in walking and would complain of pain in her hip; she became “more slow in her gait”; she would have to sit more; her breathing was a little fast and labored; she didn’t do the full capacity of a nurses’ aid in 1963; she walked with a sort of limp; if an applicant came in with the condition in which she observed respondent, she would not employ her as a ward clerk which would take a lot of walking; and that respondent was not capable of performing the duties of either a nurses’ aid or a ward clerk before the injury to her wrist. Jane Thompson, a director of nursing service at the hospital, testified that respondent limped, walked very slowly, and did not perform the duties required of her job either as a nurses’ aid or as a ward clerk. On cross-examination she could not say that there were many duties and functions in both these jobs which respondent was able to perform up to January 16, 1963; and that it practically amounted to a charitable contribution that the Deaconess Hospital made to respondent from 1959 until she terminated her employment.

For appellant, Dr. Carl Fellhauer testified in conclusion that respondent’s arteriosclerosis and hypertension were in themselves disabling to the extent that she should not have been working even prior to the fracture of the wrist; and prior to 1963 she could not have performed the duties required of her because of her physical condition.

It is apparent in comparing the statements in appellant’s brief with all of the facts and conflicting testimony in the record that he has failed to accord respondent the benefit of the rule that on review of a Workmen’s Compensation case the evidence, together with all the reasonable inferences to be drawn therefrom, will be viewed in its light most favorable to support the finding and award of the Industrial Commission. Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122; Dixon v. Art Bunker Motors, Inc., Mo.App., 387 S.W.2d 199. Appellant cites four Oklahoma cases, but none of them aids him on this record, although they did have the issue of whether a prior injury produced total permanent disability so as to make the Special Indemnity Fund not liable. In Special Indemnity Fund v. Prewitt, 201 Okl. 308, 205 P.2d 306, 309, the award was vacated because the State Industrial Commission did not find that the prior injury produced only partially permanent disability (a jurisdictional fact to be found in that state) — “However, this fact, necessary to the power of the Commission to enter an award against the Fund, must be determined and shown of- record.” Clyde’s Auto Salvage & Coal Op. Cas. Co. v. Hughes, 204 Okl. 467, 231 P.2d 356, 358, sustained an award where the evidence showed that the claimant never missed a day of work after the first injury and drew regular wages. Cited was Dierks Lumber & Coal Co. v. Lindley, 182 Okl. 185, 77 P.2d 44, 46, “ ‘Ordinarily a disability cannot be classified as total [under the Act] where the earning power of the employee is not wholly destroyed and capacity to perform remunerative employment remains.’ ” (Brackets added.) In Special Indemnity Fund v. Long, Okl., 281 P.2d 933, 935, the court affirmed the award to claimant saying,. “There is therefore evidence that respondent was not totally disabled prior to the time of the injury in question. The commission found this issue against the Fund, and there being evidence reasonably tending to support such finding it will not. be disturbed in this court.” In Special Indemnity Fund v. Mayo, Okl., 351 P.2d 1008, 1010, the holding was: “The record, viewed in its entirety, amply shows employee possessed a modicum or residuum of capacity to engage in gainful occupation prior to sustaining the last specific injury for which compensation was awarded.” These last three Oklahoma cases actually aid respondent, and are authority that her award from the Second Injury Fund should not be set aside.

Here, irrefutably against appellant is the undisputed fact that except for some days away (some so spent on account of caring for an invalid mother) respondent worked almost four years at her jobs in Deaconess Hospital. During all this time she drew regular wages, with periodic increases thereof as the record shows.- Dr. Stephens advised her to keep working after the 1959 hip injury. Two of her superiors testified that she performed her duties in a cheerful, willing and satisfactory manner. Although the conclusions of two other nurses were that her work was not satisfactory and she was incapable of doing it (a charitable employee), the inference is clear that they were present and saw her perform at least some of her prescribed duties. There was thus sufficient competent and substantial evidence upon which the Industrial Commission based the award to sustain the same and to overrule appellant’s contention that respondent was totally and permanently disabled prior to her second injury. Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Conley v. Meyers, supra. Such award, under the facts and circumstances of this case, complies with the requirement that the Workmen’s Compensation Act be liberally construed, Grant v. Neal, supra, and furthers the purpose of the Second Injury Fund law to encourage employment of the partially handicapped. Stewart v. Johnson, Mo., 398 S.W.2d 850.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Presiding Justice.

text:
    Thomas Scott NIELSEN, a minor, by his father and next friend, Ralph A. Nielsen, Plaintiff-Respondent, v. Martha DIERKING, Administratrix of the Estate of George S. Dierking, Deceased, Defendant-Appellant.
    No. 52256.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.

      John R. Gibson, Byron J. Beck, Morrison, Hecker, Cozad & Morrison, Kansas City, for plaintiff-respondent.
    Thomas E. Deacy, Jr., Joseph A. Sherman, Joseph W. Amick, Deacy & Deacy, Kansas City, for defendant-appellant.
   FINCH, Presiding Justice.

The jury returned a verdict for defendant in a suit wherein plaintiff sought $350,000 for personal injuries received when he was run over by a school bus operated by defendant’s decedent. The trial court sustained plaintiff’s motion for a new trial and defendant appeals.

The trial court assigned two grounds for sustaining plaintiff’s motion for a new trial. Both concerned the admission of certain evidence by the trial court and involve the doctrine which permits the admission into evidence of prior consistent statements for the purpose of rehabilitation of the witness when that witness has been impeached by proof of statements inconsistent with his trial testimony. Plaintiff does not seek to sustain the action of the trial court on any other basis. The limited issues involved necessitate a resume of only a portion of the evidence.

The occurrence in controversy took place on December 11, 1962, a short distance east of the intersection of Oak Street and 108th Terrace in Kansas City. Plaintiff, then seven and one-half years old, was a student at Red Bridge Elementary School located one block north of the intersection in question. A school bus belonging to and operated on behalf of defendant’s decedent turned left from Oak Street onto 108th Terrace, and just east of the intersection its wheel or wheels ran over plaintiff, resulting in very serious injuries, including complete paralysis of the body below a point just above the waist.

Plaintiff testified that when he ran across 108th Terrace he had not seen the school bus. When he got to the middle of the street, he stopped and somehow fell down. He then saw the bus coming around the corner from Oak Street and it ran over him.

Defendant pleaded contributory negligence and sought to show that the plaintiff ran into the side of the bus and slipped or fell under the left rear wheel. One witness fpr defendant was Mrs. Ilean Withrow. She testified that after stopping at the school to pick up children, she drove south on Oak Street and was the second or third car behind the school bus. The bus made a complete stop at the corner and then swung very wide to make the turn onto 108th Terrace. At the time, Mrs. With-row saw children on the northeast corner of the intersection with a safety patrol boy in front of them holding his arm out. When the bus made its turn onto 108th Terrace, there was nothing in the street in front of the bus. Mrs. Withrow continued straight ahead on Oak Street. She observed that the bus stopped and as she crossed the intersection she saw children in the middle of the street on 108th Terrace. She then stopped her car and went back to see what was wrong. Plaintiff was lying in the middle of the street. A man picked him up and carried him into a house where he was placed on a couch. Mrs. Withrow followed into the house. The boy .was trying to talk hut was told to lie still and say nothing. Mrs. Withrow stated that the boy still talked and said, “I slipped and fell under the bus.” She further testified that she saw a Mrs. Leighton in the house, to whom she remarked, “Do you suppose the bus ran over the boy?” and Mrs. Leighton replied, “Yes, I seen him slip and fall under the left rear wheel.”

On cross-examination, Mrs. Withrow admitted that a Mr. North, an attorney for plaintiff, and a woman reporter with a stenotype machine came out to question her on January 7, 1963. A transcript of the stenographic notes was identified as plaintiffs Exhibit 11, and Mrs. Withrow was asked about a number of questions and answers appearing in that stenographic report. She indicated that she did not believe that certain answers therein were given by her, and said something about her answers having been rearranged but she declined to say that the stenographer had rearranged her answers, and when shown specific questions and answers on the stenographic report conceded that such questions were asked and the answers given. Certain answers contradicted testimony given by Mrs. Withrow on direct examination. For example, she had stated to Mr. North that she did not see the bus make the turn and she assumed it turned left from Oak Street onto 108th Terrace because it had to. The transcript indicated that she stated to Mr. North that when she saw the bus it was parked. She further stated that when plaintiff was lying on the couch in the house, he did not say how the accident happened. There were certain other variances from her testimony at the trial, but we need not detail them herein. Plaintiff’s Exhibit 11, which was the stenographic report, was offered and received in evidence.

On redirect examination the defendant established by Mrs. Withrow that a Mr. Sherman, one of the attorneys for defendant, had taken a longhand statement which she verified and signed. It bore the date of July 2, 1963, and was identified as defendant’s Exhibit 12. Over objection that this exhibit was not admissible as a prior consistent statement since it had been given after the impeaching statement given in January of 1963, the defendant’s Exhibit 12 was received in evidence by the court as a prior consistent statement.

Another witness called by defendant was Marilyn K. Meyer, a sixth-grade student at Red Bridge School at the time of the accident. Marilyn testified that on the afternoon in question she was a passenger on the school bus and was seated next to the window on the driver’s side about three seats from the rear. The bus went south on Oak Street. It stopped on 108th Terrace and then turned east onto 108th Terrace. Marilyn saw plaintiff standing on the sidewalk at the corner at a time when the school bus was about halfway through its turn. The front of the bus had gone beyond the crosswalk at the time when she saw Tommy step off the sidewalk but she saw nothing after that.

On cross-examination, Marilyn was asked if a Mr. Beck came to see her in February 1963 to talk about the accident. She stated that he had not been to see her and she had talked only to Mr. Sherman. Plaintiff had a statement, marked as his Exhibit 12, at the bottom of which Marilyn identified her signature and the signature of her mother, which read, “The above statement was made in my presence. Mrs. W. W. Meyer.” She insisted, however, that Mr. Beck had never talked to her and she did not recall the statement at all. She did not recall saying, “I did not see Tommie Nielsen before the accident, and don’t know what part of the bus hit Tommie,” which appeared in the statement. Said plaintiff’s Exhibit 12 was offered in evidence by plaintiff.

On redirect examination, Mr. Sherman, for the defendant, developed by Marilyn that he had talked to her in June of 1963 and she gave him a written statement dated June 14, 1963. It was marked as defendant’s Exhibit 15. Mr. Sherman then proceeded to read from the statement to the witness and asked her if the statements were right. Plaintiff objected on the basis that this was an attempt to rehabilitate the witness with a statement given later than the impeaching statement received in evidence, but the objection was overruled and the answer received. In this manner, the exhibit was read to the jury but it was not formally introduced as an exhibit.

Missouri cases have established the mle « * * * ⅛¾⅛ when a witness has been impeached by proof of his statements inconsistent with his trial testimony, prior consistent statements are admissible into evidence for the purpose of rehabilitation.” Stafford v. Lyon, Mo., 413 S.W.2d 495, 498. See also Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681. However, for the statement to be admissible in evidence as a prior consistent rehabilitating statement, it must have been made prior to the impeaching statement. The rule was stated by Judge Tipton in State ex rel. Berberich v. Haid et al., 333 Mo. 1224, 64 S.W.2d 667, 669, as follows: “We have uniformly ruled that, where the rehabilitating statement was made prior to the impeaching statement, such a statement may be properly admitted for the purpose of rehabilitating the witness, and that, where the rehabilitation is subsequent to the impeaching statement, it is not admissible and it is reversible error to admit it in evidence.” Subsequent cases reaffirming this rule are Ayres v. Keith, Mo., 355 S.W.2d 914, 921-922 and Quinn v. Berberich, Mo.App., 68 S.W.2d 925, 926. See also the earlier case of State v. Creed, 299 Mo. 307, 252 S.W. 678, 681 [2], for a discussion of the rule.

Under the cases above cited, if Mrs. Withrow’s statement to Mr. Sherman (defendant’s Exhibit 12) was given after the interview with Mr. . North (plaintiff’s Exhibit 11), which was the impeaching statement, it was inadmissible as a matter of law.

The evidence with reference to the time when the statements were given was as follows: Each of the written documents bore a date. Plaintiff’s Exhibit 11 was dated January 7, 1963, and defendant’s Exhibit 12 was dated July 2, 1963. Mrs. Withrow, on cross-examination, testified that Mr. North and the reporter came to see her on January 7, 1963. She testified that it was on July 2, 1963, that she talked to Mr. Sherman and gave the statement to him. She further testified that this was six or seven months after January 7, 1963, when she had talked to Mr. North. Subsequently, on the second round of redirect and recross-examination, Mrs. Withrow stated that plaintiff’s Exhibit 11 was made within a week, or two or three days, after the handwritten statement to Mr. Sherman, but she did not fix particular dates. The reporter who accompanied Mr. North, Mrs. Olive Gillette, testified in rebuttal that her records indicated that the statement of Mrs. Withrow which she reported was taken on January 7, 1963. Defendant argues that since there was testimony by Mrs. Withrow that she gave plaintiff’s Exhibit 11 somewhere between two or three days, or a week, after she gave defendant’s Exhibit 12 to Mr. Sherman, there was evidence to support the admissibility of defendant’s Exhibit 12 as a prior consistent statement, and having been admitted, it was admissible as a matter of law and the trial court could not correctly grant a new trial on the basis that the court erred in admitting the exhibit. In effect, defendant argues that, having once decided the issue of admissibility of the statement, the court may-not, on motion for new trial, change its mind about which of the instruments was executed first, and consequently may not grant a new trial for an error in originally admitting the document, if there is any evidence at all to justify admission of the exhibit when offered. We do not agree with this contention, as we hereinafter show.

Actually, the remarks of the trial court made when he first admitted defendant’s Exhibit 12 in evidence do not indicate that he was holding that defendant’s Exhibit 12 was executed prior to plaintiff’s Exhibit 11. They seem to infer the contrary. When counsel for plaintiff objected that the statement was not a prior consistent statement to the impeaching statement given in January, the trial court .said, “Well, it is a prior consistent statement with respect to what she testified to on the stand.” This would indicate that the court was admitting the statement on the basis that if given prior to the date of trial and consistent with the testimony of the witness at the trial, the statement was admissible as a prior consistent statement regardless of whether it was executed before or after the impeaching statement. The Missouri cases, as we have indicated, do not support admissibility on that theory.

Be that as it may, it is apparent that on consideration of the motion for new trial the trial court concluded and necessarily held that plaintiff’s Exhibit 11 antedated defendant’s Exhibit 12. An examination of Assignment 13 in plaintiff’s motion for new trial discloses without question that it is predicated on the factual basis that plaintiff’s Exhibit 11 was executed prior to defendant’s Exhibit 12, and that consequently the latter could not be a prior consistent statement and admissible as such. The trial court in granting a new trial stated that he did so “for the reasons set forth in paragraphs 13 and 19 of plaintiff’s motion for new trial.” It is true, as defendant contends, that the question of whether evidence is admissible is a question of law for the court to determine. That is true on appeal and likewise is true in the trial court. The question of whether a prior consistent statement is admissible in evidence for purposes of rehabilitation is a question of law, the resolution of which is dependent on the determination by the court of the factual question of which statement was executed first. “It is the function of the trial judge to determine all matters of fact upon which the admissibility of evidence depends, * * Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 879. Defendant asserts that since there was evidence that the prior consistent statement given Mr. Sherman was made prior to the statement to Mr. North, it was admissible as a matter of law. This is not true. It is admissible if, and only if, the court finds as a fact that it was made prior to the impeaching statement.. The circumstance that the trial court first ruled the exhibit admissible in evidence does not mean that it cannot conclude subsequently, on a motion for new trial, that the facts justify and compel a different conclusion than the one originally reached. The trial court has a right, on the motion for new trial, to review the question of whether the evidence disclosed that defendant’s Exhibit 12 preceded or antedated plaintiff’s Exhibit 11, and where, as here, the evidence certainly justified such a conclusion, the court had the right to find that the rehabilitating statement (defendant’s Exhibit 12) was executed after rather than before the impeaching statement. Having made that determination, the court properly concluded that the admission of defendant’s Exhibit 12 was erroneous and that a new trial should be granted on that account. The determination by the trial court of the preliminary factual issue involved in the question of admissibility will not be disturbed on appeal unless there has been an abuse of judgment or discretion amounting to error of law. Nibler v. Coltrane, Mo., 275 S.W.2d 270 [7]. We find no such error. See also Tate v. Giunta, Mo., 413 S.W.2d 200.

Defendant cites and relies particularly on Simpson v. Terminal Railroad Ass’n of St. Louis, Mo., 357 S.W.2d 65. The sole question there was whether the testimony of a witness as to the presence, actions and statements of three men was circumstantially relevant to the issue of whether an alleged accident for which suit was brought was staged or genuine. The court held it to be relevant, 1. c. 68, “ * * * because it was sufficient to permit a reasonable inference by a jury that the three men were three of the four allegedly in the automobile at the time it was struck.” The evidence was relevant to the issue of identity to be determined by the jury and, consequently, was admissible as a matter of law. Its admission was not a basis, therefore, for the trial court to grant a new trial. That is not comparable to the situation here and the case is not controlling.

Defendant next makes the point that plaintiff failed to make timely objection to the testimony of Mrs. Withrow given before her statement (defendant’s Exhibit 12) was received in evidence, and consequently that plaintiff waived objection to the admissibility of defendant’s Exhibit 12. We have read the record carefully and do not agree. Plaintiff, almost immediately after defendant’s Exhibit 12 was marked as an exhibit, sought to ask a preliminary question for the purpose of making objection thereto, but the court told him to wait until the statement was offered in evidence. When the statement was offered, plaintiff, by a preliminary question, established for the first time that defendant’s Exhibit 12 was dated subsequent to plaintiff’s Exhibit 11, and promptly made a proper objection, which the court overruled. In addition, defendant sought to have Mrs'. Withrow testify that what she said in Exhibit 12 was consistent with what she had testified to, and the court sustained plaintiff’s objection thereto and instructed the jury to disregard that testimony. We find nothing in the other preliminary testimony of Mrs. Withrow which, in our judgment, would serve as a basis for holding that plaintiff failed to make timely objection and thereby waived the right to object to defendant’s Exhibit 12. Consequently, defendant’s cases relating to failure to object are not applicable.

Next, defendant asserts that she was entitled to introduce defendant’s Exhibit 12 because defendant was surprised by the statement of Mrs. Withrow on direct examination that the facts recited in plaintiff’s Exhibit 11 were true “now.” It is evident from the transcript that this was not a case of surprise. The witness was not antagonistic or unfriendly to defendant. Defendant did not seek to cross-examine or impeach Mrs. Withrow. Rather, the attempt was to rehabilitate her after she was impeached. The objection made to the exhibit and the remarks of the court so show. Defendant’s Exhibit 12 was not admissible on the basis of surprise.

Another asserted basis for admissibility of defendant’s Exhibit 12 is that the cross-examination of Mrs. Withrow tended to impute improper motives or influences on her to fabricate her testimony at the trial. Earlier Missouri cases, as well as cases from other jurisdictions, are cited by defendant. Some of those cases are mentioned in an Annotation in 140 A.L.R. 21, 129, which discusses admissibility of prior consistent statements and comments that there was much confusion on the subject in earlier Missouri cases. More recent cases in Missouri have made no reference to the question of charges of recent fabrication or improper motives and have predicated admissibility of prior consistent statements following proof of impeachment on whether the statement was prior to or subsequent to the impeaching statement. Some jurisdictions do permit introduction of prior statements when fabrication or improper motives are imputed, but we see no reason to change our rule. Actually, the cross-examination in this case does not seem unduly severe, nor does it imply fabrication or improper motives any more than in almost any case where a witness is impeached by prior inconsistent statements. We overrule this contention.

Somewhat similar, although not identical, issues are involved with reference to the witness Marilyn K. Meyer. She, too, was impeached by her earlier written statement and the defendant sought to rehabilitate her by means of a longhand statement which she had given to Mr. Sherman. The impeaching statement was dated February 2, 1963. The rehabilitating statement given to Mr. Sherman was dated June 14, 1963. There was no evidence here that the latter preceded the former. Rather, defendant’s contention is that the plaintiff waived objection to the testimony with respect to the rehabilitating statement (defendant’s Exhibit IS) and did not make proper objection thereto. It would serve no useful purpose to detail the testimony and our conclusions because plaintiff is entitled to a new trial on account of the admission of defendant’s Exhibit 12 in evidence, regardless of the conclusion reached on the question of the propriety of granting a new trial for error in admitting rehabilitating testimony with respect to Marilyn K. Meyer.

The action of the trial court in granting a new trial is sustained and the cause remanded.

All of the Judges concur.