author: WALTER H. BOHLING, Special Commissioner. PER CURIAM.

text:
    Henry SWITZER and Mattie McAllister, Respondents, v. George Hadley SWITZER, Executor of the Estate of George L. Switzer, deceased, George Hadley Switzer, Individually, Mae Switzer, Dorothy Davis, Lois Cunningham, and Anna Montgomery, Appellants.
    No. 49762.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.

      Edward W. Speiser, Salisbury, Don Chapman, Sr., Chapman & Chapman, Chil-licothe, for appellants.
    Don Hutson, Robert Van Horn, Hutson & Van Horn, Kansas City, for respondents.
   WALTER H. BOHLING, Special Commissioner.

This is an action contesting the will, executed July 31, 1959, of George L. Switz-er, who died August 9, 1960, at the age of nearly eighty-six. The petition charged testamentary incapacity and undue influence exercised by Mr. and Mrs. George Hadley Switzer. The jury found against the will on the ground of undue influence. In due course proponents appealed. They question the submissibility of contestants’' case, the admissibility of certain evidence, the giving of certain instructions, and the sufficiency of the verdict returned by the jury. Title to real estate passed under the will. Appellate jurisdiction is in this court. State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087 [6].

Contestants had the burden of producing substantial evidence of the alleged testamentary incapacity or undue influence upon proponents establishing the due execution of the will and testamentary competency. Hardy v. Barbour, Mo., 304 S.W.2d 21 [1],

Testator and Flora, his wife, resided on a farm near Mendon, Chariton County, Missouri. They had four children: Henry Switzer, Mattie McAllister, George Hadley Switzer, known as Hadley in the record, and Anna Montgomery. Henry and Mattie are the contestants, respondents here. The proponents, appellants here, are Hadley, Hadley’s wife, Mae, Anna, and two grandchildren, Dorothy Davis and Lois Cunningham, children of Anna, who were reared by testator and his wife. Contestants and proponents are beneficiaries under testator’s will.

George L. and Flora Switzer had title to approximately 658 acres of land. Testator’s estate was appraised as follows: Real Property: $47,400.00, subject to deeds of trust securing $15,800.00 principal amount; and Personal Property: $344.92.

There is testimony that testator’s will, here questioned, substantially increased the share of his estate passing to Hadley and to Mae, Hadley’s wife, and reduced the share passing to Henry, Mattie and Anna under a prior will which gave his estate in equal shares to his four children.

Henry testified his mother and father told him that they wanted to get everything divided equally between the children while they were living and asked if he could be present. He said he could but the matter ended there. Other testimony was that testator and his wife decided to keep their property until the survivor passed away.

Flora died January 27, 1957. Her funeral was on the following Wednesday.

Testator, following Flora’s funeral, went to Henry’s home at Henry’s invitation. He remained there Wednesday and Thursday nights. He accompanied Henry to the bank at Salisbury Thursday morning. Henry testified testator talked to Mr. Ingram, the banker, informed him of Flora’s death, stated he wanted to make a distribution of his property and asked the banker’s advice; that the banker suggested he get his children together, divide his property as equally as he could, and: “Make a joint deed. It will be your property from then on to do as you please with,” and at testator’s death there would be no room for arguments; that, on the way home, testator stated he thought Mr. Ingram’s suggestion was good; that Friday morning testator discussed the subject with him, and, after stating it might be difficult to divide the property equally, said he thought witness’ idea to divide it as nearly equal as possible and give Hadley his choice was good.

Mattie, Mae and Pearl Switzer, Henry’s wife, met at testator’s home that Friday to clean the house. Pearl brought testator with her. He asked Mae to take him to her home. Hadley and Mae lived on another of testator’s farms, and testator thereafter made his home with them. The testimony is that he was well treated and liked it there. Testator visited overnight at Henry’s in May, 1957. He never visited at Henry’s thereafter. In 1957 he visited Mattie and Anna on one or two occasions.

In the Spring of 1957 testator made a will leaving his estate to his four children, share and share alike. Mae drove him to his attorney’s office and to get the witnesses to his will.

Proponents adduced testimony from Mae, Hadley and others that testator told them that on Thursday following Flora’s funeral Henry said Mattie and he wanted him to “divide up” his property before farming time. Mae and Hadley testified testator told them Mr. Ingram advised him not to be in a hurry and against dividing his property. Henry had a one-room house on his place where his mther-in-law had lived for some time. Testator said Henry offered to let him stay in that house, but he told Henry he had a home of his own if he wanted to live by himself.

Hadley was working at testator’s home place in August, 1957, when Mattie, Henry and Delphus, Mattie’s husband, drove up. Henry said to him: “Brother, we are not going to take this off of you. We are not going to take it.” Hadley did not know what Henry meant; but later they wanted him to go with them and get testator to divide his property' between his children, stating it would be to Hadley’s advantage as he would get the crops he raised. He told them testator had managed his business affairs and he was not going to interfere. Henry accused him and his girls of getting everything testator had. Henry testified they went over to find out what was the trouble; that he asked Hadley and Hadley “kind of, I don’t know, maybe, flew off the handle a little, and said you know what it was, said it is the things you done”; and, ' after he talked a while, he told Hadley he, Henry, now knew and didn’t have to inquire further. Henry and Mattie then started ■home, but, noticing Hadley’s wife and daughter, Linda, coming, turned and went to Hadley’s home. Mae and Linda talked to Hadley and returned home. When they arrived, Henry and Mattie were in the house and Delphus was in the car. Henry said: “Come on in, Mae * *, we know grandpa has made a will.” Mae knew this. Henry told his father at that time that they were his children the same as Hadley, and had a right to know about testator’s business affairs. Mattie wanted to know what testator was paying Mae for staying there. Testator told them he had and could manage his own affairs. Henry said, “we are not doing any good; we are just making things worse.” They then left.

There was testimony that testator said he was tired of Henry and Mattie fussing with him about not dividing his property, and he refused to visit them and asked Had-ley and Mae to not allow them to see him unless they apologized for the trouble they were causing. Sometime during 1958 Henry and Mattie were informed by testator or by Hadley of testator’s position.

At the suggestion of Reverend Leslie Bates, Mattie and he visited testator at Hadley’s in October, 1958. Rev. Bates was minister to testator, Mattie and Hadley. He testified testator “seemed not to recognize” Mattie as his daughter and, also, “I believe he knew she was Mattie.” Hadley returned home soon after they arrived, entered the room and in a loud and angry voice ordered Mattie out of the house, stating testator wanted her to apologize before visiting him. Rev. Bates testified Mattie offered to apologize. Mattie left. Testator told Bates he did not discuss his affairs with strangers and Bates left. This was Mattie’s last visit to testator at Hadley’s.

Henry and Mattie each testified they had made no request after the death of their mother to testator to divide his property between his'children.

Hadley had an automobile. After testator came to live at Hadley’s he had Mae drive him around. They used testator’s car and did not keep their car in repair.

Henry and his son Herbert raised corn in 1957 on one of testator’s farms'. It was a bad year for harvesting corn. Testator, thinking they were trying to hold the ground, caused a notice to be served on them on June 11, 1958, to get the corn off the land within ten days and deliver his share to the Salisbury Mill Company. Upon receiving the notice Henry and Herbert went to Hadley’s to talk to testator. Mae, seeing their approach, told testator, who said he did not want to see them. She went to the door and gave them his message. She did not invite them in. Henry and Herbert harvested the corn but, we understand, too late to- crop the land for 1958.

In July, 1959, Mae drove testator to his attorney, R. W. Benecke, of Brunswick, and helped testator up the steps to Benecke’s office. Only testator entered Benecke’s office. Benecke testified testator told him that, beginning shortly after the death of his wife, Henry and Mattie worried him by demanding he deed his property right now; that he told them their nagging disturbed and upset him and he didn’t want them around; that Hadley and Mae had been attentive to him and he felt he had not compensated them enough; and that he was making provision for his granddaughters because his wife and he had practically reared them. There was additional evidence to like effect. Benecke made notes of how testator desired to dispose of his property. Testator took the notes with him and was to return with the descriptions of his several farms.

One to three days later, Hadley, Mae, testator and Linda drove to Brunswick. Hadley got out at the sales barn and attended a community sale. Mae took testator to arrange for witnesses to his will and then drove him to Mr. Benecke’s office. Testator executed his new will, dated July 31, 1959. He destroyed his prior will. Mae waited at the home of one of the witnesses until the witness and testator returned. They then went by for Hadley. Testator, on the way home, told them he had made a new will and named Hadley executor, as in his first will. Hadley and Mae testified they never discussed with testator how he should make his will and he never mentioned any of its other provisions to them.

Testator did not actively farm his land from about 1950. He orally leased different portions to Henry and Herbert and to Had-ley on a 50-50 basis. Prior to March, 1958, testator executed a written lease of all his farm land to Hadley for 1958, 1959 and 1960. Under testator’s leases he furnished the land, seed and fertilizer, the tenant furnished the labor and the income was divided on a 50-50 basis. There was testimony that an application was made in the Spring of 1958 to place the land Henry and Herbert had farmed in the Soil Bank Program ; but, being informed the 1957 tenants would receive a portion of the Government payment, the application was withdrawn, Hadley telling testator he thought Henry had nothing coming because he, Hadley, was farming the land.

Hadley in 1959 and 1960 sublet portions of testator’s lands to P. B. Wald. Wald was to furnish the labor and receive half of the income. Testator paid for the seed and fertilizer. Hadley, who furnished neither land nor labor, received one-half of the landlord’s share of the income.

Testator would ask and Mae would purchase most of his personal things. Mae and Hadley wrote items in testator’s account and financial books and helped prepare his income tax returns under his supervision and direction. Hadley ordered most of the seed and fertilizer for testator.

Testator received monthly Social Security checks of $84.50, and in July, 1959, told Mae he wanted her to have and use them as she saw fit. Testator personally endorsed the checks until February, 1960, after which he endorsed by mark, Mae, on one or two occasions, guiding his hand.

About October, 1959, testator sold his remaining livestock, realizing between $1,-500.00 and $1,600.00. Hadley sold some steers, sheep and hogs about the same time, and also ten old cows given him for taking care of testator’s cattle. He received around $2,400.00 or more for the stock. Soon thereafter he purchased a new automobile for about $2,300.00. There. is no showing that any of testator’s money went into this purchase. Testator borrowed from the Salisbury bank to pay taxes in December, 1959.

There was testimony that prior to Flora’s death, January, 1957, the family got together on Christmas, Thanksgiving and at other times. Contestants testified that Mattie, Anna and Henry were not invited to dinner at testator’s home for Christmas, 1957. Proponents testified there was no Christmas “get together” in 1957; that Henry asked them to dinner on Sunday after Christmas and testator said he would not go because there would be fussing and they would not have a good time.

Mattie, Anna and Henry visited testator on Mother’s day, 1958, and stated he was happy to see them.

Evidence favorable to contestants on testator’s physical condition is to the following effect. Testator had a stroke in 1953. This affected one of his eyes and he was wearing a patch over it by 1957. He continued to manage his property. He was quite deaf. He had two operations for prostate gland trouble prior to 1957. He had a bladder infection, arthritis, and his vision was not good. In May, 1957, he complained of spots in front of his eyes. By the latter part of 1957 his physical condition had changed quite a hit; and he expressed fear of having another stroke. In September, 1958, he was in the hospital a few days. In December, 1958, he did not discuss current events and stated he could hardly read. He was nearly eighty-five when he executed the will involved.

Proponents’ evidence established that testator was in good condition for his age, physically and mentally, was strong willed, transacted his business and possessed testamentary competency.

Hadley took testator to the Marceline hospital January 14, 1960, where testator remained until his death, August 9, 1960. Hadley knew testator was seriously ill; but Mattie and Henry were not notified. Henry had not visited testator after May, 1958. Mattie had not visited him after October, 1958. Proponents presented testimony that before going to the hospital testator said he didn’t want Mattie or Henry visiting and bothering him; that it had been almost a year and a half and they had not told him they were sorry; that, prior to Mattie and Henry appearing at the hospital, testator twice pleaded and had Mae promise not to let them in because they had never come to apologize and visit him. Lucile Hedrick, a nurse, heard testator say he did not want Mattie or Henry in his room at the hospital, and that he wanted Mae to wait on him. Mae, except for three days, while ill, waited on testator daily at the hospital from 11:00 a. m., until after the evening meal.

Sometime in February Mattie and Henry went to visit at testator’s room. Hadley met them at the door, said: “You are not coming in,” and slammed the door in their facé. Mattie and Henry complained to the hospital authorities and were told to come either early or late when Hadley and Mae would not be there. Mattie testified that on their second trip (a week or two later) they saw testator; that he recognized them but did not recognize George, her son, or Herbert/Henry’s son, both of whom he knew; that on another visit testator held her hand and wanted her to stay. On another occasion, she entered his room, said “Hello, Dad,” and Mae pushed her out of the room, telling her she was not coming in as long as she, Mae, was there. Henry testified that on another occasion testator was glad to see him, held his hand and cried. We understand on another occasion Hadley refused Henry entrance to testator’s room and Mae said to Hadley, “Shut the door quick.”

The last few days before testator’s death Hadley and Mae permitted Henry and Mattie to be in his room. Testator was then in a very poor condition, was not mentally alert, could not carry on a conversation, did not recognize persons, and would lapse, into a coma.

The jury could find that Mae and Hadley told the nurses not to let Mattie and Plenry visit testator.

Reverend Bates visited testator in the hospital that Spring and stated testator’s conversation was not coherent.

Hadley testified that testator trusted him absolutely in their business dealings, and also that he told testator a few times he could not understand why Henry and Mattie acted toward or treated him, testator, the way they did.

The consideration of points involving one of the instructions and the verdict out of the usual order may make the discussion of some matters unnecessary.

Five of proponents’ fourteen points attack contestants’ Instruction P-16 and the verdict returned thereunder. This instruction submitted different forms of a verdict. It authorized the jury:

(1) If the jury found for the will to return a verdict finding “that the paper writing produced in evidence is the last will and testament of George L. Switzer, deceased.” Or:

(2) If the jury found against the will on the ground of undue influence, to return a verdict finding' “that undue influence was exerted on George L. Switzer, deceased, and that the paper writing produced in evidence is not the last will and testament of the said George L. Switzer, deceased.” Or:

(3) If the jury found against the will on the ground of testamentary incapacity, a verdict finding “that George L. Switzer, deceased, at the time he signed the paper writing * * was not of sound and disposing mind and memory and that the paper writing * * is not the last will and testament of the said” deceased. Or:

(4) If the jury found against the will on the grounds of undue influence and testamentary incapacity, a verdict finding that decedent “at the time he signed the paper writing * * was not of sound and disposing mind and memory and that undue influence was exerted on him, and that the paper writing * * is not the last will and testament of the said” deceased.

The jury returned a verdict identical with the form submitted in paragraph numbered (2) supra.

Proponents contend the instruction should have submitted a general form of verdict determining whether the writing involved was or was not the will of the testator. Consult § 473.083(1) (statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated); Civil Rules 71.01, V.A.M.R. (§ 510.220), 71.03 (§ 510.240), and approved instruction in Gittings v. Jeffords, 292 Mo. 678, 239 S.W. 84, 87[1],

As stated in Thorne v. Thorne, Mo., 350 S.W.2d 754, 757 [4], a general verdict is a finding by the jury “on all the issues submitted to it.” See F. W. Woolworth Co. v. Carriker, 8 Cir., 107 F.2d 689, 692 [1]; J. E. Stewart Produce Co. v. Gamble-Robinson Commission Co., 189 Mo.App. 654, 175 S.W. 319, 320 [1]. The Thorne case, supra [3], states: “It has been stated that the courts will construe a verdict liberally in an effort to ascertain the jury’s intent. * * And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed.” A verdict is generally held to be sufficient if it can be made definite and certain, for instance, by reference to the pleadings or instructions. Baker v. Atkins, Mo.App., 258 S.W.2d 16, 23 [21, 22]; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75, 84 [19]; McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85, 89 [7-9], reversed in part on other grounds in 358 Mo. 1153, 219 S.W.2d 349; Cochran v. Jefferson County Lumber Co., Mo.App., 132 S.W.2d 32, 38 [12], and the early case of Muller v. St. Louis Hospital Ass’n, 73 Mo. 242, 244.

The issue with respect to Instruction P-16 and the verdict returned thereunder on appeal is whether reversible error was committed. Supreme Court Rule 83.13 (b, c) (formerly § 512.160). Contestants challenged testator’s will on the grounds of testamentary incapacity and undue influence. A finding for one of said submitted grounds would invalidate testator’s will. The jury invalidated the will because of undue influence. The jury is presumed to follow the court’s instructions. When consideration is given Instruction P-16, the logically inescapable conclusion is that the jury found testator was mentally competent and against contestants’ submitted ground of mental incapacity; as otherwise, under said instruction, the jury would have returned a verdict in conformity with paragraph numbered (4) of our summary of said instruction.

Proponents, in many instances, do not demonstrate the applicability of their citations to the points made. Newdiger v. Kansas City, Mo.App., 106 S.W.2d 51 [1, 2], cited by proponents, was overruled in 342 Mo. 252, 114 S.W.2d 1047, 1048 [3, 4], Proponents’ cases are not in conflict with our ruling under the record before us. The F. W. Woolworth Co., Muller and Thorne cases, supra; National Cash Register Co. v. Kay, 230 Mo.App. 1046, 93 S.W.2d 260, 264 [9]; Tuttle v. Chostner, Mo.App., 260 S.W. 819 [5-7]; Look v. French, 346 Mo. 972, 144 S.W.2d 128, 133 [18]; Parker’s Adm’r v. Moore, 29 Mo. 218.

The verdict of the jury, when read in the light of Instruction P-16, is responsive to and disposes of all the issues presented of record.

Was a case made on the issue of undue influence ? ‘By “undue influence” is meant such influence as amounts to force, coercion, or overpersuasion, which destroys the free agency and will power of the testator.’ * * ‘[T]he law does not ban as undue the natural influence of affection or attachment or the desire to gratify the wishes of one beloved or trusted by testator.’ * * ‘ [I] t is not the existence of undue influence but the exercise of it in the execution of the will which invalidates such will.’ ” Glover v. Bruce, Mo., 265 S.W.2d 346, 353 [5, 7, 9]. Also Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13, 17 [l^t].

The testimony of Hadley and Mae warranted a finding of a confidential relationship between testator and them. Wilhoit v. Fite, Mo., 341 S.W.2d 806, 813 [5, 6], No contention is presented with respect to a greater benefaction passing to said beneficiaries under the will involved. The controverted issue is whether in addition to the existence of said fiduciary relationship and a greater benefaction to said beneficiaries there was evidence, direct or ■inferential, that said beneficiaries were active in causing or assisted, in causing the execution of the will involved. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772 [4, 6]; Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449 [1-3]; 7 Mo.L.R. 188. “Such activity on the part of the fiduciary-benefici■ary may be inferred from facts and circumstances in evidence.” Baker v. Spears, supra, 210 S.W.2d 13, 17 [2],

Testator lived in the home of those who allegedly exerted undue influence upon him, placed himself under their care and protection (Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707, 711), and between said parties there' existed ties of kinship, affection and close association (Machens v. Machens, Mo., 263 S.W.2d 724, 730). These factors sufficiently establish an opportunity to exercise undue influence. Proponents say showings of “motive and opportunity to exercise undue influence, and an unequal or even unjust result,” are not sufficient for a jury issue on undue influence (State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 363 [3] ; McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145, 151 [8]); and a finding of undue influence cannot rest upon a mere opportunity to influence or upon a mere suspicion (Buckner v. Tuggle, supra; Baker v. Spears, supra; Wright v. Stevens, Mo., 246 S.W.2d 817 [1-5]).

We take contestant’s favorable evidence as true, disregard proponent’s evidence unless it aids contestant, and give contestant, the benefit of every favorable inference legitimately drawn from the whole evidence. Wilhoit v. Fite, Mo., 341 S.W.2d 806 [4],

Without detailing all evidence favorable to contestants, we think a jury might infer from testator’s age and physical and mental condition in 1958 that he was susceptible to influence; that he was forgetful, his mind wandered and he had difficulty in recognizing persons whom he knew and in carrying on a conversation; that Mae and Hadley caused Mattie and Henry to refrain from visiting testator at their home; that Hadley told testator several times he could not understand why Mattie and. Henry treated testator the way they did; that Hadley and Mae, particularly Hadley, did exercise influence over testator to Hadley’s advantage and the disadvantage» of others, including testator, in the withdrawal of the application placing the land testator rented to Henry in 1957 in the Soil Bank Program upon being informed Henry would receive part of the payment and in distributing the income from P. B. Wald’s sublease of testator’s land; that Mae drove testator to see about the witnesses and to Benecke’s office when testator first consulted about changing his will; that it was difficult for testator to read and he took the memorandum Benecke prepared home with him that night; that a few days later Hadley and Mae drove testator to Brunswick where Hadley got out and Mae again took testator to arrange for the witnesses and to Benecke’s to execute the will; that Mae assisted testator up the steps to Benecke’s office on one or both occasions; that, although they knew a new will had been executed, they never mentioned it to Mattie and Henry, and, although they knew testator was seriously ill when they took him to the hospital in 1960, they never notified Mattie or Henry and refused Mattie and Henry permission to visit testator after others informed them of testator’s illness, and first permitted them to visit testator a day or two before his death and when he did not recognize anyone and would lapse into a coma.

The submissibility of undue influence is a close issue under the record before us. Proponents’ presentation, stressing the evidence favorable to proponents, does not demonstrate that a jury could not properly infer activity on the part of Hadley and Mae in connection with the execution of the will involved, and we are not inclined to overrule the court’s submission of undue influence to the jury.

During the cross-examination of Hadley Switzer contestants developed he had purchased a little over $2,000.00 worth of fertilizer in 1960, and, over objections the evidence was irrelevant, that subsequent to testator’s death, he had charged against testator’s estate $5,900.00 for fertilizer and seed, including purchases in 1961 and 1962. This was admitted on the theory contestants were attacking the witness’ credibility. Hadley testified he had the approval of testator’s administrator for said purchases. James J. Wheeler, called in rebuttal, testified he was appointed administrator in September, 1960; and, over objections, that the estate received a statement for $2,952.98 in 1961 and later in 1961 a statement for $5,924.98 from the Salisbury Milling Company; that he did not authorize Hadley to make these charges against the estate, and that the farming operations of the estate did not justify anything like the expense involved.

Evidence in any suit should be relevant; and evidence that throws no light on the controversy should be excluded as it tends to confuse the issues and operate to prejudice a party before the jury. To invalidate a will, undue influence must be directly connected with the execution of the will, must operate at that time, and must destroy the free agency of testator in the execution of the will. Baker v. Spears, supra, 210 S.W.2d 13, 18 [5], Hadley Switzer’s purchase of seed or fertilizer after testator’s death in August, 1960, and charging the same against testator’s estate is a collateral matter involving the rights of testator’s estate against him or the vendors against him or said estate. It does not tend to establish Hadley’s exercise of undue influence over testator at the time of the execution of the will of July 31, 1959. Generally a party is bound by the answer of a witness on collateral matters first brought out on cross-examination. Harter v. King, Mo.App., 259 S.W.2d 94 [4]; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241, 248 [11]. Immaterial and incompetent evidence should not be gotten before a jury under the theory it discredits a witness. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 [10], 157 A.L.R. 598; West v. Sinclair Refining Co., W.D.Mo., 90 F.Supp. 307 [4].

Under testator’s leases he agreed to furnish the seed and fertilizer. We are of the opinion that the portion of witness Wheeler’s testimony contradicting and discrediting part of Hadley Switzer’s testimony on cross-examination related to collateral matters and should have been excluded.

Instructions P-7 and P-9 were verdict directing instructions for contestants; P-7 upon a finding that testator was subject to the domination and control of Hadley or Mae Switzer “or any other person, and that they or any other person for them, or either of them” exerted undue influence upon testator in the procurement of the will involved, and P-9 upon a finding that said will “was procured by undue influence exerted over [testator] by either one or more of the defendants.” Contestants’ petition alleged undue influence only on the part of Hadley Switzer and Mae Switzer, and proponents contends this broadening of the issues constituted error.

In Welch v. Welch, 354 Mo. 654, 190 S.W.2d 936, 938 [12], relied on by contestants, a charge that undue influence was exercised by defendants was held “broad enough to cover undue influence exercised by them through others.” That case states “the evidence gives rise to an inference that such was the case.”

We have said: “[I]n a will contest, the plaintiff must state the one or more grounds upon which he contests the will * * * and the issues cannot be broadened or extended, either by the admission of evidence or instructions on behalf of plaintiff.” Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16, 22 [3, 4], holding it was error under a charge that testator had a certain insane delusion to admit evidence or instruct on other insane delusions. This should be particularly so where there is no substantial evidence upon which to base the instruction. See Jackson v. Hardin, 83 Mo. 175, 186 (III) (holding that under allegations that James H. and Bén T. Hardin exercised undue influence over testator, evidence that others also exerted such influence was properly excluded); Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849, 853 [7, 8] (where there was neither pleading nor evidence to support tile requested instructions); Gittings v. Jeffords, 292 Mo. 678, 239 S.W. 84, 88 [4].

Wills are solemn acts, designed to accomplish a testator’s last wishes, and should be overturned only on proper and substantial evidence. There is no substantial evidence in this record that Dorothy Davis, Lois Cunningham or Anna Montgomery, the other defendants, exerted any undue influence over testator. The fact that when Lois Cunningham, testator’s granddaughter, 26 years old at the time of trial, visited testator he told her about Henry wanting him to divide his property and indicated he was afraid of Henry for some reason was not substantial evidence that she exerted undue influence over testator in connection with his will, and snapshots of testator with some of his infant grandchildren during a Christmas Holiday Season are not substantial evidence that they or any defendant was exerting such influence over testator. There is neither pleading nor evidence of record upon which to base undue influence by any person other than Hadley and Mae Switzer, and said issue respecting them is a close question of fact. Submitting factual issues to a jury implies there is substantial evidence warranting the submitted finding. “An instruction which is not supported by the evidence is erroneous in that it is misleading and confusing.” Hart v. Midkiff, Mo., 321 S.W.2d 500, 508 [10]; Adams v. Kendrick, supra, 11 S.W.2d 16, 25 [18]; Fletcher v. Henderson, supra. Under the authorities the giving of Instruction P-9 constituted reversible error. We are also of the view Instruction P-7 should not have been given.

The case should be retried and we consider proponents’ attack against contestants’ Instruction P-10. This instruction, for all purposes here, is a copy of the instruction approved in Mowry v. Norman, 1909, 223 Mo. 463, 475 (V), 122 S.W. 724, 728(5), when made to apply to Hadley and Mae Switzer and facts in this record. We need not set it out. It directed a verdict setting aside testator’s will upon a mere presumption of undue influence arising from (1) a finding of a confidential relation and (2) the greater benefaction to said fiduciary-beneficiaries, unless such presumption was rebutted by a preponderance of the evidence. This was the law at the time of the Mowry decisions. The second Mowry case, supra, followed the first Mowry opinion, 1907, 204 Mo. 173, 103 S.W. 15 [2], 18, 19, where it is stated: “[I]f plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts”; and “the law indulges the presumption that undue influence has been used.” However, this portion of the Mowry v. Norman opinions and other like holdings were overruled when Missouri adopted the majority rule in Loehr v. Starke, Banc, 1932, 332 Mo. 131, 56 S.W.2d 772, 778 [6]. As pointed out in Pulitzer v. Chapman, Banc, 1935, 337 Mo. 298, 316, 85 S.W.2d 400, 409 [3], court en banc in Loehr v. Starke, supra, 56 S.W.2d 772, 777, “over-Tuled these earlier decisions, and held that such presumption does not arise unless, in .addition to proof of the fiduciary relation and of a benefaction to or in the interest of the fiduciary, there be further facts and circumstances in evidence from which it can be inferred that the fiduciary beneficiary was active in some way which caused or .assisted in causing the execution of the will.” Authorities are collected and reviewed in 3 Maus, Missouri Practice 125, § 132. See Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449, 452 [1]; Fletcher v. Ringo, Mo., 164 S.W.2d 904, 907 [11, 12]; Clark v. Commerce Trust Co., 333 Mo. 243, 62 S.W.2d 874, 881 [10, 11]; State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 364 [6]; Powell v. Raleigh, Mo.App., 244 S.W.2d 387, 390 [4, 6]; 7 Mo.L.R. 188. Instructions in the Clark and Powell cases, supra, omitting, as does the instant instruction, a finding of activity on the part of -the fiduciary, were held reversibly erroneous.

Instruction “(A)” in Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 848 [15, 16], stressed by contestants, required a finding of all essential elements mentioned above, including activity by the fiduciary-beneficiary in the execution of the will.

Instruction P-10 should be redrafted upon a retrial.

Proponents are entitled to hold the verdict in their favor on the issue of testamentary capacity. The judgment is reversed and the cause is remanded for new trial on the issue of undue influence.

PER CURIAM.

The foregoing opinion by WALTER H. BOHLING, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    Howard Cyril MILLER, Appellant, v. Boyd Cleo HARNER, Respondent.
    No. 49523.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.

      Robert L. Shirkey, Rogers, Field & Gentry, Kansas City, for plaintiff-appellant.
    Lewis W. Sanders, Gordon, Sanders, Adams & Niewald, Kansas City, for respondent.
   HOLLINGSWORTH, Judge.

On May 5, 1960, plaintiff, Howard Cyril Miller, an employee of Navajo Freight Lines with its principal offices at Albuquerque, New Mexico, operating an International tractor-trailer unit southward on the right side of the center of U. S. Highway 69, approached a bridge about two miles south of Cameron, Missouri. At the same time defendant, Boyd Cleo Harner, an employee of Universal Trailer Manufacturing Corporation, operated a Ford truck pulling a house trailer northward across the bridge. As Harner crossed the bridge, he so operated his truck and house trailer as to cause portions thereof to proceed along the left of the center of the highway. After his truck passed over the bridge, Har-ner steered the truck toward the right side of the highway, which caused the house trailer as it followed the course of the truck to come into contact with the rear view mirror attached to the left front side of Miller’s approaching tractor. That contact bent the mirror backward into the cab of Miller’s tractor, where it struck him in such manner as to knock him into the gearshifts,, causing him to be injured.

In this action, plaintiff, alleging negligence on the part of Harner in the operation of his truck and house trailer attached thereto, sought damages in the sum of $150,000 for injuries, loss of earnings, medical expense, etc., allegedly sustained and directly caused by the collision. The jury returned a verdict in favor of plaintiff for the sum of $4,000. Plaintiff appealed on the sole ground that the trial court abused its discretion in denying him a new trial on grounds of gross inadequacy of the verdict.

For jurisdictional purposes in a situation such as is here presented, the amount in dispute, in the absence of exceptional circumstances not here shown, is taken to be the difference between the amount sought in the petition and the amount of the verdict, in this case in excess of $15,000. Jurisdiction is therefore vested in this court. Article V, § 3, Constitution of Missouri, V.A.M.S.; Section 477.040, RSMo 1959, V.A.M.S.; Glore v. Bone, Mo., 324 S.W.2d 633, 634 [1, 2]; Mitchell v. Mosher, Mo., 362 S.W.2d 532, 533 [1].

Plaintiff’s basic contention on appeal is that as a direct result of the collision he sustained injury to an intervertebral disc in the lower portion of his spine, generally referred to in the evidence as the disc between vertebrae L-5 and S-l (lumbar 5 and sacral 1), necessitating surgery, which caused him to incur medical and hospital expense in the sum of $2,272.83 and loss of earnings in excess of $6,900; and that the verdict of $4,000 not only fails to compensate for that expense but awards him nothing for past and future pain and permanent partial disability directly resulting from the collision. Defendant, on the other hand, contends that consideration of the evidence pertaining to the extent of plaintiff’s physical infirmities and the results normally expected to flow from them demonstrates that there was a question for the jury in the first instance and for the trial judge on motion for new trial as to whether plaintiff received the injury alleged or suffered the infirmities allegedly resulting therefrom in this accident; and that the trial court did not abuse its discretion in overruling plaintiff’s motion for a new trial on the issue of damages only.

Plaintiff, born and reared in Ohio, aged 34 at the time of trial in February, 1962, testified : He resided in Albuquerque, New Mexico, where he had been employed as a truck driver for Navajo Freight Lines, with a regular run from Albuquerque to Chicago and return for the past five years. Prior thereto, he had driven trucks, both as a “wildcatter” and as an employee of others, including, among others, Ralph Malone, an independent operator, “Kroger” and Riss & Company. At the age of 18 to 20 years, plaintiff, while driving a milk truck, sustained an injury to his back and went to see Dr. John A. Judy at Dayton, Ohio, on two occasions. The injury was not severe and he did not have to wear a brace. Since that time, he continuously had earned his livelihood in the trucking business, which for many years required him to lift and unload heavily weighted crates, containers and materials. In recent years, however, there has been a change in trucking; drivers are not required to do much lifting.

In November, 1952, while working for Malone, he sustained another injury to the middle of his back, just above the belt line, when a truck driven by him hit a bridge abutment. He was hospitalized and a “spinal fusion” operation was performed on his middle back. Following that injury and operation, he was unable to work for a period of some 8 to 12 months; then, after passing a physical examination, he returned to work for Malone as a truck driver.

Before going to work for Navajo, he took and passed the physical examination required by I.C.C. Since recovery from the injuries sustained in 1952, he not only worked regularly as a truck driver but was able to do almost everything he wanted to do, such as swimming, playing ball, wrestling with his children; he had no physical handicap whatever, until the collision of May 5, 1960, involved in this lawsuit, which occurred about 3:30 p. m.

The rear view mirror attached to the cab of the tractor extends out from the left side of the tractor about four inches and weighs about 20 pounds. When defendant’s trailer hit that mirror and knocked it inside the cab, it struck plaintiff on the elbow, knocked his right hip over into the gearshifts and bent him “real sharp” over the gearshifts. The next thing of which he was conscious was that his assistant driver was holding him up and trying to steer the outfit. The mirror was against plaintiff’s shoulder. His outfit was stopped some distance beyond the point of collision. Plaintiff, after trying to push the mirror back out the window, got out of the cab, was faint and dazed, sat down on a ditch bank, and finally walked back to the scene of the collision. His elbow, neck, head and back were hurting, the principal pain at that time being in his elbow. A highway patrolman took him to the Cameron Community Hospital about 5:00 p. m. There he saw Dr. Bloom, who examined and had x-rays taken of him, during which plaintiff fainted. He suffered pain in his head, back, neck and right hip and his hip was placed in traction for varying periods of time during the 13 days he remained in the hospital.

The Cameron Community Hospital records, as read into evidence by counsel for plaintiff, show: On admission to the hospital on May 5, 1960, “acute post traumatic arthritis of the left elbow” ; that plaintiff was given sedatives and treated for pain in back and hips and placed in pelvic traction; that on May 18 his condition warranted dismissal ; and that he was discharged on that date with final diagnosis: “Acute post traumatic arthritis, left elbow; whiplash injury cervical and lumbar spine”, at which time he was “improved”.

He was taken to Kansas City and from there traveled by air to Albuquerque. He has not seen Dr. Bloom since leaving the hospital at Cameron. On arrival at Albuquerque, he consulted Dr. Eugene P. Szer-lip, a bone specialist, who caused him to be hospitalized for four or five days, during which time his hip and back were causing him much pain, which extended from his low back to the groin, and his left leg was numb.

Dr. Szerlip prescribed a girdle which had steel stays in the back of it and extended from his rib cage down to about his hips. After discharge from the hospital and wearing the brace awhile, he was again hospitalized for a period of five days under Dr. Szerlip’s care. Dr. Mosier, a neurosurgeon, was also called into consultation by Dr. Szerlip. After being discharged from the hospital, his elbow, neck and head were not so painful, but the pain in his hips, groin and leg worsened. He returned to work for Navajo in August or September, 1960, and was placed on the extra board, which enabled him to take selected short trips. That work required him to do no loading or unloading. His condition became no better and Dr. Szerlip again had him hospitalized at St. Joseph’s Hospital on September 6th or 7th, at which time he made a disc-ogram of the low back, following which he advised an operation, but plaintiff did not submit to it until November, 1960. At that time a degenerated disc was removed from his lower spine and he was fitted with a brace, which holds his back stiff.

By April, 1961, the pain in his elbow, head and neck and a burning sensation in his shoulder had pretty well cleared up. Since returning to work in April, 1961, he did only “solo” operations and short runs, no lifting for about three weeks, then returned to his Albuquerque-Chicago run, where he has worked since, tie, however, still suffers pain around his hip bones, which extends to his knees and down his left leg, of which he does not have good control; cannot bend over a washbowl, lace his shoes or put on his socks. He was advised by Dr. Szerlip not to lift more than 35 pounds in weight.

In the year 1959, plaintiff’s annual income paid on a driven-mileage basis was in excess of $11,000. In 1960, it was $7,818.21, the reduction being due to loss of time because of injuries sustained by him in the collision here involved. In 1961, he worked eight and a half months for which he received $9,151.50. His average income when he went back to work in 1961 was $1,076 a month. His loss of earnings, due to inability to work, was in excess of $6,900'. The outlay for doctors and hospitalization incurred by him as a direct result of the injuries in the collision upon which this suit is based amounts to $2,272.83; a total pecuniary loss of $9,172.83.

On cross-examination, plaintiff admitted that following the 1952 accident Dr. Judy mentioned tuberculosis of the spine to plaintiff and he was for a time placed in a tuberculosis hospital. That condition healed and he never thereafter had any trouble from it.

Dr. Eugene P. Szerlip, an admittedly qualified neurosurgeon, testified by deposition in behalf of plaintiff as follows: He is a resident of Albuquerque, New Mexico, engaged in the practice of his profession. He first saw plaintiff on May 21, 1960. Plaintiff gave him a history of the collision of May 5, 1960, and the injuries sustained by him. Plaintiff also told him that he had had an injury to his back in 1952, which resulted in hospitalization and surgical spinal fusion of the upper part of his lumbar spine.

Dr. Szerlip gave plaintiff a complete physical examination. He stood symmetrically and moved about freely. Numerous x-rays were taken of his body. The scars from the spinal fusion operation were healed and flattened. There was pain and tenderness in the lower portion of his back. Dr. Szerlip’s conclusions at that time were: “It was my impression at that time that the patient had suffered a sprain of his neck and back which at that time presented residuals of rather mild nature.”

Shortly thereafter, however, plaintiff again saw Dr. Szerlip, at which time the doctor noted that plaintiff was suffering emotional disturbances and referred him to Dr. Jack Mosier, a neurologist. On May 23, Dr. Mosier placed plaintiff in St. Joseph’s Hospital. He was released within a few days and was again seen by Dr. Szerlip. At that time he complained of low back pain in his right inguinal area and groin and was “upset and jumpy”. On June 1, plaintiff was seen by Dr. Evilsizer, a neuropsychiatrist. That examination was negative. On June 22, Dr. Szerlip found discomfort in plaintiff’s lower back. He again saw plaintiff on July 18 and August 19. The pain that had been only in his lower back had spread to the testicles. On October 19, that pain was more severe. Dr. Szerlip concluded that plaintiff was suffering from lumbosacral disease and in need of surgery. He operated on plaintiff’s back on November 21, 1960, and removed a herniated disc between vertebrae L-5 and S-l and placed a bone graft therein. Plaintiff left the hospital on November 28, wearing a brace. The doctor saw him several times in the spring of 1961, had additional x-rays made, and permitted him to return to work, cautioning him not to engage in heavy lifting or excessive bending.

Based upon his findings as above set forth, Dr. Szerlip’s final conclusions were that plaintiff suffered a protrusion of the disc at the lumbosacral level as a result of the stress placed on that part of his back when he was injured in the accident here involved; that the disc probably had undergone some normal changes with aging previous to the injury, but that the protrusion and the pain arose as a result of the injury sustained in the collision which became superimposed on the previous condition of the disc; that the fusion procedure may not be entirely successful and may break down under normal usage of his back. With an injury sufficient to cause protrusion of one disc, there is often injury to the discs immediately above it and that injury may eventually lead to premature breaking down and to the origin of painful symptoms arising from the disc above the one which has caused his present difficulty; so that plaintiff will have to refrain from heavy use of his back in the future.

On cross-examination, the doctor said it is possible that the 1952 accident, which also resulted in a spinal fusion, could have damaged the disc between L-5 and S-l, and may have been a factor in the degeneration of the latter disc.

Dr. Frank L. Feierabend, a doctor of medicine, specializing in industrial and orthopedic work, with offices in Kansas City, Missouri, testified in behalf of plaintiff as follows: He examined plaintiff in February, 1962. In that examination he found two scars on plaintiff’s back, one in the upper lumbar area, about the middle of plaintiff’s back, and the other in the lumbo-sacral area in his low back. Both, completely healed, are the result of surgery. There were muscle spasms in the lumbar area on both sides. Muscle spasm is caused only from pain. The doctor then made a complete examination of plaintiff and took x-rays of his back. The examination and x-rays showed that the earlier surgery In plaintiff’s middle back was healed and solid. Examination of the surgery performed in the lower back, in the L-5, S-l area, revealed that the bone graft had not been replaced by new bone; it is not solid. That result is not the fault of the doctor who did the operation; it often happens. Plaintiff will be subject to more surgery and another fusion in the area of the latter operation, performed in 1960. Assuming that plaintiff had enjoyed good health since 1952, when the earlier operation was performed; that since then he had done the heavy work incidental to truck driving until the May 5, 1960, injury, such as plaintiff claimed to have received, it is the witness’s opinion that the infirmities of which plaintiff suffered were caused by the collision of May 5, 1960, and the condition found following the operation for the latter injury is permanent.

The evidence in behalf of defendant, material to the question presented, consisted of the deposition of Dr. Jack Mosier taken on May 10, 1961, and the oral testimony of Dr. Frank R. Williams.

Dr. Mosier testified: He is a doctor of medicine, residing in Albuquerque, New Mexico, and specializing in neurology, which is directed to diseases of the central and peripheral nervous systems, and other diseases of the nervous system. Dr. Szer-lip referred plaintiff to him on May 23, 1960, because of multiple aches, peculiar sensations, specific pain below the shoulder blades and low back region, headaches, pain radiating down the back to both groins, in the legs, and slowness of thinking.

Examination of plaintiff revealed no objective findings. The complaints of pain made by plaintiff were not the usual symptoms found in an injury to the disc space between L-5 and S-l vertebrae. Plaintiff suffered no radiating pain in the sciatic area. He had loss of sensation in ■the groin region on the right side, which is not the likely result from an injury to the L-5, S-l disc area. He had psychomotor retardation and was slow in his movements and thinking and suffered a disturbance in special relationship of objects visually. These things produce worry, but there was no organic basis for it; it was functional, psychological. A normal finding in L-5, S-l injury is the absence of an ankle jerk; there was an ankle jerk in plaintiff. A neurological finding in a disc is possible when it pushes against the nerve root or spinal cord; most discs do not do this. When there is such pressure it is manifested by paralysis and weakness of the muscles involved, loss of sensation.

. On cross-examination, Dr. Mosier could not say that the accident actually caused mechanical damage or injury to him. When he first saw plaintiff, he suspected injury to his ilioinguinal nerve, but that was not verified. He examined plaintiff only from a neurological point of view, checking sensory findings, reflex changes, nerve root irritation. The doctor could not demonstrate a disc injury to plaintiff’s back, but he did not carry out every procedure that could be done.

Dr. Frank R. Williams, a physician in Kansas City, Missouri, specializing in orthopedic surgery, testified: After obtaining plaintiff’s history and his present complaints (as outlined by plaintiff and Dr. Szerlip’s testimony), he examined plaintiff. His conclusion was that the symptoms are not those symptoms usually found in the L-5, S-l level. The symptoms shown by plaintiff are referable to the lower dorsal and upper lumbar area. The doctor concluded that the 1952 operation scar over the lower dorsal, upper lumbar area was well healed. A thorough physical examination of plaintiff revealed nothing at all diagnostic in the complaint of pain with disc pathology attributable to the L-5, S-l area.

X-ray films taken by Dr. Williams were interpreted by him to reveal that the first lumbar vertebra had fused with the vertebrae above and below in the middle back area, which he concluded was due to disease process which plaintiff had suffered from the old tubercular infection. The x-rays taken by the doctor, which did not show the discs, revealed no narrowing between L-5 and S-l. Assuming the collision occurred as stated by plaintiff, the doctor was of the opinion that the complaints of plaintiff were out of proportion to the accident. The doctor, asked to assume the operation performed by Dr. Szerlip and the removal of a herniated disc as testified by the latter, gave it as his opinion that the symptoms of which plaintiff complained were not caused by a herniated disc at level L-5, S-l.

The evidence above set forth unquestionably is conflicting as to the cause and extent of plaintiff’s alleged injuries and infirmities allegedly resulting therefrom. Our function is not to decide that issue; it is to determine whether defendant’s theory is supported by substantial evidence. As stated in Mitchell v. Mosher, Mo., 362 S.W.2d 532, 536 [2-5]:

“In considering whether the trial court erred in overruling plaintiff’s motion for a new trial predicated upon inadequacy of the verdict, the appellate court views the evidence in the light most favorable to the ruling of the trial court. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 811; Glore v. Bone, Mo., 324 S.W.2d 633, 635 [3]; Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728 [2], [3], The appellate court, unlike the trial court, does not weigh the evidence. Rather, it seeks to ascertain only whether the trial court abused its discretion in ruling as it did. In other words, was there substantial evidence to support the verdict? ‘Substantial evidence to support the verdict’, as that phrase is applicable to the question here presented, requires determination of whether the amount of damages awarded is responsive to the evidence; and where the jury, as in this case, has found liability, it is also the jury’s duty to award plaintiff damages commensurate with the personal injuries and other compensable loss sustained by him.”

The question is: Did the testimony of Dr. Mosier and Dr. Williams, or either of them, constitute substantial evidence that plaintiff did not sustain injury to the intervertebral disc between lumbar vertebra 5 and sacral vertebra 1 of his spine which thereafter produced the infirmities and consequent disabilities, pain and suffering of which he complains ?

As we interpret Dr. Mosier’s testimony, he examined plaintiff only from a neurological point of view and that the neurological symptoms found by him did not warrant a finding that plaintiff’s infirmities, pain and suffering were attributable in any degree to any injury sustained to said disc. As we interpret Dr. Williams’ testimony, his findings were that the symptoms of which plaintiff complained were not referable to the spinal area from which the disc was removed; rather were they due to an old tubercular condition in the middle-upper spinal area.

It should here be noted that plaintiff makes no contention whatever that the infirmities for which he seeks to recover resulted in any degree by reason of aggravation of any antecedent injuries or disease suffered by him. To the contrary, his position is that he had entirely recovered from those injuries and disease; that prior to the collision of May 5, 1960, he was a well man and that all of his infirmities and consequent pain and suffering were and are the direct result of a protruding intervertebral disc between L-5 and S-l, which, he contends, was injured in the latter collision. Our conclusion is that the proof adduced by defendant constituted substantial evidence that neither the major portion of plaintiff’s medical expense nor any appreciable portion of his infirmities or suffering subsequent to his discharge from the Cameron Community Hospital was attributable to the trauma sustained by him in the collision.

If the jury found the facts with respect to plaintiff’s allegedly herniated L-5, S-l disc to be as defendant’s evidence tended to show (and, incidentally, as was Dr. Szer-lip’s impression when he first saw plaintiff), may this court say that the verdict was shockingly inadequate? The trial court, whose duty it was to weigh the evidence in ruling the same assignment in plaintiff’s motion for new trial, did not so find. Our review of the whole record on appeal shows no abuse of its discretion in that respect.

Accordingly, the judgment is affirmed.

All concur.


author: EAGER, Chief Justice.

text:
    Farrell E. BRESHEARS et al., Respondents, v. UNION ELECTRIC COMPANY of Missouri, a corporation, Appellant, and Claude Kays, Vesta Kays, Wilbur Boring and Lucile Boring, Defendants.
    No. 49905.
    Supreme Court of Missouri, In Banc.
    Jan. 13, 1964

      H. C. Salveter, Sedalia, Harry H. Kay, Eldon (John A. Woodbridge, St. Louis, of •counsel), for appellant.
    George H. Miller, Sedalia, F. M. Brady, Warsaw, for respondents.
   EAGER, Chief Justice.

This is a suit for damage to crops in the June-July, 1951, flood on the Lake of the -Ozarks; it is based on the theory of trespass. The case has been here previously, the opinion appearing at Mo., 347 S.W.2d 233; there a judgment for plaintiffs was reversed because of deficiencies in plaintiffs’ main verdict-directing instruction. The amended petition upon which the case was tried is in thirteen counts, and there are -thirteen plaintiff “units,” i. e., individual plaintiffs or married couples, all of whom are farmers along the Osage, the Pomme de Terre or the Little Pomme de Terre. These farms are located, generally speaking, between Warsaw and Osceola. Each count involves damage to crops owned by the appropriate plaintiff or plaintiffs. We note an earlier case, reported at Mo., 313 S.W.2d 638, in which the four Breshears who are plaintiffs here recovered a judgment for crop damages arising out of the same flood. That was obviously a different •claim, for no point of res adjudicata is raised as it certainly would be had the claims been the same. The plaintiffs here recovered, in the aggregate, $38,632.70 and after a timely motion for new trial (overruled under the ninety-day rule) defendant Union Electric Company appealed. The individual defendants were mere formal parties.

The evidence was substantially the same as in the prior trial and thus it is as related in some detail at 347 S.W.2d 233. The theory of plaintiffs was and is twofold, •namely: (a) that defendant’s power dam at Bagnell had, by impounding the waters and creating the Lake of the Ozarks, retarded the flow of the water in the Osage and its tributaries and had caused large quantities of silt, sand, gravel, etc., to be deposited along the course of the river and its tributaries; that these deposits decreased the carrying capacities of the streams, and in times of high water (specifically in 1951) contributed to cause the flood water to back up and overflow plaintiffs’ lands; also, (b) that the lake itself acted as a retarding agent upon the natural drainage of overflow waters and impaired and decreased the flood carrying capacities of the rivers, thus contributing to the overflow of plaintiffs’ lands and crops; and that the waters would not have flooded plaintiffs’ lands had it not been for the presence of the dam. Defendant’s theory was that there was no material restriction of the river channel by silting, that the presence of the lake did not cause or contribute to the overflow, and that this flood would have overflowed plaintiffs’ lands and crops whether the lake and dam had been there or not.

In view of the nature of the points raised here, we will not need to state the evidence in detail. As previously, there was much evidence of silting at various points in the Osage below the plaintiffs’ farms, with testimony that this restricted the channel; there was opinion evidence, lay and expert, that at flood times the silting retarded the flow and decreased the velocity of the streams, and that it contributed to cause the water to back up on plaintiffs’ lands and to stay there longer. There was also evidence for plaintiffs that the presence of the lake itself retarded and slowed the flow of the flood waters and contributed to the same result. On defendant’s behalf there was much evidence, largely by exhibits and expert testimony, tending to show that there was no material restriction of the channel by silting, that the river scoured out its channel when necessary, and that there was no adverse effect on plaintiffs’ lands from the presence of the lake and dam or from any silting. The defendant had taken easements from the plaintiffs permitting overflows up to certain levels; most of these permitted flooding up to 673 feet above sea level. All the damages claimed here were for flooding above the level of the respective easements.

There was a great deal of evidence, both oral and documentary, concerning prior and subsequent floods,' — from 1895 to 1961, with detailed comparisons. The ones principally discussed were in 1895, 1929, 1935, 1941, 1943, 1951, 1958 and 1961. The dam was built in the period from 1929 to 1931, and the lake was filled by 1935. Sundry charts, tables, profiles, and cross-sections of the channel and flood plain of the Osage were received in evidence for the purpose of showing rainfall, gauge readings, river capacity, velocity of the water, lake levels, river levels, volumes of discharge passing given points, lake inflow and outflow, etc. While perhaps not vital here, it was shown that in the first flood after the dam was constructed (1935) the lake level at' the dam was only permitted to rise to 660 feet (or a trifle less), whereas in 1951 it rose to 664.4 feet. The dam, of course, contained flood gates for the release of water when desired, but this case is not founded upon any theory of negligence. We mention these lake levels solely because of plaintiffs’ theory and evidence that a higher lake causes a greater retarding effect.

Darrell Adams, a consulting engineer, testified for plaintiffs; in the course of his testimony he expressed opinions which substantiated plaintiffs’ theory that the flood waters were retarded and caused to spread out (and thus overflow plaintiffs’ lands) by the silting and by the very presence of the lake. He testified in considerable detail, giving the results of his investigations; these involved the floods of 1929 and 1935, as well as the one of 1951. He also testified that the velocity of flood waters is slowed when it spreads outside the river channel and that the velocity is or should be greater in the channel than in the overflow, increasing as the water rises further. In the course of his examination plaintiffs offered in evidence and the court received a chart which the witness had prepared, designated as Plaintiffs’ Exhibit 8. That chart contained figures showing comparisons between four different floods. Since its competency is one of the two points raised on this appeal, we set it out, as follows:

(We have omitted certain designations showing the sources of some of these figures. That element will be discussed later.) Previously, Plaintiffs’ Exhibit 7 had been received in evidence; that was a chart showing, among other things, the gauge readings at Warsaw in the floods of 1922, 1927, 1929, 1935, 1946,, 1951 and 1958. The maximum of these readings prior to> 1951 was 35.2 feet (in 1946 and 1958); the reading in 1951 was 40.1 feet. All of that information came from published data- of the Weather Bureau or of the U. S. Geological Survey. Exhibit 7 was used largely for a comparison of average rainfalls and maximum gauge readings.

When Exhibit 8 was offered, there was no obj ection; however, we do not hold that to be controlling, under these circumstances. The witness explained the figures of Exhibit 8 in some detail; he had gotten a good many of the figures from defendant, some from Weather Bureau Publications, and some from U. S. G. S. publications; he had apparently gotten the last three velocity figures from the Union Electric as well as most of the “Discharge” figures. The May, 1929, flood referred to on this exhibit occurred prior to the building of the dam. Mr. Adams testified: that at a gauge of 40.1 feet (1951) the river should, under natural conditions, have a much greater velocity than at a gauge reading of 34; that, in his opinion, the velocity at 40.1 feet should be at least six and one-half ■feet per second instead of the recorded 4.94 feet; also, that the volume of 111,200 cubic feet per second in 1951 should have been in the neighborhood of 140,000 cubic feet if “allowed to flow.” In comparing the 1951 flood with the 1935 flood, and explaining why, in his opinion, the lands in question were not overflowed in 1935, the witness said: “I think that in 1935 there had been a lot of clearing done; the water was moving faster, the lake level was not allowed to get above 660, and it was flowing out through the dam, flowing downstream as fast as it was flowing in. It was acting •more nearly like a natural stream. * * * in 1951 the lake level was 4.4 feet, roughly, above anything in 1935; therefore, this water was coming down and hitting this lake or this 4.4 feet higher water, and it slowed it down to this 4.94 feet per second reading. * * * if the velocity is slowed, it has to rise and spread out in order to obtain cross-sectional area enough to pass this water.” In the course of a rather detailed cross-examination, the witness was shown .a sheet of the U. S. Geological Survey (Defendants’ Exhibit a), showing “Discharge measurements” on the Osage at high water stages in the years 1926-1943; in part, this showed the following:

“5-21-29 * * Mean Velocity * a 4.53 b 5.17 * * * *
a main channel
b overflow”

On five subsequent measurements of velocity in this exhibit the letter “b” (overflow) appears opposite the first figure which is in each instance substantially less than the subsequent “a” figure. A stamp appears on the exhibit as follows: “Unpublished Records Subject To Revision.” Mr. Adams, when confronted with the statement of counsel that the figure 5.17 was shown to be the velocity in the overflow, stated that “this is backwards,” and that the channel measurement “would be faster,” but that he had not seen the paper before and that he would try to find the source of his 1929 velocity figure, “5.17.” Toward the end of the trial this witness was recalled by defendant; he stated that he had looked for the figure but had not found it, that “everything on these charts came from Union Electric, U. S. G. S. or the Weather Bureau,” and that he “believed” that the figure came from the Weather Bureau, but could not confirm it. He admitted that the point sought to be made by Exhibit 8 was that there was a higher velocity in 1929, before the dam was built, with a stage of 34.8 feet than there was in 1951, with a stage of 40.1 feet. He further testified, however, that the same comparison was applicable to the 1935 and 1951 figures, both of which velocities were furnished by Union Electric, and that the velocity of 1951 should have been much greater. Counsel for defendant then moved that “Exhibit 8 be excluded from the record and the jury be instructed to disregard it for the reason that it is now shown that the figures which went into it were not verified and cannot be verified by the plaintiffs and the man who prepared them.” After considerable colloquy the motion was overruled, the Court commenting that it might be considered “for whatever it is worth.”

Defendant’s counsel insist here that the entire exhibit was offered to furnish a demonstrative comparison of the action of the flood waters before and after the dam or, in other words, to show that they flowed faster before the dam was built; and that, since the 1929 velocity relied on (5.17 feet per second) was unverified, the whole exhibit was inadmissible. They cite a case permitting an objection at the time when it first became apparent to counsel that the evidence was inadmissible. Kansas City v. Thomson, Mo., 208 S.W.2d 216. We concede that principle. The difficulty here is that, after the witness was recalled, counsel moved to exclude the whole exhibit, assuming then and now that there were and are no admissible parts in it. The principle is well established that if any part of an exhibit is admissible an objection going to the whole of it is properly overruled. Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022, and numerous cases there cited. While the comparison of flows before and after the dam was perhaps the principal purpose of this exhibit, it also tended materially to show a slowing of the velocities in the floods from 1935, about the time the lake was first filled, to 1951, after it had existed for sixteen more years; it thus had some bearing upon the theory of retardation by silting, and of retardation by the higher level to which the lake was permitted to stand in 1951, even had the velocity figure for 1929 been eliminated. It further showed “discharge” comparisons which were conceivably material on the issues. These things were also explained and discussed by the witness. It is entirely clear to us that the whole exhibit was not inadmissible, “demonstrative” though it be as counsel says, and that the motion was properly overruled. While we stand on the reasons thus stated, we are not wholly convinced that even the figure “5.17” was inadmissible, in view of the testimony of Mr. Adams and the apparent confusion and discrepancies in Defendant’s Exhibit A (the Geological Survey Report) which bore the figures 4.53 and 5.17, but with footnotes-designated in the inverse order from those of five subsequent years. In our view we do not need to rule this specific point. We do not rely upon the contention that this-exhibit was merely cumulative of lay testimony that the velocity was slowed after the-dam was built for, intrinsically, this exhibit was a type of evidence different from that oral, lay testimony. The point made concerning Exhibit 8 is denied.

Counsel suggests that if his motion to strike the exhibit should be held ineffective, then we should hold its admission to be error under our inherent power to recognize and reverse for “plain error”' under Rule 79.04, V.A.M.R. The record here does not indicate to us an intentional use of incorrect data by the witness; it. rather tends to indicate a serious question as to the accuracy of the Geological Survey notes for the year 1929 in Exhibit A. No-witness attempted to explain the apparent, discrepancy in those figures, or to refute-Mr. Adams’ testimony that “this is backwards.” Rule 79.04 is invoked at times in instances where the Court deems that manifest injustice “has resulted therefrom,” which means, of course, from the error claimed to have been committed. Also, the rule is not a refuge for the failure to make proper objections. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421. It rather seems, to us that defendant’s highly sagacious, counsel here elected to take his chances on-excluding the entire exhibit and, having-done so, he must stay with his election. Kelly v. Terminal R. R. Ass’n of St. Louis, Mo., 315 S.W.2d 699, 704. Nor are we convinced that the admission of the 5.17 foot velocity figure, whether erroneous or not if specifically objected to (and of that we are doubtful), resulted in manifest injustice. In one sense it was cumulative though, as already noted, not technically so; the jury heard all the testimony, pro- and con, regarding that controverted velocity figure, and heard the full discussion of Defendant’s Exhibit A with the supposed government figures for 1929. Moreover, it certainly could have decided the case just .as it did with the S.17 figure stricken. This is not a case for the application of Rule .79.04. See, generally, Faught v. Washam, Mo., 329 S.W.2d 588, 599; Parmley v. Henks, Mo., 285 S.W.2d 710.

The remaining point concerns plaintiffs’ Instruction No. 1. In view of the objections, it is necessary to quote it in full. It was as follows: “The court instructs the jury that if you find and believe from the evidence that in the months of June and July, 1951, the defendant Union Electric Company, owned and operated a hydroelectric dam across the Osage River at Bagnell, Missouri, and if you further find that said dam impounded the water of the Osage River, creating a reservoir which at full stage of 660 feet above mean sea level extended from Bagnell, Missouri, to approximately the county line between Henry and St. Clair Counties; and if you further find that Plaintiffs’ farms in question were either upon or nearby the said reservoir as it extended above Warsaw, Missouri; and if you further find and believe that as a result of the construction, operation and maintenance of the dam at Bagnell by the Defendant silt deposits had been formed in the channel and along the banks of the Osage River in and around Warsaw and to a lesser degree at the various places mentioned in evidence up the river to Smart Island by June, 1951; and if you further find that said silt deposits retarded the flow of the Osage River and its tributaries in the vicinity from Warsaw, Missouri, west past Plaintiffs’ farms in June and July, 1951, thereby contributing to cause the flood waters of the Osage River to go upon Plaintiffs’ farms in June and July, 1951, and destroy the crops in question; and if you further find and believe from the evidence that in the latter part of June and early part of July, 1951 the lake, resulting from the construction and operation of the dam acted as a retarding agent upon the natural drainage of overflow water from the Osage River and its tributaries thereby greatly impairing and decreasing the natural floodwater carrying capacity of the Osage River and its tributaries in the vicinity of plaintiffs farms and if you find that the presence of said lake together with the silting caused the flood waters of the Osage River to go upon plaintiffs farms in June and July of 1951 and destroy the crops in question; then your verdict will be against the Defendant and in favor of the Plaintiffs; unless you further find and believe from the evidence that Plaintiffs’ damages, if any, were caused by an unprecedented rainfall in such amounts that plaintiffs’ crops in question would have been destroyed even though Defendant’s dam had never been built.” A comparison of this instruction with the one previously held deficient by this Court (347 S.W.2d 233) shows that plaintiffs have now hypothesized: that silting had occurred at various places because of the dam; that the silting retarded the flow of the Osage and its tributaries and (see discussion under (b) later) contributed to the flooding of plaintiffs’ lands and crops; that the lake itself acted as a retarding agent and similarly contributed; and that these two elements jointly caused the damage.

The errors now assigned to the giving of this instruction are: (a) that it erroneously referred to a “full stage of 660 feet” in that such a reference was not justified by the evidence and was misleading; (b) it assumed that if the silt deposits “retarded the flow,” they “thereby” contributed to cause the flooding of plaintiffs’ farms, which was ' a highly controversial issue ; and (c), it assumed that if the lake acted as a retarding agent upon the overflow waters, it “greatly” impaired the natural flood carrying capacity of the river and its tributaries, whereas the whole question of any such retardation and its possible effect was a disputed fact issue. We consider these in order. As to (a), defendant contends that “full stage” of 660 feet gave the jury the impression that at such stage the lake was full from the dam clear on past plaintiffs’ farms and that there would be no place for flood water to go; and that the lake actually would not be “full” until the water reached the level of the easements on plaintiffs’ lands, most of which extended to 673 feet; that the term was not justified by the evidence, that it gave the impression that defendant had no right to raise the lake level above 660 feet, and that it was confusing. Counsel cite Smith v. Stanolind Pipe Line Co., 354 Mo. 250, 189 S.W.2d 244, to the effect that whether an instruction is confusing depends upon how it would be understood by a jury of ordinarily intelligent laymen. That is true. Here the evidence definitely showed that at 660 feet the lake extended to and “feathered out” at the county line between Henry and St. Clair Counties. The instruction required the jury to so find. The words “full stage” were added as a descriptive term; one of defendant’s own engineer-experts testified that “We now consider normal full pool as 660”; the other referred to “the normal full lake elevation of 660.” Mr. Adams, plaintiffs’ engineer, testified that “full pool reservoir” was 660 feet. Other testimony showed that at 660 feet the lake in the vicinity in question was about two-thirds bank full, and the record is replete with discussions and minute descriptions of water levels near or at plaintiffs’ farms at different gauge readings and at specific flood stages. Some of the plaintiffs detailed what parts of their lands were flooded at different elevations. Upon this record it would not be realistic to hold that the use of the term in question confused or misled an ordinarily intelligent jury.

Point (b). Counsel says that the term “thereby contributing” assumes that the silt deposits did contribute to the flooding of plaintiffs’ lands. The instruction expressly required the jury to find that the dam caused silting and that the silt deposits retarded the flow past plaintiffs’ farms. It might have been preferable thereafter to have used the words “and that they thereby contributed to cause * * * ” in lieu of the phrase “thereby contributing to cause * * * ” but, considering the instruction: as a whole, we believe that the jury would understand it as requiring a finding on the question of contribution, as well as upon the issues of silting and retarding. The issues in the case were simple, and certainly the jury understood that it must find that the silting and the lake itself :ach. contributed, and that together they caused the damage. In the latter part of the instruction the jury was expressly required to find that the presence of the lake and the silting caused the water to go on plaintiffs’ lands. We find no prejudicial error in the use of the wording thus complained of.

The last complaint (c) is that the instruction assumed that if the jury found that the lake acted as a retarding agent upon the natural drainage of overflow water, it greatly impaired the flood carrying capacity of the river. The wording actually used (after hypothesizing the retardation) was “thereby greatly impairing and decreasing * * The principal complaint is made of the word “greatly,” although counsel also insist that the whole phrase assumed an impairment. What we have said in the preceding paragraph concerning the claimed assumption of a fact is also applicable here. An express submission of the impairment would have been preferable, but the jury necessarily understood under this instruction that it must find a sufficient impairment of capacity and retardation of the flood water by the lake to contribute to the overflow of plaintiffs’ lands, and that this and the silting together caused that flooding. The word “greatly” could only mean an effect sufficient to contribute to the damage, when viewed with the whole instruction. We find none of these complaints to be sufficiently substantial to constitute prejudicial error.

The judgment is affirmed.

All concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

text:
    Melvin J. SPARKS, Plaintiff-Appellant, v. Glenn James BALLENGER and Springfield Ambulance Service of Springfield, Mo., Inc., a corporation, Defendants-Respondents.
    No. 49759.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for appellant.
    Farrington & Curtis, E. C. Curtis, Thomas Strong, Richard K. Wilson, Springfield, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

Melvin J. Sparks, plaintiff-appellant, filed a petition in the Circuit Court of Greene County, Missouri, containing two counts. In count one, he asked judgment in the sum of $27,500 as damages for personal injuries alleged to have been sustained as a result of a collision between a Ford car and an ambulance in which he was riding. In count two, he asked judgment for $37,500 for loss of services by consortium and medical expenses incurred by reason of personal injuries sustained by his wife in the same collision.

The ambulance owned by respondent Springfield Ambulance Service at the time of the collision was being driven by respondent Ballenger. A trial resulted in a jury verdict for the defendants-respondents. Plaintiff-appellant appealed from the judgment entered.

The facts as disclosed by the evidence are: On December 14, 1958, appellant and his wife Charlsie were in their car driving north on a blacktop road near Willard, Missouri. At about 2:30 p. m., their car collided with another car and appellant and his wife sustained serious injuries. In response to a call, respondent Ambulance Service sent an ambulance to the scene with respondent Ballenger as the driver. Appellant’s wife was placed on a cot in the ambulance and appellant occupied the front seat beside the driver. Among the injuries sustained by appellant’s wife was a broken leg and appellant suffered a severe injury to the chest.

Enroute to a hospital, the ambulance and a Ford car collided at the intersection of Grant Street and Atlantic Street in Springfield, Missouri.

Appellant, in his petition, alleged that he and his wife sustained serious injuries and an aggravation of the injuries sustained in the first collision. It is for the injuries claimed to have been sustained in this second collision that appellant seeks damages in this action.

We need not detail the evidence with reference to the collision of the vehicles except to say that appellant introduced evidence from which a jury could infer that the driver of the ambulance was negligent. The respondents introduced evidence that the driver of the Ford car was guilty of negligence which caused the collision and. that the driver of the ambulance was not negligent in any respect.

The question on this appeal concerns the-giving of an instruction at respondents’ request on the burden of proof as to the injuries appellant and his wife sustained ini the two collisions.

We deem it best to set forth the instruction of which appellant complains and also’ an instruction given by the court on behalf of appellant pertaining to the same subject matter.

The instruction (No. 10) complained of reads: “Under the law of this state, the-defendants, Glenn James Ballenger and' Springfield Ambulance Service, Inc., could' not, in any event, be liable for the injuries-suffered by plaintiff in the first accident,, that is, the accident with the Thomas motor vehicle, or for damages sustained by plaintiff because of injuries his wife received in the first accident. Likewise, defendants-could not, in any event, be liable for the medical expenses plaintiff incurred as a result of the injuries he received in the first accident, or for the medical expenses-plaintiff incurred as a result of injuries-his wife received in the first accident.

“Therefore, the Court instructs the jury that in the event your verdict is in favor of the plaintiff, in assessing his damages you must not consider either,

"One: The injuries suffered by plaintiff in the first accident, or

“Two: The damages sustained by plaintiff because of injuries his wife received in. the first accident, or

“Three: Medical expenses incurred by plaintiff as a result of injuries he received in the first accident, or

"Four: Medical expenses incurred by plaintiff as a result of injuries his wife received in the first accident.

“In this regard, you are further instructed that the burden of proof is upon the plaintiff to prove by a preponderance, that is, the greater weight of the credible evidence, what injuries, if any, were received by himself and his wife in the second accident and what medical expenses, if any, he incurred because of injuries, if any, to himself and his wife resulting from the second accident.”

Instruction No. 4, given at appellant’s request, reads:

“The Court instructs the jury that under the law of this state damages are not rendered uncertain as a matter of law because they cannot be calculated with absolute accuracy. If the defendants by their negligent conduct render difficult the ascertainment of the precise damages suffered by plaintiff they are not entitled to complain that the damages cannot be measured with exactness. The mere fact that damages may not be calculated with absolute certainty or exactness under such circumstances is not a bar to their recovery.

“Therefore, if you find and believe from all the evidence that on December 14, 1958, the plaintiff and his wife were injured near Willard in what has been referred to in evidence as the first collision and that thereafter either or both, while being transported in the ambulance in question, sustained in the second collision as the direct and proximate result of defendants’ negligence, if any, as defined in other instructions, additional injuries or an aggravation of any injuries previously received in the first collision, and if you further find and believe that because of such negligence, if any, of the defendants it is now impossible to ascertain the precise damage, if any suffered by plaintiff in the second collision while he and his wife were being transported in said ambulance, then the fact that plaintiff has not proved, if you should find he has not, with certainty or exactness the extent of his damages, if any, resulting from the second collision will not bar his recovery in this case.

“Under such circumstances you may determine the damages, if any, from such reasonable inferences as you find warranted by all the evidence and other instructions herein, even though the result be only approximate. But in arriving at your verdict you will not allow the plaintiff any damages for injuries caused solely by the first collision, and in no way aggravated by the second' collision.”

Appellant introduced substantial evidence that he suffered a severe injury to his knee in the second collision and that he did not sustain this injury in the first collision. Evidence was introduced that the wife did' not sustain any cuts or bruises about her face and head in the first collision but that she did sustain such injuries in the second collision and that they were serious.

Medical evidence was introduced to the effect that whatever injuries were sustained in the first collision they were probably aggravated by the second collision. Of course, the doctors could not determine the extent of the aggravation but in their opinion, considering the force of the impact, an aggrat-vation was a natural sequence. As to the medical expenses, the doctors testified they could not with accuracy apportion such expense between the injuries sustained in the two collisions.

Respondents say that the question, of the correctness of the instructions on damages is immaterial because the jury returned a verdict for them and therefore the jury never reached the question of damages. That is the general rule. See Merritt v. Mantony, Mo., 353 S.W.2d 768, l. c. 769 (2), and cases there cited.

We have concluded to pass on the-correctness of the instructions because appellant says that instruction No. 10 amounted to a directed verdict for the respondents- and placed the burden of proof on the wrong party. Note what is said in appellant’s brief: “In telling the jury that the-burden of proof was upon the plaintiff to. prove the damages resulting from each of the two collisions when plaintiff could not possibly do so because of defendants’ own negligence, this instruction was prejudicially erroneous in that it placed the burden of proof on the wrong party.

“McClosky [McCloskey] v. Koplar, [329] Mo.Sup. [527], 46 S.W.2d 557, 563-564(7) [92 A.L.R. 641].

“Notwithstanding the fact that Instruction No. 10 is a burden of proof instruction as to damages in a case where the verdict was for the defendants and the jury made no finding of damages, yet this instruction was so confusing both as to the question of damages and the question of liability as to be misleading and therefore necessitate a retrial of the case.

“Schide v. Gottschich et al., Mo.Sup., 43 S.W.2d 477, 481-2(8, 9).” (It should read “[Schide v.] Gottschick [, 329 Mo. 64, 43 S.W.2d] * * * 777, 781-2 * * *.”)

We call attention to the fact that the statement to the effect that instruction No. 10 placed the burden of proof upon plaintiff to prove the damages resulting from each of the two collisions is not accurate. The instruction did not require appellant to prove what injuries were sustained in the first collision. There is also an inaccurate statement in the next paragraph to the effect that instruction No. 10 was confusing on the question of liability. The instruction in no way referred to liability. We do not agree with appellant that instruction No. 10 placed the burden of proof on the wrong party. In a collision case, such as this, an injured party may not recover damages unless he proves by a preponderance of evidence that the defendant’s negligence caused the collision and the injury sustained. All of instruction No. 10, except the last paragraph, simply informed the jury that respondents could not be held liable for any injuries or medical expense which were sustained in the first collision. Appellant does not contend otherwise.

The last paragraph of the instruction of which complaint is made did advise the jury that the burden of proof was on appellant to prove what injuries, if any, were received by him and his wife in the second collision and what medical expenses he incurred because of such injuries.

We are of the opinion that under the law a plaintiff must, in a case such as we have before us, produce evidence from which a jury may draw an inference that the plaintiff was injured as a result of defendant’s negligence and that he incurred medical expense necessary to treat such injuries. We are further of the opinion that in the circumstances as presented by the evidence a plaintiff is entitled to an instruction such as was given at appellant’s request in this case. Note that instruction No. 4 advised the jury that plaintiff need not with certainty or exactness prove the extent of his damages. Furthermore, the instruction went on to tell the jury that “Under such circumstances you may determine the damages, if any, from such reasonable inferences as you find warranted by all the evidence and other instructions herein, even though the result be only approximate.”

We rule that appellant’s case was submitted to the jury by proper instructions on the question of damages. Thompson v. Healzer Cartage Company, Mo., 287 S.W.2d 791, 794(7, 8); 25 C.J.S. Damages § 162, p. 815, paragraph entitled “Uncertainty as to amount only.”

The case of McCloskey v. Koplar, supra, cited by the appellant, was a case under the res ipsa loquitur doctrine. That doctrine may not be applied in a case such as is now before us. However, even in the res ipsa cases a plaintiff must produce evidence from which a jury may draw an inference of negligence. It was so held in the Mc-Closkey case. The question of instructions on damages was not involved. In Schide v. Gottschick et al., supra, cited by appellant, a judgment for the defendant was reversed and the cause remanded for the reason that an instruction was given eliminating from consideration of the jury aggravation of former injuries. See 43 S.W.2d l. c. 781, 782(8, 9). We do not have such a situation in the case now before us.

Appellant cited a number of cases from other jurisdictions. We shall briefly refer to several of them. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544, was an action under the Anti-Trust Act for damages involving a conspiracy. The court in the course of the opinion quoted with approval a ruling made in Gilbert v. Kennedy, 22 Mich. 117; 282 U.S. 555, 51 S.Ct. l. c. 251, 75 L.Ed, 544, where the court held in substance that where, from the nature of the case, damages could not be measured with certainty by a fixed rule, the facts and circumstances tending to show the probable amount of such damages should be submitted to a jury. The instructions in the case now before us are in harmony with that ruling.

The case of Micelli v. Hirsch, Ohio App., 83 N.E.2d 240, was a suit for wrongful death. Two parties were sued. One defendant’s car struck deceased and within seconds the other defendant’s car ran over the deceased. Obviously, it was impossible to determine which car was responsible for the death. The court ruled a joint action against the two defendants was proper. The court held that if either defendant was not guilty of negligence, that defendant should not be held liable, but if either was negligent, he would be liable for the death. The distinction between the situations in that case and the one in the case now before us is so obvious that a discussion of the question is unnecessary.

In other cases cited, the facts and circumstances were materially different from the ones in the case before us and may be readily distinguished. However, whether they may or may not be distinguished, it is our opinion that the case before us for review was properly submitted to a jury on the question of damages.

The verdict of the jury for respondents was evidently based on the theory that respondents were not guilty of any negligence. There was ample evidence to sustain such a finding. Furthermore, there was substantial evidence to justify a finding that the driver of the Ford car was negligent and responsible for the collision.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur,