author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Daniel GILLMAN, Appellant.
    No. 48529.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied March 12, 1962.

      Joseph Langworthy, Pacific, for appellant.
    Thomas F. Eagleton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Appellant was found guilty by a jury of the forgery of a check. The trial court, after finding that he had been convicted and imprisoned for prior .felonies, determined his sentence to be seven years in a correctional institution. Following sentence and judgment this appeal was taken.

This is a companion case to State v. Adamson, Mo.Sup., 346 S.W.2d 85, and in this case, as in that one, much of the State’s evidence came from Moss Edward Shoemaker and Albert Wendell Hall who admitted participation in the preparation and passing of the series of checks out of which the present charge arose. From the evidence it reasonably could be found that appellant, Adamson and Shoemaker, working together, caused to be printed a number of check forms to resemble the printed checks used by John R. Burton, a contractor, at Montgomery City, Missouri. On each of fifteen checks introduced in evidence the name of “Carl R. Smith” was written in as payee and the word “bonded” was perforated into the paper over the name of the payee. The amount of each check was $72.41, and each was signed in the name of Pearl Thompson, a person who actually signed Burton’s authentic checks. The forged checks were passed by Hall. In most cases he would make a small purchase at a business establishment, give a forged check in payment, and receive the balance of the face amount of the check in cash. The check forming the basis of the present charge, identified as State’s Exhibit No. 1, was passed at the Mexico Lumber Company to purchase 50 pounds of nails for $7.50. Appellant and the other three persons involved in the scheme divided the money received, but perhaps not equally.

Appellant’s first point is that “The court erred in overruling defendant’s oral pretrial motion for dismissal as to Count I [upon which appellant was tried, Count II having been dismissed] of the amended information upon the grounds that, as shown by the records in this case and in cases No. 8823 and No. 8824, that charge is the same as the charge in Count I of the informa-tions in these two cases and that on this charge defendant was brought before the Magistrate Court of Audrain County on March 11, 1960 for preliminary hearing; and said Court at that time continued these causes to May 13, 1960, in violation of Section 544.320, V.A.M.S., Supreme Court Rule 23.06, 42 V.A.M.S., and defendant’s right to a speedy trial * *

From the allegations in this point, which do not prove themselves, and from the somewhat confusing and unresponsive argument in the brief, it appears that although appellant makes no complaint whatever as to the procedure followed in this case as to the preliminary hearing he contends that on oral motion (not shown in the transcript) the trial court should have dismissed Count I of the information because in two other criminal cases pending against him the Magistrate Court improperly continued the preliminary hearings thereon. None of this is shown in the record before this court. Appellant admits in his argument that the question is “probably not principally one of jurisdiction” but is “more properly a policy question.” His argument appears to be that even though the alleged improper continuances in the other cases had no bearing on his conviction in this case and even though the requested action might permit or cause a guilty man to go free, still this court as a matter of policy should reverse this case outright to prevent such continuances in the future (but he admits there is now a remedy for such situations) and to put a stop to a wholly unrelated alleged practice of the police of the City of St. Louis with respect to holding persons in custody. The statement of the point and the summary of the argument sufficiently demonstrate that there is no merit whatever to appellant’s first point, and it is disapproved.

Appellant’s second point is that the trial court erred in overruling his motion for a mistrial “upon the grounds that the prosecuting attorney knowingly permitted false and perjured testimony to be used against defendant and suppressed testimony favorable to him, * *

Moss Shoemaker testified for the State and in doing so admitted that he had participated in the scheme to print, fill out and pass the forged checks, and he testified that appellant participated in the entire scheme. Counsel for appellant then cross-examined him at length and the witness was excused. At the request of appellant’s counsel Shoemaker was subsequently recalled for additional cross-examination, and after some questions concerning previous convictions, the following occurred:

“Q. Didn’t you, in fact, discuss your testimony in this case with Mr. Lewis? [Prosecuting attorney].
“A. No. Sir.
“Mr. Lewis: Which testimony are you referring to?
“Q. Any testimony. Weren’t you in fact promised that if you would testify against Mr. Adamson and Mr. Gillman or either of them — ?
“A. I said that I would.
“Q. Weren’t you in fact promised then that you would be given a lighter sentence ?
“A. I was told that I couldn’t be promised anything, that it was up to the Judge.
“Q. Didn’t you understand though that the effect of it would be to receive a lighter sentence?
“A. Well, I was told that it would be considered seriously.
“Q. Were you not told that such a recommendation would be made by the prosecuting attorney ?
“A. I didn’t know for sure what the prosecutor — .
“Q. Were you told that?
“A. No, sir, I wasn’t told just what was going to be recommended.
“Q. But weren’t you told in effect that it would be a lighter sentence if you testified?
“A. I was told that it would be considered.
“Q. Were you told or were you not told that Mr. Lewis would recommend a lighter sentence if you testified?
“A. I wasn’t told by Mr. Lewis that he would recommend anything.
“Q. Were you told — I didn’t ask you whether you were told by Mr. Lewis ' or not, I asked you if you were so told ?
“A. I was told if I testified that it would be took into consideration.”

Counsel for appellant then continued his cross-examination on other matters and the witness was excused. During the presentation of appellant’s case the prosecuting attorney was called as a witness. His testimony, in substance, was that he did talk to Shoemaker on two occasions, once in the office of Shoemaker’s attorney, and once during the trial of Adamson, a co-conspirator, and that during the discussion in the attorney’s office the punishment of Shoemaker “may have been touched upon” at that time. Counsel for appellant moved for a mistrial “upon the grounds that the State [sic] has introduced and was allowed to elicit, without challenge, testimony by one of its own witnesses in the case, Mr. Shoemaker, to the effect that he had not discussed the case with the prosecuting attorney when the prosecuting attorney knew in fact that that was not true, as shown by Mr. Lewis’s testimony.”

It is perfectly obvious that the State did not introduce and did not elicit the testimony of Shoemaker that he had not discussed his testimony with Mr. Lewis. Such testimony was brought out by counsel for appellant. It is appellant’s position that when Shoemaker made the categorical denial that he had talked to the prosecuting attorney about his testimony, due process required that the prosecuting attorney “speak up if a false statement is made.” In Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, it was held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, * * *. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” It was further held that the principle “that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness.” It is the above language in the Napue case upon which appellant principally relies.

Appellant’s contention is without merit for at least two reasons. Assuming, but certainly not deciding or even implying, that there was a duty on the prosecuting attorney in the circumstances of this case to speak up when Shoemaker made a categorical denial that he had discussed his testimony with the prosecuting attorney, the record shows that the prosecuting attorney did then and there without any delay speak up and present the question as to what testimony reference was being made. Counsel for appellant then continued his cross-examination, apparently to show precisely to what testimony reference was being made, and Shoemaker admitted that he was told that if he testified against appellant he could not be “promised anything, that it was up to the judgethat he was told that the fact he testified “would be considered seriously;” that he was not told “just what was going to be recommended;” and that he was not told by the prosecuting attorney “that he would recommend anything.” The sequence of the questions and their substance clearly and unquestionably indicate that in making his answers Shoemaker was referring to what was and was not told to him by the prosecuting attorney. Appellant does not contend on his appeal, nor has he contended at anytime so far as we are able to ascertain, that the above testimony of Shoemaker concerning promises made or not made to him by the prosecuting attorney or anyone else is not true. Certainly, there is no evidence which even suggests that it is not true. It is clear that as the result of the further cross-examination, the prosecuting attorney was entitled to conclude, as would any reasonable person under the circumstances, that the first categorical answer had been clarified by the subsequent answers. Under these circumstances there was no duty on the prosecuting attorney to advise the court or the jury any further on the subject.

Assuming, however, that the answers brought out by the further cross-examination of Shoemaker, were not complete, what further fact was there to be shown? At most it was that the prosecuting attorney had discussed with Shoemaker the substance of his testimony, which he not only had a right to do but under the circumstances had the duty to do in the proper preparation of his case. The prosecuting attorney was called to the stand and he testified that he did discuss with Shoemaker “certain points of the case with him one time, I believe, in his attorney’s office,” and that he called him into his office during the Adamson trial to “ask him about some points,” but he was not certain about this second discussion. He further explained that since Shoemaker had testified at the preliminary hearing of appellant he knew “what his testimony was in the main.” Therefore, even if Shoemaker’s explanation was not complete, the jury was fully advised upon the subject and it had before it every factual element about which appellant then or now contends that the jury should have known or been informed. In fact, appellant asserts that he believed that the prosecuting attorney was telling the truth, and he therefore admits that the truthful situation was fully and completely presented to the jury from the precise source he says it should have come. The cases relied upon by appellant pertain to the situation where the State knowingly caused or permitted perjured testimony to be admitted or suppressed vital evidence material to the issue of guilt or penalty, and the correct and true facts were never presented to the jury so that they could take those facts into consideration in considering its verdict or the penalty. See Napue v. People of State of Illinois, supra, Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; United States ex rel. Almeida v. Baldi, 3 Cir., 195 F.2d 815, 33 A.L.R.2d 1407; United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763, certiorari denied, Commonwealth of Pennsylvania v. United States ex rel. Thompson, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773. See also the cases cited in the annotation at 33 A.L.R.2d 1421. The record does not present the slightest indication of any attempt on the part of the prosecuting officials to act improperly or without complete candor. The jury had before them what appellant admits constituted the true facts and they also had before them the testimony of Shoemaker. They were then in a position to determine who was telling the truth and to judge Shoemaker’s credibility under the circumstances. We find no merit whatever to appellant’s second point.

After the prosecuting attorney had testified as above indicated, counsel for appellant sought to recall Shoemaker for a third cross-examination. This request was denied and appellant now asserts that the court “abused its discretion under the circumstances.” After Shoemaker had been cross-examined extensively on two separate occasions and the State had closed its evidence, there was no abuse of discretion in refusing a third cross-examination on a collateral issue when admittedly there was no showing that any testimony would be received different from that already given by the witness. As to the trial court’s discretion in the matter see State v. Neal, 350 Mo. 1002, 169 S.W.2d 686.

Appellant next asserts that the court abused its discretion “in permitting the prosecuting attorney to say in his opening statement, to attempt to prove, and to argue to the jury, that the defendant was guilty of other crimes in the uttering of other forged instruments than the one charged in the second amended information.” The point does not set out with particularity the objected to statements, or even their substance, and no reason is advanced as to why the matters complained of constituted error. Appellant admits in his brief that “ordinarily there would be no question but what in this type of case such matters could be shown to show intent.” It is apparent, however, from the argument that reference is had to the forging of other checks.

The precise contention here made was ruled in the companion case of State v. Adamson, supra, 346 S.W.2d at p. 87, and it was there stated: “The facts of this case are such that it would have been physically impossible to show the printing, preparation, and writing of the check described in the information without showing the general activity involving the group of checks. The State is not to be penalized if parties so entangle their illegal affairs that one offense cannot be proved without also proving others.” It was further pointed out in the Adamson case by quoting from State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768, that “Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof.” In State v. Scown, Mo.Sup., 312 S.W.2d 782, it was held that one recognized exception to the general rule excluding evidence of other crimes is that the evidence is admissible when there is a “ ‘common scheme or plan embracing the commission of separate similar offenses.’ ” In the Adamson case, referring to the same factual situation we have here, it was said: “It would be difficult to conceive of a better example of a ‘common scheme’ than was shown here in the preparation and passing of these various checks. Evidence of the integral parts of the scheme were admissible to prove elements of the State’s case, not the least of which was an ‘intent to defraud’ in the words of .§ 561.011.” The evidence clearly was admissible, and being so the prosecuting attorney properly could mention it in his opening statement and in his argument to the jury. The point is without merit.

Appellant next contends that the information was “insufficient under the facts as developed on the trial of the case in that it did not with sufficient particularity specify which one, of a number of identical checks introduced in evidence by the State, defendant was charged with forging.” Count I of the information follows the wording of Section 561.011, subd. 1(1) R.S. Mo 1959, V.A.M.S., and charges that appellant did, with intent to defraud and acting in concert with named persons, make a written check such as is commonly relied on in business transactions and purporting to have been made by John R. Burton by an agent but which was not signed or made by Burton or with his authority. It then describes the face of the check in detail, and the offense is alleged to have been committed willfully and feloniously.

An information identical in form and substance was held sufficient in State v. Adamson, supra, 346 S.W.2d at p. 90, and appellant expressly admits in his brief that the information was “sufficient on its face.” He contends, however, that we should look to the evidence, and in that manner we will find that the description in the information fits other checks. If we may look to some of the evidence, as appellant contends, to discover that the information is indefinite we may look at all the evidence, and when we do we find that the check upon which the information is based was identified as State’s Exhibit No. 1, introduced into evidence, and distinguished from the others in that it was negotiated at the Mexico Lumber Company. The State’s case was submitted to the jury by specific reference in the instructions to “the written check that has been marked State’s Exhibit No. 1 and introduced in evidence.” In addition, Supreme Court Rule 24.03, V.A.M.R., provides that “When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars may be made only within ten days after arraignment and before the trial commences or at such other time before or after arraignment as may be prescribed by rule or order of the court.” Appellant could have availed himself of the provisions of this Rule and made a request to the court for an appropriate order under the circumstances if he had any doubt as to the identity of the check he was charged with having forged. There was no discrepancy between the description of the check in the information and that shown by the evidence and referred to in the instructions. The judgment rendered on the information is a bar to any subsequent prosecution for the same offense. The contention is without merit.

Appellant also challenges the sufficiency of the verdict. He says that “with all the statements, evidence and arguments concerning the uttering of other checks and in the absence of any showing that the jury knew what was in the information or that the State elected to stand only on Count I, it is not at all clear which check, if any, the jury found that defendant had forged.”

Under Instruction No. 4, the verdict directing instruction, the jury could find the appellant guilty only if it found that he had forged the check identified as State’s Exhibit No. 1 and introduced in evidence. The court instructed the jury that if it did so find then it should return a verdict in this form: “We, the Jury, find the defendant guilty as charged in the Information.” The jury had not seen and had no occasion to see the information. The jury was to be guided by the court’s instructions, and the court properly instructed them as to the form of the verdict if they found the facts as submitted in Instruction No. 4. This form of verdict was approved in State v. Adamson, supra, at p. 90.

Appellant’s next point is that the “court erred in permitting objectionable hearsay statements not made in the presence of defendant to be introduced into evidence.” There is no assignment of error in the motion for new trial relating to this matter which is any more specific than the quoted point. Such an assignment preserves nothing for appellate review, State v. Thompson, Mo.Sup., 299 S.W.2d 468, 471, and the point consisting only of an abstract statement with no reference to the evidence claimed to have been erroneously admitted presented nothing for appellate review even if the matter had otherwise been preserved. Turner v. Calvert, Mo.Sup., 315 S.W.2d 118.

During the presentation of the State’s case the prosecuting attorney handed to the witness then testifying what had been marked for identification as State’s Exhibit No. 1 and asked the witness to identify it. Counsel for appellant said: “I’m going to object and ask that I be permitted, to see the exhibit before it’s handed to the witness.” The trial court overruled the objection, and in doing so stated that the exhibit was not then being offered but was being identified. State’s Exhibits Nos. 2 through 15 were then identified by the witness. At the court’s direction all of these exhibits were then shown to counsel for appellant who asked that he be permitted at that time “to ask some preliminary questions of this witness concerning these so I can raise further objections as to the admissibility.” This request was granted. State’s Exhibits Nos. 1 through 15 were offered in evidence and later admitted, but not until counsel for appellant was afforded full opportunity to inspect them and enter his objections. Appellant now contends that the trial court “abused its discretion in refusing to allow counsel for the defendant to see the State’s exhibit before they were exhibited to the witness, in order that counsel could make objections to them, particularly in view of the Missouri law to the effect that such exhibition in front of the jury constituted the introduction into evidence of such exhibits; and such error and abuse of discretion further deprived defendant of his liberty without due process of law * * * in that it did not permit him to be heard on the subject of the admissibility of such exhibits into evidence until after they were in effect admitted.”

Appellant cites no case to the effect that it was an abuse of discretion for the court to refuse his counsel the right to inspect the State’s exhibits before they were identified. If he desired to inspect the checks before trial he had available to him the procedure set forth in Supreme Court Rule 27.19, V.A.M.R. During the trial the court had broad discretion to determine the orderly procedure and presentation of evidence. There was no abuse of discretion in that respect.

Appellant presents the contention that “such exhibition constituted the introduction in evidence of such exhibits.” He cites State v. Robinson, Mo.Sup., 325 S.W.2d 465, which held that an exhibit was actually in evidence when it “had in fact been exhibited to the jury and witnesses were examined and cross-examined concerning it.” This, of course, did not happen in this case. In his point and argument appellant does not give a complete or fair presentation of what occurred. Shoemaker testified that Adamson operated the printing press and printed the checks, and “as he took them out of the press, Gillman [appellant] and I spread them out so they’d dry.” The record then shows the following:

“Mr. Langworthy: I’m going to object at this time.
“(Without the hearing of the Jury).
“Mr. Langworthy: (continuing) Under the law, as I understand it, we have a very ticklish question about the exhibition of any possible exhibits to the jury before they have been admitted in evidence. I see Mr. Lewis has what looks like some checks in his hand. I’m going to object to the exhibition of those to the jury until they have been admitted in evidence.
“The Court: He’s not exhibiting them.
“Mr. Langworthy: I know, but I want to make sure they aren’t exhibited.
“The Court: You don’t raise any claim that they are exhibited now, do you?
“Mr. Langworthy: I don’t think they can be seen but I don’t want them to be.
“The Court: They won’t be, any more than can be seen from the distance that the witness would have them in his hands. He will ask him to identify them, I assume. Right now there is clearly no exhibition of them.”

Appellant does not contend that he was denied the right to present any objection he desired to make. He could not possibly have been prejudiced by the jury seeing the checks in the hands of the prosecuting attorney, if they did, or by observing the procedure of identification when subsequently the checks were properly admitted in evidence and exhibited to the jury. The point is without merit.

Appellant’s next point is as follows: “The Court erred and abused its discretion in too actively participating in the trial in this criminal case in suggesting courses of procedure to the prosecution.” This point is identical with the assignment of error in the motion for new trial. The assignment of error and the point preserve nothing for appellate review. State v. Gerberding, Mo.Sup., 272 S.W.2d 230, 234; State v. Weidlich, Mo.Sup., 269 S.W.2d 69, 71. We have read the record carefully to see if there is any basis for invoking Supreme Court Rule 27.20(c), and we find that not only did no improper participation occur on the part of the trial court, but that the record discloses the trial judge demonstrated judicial ability, complete fairness, and remarkable patience under the circumstances.

Appellant next asserts that the court erred in permitting the prosecuting attorney to call appellant a “little angel boy” in oral argument because “such statement was not justified by the evidence and was an improper argument and attempt to appeal to prejudice.”

The statement of the prosecuting attorney was as follows: “But the State and any prosecutor has perfect right to use as witnesses persons who have taken part in the crime for which the defendant is being tried. The only defense here by this little angel boy — .” Appellant then objected because “it’s obviously meant not in good faith and is used as a derogatory epithet.” Appellant elected to testify in this case and he admitted participation in two armed robberies. He also admitted that he accompanied Shoemaker to Poplar Bluff when the printing press was obtained, that he saw the checks being printed, that he knew that Hall had filled them out, but he denied any participation whatever in the scheme. Both Shoemaker and Hall had testified to acts of appellant which if true made him an active participant in the scheme to forge the checks. While it is true that the prosecuting attorney should not apply denunciatory personal epithets to the defendant or his witnesses, State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 37, in this case he could properly comment on appellant’s character and he had a right to comment on the truth or falsity of the testimony, including that of appellant. State v. Woods, 346 Mo. 538, 142 S.W.2d 87, 89. This mild sarcasm obviously was a comment on appellant’s admission of acts which demonstrated knowledge on his part of the crime while denying any part in the crime. We find it impossible to consider the term as abusive, invective or vituperative under the circumstances, and it certainly was not such to arouse passion or prejudice. The trial court has considerable discretion in controlling argument of counsel, State v. Harris, Mo.Sup., 351 S.W.2d 713, and we find no abuse of discretion in this instance. See also State v. Satterfield, Mo.Sup., 336 S.W.2d 509, 515; State v. McCulley, Mo.Sup., 327 S.W.2d 127, 131.

Appellant next asserts that the trial court erred in refusing to give at his request the following requested instruction:

“The Court instructs the jury that a check is a bill of exchange drawn on a bank payable on demand. A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.”

It is with some difficulty that we determine on what theory appellant contends he was entitled to this abstract instruction. He now argues that under the evidence the jury might have believed that he had some part in printing blank forms for checks, but that he took no part in making the actual checks. However, he did not advance this reason to the trial court. If that was the purpose of the instruction, appellant would not have been entitled to one so advising the jury because the theory of the State, as submitted in the instructions, was that appellant had knowingly and intentionally acted in concert with Shoemaker and Adamson in forging the check, and in such event it would not have been a defense that appellant did not personally perform each and every act essential to the commission of the charged offense. Appellant relies principally upon State v. Chaney, Mo.Sup., 349 S.W.2d 238, in which it is held that in certain situations the court is required to give a correct instruction on a collateral issue when requested even though the offered instruction is erroneous. However, it was expressly held that the court need not rewrite and give an instruction on every proposition on which the defendant offers an incorrect instruction. Appellant says the jury was entitled to know what a “check” really was, hut such an instruction would be cautionary in nature and discretionary on the part of the trial court. In the Chaney case at p. 244 it was expressly held that the giving of a cautionary instruction “should require the offer of a correct instruction,” and while the requested instruction in this case as worded may correctly state an abstract principle of law it is inappropriate under the facts of this case and under the theory of the State as submitted in the instructions. No prejudicial error resulted in refusing the offered instruction, and under the circumstances there was no duty on the court to give some other instruction relating to the subject matter of the instruction.

Appellant asserts that the “court erred in passing sentence, or as it was described, in determining and assessing punishment of defendant, without first granting defendant allocution or asking him whether he had any legal cause to show why such sentence or assessment of punishment should not be pronounced against him.” In the argument it is stated that it is “not clear to appellant’s counsel” what the differences are, if any, between the “assessment of punishment by a court” and the “judgment and sentence.” It is then asserted that appellant’s “rights were prejudiced” by the “precipitate action of the court” in determining the punishment without notice, and he was thereby foreclosed from being heard upon the matter.

As previously noted, appellant was tried under the habitual criminal act, and as required by Section 556.280 RSMo 1959, V.A. M.S., evidence of the prior convictions, sentence and subsequent imprisonment was heard by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and the court entered its findings thereon. After the jury returned its verdict of guilty the trial judge, as required by § 556.280(1), determined the punishment. Counsel for appellant then entered an objection “to the court’s failure to give allocution to the defendant.” We now quote the comment of the trial court then made to appellant’s counsel which gives the complete and accurate answer to his trial objection and to his point now made on appeal. “The defendant has not been sentenced. The court is simply at this time assessing the punishment, determining the punishment as the statute requires that I do. And then later on after a motion for new trial has been filed, in the event it is overruled, or if the motion for new trial is not filed, the defendant will be called back in and accorded allocution and judgment and sentence will be pronounced then.” The record shows that allocution was had at the proper time and in the proper manner. See Supreme Court Rule 27.09, V.A. M.R. The trial court determined the punishment based on the evidence in the case, and appellant made no request whatever to be heard out of the presence of the jury on the extent of punishment. No error resulted.

The last point in appellant’s brief is that the court erred in admitting into evidence State’s Exhibit No. 1, the forged check upon which the charge was based, and passing the exhibit to the jury because some person had written the word “forgery” on the check. At the court’s direction a label had been pasted over the word forgery, but appellant contends that the word could be read through the label. Possibly this is true if a studied effort to do so is made, or if the check is held up to the light. At the time the check was exhibited to the jury the court instructed them “not to make any effort to see anything that is not readily apparent” on the check. In addition, this matter was not mentioned in the motion for new trial. This contention is so totally without merit no further discussion is warranted, and it obviously calls for no action by this court pursuant to Supreme Court Rule 27.20(c), V.A.M.R., as appellant suggests.

The judgment is affirmed, and pursuant to Supreme Court Rule 28.14, V.A.M.R., it is directed that the sentence be executed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . V.A.M.R. Crim.Rule 23.06.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Grace Ruth HARTLEY, Appellant, v. R. C. SMITH, Administrator of the Estate of Guy Raymond Southwick, Deceased, Respondent.
    No. 48880.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      Donald E. Bonacker, Springfield, Lincoln, Haseltine, Keet, Forehand & Springer, Edmund C. Forehand, Springfield, for appellant.
    J. Weston Miller, Gerald H. Lowther, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendant-respondent.
   COIL, Commissioner.

A few minutes after nine o’clock in the morning of September 17, 1959, Grace Hartley, the plaintiff below, was a front-seat passenger in an automobile being driven by Guy Southwick on Missouri Highway 13. His southbound automobile collided with a northbound car being driven by Gene Mayberry, at a place about three miles south of Humansville. Southwick was killed and plaintiff sought $100,000 from his estate as damages for alleged personal injuries. A jury found for defendant, the administrator of Southwick’s estate. Plaintiff has appealed from the judgment which ensued. She contends the trial court erred in giving instructions 8 and 9.

At the time of the accident Highway 13 in the area in question was 20 feet wide (2 lanes). Its surface was a black-colored asphalt with an alternating black and white center line and with usable shoulders six feet in width. The collision point was on, or on the approach to, the “gradual crest” of a hill. The pavement was dry and there is no claim that visibility was not adequate.

Veda Gilbert, also a front-seat passenger, testified that when Southwick, driving south on his right side of the road at 60 to 70 miles per hour, started up a gradual incline, she saw a northbound automobile (the May-berry car) come over the hill crest about 300 feet away traveling on the wrong side of the road, i. e., in the west or southbound lane; that thereafter the Mayberry car swerved toward or back to its right side of the road and Southwick remarked that it was about time he (the other car) got back on his side; that thereafter South-wick swerved to his left and, almost immediately, into collision with the northbound car. The witness imagined that the Southwick car traveled about 150 feet from the time she saw the Mayberry car until the time of the collision.

The left front corner of the Mayberry car and the middle front of the Southwick car collided when their front ends were east of the center line and in the northbound lane. The Mayberry automobile came to rest at the east edge of the highway, partially on the east shoulder, facing east with its left rear wheel 18 feet north of the point of impact and five feet east of the center line. The Southwick car was turned around almost completely and came to rest with its rear about 26 feet northwest of the impact point on the west side of the highway and with its front facing northwest. Skid marks made by Southwick’s right tires started at a point 1T0" from the right or west edge of the pavement, traveled south along the right side of the road about 60 feet and then swerved to the left (the discernible mark was 75 feet long); the skid mark made by Southwick’s left tires was 104 feet long and ran 73 feet on the west side of the center line and 31 feet after crossing to the east side of the center line. The May-berry automobile left four skid marks, a separate mark having been made by each of the tires, indicating, according to the testimony, that the steering wheel had been jerked sharply to the right as the vehicle started to skid partially sideways north-wardly as it traveled northeastwardly toward its northbound traffic lane. The skid marks made by Mayberry’s car originated in the west or southbound lane. The skid mark made by Mayberry’s left front tire ended at or just east of the center line and was 36 feet in length running from the southwest to the northeast. The skid marks made by the other Mayberry tires ran in the same direction and were estimated to be about 44 feet in length. The distance from the rear axle to the back bumper on the Mayberry car was 4'2" so that as the Mayberry car skidded sideways as it traveled northeastwardly its rear was farther to the west than the left rear tire and it was estimated that the rear end would have been as much as four or five feet west of the center line although it is not clear in the record whether that estimate applied to collision time or to what point during the car’s approach to the impact point.

Plaintiff’s verdict-directing instruction 1 authorized a verdict upon the hypotheses that Southwick saw or in the exercise of requisite care should have seen that the approaching Mayberry automobile was returning to the northbound lane but would not reach a position of safety and that a collision was likely (we assume plaintiff meant unless Southwick acted) and th?t thereafter with the means at hand, etc., he could have avoided the collision by swerving to the right but failed to do so and was thereby negligent and as a direct result injured plaintiff.

Plaintiff’s instruction 4 informed the jury that if it found Southwick negligent as submitted in instruction 1, then, even though it found that some negligence of Mayberry combined or concurred with that of South-wick to injure plaintiff, the verdict would be for plaintiff and against defendant.

Instruction 8, given at defendant’s request, purported to be a sole cause instruction. It hypothesized that Southwick was driving south and Mayberry north and that “at such time and place” Mayberry “was driving his automobile wholly or partially to' the left of the center of such highway as such automobile approached and was in close proximity” to Southwick’s automobile, and upon the finding of such facts directed a defendant’s verdict provided the jury found that the sole cause of the collision was Mayberry “so. driving- his automobile to his left of the center of the highway under such circumstances” and that the collision “was not caused or due to negligent acts” of Southwick as submitted in other instructions.

Defendant’s instruction 9 informed the jury that the drivers of approaching automobiles are required to turn their vehicles to the right so as to pass without interference, but that there are circumstances justifying one in turning to the left instead of to the right; and thus, said the instruction, if the jury found that South-wick, driving on his right-hand side of the highway immediately before the collision, saw another car approaching on Southwick’s side and that “it reasonably appeared to * * * Southwick * * * that there would be a collision unless he turned to the left, and acting upon such appearance he swerved his car in that direction” and in so doing exercised the highest degree of care, he was not guilty of negligence and the verdict should be for the defendant.

Plaintiff first contends that the evidence was not sufficient to support any sole cause submission and that consequently the trial court erred in giving instruction 8. Specifically, plaintiff says there was no evidence from which a jury reasonably could find that Southwick’s negligence was not at least a concurring cause of the collision and plaintiff’s injuries. We do not agree. It is true that the witness Gilbert, the only witness in the case who testified on the subject, said that Southwick swerved to the left (into certain collision) after the Mayberry car had begun to return to the northbound lane, and it is also true that all of the evidence showed that the accident could have been avoided by South-wick’s swerving to the right. But the defendant was not hound by witness Gilbert’s testimony. The jury was entitled to believe or disbelieve all or any part of it. In determining whether there were facts justifying any sole cause instruction, we view the evidence from a standpoint favorable to defendant and give him all the reasonable inferences to be drawn therefrom. So viewing the evidence in this case and, thus, taking into account the available estimates of speed and distances, the testimony as to skid marks, and the place at which the Southwick car swerved, we are of the opinion that there was evidence from which the jury reasonably could have found these facts: That when South-wick swerved left, the front of his automobile was 30 or 40 feet from the point •of impact, and that Mayberry’s automobile proceeding northwardly on the wrong side •of the road was then about 50 feet from the impact point and had not yet begun to move toward his right side of the road; that the Mayberry car was at that instant traveling at least 70 miles per hour and Southwick, due to slowing, was traveling at a lesser speed; that under those circumstances, not more than 80 or 90 feet separated the front ends of the two automobiles which were traveling toward each other at high speeds on the same side of the road about a half second away from a head-on •collision. If a jury found the circumstances to be as suggested above, the question whether Southwick was negligent in swerving left was for the jury to decide.

Plaintiff next contends that instruction 8 was erroneous in form. A correct sole cause instruction must hypothesize facts from which a jury reasonably may-find that the negligence or acts submitted constituted the sole cause of plaintiff’s injury, and it must also negative defendant’s negligence as submitted by plaintiff. Payne v. Smith, Mo., 322 S.W.2d 764, 769(7). Instruction 8, as we have heretofore noted, authorized the jury to find that Mayberry’s negligence was the sole cause of the collision if it found he drove his automobile on the left of the highway as it approached and was in close proximity to Southwick’s automobile. The instruction entirely ignored the issue whether there were facts excusing or justifying Southwick’s violations of the law in failing to drive on his right half of the roadway and in failing to turn to the right when passing a vehicle proceeding in the opposite direction. Sections 304.014, 304.015, subd. 2. and 5.(5), RSMo 1959 and V.A. M.S. Those were negligent acts unless excused or justified by the circumstances, Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, 528(1-3), and there can be no doubt that such negligence, if any, was a proximate cause of the collision.

It seems apparent, therefore, that to eliminate Southwick’s act in driving to and on the wrong side of the road as concurrent negligence, the jury must have found from hypothesized facts that at the time he so acted in violation of law he was justified in so doing by the circumstances then existing. This the instruction failed to require and it was thereby fatally defective. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853, 858(9, 10); Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289, 293(7-9). Incidentally, we observe that defendant recognized that a finding of “justification” for South-wick swerving left was a necessary prerequisite to a verdict for him. That is demonstrated by the fact that he required the jury to so find by his instruction 9, the substance of which we have set forth heretofore.

It is true that instruction 8 negatived defendant’s negligence as submitted in plaintiff’s instruction. Such is an essential element of a proper sole cause instruction, Payne v. Smith, supra, but compliance with that requirement does not serve to eliminate the necessity to also comply with the separate and independent requirement for a proper sole cause instruction in this case, viz., that the jury determine the fact issue, essential to a “sole cause” defense in this case, whether Southwick’s violations of law were excused or justified under facts which must have been hypothesized. Long v. Mild, supra. Furthermore, in this case plaintiff’s verdict-directing instruction was based on the theory that Southwick negligently failed to observe Mayberry returning to his proper lane and that thereafter Southwick negligently failed to swerve to his right, while a justification for South-wick’s swerving left had to be based upon the theory that Southwick swerved left before he saw or should have seen May-berry begin to return to his proper lane. Consequently, in no event could the negativing of defendant’s negligence as submitted in plaintiff’s instruction have eliminated the necessity for requiring the jury to find that Southwick was justified in turning left.

Defendant, apparently inadvertently, hypothesized (instruction 8) that plaintiff’s injury was “the sole direct proximate result” of Mayberry’s driving on the wrong side of the road rather than that such driving was the “sole cause of” plaintiff’s injury; a matter easily corrected in the event of a new trial.

What we have said with respect to the existence of a factual situation to support a sole cause instruction will suffice to indicate our view that there was evidence to support the theory of instruction 9, i. e., that there was a jury question whether under certain facts it reasonably should have appeared to Southwick in the exercise of the highest degree of care that he should swerve left in order to avoid a collision. Defendant will, no doubt, consider plaintiff’s further criticisms of instruction 9 in the event of another trial.

The judgment is reversed and the case is remanded.

HOLMAN, and HOUSER, CC, concur.

PER CURIAM.

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

All concur.


text:
    AIRWAY DRIVE-IN THEATRE CO., Inc., a corporation, St. Louis Amusement Co., a corporation, and Herbert P. Hartstein, doing business as Skyline Drive-In Theatre, Appellants, v. CITY OF ST. ANN, a municipal corporation, Clarence G. Tiemeyer, Mayor of the City of St. Ann, and Maurice H. McCue, Chief of Police and Collector of the City of St. Ann, Respondents.
    No. 48002.
    Supreme Court of Missouri, En Banc.
    March 12, 1962.

      Flynn, Parker & Badaracco, Norman C. Parker, St. Louis, for appellants.
    William R. Dorsey, Clayton, for respondents.
   STOCKARD, Commissioner.

Appellants seek a declaratory judgment declaring unconstitutional and void that portion of Ordinance No. 288 of the City of St. Ann which purports to levy an annual license tax on drive-in theaters of $1.50 per speaker. The trial court dismissed their petition and they have appealed contending, as they did in the trial court, that the challenged portion of the ordinance violates Section 3, Article X of the Constitution of Missouri, V.A.M.S., and also the due process and equal protection clauses of both the Missouri and Federal Constitutions.

Ordinance No. 288, which became effective January 1, 1959, levies an annual license tax in varying amounts upon 98 specifically designated classifications of business, and provides that all other businesses should be taxed on an annual basis at the rate of seventy-five cents for each one thousand dollars of the first million dollars of gross sales, and one dollar for each one thousand dollars of gross sales thereafter with a minimum tax of $25.00. The tax on the specifically designated classifications varies from $5.00 to $250.00 for those businesses taxed on a flat rate of so much per year. The challenged tax is listed as follows: “Theaters, drive-in, per speaker per year $1.50.” There is no separate classification for “theaters,” but there is a separate classification for “Opera houses or picture shows, indoor, per year $50.”

Drive-in theaters are arranged so that patrons drive in the theater area and watch the moving picture show while seated in their automobiles. A separate speaker is provided for each automobile. The drive-in theater of one of the appellants also has a substantial number of seats arranged so that persons may leave their automobile or come to the area without an automobile and watch the picture show. Airway Drive-In Theatre has 925 in-car speakers on which the annual tax under Ordinance No. 288 is $1,387.50; Skyline Drive-In Theatre has 591 in-car speakers on which the annual tax is $886.50; and St. Ann Drive-In Theatre, operated by Appellant St. Louis Amusement Co., has 1,-040 in-car speakers for which the annual tax is $1,560.00. We note that subsequent to the filing of this action Skyline Drive-In Theatre has terminated its operations in the City of St. Ann.

During 1959 there were twenty-four businesses which paid a license tax based on gross sales. The largest was $1,006.98 paid by a super-market, and to warrant this tax its annual gross sales necessarily exceeded $1,250,000. The gross receipts of appellants in 1958 from admissions and from concessions was as follows: Airway Drive-In Theatre — $352,505; Skyline Drive-In Theatre — $96,071; and St. Ann Drive-In Theatre — $257,335. In addition to the license tax under Ordinance No. 288 and the regular real and personal property taxes, appellants paid to the City of St. Ann in 1958 “under agreement for police direction of traffic and other police services” the following amounts: Airway Drive-In Theatre — $4,850; Skyline Drive-In Theatre — $1,410; and St. Ann Drive-In Theatre — $3,570. These payments would be approximately the same each year for each theater except the one which has terminated its business in the city.

There appears to be no question, at least by the parties, but that Ordinance No. 288 is a revenue measure as distinguished from a regulatory measure, and that as such it is subject to the provisions of Section 3, Article X, Constitution of Missouri which provides that “Taxes * * * shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” See City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040; City of St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654. Appellants contend that the ordinance violates the above constitutional provision because the “separation of indoor and outdoor theaters is an arbitrary and unreasonable classification thereby destroying the required uniformity of application of the tax.” They also contend that the tax on drive-in theaters is “excessive and discriminatory in comparison with the tax imposed upon other businesses.” The City of St. Ann, on the other hand, contends that it is entitled to make reasonable classifications of businesses for the purpose of levying a license tax; that it has done so by creating the classification of “picture shows, indoor” and “theaters, drive-in;” and that since the tax is uniform on all members of the classification of “theaters drive-in” the ordinance does not violate any provision of the Constitution. It asserts that “discrimination as such [will] not void the ordinance but only unreasonable and arbitrary discrimination [is] prohibited by Section 3, Article X of the Missouri Constitution of 1945.”

A municipal corporation has no’ authority to impose a license tax upon any business or pursuit unless such power is> conferred by charter or by statute. Automobile Club of Missouri v. City of St. Louis, Mo.Sup., 334 S.W.2d 355, 362. The City of St. Ann is not a charter city so' its authority must be found in the statutes. Section 71.610 RSMo 1959, V.A.M.S., requires that the business or avocation to be taxed shall be “specially named as taxable”' in the charter or applicable statute. Section 94.270 RSMo 1959, V.A.M.S., applicable to cities of the fourth class, specifically lists “moving picture shows” among the businesses upon which license taxes may be levied.

This court has held that a municipality “has power to divide a taxable class, that is, a class taxable under its charter [or applicable statutes], into subclasses and tax these subclasses differently.” Village of Beverly Hills v. Schulter, 344 Mo. 1098, 130 S.W.2d 532; Ploch v. City of St. Louis, 345 Mo. 1069, 138 S.W.2d 1020. But, of course, the subclassifications must be reasonable and not arbitrary. Campbell Baking Co. v. City of Harrisonville, 8 Cir., 50 F.2d 670. There must be a substantial distinction between the subclasses, 33 Am.Jur. Licenses § 34, or the effect is that businesses which arc in fact in the same class are not taxed uniformly. See, for example, City of Kansas City v. Grush, 151 Mo. 128, 52 S.W. 286. However, “the latitude allowed a legislative body in making classifications in a pure revenue-measure is more restricted, since the element of regulating particular businesses because of their nature is missing.” Edmonds v. City of St. Louis, 348 Mo. 1063, 156 S.W.2d 619.

When we consider the fact that the tax imposed is not for purposes of regulation, but is imposed for revenue purposes only, we find it difficult to justify a distinction between moving picture shows held indoors and moving picture shows held outdoors in what is called a drive-in theater. The product sold by these highly competitive businesses is precisely the same and is dispensed for the same purpose. Neither, as distinguished from the other, is detrimental to the public good or adversely influential on public morals or habits so as to justify a different treatment. See Ed-monds v. City of St. Louis, supra. However, it may be said that subclassifications of “moving picture shows” may properly be made by a municipality for the purpose of computing or measuring the tax. For example, a municipality may desire to’ measure the tax on the capacity of a theater. The indoor theater could be taxed according to the seating capacity, but since drive-in theaters do not have a comparable seating capacity, the tax could be measured according to its capacity for automobiles, or, as in this case, according to the number of in-car speakers. Therefore, we cannot say, as a matter of law, that no subclassification of moving picture shows into indoor and outdoor theaters is permissible for any purpose. But, when a municipality taxes one subclassification on a flat rate and another on a graduated rate with the result, as in this case, of one subclassification being taxed 17 to 30 times greater than a member of the other subclassification engaged in a competing enterprise and doing or capable of doing the same volume of business and serving the same number of patrons, then the ordinance imposing the tax is contrary to what we consider to be the correct and sound rule that “although a subclassification for license purposes may be justified on substantial grounds, the taxing power cannot unjustly discriminate, such as in the amount of the tax imposed, between the subdivisions so made.” 33 Am.Jur. Licenses, § 34, p. 360; 51 Am.Jur. Taxation § 179. See, also, 53 C.J.S. Licenses § 22. This is but another way of saying that the resulting subclassification is arbitrary, unreasonable and without substantial justification.

In Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738, 117 S.W. 296, 21 L.R.A.,N.S., 83, a discriminatory tax, although not confiscatory or prohibitive, was imposed on four-horse wagons as compared to three-horse wagons. While ruling that there was no reasonable basis for the classification, the court also had this to say: “Furthermore, the order itself shows that the owner of a four-horse wagon is required to pay three times as much tax as the man who operates a three-horse wagon, when there is nothing in the character of the wagons to justify such inequality. It may be conceded that a reasonable classification for the purpose of license taxes may always be made. Classification based upon the character of the vehicles and the number of horses used in connection with them may be proper, * * * but the classification sought to be made in this case is manifestly unequal and unreasonable. It cannot be said to be reasonable because it bears alike upon all owners of four-horse wagons. The class of persons whose occupations are taxed are those who run and operate vehicles for hire. The taxing power may subdivide this class, but it cannot unjustly discriminate between the subdivisions so made.” See, also, Ziedman & Pollie Inc. v. City of Ashland, 244 Ky. 279, 50 S.W.2d 557, where a license tax on carnivals ten times higher than on other subclassifications of public entertainments was held to be unreasonably discriminatory, and see also Mayor and Council of Wilmington v. Durham, Del., 2 Storey 110, 153 A.2d 568, 573, where a license tax of $6.00 per machine used in launderettes was held invalid as to a launderette containing so many machines that the total tax would exceed the $50 tax imposed on regular laundries.

In the following cases the ordinance or statute was held to be void although the broad authority of a legislative body to make classifications on the various grounds set forth in 53 C.J.S. Licenses § 22, at pp. 543-544, would have permitted the subclassifica-tions, at least for some purposes. City of Danville v. Quaker Maid, Inc., 211 Ky. 677, 278 S.W. 98, 43 A.L.R. 590 (a higher tax on cash and carry grocery stores than on “regular” grocery stores) ; Rainey v. State, 41 Tex.Cr. 254, 53 S.W. 882 (a higher tax on cotton buyers who were merchants than on cotton buyers who were not) ; Lincoln Gas & Electric Light Co. v. City of Lincoln, 8 Cir., 182 F. 926 [reversed on other grounds, 223 U.S. 349, 32 S.Ct. 271, 56 L.Ed. 466] (a tax on a gas plant furnishing light, heat and power but not on an electric plant furnishing the same); State of Wyoming v. City of Sheridan, 25 Wyo. 347, 170 P. 1, 1 A.L.R. 955 (tax on one laying concrete or cement sidewalks but not on one laying sidewalks of asphalt, granite or vitrified brick) ; Great Atlantic & Pacific Tea Co. Inc. v. Board of Commissioners of City of Camden, 122 N.J.Law 47, 4 A.2d 16 (a prohibitive tax of $10,000 on self-service grocery stores, but the court mentions discrimination between subclasses); Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W.2d 170, 57 A.L.R.2d 1256 (tax on dealers of new automobiles who were franchised and no tax on those not franchised).

In addition to what we have said, we consider Ordinance No. 288, in its application to appellants, to be invalid for another reason. In Thunder Oil Company v. City of Sunset Hills, Mo.Sup., 349 S.W.2d 82, it was pointed out that the courts at various times have stated that they may declare an ordinance invalid because of unreasonableness in the absence of some constitutional violation, citing cases, but that this authority should be exercised only where the enactment of the ordinance constitutes an abuse of the taxing power. In the pending case the license tax, imposed as a revenue measure only, was on the operations of moving picture shows, but the tax on the subclassification made by respondent on moving picture shows operated outdoors by appellants, as previously stated, was from 17 to 30 times higher than the tax which would be imposed on a competing moving picture show operated indoors capable of or actually serving the same number of patrons or doing the same amount of gross business each year. This unreasonable discrimination in the tax imposed on one sub-classification of the statutory class of moving picture shows to the substantial tax advantage of actual or potential competitors with no reasonable justification for the different treatment clearly constitutes an abuse of the taxing power.

In reaching this result we are not unmindful of the fact that in the argument of respondents’ brief, but not in the points, there is a statement to the effect that at the time Ordinance No. 288 was adopted there were no indoor theaters in the City of St. Ann. The record does not establish that there was none at the time of filing the suit, or at the time of trial, and of course such a theater could be established in the city. Respondent makes no point whatever that the absence of an indoor theater in the City of St. Ann would remove all basis of objection to Ordinance No. 288 on the part of appellants. In any event, where the City did raise such a contention in a challenge to a city ordinance, this court overruled it, and ruled the ordinance void when proper to do so for other reasons. See City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040.

For the reasons above set forth, the judgment is reversed and the cause remanded for further proceedings according to the views herein expressed.

PER CURIAM.

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

WESTHUES, C. J., and STORCKMAN, LEEDY, HOLLINGSWORTH and HYDE, J J., concur.

EAGER and DALTON, JJ., dissent.


author: BARRETT, Commissioner.

text:
    Sylvia A. PETTUS, Appellant, v. Martha BERGER, Mary Brown, Edward Williams, Sanders Truck Line, Inc., and Davalee Bohnenkamp, Defendants, and Edward Williams and Sanders Truck Line, Inc., Respondents.
    No. 48710.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.
    Roberts & Roberts, by J. Richard Roberts, Farmington, for appellant.
    W. H. S. O’Brien, Festus, for respondents.
   BARRETT, Commissioner.

This action to recover damages for personal injuries arises out of a multiple motor vehicle collision. In the vicinity of Freedom Hall on Lemay Ferry Road, Highway 61 is a four-lane highway but the north and south traffic lanes are not separated by a median strip. Southbound traffic moves around a curve and then the highway is straight but downgrade. The highway was free of ice, for the most part, on March 17, 1960. But due to the slope of the highway and melting snow this particular strip of pavement was ice-covered for a distance of 300 to 400 feet by 8:30 in the evening. Mrs. Berger, driving a 1951 Buick automobile at a speed of 30 to 35 miles an hour, unexpectedly came upon the ice-covered pavement, applied her brakes and her automobile skidded to a stop in the southbound traffic lanes. Mrs. Brown, driving a 1954 Ford at a speed of 40 miles an hour, saw the headlights of Mrs. Berger’s Buick and intended to drive around it in the north traffic lanes, but her automobile skidded sideways on the ice, turned around and came to a stop partly on the right shoulder and partly on the pavement. Edward Williams, operating a tractor-trailer truck, came to this stretch of pavement anticipating ice and had slackened the speed of his vehicle from 40 to 10 or 15 miles an hour. Williams first saw the two automobiles across the southbound traffic lanes when he was 75 to 100 yards away and “tried to stop gradually, to avoid skid.” He applied his brakes “very lightly on and off” to avoid jackknifing the tractor-trailer, put the motor in third gear, and “fanned” his brakes finally intending to go around the automobiles in the northbound lanes. Nevertheless the truck skidded, just barely “tipped” one of the automobiles, and came to a stop in a straight line but across the two southbound lanes with the front wheels of the tractor extending into the inside lane of the northbound traffic lanes. The plaintiff, Sylvia Pettus, was a passenger in a 1957 Buick driven by her daughter, Davalee Bohnenkamp. Mrs. Bohnenkamp, unaware of the ice-covered pavement, came around the curve at a speed of approximately 50 miles an hour and first saw the automobiles and truck when she was “at least 300 feet away.” She too applied her brakes 'Jcsoftly” but the automobile swerved and she took her foot off of the brake pedal. According to Mrs. Bohnenkamp, the truck obstructed the third traffic lane. She saw that the fourth lane was “open” and, as she said, started for that lane but didn’t make it. There was another vehicle traveling north and she applied the brakes “with vigor and really put them on and held them on” and her automobile “slid sideways,” turned around and its rear end struck the corner of the truck.

Mrs. Pettus instituted this suit against Mrs. Berger, Mrs. Brown, Mrs. Bohnen-kamp, Edward Williams and Sanders Truck Line, Williams’ employer and the owner of the truck. Mrs. Pettus settled her claim against the three women defendants for $27,000 and the action has been dismissed as to them. Upon the trial of her claim for $200,000 damages against Williams and Sanders Truck Line a jury returned a verdict in favor of the defendants and Mrs. Pettus has appealed. And the sole assignment upon the appeal is that the court erred in giving instruction 6 because it “does not require a finding on all charges of negligence submitted in plaintiff’s verdict directing instruction.”

In substance the plaintiff claims that she hypothesized and submitted two grounds or theories of negligence, (1) Williams’ ability to have stopped the tractor-trailer in the outside southbound traffic lane, (2) the truck’s blocking three of the traffic lanes, and that the defendant in instruction 6 erroneously ignored one of these grounds and factually hypothesized or conversely directed a verdict upon a finding of but one of the grounds. Johnson v. St. Louis Public Service Co., (Mo.) 255 S.W.2d 815; Martin v. Lingle Refrigeration Co., (Mo.) 260 S.W.2d 562; Dulley v. Berkley, (Mo.) 304 S.W.2d 878, 884. Plaintiff’s instruction one contains the usual preliminary statements, then there is a recital that as Williams drove the truck in the southbound lane he saw or should have seen the two automobiles stopped on the pavement “in time thereafter, under the conditions of the highway then and there existing, with the means and appliances at hand and with safety to himself, the tractor and trailer he was driving and other vehicles on said highway, to have stopped the tractor and trailer in the outside southbound traffic lane and that he failed so to do, if you so find.” At this point in a thirty-seven line sentence there is a semicolon after the word “find” and there is no request or direction to the jury at this point to find that the hypothesized conduct was “negligent.” Following the semicolon the instruction continues, “and if you further find and believe from the evidence that Edward Williams propelled, drove or permitted the tractor and trailer he was driving to turn to the left on said highway and came to a stop, blocking the two southbound traffic lanes of said highway and a portion of the inside northbound traffic lane, if you so find; and if you further find that in permitting his tractor and trailer to get in such a position, if you so find it did get into such a position, was negligent, and if you further find and believe from the evidence that such negligence, if any, caused or contributed to cause * *

In the first place, it is indeed doubtful that plaintiff either as a matter of fact or intention submitted two grounds or hypotheses of negligence. In Coit v. Bentz, (Mo.) 348 S.W.2d 941, the plaintiff claimed to have submitted three separate grounds of specific negligence but the court said that the required and necessary finding of “negligence” referred only to two acts hypothesized as constituting a failure to exercise the highest degree of care and that the preceding recital in the instruction was “a mere statement of the evidentiary facts of the collision, preliminary to the specifications of negligence.” The court said that the claim of a submission of a third ground of negligence was an afterthought; “had plaintiff actually intended to submit it as such, he should certainly have required a finding that defendant, in causing and permitting his car to strike the rear end of plaintiff’s car, failed to exercise the highest degree of care and was negligent.” In this connection the court recommended McVey v. St. Louis Public Service Co., (Mo.) 336 S.W.2d 524, 526, “it required the further findings that in overtaking plaintiff’s automobile ‘defendant was thereby negligent’; and ‘that the defendant negligently and carelessly allowed its said motor bus to run into and collide with’ ” the rear end of the automobile in which plaintiff was riding. This may appear to be an unnecessary technicality, but here the plaintiff’s instruction does not in specific terms require the jury to find that Williams’ failure to stop in the outside lane constituted “negligence,” rather plainly it requires the jury to find that blocking the highway, permitting the truck “to get in such a position * * * was negligent.’’ If that is the fact plaintiff’s instruction did not submit two grounds of recovery and the defendant was not bound to hypothesize or converse both theories.

But, in the second place, if this view appears to be a strained construction and unsatisfying, there is a further reason upon this particular record that the plaintiff did not and could not submit two grounds of negligence. There was no evidence in this case to support the first hypothesis that Williams could have stopped the truck in the outside southbound traffic lane. From certain computations on a plat and an engineer’s observations, it is said that there is evidence that Williams could have seen the automobiles when he was 500 feet away rather than 300 feet when he and Mrs. Bohnenkamp said they first saw them. It may be that there is such evidence, but there was no testimony, expert or lay, as to the distance in which this truck could have been successfully stopped in the outside traffic lane under the admitted conditions of an ice-covered “slightly downhill” pavement. The fact that Williams did bring the truck to a stop in 300 feet does not support the further inference that he could have stopped in the outside southbound traffic lane in 500 feet because, notwithstanding that he did everything humanly possible, the truck nevertheless skidded on the ice, and, according to the proof of Mrs. Pettus, came to a stop in an unsafe place blocking three traffic lanes. The fact that Williams thus finally brought the truck to a stop in an unsafe place and manner does not prove that he would have had greater success in 500 feet. Since there was no evidentiary basis for the first hypothesis, the recital of the supposed facts would not constitute “negligence” and a ground of recovery and, of course, the defendants were entitled to ignore the hypothesis in their instructions. Boyce v. Donnellan, 237 Mo.App. 63, 73, 168 S.W.2d 120, 125.

Instruction 6 may be unusual in some respects, but the problem here is whether it is manifestly erroneous and demands the granting of a new trial. In greater detail and particularity the instruction hypothesizes the same general circumstances relied on by the plaintiff; it specifically sets forth the facts shown by the defendants’ evidence and requires a finding that in the described conditions and circumstances “Williams was at all times exercising the highest degree of care and was not negligent in any of the particulars set out in Instruction No. 1 submitted to you herein * * Whether characterized as a “true converse” instruction, or a mere submission of the defendants’ “side of the case,” it is not manifestly or reversibly erroneous for the reasons now urged. Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; Knox v. Weathers, 363 Mo. 1167, 1176, 257 S.W.2d 912, 917; Alberty v. Sunshine Biscuit Co., (Mo.) 321 S.W.2d 418. And, for the reasons indicated, the judgment is affirmed.

BOHLING and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    John A. ADAIR, Plaintiff-Respondent, v. John Van CLOUD, Defendant-Appellant.
    No. 48658.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      Miller, Fairman, Sanford, Carr & Low-ther, by J. Weston Miller, Mayte Boylan Hardie, Springfield, for appellant.
    Michael J. Bogutski, Kansas City, for respondent. Stinson, Mag, Thomson, Mc-Evers & Fizzell, Kansas City, of counsel.
   HOLMAN, Commissioner.

Jn this action plaintiff sought to recover damages from deferdant for the alleged wrongful death of his wife as the result of an automobile collision. The trial resulted in a verdict for plaintiff in the sum of $25,-000. Defendant has appealed from the ensuing judgment.

Plaintiff and his wife and their friends, Mr. and Mrs. Edward White, all lived in Atchison, Kansas. During the morning of October 9, 1959, these two couples left Atchison en route to Bull Shoals, Arkansas, on a fishing trip. The Whites were riding in their Buick car and the Adairs in their Ford station wagon. They met in Clinton, Missouri, for a late lunch and at that time it was agreed that plaintiff would ride the remainder of the way with Mr. White, and Mrs. White would ride with Mrs. Adair in the station wagon. They continued their journey with the station wagon following the Buick. Mr. White stated that the cars were traveling between 50 and 60 m. p. h. and that he kept the station wagon in his rear-vision mirror at all times. At Springfield they turned east on Highway 60 intending to proceed to Mansfield where they would turn south on Highway No. 5.

The collision here involved occurred near a “T” intersection where County Road “A” goes north from Highway 60 about a mile west of the small town of Diggins. At about that point the highway begins a long sweeping curve to the right. Edward White testified that the casualty occurred about 5 :55 p. m.; that it was getting dusk but he had not yet turned on his lights; that defendant’s car was approaching at a speed of about 55 m. p. h. in the westbound lane and when it was five or six car lengths away he saw that it was swerving toward his car; that he pulled his car toward the shoulder to avoid being struck by defendant’s car, although he couldn’t swear that his right wheels were actually on the shoulder when defendant passed; that at this point plaintiff said, “My God, he has hit the girls,” and he then looked in the rear-vision mirror and could see the cars in mid-air; that he then applied the brakes and stopped as quickly as possible and they ran back to the scene of the collision. Mr. White further testified that he would estimate that the station wagon was being driven 10 car lengths to the rear of his car; that he heard no horn sounded by anyone; that the time which elapsed between the time he saw defendant’s car veer to the south and the time he saw the cars in mid-air was one second.

Following the collision the station wagon came to rest south of the pavement facing north with its back end in the ditch. Defendant’s Imperial came to rest in the center of the highway headed south. The paved portion of the highway at that point was 20 feet wide with 9-foot shoulders on each side. The day was clear and the pavement dry. The damage to the station wagon indicated that it had been struck on the left side near the driver’s seat. A number of witnesses agreed that most of the debris was in the eastbound traffic lane. The point of collision was fixed by the highway patrolman at 45 feet east of the east edge of Highway “A”. As a result of the collision plaintiff’s wife was instantly killed and it appeared that Mrs. White was badly injured.

Plaintiff testified that he saw defendant’s car veer radically toward the White car and that Mr. White made “violent efforts” to avoid being struck by it; that he then looked back and saw defendant’s car hit the station wagon his wife was driving; that it was his best estimate that defendant’s car was from three to five feet south of the center line of the highway at the time it struck the station wagon. At that time the station wagon was pointing somewhat towards the right side but he didn’t believe any of it was on the shoulder; that it was his best estimate that the station wagon was from seven to eight car lengths behind the Buick at the time in question; that his wife was 43 years of age at the time of her death; that they had been married 17 years and had four sons ranging in age from eight to sixteen years.

Mr. L. C. Silvey testified that he was going east on Highway 60 about four or five car lengths ahead of Mr. White’s Buick; that just beyond Road “A” he met a car, and about 100 yards farther east he met a second car; that he then heard a screech of tires and looked in his rear-view mirror and saw that the car he had just met was trying to slow down or stop; that shortly thereafter he looked in his mirror again and saw there had been a collision; that defendant’s car was on its side of the road when defendant first began his efforts to stop.

Melvin Engelking stated that he was driving west on Highway 60 and when he reached a point one eighth of a mile east of Highway “A” he noticed the headlights, of a car behind him; that when he reached the east driveway of the filling station located on the northeast corner of the intersection he gave a hand signal for a right turn and then “let up on the gas,” slowed to about 15 m. p. h and turned right on Highway “A”; that when he had gone about two car lengths to the north he heard a crash and he then stopped his car and went to the scene of the collision. On cross-examination this witness testified that he had his lights on but that his taillight on the right side wasn’t working and his brake lights did not come on because he did not apply his brakes before making the turn.

Defendant testified that he was 72 years of age and lived in Springfield; that on the occasion in question he had made a business trip to West Plains and was returning home on Highway 60, driving westwardly at a rate of between 55 and 60 m. p. h.; that as he approached the point of collision he noticed a long line of eastbound traffic; that when he arrived at a point opposite the filling station his headlights disclosed an old black car about 50 feet ahead with no taillights burning; that “when I saw it I immediately applied my brakes, and in doing that, and in trying to stop as suddenly as I did, and to keep from hitting the car in front of me, the rear end of my car veered, turned sharply to my right, and when that happened it threw the front end of my car directly in the line of traffic that I was meeting.” When asked on cross-examination whether he would admit that his car was on the wrong side of the road defendant answered, “Well, I am not positive whether I got — how far it got in the eastbound lane, but, undoubtedly, it was in the eastbound lane.”

It was stipulated that the official records disclosed that the sun set on the day in question at 5:45 p. m. Other evidence will be stated in connection with our consideration of the points briefed.

Defendant contends that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence because plaintiff’s deceased wife was guilty of contributory negligence as a matter of law. In this connection he calls attention to White’s testimony to the effect that defendant’s car was five or six car lengths away when he first saw it coming toward him, and plaintiff’s testimony that the White car was seven or eight car lengths ahead of the station wagon. Defendant further assumes that an average car length is 20 feet. He then reasons that decedent had 240 feet (20' x 12 car lengths) in which to have turned onto the south shoulder after she reasonably could have seen that defendant was driving into the eastbound lane and thus could have avoided the collision. Defendant places great stress on the fact that White was able to swerve and avoid contact with defendant’s car and argues that that fact shows that decedent should easily have also been able to do so in the greater length of time she had in which to act.

In considering defendant’s contention that decedent was guilty of contributory negligence as a matter of law, we will view the evidence in the light most favorable to plaintiff. Also, we have in mind that defendant cannot prevail upon this point unless all reasonable minds can draw only one conclusion, namely, that decedent was guilty of negligence in failing to turn her car far enough to the right to avoid defendant’s oncoming car. When we view the evidence in the light of the principles stated we are convinced that decedent was not guilty of contributory negligence as a matter of law.

A number of witnesses testified to various distances in terms of car lengths but no witness specifically stated the number of feet in a car length. Defendant’s testimony indicates that he considered a car length to be about 10 feet, as he testified that when he saw the Engelking car its distance ahead “was about five or six car lengths, probably SO feet.” There is certainly no testimony to support the assumption of counsel in defendant’s brief that an average car length is 20 feet. In the absence of any evidence as to the length of an average car (except the obviously erroneous testimony of defendant) we will assume, for the purpose of discussion, that it is 18 feet.

Of course, the evidence most favorable to plaintiff is Mr. White’s testimony that one second elapsed between the time defendant’s car first started to veer to the south and the time of collision. If we allow the usual ¾ second for reaction time, decedent had only ¼ second in which to take effective action in avoiding the collision. Also, it may be inferred from defendant’s testimony that after the rear of his car skidded to his right the front end moved directly and sharply into the eastbound lane. It happened so quickly that he was not aware of the particular car he had collided with. However, even if we assume that decedent could have seen defendant’s car veering to the south when it was 216 feet (12 car lengths) away, she did not have much time in which to act. The combined speed of the two cars was closing the gap between them at the rate of 161 feet per second. Therefore, 121 feet was traversed during decedent’s reaction time. This left 95 feet, or %oths of a second for decedent to turn far enough to the right to avoid defendant’s car which had come to the center of the eastbound lane by collision time. There is evidence to indicate that she had started to turn at the time of the collision. In view of the foregoing, and the other facts and circumstances in evidence favorable to plaintiff, we do not hesitate to rule that decedent was not guilty of contributory negligence as a matter of law. The fact that Mr. White was able to avoid defendant’s car when it first started to veer to the south would not necessarily indicate that decedent should have been able to do so after the car had come farther into the eastbound lane.

In support of his contention defendant has principally relied upon the cases of Wininger v. Bennett, Mo.App., 104 S.W.2d 413; Adkins v. Boss, Mo.Sup., 290 S.W.2d 139, and Major v. Davenport, Mo.App., 306 S.W.2d 626. They are all clearly distinguishable from the case before us upon the factual situation involved. In each of those cases the plaintiff testified to facts indicating that he saw or should have seen the dangerous situation developing in time to have taken action to avoid a collision and failed to do so. In view of that testimony the court was perhaps warranted in holding that those plaintiffs were guilty of contributory negligence as a matter of law, although we note that the Win-inger case was sharply criticized in Moore v. Middlewest Freightways, Mo.Sup., 266 S.W.2d 578.

In the event we rule, as we have, that Mrs. Adair was not guilty of contributory negligence as a matter of law, the defendant alternatively contends that he was at least entitled to have the issue of her contributory negligence submitted to the jury and therefore the court erred in refusing to give Instruction No. 10 which would have submitted that issue. That instruction submitted decedent’s contributory negligence in two respects, i. e., that she could have avoided the collision “by sounding a warning or turning to the side.” We need not determine whether there was any substantial evidence which would have supported a submission of decedent’s negligence in failing to turn onto the south shoulder. This for the reason that the instruction was erroneous in disjunctively submitting failure to sound a warning and hence the court properly refused the instruction. We have often said that when several assignments are submitted disjunctively, and one of the assignments submitted is erroneous, the instruction is erroneous because the verdict may have been based upon the erroneous submission. Beckwith v. Standard Oil Co., Mo.Sup., 281 S.W.2d 852.

In order for the negligence of Mrs. Adair to bar plaintiff’s recovery such negligence must have contributed to cause the collision, i. e., it must have been a direct cause of the collision in the absence of which the collision would not have occurred. Under the evidence in this case the failure of decedent to sound a warning could not possibly have been a proximate cause of the collision. Defendant testified that he had seen the line of approaching traffic. The collision occurred when defendant tried to stop his car suddenly in order to avoid hitting the car ahead of him and in so doing lost control of the movement of his car with the result that it was thrown into or veered into the station wagon in the eastbound lane. It is a fair inference from defendant’s testimony that after the rear end of his car skidded around to the north he was doing everything in his power to keep his car in the westbound traffic lane and thus to have avoided going into the line of approaching traffic. Under those circumstances a warning from decedent would have accomplished nothing. It would have given defendant no knowledge he did not already have. In no way could it have caused defendant to avoid the collision. Since there was no evidence to support a finding of causal connection the submission of the instant assignment of contributory negligence would have been error and, as stated, the court properly refused the instruction. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961 [5]; Fann v. Farmer, Mo.App., 289 S.W.2d 144 [10].

The next point briefed is that the court erred in giving Instruction No. 1 at the request of plaintiff because it was “a misdirection of law and confusing, misleading and prejudicial in the case because it improperly defined the highest degree of care required of the defendant.” It reads as follows: “The court instructs the jury that ‘negligence’ as used in these instructions with reference to the defendant means the failure, if any, to use the highest degree of care. ‘Highest degree of care’ as used in these instructions means the highest practicable degree of. care which a very prudent person would use under the same or similar facts and circumstances as shown in the evidence.”

We will not rule this point on the merits because we have concluded that it has not been preserved for appellate review. Defendant made only a general objection to this instruction at the trial. Civil Rule 79.03, V.A.M.R., provides, in part, as follows : “If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.” In his motion for new trial defendant complained of Instruction No. 1 in the following manner: “(a) Instruction No. 1 given by the court at the request of plaintiff is an abstract statement of law. (b) Instruction No. 1 given by the court at the request of the plaintiff, and particularly the first paragraph thereof, gave the jury roving commission to find negligence on the part of the defendant, (c) Instruction No. 1, particularly when taken in connection with Instruction No. 2, gave the jury a roving commission without limitation and without the issues to find negligence on the part of the defendant and such instruction taken in connection with Instruction No. 2 went beyond the pleadings in this cause.” (Instruction No. 2 was plaintiff’s main verdict-directing instruction which submitted defendant’s negligence in driving onto the left half of the roadway.)

As indicated, the point briefed by defendant in this court is that the instruc-ion was erroneous because it improperly defined the highest degree of care. More specifically, the brief recites that it required of defendant “not only that he exercise the care which a very prudent person would use under the same or similar facts but further required an extra degree of care, that is, the highest practicable degree of care which a very prudent person would use.” The defendant did not include this specific objection in his motion for a new trial and hence the point is not preserved for our review. Sullivan v. Hanley, Mo.App., 347 S.W.2d 710.

The final point briefed by defendant is that the trial court erred in failing to grant him a new trial because of the cumulative prejudicial effect of the efforts of plaintiff’s counsel in seeking, in a number of instances, to inject improper evidence into the trial. The first incident occurred during plaintiff’s examination of the highway patrolman, as follows: “Q. Did you make any arrests? A. Yes, sir. Mr. Miller: Just a minute: if Your Honor please, they know that is a highly improper thing to inquire into, and we ask that counsel be reprimanded even to inquire into it—and he knows better—and that has no part in this case. The Court: Objection will be sustained. Mr. Bogutski: I beg your pardon, Your Honor. I will apologize to Mr. Miller. I am sorry.” It will be noted that the objection was made after the witness had answered and it was sustained. Defendant did not move to strike but did ask that plaintiff’s counsel be reprimanded. The court did not err in failing to reprimand counsel. Such matters are discretionary and in this case a reprimand was obviously unnecessary because plaintiff’s attorney, in effect, confessed his error and apologized in the presence of the jury for having asked the question.

The next incident occurred during the cross-examination of defendant, as follows : “Q. (by Mr. Bogutski): Mr. Cloud, were you convicted of careless and reckless driving by the Magistrate Court of Webster County, Missouri, as a result of a charge brought against you in this accident, in this collision? Mr. Miller: We object to that for the reason that counsel knows that he wasn’t convicted — The Court: Objection will be sustained. Mr. Miller: — and I ask that counsel be reprimanded for again bringing it up, when he was not convicted. And he knows that it would be an improper way to prove it, if he was.” It will be noted that the court sustained the objection and the question was not answered. The court did not reprimand plaintiff’s counsel but in a discussion outside the presence of the jury counsel indicated his good faith in asking the question by pointing out that defendant had been arrested and had forfeited his appearance bond and that under the provisions of Section 302.010(4) RSMo 1959, V.A.M.S., a forfeiture of bail is equivalent to a conviction. Under the circumstances we rule that the failure of the court to reprimand plaintiff’s attorney was not prejudicial error.

The final complaint under this point is stated in the brief as follows: “Defendant also urges that he was prejudiced by the testimony of plaintiff’s witness White with respect to the emotional relationship of plaintiff and his deceased wife and plaintiff’s testimony with respect to their love and his loneliness, and to his lack of any immediate family in the vicinity of his home, because such testimony was irrelevant to any issues in the case and was calculated only to appeal to the prejudices, sympathies and passions of the jury.” We have searched the testimony of Mr. White and do not find any testimony concerning the emotional relationship between plaintiff and his deceased wife. In regard to plaintiff’s reference to his loneliness and the fact that he and his deceased wife had no relatives in the vicinity of Atchison (to assist in rearing his children) the court sustained defendant’s objection in each instance and directed the jury to disregard the testimony. We deem that action sufficient to erase any prejudicial effect that might otherwise have resulted from the testimony. Pender v. Foeste, Mo.Sup., 329 S.W.2d 656. Plaintiff was permitted to testify that he and his wife loved each other. We need not determine the admissibility of that testimony because, in any event, no prejudicial error resulted as the jury was clearly instructed that plaintiff was only entitled to recover his pecuniary loss on account of the death of his wife and could not recover for his grief or mental anguish. Moreover, it will be noted that defendant has not complained of the instructions on damages, nor does he contend that the verdict was excessive.

Considered either separately or collectively the matters complained of under this point did not constitute prejudicial error.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.