author: WELBORN, Commissioner.

text:
    MEYER JEWELRY COMPANY, a Corporation, Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, a Foreign Corporation, Respondent.
    No. 52510.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.
    David Skeer, Leonard Rose, Kansas City, for appellant. Sheffrey, Ryder & Skeer, Kansas City, of counsel.
    John R. Caslavka, Shughart, Thomson & Kilroy, Kansas City, for respondent ; Shughart, Thomson & Kilroy, Kansas City, of counsel.
   WELBORN, Commissioner.

This is an appeal by Meyer Jewelry Company from a summary judgment entered in favor of the General Insurance Company of America in an action by Meyer to recover $16,972.50, based upon the Employee Dishonesty Coverage of a Blanket Crime Policy issued by General to Meyer.

Meyer’s petition alleged that it was engaged in the wholesale and retail jewelry business in Kansas City; that, from April, 1956 until May 11, 1964, it employed Cordie Thomas Hawkins as an assistant buyer; that, from on or about June 30, 1961 to May 11, 1964, Cordie Thomas Hawkins conspired with Willis Hawkins to appropriate Meyer’s merchandise for their own benefit by delivering items of inventory from the premises of plaintiff’s store to their acquaintances and associates without charge, and by selling various items of merchandise to other persons without remitting the proceeds of such sales to plaintiff; that, after Cordie Thomas Hawkins was discharged from plaintiff’s employ on May 11, 1964, plaintiff discovered the loss in the amount of $18,522.52.

The petition further alleged:

“6. Defendant Cordie Thomas Hawkins successfully concealed from plaintiff’s knowledge the fraudulent and dishonest taking of said property in the manner and way hereinafter set forth. Said defendant was in charge of the record of the merchandise inventory, and the extensions and computations reported thereon during the period of her said employment, and she was thus able to and did pad the amount of items counted when physical inventory was taken under her direction and supervision, so that the report of such inventory did not truly indicate the items in stock that were actually on hand, but rather overstated the quantity thereof; and further, said defendant marked up the prices of items in stock to prices higher than the prices previously recorded therefor, so that the report of such physical inventory taken under her direction and supervision reflected a higher dollar value than if said items had been honestly reported. Thus the inventories taken under said defendant’s direction and supervision during her employment, as aforesaid, including the last inventory so taken by said defendant on June 30, 1963, reflected only a normal and modest shortage, whereas at said time there was an actual shortage of approximately $18,522.-52.”

The petition alleged that General Insurance Company of America had issued to Meyer its Blanket Crime Policy, with a $25,000 limit of liability, and including the following coverage:

“EMPLOYEE DISHONESTY COVERAGE. Loss of money, securities, and other property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of the employees, acting alone or in collusion with others * *

The petition alleged that Meyer had complied with the provisions of the policy regarding proof of loss, etc., but that General had refused to pay Meyer either the sum of $1,550.02, the amount of loss covered by the policy which could be proved “by direct evidence, without resort to any inventory computation or profit and loss computation,” or the further sum of $16,-922.50, the amount of loss covered by the policy, “which sum can be proved by means of an inventory computation or a profit and loss computation.” (This appeal concerns only the claim for the $16,972.50.)

By its answer, General admitted the issuance of a blanket crime policy to Meyer and that proof of loss had been submitted by Meyer to it. General otherwise denied the allegations of plaintiff’s petition, and its answer further stated:

“(3) Without in any way limiting its general denial contained herein this Defendant states that said policy number BC 415 issued by General Insurance Company, a copy of which is attached hereto as Exhibit A contains the following provision:
‘Section 2, Exclusions. This policy does not apply: (b) to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money, securities or other property which the insured can prove, through evidence wholly apart from such computations, is sustained by the insured through any fraudulent or dishonest act or acts committed by any one or more of the employees.’
“That Section 2, referred to above specifically excludes from coverage any loss, the proof of which, either as to its factual existence, or the amount, is dependent on inventory computation or a profit and loss computation and this Defendant is not liable therefor.”

In response to interrogatories, Meyer enumerated approximately 90 transactions from January 12, 1962 to April 30, 1964, involving specified items of merchandise of a total value of some $1550 which it claimed Hawkins had appropriated. However, according to the stipulation of the parties filed in this appeal, those specific transactions were applicable to proof only of fact of loss insofar as the $16,972.50 claim was concerned. By further answers to interrogatories, Meyer stated that “insofar as proving amount of loss” ($16,972.-50) it would not be able to use any other method than “an inventory computation or a profit and loss computation.”

On the basis of Meyer’s answers to the interrogatories, General filed a motion for summary judgment, contending that by virtue of Meyer’s admission that proof of the amount of its loss was solely dependent upon an inventory computation or a profit and loss computation, it had been conclusively shown that the loss was excluded under Section 2 of the Exclusions of the policy issued by General. The trial court sustained the motion for summary judgment, and, after its motion for new trial had been overruled, Meyer appealed.

Questions involving the meaning and effect of the “inventory computation” exclusion provision of employee fidelity policies are not altogether novel, although they are of comparatively recent origin, the provision having been incorporated in such policies since May, 1957. See Keech, “The Inventory Shortage Problem,” ABA, Section of Insurance, Negligence and Compensation Law, 1963, pp. 52, 53. An early case involving the exclusion was Mid-Continent Stores, Inc. v. Central Surety and Insurance Corporation, 377 S.W.2d 567, decided by the Kansas City Court of Appeals. The court of appeals affirmed a summary judgment in favor of the insurers, on the basis of the inventory computation exclusion, when the insured alleged a loss of $6100 due to fraudulent acts of one of its store managers, but conceded that it could not prove an amount of loss in excess of the $500 deductible amount “otherwise than by means of an inventory computation.” 377 S.W.2d 567.

The court of appeals accepted the insurer’s contention that the exclusion was “clear and unambiguous” and “excludes from coverage any loss the proof of which, either as to its factual existence or as to its amount, is dependent on inventory computation * * *.” 377 S.W.2d 568. Other than reciting the language of the provision found in the exclusion, the court made no reference to the proviso, the portion relied upon by appellant here, who readily considers that, without the proviso, the exclusion would preclude its claim.

In 1966, the St. Louis Court of Appeals, in Locke Distributing Co. v. Hartford Accident and Indemnity Co., 407 S.W.2d 658, considered the effect of the exclusion and the proviso. Two employees of a beer distributor acknowledged falsification of the accounts receivable records and the use of money thereby obtained. An “audit” also revealed a beer inventory shortage, concerning which the employees made some statements acknowledging responsibility although they denied responsibility at the trial. The court of appeals held that the trial court should not have admitted in evidence the audit or testimony based upon it because “the existence and amount of the beer shortage at the Poplar Bluff warehouse was ascertained by [the auditor] by inventory computation.” 407 S.W.2d 669. In answer to this contention that the fact of loss had been established by evidence independent of the inventory computation and therefore the proviso permitted use of such computation to establish the amount of the loss, the court stated:

“The words ‘as to its amount’ appearing in the absolute prohibition was clearly intended to be carried over into the proviso, to prohibit the use of inventory computation in proof of the amount of the loss even though there be independent evidence of the act of stealing. The only effect of the proviso is to render inventory computations admissible as corroborative evidence, after proof of the misappropriation and the amount thereof by evidence independent of inventory computation.” 407 S.W.2d 670.

In Gotcher Engineering & Manufacturing Co., Inc. v. United States Fidelity and Guaranty Company, 193 So.2d 115, decided by the Supreme Court of Mississippi in 1966, the court held that, by virtue of the inventory computation exclusion, a demurrer to a petition seeking recovery under an employee dishonesty policy was properly sustained inasmuch as the allegations of the petition were inadequate to take the case out of the exclusionary provision. In that case, the petition alleged that the employees involved had access to the employer’s warehouse and (except for the president of the company) exclusive control thereof; that, on the date of employment (February 20, 1962), a physical inventory of the warehouse contents showed their aggregate value to be $26,923.79; that a subsequent inventory taken on September 5, 1963 showed a shortage of $13,671.15. The petition also alleged that investigation after the discovery of the shortage revealed that, prior to August 31, 1963, the employees had sold one of the missing items for $1,010 and appropriated the purchaser’s check to their own use. Relying to a large extent upon the 1962 decision of the United States District Court for the Western District of Arkansas in Fort Smith Tobacco & Candy Co. v. American Guar. & L. Ins. Co., 208 F.Supp. 244, the Mississippi Supreme Court found the exclusion provision not ambiguous and the allegations of the petition insufficient to take the case out of the exclusionary provision (193 So.2d 118).

Respondent relies upon the three foregoing cases in support of the judgment below in this case. They afford strong support for the position of the respondent. Respondent also relies upon the case of Cy Anschutz and Associates v. Conley, 74 N.M. 363, 393 P.2d 710, decided by the Supreme Court of New Mexico in 1964. In that case the court held that the exclusionary clause “set standards for proof of loss” and that an insurance broker from whom a policy had been purchased for protection “against loss of cash, parts and all inventory caused by fraudulent or dishonest acts” of the purchaser’s employees had not, in furnishing a policy with such exclusion, failed to provide the coverage sought. The nature of the issue actually involved in that case makes it of slight value as authority on the issue here.

Appellant acknowledges that the Mid-Continent Stores and Locke Distributing cases, supra, offer no support for its position here. However, appellant urges that, in Mid-Continent, the court simply ignored the proviso, relied upon by appellant here, and that the statements in Locke, contrary to appellant’s position here, were in fact dictum only. That the proviso was ignored in the Mid-Continent opinion can hardly be questioned. In Locke, the court did conclude that there had been no admissible independent evidence of the beer inventory shortage. The court also used language casting serious doubt upon the probative value of the evidence adduced by the audit. In any event, we have some difficulty in accepting the conclusion that the object of the proviso was to prescribe the conditions under which inventory computation would be acceptable as corroborative evidence of loss, established both in fact and as to amount, by evidence independent of the computation. The proviso, by its terms, eliminates the exclusion and, therefore, could hardly have been intended merely to prescribe a method of corroboration in a situation in which the exclusion would, in no event, apply.

Appellant has cited several cases in which courts in other jurisdictions have declined to apply the exclusion provision in the literal manner here urged by respondent.

In 1963, the Supreme Court of Wisconsin, in Tri-Motors Sales, Inc. v. Travelers Indemnity Co., 19 Wis.2d 99, 119 N.W.2d 327, found the proviso sufficiently ambiguous to call for resolution of doubt as to its meaning against the insurer and held that it did not preclude inventory computation to prove the amount of the insured’s loss where there was independent evidence of the dishonesty of the employee involved. That case involved losses which an automobile dealer attributed to its parts manager. Evidence of theft by the manager of parts of the value of $494 was produced. The court found that, in such circumstances, proof of the amount of the claimed total loss as shown by inventory computation was not precluded by the exclusion. However, the evidence offered was held insufficient to support a finding in favor of the insured, the loss having occurred over a period of 14⅜ months, according to the inventory computation and the employee involved having been employed for only six months of the period covered.

Both appellant and respondent have cited the 1965 decision of the Kentucky Court of Appeals in Kentuckiana Sales, Inc. v. Security Insurance Company of New Haven, 394 S.W.2d 744. Respondent points to the court’s rejection of the inventory computation to prove merchandise inventory loss. Appellant, however, notes that the court did examine the evidence for independent evidence of loss, contending that the strong indication is that the court would have permitted the inventory computation had there been proof other than the inventory computation. To us it appears that, had the court found such independent evidence of loss, the inventory computation would have been received as evidence of the amount of loss. We do acknowledge that the court referred to the view followed in the Tri-Motors case, supra, and what it described as the “contrary” view of Mid-Continent Stores, supra, without further expression as to which view it would follow.

Respondent pointed out that the Mississippi Supreme Court, in Gotcher Engineering, supra, relied strongly on Fort Smith Tobacco & Candy Co. v. American Guar. & L. Ins. Co., D.C., 208 F.Supp. 244. In that case the employee involved had admitted embezzling $2,851.65, which he repaid to the insured. There was also a claim based upon an inventory shortage of cigarettes and other items of merchandise handled by the insured. The court refused to allow recovery for inventory loss on items other than cigarettes. Recovery for the cigarette shortage as shown by inventory computation was apparently allowed on the theory that the employee’s admission that he had tampered with the cigarette inventory totals afforded a sufficient basis for concluding that the cigarette loss “was in fact due to the fraud or dishonesty” of the employee. 208 F.Supp. 265. In that respect, the case supports appellant’s position here.

In another federal case, Sun Insurance Company of New York v. Cullum’s Men Shop, Inc., 5th Cir., 1964, 331 F.2d 988, the court allowed a distinction between an inventory computation and an “enumeration.” In that case the evidence connected the store’s employees with the theft of some 13 suits. Recovery, under a comprehensive dishonesty, disappearance and destruction policy, containing the same exclusion as the policy in this case, was sought for the loss of suits valued at some $22,000 over a 30-months’ period. The store was permitted to use its records to show, item by item, the suits which were unaccountably missing. The court held that the plaintiff “had proved the total amount of its loss by an enumeration of the missing suits which was not an inventory computation within the meaning of the policy.” 331 F.2d 991.

The most recent case on this subject which has come to our attention is a 1967 decision of the Appellate Division of the Superior Court of New Jersey in Hoboken Camera Center, Inc. v. Hartford Accident and Indemnity Company, 93 N.J.Super. 484, 226 A.2d 439. In that case, as in the case now before us, the issue was on a summary judgment favorable to an insurer which in-yoked the exclusion clause. As in the present case, the plaintiff was relying upon specific incidents of employee dishonesty, together with an analysis of its inventory control records for proof of the amount of the loss. The records indicated a loss of $42,705.22. The specific incidents were three in number, each involving a loss of less than $250. “The trial court read the [exclusion] clause literally and decided that since proffered proofs of specific depredations by employees were of less than the deductible amount of $250 in each case, and since establishment of any larger loss was entirely dependent upon inventory records, the prohibition of resort thereto by the exclusion clause foreclosed the maintenance of plaintiff’s cause of action.” 226 A.2d 443.

In reversing the trial court’s judgment, the Appellate Division examined the history of the exclusion clause. It analyzed at length the cases referred to above (except the Locke Distributing Co. and Gotcher Engineering cases). The court declined to follow the literal application of the exclusion which the Kansas City Court of Appeals took in Mid-Continent Stores, supra. The court was not completely satisfied with the approach to a more flexible application found in the Tri-Motors Sales, Ken-tuckiana Sales, Fort Smith Tobacco and Sun Insurance Company cases, supra. The court concluded that a flexible approach was called for “upon principles of vindication of the fair expectations of purchasers of such insurance.” 226 A.2d 445. We quote, at some length, from the court’s ultimate conclusion:

“We are satisfied, for the reasons already stated, that giving the inventory-exclusion clause its literal meaning in this case would be to nullify to a considerable extent the benefits fairly contemplated by the insured when it purchased the policy. On the other hand, we cannot say that insurers do not have a legitimate concern in attempting to protect themselves against claims which are built upon self-created inventory records. Such records, generally honestly and accurately kept by businessmen, are sometimes not deserving of the full measure of that description, and even if they are, will generally be inexact reflections of actual inventory shortages if computed on the basis of assumed average mark-ups or profit margins (see discussion supra). The reluctance of insurers to accept inventory or profit and loss computations as proof of the fact or amount of losses alleged to result from dishonesty of employees is therefore understandable. See Kurland, [“Claims for Inventory Shortage,” 33 Insurance Counsel Journal (July, 1966), p. 397]. The judicial problem, therefore, is one of fair accommodation of the general right of an insurer to fix his undertaking, cf. Linden Motor Freight Co. Inc. v. Travelers Ins. Co., 40 N.J. 511, 525, 193 A.2d 217 (1963), and that of the general public, in buying insurance containing frozen, unbargained-for policy limitations, to get the degree of coverage it reasonably envisages.
“Such accommodation, in our judgment, should preclude recovery by the insureds under this bond if they had no proof whatever of an employee-connected loss other than inventory or profit and loss computations, no matter how reliable in the particular case. On the other hand, inventory records may by their very nature constitute inherently indispensable proof of an allowable claim under a fidelity bond in one or the other or both of two respects: (a) as the only available proof of the full amount of a loss, there being some appreciable proof from other facts or circumstances of a loss caused by employee-dishonesty; (b) as corroboration sufficient to make a case for the fact-finder of the fact of an employee-connected loss where independent proof thereof, considered alone, might be insubstantial. To deny an insured the right to adduce proof of inventory records for either of these purposes might in a particular case defeat justice by precluding recovery on a meritorious claim by use of the only proofs reasonably available to the insured and probative thereof. So to do would contravene public policy, not only in defeating the reasonable expectations of coverage of the purchaser of the insurance but also in allowing a private agreement to nullify the inherently probative effect of relevant evidence. Cf. Garden State Plaza Corp. v. S. S. Kresge Co., supra (78 N.J.Super. 485, at pp. 500-503, 189 A.2d 448).” 226 A.2d 447-448.

The New Jersey court’s conclusion is in accord with well-established principles applied by the courts of this state in the construction and application of policies of insurance. We follow a construction favorable to the insured wherever the language of a policy is susceptible of two meanings, one favorable to the insured, the other to the insurer. Hammontree v. Central Mutual Insurance Company, Mo.App., 385 S.W.2d 661, 665[1, 2]; Meyers v. Smith, Mo.Sup., 375 S.W.2d 9, 16-17[10, 11]; Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441, 446[5, 6], Provisions restricting coverage are particularly construed most strongly against the insurer. “ * * * [A]n insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer.” Brugioni v. Maryland Casualty Company, Mo.Sup., 382 S.W.2d 707, 710-711[2, 4]; Giokaris v. Kincaid, Mo.Sup., 331 S.W.2d 633, 638-640[3, 4], 86 A.L.R.2d 925; Varble v. Stanley, Mo.App., 306 S.W.2d 662, 665 [3], In our opinion, the provision here in question is of such ambiguity as to call for the application of these rules, which, in turn, causes us to conclude that the trial court erroneously sustained the motion for summary judgment in this case. Hoboken Camera Center, Inc. v. Hartford Accident and Indemnity Company, supra.

In reaching this conclusion, we necessarily reject the insurer’s contention that the clause in question is free from ambiguity. Respondent bases such contention, in part, upon the rule that “the same words used in different clauses will be understood to be used in the same sense, * * 44 C.J.S. Insurance § 294, p. 1161. Maupin v. Southern Surety Co., 205 Mo.App. 81, 220 S.W. 20. Respondent contends that the term “loss” as it appears in the proviso must be accorded the same meaning as in the first portion of the exclusion clause. Application of that rule here would, in effect, make the proviso meaningless. In our opinion, there is an ambiguity which we resolve in favor of the insured.

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Joseph BINE, Respondent, v. STERLING DRUG, INC., Appellant.
    No. 52863.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.

      Thomas C. Hullverson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
    Wilton D. Chapman, Arthur Litz, St. Louis, for defendant-appellant, Sterling Drug, Inc.
   HIGGINS, Commissioner.

Appeal from $125,000 remitted judgment on $175,000 jury verdict to plaintiff for permanent eye damage resulting from drug manufacturer’s failure to warn his doctors of the dangers of a prescribed drug.

Chloroquine phosphate, sold under trade names Aralen, Triquin, and Plaquenil, is a drug invented by Sterling in 1946 for the prevention ‘and treatment of malaria. In 1955 Sterling introduced the drug to druggists and the medical profession for treatment of arthritis and lupus erythematosus. The drug has certain side effects, one of which is its affinity for melanin pigment in the eyes resulting in a condition now known as chloroquine retinopathy, a degeneration of cells in the retina of the eye, causing blindness. Joseph Bine, 54 years of age at trial, was first treated in Detroit, Michigan, in 1952 for disseminated or systemic lupus erythematosus. In 1954 he went to St. Louis, Missouri, and came under the care of Dr. Ernest T. Rouse, an internist, and Dr. Henry Conrad, Jr., a dermatologist, for his condition. Under prescription from his doctors he began taking Aralen in late 1954, one,to three pills per day, until November 1960. In February 1961 he was put on Plaquenil which he took until September 1961. He had worn glasses for 18 to 20 years but had no eye trouble before taking Aralen. He first noted occasional blurring when reading after starting on Aralen in 1954. In June 1959 he saw Dr. Lawrence T. Post, complaining of difficulty with near vision and “bizarre visual sensations.” By October 25, 1960, his right eye was bothering him but he could see “quite well” with his left eye. Dr. Post made tests and charted his findings. At this time the blind spot in plaintiff’s right eye was slightly larger than normal, but there was a very definite change in the visual field next to the center of fixation of vision. Dr. Post wrote Dr. Rouse recommending discontinuance of Aralen since less toxic drugs were now in existence. Plaintiff was then taken off Aralen and took nothing until he began with Plaquenil in February 1961. Dr. Post’s examination of January 15, 1962, showed that vision in plaintiff’s right eye had begun to fail and vision in the left eye was worse. These conditions progressed until in November 1965 plaintiff was virtually blind in his right eye and the left eye had developed “a real ring blind spot.” By January 1966 the central vision in plaintiff’s right eye was 1/200 and there was an island of complete blindness. The central vision of the left eye was 20/25 and, on visual field testing, there was a spot with “a seeing area right in the center, something like the shape of a doughnut.” Ophthalmoscopic examination showed retinal changes around the macula “and right in the center of the eye where the seeing part is the retina did look somewhat degenerated.” Plaintiff was forced to quit his job in December 1961, at which time he was earning $100 per week. By trial time the same job paid $225 per week. Drs. Post, Sanders, and Bernstein were of the opinion that plaintiff’s eye condition was permanent and due to chloroquine, and Drs. Post and Sanders said the condition was not caused by plaintiff’s lupus. Additional evidence will be stated as necessary in connection with appellant’s points.

Appellant charges: “The Court erred in not sustaining appellant’s motion for a directed verdict at the close of all the evidence on the ground that there was no evidence adduced of any reliance by plaintiff’s doctors of a lack of warning and thus no causal connection was shown between plaintiff’s injury and appellant’s alleged negligence.” Stated in reverse, this point is limited to a contention that plaintiff’s case on proximate cause fails because there was no evidence of reliance by plaintiff’s doctors on a lack of warning. In argument appellant refers to evidence on what it did by way of warnings and to testimony of plaintiff’s doctors that they read literature on the drug and used their skill in setting the dosage, all of which is beside the point.

Plaintiff’s case was submitted by Instruction 2:

“Your verdict must be for the plaintiff if you believe:
“FIRST, defendant sold Aralen for use in the treatment' of lupus erythematosus, and
“SECOND, Aralen would cause serious damage to the retina of the eyes of some individuals using such drug on long term therapy in the manner and for the purpose intended, and
“THIRD, defendant knew or by using ordinary care could have known of the danger of such eye damage, and
“FOURTH: plaintiff and his doctors did not know and by using ordinary care could not have known of such danger, and
“FIFTH, plaintiff used Aralen on long term therapy under prescription from his doctors and in the manner and for the purposes intended, and
“SIXTH, defendant failed to give a timely and adequate warning to those members of the medical profession whom the defendant, in the exercise of ordinary care on its part, might reasonably expect to prescribe the drug and, by ordinary care on their part, to note and heed such a warning if one were given, and
“SEVENTH, defendant was thereby negligent, and
“EIGHTH, plaintiff was damaged as a direct result thereof.”

Defendant makes no charge of error in connection with plaintiff’s submission and its converse theory was submitted by Instruction No. 3:

“Your verdict must be for defendant if you do not believe: defendant knew or should have known of the danger that the drugs in question could cause a serious disorder to the retina of the eyes in some individuals on long term therapy using the same, at the time plaintiff used the drugs.”

Under this submission it is obvious and may be said, as in Sterling Drug, Inc. v. Cornish, 8 Cir., 370 F.2d 82, 85 [5], where it was argued that a failure to show reliance was an intervening proximate cause: “The sole issue was whether appellant negligently failed to make reasonable efforts to warn appellee’s doctors. If appellant did so fail, it is liable regardless of anything the doctors may or may not have done. If it did not so fail, then it is not liable for appellee’s injury. The issue was to be resolved by the jury * * See also Yarrow v. Sterling Drug, Inc., D.C.S.D., 263 F.Supp. 159, 163 [6], and see Krug v. Sterling Drug, Inc., Mo., 416 S.W.2d 143, 150-151 [5], resolving virtually this same point against Sterling and distinguishing the citation, Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54, upon which Sterling relies.

Appellant’s next point is also related to causation: “There was no evidence in the case showing that the state of scientific knowledge was such that the medical profession knew of any alleged connection between chloroquine retinopathy and Aralen prior to 1959.” The argument clarifies this point to state it as a contention that “Plaintiff produced no evidence * * * that the state of medical knowledge at the time plaintiff consumed the chloroquine was such that the defendant in the exercise of ordinary care could have anticipated that the drug would cause retinal eye damage.” However, under Instruction No. 2 the question, if one be stated at all by this point and argument, is whether there was evidence to show that defendant, Sterling Drug, knew or by using ordinary care should have known that Aralen would cause “serious damage to .the retina of the eyes” of some users of the drug.

As previously stated, Mr. Bine took chloroquine phosphate under the trade name Aralen, as prescribed by his doctors for his lupus condition from 1954 until November 1960 when his doctors took him off the drug. He resumed the drug as prescribed by his doctors under the trade name Plaquenil February 1961 and remained on it until September 1961. As early as 1953 or 1954, according to Dr. Justus B. Rice, director of medical research for Sterling, Sterling became aware that doctors were prescribing Aralen for lupus in dosages of one, two, or three pills per day as compared to the one or two pills per week dosage for malaria. In addition to its director of research, Sterling employed a medical staff, had a medical library and research institute, and received reports and letters from doctors in the field as well as reports from their own “detail men” who were field representatives for Sterling in contact with doctors in the prescribing and treating field. From these, Sterling knew that visual disturbances had been experienced with Aralen even in the malarial dosage. It knew of an article by Alving, et al., in 1948, describing visual disturbance side effects resulting from higher dosages, and it knew of Aralen’s toxic effects where used in higher dosages than those recommended for malaria. The letters, one of which was from Dr. Weiss, Dr. Conrad’s associate, and reports from doctors prescribing Ara-len, reporting to and questioning Sterling about connections between Aralen and eye damage, began as early as 1954 and were received by Sterling frequently during the time Mr. Bine was on the drug. Corneal opacities were reported to Sterling in 1957 and 1958; retinal damage possibilities were suggested in March 1957, January 1959, and definitely in an English article by Hobbs, et al., in October 1959. Defendant conducted tests with chloroquine at its research institute from 1944 to August 1959. At trial, the director of research stated they had “never been able to reproduce the so-called chloroquine retinopathy” but the description of the animal tests performed disclosed that defendant performed only a few tests for chronic toxicity and none for eye damage. Dr. Foley, defendant’s medical director, was aware that testing by Sterling had shown that some of the animals had blurring of vision. In 1955 Sterling was recommending Aralen for treatment of lupus and its booklet at that time reported side effects as “insignificant,” listing those side effects, including blurring of vision, which were mentioned in the 1946 booklet published in connection with Aralen for treatment of malaria where it was said that “none of these manifestations has been constitutionally serious and all have been readily reversible.” In 1957 defendant obtained approval from the Federal Drug Administration to advertise Ar-alen for lupus and rheumatoid arthritis. Its booklet then went out to physicians stating that “long-term management of lupus erythematosus with doses of 250 to 750 milligrams (1 to 3 pills) daily have been employed without serious side effects” and “although some untoward reactions may be encountered, they do not incapacitate the patient and are always reversible on diminished dosage or withdrawal of the drug.” In 1958 defendant was informing its salesmen that “there is no known true contraindication to the use of Plaquenil or Aralen” and “no precautions or preventive measures required before, during or after the use of Plaquenil or Aralen * * * do not require frequent patient checkups” and “untoward effects are limited in type and, with rare exception, are insignificant.” The 1958 products card reported “visual disturbances” and other complaints under side effects, again referring to these as “insignificant” and “readily reversible.” Similar assurances were made in another booklet entitled “Advantages of Plaquenil and Aralen over Adrenocortical Therapy” and in Physicians’ Desk Reference books up to 1959. The July 1959 products card mentioned corneal changes as reported by Dr. Calkins and others and, on May 15, 1960, Sterling advised the F.D.A. of the reported retinal changes. Later, the Hobbs report findings were mentioned, and not until February 1963 did defendant send out its letter to 248,000 doctors in the United States warning about retinal damage or chloroquine retinopathy. According to the medical testimony, retinal damage appears in the eyes of some Aralen users after a minimum of nine-months’ usage. Mr. Bine first experienced his blurring vision as early as late 1954, a time when the early stages of eye damage are reversible upon reduction of dosage or discontinuance of the drug. Dr. Post’s examination disclosed no retinal damage, and only slight macular changes were noted in June 1959. Retinal changes were minimal in October 1960 and probably then reversible; however, in January 1962 the condition was definite and irreversible.

It is not necessary to review all the record that might bear on this issue because this is sufficient to demonstrate that there were both scientific tests and medical knowledge, literature, reports, and questions as early as 1957 and certainly by 1960 connecting Aralen with serious retina damage by which Sterling “knew or' by using ordinary care could have known of the danger of eye damage”; or, stated yet another way, “Sterling knew or had reason to know that some persons would be injured by the drug’s side effects.” Yarrow v. Sterling Drug, Inc., supra, 263 F. Supp. l. c. 162. Also in this connection, the manufacturer of a prescription drug to be administered to human beings is “ ‘held to the skill of an expert in that particular business’ and ‘to an expert’s knowledge of the arts, materials and processes,’ and is bound to keep reasonably abreast of scientific knowledge and discoveries concerning his field and, of course, is deemed to possess whatever knowledge is thereby imparted.’ ” Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 152 [8].

Relying upon the general rule “that a manufacturer must give an appropriate warning of any known dangers which the user of his product would not ordinarily discover,” Briggs v. National Industries, 92 Cal.App.2d 542, 207 P.2d 110, 112 [3], a statement that there is no negligence for giving a blood transfusion where “under the present state of science there is no practicable way to determine whether whole blood taken for transfusion carries homologous serum hepatitis,” Whitehurst v. American National Red Cross, 1 Ariz.App. 326, 402 P.2d 584, 585, and cautioning against assessing negligence against defendant for failure “to anticipate what later research and scientific investigation proved to be a fact,” La Porte v. United States Radium Corp., D.C.N.J., 13 F.Supp. 263, 272 [1], appellant argues: “ ‘Chloroquine retino-pathy’ was unknown to medical science pri- or to the label of such being affixed in the Hobbs Article * * * yet plaintiff * * urge(s) that Appellant would still be liable for knowledge neither it nor others possessed in the field at the time plaintiff ingested Aralen, so that a warning was available and was not given and could have been effective to lessen his damage.”

Neither the cases nor the argument is in point. It has been demonstrated previously that the evidence was sufficient to permit a finding that defendant knew or by the exercise of ordinary care should have known that serious eye damage would result to users of Aralen. This knowledge was shown to be available as early as 1957 and no later than 1960, during the period when Mr. Bine was on Aralen and prior to the time his condition was shown to be irreversible, which is the important time rather than the time Mr. Bine took his first pill. The submission is not that of failing to discover a disease later called “chloroquine retinopathy,” but is whether defendant knew or in the exercise of ordinary care should have known of “serious damage to the retina of the eyes” of some users of Aralen. This is true also of appellant’s contention that it was not able to discover the high affinity of chloroquine for melanin pigment in the eye or its effect upon the seventh layer of the retina (as others later found) because this also would not excuse defendant if, in the exercise of ordinary care, it knew or should have known of the drug’s potential for serious eye damage. In other words, it is not the label or tag but the condition itself for which appellant may be held liable under Instruction No. 2.

In an attempted avoidance of its duty to warn under the submission of this case, appellant contends, Point III: “A drug manufacturer is not under a duty to warn users of the possibility they might suffer a peculiar allergic or idiosyncratic reaction when using its products.” This point is related to Point IV: “The court erred in refusing to give Instruction ‘C’ offered by appellant and thus prevented the jury from passing on the valid defense of idiosyncrasy.” The refused instruction directed a verdict for defendant if the jury believed “that plaintiff’s eye condition was caused by an unusual hypersensitivity or idiosyncratic reaction peculiar to him and unforeseeable at the time he used drugs in question.”

Appellant argues the point by reference to evidence showing that plaintiff was one of a very small group which sustained retinopathy following chloroquine therapy; that he was one out of 500 who, according to Drs. Rouse and Conrad, developed the condition from use of the drug; that he was one out of the 1,000 whom Dr. Bernstein reported as a retinopathy case resulting from use of chloroquine. Also emphasized are the definitions given by some of the witnesses of “idiosyncrasy” and “allergy.” Similar statistical data appeared in the Krug case and it is important to note, as in the case of Dorothy Krug, that no witness testified that Joseph Bine was either allergic to or idiosyncratic in reaction to chloroquine and, further, that the evidence was that there was no connection between his lupus and his eye damage.

It is of importance also to note that appellant here, as in the Krug case, relies principally on Merrill v. Beaute Vues Corp., 10 Cir., 235 F.2d 893, and a number of cases from other jurisdictions distinguished in Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 151 [6].

In this posture, the point is the same as that in Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 151 [6]: “The appellant’s third claim of nonliability as a matter of law, and as another subsidiary point failure to give an instruction, is that it had no duty to warn ‘an unidentifiable small class of users of the possibility they might suffer a peculiar allergic or idiosyncratic reaction’ to its drug. It is said (as in the previous point in this case) that this is especially true of a condition that came into medical knowledge after plaintiff had used the drug for some time.”

Since these points are the same as those in the Krug case, they are denied by the same holding. See Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 151-152 [6].

Appellant charges error in refusing to give its Instruction D “and by doing so led the jury into confusion in interpreting Instruction 4 * * * defining * * * ‘negligence’ and Instruction 5 * * * defining ‘ordinary care.’ ”

Instruction D would have stated that “ ‘negligence’ as used in these instructions means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by other members of defendant’s business.” Given Instruction 4 informed the jury that “ ‘negligent’ as used in these instructions with reference to the defendant means the failure to use that degree of care that an ordinarily careful and prudent expert engaged in the same business would exercise under the same or similar circumstances.”

Instruction 4 was proper as opposed to refused Instruction D. After discussing the duty of the drug manufacturer in cases of this nature, the court concluded in Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 152 [7,8], “it follows as a matter of course that there was no error in the court’s giving Instruction 4 defining ‘negligence’ as ‘failure to use the skill of an expert in the defendant’s business.’ ”

Appellant says the court erred in refusing to permit introduction of answers to the letters of inquiry from various doctors who wrote to the company concerning possible connection between Aralen and retinal eye problems.

A part of plaintiff’s evidence consisted of a number of letters from doctors over the United States. These were received in evidence without objection on the issue of notice to defendant of the dangers encountered in the use of Aralen. There also were in evidence communications from several of Sterling’s field representatives reporting side effects from use of Aralen encountered by Drs. Edelstein, Weiss, Apple-yard, Goldman, and Grear in the prescribing and treating field.

The answers which are the subject of this point were first mentioned in the evidence near the close of defendant’s case. At that time counsel for defendant had Sterling’s Exhibit Y marked for the purpose of identification and then asked for a bench conference out of the hearing of the jury.

“MR. THOMAS CHAPMAN: On behalf of the defendant Sterling, I want to object * * * to the refusal of the Court to grant the defendant the right to enter into evidence documents which are true copies of the answers * * * by Sterling Drug Company to letters of inquiry which have already been introduced in evidence, by showing copies of such inquiries by various doctors who were writing to the Sterling Drug Company seeking information as to the possible effects of chloroquine on the retina of the eyes of their various patients. I believe that in the interest of the administration of justice, that if the letters of inquiry can be shown and is permissible evidence * * * then in simple justice we should be able to introduce documents which show that the inquiries were observed and they were acted upon and letters were written to these various doctors; otherwise the defendant * * is put in the position that the evidence shows inquiries were made by these various doctors and that they were ignored by the Sterling Drug Company.
“THE COURT: You wholly misconceive the purpose of the offers and the rule of law under which the Court admitted them; they were received on the issue of notice. I could let in evidence only the fact that you received them, which emphasized the point of notice, but no self-serving answer would be admissible. * * I sustain the objection.” Without further reference to Exhibit Y, defendant proceeded to the close of its case.

Appellant’s argument as to the admissibility of Exhibit Y appears to be that the letters comprising the exhibit would show the exercise of appellant’s proper degree of care in advising and warning physicians that they were “part of a mutual correspondence,” that they were answers given in the usual course of business, and showed that appellant had not ignored the letters of inquiry which were in evidence.

The items comprising the exhibit were not identified other than in the manner quoted from the bench conference and the record does not contain or reveal their contents; and, upon refusal of the exhibit said to be explanatory of defendant’s situation, defendant made no request to limit the letters in evidence to the issue of notice.

A trial court has considerable discretion in the exclusion of evidence, and unless there was an abuse of that discretion, its action will not be cause for reversal, Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 493 [8]; and a number of reasons support the court’s exercise of discretion in excluding this evidence. The record does not show any foundation to have been laid for admission by identification or authenticity of the items comprising the exhibit, Cummins v. Dixon, Mo., 265 S.W.2d 386, 394 [6-10], 47 A.L.R.2d 441; that appellant did not ignore the letters of inquiry could have been shown by Drs. Rice and Foley who ran Sterling’s research department and, as to the items in the exhibit showing care appellant used in respect to its duty to warn, being written in the usual course of business, or as part of a mutual correspondence, it appears that these reasons were not stated to the court in support of the offer and, consequently, cannot now be used to convict the court of error, Sorrell v. Hudson, Mo., 335 S.W.2d 1, 6 [8-11]. Further, it appears from counsel’s bench description that the offer would have been, as stated by the trial judge, “self-serving,” Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456, 460 [8-14]; and, finally, appellant, by its failure to provide the content of the letters, has failed to show where it has been prejudiced on the merits of its case by the court’s ruling. Johnson v. Lee Way Motor Freight, Mo., 261 S.W.2d 95, 98 [4, 5].

In the course of argument to the jury, plaintiff’s counsel was arguing that plaintiff’s loss of wages alone would amount to $158,000 “without any consideration for past pain and suffering, and without any consideration for the suffering that man is going to have to go through when he finally is given a white cane in a—

“MR. MILTON CHAPMAN: I object * * *. It’s an attempt to inject an appeal for sympathy, prejudice and bias in the minds of the jury.
“THE COURT: It’s an expression in common usage and the objection is overruled. As I said before, there will be ample time for defense counsel to make their arguments.
“MR. HULLVERSON (continuing for plaintiff): In a day and age when 3 and 400,000 dollar figures are thrown about this country for football players and whatever, I don’t think that figure is out of line for Joe Bine for what the Sterling—
“MR. WILTON CHAPMAN: I object
“THE COURT: The obj ection must be sustained. * * *
“MR. WILTON CHAPMAN: And I move for a mistrial and" discharge of the jury.
“THE COURT: Motion for a mistrial is denied but the jury are directed to disregard the reference to baseball players or football players, which has nothing whatever to do with this case and has no proper place in the argument.”

Appellant’s charge of error in permitting the reference to the white cane and in refusing the request for mistrial was properly ruled.

There was evidence on the present and future state of plaintiff’s blindness from which the jury could infer that he would be totally blind and figuratively “a man with a white cane.” As observed by the court, the expression is common and descriptive of a condition shown by the evidence. See Kivett v. Stanley, Mo.App., 305 S.W.2d 739, 743 [12], where counsel was permitted to characterize plaintiff as a cripple where such was a fact, and Silverstein v. St. Louis Public Service Co., Mo., 295 S.W.2d 37, 41-42 [6], where the argument that a pedestrian was “trapped” was proper where the evidence supported such expression.

As to the second portion of the argument, the only relief requested was a mistrial which, if granted, would have produced a drastic result. A trial court necessarily must be allowed a substantial discretion in determining the need for a mistrial, and it also has an opportunity to review the effect of his ruling denying such a request when ruling the motion for new trial, Martin v. Sloan, Mo., 377 S.W.2d 252, 263 [17]; and where, as here, the court promptly sustained the objection to plaintiff’s argument, advised the jury of its impropriety, and admonished the jury to disregard it, an abuse of discretion is not indicated. Randazzo v. Polizzi, Mo., 366. S.W.2d 380, 381-2 [1],

Without advising how they relate to its case, appellant ti cites: (1) Villinger v. Nighthawk Freight Service, Mo.App., 104 S.W.2d 740, 742-3 [4]; (2) Dunn v. Terminal R. Ass’n of St. Louis, Mo., 285 S.W.2d 701, 709; and (3) Green v. Ralston Purina Co., Mo., 376 S.W.2d 119, 127. They are not determinative here. In (1) counsel went outside the record in misquoting testimony to make it appear that defendant had wilfully injured plaintiff; in (2) counsel went outside the record to coin vituperative remarks, and in (3) the argument condemned was the poor man-big corporation theme.

Since none of these charges of error entitle plaintiff to a new trial, there could be no such entitlement on appellant’s theory of “ ‘cumulative, prejudicial effect of the various errors.’ ” Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 154.

Appellant’s final request is for this court to “hold that the verdict was excessive and grant a new trial or order a remittitur.”

Appellant does not argue or attempt to demonstrate that this verdict is a result of bias and prejudice which, if so, would authorize a new trial, but limits itself to a statement of plaintiff’s disability (as seen by appellant) supported by a list of several cases “as possible guide lines * * * for the Court to consider in line with the Rule of Uniformity of jury verdicts * *

According to the evidence viewed in the light most favorable to plaintiff, Meade v. Kansas City Public Service Co., Mo., 250 S.W.2d 513, 517 [5], plaintiff’s eye damage was the result of taking Aralen rather than being caused by his lupus condition. His other ailments, testicular tuberculosis and heart condition, appeared to be in the past and, like his lupus, under control at trial time. His blindness, his inability to work due to blindness, his pain and suffering, past and future, and his loss of earnings, past and future, all are shown to result from the condition caused by Sterling’s drug, Aralen. At his age, 54, it is reasonable to expect that plaintiff will suffer these losses and injuries for several years in the future.

This is not exhaustive of the evidence on plaintiff’s injuries and damages but is indicative of that which persuaded the jury verdict of $175,000. The trial judge cut the verdict to $125,000 and “when the trial court * * * actually considers the matter of the excessiveness of the verdict and, by ordering a remittitur, gives an affirmative expression of its own considered view as to what the size of the verdict should be, the appellate court, while conced-edly not bound by the trial court’s action, nevertheless accords it very great weight, and indeed regards it as so strongly persuasive that except in a case which calls unmistakably for a greater reduction, the judgment left to stand by the trial court will not be disturbed on the appeal.” Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617, 626 [16]. See also Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430, 434 [13,14]; Cruce v. Gulf, M. & O. R. Co., 361 Mo. 1138, 238 S.W.2d 674, 681-2 [15-20]; and Myers v. Karchmer, Mo., 313 S.W.2d 697, 711 [25, 26]. As indicated in Krug v. Sterling Drug, Inc., supra, 416 S.W.2d l. c. 154 [14], cases such as Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161, Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972, and O’Brien v. L. & N. R. Co., 360 Mo. 229, 227 S.W.2d 690, “are not too helpful or persuasive,” and this is particularly true where other verdicts in this particular type of case are contemporaneously comparable, e. g., Krug v. Sterling Drug, Inc., supra, $125,000 to 43-year-old woman and no evidence of loss of earnings; Sterling Drug, Inc. v. Cornish, supra, $110,000 verdict remitted to $80,000, not questioned on appeal; Yarrow v. Sterling Drug, Inc., supra, trial judge award of $80,000 to 48-year-old housewife.

Under these circumstances, the rule of uniformity is satisfied and further remit-titur is not indicated.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

HENLEY, P. J., and STORCKMAN, J., and CRAIG, Special Judge, concur.

SEILER, J., not sitting.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Bill Frank TAYLOR, Appellant.
    No. 51485.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley Asst. Atty. Gen., New Madrid, for respondent.
    Richard E. Graulich, Kansas City, for appellant.
   SEILER, Judge.

This is an appeal from a judgment and sentence of three years, following conviction by a jury on an indictment charging the defendant with knowingly receiving stolen property, specifically, an eight cylinder Chevrolet motor, serial number S — 185501, belonging to a car dealer, Van Auto Sales, Inc.

The issue is whether the state proved the required guilty knowledge on the part of defendant. The statute, Sec. 560.270 RSMo 1959, V.A.M.S., makes punishable the buying or receiving of stolen property by the defendant, “knowing the same to have been stolen”.

The state’s evidence was along these lines: On March 5, or 6, 1964, Van Auto Sales, Inc., discovered one of its new cars, a 1964 Chevrolet Impala two door sedan, serial number 41847S185501, had been stolen from its lot. The shell of the car, stripped of its engine, transmission, drive shaft, differential gears, tires, wheels, radiator, axles, radio and wheel hubs was located by the Kansas City, Kansas police on March 6, 1964, near the state line, under the Intercity viaduct. The insurance company paid the theft loss, took title from the car dealer, and sold the shell to the highest salvage bidder, one Bill Edwards, who operated a filling station and salvage business. April 17, 1964, defendant bought the shell from Edwards for $1575 and a front end on a used car, worth about $75. The evening of the day of the purchase, Edwards and a friend, Dan Strong, went to defendant’s place of business, known as Carl’s Hollywood Muffler Shop, 2743 McGee, Kansas City, Missouri, to get the money and pick up the front end. In the course of showing them around the premises, defendant showed them a 1956 Chevrolet convertible, and said that the engine and transmission in the 1956 convertible came out of the 1964 Chevrolet; that he had purchased the convertible “from a colored fellow in Kansas City, Kansas”, for $450. There was no mention in the conversation, however, of the 1964 Chevrolet as having “previously been stolen”. Edwards testified the engine in the 1956 Chevrolet was a Chevrolet V-8, either a 283 cubic inch or a 327 cubic inch and could have been anything from a 1955 to a 1964 engine. The engine looked new, not dirty.

An F.B.I. agent, O. T. Handwerk, testified he investigated the theft of the 1964 Chevrolet both in Kansas City, Missouri and Kansas City, Kansas. March 26, 1964, he conducted an investigation in regard to the motor number on a 1956 Chevrolet convertible registered in Kansas to Edward Dodds, Kansas City, Kansas. There was no identification number on the motor. “There was markings where the identification number normally is placed on the motor, which indicated that it had been altered to the extent that some numbers had been removed.” He did not know what became of this car. He questioned two men, Edward Paul Dodds and Leonard Wade Scaife, about the theft of the 1964 Chevrolet.

Defendant rebuilt the 1964 Chevrolet and sold it, June 23, 1964, to the aforesaid Van Auto Sales, Inc., for $2300. Shortly after the purchase, the office girl at Van Auto Sales discovered the serial number was the same as on the car stolen from their lot. On June 27, 1964, Van Auto Sales sold the car to Arthur J. Dunham, who was still driving it at time of trial. On July 2, 1964, the Kansas City police made a physical inspection of the car and took photographs. The car had an identification plate on the left front door post, No. 41847S185501, and the number on the engine block was S185501.

An officer, Donald Wienberg, from the Auto Theft Bureau of the Kansas City, Missouri, police department, inspected the 1964 Chevrolet a few days after Dunham purchased it. The officer said the engine was a 327 cubic inch and that he saw nothing “on this serial number that indicated to me that this was not a factory job”, referring to the way the numbers were stamped on the engine block. The transmission in the car was not original equipment; it had a 1962 case, but someone had placed a 1963 Corvette serial number on it. This witness also testified that the transmission from the 1964 Chevrolet was in Kansas, but he did not know exactly where.

Defendant’s evidence was as follows: In addition to Carl’s Hollywood Muffler Shop at 2743 McGee, defendant also operated Jackson County Motors, a used car business, at 7500 Prospect, both in Kansas City, Missouri. Defendant testified he bought the 1956 Chevrolet convertible from Edward Dodds on April 8, 1964, for $500, paid by a Carl’s Hollywood Muffler Shop check, exhibit 12, on which defendant had noted “Mtr. number backwards, — CV 14375 — 56 Chev. Conv. Idn. no. VC56S014375”. He said Dodds came to his place approximately four days earlier, asking if he were interested in buying the car, at which time defendant offered $300. Dodds was back a couple of times before the deal was closed. Before he bought, defendant looked at the engine and noticed the “number seemed to be stamped on there backwards, plus the fact that it was white silvery looking like they might have had acid on the motor”, and this, he said, together with the fact he had noticed in the paper about a week before where Dodds “had been picked up in Kansas for investigation”, prompted defendant to go “into the office and called the Kansas City, Kansas Police Department and it was clear. They had the car and they had released it”. Defendant talked to Lt. Hall. At the time of purchase defendant received a Kansas motor vehicle title for the 1956 Chevrolet made out to Edward Dodds, exhibit 13. The application on the Kansas title is dated February 26, 1964. The certificate of title was issued and dated March 6, 1964.

Defendant and his mechanics testified about rebuilding the 1964 Chevrolet, using the engine from the 1956 Chevrolet convertible (which they said had around 15,000 to 20,000 miles wear) and obtaining other parts from various sources. He said he had approximately $2700 in the rebuilt car. Defendant admitted that he ground off the engine number CV 14375 and in its place stamped the number S185501, which he said he took from the serial number plate on the door post on the 1964 Chevrolet. He said he wanted a number “that had to do something (sic) with the car” and also to make it more difficult for a prospective purchaser to prove that it was not a 1964 engine.

Defendant denied telling Reynolds and Strong that he had the engine or transmission from the 1964 Chevrolet. He testified he did not believe the engine in the 1956 Chevrolet was stolen. When questioned as to whether he knew Dodds had been picked up for theft of the 1964 Chevrolet, defendant answered, “I still don’t know that he has been.”

Defendant’s mechanic testified that defendant had customers interested in high performance engines, but that the motor in the 1956 Chevrolet did not have a head, camshaft, carburetor or pistons of the high performance type.

As stated earlier, the issue is whether the evidence shows the required guilty knowledge on the part of the defendant. In deciding this, there are several well established rules to keep in mind as follows: Many cases have held guilty knowledge requires knowledge on the part of the accused of the stolen character of the goods at the time he received them. This means actual knowledge must be proved and found, not mere negligence in failing to know, not what a reasonably prudent man might know or believe, not facts which would put a reasonably prudent man on guard, although of course the knowledge which defendant possessed may be shown by circumstances. And the mere fact of possession of the goods by the defendant raises no presumption defendant knew the property had been stolen by another.

At first glance, defendant’s statement to Reynolds and Strong that the engine and transmission from the 1964 Chevrolet were on the 1956 Chevrolet convertible seems incriminating. But the element of receipt of the engine knowing that it was stolen is not supplied by this statement of defendant, because there is no evidence that defendant knew the 1964 Chevrolet was stolen. There were no suspicious circumstances proved surrounding the acquisition of the 1964 shell by defendant. There is no evidence that Edwards informed defendant, or that defendant was otherwise apprised of the fact, that the 1964 Chevrolet Impala had been stolen from Van Auto Sales. There is no circumstantial evidence from which this could be reasonably inferred.

Somehow, by means not shown, the engine taken out of 1964 Chevrolet apparently shows up in the 1956 Chevrolet convertible which defendant buys from Dodds. There was no evidence to show defendant was aware the F.B.I. agent had questioned Dodds about the theft of the 1964 Chevrolet. There is no proof that defendant dealt with Dodds in the dark of the night or in a furtive manner or that defendant attempted to hide the 1956 Chevrolet after he got it. He paid what would appear to be a reasonable price, $500, in 1964 for a 1956 Chevrolet convertible. Certainly there was no evidence he bought it at a. suspiciously low price.

We have looked at exhibit 13, the Kansas title in the name of Edward Dodds, Jr., on the. 1956 Chevrolet and exhibit 12, the $500 check, made out to Dodds in payment for the car. Dodds’ signature appears in two places on the title and once in the endorsement on the check. While we do not pretend to be handwriting experts (and there was no expert testimony on the subject at the trial), the signatures appear to be substantially alike. The check is stamped “Paid” by the bank April 8, 1964. As noted above, the application for the Kansas title on the 1956 Chevrolet is dated February 26, 1964, which was before the theft of the 1964 Chevrolet. The title itself was issued and dated March 6, 1964, which was either the same day as or the day after the theft of the 1964 Chevrolet. All in all, therefore, there does not appear to be anything suspicious or sham about these documents.

It is true defendant knew Dodds was “under investigation”, but there is no evidence defendant knew for what Dodds was being investigated. There was no evidence Dodds was an ex-convict or bore a bad reputation. As stated earlier, defendant noticed the appearance of the motor and engine number, but called Lt. Hall at the Kansas City, Kansas Police Auto Theft Bureau and was told that the car was clear and they had released it (Lt. Hall unquestionably was known to the F.B.I. agent and the Kansas City, Missouri police. It would appear the state could easily have checked on this assertion of defendant). Whatever was the appearance of the motor and number of the 1956 Chevrolet, it seems to have passed the scrutiny of the F.B.I. agent and the Kansas City, Kansas police department without the vehicle being held or classified as a stolen car. We do not believe, therefore, that the appearance of the engine can be said to have charged defendant with knowledge that it was stolen property.

Does the fact that the defendant altered the motor number constitute proof of guilty knowledge? Defendant admitted altering the motor number. He said his purpose was to deceive the customer into believing the motor was connected with the 1964 car and was of the same year. This undoubtedly did not endear him to the jury. The jury evidently disbelieved his explanation. But in a criminal case, where defendant is presumed to be innocent and where the burden of proof on the state is greater than that on the plaintiff in a civil case, is the effect of disbelief of defendant’s explanation the equivalent of proof to the contrary? We do not believe that defendant’s failure to explain satisfactorily to the jury permits an inference of guilty knowledge on his part at the required time which will take the place of substantive proof. ■ Certainly in civil cases the effect of disbelief is not proof of the opposite. See Zarrillo v. Stone, 317 Mass. 510, 58 N.E.2d 848, 849, stating, “On the other hand, mere disbelief of testimony is not equivalent to proof of facts to the contrary”; Cruzan v. New York Central & H. R. R. Co., 227 Mass. 594, 116 N.E. 879, 880, stating, “Mere disbelief of denials of facts which must be proved is not the equivalent of affirmative evidence in support of those facts.”, and Eckenrode v. Pennsylvania R. Co. (C.C.A. 3rd) 164 F.2d 996, 999, aff. 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41: “ * * * But a belief that testimony is false will not support an affirmative finding that the reverse is true. * * ” In Moulton v. Moulton, 178 Minn. 568, 227 N.W. 896, 897, the court said:

“ * ⅜ * The court could not find a fact necessary to be proved, namely, that there was no debt, as to which there was no affirmative testimony, by a claim that the negative testimony was unworthy of belief. This is the holding of the cases throughout.

Professor Edmund Morgan, writing in 59 Harv.L.R. 481, at 558 says: “It seems to be well settled that disbelief of his testimony as to a material fact is not the equivalent of positive testimony to the contrary.”

This has long been the rule in Missouri in malpractice cases. In Spain v. Burch, 169 Mo.App. 94, 108, 154 S.W. 172, 176, the court said:

“ * * * But this doctrine has not been, and should not be, carried to the extent that, where the burden is on the plaintiff to show the failure to do any act, and the defendant’s evidence that he did do it is uncontra-dicted, then the jury may not only disbelieve his evidence, but may take such disbelief as supplying- the lack of affirmative evidence required of plaintiff.”

In Fausette v. Grim, 193 Mo.App. 585, 186 S.W. 1177, the court said:

“ * * * As said in Spain v. Burch, 169 Mo.App. 108, 154 S.W. 172, plaintiff cannot rely upon the jury’s right to disbelieve defendants’ testimony as to conditions to take the place of her affirmative proof that the advising of the operation was negligent.”

To the same effect is Nevinger v. Haun, 197 Mo.App. 416, 196 S.W. 39, 41.

See, also, State v. Elsberg, 209 Minn. 167, 295 N.W. 913, where it was argued on appeal, that since the jury must have found in order to convict that defendant’s testimony, in which he denied any conversation with one Bennetts in regard to certain payrolls in a case involving false auditing and payment of highway claims, was false, that this therefore supplied the necessary corroboration required by the Minnesota law before defendant could be convicted on the testimony of his accomplice, Bennetts. The court rejected this, saying at 295 N.W. l. c. 918:

“ * * * So far as we can find, however, no case has gone so far as to hold that the mere fact that the jury does not believe the accused’s denial of guilt and considers it false constitutes sufficient evidence of fraudulent conduct on accused’s part to support the evidence of an accomplice or constitutes additional evidence against the accused. * * * ”

It is the duty of the state to prove guilty knowledge on the part of defendant, not the duty of the defendant to prove he had no such knowledge. Defendant did not convince the jury of his defense, but this does not establish guilty knowledge on his part or amount to some sort of admission of guilty knowledge sufficient to make a sub-missible case against him in the absence of substantive proof of the elements of the offense. If so, no defendant, no matter how innocent, could take the stand without fear that if the jury should fail to accept his explanation or defense and find against him, the fact they did not believe him would, if this view were to prevail, be treated as supplying a missing link in the state’s case and as independent evidence of a fact otherwise unproved, so that his conviction would be upheld even if the state had failed to make a submissible case on some material aspect denied by him in his testimony. If disbelief operates as proof, then the jury may always find on any issue unfavorably to a defendant who offers evidence favorable to himself, despite lack of other evidence on the issue. This is not the law. See Boatmen’s Savings Bank v. Overall, 16 Mo.App. 510, 515-516, where the point is clearly made thus:

“ * * * We find no evidence in the record to support this instruction, unless we can assume as a legal proposition that a jury may, when a fact is asserted by a discredited witness, not only disbelieve him, but consider his assertion of one fact as affirmative testimony of another fact diametrically the reverse. This we must decline to do.”

Accord: Shoninger v. Day, 53 Mo.App. 147; Citizens Bank of Bowling Green v. Moorman, 38 Mo.App. 484, 488.

The effect of disbelief by the jury of the defendant’s testimony is, of course, persuasive in the jury’s arriving at their verdict, but it is not probative and' does not constitute substantive proof on a material issue not theretofore proved. The fact is that upon the somewhat bizarre record before us, defendant’s actual knowledge with respect to the engine being stolen at the time he bought or received it remains a matter of speculation and conjecture, not stronger than a suspicion of guilt, and this, of course, is not sufficient.

The judgment is therefore reversed, but since we cannot conclude on the record before us that it would be impossible for the prosecution to make a submissible case against the defendant, the cause should be remanded for a new trial if the prosecution is so advised, rather than reversed outright.

Reversed and remanded.

HENLEY, P. J., concur.

STORCKMAN, J., concurs in result.

      . The evidence was that the serial number appears on a plate on the left front door post. The “4” stands for the year built (1964); “1847” is the model number. “S” means built in St. Louis. The last six digits are the vehicle identification number, which is also stamped on the motor block.

      . State v. Kelly (Mo.Sup.) 365 S.W.26 602, 606; State v. Harris (Mo.Sup.) 313 S.W.2d 664, 668; State v. Hicklin, 358 Mo. 1016, 218 S.W.2d 564, 565; State v. Ham (Mo.Sup.) 104 S.W.2d 232, 233; State v. Park, 322 Mo. 69, 16 S.W.2d 30, 35; State v. Capotelli, 316 Mo. 256, 292 S.W. 42, 44; State v. Smith, 37 Mo. 58, 68; State v. Woodson, 175 Mo.App. 393, 162 S.W. 327, 328.

      . State v. Day, 339 Mo. 74, 95 S.W.2d 1183, 1185; State v. Henderson (Mo.Sup.) 231 S.W. 596; State v. Weisman (Mo.Sup.) 225 S.W. 949, 950; State v. Cavanagh (Mo.Sup.) 225 S.W. 678; State v. Ebbeller, 283 Mo. 57, 222 S.W. 396, 397.

      .State v. Ham, supra; State v. Day, supra; State v. Lippman (Mo.Sup.) 222 S.W. 436, 441; State v. Richmond, 186 Mo. 71, 84 S.W. 880, 883-884; State v. Coppersmith, 231 Mo.App. 711, 105 S.W.2d 991, 994.

      . It does not appear, for example, what light, if any, Edward Dodds could throw on the matter if the state were to produce him as a witness.


author: BARRETT, Commissioner.

text:
    George Earl BROWN and Ethelyn Brown, Respondents, v. Mrs. Robert BOYD, Appellant.
    No. 52638.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1968.

      Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondents.
    Albert C. Lowes and Kenneth L. Wal-dron, Buerkle & Lowes, Jackson, for appellant.
   BARRETT, Commissioner.

On Monday evening, about 7:40 o’clock, March 19, 1962, Dr. George Brown parked his automobile on the south side of Broadway, opposite Child’s Super Market, in Cape Girardeau. It had been raining and the streets were wet. Dr. Brown came out of the store with a sack of groceries in his left arm and again proceeded south across the 35-foot street toward his automobile. At the northwest corner of Broadway and Whitelaw, almost opposite Child’s, there was a mercury vapor light and two-thirds down the block a second light and of course there was some light from the store windows. Dr. Brown was familiar with the heavy traffic of Broadway and as he approached the curb line saw vehicles traveling east in the south lane but he saw no closely approaching vehicles westbound. But by the time he reached the middle of the street he became aware of a lighted automobile traveling west and so he took a step or two and stopped with one foot on the center line of the street. The westbound automobile, driven by Mrs. Boyd, struck Dr. Brown’s hip, knocked him down and into the path of an eastbound automobile driven by Jerry Wilkening. Jerry’s automobile ran over the doctor’s right leg.

For $500.00 Dr. Brown gave Jerry’s insurer a covenant not to sue and on September 23, 1966, four and one-half years after the occurrence, tried and submitted his and his wife’s cause of action for $16,000.00 damages against Mrs. Boyd under the humanitarian doctrine and solely upon the hypothesis that she “could have known” of his peril in time thereafter to have avoided hitting him “by either stopping or swerving.” The jury, by a vote of nine to three, returned a verdict for the defendant, Mrs. Boyd. The plaintiffs filed a six-point motion for a new trial but the trial court without specifying “of record the ground or grounds,” as required by Civil Rules 75.01, 78.01, V.A.M.R., simply “sustained said Motion for a New Trial.” The defendant. Mrs. Boyd, appealed from the order and since the court had not specified the ground or grounds Mrs. Boyd, pursuant to Civil Rule 83.06(b), served a timely notice on Dr. Brown to “prepare the original brief” thus casting on the respondents the burden of justifying the trial court’s order.

In justification the respondents have filed a three-point brief but all points are based upon the single assertion that the order granting a new trial was justified because “the closing argument to the jury of appellant’s counsel was prejudicial as a matter of law.” The respondents take the position of “prejudicial as a matter of law” for the reason that when the trial court fails to specify the ground or grounds for granting a new trial, “it shall never be presumed that the new trial was granted on any discretionary grounds.” Civil Rule 83.06(c). In claiming prejudice as a matter of law the respondent Browns assert that therefore the trial court “had no discretion in ruling on the Motion for a New Trial.” While this particular claim is not of determinative significance it should be noted in passing that the cases upon which the respondents rely do not necessarily support the assignment. In Elms v. Kansas City Public Service Co., Mo., 335 S.W.2d 26, the question was whether a statement a passenger-plaintiff gave a bus operator was an admission against interest. It was held that the statement exonerating the bus driver was a mere conclusion or an opinion but, bearing upon the respondents’ point and here perhaps against them the court said, “There is, of course, no discretion as to the law of the case and, if no error was committed, the court erred in granting plaintiff a new trial.” In Womack v. McCullough, Mo., 358 S.W.2d 66, a new trial was granted on the assignment of newly discovered evidence but in reversing the order with directions to reinstate the verdict, the court said, “We rule on the merits and as a matter of law that there was no showing of diligence in an effort to discover and produce the testimony of Windes at the trial; on the contrary there was and is an affirmative showing of a lack of diligence in that regard. This left no room for the exercise of a discretion by the trial court, and we hold that the granting of a new trial on this ground was an abuse of discretion.”

But, as indicated, this particular claim is not determinative and the respondents’ assignments are to be determined upon their essential merits. To demonstrate prejudice as a matter of law with respect to counsel’s closing argument the respondent Browns make these assertions and assignments: It is said that in his closing argument defendant’s counsel (1) “asserted that Respondents’ contributory negligence caused the accident,” (2) “that Respondents’ negligence was the sole cause of the accident” and (3) “that the humanitarian doctrine was a ‘rather far-out theory’ and that Missouri was the only state that has such a theory.” It is said that this argument was “all over the objection of Respondents and after such counsel had been instructed by the Court not to continue such argument” — all of which is asserted to be prejudicially erroneous as a matter of law. In this connection, although the court specified no ground or grounds, the court during the course of a colloquy said, “I’m going to overrule your motion at this time but it might be a basis for a new trial later on,” and, thereby, it is urged that the court indicated its basic reason for granting plaintiffs a new trial. And finally it is urged that in any event the argument was manifestly prejudicial and therefore should be considered as “(p)lain errors affecting substantial rights * * * though not raised in the trial court or preserved for review.” Civil Rule 79.04.

While the assignments are to be considered upon their essential merits they must nevertheless be determined and disposed of upon and in the precise context of the record. The first reference to Dr. Brown’s negligence, and inferentially to humanitarian negligence as a “theory,” was in his counsel’s opening argument to the jury: “Now, at the beginning of the trial there was a considerable amount of talk about the negligence of Dr. Brown himself, if he was negligent in walking across the street there, but this is not a part of this case now, we are not concerned at all, in accordance with what the judge has instructed you as to what the law is about what Mr. Brown did.” This is not to say that plaintiffs’ counsel injected Dr. Brown’s contributory negligence into the case and thus provoked defense counsel to retaliate or even reply to the argument. As plaintiffs urge under the humanitarian submission Dr. Brown’s contributory negligence was beside the point and was not a proper subject for argument by either party and yet, undeniably, plaintiffs’ counsel introduced the subject. The first reference in defense counsel’s argument was this: “In his argument he says there is nothing to it at all; nothing about what Dr. Brown was doing out there, what care he was taking for himself at all.” (Emphasis supplied.) Whatever interpretation may be placed on this statement, whether it refers to sole cause, contributory negligence or what not, it was obviously in answer to plaintiffs’ argument and there was no objection whatever to the argument and in the absence of its being assigned in the court’s order as a ground it is difficult to see how it could be urged as error and a reason now. Olsten v. Susman, Mo., 391 S.W.2d 328. And it should be interpolated that by its own terms the purpose of the plain error rule is to afford relief against “manifest injustice or miscarriage of justice” (Civil Rule 79.04) and it does not relieve “the litigant from his obvious duty to give the trial court an opportunity to rule.” Misch v. C. B. Contracting Co., Mo.App., 394 S.W.2d 98, 102. The next reference was this: “Mrs. Boyd said she never did see him. Steve Limbaugh said, ‘Well, that doesn’t make any difference, she should have seen him.1’ Now, ladies and gentlemen, isn’t that really beating the devil around the stump the wrong way? The truth of the matter is that the sole cause of this accident is Dr. Brown being out there in the middle of the street — (interrupted).” Plaintiffs’ counsel objected “to this, sole cause has absolutely nothing to do with this and I ask that the jury be admonished that it has nothing to do with it.” Following this objection there was a lengthy colloquy between counsel and the court as to sole cause and finally the court ruled — “Sole cause may not be argued in this case.” Defense counsel inquired whether “that mean(s) the Court instructs me not to refer to it any further?” The court replied, “That’s right, to desist from using those words in arguing this case.” Defense counsel replied, “All right,” the subject was not referred to again and there was no request by plaintiffs’ counsel that the court rule on his original objection, there was no request for a reprimand and in these circumstances respondents are deemed to have been satisfied with the court’s ruling. Olsten v. Susman, 391 S.W.2d l. c. 330; Kaiser Alum. & Chem. Sales, Inc. v. Lingle Refrig. Co., Mo.App., 350 S.W.2d 128, 133.

The last reference to Dr. Brown was in this context: “Mr. Limbaugh points out to His Honor that the instruction says that she is charged with seeing or could have seen, then she could have put on her brakes or she could have swerved and Mr. Limbaugh makes the point about his three inches (i. e., had she swerved three inches she would not have hit Dr. Brown). Now, ladies and gentlemen, driving a big automobile going down a street, how many of us don’t wander just a little bit on three inches ? Are you going to take money from this lady and hand it to him on a matter of what could have been, could have swerved three inches? What was Dr. Brown doing out there in the first place?” Plaintiff’s counsel interposed, “Now, I object to that again, Your Honor, that has no place in this lawsuit.” Then there followed, in the jury’s presence, a lengthy discussion between plaintiffs’ counsel and the court as to the meaning of the humanitarian doctrine, what it “presupposed,” and what could and could not be argued. And finally defense counsel objected “to Mr. Limbaugh’s speeches” but the colloquy between the court and plaintiffs’ counsel continued and finally defense counsel said “What’s the ruling?” The court said, “I’m going to rule that you are going to have to quit talking about — . Mr. Limbaugh: Any negligence. The Court: His negligence. Mr. Lowes: I didn’t think I was talking about any negligence.” The court concluded this phase of the discussion by ruling “when he abandoned primary negligence, you can’t come in here and argue primary negligence which is what you were starting to do.” Defense counsel replied, “All right,” and again there was no further reference to Dr. Brown’s negligence and as to this subject there was no other or further request by plaintiffs’ counsel for further curative relief, and again any objection is deemed to have been waived. Olsten v. Susman, supra.

After all this colloquy and these rulings in the presence of the jury, the parties not attempting to speak alone to the court or to have the jury excluded, defense counsel continued: “Ladies and gentlemen, it comes somewhat difficult to make an argument here in line with Mr. Limbaugh’s rather far-out theory, but you’ve got to judge this lady — (interrupted).” Plaintiffs’ counsel made a general objection and immediately the court ruled: “The jury will disregard that remark about far-out theory because he is arguing on humanitarian, which is exactly what this thing is in now, the whole case is based on the humanitarian doctrine.” The court and defense counsel then engaged in a further discussion of the humanitarian “theory” — at one point defense counsel saying “this state is the only state that’s got that theory.” Plaintiffs’ counsel said, “I object to that, Your Honor.” The court said, “That’s not true. Now quit making statements like that. You know this isn’t the only state that has a humanitarian doctrine.” At this juncture plaintiffs’ counsel said, “Your Honor, I at this time move for a mistrial on the ground that I think that the remarks that have been made by counsel in the proceedings so far in the argument are highly inflammatory and prejudicial to my client and that he will not have a fair trial and I ask that the jury be discharged.” The court replied, “I’m going to overrule your motion at this time but it might be a basis for a new trial later on.” Defense counsel then proceeded through over four and one-half pages of argument, according to the transcript, and there were no other interruptions or objections.

This, the “far-out theory,” was not a proper subject for argument to the jury. But, in the first place, the sentence was not completed and it does not appear just what counsel was going to say about “judging this lady.” In the second place, in response to a mere general objection the court instructed the jury to disregard counsel’s remark. Here as elsewhere following the ruling the court and counsel engaged in a lengthy colloquy in the jury’s presence but at the time no one considered the fact as of prejudicial significance because there were no attempts to carry on these discussions of legal problems out of the hearing of the jury and there were no specific objections for these reasons and no request to exclude the jury. It may be added in this connection that counsel on both sides, instead of making specific objections, giving proper reasons and making appropriate requests, made only general objections and then proceeded to engage one another and the court in these lengthy academic discussions. And again as to all the arguments, counsel did not in unmistakably plain language argue “contributory negligence” as such, neither did he argue1 “sole cause” as such, he may have intended to as the court indicated, but he was interrupted, the general objections were sustained, the subjects were not mentioned again and the plain error rule “may not be invoked to excuse mere failure to timely and properly object or to evade the primary responsibility of orderly presentation to the trial Court in the first instance.” Fisher v. Williams, Mo., 327 S.W.2d 256, 263. And here as to all the assignments the record refutes the plaintiffs’ claim that there was a persistent and studied defiance of the court’s rulings by defendant’s counsel. In each instance counsel readily acceded to the court’s orders or rulings and most important of all the arguments were in nowise comparable to the highly inflammatory arguments in Calloway v. Fogel, 358 Mo. 47, 213 S.W.2d 405, or Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421.

While not instances of the court’s failure to state the ground or grounds for granting a new trial to one of the parties, all these assignments fall within and are governed by the fundamental principles suggested in the contrasting cases of Silverstein v. St. Louis Public Service Co., Mo., 295 S.W.2d 37, and Birmingham v. Coen, Mo., 320 S.W.2d 509. In the Silverstein case, a pedestrian struck by a bus, there was a verdict for the plaintiff and the defendant claimed that counsel’s argument that the bus driver had failed to give decedent “a break” when he was “trapped” by vehicular traffic. There too the objections were general, “outside the issues.” The argument was considered in its context and it was concluded that “the argument was not wholly outside the issues and it was neither so misleading nor inflammatory nor otherwise objectionable as to compel the granting of a new trial in this court.” In other words, the argument was not so manifestly improper, unfair or inflammatory as to be “prejudicial as a matter of law.” In Birmingham v. Coen there was a verdipt for the defendants and plaintiff’s counsel objected to the statement, along with others, “that this here-now Bri-zendine, the eyeball witness, came out there to the street and suggested that maybe Bernard M. Birmingham ought to have a lawyer by the name of Ralph Wright (one of plaintiff’s lawyers).” Other argument was set forth in its context and it was pointed out that the subject matter was improper, it was in point of fact collateral to any decisive issue, in part it was retaliatory but it was concluded: “The subject matter and the language employed were not manifestly inflammatory; it could not be confidently said that either improperly influenced the jury to an unjust result or deprived the plaintiff of a fair trial in a simple case involving simple issues.” And here in conclusion, all the matters complained of in their context were not manifestly prejudicial as a matter of law and therefore the order granting plaintiffs a new trial is reversed and the cause remanded with directions to reinstate the verdict and enter judgment for the defendant. Olsten v. Susman, supra; Womack v. McCullough, supra.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.