author: COIL, Commissioner.

text:
    Delphia Audra PYLES, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
    No. 49943.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      James Ruddy, St. Louis, for appellant.
    James F. Koester, St. Louis, for plaintiff-respondent.
   COIL, Commissioner.

Delphia Pyles was riding- in one of St. Louis Public Service Company’s buses which was stationary to discharge passengers. It was struck in the rear by the front of another of that company’s buses. The jury awarded her $25,000 as damages and the company has appealed from the ensuing judgment.

Appellant here contends that the trial court erred: in giving respondent’s damage instruction; in overruling appellant’s objection to a portion of plaintiff’s counsel’s argument; and in admitting testimony as to respondent’s children. Appellant also contends that the judgment “was so grossly excessive that it should shock the conscience of the court and be conclusive proof of the fact that it was the result of passion and prejudice on the part of the jury and of misconduct on their part toward the defendant.”

Respondent’s damage instruction told the jury that if it found for her, then in assessing her damages, “you will allow her such sums as you find and believe from the evidence will fully, fairly and reasonably compensate her” for as many of the four listed items of damages as the jury found she had sustained.

Appellant contends that the instruction “erroneously allowed duplicate compensation” because it “directed,” i. e., told the jury “you will allow” damages for the listed items. Appellant does not contend that there was any overlapping of the four listed items or that each of the four was not properly submitted or that there was no evidence to support each item. Appellant’s sole argument is that it is improper for an instruction to tell a jury that it “will allow” damages for certain specified items if it finds for respondent and further finds that she sustained damages in the specified particulars. The statement of the proposition indicates that it is fallacious. It is apparent that such an instruction does not allow double damages.

Counsel in jury argument pointed out that prior to the accident respondent had worked every day for years; that she was hard working and regularly employed; that she had not worked since the accident; that she needed to work else she would not have been working. He then said, “You saw the photographs, and you know that she is not living in a wealthy neighborhood—

“[Appellant’s Counsel]: I object-to1 that as being an improper type argument, your Honor, going behind [beyond] the scope of the evidence.

“The Court: Overruled.

“[Respondent’s Counsel] : I believe that you can surmise from the graphic evidence that was brought forth by the St. Louis Public Service Company that she is not in a neighborhood of wealth, at any rate, and that she was on a job because she had to be on a job, and because she needed to work every day, and that is why she was working every day.”

Appellant contends the trial court erred in overruling the objection set forth above. Appellant had introduced in evidence some moving pictures purporting to show the activities of respondent in and about her premises.

It is true that a showing of poverty as such is ordinarily not material to the issues in a damage suit and consequently evidence of such should be excluded. Conrad v. Twin Oaks, Inc., Mo.App., 344 S.W.2d 286, 288 [1]. As we see it, however, the argument here was not a reference to respondent’s poverty, as such, but was simply by way of attempting to convince the jury that respondent could not afford to loaf and would be back on her job if her physical condition permitted it. Certainly such is one reasonable interpretation of the argument in question, but even if the relatively unimportant remark should have been excluded, the failure of the trial court to so do could not have constituted reversible error.

Appellant next contends that the trial court erred in failing to sustain its objection to respondent’s testimony that “her daughter was in the hospital and in failing to declare a mistrial when plaintiff on direct examination testified she was unable to sew for her children,” on the ground that those arguments were inflammatory and prejudicial. We note in passing that the record does not precisely support the point made in the brief. The record shows that when respondent was testifying as to the doctor she had called after the accident, she was asked whether she had known that doctor before and whether he was recommended by someone. She answered, “Yes, sir, a friend of mine had recommended me to Doctor Pennington as being a good doctor, and then I had a daughter that was in the hospital and he was her doctor.” An objection was, “I object to that last as immaterial, about her daughter being in the hospital, it has no bearing on the issues in this lawsuit.” (There was no objection on the ground that the answer improperly showed or attempted to show the size of respondent’s family, and the court’s response at the time he overruled the obj ection showed that he did not understand that such was the basis of the objection.) In the motion for new trial appellant assigned as error the failure of the trial court to declare a mistrial because plaintiff mentioned that her daughter had been confined in a hospital; and there was no new trial assignment concerning the admission of respondent’s testimony that she was unable as a result of her injury to sew for her children.

Be that as it may, however, in describing the result of her injuries respondent said, “Well, I just hurt all the time. I am just not able to do anything like a woman should do her housework, I can’t do half the work I should do. I can’t do no ironing, and if I hang up three or four pieces of clothes, I have to quit, I can’t hang up clothes, and if I sweep my house all the way through, I have got to go lay down, I hardly ever to it because I just can’t do it, and I have tried to sew, just mending clothes for the ■ children, and I can’t do it.”

After a following question had been asked, appellant’s counsel moved for a mistrial on the ground that by the foregoing testimony respondent was improperly disclosing the fact that she had children.

It is true, of course, that the number of children respondent had was not relevant to any issue in the case and if testimony purposes to disclose the size of a litigant’s family, it usually should not be admitted. In the present case it does not seem likely that respondent, either in referring to the fact that her daughter’s doctor was the one she called, or in describing the results of her disability, intended to disclose the size of her family or that she was, by her answers, trying to elicit the sympathy of the jury. But in any event, the noted incidents, standing alone or taken together, were minor and could not have affected the merits of this action; nor do those two incidents, when considered with the alleged improper argument as to “not living in a wealthy neighborhood,” demonstrate reversible error.

The meritorious question on this appeal is whether the verdict is excessive. Appellant’s point in its brief is that the judgment is “so grossly excessive that it should shock the conscience of the court and be conclusive proof of the fact that it was the result of passion and prejudice on the part of the jury and of misconduct on their part toward the defendant. The defendant should have a new trial, or, in the. alternative, a substantial remittitur should be ordered.”

Although the point is not properly made (nowhere in the points relied on is it stated that the verdict is excessive), we shall consider that appellant is contending that the verdict is excessive as well as that it is so excessive as to indicate passion and prejudice and misconduct on the part of the jury. We call attention to the fact that the points are not the same and that one does not include the other. Taylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608, 612 [7-9].

We state the evidence as to injury and damage from a standpoint favorable to respondent. Respondent was 53 when injured on March 7, 1961. She was employed as a sewing machine operator. She was on her way to work about 7:30 in the morning when the northbound bus in which she was riding stopped on the Twelfth Street viaduct to discharge passengers. Another of appellant’s buses ran into the rear of the bus in which she was sitting, causing her to go back and forth twice, her back struck the edge of the seat, her neck was jerked, and she experienced immediate pain. She went to work after the accident where she became nauseated and, although she stayed at work, she was unable to accomplish much. That evening she called a doctor who made arrangements for her to enter Missouri Pacific Hospital that night, where she remained for fourteen days. Upon entry, she had pain in her back, neck, and leg. After discharge from that hospital, where her treatment consisted of complete bed rest, she saw the same doctor twice more and then consulted a neurosurgeon who, in May 1961, performed a myelo-gram on her at the Missouri Baptist Hospital where she was hospitalized for three days for that purpose. She testified further that the test was painful, made her ill, and caused her to suffer severe headaches. Thereafter, in June 1961, again at the Missouri Baptist Hospital, the same neurosurgeon performed a discogram in an attempt to aid in further diagnosis. The process by which the discogram was done was an extremely painful one. The neurosurgeon recommended that she have an operation for the removal of a disc or discs from her cervical spine. She thereafter last saw the neurosurgeon in the fall of 1961.

Respondent testified further that prior to the accident she was in good physical condition and had worked regularly; that she had been unable to work since the accident except for an attempt to do housework; that the usual housework tasks caused her to tire quickly and made frequent rests necessary; that she hurt all the time; that she used liniment and various pills for pain; that her back was some better but still bothered her; that her neck was worse and often swelled; that at times she could not use her right arm; that at times her right leg bothered her and the pain radiating down her leg had for a while caused her to drag her foot; that she had used a cane off and on for almost a year; that it hurt when she worked her neck from side to side; that sometimes she could hardly get up.

The evidence showed that at the time of the accident respondent was making $1.12 per hour; that she was on piecework; that in 1960 there were six paydays on which she received in excess of $50 a week net and that on the other paydays she received less than $50 a week. Her hospital and doctor bills amounted to $936 and at trial time she had lost wages in excess of $2,400.

Doctor Pennington saw respondent on March 8 after she was admitted to the hospital at his direction. He found muscle spasm in the lumbar area of the back symp-tomized by extreme pain. He prescribed complete rest on a stiff bed. He called in another doctor to deal, if necessary, with a diabetic problem which had nothing to do with this accident. Mrs. Pyles was released from the hospital March 21. After her release he again examined her and found that she continued to have spasm of the low back muscles, greater on the left side, and tenderness in the area of the third and fourth lumbar vertebrae. He found no limitation of motion in her back. He examined her two weeks later and she complained of soreness on her left side near the left sacroiliac joint. He last saw her on April 14, 1961.

Dr. Schaerer, a neurosurgeon, examined respondent on April 26, 1961, and found an increased curvature forward of the low back area with palpable spasms of the muscles concerned, particularly on the left side, a lumbar sacral tenderness with pain radiating to the calf of the right leg upon deep pressure; that the right ankle jerk was diminished and there was diminished sensation to pinprick over the outside of the left foot; that a tender spot existed over the upper medial angle of the right shoulder blade and there was limitation of motion of the right shoulder joint; that there was tenderness over the lower portion of the cervical spine in front and tenderness of certain muscles on the right. He performed a myelogram on Mrs. Pyles in May 1961, and in June did a discogram. He described both processes. In performing a discogram he inserted dye, by means of a very fine needle, into the central portion of the disc in question; if the disc was in good condition and position, the dye would stay in the central portion around the needle point; if there was a tear in the disc the dye would follow the tear into the disc’s periphery. In some cases the dye would outline a herniated piece of disc and in others would only indicate that there was a tear. The doctor said that if the disc was normal this process would be essentially painless, while if the disc was torn or herniated the process would produce the same kind of pain the patient had been having as a result of the herniated disc. ■ Based upon the myelogram and the discogram, the doctor’s final diagnosis was that appellant had ruptured cervical discs at C4-5 and C5-6; that he did not determine whether there was a ruptured disc at C3-4 because the discogram procedure had by then become so painful to respondent that he could not pursue it further.

The doctor was of the opinion that respondent was permanently injured by reason of these ruptured discs; that the only thing that would have a chance to give her relief would be the removal of the discs followed by a bony fusion of the vertebrae to eliminate the abnormal motility which was present. He recommended such an operation in this case but said there was no assurance that it would be successful; that he has obtained good results from such procedure in about 80 per cent of the cases operated ; that he could not offer any medical treatment which would give relief; that his charge for the operation would be $1,-500; that in his opinion respondent is unable at present to do any lifting on an eight-hour-a-day job of the type at which she was working at the time of the injury; that even if she had the operation, she would not be able to work steadily at such a job; that she would have pain and suffering in the future.

We need not here again set forth the many factors we consider in attempting to reach a reasonable conclusion as to whether a certain judgment is excessive. Suffice it to say in this case that we have examined the cases cited by the parties in support of their respective positions, as well as other cases. We have noted the fact that the trial judge overruled appellant’s motion for new trial which contained both the grounds that the verdict was excessive and was so excessive as to indicate prejudice and misconduct on the part of the jury. We have considered that respondent’s special damage to trial time was about $3,400. We have recognized that respondent was a wage earner, earning about $180 per month, whose future earning capacity is impaired, the extent of such impairment being speculative, in that it apparently depends upon whether she is operated and, if so, the result thereof. We have found the cases of Riggs v. Metcalf, Mo., 315 S.W.2d 791, 796-801, and Chambers v. Missouri Pacific R. Co., Mo., 356 S.W.2d 64, 69, 70 (and cases therein cited), particularly helpful in reaching a conclusion in this case.

We have reached the conclusion that we should not be justified in holding that the judgment herein is excessive. It follows that we need not notice further appellant’s contention that the size of the verdict should be “conclusive proof” that it resulted from the jury’s prejudice and misconduct.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Jewel RAUSCHELBACH and Loran R. Rauschelbach, (Plaintiffs) Appellants, v. A. v. BENINCASA and Jean J. Merz, Defendants, Jean J. Merz, (Defendant) Respondent.
    No. 49884.
    Supreme Court of Missouri, Division No. 1.
    Nov. 11, 1963.

      Guilfoil, Caruthers, Symington & Mon-trey, ' John P. Montrey, St. Louis,' for (plaintiffs) appellants.
    Robert W. Henry, Clayton, for defendant, Jean J. Merz (respondent).
   WELBORN, Commissioner.

Jewel and Loran R. Rauschelbach, husband and wife, instituted this action against Dr. A. V. Benincasa and Dr. Jean J. Merz for damages for injuries which were alleged to have resulted from negligence of the defendants in the performance of a surgical operation on Jewel Rauschelbach. In Count I of the petition, Jewel sought damages in the amount of $50,000 and in Count II, her husband asked damages of $10,000.

At the trial, a motion for directed verdict as to Doctor Benincasa was sustained at the conclusion of the plaintiffs’ opening statement. No objection to that action is here involved. The claim against Doctor Merz was submitted to a jury which returned a verdict in his favor upon both counts of the petition. After an unavailing motion for new trial, the plaintiffs appealed to this court. We have jurisdiction of the appeal because of the amount in controversy. In this opinion, the parties will be referred to as they appeared in the trial court.

Plaintiff Jewel Rauschelbach entered Faith Hospital in St. Louis on January 8, 1959, as a patient of Doctor Benincasa, a general practitioner “tending towards general surgery j”,. to undergo a'hysterectomy. Prior to her admission, she had no abnormality in her voice. An examination by Doctor Benincasa, after her admission to the hospital and prior to the surgery, revealed no vocal abnormality and no upper respiratory disorder.

Jewel was taken to the operating room at Faith Hospital on the morning of January 9. There Doctor Merz, the head of the Department of Anesthesiology at the hospital, administered anesthesia by endo-tracheal intubation. In such procedure, the patient is placed on the operating table and a blood pressure cuff placed on one arm. A glucose solution is started dripping in the other arm. The patient is then given a dose of sodium pentothal through the intravenous drip which induces unconsciousness. The patient is also given a relaxant drug. After the relaxant drug has become effective, a laryngoscope is introduced into the patient’s mouth. This instrument is described as “nothing more than a tongue depressor with a handle at one end and a small electric light bulb at the other.” By the use of such instrument, the tongue of the patient is lifted to the left, out of the operator’s line of vision so that the vocal cords are visible to him. When the vocal cords are visible, the operator, holding the laryngoscope in his left hand, inserts the endotracheal tube into the opening between the vocal cords. •

A tube of soft rubber was employed in this case. The tubes are of varying lengths and diameters, for patients of varying ages and sizes. In use, the end inserted between the vocal cords extends to approximately 2 inches below the vocal cords and into the larynx at the opening of the trachea. The other end is, in an oral insertion, as in this case, at the patient’s lips. That end is connected to the gas machine which transmits, through the tube, the anesthetic agent.

In inserting a rubber tube, such as was employed in this case, a stylet, or metal wire, is inserted into the cavity of the tube to guide -it and to.-give it rigidity during the insertion. Such dfevice was:useddn-this case. It protrudes from the end at which the operator is working and, according to Doctor Merz, the one used here is designed with a handle to prevent its protruding from the interior end of the tube. In the insertion of the tube, the end inserted into the trachea is lubricated with a sterile lubricant jelly. No pressure is required to insert the tube in place. The entire insertion procedure requires approximately 3 minutes. At the conclusion of the operation, the tube is removed by simply withdrawing it.

According to witnesses in the case, this technique is widely employed in serious operations or operations of more than an hour’s duration. Doctor Merz estimated that in major surgery 75 to 80 per cent of the cases are intubated. He estimated that he had employed the technique more than 10,000 times.

In this case, a resident administered the sodium pentothal and then Doctor Merz inserted the tube. He observed the vocal cords at that time and noted no abnormality. The operation, which was performed by Doctor Benincasa, lasted approximately 2Y2 hours. At its conclusion, Doctor Merz removed the tube.

No witness testified to any untoward occurrence during the operation. The patient did not cough, did not vomit, or move her head. After the operation, the patient was taken to the recovery room. There she, according to the nurse’s notes, “vomited some blood clots.” The notes following this entry stated “(patient was intubated).”

Although Jewel testified that she first noticed a pain in her throat the day after the operation, the hospital record indicated that, some time subsequent to the operation and on the same day, Doctor Libenow, the resident who had injected the sodium pentothal in the anesthesia procedure, directed “pondets, 3-4 hours, PRN for sore throat.”

On the day following the operation, Jewel complained to Doctor Benincasa concerning the pain in her throat and he made a notation in her hospital record on that date: “throat sore.” She continued to complain of soreness in her throat and Doctor Benincasa, on January 12, made an entry in her record: “some hoarseness— voice.” Under the date, January 18, an entry appears in her hospital record: “patient had irritation of vocal cords which has persisted. J. Merz."

According to Jewel, the pain in her throat persisted for from 3 to 5 days following the operation. After a few days, her voice became raspy and its volume was much less than it had been prior to the operation. She was discharged from the hospital on January 20.

After her discharge from the hospital, Jewel’s voice continued to be weak and rasping. She apparently saw Doctor Benincasa concerning the condition of her voice on several occasions. He stated, however, that he at no time examined her vocal cords because that was “not in his line of practice.’’ She also consulted two other doctors who specialized in diseases of the ear, nose and throat, but who did not testify at the trial.

The first examination after the operation of her vocal cords, concerning which any evidence appears, was made on June 3,1959. At that time, Jewel was examined by Dr. William T. K. Bryan, a diplómate of the American Board of Otolaryngology and Assistant Professor of Otolaryngology at Washington University. Upon examination, Doctor Bryan found that she had a rough, hoarse voice. He observed a redness of her left vocal cord and that the movement of that cord was not complete. Doctor Bryan saw Jewel again on August 15, 1959. At that time, he made a note concerning her left vocal cord — “almost none.” On March 24, 1962, Doctor Bryan again saw her. Her voice, at that time, was still hoarse and the left vocal cord remained concave, narrow in shape and at a lower level than the right. According to Doctor Bryan, the speech difficulty arose from the defect in the size and position of the left vocal cord.

At the request of the defendant, Jewel, on April 8, 1961, was examined by Dr. Joseph Ogura, a physician specializing in head and neck surgery and reparative work, and Professor of Otolaryngology at Washington University. According to his examination, the functioning portion of the left vocal cord was bowed outward and thin, although it moved as vigorously as the right. However, when the patient “phonated, the left vocal cord did not meet the right vocal cord in the normal vibrating position; and this, obviously, created a gap in between the two functioning portions of the cord because the right was normal and the left one was thin and atrophic.” He attributed the abnormality of her voice to the condition of the left vocal cord which he described.

Plaintiffs’ petition charged generally that the defendant “negligently, carelessly and unskillfully administered * * * tracheal anesthesia,” and thereby caused injury to plaintiff Jewel Rauschelbach’s left vocal cord and impaired its functioning. Their verdict-directing instruction, after setting forth the standard of care for physicians, and hypothesizing preliminary matters, called for the jury to find for plaintiffs “if you find that in the insertion of said [anesthetic] device or devices into her trachea defendant Merz so handled or manipulated said anesthetic device or devices as to cause injury to plaintiff Jewel Rauschelbach’s left vocal cord, and if you find that in so handling or manipulating said device or devices, if so, defendant Merz was negligent, and that such negligence, if any, directly or proximately caused” the injury to the left vocal cord of plaintiff.

The evidence would have fully supported a finding that the volume of Jewel’s voice was diminished and that it was hoarse and rasping following the operation and at the time of trial, and that the vocal difficulties arose from the impaired functioning of the left vocal cord. The vital question on this appeal is whether or not the evidence made a submissible case on the question of defendant’s negligence as the cause of the injury to the left vocal cord. The defendant asserts that it did not and that the judgment of the trial court should, therefore, be affirmed, without regard for the errors alleged by plaintiffs.

Plaintiffs acknowledge that their case is based upon circumstantial proof of the defendant’s negligence. Their theory of such proof, as set forth in their brief, is as follows:

“Plaintiffs’ evidence showed that her vocal cords were completely normal before the insertion of the device. Dr. Benincasa’s examination before surgery proved this, as did defendant’s own examination. Immediately following the surgery, she developed a sore throat and a raspy voice with low volume. Pondets were prescribed for her sore throat. She vomited blood clots which certainly could not be related to the hysterectomy.
“The only contact with her vocal cords during surgery was by means of the endot/iracheal tube and stylet used by defendant. There was a multitude of evidence of the capacity of this kind of device to injure a vocal cord, if used improperly. See, for example, Dr. Ogura’s testimony, Dr. Benincasa’s testimony and the interesting cross-examination of defendant with reference to authoritative literature on the subject.
“The evidence also showed that there was no movement of her person nor unusual occurrence during her anesthesia which would have caused the endot/iracheal tube to come into sudden contact with the vocal cords.
“These circumstantial facts, when coupled with the undisputed injured condition of her vocal cord after the surgery, warranted the submission to the jury of a finding that defendant negligently inserted these devices. This finding, however, necessarily was based upon the circumstantial evidence outlined above, and not upon any direct testimony.”

The standard of care imposed upon the defendant in a malpractice case has been stated as follows: “The defendant was required to use and exercise that degree of care, skill, and proficiency which is commonly exercised by the ordinarily skillful, careful, and prudent physician and surgeon engaged in similar practice under the same or similar conditions. It is not sufficient that he may have possessed the requisite training and skill; he must also have used and applied it in the treatment of the plaintiff.” Steele v. Woods, Mo.Sup., 327 S.W.2d 187, 196. See also Williams v. Chamberlain, Mo.Sup., 316 S.W.2d 505, 510. That standard applies to persons who administer anesthetics in the course of medical treatment. Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172; Ingram v. Poston, Mo.App., 260 S.W. 773; Mitchell v. Poole, 229 Mo.App. 1, 68 S.W.2d 833; Annotation, “Malpractice: duty and liability of anesthetist,” 53 A.L.R.2d 142, 144. In malpractice actions, the plaintiff has the burden of proving defendant’s failure to meet this standard of care. Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920, 928; Williams v. Chamberlain, Mo.Sup., 316 S.W.2d 505, supra.

As in other types of negligence cases (Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87), the defendant’s negligence in a malpractice case may be proved by circumstantial evidence. Stallman v. Robinson, 364 Mo. 275, 260 S.W. 2d. 743, 749; Eichholz v. Poe, Mo.Sup., 217 S.W. 282, 284; Hilton v. Mudd, Mo.App., 174 S.W.2d 31, 36. In some types of malpractice actions, the plaintiff’s case may be submitted to the jury, where he has alleged negligence generally, and the evidence has shown súch an occurrence or injury as the' lay juror can determine would not likely happen in the exercise of ordinary care and skill. The most frequent cases of this type are those in which a foreign object is discovered in the patient’s body following surgery. Among such cases are Null v. Stewart, Mo.Sup., 78 S.W.2d 75; Hilton v. Mudd, Mo.App., 174 S.W.2d 31, supra; Ingram v. Poston, Mo.App., 260 S.W. 773, supra; Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659. In such cases, the jury may draw the inference of negligence even in the absence of expert medical testimony as to the ordinary practice and skill in the community. Eichholz v. Poe, Mo.Sup., 217 S.W. 282; Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659. Similar consideration has been accorded plaintiffs in cases involving injuries which occurred in an area remote from the operative treatment. Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938. For further discussion of the employment of inferences in proof of negligence in malpractice, see Comment, “Malpractice Recovery in Missouri and Elsewhere upon General Negligence Allegations,” 23 Mo.Law Rev. 203; Note, “The Law of Medical Malpractice in Missouri,” W.U.L.Q., June, 1962, 402, 425.

Here, however, we- have a case in which the average lay juror would obviously b.e unable, of his own knowledge and general experience, to determine whether or not the injury complained of would have happened in the absence of negligence. Although the injury was remote from the scene of the principal operation, yet the vocal cords were necessarily involved in the administration of the anesthesia, which is really the subject of this action. Therefore, we do not have a simple case of going into the operation with a healthy organ or tissue in some other part of the body, which obviously should not be involved in the operative process, and coming out with a damaged or unhealthy one. The plaintiffs obviously recognized this, for the entire thrust of their medical testimony was toward showing the unusual nature of the result in this case. Such showing was, of necessity, by medical testimony.

In determining whether or not a submissible case was made, we, of course, view the evidence in the light most favorable to plaintiffs, giving them the benefit of all favorable inferences and disregarding defendant’s evidence, except insofar as it might be favorable to plaintiffs. Chailland v. Smiley, Mo.Sup., 363 S.W.2d 619; Hall v. Rager, Mo.Sup., 357 S.W.2d 83. The evidence would be sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Steele v. Woods, Mo. Sup., 327 S.W.2d 187, n195; Lindsay v. Wille, Mo.Sup., 348 S.W.2d 1, 4; Frese v. Wells, Mo.Sup., 40 S.W.2d 652, 654. However, if under the evidence viewed most favorably to plaintiffs, the question of negligence can be determined only by resort to conjecture and surmise (Pedigo v. Roseberry, 340 Mo.724, 102 S.W.2d 600), the plaintiffs failed to make a submissible case.

We start from the basic fact of an unquestionable injury to Jewel’s left vocal cord. Prior to the intubation, she had no vocal difficulty. Thereafter, she did. The evidence excluded any contact with her vocal cords by any instrumentality during her hospitalization other than in the intubation. The testimony of Doctor Benincasa and of the defendant excluded any untoward event during the operation which might have caused injury to the vocal cords, such as coughing, a sudden jerking of the head, vomiting with the tube in place, and laryngeal spasm. The medical testimony definitely related the condition to the intubation. However, the mere fact that the injury was related to the process does not, by and of itself, prove that the defendant was negligent in inserting or manipulating the tube. Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172.

Plaintiffs’ medical testimony did show that, in the great many intubation cases with which their witnesses were familiar, none had seen a case in which the patient had been affected as Jewel was in this case. The defendant testified that he had- conducted this technique ten thousand times, but he had never seen a case such as the plaintiff’s. However, plaintiffs’ three medical witnesses all testified that some irritation of the vocal cords occurs from the mere presence of the tube during a lengthy operation and that a painful throat of several days’ duration often occurs in in-tubation, without regard for the skill or care of the anesthetist.

Doctor Bryan, an otolaryngologist, was asked by way of a hypothetical question, posing the facts of Jewel’s experience, whether or not he had an opinion that the condition of the cord which he' found was the result of a forceful trauma or injury. His response was: “The only trauma we know — that I know of is the introduction of the tube * * * and that could have caused that condition.” However, on cross-examination, it was brought out that the “injury” of which he spoke was not necessarily the result of force and that it might or might not be related to the work of the physician who inserted the tube.

When Doctor Bryan was asked whether or not he was able to say that the condition which he found was caused by things which the doctor inserting the tube had nothing to do with or the things he had something to do with, he replied, “Not quite.” He explained his uncertainty on the basis that “the few larynges I have examined damaged by insertion of tubes or by having the tube in place were bilateral. They were not unilateral.” However, he acknowledged that the original injury to Jewel might have been bilateral, with the right cord having cleared up prior to the time that he first saw her, six months after the operation. Doctor Ogura, also an otolaryngologist who testified for plaintiffs found no significance from the fact that the condition was unilateral. Doctor Ogura explained: “In the first place, you can have swelling on both sides and you can have changes only progress on one side depending how much it is.”

Perhaps the most favorable testimony for plaintiffs came from ■ Doctor Ogura. His •deposition was read into evidence on behalf of the plaintiffs. In the deposition, in questioning by plaintiffs’ counsel, the following appears:

“Q Assume that Mrs. Rauschelbach was in a deep plane of anesthesia all throughout the presence of this tube and assume that you watched throughout the operation and that she did not cough, that she uttered no sounds, that she showed no evidence of any laryngeal spasm and that she was motionless and her conduct was uneventful, so to speak throughout the presence of the tube, would those factors tend to mitigate against this injury being from the mere presence of the tube ?
"A Right.
“Q Your answer is yes?
“A It cannot cause—
“Q In that situation?
“A In that situation, it cannot cause —the tube cannot play any role at all.”

Frankly, we find some difficulty in reconciling this answer with his previous testimony. He had stated: “Well, any time you have a tube down in the throat and it is down there for a long period of time, there are reactions to the tube.” He described the “natural reaction” as “swelling of the vocal cords.” “The vocal cords become edematous. If the vocal cords have been quite irritable during the anesthesia because of the plane of anesthesia, then, the cords are moving against it, moving against the tube and they get little hemorrhages in the vocal cords. You may have an unusual complication, a more unusual complication which is on the back half of the vocal cords, 3'ou get a so-called ulcer developing, what we call a contact ulcer developing and then it produces a lot of granulation tissue because of the cartilage destruction that is present and these are difficult to handle; but I have seen these a number of times.” In response to an inquiry as to the process which resulted in the change which he found in plaintiff, he stated: “Yes, I would say that she probably had some swelling after the operation. This swelling then was probably in the order of possibly some hemorrhages, you know, in the mucous membrane and subsequently set up some chronic inflammatory reaction and by the mere presence of that, and then as a result of this, being a little bit deeper than it has been, the muscles then which are immediately under the surface, because of its presence of swelling and interference with circulation, they then atrophied. Now, I am not going to give you the scientific reasons for it but I do know the scientific reasons for it is because these muscles are very, very delicate and they are probably one of the most delicate muscles we have in the human body next to the eye muscles of the eye which are also, very, very delicate. They don’t stand a lot of trauma, either, you cannot fool around with eye muscles. They go to pot.”

Perhaps the most significant part of Doctor Ogura’s testimony was his statement:

“Both instances; I mean the number of times that I, personally, have seen injuries, blows, to the voice box and the number of times — the number of larynges that I examined following intubation, and they go into the thousands that I examined, this is a very, very unusual after effect. I have seen this after effect occur for no reason at all, no good reason at all. Now, it can occur from so-called nerve, muscle injuries, from unknown causes. I have seen this, because this is in an area that we know very little about. This is the — the truth of the matter is, we are in an area that, since it is so rare, there is no possible way to study this." (Emphasis supplied)

As for cross-examination of the defendant, he acknowledged that, in inserting the tube, he employed a stylet to keep the tube rigid. He denied that the stylet could have protruded from the end of the tube, but that denial would not have precluded a finding to the contrary. See Ingram v. Poston, Mo. App., 260 S.W. 773. The defendant was cross-examined concerning medical literature in which it was pointed out that “if the end of the stylet protrudes from the catheter, it may cause trauma to the vocal cords.” Doctor Merz admitted that if an anesthesiologist, by the use of a stylet or catheter traumatically injures a vocal cord, he is not being careful. However, this testimony merely raises a possibility that the defendant caused the injury by careless handling of the stylet. We are still confronted with plaintiffs’ medical testimony which would clearly admit of the development of Jewel’s condition without any such trauma as the stylet might produce. Doctor Merz’ admission that traumatic injury through handling of the stylet would involve carelessness states an obvious fact and cannot be taken as an admission that he was careless. Compare this statement with that of the defendant, held to be an admission, in Hague v. Threadgill, Mo.App., 236 S.W. 895, 897, where the defendant, according to plaintiff, stated, “I made an awful mistake — I made the mistake of my life — I have cut the boy’s tongue.”

We must conclude that all of the evidence in this case favorable to plaintiffs, when viewed in its most favorable light, is not sufficient to permit a determination of whether the injury was the result of the mere presence of the tube during the lengthy operation, without negligence on anyone’s part, in other words, a poor result in a properly handled case, or whether it was caused by some negligence on the part of the defendant in the insertion or manipulation of the tube. As to the latter, the evidence does not rise above showing a mere possibility of such a cause. Plaintiffs’ case resolves itself into one in which their medical witnesses state that they do not know just what caused the injury. In such circumstances, a jury could resolve the problem only through resort to conjecture and surmise. We do not have a conflict in testimony, in which event the jury would resolve the question as best they could. What we have here is a complete failure of proof of the essential of plaintiffs’ case.

Returning to plaintiffs’ analysis of their case, the evidence did show that Jewel’s vocal cords were normal prior to the operation and that thereafter, she had a sore throat and raspy voice and that pondets were prescribed for her sore throat. However, plaintiffs’ medical testimony clearly showed that such condition alone was not of significance from the standpoint of negligence because it frequently occurs in intubation, regardless of the skill, or lack of skill, of the anesthetist. The vomiting of blood clots could be explained, in the light of Doctor Ogura’s testimony, as the result of hemorrhages in the vocal cords due to irritation from the mere presence of the tube. The blood clots would not likely have been related to the hysterectomy. This is not, however, a case of injury to an “unaffected portion of the body, i. e., one unconnected with the area of the operative treatment,” or one in which the injury itself may give rise to an inference of negligence. The anesthetic procedure, which is what we are really concerned with in this case, necessarily involved the vocal cords and some adverse effect upon them was wholly to be expected.

As to the statement that the only contact with her vocal cords was by means of the tube and stylet used by defendant, there is actually no evidence that the stylet was in contact with the cords. Of course, the tube was and plaintiffs would perhaps surmise that the stylet was. However, there was no direct evidence to that effect nor any evidence from which such fact might be reasonably inferred. Admittedly, the evidence showed that such instruments had the potential capacity for injury to the vocal cords.

Indeed, there was no evidence of anything untoward during the operation. However, we cannot overlook the medical testimony that the breathing by the patient with the tube in place is sufficient, by and of itself, to cause irritation and injury.

We must disagree with plaintiffs that circumstantial evidence warranted a finding of negligence on the. part of defendant. We conclude that it did not. So finding, we need not consider the plaintiffs’ assignments of error. Bello v. Stuever, Mo.Sup., 44 S.W.2d 619, 620.

The judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WESTHUES, Special Commissioner.

text:
    W. Donald DUBAIL, Charles R. Judge, and Robert S. Kilker, d/b/a Dubail, Judge & Kilker, Plaintiffs-Respondents, v. MEDICAL WEST BUILDING CORPORATION, a Corporation, O. S. Rudman and Ann Rudman, His Wife, Defendants-Appellants.
    No. 49688.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for plaintiffs-respondents.
    Guilfoil, Caruthers, Symington & Mon-trey, St. Louis, for defendants-appellants.
   WESTHUES, Special Commissioner.

Plaintiffs-respondents in this case, W. Donald Dubail, Charles R. Judge, and Robert S. Kilker, are lawyers doing business under the firm name of Dubail, Judge & Kilker in St. Louis, Missouri. The defendants-appellants are Medical West Building Corporation, a corporation, and O. S. Rudman and his wife, Ann Rudman. Plaintiffs sued defendants to recover a balance of $21,487.11 for attorney fees and for advancements made to the corporation by plaintiffs while the corporation was being incorporated in 1954 and thereafter until February, 1958, when the Rudmans purchased controlling interest in the corporation.

A trial resulted in a jury verdict for plaintiffs in the sum of $21,487.11 and interest thereon at 6% from February 11, 1959, in the sum of $4,297.40, or a total of $25,784.51. The trial court overruled defendants’ motion for a new trial and an appeal was taken from the judgment entered.

(The parties will continue to be referred to as styled below.)

Plaintiffs filed a motion to dismiss defendants’ appeal stating as grounds therefor that the statement of facts in the brief violated S.Ct.Rule 83.05(c), V.A.M.R. We deem it best to pass on the merits of the case and overrule the motion to dismiss without comment.

Plaintiffs, in their petition, asked for a judgment on two theories, one based on quantum meruit, the other on contract. The quantum meruit theory was not submitted to a jury and may be disregarded.

Defendants, in general, denied liability and the Rudmans filed a counterclaim which was abandoned. The issues before us on this appeal lie between plaintiffs’ claim, based on contract, and defendants’ denial of liability.

We may state here that all of the legal services for which plaintiffs ask recovery were performed by Charles R. Judge and that he was the only witness to testify during the trial. Other evidence consisted of various documents.

The first three assignments of error, briefed by the defendants, concern instruction No. 1 given on plaintiffs’ behalf. In the fourth and last assignment, defendants claim error was committed by the trial court in permitting plaintiffs’ counsel to comment on the failure of defendant O. S. Rudman to testify.

The instruction which defendants attack on various grounds reads:

“The Court instructs the jury that if you find and believe from the evidence that the Plaintiff, Charles Judge, was employed by and performed legal services for Defendant, Medical West Building Corporation, and advanced monies to or for said defendant corporation, if you so find, and if you further find from the evidence that by reason of the performance of such legal services and advancements of money by said plaintiff, defendant Medical West Building Corporation became and was obligated to said plaintiff, Charles Judge, therefor at the time of the executing of the contract referred to in evidence as Exhibit A, if you so find, and if you further find and believe from the evidence that such obligation, if any, was one which defendant Medical West Building Corporation had the legal right to and did incur without violating any law, then your verdict must be in favor of plaintiffs and against all defendants in such amount, if any, as you may find to be due under the contract mentioned in the evidence as Exhibit A, not to exceed the sum of $21,487.11, together with interest thereon at the rate of six per cent (6%) per annum from February 11, 1959.”

In one of the assignments of error in the motion for new trial, marked paragraph 9, it was stated that the instruction erroneously submitted a question of law to the jury. This is apparent and was so to the trial court. At the time of the overruling of the new trial motion, the court entered the following memorandum:

“Par. (9) of defendants’ Motion for New Trial correctly points out error in Instruction No. 1 but the error is not prejudicial to defendants. The erroneous part of that instruction does not involve a matter in dispute.”

For reasons to be stated later in this opinion, we agree with the trial court that the error was not prejudicial.

The evidence shows the following to have occurred. About April or May, 1954, plaintiff Charles R. Judge was employed by Richard J. Zoernig to form a corporation, the main purpose of the corporation to be the construction of an office building for doctors and dentists. Judge prepared the necessary papers and a charter was issued dated July 7, 1954, under the name of Medical West Building Corporation. The shareholders named in the articles of incorporation were Richard J. Zoernig, 48 shares, Maryan Sheppard, 1 share, and Charles R. Judge, 1 share. The authorized capital stock was 20,000 shares of $10 par value per share. The number of directors was to be five. However, at the first meeting of the stockholders, held on July 20, 1954, only three were elected. They were Richard J. Zoernig, Emil L. Zoernig, and Charles R. Judge. From that time until February 13, 1958, after the Rudmans acquired the controlling interest in the corporation, the board consisted of only three directors.

In 1957, negotiations were begun for a sale of the stock owned by Judge and the Zoernigs and others to the Rudmans. This sale, as above noted, was completed in February, 1958.

After the corporation came to life in 1954, negotiations began for a tract of land upon which to construct an office building. A number of sites were considered before one was purchased. The corporation borrowed large sums of money to be used for the construction of the building. One loan was in the sum of $930,000. The building was constructed and numerous rental leases were prepared and signed by doctors and dentists. While not material to the issues in this case, persons interested in the operation of the building and the dispute over terms of leases after the Rudmans purchased the stock may be interested in reading the opinion in the case of Bryan v. Medical West Building Corporation, Mo. App., 345 S.W.2d 389.

Turning now to the matters pertaining to the vital issues in the case, we find that the contract which is the subject of this lawsuit was signed by the parties on the 3rd day of February, 1958. The parties of the first part were Richard J. Zoernig, E. L. Zoernig, and Charles R. Judge. The parties of the second part were O. S. Rudman and his wife, Ann Rudman. Let it be noted here that the defendant corporation was not a party to the contract and did not sign it. Plaintiffs in their petition, claimed that the corporation adopted all of the provisions of the contract and was bound by all of its terms.

The sales contract in general provided for the sale of all of the stock owned by the Zoernigs and Judge. There was a provision in the contract that the sale should not take effect if the Rudmans were unable to negotiate for the purchase of stock owned by certain other shareholders. It was provided that Richard J. Zoernig should be employed by the corporation as manager of the building. There was a provision whereby the Zoernigs and Judge should indemnify and hold harmless the corporation from any claims that might be asserted by Miran Corporation and others arising out of a contract dated August 31, 1955.

For a better understanding of certain portions of the contract material to the issues, we quote the following:

“ ‘2. With respect to moneys payable to First Parties by the corporation, (and first parties warrant that the same are just and lawful obligations of the corporation to the first parties) it is agreed that Second Parties will cause the corporation to pay as follows:
“ ‘To Richard J. Zoernig $47,580.00 payable under the terms of a certain contract with the corporation dated August 31, 1955 and the sum of $784.53 representing one-half of the interest during construction advanced to the corporation by Richard J. Zoernig, in six (6) equal annual installments, the first installment payable upon closing hereof and each succeeding installment on each successive anniversary of such closing date without interest before maturity.
“ ‘To E. L. Zoernig the sum of $784.53 representing interest during construction advanced to the corporation by E. L. Zoer-nig to be paid in cash on closing.
“ ‘To Charles R. Judge the sum of $25,-000.00 as attorney’s fees for services rendered the corporation and the sum of $784.-53 representing one-half of the interest during construction advanced to the corporation, in six (6) equal annual installments, the first installment payable upon closing hereof and each succeeding installment on each successive anniversary of such closing date without interest before maturity.
“ ‘Second Parties agree that they will advance to the corporation from time to time such sums as are necessary for the corporation to make the payments provided for herein. This agreement is subject to the approval by First Parties of the personal financial statement of O. S. Rudman, which Second Parties represent to be accurate to the best of their knowledge and belief.’ ”

In compliance with that contract the Rudmans advanced a sum of money to the corporation and the corporation paid to Charles R. Judge the first of the six installments mentioned in the contract, that is, $4,297.42, leaving a balance due of $21,-487.11. The corporation refused to pay the next installment due in February, 1959, and this suit followed.

After the sale of the stock to the Rud-mans, there was a suit filed by the Miran Investment Company, a corporation, against the Medical West Building Corporation for redress under the contract dated August 31, 1955. The defendant Medical West Building Corporation filed an answer and a third party petition asking the court to enter a judgment against Judge, the Zoernigs, and others to satisfy any judgment that might be entered against it in favor of the Miran Corporation. This third-party petition was based on a provision contained in the contract now before us. That provision, in so far as material, reads:

“ ‘4. First Parties agree to indemnify and hold harmless the corporation from any claims that may be asserted by Miran Corporation, Edward A. Pollack and Harold Pollack or any of them, or their successors or assigns, against the corporation arising out of a contract dated August 31, 1955 and to undertake the defense of any action instituted by them or any of them and to satisfy any judgment in their favor against the corporation resulting from any such action, * * *.’ ”

The records of the corporation show that on February 13, 1958, the three directors, E. L. Zoernig, Richard J. Zoernig, and Charles R. Judge, resigned and that O. S. Rudman, M. L. Rudman, and D. W. Huggins were elected as the new directors of the corporation. The records show further that on February 15, 1958, the new board of three directors adopted a resolution providing for compensation to be paid to the members of the board and officers of the corporation.

We deem the facts stated sufficient to dispose of the points of law briefed.

Under point one of their brief, and sub-paragraphs thereof, defendants says that the giving of instruction No. 1 was error for the reason that it authorized a verdict against defendants without requiring a proper finding of facts; that defendant corporation was not a party to the contract; that in any event, even if liable, it was in quantum meruit and not by virtue of a contract. These points may be considered together. It is apparent that the contract in question was made in anticipation of the' Rudmans’ taking control of the corporation and that the corporation would take over the obligations as well as the benefits of the contract. Immediately after taking control of the corporation, the Rudmans advanced and the corporation accepted money from them, following which the corporation paid Charles R. Judge the first installment provided for in the contract. Furthermore, the corporation in the suit against it by the Miran Investment Corporation pleaded verbatim a provision of the contract whereby Charles R. Judge and the Zoernigs agreed to hold the defendant harmless against any claim made by the Miram Investment Corporation.

The defendant corporation in this case by its áctions in accepting the benefits under certain terms of the contract adopted it as its own and should not be permitted to avoid the obligations imposed by other terms. The rule governing such situations is well stated in 31 C.J.S. Estoppel § 110, pp. 350, 351. Note what is there said: “As a general rule, by accepting benefits a person may be estopped from questioning the existence, validity, and effect of a contract. A party will not be allowed to assume the inconsistent position of affirming a contract in part by accepting or claiming its benefits, and disaffirming it in part by repudiating or avoiding its obligations, or burdens.” See also 17A C.J.S. Contracts § 521, p. 1004. We rule that instruction No. 1 was not erroneous on the theory that quantum meruit was plaintiffs’ only remedy. We rule further that the instruction was not erroneous for failing to require the jury to find facts sufficient to support a verdict. The instruction, in substance, required the jury to find, before authorizing a verdict for plaintiffs, that Charles R. Judge was employed by and had performed legal services for the corporation and advanced money to it, then, in that event, the verdict should be for plaintiffs in such sum, if any, as the jury found to be due under the contract. Plaintiffs introduced evidence as to the services performed and money advanced; further that there was a balance due. There was no evidence to the contrary. We rule the point against the defendants.

As we noted supra, instruction No. 1 did erroneously require the jury to pass on a legal question. However, the corporation, as a matter of law, did have the legal right to incur the obligation to pay plaintiffs for the services and money advanced. No citation of authority is necessary to support , such a ruling. Such a finding was not necessary to sustain plaintiffs’ claim. We rule the error was harmless.

Defendants say that instruction No. 1 was erroneous in that it authorized a verdict against the Rudmans in excess of their obligation under the contract. The Rud-mans say that their obligation to pay was conditioned on the failure of the corporation to pay. They say further that no showing was made that the corporation was not able to pay. If defendants’ contentions are correct, then the corporation need not pay plaintiffs because it was not a party to the contract. Furthermore, the Rud-mans could not be made to pay until it was shown that the corporation could not pay. It is apparent that defendants’ corporation is controlled by the Rudmans and they, the Rudmans, as well as the corporation, have accepted the benefits under the contract in question. They now refuse to shoulder the obligations they assumed under the contract. The Rudmans obtained the controlling interest in the corporation. In the contract with Judge and the Zoernigs, certain items of debts owing by the corporation were stipulated. Among those items were Judge’s legal fees and money that he had advanced. Those items were considered a part of the consideration for the sale of the stock. Defendants now wish to have all of the benefits and to avoid obligations under the contract. We rule that the instruction properly permitted the jury to find against the Rudmans as well as the corporation.

There is no merit in the contention of defendants that the trial court erred in permitting plaintiffs’ counsel to comment on the failure of O. S. Rudman to testify. Rudman negotiated for the purchase of the stock. He had the affairs of the corporation investigated. Judge testified that when the second installment came due he had a conversation with O. S. Rudman about the affairs of the corporation. He stated that in that conversation Rudman never mentioned a word of complaint about the amount due to Judge. Rudman did not see fit to refute any of that evidence.

We have examined all of the points briefed. Our conclusion is that the verdict was for the right parties; that no prejudicial error was committed with respect to any matters complained of in defendants’ brief.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles R. TODD, Appellant.
    No. 49911.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.

      Hale W. Brown, Kirkwood, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Gen., St. Louis, for respondent.
   STORCKMAN, Presiding Judge.

The defendant was convicted of obtaining money with intent to cheat and defraud, § 561.450, and was sentenced to five years’ imprisonment upon a finding by the court that he had a prior conviction of felony, § 556.280, RSMo 1959, V.A.M.S. The defendant appealed but has filed no brief in this court. The case is before us on the transcript of the record and the brief of the respondent.

In this situation our review extends to the assignments of error properly preserved in the motion for new trial and to the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947 [1]. The defendant did not testify or offer any evidence in his behalf. At the end of plaintiff’s case, he moved for a directed verdict of acquittal on the ground that the evidence was insufficient to prove beyond a reasonable doubt that the defendant was guilty of obtaining money by trickery or deceit. The motion was re-offered when the evidence was formally closed. These are specifications 7 and 8 of the motion for new trial and while there were two motions for a directed verdict of acquittal they both pertain to the same evidence and will be treated as one assignment of error.

■ It was shown by the evidence that the defendant opened a checking account with the Empire Bank of Greene County, Missouri, by the deposit of $70 on July 27, 1962. The account was opened in the name of Todd Brokerage Service which was represented to be the trade name under which the defendant was operating and the signature authorized was that of the defendant. On July 31, 1962, the defendant tendered for deposit in his account at the Empire Bank nine checks payable to Todd Brokerage Service aggregating $2,378 which were received by the bank teller and a receipt was issued to the defendant. The defendant immediately thereafter presented to the teller a check drawn on the account and payable to himself in the amount of $2,000; the teller paid and delivered to the defendant the sum of $2,000 in cash. Payment of the nine checks deposited was refused by the banks on which they were drawn and the evidence showed that those banks did not have any accounts in the names of the purported makers. A deputy sheriff of Greene County made an investigation in the community and was unable to locate any persons bearing the names of the purported makers. In a written statement given on August 23, 1962, while in custody, the defendant made this admission: “On July 31st, 1962,1 wrote nine fictitious checks totalling the amount of $2,378.00 and deposited to my account. At the same time of deposit, I cashed a personal check for $2,000.00, which at the time I knew I did not have the money in my account. I wish to make a statement at this time to say that there is no one else involved in this whatsoever. The idea was solely mine.”

Section 561.450 under which the defendant was prosecuted provides that: “Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, * * * or by means or by use, of any false or bogus check or by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds * * * shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.”

The defendant does not specify in what respect the evidence was deficient. See State v. Howard, Mo., 360 S.W.2d 718, 721 [1-3]. The evidence was substantial and clearly sufficient to support the defendant’s conviction of the criminal offense with which he was charged.

The defendant further contends that the trial court erred in refusing to dismiss the information “for the reason that the information was confusing in that it did not inform this defendant whether he was charged with uttering a bogus check or checks, as distinguished from obtaining money by Trickery & Deceit so that the defendant could not properly prepare a defense to the information.” In substance the information charged that the defendant “with intent to cheat and defraud” obtained $2,000 from the Empire Bank by means of “trick and deception” in that he deposited with the bank “nine (9) false and bogus checks” in the amount of $2,378 which checks “were drawn upon non-existent accounts and were purportedly executed and drawn by existing persons, who were in truth and fact non-existing and fictitious persons” and in reliance thereon the bank gave the defendant credit for $2,378 and ‘‘induced by said fraud, trick and deception” the bank delivered $2,000 to the defendant and was “thereby cheated and defrauded of the same”. The false, fictitious and bogus checks were a part of the means by which trickery and deception were perpetrated and the information properly describes the successive steps in the consummation of one offense without duplicity or confusion. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 203 [3]; State v. Polakoff, 361 Mo. 929, 237 S.W.2d 173, 174 [3]. The defendant was sufficiently informed and the assignment of error is denied.

The next assignment is that the information was insufficient and instruction No. 1 was erroneous because there was no evidence that the bank teller gave the defendant any money “because of the deposit of any bogus checks” or “in reliance upon any illegal act, Trickery or deceit upon the part of the defendant.” The teller, Nadine Lee, testified that she honored the defendant’s check and gave him the $2,000 imr mediately after he had deposited with her the nine checks which turned out to be worthless. The teller was asked if she relied on the validity of the nine checks and answered in the affirmative after an objection to the question as being leading and suggestive was overruled. The teller’s testimony in this respect can be disregarded for present purposes. Whether trickery and deception were practiced and whether the bank relied on the deceptive acts and the deposit of the bogus checks and was misled were facts which the jury could determine from circumstantial evidence. No reason other than to cheat and defraud by deception has been suggested for the deposit of the worthless checks by the defendant, and we can think of none. In fact the defendant in his confession stated that he knew he did not have the money in his account when he presented the $2,000 check. The evidence was sufficient and the court did not err in refusing to dismiss the information or in giving instruction No. 1 for the reason assigned.

Next the defendant contends that instruction No. 1 is erroneous for the reason that it referred to the nine checks deposited as bogus checks when in fact none of the checks marked and introduced in evidence were bogus. Following a description of the nine checks deposited, the instruction authorizes the jury to find “that all of said checks were false and bogus for the reason that said checks were drawn upon nonexistent accounts in said banks.” The adjective bogus generally means not genuine, sham or pretended. A bogus check is one drawn on a non-existent bank, or by or payable to a fictitious person. State v. Robinson, Mo., 255 S.W.2d 811, 814 [2]; State v. Bird, Mo., 242 S.W.2d 576, 577 [2]. All of the evidence tended to prove that the drawers of the checks were fictitious persons. Therefore, the pretended accounts were non-existent. Cheating and defrauding “by means or by use, of any false or bogus check” is specifically proscribed by § 561.450. The instruction was not erroneous on the ground assigned.

As we understand the next assignment, it charges that instruction 1 is further erroneous and confusing on two grounds. The first is that the jury could have found the defendant guilty as charged by the mere fact that he cashed a check in the amount of $2,000 because the $2,000 check was referred to in the instruction as a bogus check. The complete answer to this contention is that the $2,000 check was not so referred to. The “false and bogus” checks referred to are the nine checks deposited.

Next the defendant undertakes to assert that trickery or deceit cannot be practiced upon one who knows the true facts which were that the nine checks could not be collected until they cleared the bank upon which they were drawn, and that the books and records of the bank were available to the teller who cashed the $2,000 check so that she could have ascertained that the amount in his account was less than the amount of the check. This contention overlooks the fact shown by the evidence that the defendant was given credit in his account at the time the nine checks were deposited although the hank had the right to charge back any uncollected item. The entire transaction was not simply one of obtaining money by false and bogus checks, but it involved also elements of trick and deception in that the account had been opened four days previously by the deposit of a small amount which quite evidently was a part of the scheme to cheat and defraud. The nine false and bogus checks were then deposited, conditional credit was thus obtained, and a withdrawal check was then presented upon which money was obtained. See State v. Polakoff, Mo., 237 S.W.2d 173, 176 [10], and State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 204 [6]. The instruction was not confusing in the respects .charged and.the court did not err in including trick and deception as one of the hypotheses.

The essence of the next assignment as we interpret it is that instruction No. 1 did not state the law or define what was meant by obtaining money by trick or deceit and “permitted the Jury to determine what Trickery or Deceit was of their own accord”. The words trickery and deceit are in common use and generally understood by everyone. It is not necessary for the court of its own volition to define such words. State v. Churchill, Mo., 299 S.W.2d 475, 478 [5] ; State v. Shriver, Mo., 275 S.W.2d 304, 309 [10]. The claim of error is denied.

Another assignment of error is that instruction No. 1 is erroneous “for the reason that fhe instruction was long and so confusing that a number less than 12 of the Jurors could have found the Defendant guilty by virtue of the Instruction and the other Jurors or Juror have found him guilty by another provision of the said Instruction so that the Defendant was found guilty by less than 12 of the Jurors of obtaining money by Trickery or deceit.” The instruction is not unduly long and we do not deem it to be confusing. The bare assertion that the defendant was convicted by less than 12 of the jurors does not prove itself and is contrary to the record which shows the concurrence of all the jurors. The assignment is otherwise much too general, and indefinite to preserve anything for appellate review. S.Ct. Rule 27.20.

The remaining allegation of error in the motion for new trial is that the court erred in permitting the prosecuting attorney over the defendant’s objection to propound leading and suggestive questions to the witness Nadine Lee in that he asked her if she believed the nine checks totalling $2,378 were valid, genuine and good. The part of the testimony apparently intended reads as follows:

“Q. Now, at the time you took these checks, to which I have just referred, did you rely on their validity?
“MR. BROWN: I object, Your Honor; that is leading and suggestive. Counsel knows better t,han that.
“THE COURT: Overruled.
“A. Yes.” , .

The approval or disapproval of leading questions is largely discretionary with the trial court -and will not constitute reversible error unless there is an abuse of discretion. State v. Sawyer, Mo., 367 S.W. 2d 585, 587 [5]; Harrison v. St.Louis-San Francisco Ry. Co., 339 Mo. 821, 99 S.W.2d 841, 845 [6]. The transcript of the witness’s testimony reveals that her examination was fairly conducted and the court did not abuse its discretion in overruling the objection to the leading question. The assignment is denied.

We have considered all of the specifications of error preserved in defendant’s motion for new trial and find them to be without merit. The defendant was present throughout the trial, including his allocution and sentencing. He was effectively represented by counsel throughout the trial. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.