author: HOUSER, Commissioner.

text:
    Lee ETHRIDGE and Jane Ethridge, Respondents, v. Hershel PERRYMAN and Myrtle Perryman, His Wife, Stacy Perryman, and T. Victor Jeffries, Trustee, Appellants.
    No. 49131.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.

      J. W. Grossenheider, Lebanon, for appellants.
    Wendell L. Evans, Jr'., Lebanon, for respondents.
   HOUSER, Commissioner.

This is a suit in equity to reform a deed of trust to include three parcels of land instead of one, on the ground of mutual mistake of fact; to foreclose the reformed instrument, and cancel deeds to the other two parcels. Plaintiffs Lee Ethridge and wife are the beneficiaries named in the deed of trust. Defendants Hershel and Myrtle Perryman, husband and wife, are grantors of the deed of trust and of the deeds to the other two parcels. Defendant T. Victor Jeffries is the trustee named in the deed of trust. Defendant Stacy Perryman, father of Hershel, is the grantee named in the deeds to the other two parcels. The chancellor found the issues for plaintiffs and against defendants, decreed reformation on the ground of mutual mistake of fact, and ordered the foreclosure of the' reformed instrument. All parties defendant except the trustee appealed.

We have .jurisdiction because this case' involves title to real estate. Article V, § 3, Constitution of Missouri, 1945, V.A.M.S.

Hershel and Myrtle Perryman owned three adjoining lots in Lebanon, as tenants by the entireties. Lots 1 and 2 fronted on a street. Their house was built on Lot 1. Lot 3 adjoined and lay to the rear of Lots 1 and 2. There was no access to Lot 3 by street or road. Perryman wanted to borrow money. Lee Ethridge came to the Perryman home to discuss making a loan, and to look at the property Perry-man was offering as security. After inspecting the Perryman property Ethridge agreed to make a loan. The parties went to the offices of Jeffries Abstract Company, where employee Marie Jones prepared a note for $3,425 and a deed of trust, which Hershel and Myrtle Perryman signed. The Perrymans failed to pay the note or any part of it when due and the mortgage was foreclosed. Lee Ethridge bid the land in for $1,000 and received a trustee’s deed to the property. Ethridge agreed with Perryman that if the latter found a purchaser, Ethridge would deed the property to the purchaser for the amount of the loan, interest and expenses of foreclosure, and Perryman could keep any balance over and above that amount. Perryman found a purchaser, one Claude Admire. Perryman, Ethridge and the purchaser Admire met at the abstract company office to close the deal. There it was discovered that the foreclosed deed of trust had described Lot 3 but had not included Lots 1 and 2. Perryman refused to consummate the deal, and this action followed.

Where the lender of money intends to make a loan on the basis of the security of an entire tract of land consisting of three parcels, and the borrower intends to mortgage the entire tract, and they make an agreement on these terms but by mistake of the scrivener only one of the three parcels is described in the deed of trust, and the mistake is mutual as between mortgagor and mortgagee, the latter is entitled in equity to reformation of the deed of trust to include the part omitted. In this connection see Zahner v. Klump, Mo.Sup., 292 S.W.2d 585; Bartlett v. White, Mo.Sup., 272 S.W. 944.; St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764. The burden of proof in such case is upon the party seeking reformation to show by clear, cogent and convincing evidence (1) a preexisting agreement of the parties to describe the entire tract of three parcels in the deed of trust, see Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099, (2) the mistake and (3) the mutuality of the mistake. Leimkuehler v. Shoemaker, Mo.Sup., 329 S.W.2d 726. We review the case de novo, reaching our own conclusions, Leimkuehler v. Shoemaker, supra, 329 S.W.2d, 1. c. 730, giving due deference, however, to the finding of the chancellor where issues of fact have been decided upon conflicting evidence. In such case the chancellor’s finding “will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him.” City of Warsaw v. Swearngin, Mo.Sup., 295 S.W.2d 174, 181, 182.

On the disputed issues of fact our independent findings are consistent with the decree of the trial chancellor. Plaintiffs’ evidence that the parties agreed that all three of the lots stand as security for the debt is clear and compelling. We believe Eth-ridge’s testimony, corroborated by his son, that Perryman took Ethridge through the house, showed him the number of rooms and “all about it,” and over all the land; that Perryman was willing and intended to give Ethridge “the house and the land there” as security for the- loan, and that Ethridge would not have loaned the money on the back part of the property (Lot 3) without the house. We discount Perry-man’s testimony, although corroborated by his father, that after looking over the property Ethridge “wanted the whole thing” but that Perryman refused and gave Ethridge his choice of “either the house and the two lots in front, or the rear property,” and that Ethridge stated he would rather have the rear property because “the house might burn down,” while the rear property (vacant Lot 3) “might be fine building lots.”

With respect to the reasonable market value of Lot 3 on the date of the loan we accept the testimony of T. Victor Jeffries, an attorney and vice-president and chairman of the board of a savings and loan association in Lebanon, and that of C. R. Willard, loan officer of a bank there, that it was worth from $1,200 to $1,500 without an access road (there was none) ; $2,000 with a road. We question the testimony of an adjoining landowner that Lot 3 was worth “about $4,500” and that it could be subdivided into lots worth $500 each.

The scrivener’s testimony supports plaintiffs’ evidence that the parties agreed that all three lots be included in the description of the land to be mortgaged. Marie Jones testified that Ethridge and Perryman came into the office together; that Perryman handed her an abstract of title with instructions to bring it up to date and to prepare a note and mortgage for the land “covered” and “that Perryman owned” in the abstract, — “for all of his land.” The abstract showed that the Perrymans owned three separate tracts, Lots 1, 2 and 3, acquired by three separate deeds, all described by metes and bounds. In drawing the deed of trust Marie Jones mistakenly omitted the description of Lots 1 and 2. She copied only the description of Lot 3, taking it off the sheet of the abstract describing land mortgaged to one Curtis. She thought this was all the land shown in the abstract as the property of the Perry-mans, and did not know of the mistake at the time. She testified that the description written into the deed of trust did not cover the property “that Mr. Ethridge and Mr. Perryman instructed [her] to draw a mortgage up on”; that the abstract covered “tracts 1, 2 and 3, and that was the land * * * [she] should have prepared it for”; but that “the mortgage was just this Tract No. 3.” Perry-man’s testimony that he handed Marie Jones a deed containing a description of Lot 3 from which to copy the description, and that he did not give her an abstract of title, was specifically denied by Marie Jones. We accept the testimony of Marie Jones, an independent witness whose testimony has the clear ring of truth about it, both in deference to the trial chancellor and upon our own study of the conflicting testimony on this phase of the case.

In support of their claim that Lots 1 and 2 were not intended to be included the Perrymans testified that before Mrs. Perry-man would sign the deed of trust she inquired and wanted to be assured that it did not include the house and front lot and that both Ethridge and Perryman so assured her, but for reasons stated infra we find this did not happen.

We find in the foregoing facts a case of mutual mistake of fact; that the scrivener was instructed to include all three lots in the description and that all three were intended and agreed by Ethridge and Perryman to be so included, but that by mistake of the scrivener only one of the lots was described; that when the deed of trust was executed and delivered both Ethridge and Perryman considered that all three were included; and that as between Ethridge and Perryman the mistake was mutual.

Subsequent events confirm this conclusion. Twice after the loan but before foreclosure Perryman sought to borrow money from Ethridge. The first time he wanted $250 for insurance on his house and extra money to tide him over “until work opened up.” Ethridge made no further loan to Perryman, but did pay for an insurance policy on the house, which was issued in the name of the Perrymans, with a loss payable to mortgagee clause in favor of the Ethridges. The original endorsement executed after foreclosure, changing the named insured from Perry-mans to Ethridges and reciting “the mortgage clause in favor of Lee and Jane Ethridge is deleted from this policy,” was introduced in evidence. The second time Perryman wanted to borrow money for a filling station venture. Ethridge told him he had no money to lend but if this was such a good deal he ought to be able to borrow some money elsewhere, to which Perryman answered that because Ethridge had “all the loan there was on his property over here, house and land, * * * he [Perryman] couldn’t go any place else to get the money.” A neighbor Robert Arnold, overheard this conversation, and verified the fact that Perryman had stated he could not borrow on the property elsewhere because Ethridge had a mortgage “on all of it, the house and all.”

After the foreclosure Ethridge went to Perryman’s house and told him all he wanted was his money; that Perryman could sell the property, and Perryman could have all he received from a sale of the property over and above the amount owed. Perryman interested Mr. Admire in the purchase of Lots 1, 2 and 3, and they arrived at a sale price of $4,200 “on the whole place,” “where the house set and the whole thing,” i. e., the house, both front lots, and all of the back lot except for a small square of land at the rear of Lot 3, which Perryman wished to reserve. During the negotiations Mr. Admire raised the question of the foreclosure. Perryman gave Mr, Admire “the impression” that Ethridge had a deed to all three lots; and that Perryman had “let Ethridge have it back,” but assured him that it was agreeable with Ethridge for Perryman to “go ahead and sell it, all he wanted was what he had in it.” Perryman told Mr. Admire that he would call Ethridge, and that Ethridge would “be over the next day and make the deed” to Mr. Admire.

On November 28, 1960 Perryman, Admire and Ethridge convened at the abstract company office to consummate the sale to Admire of the land formerly owned by Perryman, then supposedly held by Eth-ridge under his trustee’s deed. Barbara Flood, an employee of the abstract company, testified that the deal as explained to her was that Mr. Ethridge was to convey all of the property (Lots 1, 2 and 3) to Mr. Admire, except the small “dog-leg” on the back side of Lot 3, which was to be deeded from Mr. Admire to Mr. Perryman. All three men agreed to this. In checking-the descriptions the error was found. Barbara Flood discovered that the description in the deed of trust to Ethridge did not fully cover the three lots intended to be conveyed, but covered only Lot 3. Mr. Jeffries, was consulted, and he explained the situation to Perryman. When Perryman received this information he was confused,, and had a blank surprised expression on his face. Perryman asked for a second explanation, saying “You mean my house wasn’t on this mortgage ?” Perryman wanted assurance that his house was “not in that description.” When he was so assured, and after he was informed that to correct the error he and his wife would have to sign a conveyance to Admire, Perryman said “To hell with it, if my house is not in it,” and walked out. After Perry-man left the abstract office he encountered Mr. Admire (who had stepped out to make some arrangements at the bank) on the street, and said that “the mortgage wasn’t on the house where he lived and he wasn’t going to sign no papers until he saw further * * * that [Perryman] told them that he didn’t have to sign no deed, * * The next day Hershel and Myrtle Perryman deeded Lots 1 and 2 to his father, defendant Stacy Perryman.

Perryman’s uncorroborated testimony that his agreement with Mr. Admire was a deal for the sale of the back lot (Lot 3) only, for a consideration of $4,500, is not accepted in view of the credible evidence to the contrary.

Appellants make the point that the decree is erroneous “because no evidence was presented from which the court could find a mistake on the part of Myrtle Perryman, so the plaintiffs did not sustain their burden of proof to entitle them to the equitable relief of reformation against her.” Appellants point out that Myrtle Perryman was not present at any of the prior negotiations between her husband and Lee Eth-ridge, or at any of the preliminary discussions at the abstract company office on the day the note and deed of trust were prepared and executed. Hershel and Myrtle Perryman gave uncorroborated testimony that when Myrtle Perryman arrived at the office, and “when they read the deed off” she inquired of those present (Lee Ethridge, Marie Jones and Hershel Perryman) whether the deed included “the front part, the house, and they said no”; that she told “them” that if it did she would not sign because she and her husband had children and that they wanted and needed the house “to have a place to raise them children”; that she was assured both by Mr. Ethridge and her husband that the deed did not include the house. Appellants say these facts show there was no mutual mistake of fact as between Lee Ethridge and Myrtle Perry-man, and demonstrate that the minds of all of the parties did not meet on the subject of what real estate was intended to be conveyed. The trial chancellor, who had the best opportunity to judge of the credibility of the witnesses, evidently rejected this testimony as unworthy of belief. We reach the same conclusion in deference to the chancellor and upon our own independent appraisal of this testimony as improbable. If Myrtle Perryman had asked the assembled group this question Marie Jones would have heard it, but Marie Jones made no reference to such a conversation. Lee Ethridge would have heard it and protested, for he was an experienced money lender and after having reached an agreement with the borrower that all three lots were to stand as security for the loan of $3,425 it is impossible to believe that knowingly and willingly he would have stood idly by and permitted the papers to be signed giving him Lot 3 only (worth from $1,200 to $1,-500) as security. And if Hershel Perry-man had truly considered that he had mortgaged Lot 3 only he would not have stated to Lee Ethridge in the presence of Robert Arnold that Ethridge had a mortgage on all of his property, “house and all.” Nor would Perryman have given Mr. Admire to understand that Ethridge had foreclosed on all three lots, or have been confused and surprised when Barbara Flood’s discovery revealed to him that Lots 1 and 2 had been omitted from the deed of trust, or have abruptly abandoned the Admire deal when he received the news. Myrtle and Hershel Perryman’s testimony about her inquiry and assurance immediately before she signed the deed of trust cannot stand in the light of other accepted facts. It is true, as pointed out by appellants, that this testimony was not directly contradicted by the testimony of others, but the failure to contradict it does not require its acceptance. The trial chancellor was not bound to do so, and this court is not obliged to believe it, even though not directly contradicted or impeached, for the credibility of witnesses is for the triers of the facts. Adam Hat Stores v. Kansas City, Mo.Sup., 316 S.W.2d 594, 598. Excluding it, the question remains whether the mistake of Hershel is attributable to Myrtle Perryman, on the ground of agency. The agency of a husband for his wife may be shown by direct evidence or by facts and circumstances which will authorize a reasonable and logical inference that he was empowered to act for her or that she ratified his unauthorized acts. 41 C.J.S. Husband and Wife § 70, p. 548. The parties were husband and wife. A wife by her actions and conduct may be estopped to deny her husband’s authority to act as her agent for her in her behalf. 41 C.J.S. Husband and Wife § 296, p. 781. It is apparent that Myrtle Perryman entrusted the entire transaction to her husband Hershel; that he acted and negotiated not only for himself but for both himself and wife with reference to the property held by them by the entireties. When the deal was made he arranged for the parties to meet at the abstracter’s office to close the deal, and Myrtle Perryman appeared for that purpose. It is a fair inference that she was apprised by her husband of the transaction and the nature and purpose of the meeting. When she arrived and was asked to sign the papers she did not repudiate the contract her husband had made. Instead, she ratified and approved his acts and dealings leading to the execution of the papers, and by signing the note and deed of trust signified her consent to and acquiescence in the transaction he had arranged. There is nothing to indicate that she did not benefit from the loan. In these circumstances she is estopped to deny his authority to act as her agent in her behalf, and she is chargeable with her husband’s knowledge and understanding of the true contract; her husband’s mistake is her mistake and she is bound thereby and must assume full responsibility therefor. Lattin v. Gray, 75 Nev. 128, 335 P.2d 778, 783; Mays v. Lagenback, 206 Ga. 859, 59 S.E.2d 376, 377 [5], And see Lusher v. Sparks, W.Va., 122 S.E.2d 609, 616 [9],

Appellants make the further point that “there was no evidence as to the present ownership of the real estate involved so that the plaintiffs did not sustain their burden of proof and the court therefore did not have sufficient facts before it to justify the decree of reformation.” Paragraph 5 of appellants’ motion for a new trial alleged “That the plaintiffs plead that defendant, Stacy Perryman, is the record owner of the premises in question in the case at bar and said defendant hereby admits that he is the record owner of said land * * Apparently what appellants have in mind is that plaintiffs assumed the burden of proving that the Perrymans conveyed Lots 1 and 2 to his father Stacy Perryman for the purpose of hindering and delaying plaintiffs as creditors, and of proving that Stacy Perryman took title with notice of the mistake in the description, and therefore was not a bona fide purchaser, but failed to prove these facts, and therefore plaintiffs are not entitled to reformation. That Stacy Perryman is not to be considered a bona fide purchaser without notice is evident from the admitted facts. Stacy Perryman testified that he was present at the home of his son Hershel when Lee Ethridge came to look at the property; that he accompanied Ethridge during his inspection of the property and overheard the conversation between Hershel and Ethridge with respect to what property was to stand as security for the loan. We have found that Hershel and Ethridge agreed that all three lots were to be included in the deed of trust, and therefore Stacy Perryman must have known that fact at the time, November 29, 1960, when he took deeds to Lots 1 and 2. (Appellants’ motion for new trial admits that the Perrymans parted with title before the commencement of this action, which was on November 30, 1960. It is admitted that record title to Lots 1 and 2 was in Hershel and Myrtle Perryman on November 28, 1960, so the deed must have been made to Stacy on November 29, 1960, as alleged by plaintiffs.) Although there is no direct evidence that Stacy Perryman actually knew of the mistaken omission of Lots 1 and 2 from the deed of trust, he must be held to have been in possession of sufficient facts, as above indicated, to put him on inquiry by which in common reason and prudence he could have discovered the facts, and that he is thus deprived of the status of a bona fide purchaser without notice. Walters v. Tucker, Mo.Sup., 308 S.W.2d 673, 675.

Appellants further assert error in overruling appellants’ motion to dismiss the petition and in refusing appellants’ request for a continuance. The original petition was framed on the theory that the court should reform not only the deed of trust but also reform the trustee’s notice of sale and trustee’s deed, so as to directly invest plaintiffs with title to Lots 1 and 2. Defendants filed motions to dismiss the original petition on the ground that it failed to state a cause of action. See Colin v. Moldenhauer, 338 Mo. 827, 92 S.W.2d 601; Schwickerath v. Cooksey, 53 Mo. 75, 80. After a hearing the court, evidently considering that no claim for relief was stated, permitted plaintiffs to amend their petition by deletion and interlineation, so as to allow them to go on the theory that they were entitled to reformation of the deed of trust to include the omitted tracts and a new foreclosure of the deed of trust as reformed. The deletions and amendments were made and plaintiffs announced ready to go to trial on the amended petition. Defendants, not ready, announced that new questions were raised which would require research and asked for delay. The court required defendants to go to trial, after permitting them to make an oral motion to dismiss the amended petition for failure to state a claim upon which relief could be granted. The oral motion was taken with the case. On appeal it is contended that no “cause of action” was stated either before or after amendment; that after amendment the case was not at issue and should not have been ordered to trial; that under Supreme Court Rule 55.53, V.A.M.R. and § 509.490 RSMo 1959, V.A.M.S., defendants were entitled to 10 days within which to file a responsive pleading

We find no error in the action of the trial court. The amended petition stated a claim upon which relief can be granted. “[E]quity has jurisdiction on a proper showing made to correct the description in the original mortgage and to order another foreclosure and sale by the proper description, * * 76 C.J.S. Reformation of Instruments, § 42, p. 392, fn. 28; Conyers v. Mericles, 75 Ind. 443; McCasland v. Aetna Life Ins. Co., 108 Ind. 130, 9 N.E. 119; Fisher v. Villamil, 62 Fla. 472, 56 So. 559, 39 L.R.A.,N.S., 90; Marks v. Taylor, 23 Utah 470, 65 P. 203. There was no error in overruling the motion to dismiss. We find no abuse of discretion in ordering the case to trial without further delay. An amendment of an adversary’s pleading does not entitle a party to a continuance as of course, Peterson v. Metropolitan St. Ry. Co., 211 Mo. 498, 111 S.W. 37, and where it appears from the pleadings, application for continuance and testimony that the parties have prepared to meet the issues tendered by the amendment, a continuance on account of the amendment is not necessary. Mangelsdorf Bros. Co. v. Harnden Seed Co., 132 Mo.App. 507, 112 S.W. 15. No showing was made that defendants were not ready to meet the allegations of the amended petition, or that different witnesses not then available would be required, or that defendants’ rights were prejudiced in any manner. Counsel for defendants conceded at the hearing in circuit court that in the amended petition plaintiffs were asking for some but not all of the relief prayed for in the original petition, and that “the evidence would be the same.”

The decree is affirmed.

COIL, C., not participating,

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    Mattie Romaine TREON, widow of Robert Treon, deceased, Respondent, v. CITY OF HAMILTON, Missouri, a Municipal Corporation, Appellant.
    No. 49282.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.

      Don Chapman, Jr., Chapman & Chapman, Chillicothe, for appellant.
    Robert C. Frith, Don E. Black, Chilli-cothe, for respondent.
   EAGER, Presiding Judge.

This is a suit for the wrongful death of Robert Treon, who was killed when his automobile ran into a ditch within the city limits of Hamilton, Missouri, on December 7, 1960. In order to understand the nature of the occurrence, we will have to describe the locality in some detail. Missouri Highway 13 had formerly run north and south along Hughes Street in Hamilton from Berry Street (a main east and west street running through the center of town, which was then also U.S. Highway 36) south to the city limits. We are not interested in the highway north of Berry Street. At intersecting streets along Hughes Street there were stop signs, and the State Highway Department maintained the street. In the summer of 1960 that Department relocated and rebuilt a large part of this highway within the city limits; beginning at a point about six or seven blocks south of Berry Street new No. 13 was built to curve northeasterly so as to intersect Berry Street in the center of town,— about two blocks east of its former southbound junction. Thus, at the junction of the old and new Highways 13, there remained a sort of irregular triangle lying between the northeasterly curve of the new road, the north and south remains of the old black top road along Hughes Street, and the new gravel turnoff curving to the east from the old r.oad to the new, the curve being to the left as one traveled south. This change had apparently been completed in the early fall of 1960. As indicated, old No. 13 was of black top construction and it was maintained by the state, with stop signs to protect it, until the changes were effected. At the time of this casualty, and for the purpose of drainage, a ditch 30 feet wide and from 5-8 feet deep had been excavated along the north side of new 13, running generally east and west, and extending across the width of old 13 just where (in its former course) it would otherwise have intersected the new road. This ditch led to a culvert running under the new road. We are not told specifically whether the north and south sides of this ditch were beveled or graded so as to slope, but we may reasonably assume that they were, as otherwise the walls would collapse. Some distance north of this ditch, and just south of where the new gravel turnoff began, a smaller ditch had been excavated across approximately the west half of old 13, it being about eight feet in length; this led to another culvert under the remainder of old 13 and afforded drainage from the west side of the old road. Between these two ditches the old black top remained, for probably 100 feet or more (it appearing that the distance from the large ditch to the new gravel turnoff was 169 feet). From this intervening and remaining black top a driveway led westward into a private residence. Just south of that driveway, and blocking much of what previously was the south bound lane of the old road, there was a long pile or windrow of asphalt, approximately 14 inches to two feet high and two to two and one-Jialf feet wide. Thus, as one proceeded south on Hughes Street, and if he did not take the new turnoff, his course was impeded hy the small ditch, the pile of asphalt, and further on, the large drainage ditch. It seems that words are inadequate to explain clearly this rather complicated physical situation, hut enough thus appears to enable one to understand what follows.

This casualty occurred at about 6:45 p. m. on December 7, 1960. Treon lived in Breckenridge, some twelve miles northeast of Hamilton. He and one Junior Clark had left Breckenridge at 6:20 or 6:25 p. m. in Treon’s 1955 Ford to see Treon’s stepdaughter play in a basketball game at Lawson. Their route led through Hamilton and south along No. 13. Except for some casual and immaterial testimony from a woman who sought to identify Treon and Clark as men whom she saw in a car with a girl outside the Tasti Freeze in Hamilton at about 6:30 p. m., no one saw Treon after he left home and prior to his death. The attempted identification just mentioned was unimpressive and, even if true, was wholly immaterial. Treon and Clark were found dead in their car in the southerly part of the large ditch, already described, at about 6:50 p. m. One witness coming southeasterly on new 13 (northeast of the spot) saw a flash of lights and found the car in the ditch; both men had obviously died immediately. There was evidence that the bumper was imbedded in the south wall of the ditch about eighteen inches from the ground level; the back of the car was at the bottom of the ditch. The front of the car was “mashed back” and the car severely damaged. The glass face of the speedometer was broken and a portion of the bottom of a brown bottle was found inside; one or two witnesses described this as part of a beer bottle. The label of a beer bottle and apparently another piece of the glass were found on the floor.

Reverting to the status of this immediate area, — upon construction of new 13, the Highway Department ceased to maintain Hughes Street, and on September 8, 1960, wrote the Mayor of defendant, stating that the old route along Hughes Street was no longer needed, and that it had “relinquished” to the City the old route between certain designated points. The witnesses indicated that this area included all of Hughes Street north from a point 15-20 feet north of the north side of the large ditch. The City was not shown to have taken any formal action thereafter to abandon that part of Hughes Street lying south of the turnoff; physically it remained open except for the obstructions noted, and it was used by vehicular traffic at least for the purpose of entering and leaving the private driveway. There was an ordinary street light on a pole at the east side of Hughes Street approximately at the point where the new turnoff left that street; further south and across the new highway to the east was a filling station with relatively bright lighting. The City of Hamilton had a twenty-five mile an hour speed ordinance. At about the time of the foregoing changes U.S. Highway 36 was also relocated from the center of Hamilton, east and west, to a location running south of Hamilton; that matter, however, is purely incidental here.

It was shown beyond all possible doubt that there were no barricades, warning signs, stop signs, turn signs, traffic lights or other devices facing one as he traveled south on Hughes Street at the time of this occurrence. The only sign was a stop sign considerably to the east as one reached the new highway after driving across the new gravel turnoff. Thus, as one drove south on old 13, he would normally see no signs whatever, and no barricades. We interpose here the suggestion that the City has advanced the idea that the turnoff to the left was perfectly visible, was in itself a sufficient warning, and that it could be seen for at least a block even at night. The City takes the further position that it had had nothing to do with putting the ditches or obstacles there and had no responsibility in the premises, although the Mayor admitted that the City had jurisdiction or control of the area down to a point 15-20 feet north of the large ditch, and that he knew that people used the area of the old road at least for getting in and out of the private driveway.

Treon’s principal occupation was that of a roofer and roofing contractor; it was indicated that he had done some work in Hamilton and was seen there occasionally. It was not shown whether or not he had any knowledge of this particular area or of the road changes, or whether he had traveled the road after the changes were made.

There was a verdict and judgment for the defendant. Plaintiff filed her motion for new trial on three grounds: (1) that the verdict was “against the law and the evidence in this case”; (2) error in giving Defendant’s Instruction No. 5; (3) error in giving Defendant’s Instruction No. 5A. The court granted plaintiff a new trial; in the original order no ground therefor was stated. Upon motion of plaintiff and by nunc pro tunc order it was thereafter shown that the motion was sustained “on all grounds alleged * *

The appellant City insists that a verdict should have been directed for it because no negligence on its part was shown. In considering that point, we look to the evidence most favorable to the plaintiff. Erbes v. Union Electric Co., Mo., 353 S.W. 2d 659. The City’s first position is that the Highway Department constructed the ditches without even asking its consent, that the larger (and fatal) ditch became a part of the State Highway System, and that the City could not, in any event, have prevented this action. State ex rel. State Highway Commission v. Elliott, Banc, Mo., 326 S.W. 2d 745. It must be conceded, of course, that the Department had the right to so locate the road and the incidental ditch. That, however, does not automatically relieve the City of all responsibility for areas within its jurisdiction and not absorbed in the highway, such as this area. We refer to this later. Principally, the City insists that, assuming a duty to exercise ordinary care to maintain its streets in a reasonably safe condition, the new road (to which it says traffic had been rerouted) was easily visible, and that when deceased left the street proper and entered the area which was not then set aside and used for travel and which had been substantially withdrawn, all responsibility of the City ceased. It cites: Griffin v. City of Chillicothe, 311 Mo. 648, 279 S.W. 84, 42 A.L.R. 1273; Lavinge v. City of Jefferson, Mo.App., 262 S.W.2d 60; Lowery v. City of Kansas City, 337 Mo. 47, 85 S.W.2d 104; Sparks v. City of Kansas City, 236 Mo.App. 710, 160 S.W.2d 819; Sutton v. Fox Missouri Theatre Co., Mo., 336 S.W.2d 85; Gardner v. City of Covington, 86 Ind.App. 229, 156 N.E. 830. Those cases generally involved situations where one had left the traveled portions of a street and ventured into parts which had obviously been reserved or withdrawn from travel, and where the identical conditions had long existed and thus afforded notice to the public. The principle is thus announced that a city may choose what part of a platted or established street it will improve and open to travel, and that it is generally liable for defects only in that portion of the street. In one of the cited cases, Lavinge, supra, the presence of “grass and high weeds” straight ahead at a “T” intersection was said to be a “warning” of the situation. The cases clearly recognize liability for defects and dangers such as excavations so close to the traveled portions of streets as to endanger persons using them in the ordinary manner. Lavinge, Sparks, supra; Miller v. Missouri Wrecking Co., Mo., 187 S.W. 45. The Lowery case merely exempted the city from liability on the ground that the A.S.B. bridge in Kansas City was a part of the State Highway System and was not a city street.

Here most of the area in question had been returned to the City, if indeed it had ever been officially taken by the Highway Department in the first instance. Reference is made in the City’s brief to the date when the City “officially regained control,” and when “Hughes Street was thrust upon appellant.” A city has a non-delegable duty to maintain its streets in a reasonably safe condition or to warn of dangers and defects. Lowery, supra. This is true even though a contractor may also be liable, or some third person (as a street car or bus company) may have the primary duty to repair. Lowery, supra; Fosmire v. City of Kansas City, Mo., 260 S.W.2d 252; Plater v. W. C. Mullins Construction Co., 223 Mo. App. 650, 17 S.W.2d 658; Young v. City of St. Louis, Mo.App., 178 S.W.2d 641; State ex rel. Kansas City v. Shain, Mo., 177 S.W.2d 511; Crockett v. City of Mexico, 336 Mo. 145, 77 S.W.2d 464. And the fact that the City did not cause the defect does not, in itself, relieve it of liability. Lithegner v. City of St. Louis, Mo.App., 125 S.W.2d 925. No case has been found with facts very similar to those in the present case. As analogous, however, we note the following: Nicholas v. Kansas City, Mo. App., 171 S.W.2d 744, and State ex rel. Kansas City v. Shain (certiorari on same case) Mo., 177 S.W.2d 511 (city liable for negligent construction or maintenance by W.P.A. on sidewalk construction); Williams v. City of Mexico, 224 Mo.App. 1224, 34 S.W.2d 992 (plaintiff drove off unguarded abutment of old bridge just outside city limits, where highway and street had been relocated); Chance v. St. Joseph, 195 Mo.App. 1, 190 S.W. 24 (failure to erect barricade at end of street where appearance was deceptive and there was a dangerous drop-off). In State ex rel. Kansas City v. Shain, supra, where the work had all been done by the W.P.A., this court said, 177 S.W.2d, loc. cit. 512-513: “Here we have an injury to an individual because the city failed to observe its non-delegable duty of exercising ordinary care to maintain its sidewalk in a reasonably safe condition for pedestrians to travel over. Although the ramp was not provided at the direction of the city still the city had notice of it and of its dangerous condition. Even if the city was under no duty to provide the ramp, as relator contends, yet this will not excuse it from liability for permitting the ramp to remain in a dangerous condition where it is a part of the sidewalk. Relator claims no conflict with respondents’ decision that the ramp constituted a part of the sidewalk.” The case of Williams v. City of Mexico, 224 Mo.App. 1224, 34 S.W.2d 992, is closely analogous to the present case on the deceptive nature of an unguarded drop-off or precipice existing because of the relocation of a street connecting with a bridge and highway, and the City’s liability therefor. It has also been held that when a portion of a street has been withdrawn from public use the intention “must be made unmistakably manifest.” Gerber v. Kansas City, 311 Mo. 49, 277 S.W. 562, 565.

In view of the highly deceptive nature of the physical situation in this area, including the recent relocation of the highway, the continuance of the black top paving southward except for the ditched areas, the complete failure to barricade or warn in any manner, we conclude that plaintiff made a submissible case of negligence on the City’s failure to barricade or warn. In arriving at this conclusion, we say with some reluctance that we have had little assistance from any authorities cited in the brief of plaintiff’s counsel.

We shall defer consideration of the contention that deceased was contributorily negligent as a matter of law until after considering the assignments of the motion for new trial. The first assignment of the motion that the verdict was “against the law and the evidence” raises nothing and is meaningless. Robbins v. Robbins, Mo., 328 S.W.2d 552, 555, and cases there cited; Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 750; Bond v. Williams, 279 Mo. 215, 214 S.W. 202, 206, 16 A.L.R. 755; Belcher v. Haddix et ux., Mo.App., 44 S.W.2d 177, 178; Whitehead v. Liberty National Bank, Mo.App., 56 S.W.2d 833, 834; Marsters et al. v. Bray, Mo., 85 S.W.2d 479, 481. Thus, the action of the court in granting a new trial “on all grounds of the motion” may not be considered here as a ruling that the verdict was against the weight of the evidence.

We proceed to the assignments on supposed errors in instructions. The first of these is that the court erred in giving Defendant’s Instruction No. 5 “because there was no evidence of negligence on the part of plaintiff’s deceased husband, and such instruction was misleading to the jury and prejudicial to plaintiff.” The only argument made is the supposed lack of evidence. That instruction merely told the jury that “negligence,” as used in other instructions and as applied to the deceased, meant the failure to exercise the highest degree of care, which in turn meant “such care as would have been exercised ordinarily by a very careful and prudent person under the same or similar circumstances.” The charge that there was no submissible evidence of plaintiff’s negligence is unfounded; we prefer to treat this specifically in connection with the next assignment. Counsel cite two cases for the wholly obvious proposition that it is error to give an instruction when there is no evidence to support it. The court was in error in sustaining the motion on the second assignment.

The third assignment of the motion was that the court erred in giving Defendant’s Instruction No. SA in that: there was no evidence of decedent’s negligence in driving at an excessive speed, in failing to keep his car under control, or in failing to keep a proper lookout; also, in referring to the failure “to observe the turn into new 13” because therein the court assumed that there was such a turn; and because the giving of the instruction permitted speculation and conjecture. That instruction told the jury that the law required the deceased to exercise the highest degree of care (defining it), and that if decedent failed to do so in one or more of the following particulars: “(1) By driving at a high and excessive rate of speed under the circumstances. (2) By failing to keep his motor vehicle he was driving under control under the conditions and circumstances then and there existing. (3) By failing to keep a proper look-out and to observe the turn into new 13 and the conditions of the land south of said turn. And that such failure on his part, if you so find, directly caused or contributed to cause Robert Treon’s death, then your verdict must be for the defendant.”

The trial court, as indicated by its remarks at the time of the hearing on the motion for a new trial, felt that there was no evidence to support any of the assignments of contributory negligence in this instruction. In that the court was clearly mistaken. While the evidence is all circumstantial, the facts which we have already recited established a submissible issue of contributory negligence on excessive speed and the failure to keep a lookout. We deal with the question of control later. Decedent’s car did travel approximately 169 feet after leaving the point of the “turn off” and before entering the large ditch; the force of the impact caused very serious damage to the car; both men were apparently killed immediately. These facts, alone, were sufficient to establish a submissible issue on excessive speed, regardless of the city ordinance. The evidence of lighting and of the visibility of the new turnoff in the road was sufficient to establish a submissible issue on the failure to keep a proper lookout. On these issues, however, we merely mean that there was substantial evidence, direct or circumstantial, from which the jury could have found that decedent was negligent in either or both of these respects, and that such negligence directly contributed to his death.

The submission of the issue of a failure to keep the car “under control” is a different matter. In the case of Miles v. Gaddy et al., Banc, Mo., 357 S.W.2d 897 (1962), the court held that an instruction submitting a failure “to keep the truck * * * under control under the circumstances * * * ” was a submission of general negligence, was confusing, and constituted a roving commission to the jury. The court there said, loc. cit. 900-901: “As applied to the operation of a motor vehicle, loss or lack of control is usually the result of some antecedent act or omission which is the essential fact that 'should be hypothesized in the verdict-directing instruction. Myers v. Buchanan, Mo., 333 S.W.2d 18, 21.

“[2] Even though an allegation of general negligence in the pleadings is unchallenged, an instruction must submit the specific acts of negligence shown by the evidence unless the case is one where the doctrine of res ipsa loquitur applies. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 875[1]; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487, 491 [6]; Allen v. Missouri Pac. Ry. Co, Mo, 294 S.W. 80, 87. * * *

“[3] * * * As shown by the numerous cases cited, the submission in these circumstances of failure to control the motor vehicle as a hypothesis of negligence is not a correct statement of either statutory or case law and its inclusion renders the instruction prejudicially erroneous.”

The present case was tried before the Miles opinion was handed down; but the decisions in the prior cases there discussed clearly demonstrated the error in giving such an instruction. And, if there is any substantial doubt concerning the propriety of an instruction, we are more inclined to sustain the action of a trial court in refusing the instruction or in granting a new trial because of it, than we are to reverse a case independently because the instruction was given. In view of the long history of criticism and condemnation of the submission of a failure to control, we hold that for this reason, and this reason alone, the court here properly granted a new trial, unless decedent was guilty of contributory negligence as a matter of law. We consider that question next.

On that contention defendant cites: Sirounian v. Terminal R. Ass’n of St. Louis, 236 Mo.App. 938, 160 S.W.2d 451; McGrew v. Thompson, 353 Mo. 856, 184 S.W.2d 994; Jackson v. Southwestern Bell Tel. Co, 281 Mo. 358, 219 S.W. 655; Rohmann v. City of Richmond Pleights, Mo.App, 135 S.W.2d 378; and Gerhard v. Terminal R. Ass’n of St. Louis, Mo, 299 S.W.2d 866. The facts and circumstances affecting this particular issue vary so widely in. every case that no one case can ordinarily control another. In the last case cited, Gerhard, the decedent had apparently ignored four different types of warnings before he struck the curb of a bridge, skidded, and crashed through the railing on the opposite side. In Rohmann, the plaintiff had full knowledge of the condition of that part of the street upon which construction work was being conducted and upon which he drove, and the injury occurred in daylight. In Jackson, all the conditions complained of were clearly visible and were of long standing, the accident occurred on a country road, and plaintiff was familiar with the road. The facts in Sirounian are somewhat closer to ours; there plaintiff drove into a curb and a small .lighted building located on a curve at the end of a bridge approach, and at a time of claimed poor visibility; these obstructions would ordinarily be more visible at night than a ditch; also, there was apparently no evidence of a total absence of warnings in that case, although there were no reflector signs.

Counsel argue here, with some force, that decedent’s action in traveling 169 feet to the ditch and imbedding the bumper in the soil 18 inches from the ground level, leaves no inference except that of excessive speed; also, that his failure to see the turnoff, visible from a block away even at night, similarly left no inference except that of a failure to keep a reasonable lookout. These facts, as already indicated, established a substantial fact issue of contributory negligence. We hold that they did not establish it here as a matter of law. In our holding that there was substantial evidence of the City’s negligence there inhered the idea of a concealed danger in the present situation; that holding, in itself, essentially rules the present contention. The conditions here were not similar to those of an ordinary and permanent bridge approach, as in Sirounian, supra. The decedent did not live in Hamilton; it was not shown that he knew of the recent road changes; the evidence as to the frequency and extent of his visits to Hamilton were vague. He apparently avoided the first and smaller ditch which extended across the west or south bound lane of Hughes Street (old 13) and the pile of asphalt just beyond it. If, however, he hit any part of either of these, this fact may have had a substantial and disastrous effect upon his course. Aside from that, however, it is most difficult to say, as a matter of law, just what an automobile (or its driver) will do, at any speed, when it has entered an obstacle course such as this was. So far as the position of the bumper is concerned, we may reasonably assume that the south bank (or both banks) of the large ditch were sloped or graded; thus, it may be that even a moderate impulse plus the continued motor power of the car might have caused it to plow up the bank as described. The grading of the ditch was never discussed in the City’s evidence. Counsel have presented, in argument, a rather complicated set of for-mulae of physics involving the rate of gravitational fall to show that plaintiff was traveling at least 48 miles an hour. We are not at all impressed with their applicability here. We hold that not all reasonable minds would conclude here that the decedent was negligent in the circumstances of this highly unusual and recently created situation. The facts here are somewhat analogous to those in Eidson v. Dean Construction Co., Mo. App., 233 S.W.2d 820, 823; Chance v. St. Joseph, 195 Mo.App. 1, 190 S.W. 24, and Williams v. City of Mexico, 224 Mo.App. 1224, 34 S.W.2d 992, 994. The presence of pieces of a broken beer bottle in the car was certainly not, in itself, sufficient to convict decedent of contributory negligence as a matter of law. Chance, supra.

For the error in Instruction No. 5, as already discussed, we hold that there was no error in granting a new trial. The order granting a new trial is therefore affirmed and the cause remanded for further proceedings.

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant.
    No. 49324.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Byron Kearby, Poplar Bluff, for appellant.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
   STORCKMAN, Judge.

The defendant, Douglas Wayne Thompson, was tried in the Circuit Court of Bol-linger County on change of venue from Cape, Girardeau County and was convicted by a jury of murder in the first degree. The court found that the defendant had been convicted of a prior felony and fixed his punishment at death. The defendant’s motion for new trial was overruled and he has appealed. The victim of the homicide was Herbert L. Goss, a police officer of the City of Cape Girardeau, Missouri.

In the trial court the defendant was represented by counsel who. has also briefed the case in this court. In general the questions presented for review are that the evidence was insufficient to justify submitting the charge of murder in the first degree to the jury; that the jurors were permitted to separate during the trial; and that the state was permitted to cross-examine the defendant on matters not brought out by his examination in. chief.

On March 10, 1961, at about 9:15 p.m., automobiles No. 2 and No. 4 of the Cape.' 'Girardeau Police Department were dispatched to the Town Plaza Shopping Center in Cape Girardeau. From there they started in pursuit of a two-door 1955 Oldsmobile hardtop automobile north on U. S. Highway 61. During the pursuit the red flasher lights of the police cars were on and their sirens were sounded. When overtaken the Oldsmobile pulled off of the pavement and stopped on the east shoulder of Highway 61 facing north at or near the entrance of a drive-in refreshment stand. Police car No. 2 stopped on the shoulder about six feet behind the Oldsmobile. Car No. 4 was driven beyond, turned around, and stopped on the west shoulder of the highway headed south, practically opposite the Oldsmobile. The concrete highway was about twenty feet wide at this point.

Police Officers Donald Crittendon, Herbert L. Goss, and Hugo Lang, Jr., were the occupants of car No. 2 driven by Officer Crittendon. ’ Police Officers Shannon Kelley and Robert F. Ross were in car No. 4 driven by Officer Kelley and parked on the west side of the highway. Officers Kelley and Ross remained in car No. 4 while the other three officers alighted from, car No. 2 and approached the parked Oldsmobile from the rear. Officer Crittendon walked to the left door of the Oldsmobile and talked to the driver. Officer Goss went to the right side of the Oldsmobile and Officer Lang to the left and then to the rear of the Oldsmobile. The police officers were dressed in regular police uniforms. A flashlight in the hands of one of the policemen revealed in addition to the driver another man slumped down on the front seat as though he was asleep or resting. It was later established that the driver was Sammy Aire Tucker and the passenger was Douglas Wayne Thompson, the defendant in this case. Officer Crittendon asked Tucker the driver for identification and was shown a slip of paper. Crittendon examined the paper, handed it back to Tucker, and asked the men to step out of the car. As Tucker stepped out, he shot Crittendon who, although mortally wounded, was able to draw his gun and fire at Tucker. Immediately after Crittendon was shot Tucker turned and started firing at Officers Kelley and Ross across the road; they returned the fire. There was evidence that at the same time Tucker shot Crittendon the defendant Thompson, on the right side of the Oldsmobile, also fired his automatic pistol. Officer Goss was shot during the gunfire and died later that night due to hemorrhaging caused by a gunshot wound which severed the arteries in both of his legs. Tucker was wounded but he and Thompson succeeded in getting back into their car and they drove from the scene north on Highway 61.

At about 10 p.m. on the same night, Bill Shambo was parked on a gravel road east of Jackson about seven miles from Cape Girardeau with his brother and cousin when an Oldsmobile drove up. The defendant got out of the Oldsmobile, approached Shambo’s automobile, pointed a gun at the passengers, and told them to get out or he would kill them. The defendant got into the driver’s seat of the Shambo car and Tucker, who was bleeding about the face and carrying a rifle, got out of the Oldsmobile and into the other automobile which was then driven away in the direction of Jackson. At about 11:30 the same night, defendant Thompson with a gun in hand went to the front door of the home of George Gray of Glen Allen in Bollinger County, asked Gray for the keys to bis car and struck Gray on the left temple with his pistol. Tucker then entered the house with a rifle and threatened to blow Gray’s wife Lena to pieces. Gray’s son then gave the defendant the keys to his Ford automobile which Thompson and Tucker took and drove away in a northern direction. Seven days later on March 17, 1961, a member of the Missouri Highway Patrol arrested the defendant Thompson at a home about three miles north of Poplar Bluff, The defendant was taken to troop headquarters where he signed a statement which was introduced in evidence. The defendant’s Browning automatic pistol ejected spent shells. The police officers were using revolver-type guns. A search was made at the scene of the shooting for bullets and spent shells, but none were found. The defendant and Tucker also had a 30-30 rifle which the defendant denied he had fired as their car was driven away. When the Oldsmobile was found, there was a bullet hole in the rear end extruding outward at an angle which indicated the shot had been fired by a person in the passenger’s seat. The defendant testified in substance that he did not fire a shot at the time in question and that he did not have any knowledge or indication that Tucker was going to shoot at the police officers. He admitted prior convictions in the State of California for the offenses of burglary and first-degree armed robbery.

Sammy Aire Tucker was tried and convicted of the murder of Officer Crittendon .and his judgment of conviction was affirmed by this court. See State v. Tucker, Mo., 362 S.W.2d 509. The defendant Thompson was charged with first-degree murder by reason of the death of Officer Goss and his conviction is the subject of this appellate review.

Thé defendant’s first two points are essentially the same in that they involve the sufficiency of the evidence to sustain the conviction of first-degree murder and they will be treated together. In testing the sufficiency of the evidence in a criminal prosecution, the facts in evidence must be considered in the light most favorable to the state, and the evidence favorable to the state and favorable inferences reasonably to be drawn therefrom must be deemed to be true, and all evidence and inferences to the contrary must be disregarded. State v. Strong, Mo., 339 S.W.2d 759, 764 [3].

Murder in the first degree is defined by | 559.010 RSMo 1959, V.A.M.S., as follows: “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.” Thus, if the defendant fired the shot that caused the death of Officer Goss, and if such killing was “willful, deliberate and premeditated”, then the defendant was properly convicted of first-degree murder. There is no doubt that Officer Goss was fatally wounded at the scene of the altercation between the Cape Girardeau policemen and the defendant and his companion Tucker.

The essential elements of murder in the first degree including willfulness, deliberateness and premeditation may be established by circumstantial evidence. State v. Lyle, 353 Mo. 386, 182 S.W.2d 530, 533 [7]; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802, 805 [6]; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372, 374 [5]; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82, 83 [2,3]. If the defendant fired the shot that struck Officer Goss, the circumstances shown by the evidence were sufficient to support a finding that the homicide was a willful, deliberate and premeditated killing.

The defendant’s chief contention is that he did not fire the shot that killed Officer Goss. He testified that he got out of the Oldsmobile with his hands in the air and his Browning automatic pistol in his waistband; that he did not fire a shot during the gun battle and did not attempt to and in fact did not fire the gun in Cape Girardeau County; that he had no knowledge that Tucker was going to shoot at the police officers; and that after the shooting started he dropped his hands, ran to the Oldsmobile and got in as Tucker was driving away.

The evidence shows without dispute that the defendant and Tucker had escaped from jail in California and had committed a series of armed robberies as they fled eastward across the United States to Missouri; that the defendant was on the right side of the Oldsmobile within a few feet of Mr. Goss at the time the officer was shot; that he had on his person a loaded automatic pistol; that he fled from the scene of the shooting and for seven days thereafter eluded capture by resort to acts of violence and thefts of automobiles. The presence of the defendant at the time and place the crime was committed, a motive for resisting arrest, his possession of a gun which was the means of committing the offense and his opportunity to use it, and his flight from the scene of the shooting, are all circumstances tending to show guilt. 23 C.J.S. Criminal Law § 907a, p. 556 and p. 558; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 46 [2]; State v. Taylor, 118 Mo. 153, 24 S.W. 449, 451 [5].

There was further evidence that shots were fired on the passenger’s side of the Oldsmobile “at the same time” that Tucker shot Officer Crittendon; that the defendant and Officer Goss were the only persons on the passenger’s side at the time in question; and that after Officer Goss fell his revolver was still in its holster and had not been fired. Officer Ross testified that the man on the passenger’s side, later identified as the defendant, pulled a gun from his waistband and raised his arm; that he, the witness, heard the sound and saw the flash of two shots which came from the direction of the defendant; and that Officer Goss, the victim of the shooting, who was facing west at the time with his right side toward the defendant, immediately after the shots were fired hollered, “I’m shot, I’m shot”. Somewhat similar testimony was given by Donald Wissman, a carhop working at the drive-in, and by Officers Lang and Kelley. The fatal bullet entered the right side of Officer Goss’s body above his knees and ranged slightly downward severing the arteries in both legs. Under the state’s evidence, the defendant was the only person in a position to fire the shot which struck Officer Goss. The evidence is clearly sufficient to sustain the defendant’s conviction of first-degree murder. State v. Goodwin, Mo., 352 S.W.2d 614, 620 [5]; State v. Small, Mo., 344 S.W.2d 49, 51 [2]; State v. Lyle, 353 Mo. 386, 182 S.W.2d 530, 533 [5] ; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802, 804-805 [4]; State v. Page, Mo., 130 S.W. 2d 520, 523 [5] ; State v. Tucker, Mo., 362 S.W.2d 509.

Next the defendant contends that the trial court erred in failing to grant the defendant a new trial because the jury was permitted to separate during a recess of the court. Section 546.230 RSMo 1959, V. A.M.S., provides that, with the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court in the trial of all cases of fplony except capital cases. Since this is a capital case, it falls within the prohibition of the statute. Sections 546.240 and 547.020(2) relate specifically to separation after the jury has retired for deliberation.

At tire hearing of the motion for new trial, evidence was taken on this specification of error. The defendant testified that he had seen one of the jurors leave the jury-box and talk to Frank Sheible, a highway patrolman, and that he had seed another juror leave the courtroom with the sheriff during a recess. For the state Mr. Sheible testified that one of the jurors who had been disqualified and released from the panel came over and talked to him during a recess for about a minute; his acquaintance had asked him if he had been hunting and he answered that he went whenever he had a chance; there was no reference to the trial in any way; and he did not- have any conversation with any of the qualified jurors.

The sheriff, Frank Matthews, testified that at a recess during the trial Mr. Long, one of the jurors, requested that he be permitted to go to the restroom; he, the sheriff, told the trial judge of the request and was told to take the juror to the restroom; he thereupon took the juror from the courtroom and to the basement where the only toilet in the building was located; he was never further than three feet away from the juror but did not talk to the juror during the trip to and from the restroom; and the juror did not talk to anyone and no one talked to him during the trip. At the conclusion of the testimony, the court found that the jurors had not been subjected to any improper influence during the trial and that the defendant had not been prejudiced by the events. Thereupon the defendant’s motion for new trial was overruled.

We find as the trial court evidently did that the person who spoke to the highway patrolman was not a member of the jury chosen to try the case but had been released from the panel and that there was no impropriety in his brief exchange with the patrolman. The defendant was not prejudiced and is not entitled to any relief on that score. This leaves for consideration the incident of the sheriff taking juror Long to the toilet during a recess of the court.

It has been uniformly held that the necessary separation of a juror from his fellow members to attend a call of nature, with the court’s permission and under the supervision of an officer of the court, is not a separation of the jury within the meaning of the statute. State v. Dyer, 139 Mo. 199, 212, 40 S.W. 768; State v. Murray, 91 Mo. 95, 103, 3 S.W. 397; State v. Gregory, 158 Mo. 139, 147-148, 59 S.W. 89; State v. Prince, 258 Mo. 315, 328, 167 S.W. 535; State v. Spaugh, 200 Mo. 571, 608, 98 S.W. 55; State v. Collins, 86 Mo. 245, 249; State v. Ferguson, Mo., 133 S.W.2d 1023, 1025 [3-5]. See also State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 123 [12]. To hold otherwise would be to place a most unreasonable and impracticable construction on §§ 546.230, 546.240 and 547.020. The occurrence with which we are concerned falls clearly within an inevitable exception to the statutory mandate.

Nevertheless, the holding of the trial court seems to give effect to the rule that where, as here, the separation occurs before the submission of the cause to the jury, the burden is on the state to show affirmatively that the jurors were not subjected to improper influences during the period of separation. State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 122 [11] ; State v. Emrich, Mo., 252 S.W.2d 310, 315 [4, 5]; State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 485 [13], The trial court properly found that juror Long was at all times under the immediate and close supervision of an officer of the court and that Long was not subjected to improper influences at any time. The claim of error is denied.

The defendant’s final contention is that the court erred in permitting the prosecuting attorney to cross-examine the defendant on matters not brought out by his examination in chief. Section 546.260 RSMo 1959, V.A.M.S., expressly provides that a defendant who elects to testify in his own defense “ * * * shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; * *

The fact that the appellate brief does not specify the respects in which the cross-examination was erroneous would be sufficient reason to deny the assignment, but in view of the nature of the offense and the penalty assessed we have made our own search to ascertain if the defendant’s rights were violated. On direct examination the defendant in answer to questions propounded by his counsel testified that he did not fire a shot on March 10 during the gun battle in which Officer Goss was shot and that he did not have any knowledge or indication from Tucker that he was going to fire a shot at the time the police officers were shot. On cross-examination the court overruled objections to questions propounded to the defendant with regard to statements alleged to have been made to Sgt. John N. Crow of the Missouri State Highway Patrol that the defendant had told him that he had tried to shoot his automatic pistol but that it had jammed; that the only gun that he had purchased any shells for was the 30-30 rifle; and that there was no particular reason for his carrying his automatic pistol except that he had to put it somewhere and he did not want to leave it in the car.

In support of his contention, the defendant relies upon State v. Nicholson, 337 Mo. 998, 87 S.W.2d 425, and State v. Pfeifer, 267 Mo. 23, 183 S.W. 337. In each case the judgment was reversed and the cause remanded on the ground that the cross-examination was broader than permitted by the statute. The Nicholson case, 87 S.W.2d loc.cit. 426, relies upon Pfeifer, but both of these cases have been distinguished and repudiated in the later decisions of State v. Scown, Mo., 312 S.W.2d 782, 788, and State v. Beishir, Mo., 332 S.W.2d 898, 901-902, to which we refer for the rationale.

Under the prevailing standards where a defendant in a criminal case testifies in his own behalf and the questions propounded on direct examination involve practically the whole issue tendered by the information or indictment, the cross-examination is not limited to a mere categorical review of the matters referred to on direct examination, but the subject matter referred to in a general way may be developed in detail on cross-examination. Section 546.-260 RSMo 1959, V.A.M.S.; State v. Kaufman, Mo., 254 S.W.2d 640, 641 [1-3]; State v. Scown, Mo., 312 S.W.2d 782, 787 [3]; State v. Beishir, Mo., 332 S.W.2d 898, 902 [2]; State v. Christian, Mo., 245 S.W.2d 895, 899 [5].

The defendant s denial that he fired a shot during the time in question amounted to a general and complete denial of the offense charged in the information. If the defendant did not fire the shot that struck Officer Goss, then he could not be guilty of the offense with which he was charged. The questions propounded by the state on cross-examination did not violate the protection afforded by § 546.260, and the trial court did not err in overruling the defendant’s objections thereto.

All of the questions presented by the defendant have been examined and found to be without merit. The defendant was tried fairly and without prejudicial error. Accordingly the judgment is affirmed.

All concur.