author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Ray Leo BAUGH, Appellant.
    No. 50419.
    Supremo Court of Missouri, Division No. 1.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    William G. Guerri, St. Louis, for appellant.
   WELBORN, Commissioner.

This is an appeal from a judgment denying appellant’s Motion to Vacate and Set Aside Judgment and Sentence (Supreme Court Rule 27.26, V.A.M.R.) upon his conviction of statutory rape. The circuit court denied the motion without a hearing. This appeal followed.

On October 15, 1957, appellant was tried and convicted in the St. Louis Circuit Court as a habitual criminal of statutory rape. In accordance with the habitual criminal act then effective (Sections 556.280, 556.290, RSMo 1949, V.A.M.S.), the jury returned the mandatory sentence of imprisonment for life. The conviction was affirmed by the Supreme Court en banc. State v. Baugh, 323 S.W.2d 685. The basis of the proceeding here under consideration was an incident which occurred during the trial and which was not reported in the transcript on the appeal from the conviction.

On October 15, 1957, after the case had been submitted to the jury and the jury had retired to the jury room for its deliberations, appellant’s trial counsel, Mr. C. Arthur Anderson, returned to his office to await the jury’s verdict. While Mr. Anderson was absent and appellant was in the custody of the sheriff, and about an hour after the jury had retired to consider its verdict, the following transpired, as recorded in the notes of the official court reporter :

“(* * * ‘4:05 P.M. Jury returns to ask legal question. Present: Brady and Reardon for State. No one appearing for Defendant. Defendant appearing in person.’)
“THE COURT: Now, gentlemen of the jury, the sheriff has informed me that the jury desires to ask a legal question. While Mr. Anderson is not present, I think we can probably entertain your question and endeavor to answer it, even in his absence.
“A JUROR: Your Honor, the jury have not come to a verdict. We wish to ask this question of law, quoting: ‘Do we, the jury, have any right to assess the penalty other than life even if we find the defendant guilty as charged of both the Illinois and St. Louis offenses.’
“THE COURT: Now, the answer to this is shown necessarily in the instructions already given you. You have three forms of verdict besides those instructions. The law provides what you stated there, if the jury considers it more appropriate to use the form of verdict that does not refer to the prior conviction we would have no objection to their using that form of verdict. That, I think, with the reference to the instructions, is the only answer that I can properly give, and I think that probably is clear enough to you as to what you should do. You may use that form of verdict.
“A JUROR: I think that answers our question, your Honor. May we be excused?
“THE COURT: The sheriff will take the jury to their deliberating room, and when the jury again departs, we will again be in temporary recess.
“(Reporter’s note: Verdict was returned at 4:35 P.M. of the same day)”

Appellant’s counsel not having become aware of the communication until nearly four years after its occurrence, no assignment of error based upon this communication between the judge and the jury was made in appellant’s motion for a new trial.

In his motion here under consideration, appellant charged that the communication between the judge and jury outside the presence of appellant’s counsel was a denial to appellant of assistance of counsel as guaranteed by the Constitution of Missouri and the Constitution of the United States. On this appeal, that contention is urged, together with the contention that the oral communication violated the requirement (Supreme Court Rule 26.02, V.A.M.R.) that all instructions on questions of law shall be given to the jury in writing.

Section 18(a) of Article I, Constitution of Missouri, 1945, V.A.M.S., guarantees: “That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; * * A similar guarantee of the Sixth Amendment to the Constitution of the United States, at one time considered applicable only to proceedings in federal courts (Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; State v. Mischanko, Mo.Sup., 272 S.W.2d 210, 215), is now held “obligatory upon the States by the Fourteenth Amendment.” Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, 986. In this proceeding we are concerned with the question of whether or not there was in the occurrence complained of in the trial court such an infringement or denial of the rights of the appellant under these constitutional guarantees as to render the judgment of conviction subject to collateral attack. Supreme Court Rule 27.26. Although the right to assistance of counsel is spoken of as an “unqualified” right (Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, 10), the cases from both state and federal courts, cited and relied upon by the appellant in this proceeding, considered the absence of counsel at the time of a communication between the trial judge and the jury as a matter of trial error and did not consider whether or not there had been such an abrogation of constitutional rights as to oust the trial court of jurisdiction to act further in the cause. Certainly the question here presented would not have arisen had the trial court followed the procedure suggested in Hartgrove v. Chicago, B. & Q. R. Co., 358 Mo. 971, 218 S.W.2d 557, 563, cited by appellant. However, we are cited to no case in which' the temporary absence of counsel for the defendant, at a time when the judge communicated with the jury after submission of the cause, has been found to render the judgment subject to collateral attack.

In our opinion, such absence should make the judgment vulnerable to collateral attack only when there has been a denial, in the circumstances, of a fair trial. Such a denial can be found only when the constitutional infringement asserted has resulted in substantial prejudice to the rights of the accused. This is the standard applied in federal court proceedings under 28 U.S.C.A. § 2255, the substantial equivalent (State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135) of our Rule 27.26. Thus in Martin v. United States, C.C.A., 5th Cir., 182 F.2d 225, 227 (1-3), 20 A.L.R.2d 1236, the court stated:

“It may be safely said that at this time there is no question of constitutional law any more firmly established than the oft enunciated and applied principle that, in the trial of criminal cases in the federal courts, the defendant is entitled to have the guiding hand of counsel at every stage of the proceeding'. Thus, in the absence of an .intelligent waiver of the right to counsel, it is the duty of the Court to appoint competent counsel for the defendant, failing which, the Court loses jurisdiction to proceed. However, recognition and application of this principle to its fullest extent does not require a Court to upset a conviction merely upon proof that at some particular stage of the proceeding counsel may not have been present. A great deal depends upon the nature of the ‘stage of the proceeding’ from which the counsel is absent. If it be of such minor legal significance as to refute even a possibility of injury, such inconsequential impingement of the constitutional right is merely error without injury.”

See also Kyle v. United States, C.C.A., 2d Cir., 297 F.2d 507, 514(5).

Although in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 the court, in a collateral proceeding, declined to weigh the prejudice against the defendant resulting from his denial of counsel upon arraignment, and in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, on direct appeal, did “not stop to determine whether prejudice resulted” from the denial of counsel at a preliminary hearing, the existence of prejudice was inherent in the situations presented in those cases. In Hamilton, the defendant, under Alabama law, stood to lose defenses otherwise available to him if not asserted at the arraignment. Therefore, the assistance of counsel at that stage of the proceedings was indispensable to defendant’s protection. In White, the defendant’s plea of guilty at his preliminary hearing without counsel was used as evidence of his guilt upon his subsequent trial. The prejudice was obvious.

In the present case, the appellant argues that the statement of the trial court was demonstrably prejudicial to him. His argument is:

“ * * * There were three forms of verdict submitted to the jury, namely, (1) finding the defendant guilty of the offense of statutory rape, (2) finding the defendant guilty of a previous conviction (and statutory rape), and (3) finding the defendant not guilty. The jury inquired — ‘Do we, the jury, have any right to assess the penalty other than life even if we find the defendant guilty as charged of both the Illinois and St. Louis offenses.’ After instructing the jury that ‘the answer to that is shown necessarily in the instructions already given to you,’ the Circuit Court called attention to the three forms of verdict and added— ‘if the jury considers it more appropriate to use the form of verdict that does not refer to the prior conviction, we would have no objection to their using that form of verdict.’ Such comment was highly prejudicial because the jury may well have considered that the Court showed a preference for a guilty verdict. No specific mention was made by the Court of the verdict form finding the defendant not guilty. The Court dealt only with the two forms of verdict finding the defendant guilty. The implication which the jury could well have gotten is that the Circuit Court would have an objection to the use of the form of verdict finding the defendant not guilty.”

We do not consider that jurors of reasonable intelligence would give the remarks the meaning which appellant suggests. Although appellant urges that the court ignored the “not guilty” form of verdict, the court expressly called attention to the three forms of verdict which had been provided. One of those forms was the “not guilty” verdict. We find nothing in the judge’s remarks which could be reasonably construed to have excluded the possibility of the use of that verdict form or to have recommended against its use. Therefore, we do not consider that the statement was per se prejudicial.

However, even though the statement might not have been per se prejudicial, we consider whether or not relief should be accorded in this proceeding for the reason that the making of the statement in the absence of appellant’s counsel precluded review on appeal of the action of the trial court. Ordinarily, of course, mere error upon the trial of a criminal case affords no basis for relief in the proceeding under Supreme Court Rule 27.26. However, where the alleged error itself is of the nature here presented, i. e., where the fact of the occurrence alleged effectively precluded its assignment on appeal as a trial error, the matter partakes of something more than mere trial error and becomes a factor for consideration in the determination of whether or not the judgment should be vacated in this proceeding.

This leads us, therefore, to consider in this case whether or not there was error on the part of the trial court in its communication to the jury, which error appellant admittedly could not take advantage of on appeal because of his counsel’s ignorance of the occurrence. The appellant urges that the communication to the jury was an instruction within the meaning of Supreme Court Rule 26.02(6) requiring that in all criminal cases the court “must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict * * and, relying on Mallison v. State, 6 Mo. 399, State v. Crofton, 271 Mo. 507, 197 S.W. 136, and Boyd v. Pennewell, supra, that noncompliance with such requirement constituted reversible error. It is recognized, however, that not every communication between the court and jury, subsequent to the jury’s retirement to consider its verdict, is an instruction within the meaning of this requirement. Mere reference by the judge to the instructions previously given is not an instruction within the meaning of this provision. State v. Grant, Mo.Sup., 275 S.W.2d 332, 335 (9); State v. Niblack, Mo.Sup., 256 S.W. 769, 770(3). In our opinion, the communication here was of that nature. The trial court directed the attention of the jury to the instructions previously given and to the three forms of verdict contained therein. The court did no more than tell the jury that its verdict should be in one of such forms. The fact that the court referred to the jury’s desire to ask a “legal question” does not make the court’s communication an instruction of law where the court took no action to extend its direction beyond the instructions previously given.

The remarks of the trial court not having been per se prejudicial and the occurrence not having been such as to have afforded the appellant relief from his conviction had his counsel been aware of what transpired, we are of the opinion appellant has not demonstrated any basis for the relief here sought.

Therefore, the judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . State v. Alexander, 66 Mo. 148; State v. Beedle, Mo.Sup., 180 S.W. 888; Boyd v. Pennewell, Mo.App., 78 S.W.2d 456; Hartgrove v. Chicago, B. & Q. R. Co., 358 Mo. 971, 218 S.W.2d 557.

      . Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787; Eillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S. Ct. 435, 63 L.Ed. 853; Jones v. United States, 113 U.S.App.D.C. 352, 308 F.2d 307.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles Dea LANGSTON, Appellant.
    No. 50297.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Bill D. Burlison, Sp. Asst. Atty. Gen., Cape Girardeau, for respondent.
    Daniel S. Norton, Sikeston, for appellant.
   HIGGINS, Commissioner.

Charles Dea Langston was convicted of statutory rape and the jury assessed his punishment at imprisonment in the penitentiary for - a term of nine years. Section 559.260 RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment.

By information filed January 23, 1963, appellant was charged with the rape of his stepdaughter, Margaret, on or about December 5, 1960. The victim was twelve years old at the time of'the alleged offense and fifteen years old at the time of trial on May 29, 1963.

Because of the nature of appellant’s points on appeal, it is necessary to review the evidence in this sordid case in considerable detail.

Pauline Langston, mother of the prosecu-trix, married appellant when prosecutrix was three or four years old and prosecutrix’ home was with her mother and appellant until the Fall of 1962. The family also included prosecutrix’ own brother, three stepsisters, and a stepbrother.

Prosecutrix testified that she knew the meaning of sexual' intercourse and that she had “an intercourse” with appellant at the home at “Heuer’s place” on or about December 5, 1960. She fixed this date by ■further testifying that she had a baby September 5, 1961, nine months later. She denied intercourse with anyone other than appellant. She testified also' that appellant •started “fondling” her .when she was six years old, and that,he had- “an intercourse” with her when she was seven. She stated ,that she was then in the second grade and that she bled and was sore. She testified that at that time and for about seven years the family lived “off of Perryville Road eight miles from Cape” ; that they then lived in “Timm’s house in the same neighborhood” for about three or four months; that they then moved back to the original place for about six months and from there to the Heuer farm. The witness also testified that appellant used vaseline which he said would “keep me from getting pregnant.” She also testified that appellant said '“that we would keep the baby and then later on when I would get older that we might get married sometime.” Prosecutrix’ •testimony showed frequent acts of the above description during the five or six-year period from the first incident to the act charged in the .information.

On cross-examination prosecutrix stated -that she had told no one about appellant’s acts until December 5, 1962, and gave as her reason her fear' that her stepfather (appellant) would beat her and leave her mother. She told her mother that her pregnancy resulted from a rape on the streets at Cape Girardeau and told her doctor that she was raped by an unknown person in the ■Rialto Theater in Cape. She also said that these stories were what appellant told her -to tell and that the stories were to “cover Up.” She also testified that she went to school in Jackson which was four or five miles from her-home where, the alleged rape occurred, and that she did not tell any of the teachers about appellant because of the fear of her stepfather.

Jay Nations, Juvenile Officer of Cape ■ Girardeau County, testified that he talked with appellant in the juvenile office in Cape Girardeau about Margaret’s pregnancy on September 26, 1962; that he talked again . with appellant on a farm near Old Appleton on October 8, 1962, and at the police station in West Memphis, Arkansas, on November 29, 1962. He stated also that he talked with Margaret on September 25, October 8, and November 29, 1962, and that the last. conversation was in West Memphis, Arkansas, in the apartment in which she and appellant were then living. On cross-examination he stated he had had several conversations with Margaret since the above time; that he first talked to her as a result of an anonymous telephone call; that Margaret denied any sexual connection between herself and appellant until admission’ which occurred in a conversation on December 6, 1962.

Deputy Sheriff Herbert Riehn stated he was with Mr. Nations on the occasion of October 8, 1962. He testified also that Mr. Nations asked Margaret what she would say if he said he knew a person who saw her and her father together, and that Margaret said, “I would say it was a dura lie.”

On recall to the stand, prosecutrix testified that after the visit of the juvenile officer about September 29, 1962, appellant and her mother went to see Mr. Norton, a lawyer in Sikeston, on October 10, 1962, and that on October 16, 1962, the family went down to Dexter from whence appellant and Margaret “left for Memphis.” On cross-examination prosecutrix testified that there had been some conversation about a family move.

Dr. L. A. Masters testified that he delivered prosecutrix of a child on September 5, 1961.

Pauline Langston, mother of prosecutrix and wife of appellant, testified that appellant treated all the children kindly and .equally; that she had enjoyed a good relation with her daughter to the extent of discussing sexual matters during her growing up; that she had helped prosecutrix bathe and dress and had never seen any injury; that prosecutrix told her that her .pregnancy came about at the Rialto Theater -in Cape Girardeau; that prosecutrix in her presence offered to take a He detector test to prove appellant innocent.

Robert Earl Langston, brother of prose-cutrix, testified that he had never seen anything unseemly between appellant and pros-ecutrix.

Appellant took the stand to deny that he had ever fondled or had intercourse with prosecutrix.

Appellant has briefed four points on appeal.

Appellant’s Point 1 is that the court should have directed a verdict for him at the close of all the evidence because “The testimony of the prosecuting witness required corroboration and none was offered.” Appellant cites cases containing and applying the rule that a conviction in cases of rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing but leaves the mind of the court clouded with doubts, she must be corroborated or the judgment cannot be sustained. State v. Tevis, 234 Mo. 276, 136 S.W. 339, 341 [6]; State v. Hobson, Mo., 177 S.W. 374, 377 [7]; State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 622 [1]; State v. Goodale, 210 Mo. 275, 109 S.W. 9, 11 [2].

State v. Wilcox, 111 Mo. 569, 20 S.W. 314, contained a situation akin to the present case. That case involved an illicit sexual relationship carried on by a father with his daughter for a period between her eighth and fourteenth years. Just before the arrest prosecutrix strenuously protested innocence for her father. It was the court’s opinion that there was no corroboration, and the explanation of prosecutrix’ failure to disclose the relationship was fear of her father. Under this set of similar circumstances, the court said, 1. c. 316: “ * * * According to her story, the first act was committed when she was only eight years of age, not old enough to understand the signification of the wrong done her. Thus from that day she was trained and corrupted by her own father by repeated acts, until she probably lost those womanly feelings which prompt instinctive utterance of horror and anguish at such outrages. We cannot say, then, that the evidence of this prosecutrix should be altogether ignored. Improbable as her evidence may be, contradicted on collateral facts as the witness is, monstrous as the accusation against defendant may be, it is still, after all, a question of fact for the trial court and jury, and this court should not interfere.”

We feel that the alleged failure to corroborate the prosecutrix in this case is governed by this holding.

We are not, however, limited in this case to uncorroborated testimony. The information here charges appellant with the rape of prosecutrix on or about December 5, 1960. A child was born to the prosecu-trix on September 5, 1961. We have previously held that the offense of statutory rape may be proved by evidence of the birth of a child to an unmarried female under the statutory age. In State v. Miller, 263 Mo. 326, 172 S.W. 385, 388 [3], the court said: “The fact that the child was born is an absolute showing that a crime was committed.” See also State v. Johnson, 361 Mo. 214, 234 S.W.2d 219, 221 [2]; State v. Wells, Mo, 367 S.W.2d 652, 655 [7-9]; State v. Bowen, 247 Mo. 584, 153 S.W. 1033, 1037 [3, 4], We rule this point against appellant and hold that it was for the jury to determine if he was the guilty party.

By his Point 2 appellant contends that the evidence fails to show venue of the alleged offense in Cape Girardeau County. Upon her cross-examination, the pros-ecutrix stated that she lived “four or five miles from Jackson” when the offense charged was committed, and that she was then going to school in Jackson. By our judicial notice that a point four or five miles from Jackson has to be in Cape Girardeau County, we determine that venue was established; State v. Phillips, Mo., 324 S.W.2d 693, 694 [3]; State v. Heissler, Mo., 324 S.W.2d 714, 716 [2]; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245, 252 [10]; and the question was for the jury to find under Instruction 1 that the acts in question occurred “in the County of Cape Girardeau and State of Missouri.” State v. Hartwell, Mo., 293 S.W.2d 313, 318 [12, 13]. We rule this point against appellant.

Appellant next complains in Point 3 that the court admitted evidence relating to acts of intercourse occurring subsequent to the date charged in the information. Our attention is first directed to page 44 of the transcript which we have searched and found no such testimony. Additional complaint on this point is made of the testimony of witness Nations to the effect that “On 29 November, 1962, I talked with Margaret at an apartment she and Mr. Langston were living in, in West Memphis, Arkansas.” We cannot say that this testimony necessarily leads to the inference of commission of an illicit act subsequent to the date charged in the information and a reading of the transcript reveals that this testimony, considered with other circumstances in evidence, was properly received as evidence of flight. State v. Peterson, Mo., 305 S.W.2d 695, 700 [9-13].

Appellant contends further on this point that the court should have declared a mistrial in the closing argument when the prosecuting attorney, with reference to events of October 1962, stated: “It is not reasonable that a girl of this age about to have a baby is going to leave the care and protection of her own home with her mother.” The court sustained an objection to the argument and instructed the jury to disregard it as not being evidence in the case. An examination of the entire argument reveals that the prosecuting attorney was at this stage arguing the existence and effect of flight in the case. We have already held that evidence on this score was proper and we do not believe that the trial judge abused his discretion in his handling of the argument.

Finally, appellant claims in Point 4 that the court erred in submitting this case because there was no proof of penetration. In support of this charge, appellant cites States v. De Moss, 338 Mo. 719, 92 S.W.2d 112, and State v. Devorss, 221 Mo. 469, 120 S.W. 75. In De Moss the prosecutrix’ testimony did not measure up to any standard of proof of rape, and there were no additional circumstances from which a jury properly could make an inference of guilt of rape. The Devorss case, however, contained a situation similar to this case. There the prosecutrix was a child of thirteen years of age and, like the prosecutrix here, the substance of her testimony was that the defendant had intercourse with her. The court in that case held that her testimony was sufficient to take the issue to the jury. In support of its holding the court used language which we think appropriate to this case: “For instance, if a child be bom of an unlawful connection, and, in a prosecution against its father for rape, the female testify that the child was born of that connection, penetration would be shown by that fact. Now, if the prosecuting witness had only testified that the defendant had intercourse with her, and her testimony stopped at that, we concede there would be failure of proof as to penetration; but, when we consider the facts testified to by her, we can come to no other conclusion than that sexual penetration actually occurred. She meant nothing else by the use of the word ‘intercourse,’ and her testimony could have reference to nothing else.” State v. Devorss, supra, 1. c. 77. See also State v. Hamilton, 304 Mo. 19, 263 S.W. 127, 129 [1,2].

We have held above on Point 1 that proof of the birth of a child to this prosecutrix is absolute proof of the commission of a rape, and such would include proof of the necessary element of penetration. State v. Miller, supra. See also State v. Barnes, 325 Mo. 545, 29 S.W.2d 156, 158 [1], This issue was properly for the jury and the point is ruled against appellant.

We have also examined the information, verdict, judgment and sentence, as required by Supreme Court Rule 28.02, V.A.M.R. The information is sufficient to charge statutory rape. Defendant waived formal arraignment and he pled not guilty. The verdict is in proper form and is responsive to the issues, and the punishment is within limits prescribed by law. Defendant and his counsel were present throughout the trial and counsel represented appellant on appeal. Allocution was granted and the judgment and sentence was responsive to the verdict.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

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

All concur.


author: BARRETT, Commissioner.

text:
    J. L. LOSH, Respondent, v. William Max BENTON, Appellant.
    No. 49945.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 12, 1964.
    Harold L. Henry, West Plains, for plaintiff-respondent.
    Richard D. Moore, Green & Green, H. D. Green, West Plains, for appellant.
   BARRETT, Commissioner.

Virgie Losh died after being struck by the defendant Benton’s automobile. Her husband J. L. Losh instituted this action against Benton to recover $25,000 damages for her death. Ten members of a jury returned a verdict in favor of the defendant and the trial court sustained the plaintiff husband’s motion for a new trial on the ground that “the verdict of the jury is against the weight of the evidence.” The defendant Benton has appealed from this discretionary ruling and thus necessarily the only question briefed and argued and of course the only one involved is whether the plaintiff made a submissible case of the four disjunctively submitted assignments of negligence under the humanitarian doc-' trine — failure to stop, or slacken speed, or swerve, or to have given a timely warning. Sup.Ct.Rule 78.01, V.A.M.R.; V.A.M.S. § 510.330; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; Johnson v. St. Louis Public Service Co., Mo., 237 S.W.2d 136.

Mrs. Losh was struck and killed about 8 o’clock on the evening of July 6, 1961, as she was attempting to cross Harris Street (also known as H Highway) in Willow Springs. Harris is a north-south street and in the immediate vicinity is a viaduct with a southward grade extending approximately 582 feet over the railroad tracks. At the south approach to the viaduct Harris Street is intersected by Valley Street Road, an east-west street with paved traffic lanes about 25 feet wide. Off the southwest quadrant of the intersecting streets Mr. McGlynn has his grocery store. Mr. Mc-Glynn gave these measurements and distances : Harris Street “to where the pavement ends” is 24 feet and beyond the pavement “where the blacktop is” is 22 feet wide. Across the pavement on the east side of the highway, there is a 15 foot shoulder. He said that the distance from the edge of the blacktop of Harris Street to his store is 40 feet and from the store to the edge of Valley Street Road the distance is 42 feet. There are four outside lights “at the edge of the porch” and an overhead street light on the east side of Harris Street.

After Mrs. Losh was struck by the defendant’s automobile there was some debris on the highway and skid marks. All were agreed that the skid marks were “straight,” there was some conflict in the evidence as to their length and location. Mr. Losh said there were some bloodstains on the pavement south of the debris. He said that the skid marks began “at about or near Valley Street Road,” that the length of the skid marks to the debris was 36 feet, from the debris to the bloodstains 39 feet, from the debris north to Valley Street Road was 63 feet. Mr. McGlynn said that the distance from the skid marks to the spot of blood was 70 feet.

Mrs. Losh had been in McGlynn’s store and was on her way to Mrs. Parker’s to stay for the night, a half block east of Harris Street on Valley Street Road. Lorene Collins was sitting in the driver’s seat of her family’s automobile parked in front of the store. She saw Mrs. Losh leave the grocery store and walk alongside the parked automobile to the highway where she stopped, looked in both directions and proceeded “four or five feet” onto the highway when she was struck by the defendant’s automobile. “Well, she just walked by and walked out on the highway and stopped and looked, and started on across. * * * No (she was not running) she just walked out there like anyone would and then when she saw the car, I guess she jumped back or tried to run back off of the highway. * * She didn’t freeze. She tried to get out of his way.”

Mr. Benton, taking his son home from a scout meeting, was driving a 1957 Chevrolet — in excellent mechanical condition. He said that he was following another automobile across the viaduct and that that vehicle turned right on Valley Street Road. Other witnesses saw the lights of an automobile on Harris Street before the defendant came into view but the implication from their testimony was that no other vehicle interfered with his view south on the street. He says that as soon as he saw Mrs. Losh he immediately applied his brakes but was unable to avoid hitting her. It was his position that there was not sufficient time for him to also signal or swerve. However, Mr. Benton testified that he approached and crossed the viaduct at an undiminished speed of 20 to 25 miles an hour. He says that he was traveling 40 to 50 feet behind the car that turned off onto Valley Street Road and that “I was about forty to fifty feet away from her when I first seen her step into my headlights onto the highway. * * * She just came out so far and stopped and looked toward me and it seemed that she just froze.” He said that Mrs. Losh was about 5 feet from the west edge of the pavement when she stopped on the highway. In a deposition he had said that “(i)t couldn’t be more than 60 or 70 feet from where she was to the street” to the point on Valley Street Road where the other vehicle turned off to the right.

It is not necessary here to orderly collect all the speeds and distances and precisely demonstrate all the possibilities (that has been carefully done in several other cases), the only concern now is whether under this record the plaintiff made a case on the submitted theory. While courts may not judicially know the precise distance in which a given automobile traveling at a particular speed on a particular road can be stopped (Spoeneman v. Uhri, 332 Mo. 821, 829, 60 S.W.2d 9, 12,) it is now common knowledge that properly equipped automobiles traveling at a speed of 20 miles an hour, including reaction time, can be stopped in less than 50 feet. Leavell v. Thompson, 238 Mo.App. 130, 176 S.W.2d 854; Annotation 84 A.L.R.2d 979 “Judicial notice of drivers’ reaction time and of stopping distance of motor vehicles traveling at various speeds.” Viewing the testimony favorably to plaintiff, Mr. Benton said that he was 50 feet away when Mrs. Losh stepped into his headlights and if that is not sufficient, traveling at a speed of 20 miles an hour, it could be demonstrated upon this record that he saw or should have seen her when she was much further away and in the path of his automobile. It is this ; basic supportable inference that distinguishes this case from Vietmeier v. Voss, Mo., 246 S.W.2d 785, and Kirks v. Waller, Mo., 341 S.W.2d 860, relied on by the appellant. By his • own testimony, whatever excuse he may have had, Mr. Benton did not signal, or slacken speed, or attempt to swerve in any direction. It follows almost without saying that if in the circumstances of this record Mr. Benton could have stopped his automobile he certainly could have swerved or slackened speed and thereby avoided striking Mrs. Losh. Hendershot v. Minich, Mo., 297 S.W.2d 403. And, “(o)f. course, a warning could have been given in. an even shorter time and distance.” Hildreth v. Key, Mo.App., 341 S.W.2d 601, 607; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Schmitt v. Shuplak, Mo.App., 42 S.W.2d 959. As indicated, it is not necessary here to make all the calculations and demonstrate, as to the four submissions under the humanitarian doctrine, and particularly as to the basic fact of ability to stop, the circumstances of this case fall within and are governed by Lindsey v. Vance, supra; Gerran v. Minor, Mo.App., 192 S.W.2d 57; Ayres v. Key, 359 Mo. 341, 221 S.W.2d 719; Daniels v. Smith, Mo., 323 S.W.2d 705. Therefore the order granting plaintiff a new trial is affirmed and the cause remanded.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    George A. LOPP and Dorothy Lapp, Appellants, v. PEERLESS SERUM COMPANY, a Corporation, and Philips Electronics and Pharmaceuticals Industries Corporation, a Corporation, Respondents.
    No. 49690.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 12, 1964.

      G. Carroll Stribling, Alphonso H. Voor-hees, Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, James T. Britt, Spencer, Fane, Britt & Browne, Kansas City, for appellants.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, William G. Guerri, W. Stanley Walch, Edwin D. Akers, Jr., St. Louis, Smith, Sherwood, Utz & Litvak, Basil L. Kaufmann, St. Joseph, for respondents.
   PRITCHARD, Commissioner.

Plaintiff, George A. Lopp, for breach of an employment contract, sought by the alternative remedy of restitution the value of certain corporate assets (formulas for veterinary pharmaceutical products, ideas and the name of the Peerless Serum Company, which is hereinafter called “Old Peerless”). Mr. Lopp had transferred the corporate assets pursuant to a contract with the Anchor Serum Company of Missouri to the newly formed Peerless Serum Company (hereinafter called “New Peerless”).

Trial was to a jury which returned a verdict for plaintiffs against both defendants in the amount of $100,000 damages with interest thereon at 6% per annum from November 1, 1956, which is the date of the employment contract claimed to be breached, amounting to $33,000. Thereafter, the trial court granted defendants’ after-trial motions for judgment in accordance with the joint motions (and defendant Philips Electronics and Pharmaceutical Corporation’s separate motion) for directed verdict made at the close of the whole case. Judgment was then entered in favor of defendants, and in the alternative (if the judgment for defendants be reversed) the trial court ordered a new trial because of error in the giving of certain numbered instructions to the jury. Plaintiffs have appealed from the judgment against them.

Old Peerless was organized in 1921 by Mr. Lopp’s father and Mr. C. L. Charles, whose interest was later purchased by Mr. Lopp’s father. The company was then engaged in the hog cholera serum production and sales and it continued in business until the July, 1951, flood in Kansas City, Missouri, when the company was thereby forced to cease production. In 1935 or 1936 Old Peerless had started the manufacture of veterinary pharmaceuticals, which is the compounding of drugs and chemicals to be used in treating specific conditions or diseases of livestock. The products of the veterinary pharmaceuticals were produced in powders, tablets and ointment forms.

After the 1951 flood, the company started back in the pharmaceutical business, hiring two chemists therefor, and engaged entirely therein. The chemists worked continuously in the development of pharmaceutical formulations and in supervising the manufacturing of the various products which were involved. About May 15, 1956, the plant of the new enterprise burned, and the remaining assets of Old Peerless were its accounts receivable, cash on hand, some real estate where the former serum plant had been located, and the formulas of its pharmaceutical business. These formulas are shown by Plaintiffs’ Exhibits J-l through J-130.

In the fall of 1956, Mr. Lopp entered into negotiations with Mr. True Davis, Jr., President of the Anchor Serum Company, a Missouri corporation, of St. Joseph (hereinafter called “Anchor of Missouri”) for the sale and purchase of the business of Old Peerless. Consequent to the negotiations, a contract was entered into, the terms of which are involved in this action, and which was executed by Mr. Lopp individually and as President of Old Peerless, and by Mr. Davis as President of Anchor of Missouri. At the time of the execution of the contract, on November 1, 1956, Mr. Lopp owned or had control of all of the outstanding capital stock of Old Peerless. His wife, the plaintiff, Dorothy Lopp, is nominally a party, she having assigned her interest to Mr. Lopp.

The initial written contract of November 1, 1956, being between Old Peerless and Mr. Lopp as first parties, and Anchor of Missouri as second party, first recited that Old Peerless had been engaged in the serum business for a number of years, but due to a casualty had not been in production in recent months and except for certain formulas, trademarks, ideas and its name, did not have any physical assets of any kind, nature and description, except certain real estate and cash not included in the transaction. It then recited that first parties “desire to sell the formulas, trade marks, ideas and the name of the company for a nominal consideration, provided George A. Lopp is given employment as hereinafter set forth, and the Second Party is willing to make said purchase and to give said employment * * It was then agreed that second party would immediately arrange to have a new corporation formed in the name of Peerless Serum Company (New Peerless) and that first parties would change the name of Old Peerless to G. A. L. Enterprises, Inc. These things were done and New Peerless came into existence as a subsidiary to Anchor of Missouri which owned all of its capital stock. Old Peerless became “George A. Lopp Enterprises, Inc.”, which corporation was dissolved on March 25, 1958, by certificate therefor from the Secretary of State.

Mr. Lopp’s employment by New Peerless, upon the incorporation of which the entire transaction was to have been consummated, was to commence on December 1, 1956, and extend for three years thereafter. During the first year only his salary was to be $7,-500 plus any commissions on sales to his old customers, or any new customers (but the commissions were not to apply to sales to any customers of Anchor of Missouri). The commission rate was to be 12}4% of the sale price of all items carrying a minimum of 25% or more gross profit before selling, administrative and other general expenses. On items of which the gross profit was less than 25%, Mr. Lopp was to receive one-half of the gross profit (before taxes) on such items. The contract further provided that the parties might agree in writing to expand the items sold by Mr. Lopp, but until that time he would be restricted to the exclusive contract of all his former customers and new customers of Old Peerless, except that he would have the right to sell a line of syringes known as the Se-lecta Syringe. There was also a provision that Mr. Lopp would not sell or promote the sale of any pharmaceutical items or products of any other pharmaceutical company, and that he would devote his time to the business of New Peerless.

Mr. Lopp testified that shortly after the execution of the contract he turned over to Mr. Darwin Aldrich of Anchor of Missouri copies of the formulas he had at that time, and also a notebook which contained a breakdown of the cost of manufacturing the products. He also undertook to sell the permitted products. In the early spring of 1957, the initial contract was amended by an undated written addendum so that Mr. Lopp could sell or promote in any way the sale of biological and pharmaceutical products of any affiliated company of Anchor of Missouri, including the Peters Serum Company. On May 16, 1957, a supplemental agreement in writing was made which, as pertinent, provided that there would be no further commissions paid to Mr. Lopp; his salary would be $15,000 a year, and if there should be unsatisfactory service or if for any reason the New Peerless Company desired to terminate the agreement it could do so on 30 days’ notice in writing, but Mr. Lopp would then have the right, if he desired, to resume his employment upon the commission basis outlined in the original contract. Mr. Lopp testified that the modification came about after a discussion with Mr. Davis to the effect that Mr. Lopp was not earning above his expenses as a commission salesman because of loss of customers and cancellations caused by orders not being filled properly, there having been experienced by New Peerless considerable difficulty in the production of products. Mr. Lopp was subsequently placed in charge of the production department of the company, and his testimony was that he straightened out the production problems, and that he thereafter, until his discharge, performed whatever duties were required or requested of him by Mr. Davis. These duties included contacting Sears-Roebuck & Company to set up a line of pharmaceuticals to be sold through its catalogue; the Rexall Drug Company for the sale of products under the exclusive name "Peerless Serum Company”; and of the Upjohn Company for the preparation of its products. Mr. Lopp continued under his contract at a salary of $15,000 per year until his employment was terminated on February 29, 1960, he having been notified of such termination on January 1, 1960.

This action was filed in two counts on August 20, 1960. Count I of the petition was on the theory of restitution for breach of the employment contract upon which Mr. Lopp elected to submit his case. Count II, being upon the theory of damages for loss of past and prospective income, and for punitive damages (stricken by the court) for wrongful discharge, was dismissed by Mr. Lopp “without prejudice” during the trial upon his election to proceed upon the theory of Count I.

With respect to the first year remuneration of $7,500 which is called a “salary” in the initial contract, Mr. Lopp pleaded that the consideration for the purchase of the name “Peerless Serum Company”, its established business, trademarks, formulas and ideas then owned and used by that company, and as compensation in full for the value of all said assets, Anchor Serum Company agreed to pay plaintiff a year’s salary in the sum of $7,500, plus such commissions as he might earn, for as long as he might desire to continue such employment by the new Peerless Serum Company. He then alleged that defendants had paid only $7,500 for the reasonable value of the assets of Old Peerless sold, and that $46,265 received by him as commissions and salary was for services actually rendered and was not creditable against the value of assets actually received by defendants. On cross-examination, Mr. Lopp testified that under the contract of November 1, 1956, he was to transfer the formulas and name of Old Peerless to the Anchor Serum Company, and in return for that he was to receive $7,500 and an employment contract for his lifetime. By his measure of damages Instruction No. 10, the jury was told that if they found in favor of plaintiffs it could award as damages an amount equal to the fair value of the formulas “less such amounts not less than Seventy-five Hundred Dollars ($7,500) as you may find and believe from the evidence were paid to Plaintiffs on account of such formulas, * *

In his brief, Mr. Lopp takes the position that the contract was a single and enforceable agreement to employ and reemploy him for three-year periods so long as he should live in consideration of the sale of the formulas and the name of Old Peerless; that “There is no separate consideration of $7,-500 for formulas because the agreement to give employment upon all of the terms outlined was the consideration for all of the covenants made by Appellant Lopp and Old Peerless as First Parties under the contract.” Defendants, by Point A(2) of their brief, say that the contract provisions are severable, specifying separate considerations for the sale of the formulas and Mr. Lopp’s employment, and Mr. Lopp cannot get restitution for the value of the formulas because the contract with respect to the formulas has been fully performed.

We are not prepared to say that the provisions of the contract are appor-tionable in the sense that on the one hand the parties separately agreed upon the sale of the formulas of Old Peerless for $7,500 to the corporation to he formed, New Peerless, under the initial contract; and on the other hand that the parties separately agreed upon the employment contract embodying mutual promises to render services and to remunerate therefor. A more reasonable construction is that the matters of consideration are entire and are not ap-portionable — -that $7,500 was not all that Mr. Lopp was to receive for the formulas, but, in addition, he was to have an employment contract. The question of whether a contract is entire or severable is primarily one of intention which “is to be determined from the language which the parties have used and the subject matter of the agreement.” Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111, 120 [1, 3], where it is also said, quoting Williston, Contracts, 1652, § 963, that the essential test “can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever if any promise or set of promises were struck out." (Emphasis added.) Considering the words used in the instant contract, if the matter of the sale and purchase of the formulas and name of Old Peerless were stricken, clearly the parties would not have reached the agreement which they did. Anchor of Missouri wanted the formulas and name and was willing to make the purchase thereof and to give Mr. Lopp the stipulated employment. Mr. Lopp was willing to sell the formulas provided he would be given the employment. It is with this conclusion that we overrule defendants’ Point A(2) of their brief, under which they cite Rest. Contracts § 351 (a), and contend that Mr. Lopp may not have the remedy of restitution under the theory therein set forth because the apportioned part of the consideration ($7,500 for the formulas) has been rendered in full. See also 5 Corbin on Contracts, § 1111, p. 591, and the there cited case of Schwasnick v. Blandin, 65 F.2d 354 (C.C.A.2d, 1933), at page 358, where it was held that the contract there in question did not attempt to apportion payments for three items mentioned in the contract, and for this reason it was permissible for the plaintiff to recover in the action for services (and thus Rest. Contracts § 351(a) would be inapplicable).

Defendants say that prior to bringing this action Mr. Lopp failed to make an actual tender of the $7,500 received by him on account of the sale of the formulas and name of Old Peerless, and that he may not therefore maintain this action for restitution. The petition and instruction upon the measure of damages permit a credit upon the amount found to be due Mr. Lopp of the $7,500. Defendants’ Point A(3), raising this objection, is without merit and is overruled because, as is said in Rest. Contracts, § 349(2) (c), “A failure to offer to return the performance received does not make restitution unavailable as a remedy if it is merely money paid by the defendant, the amount of which is credited to him.” See also 5 Corbin on Contracts, § 1116, p. 625, et seq., for a discussion of the necessity of actual tender as a condition of restitution.

Anchor of Missouri was a party to the initial contract of November 1, 1956. That contract provided that New Peerless would be formed. When it was incorporated all of its stock was owned by Anchor of Missouri, and Mr. Davis was president of and owned the controlling interest in both corporations. Anchor of Missouri paid Mr. Lopp’s salary and commissions, charging them back to New Peerless. Anchor of Missouri, through its president, Mr. Davis, directed and controlled the activities of Mr. Lopp during the course of his employment. It is apparent that New Peerless was merely a shell and was wholly controlled by Anchor of Missouri as an instrumentality thereof for its own purposes and conveniences: New Peerless was formed by Anchor of Missouri for the sole purpose of acquiring the remaining corporate assets of Old Peerless. In this situation the corporate entities of the two corporations should be disregarded. See Schwartz v. Shelby Construction Company, Mo., 338 S.W.2d 781, 794, and cases and authority cited. There was evidence that the instrumentality of Anchor of Missouri, New Peerless, had insufficient corporate assets to discharge an obligation of the amount claimed by Mr. Lopp under his demand for restitution of the reasonable value of the assets turned over to it. New Peerless had an original capitalization of $2,500; advancements (as a loan and not as a capital investment) were made from time to time for running expenses; and that corporation lost $107,000 during the time of Mr. Lopp’s employment. It would seem that Mr. Lopp has shown the required injustice or wrong to him which would be occasioned if these corporate entities were not disregarded. Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 330 S.W.2d 771, is therefore inapplicable to the facts of this case.

Anchor of Missouri continued to own all of the stock of New Peerless until October 19, 1959. It then entered into a merger agreement with the Delaware corporation, Philips Electronics, Inc., which resulted in the corporate existence of Anchor of Missouri coming to an end, and all of its assets, including New Peerless stock, and liabilities were transferred to the surviving company, defendant Philips Electronics and Pharmaceuticals Industries Corporation. Immediately upon the effective date of the merger, the latter company on October 19, 1959, transferred all the assets it had acquired from Anchor of Missouri to the newly formed Anchor Serum Company, a Delaware corporation, which had been incorporated on October 6, 1959. The transfer was subject to all of the liabilities of Anchor of Missouri (the name of which on December 30, 1960, was changed to Philips Roxane, Incorporated).

Defendant, Philips, did not own any of the New Peerless stock at the time Mr. Lopp’s cause of action arose, January 20, 1960, but Anchor of Delaware then owned all the stock pursuant to the transfer of that stock by defendant, Philips, on October 19, 1959. Anchor of Delaware was not made a party to this action. Therefore, defendants contend, Mr. Lopp’s case of lifting the corporate veil of defendant Philips must fail because Philips did not own any New Peerless stock and had no control over that corporation at the time his cause of action arose, citing 1 Fletcher Corporations § 43, pp. 205-206, “It must be kept in mind that the control must be shown to have been exercised at the time the acts complained of took place in order that the entities be disregarded at the time.” The point is well taken. If Mr. Lopp would seek to impress these subsequently formed companies with the continuing liability of his employment contract, he must show that at the time his alleged breach of contract arose the defendant company controlled the subsidiary “instrumentality” with which he contracted, at the time of breach. Although pursuant to the merger agreement the liability of New Peerless and Anchor of Missouri as original parent company, under the employment contract, was successively transferred, there is no evidence that at the time of the breach defendant Philips had any control over New Peerless or even Anchor of Missouri, which had gone out of existence by February 29, 1960. See State ex rel. General Mills, Inc. v. Waltner, 348 Mo. 852, 156 S.W.2d 664, 668 [6] ; Majestic Co. v. Orpheum Circuit, Inc., 21 F.2d 720, 726 (C.C.A.8th, 1927); Lowendahl v. Baltimore & Ohio R. Co., 247 App.Div. 144, 287 N.Y.S. 62, 76. We rule that the trial court did not err in giving judgment as to the defendant Philips Electronics and Pharmaceuticals Industries Corporation.

Under the terms of the contract, Mr. Lopp had the option to renew his employment for “as long as he desires to do so.” The supplemental agreement did not modify that provision, but provided that if his services upon employment at a salary should be unsatisfactory, he would have the right, “if he desires,” to resume his employment upon the commission basis outlined in the original contract. Inasmuch as there was an additional consideration (the formulas and the name of Old Peerless) caused to be transferred by Mr. Lopp to New Peerless, his contract for employment is based upon something other than mutual promises of employment and services to be rendered therefor. See Harrington v. Kansas City Cable Railway Co., 60 Mo.App. 223, 228; Anno. 35 A.L.R. 1434. His contract is not terminable at will as being for an indefinite period, and is not unenforceable for lack of mutuality of obligation. Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7, 14 [7, 8].

For the breach of his contract Mr. Lopp would have been entitled to maintain an action for damages. He did not so choose, but elected the alternative remedy of restitution to recover the value of the benefit bestowed by him upon New Peerless by reason of the transfer of the formulas and name to it. In 5 Corbin on Contracts § 1102, p. 548, it is said, “The purpose of this remedy is the restoration of the injured party to as good a position as was occupied by him before the contract was made, without attempting to compensate him for consequential harms; the means to this end is a judgment for the equivalent in money of any performance rendered by the plaintiff and received by the defendant (or in some cases for the return of specific property).” See also Rest. Contracts § 347. Although Mr. Lopp has correctly chosen an alternative remedy for the breach of his contract, defendants have vigorously interposed the objection that he has not himself offered to credit them with the amounts of salary and commissions received by him under the contract, $46,265. The general rule is that in order to have restitution a party seeking it must tender or offer to credit that which he has received (as a benefit) under the contract. Rest. Contracts § 349; 17A C.J.S. Contracts § 439, p. 545. The reason for the general rule is stated in 5 Corbin on Contracts § 1114, p. 607, to be: “A plaintiff who recovers the full value of such performance as he may have rendered, and at the same time is allowed to retain a part performance that he had received, is thereby put in a better position than he occupied before the contract was made.”

The burden of proof was upon Mr. Lopp to prove all of the elements of his claim for restitution, and this would include his tender or offer of credit for all the benefits conferred upon him by the defendants’ partial performance of the contract. Or, if he would seek to excuse himself from a tender or offer of tender, on the ground that the reasonable value of his services was equal to his remuneration by way of salary and commissions, he must prove facts as would support the excuse, and submit them to the jury in an appropriate instruction. See 5 Corbin on Contracts § 1114, p. 617, where it is said, “In order to show the amount to which he is justly entitled, the plaintiff must prove the value of services received by him and of goods received and consumed, or of any other part performance that he cannot return.” The matter was dropped after the pleading that the $46,265 was for services actually rendered and was not creditable against the value of the formulas due Mr. Lopp from defendants. Mr. Lopp’s proof tended in general to support the inference that his remuneration was equal to services rendered by him; but defendants’ proof tended to show to the contrary. At no place in the instructions was this disputed fact submitted to the jury. This omission was prejudicial error against defendants, necessitating a new trial. Banta v. Union Pac. R. Co., 362 Mo. 421, 242 S.W.2d 34, 42 [10-12], See also Lees v. Akshun Mfg. Co., 7 Cir., 205 F.2d 577, where an action for “rescission” (not precisely the same as “restitution,” see 5 Corbin on Contracts § 1105) was brought to restore to plaintiff certain ice machine patents upon defendant’s material breach of contracts. The case was remanded for further proceedings and in connection with one reason therefor (a determination of the value of the designing and supervising services rendered by plaintiff) the court said, loe. cit. 583, “Plaintiff made no offer to return any portion of the $100 per week salary paid him by defendant, Akshun. This failure may well preclude his obtaining the relief he seeks. However, it is also possible that the reasonable value of the services he rendered defendant, Akshun, exclusive of the patent assignments, was equal to the salary paid him. In such a case he would owe defendant nothing and the tender would be a useless act. This question of value is, of course, one of fact for the trial court.”

The above discussed matters are determinative of this appeal.

The parties have extensively briefed o.ther issues which we do not rule for the reason that the parties are adequately apprised thereof, and therefore such issues are not likely to recur upon retrial.

The judgment in favor of defendant Philips Electronics and Pharmaceuticals Industries Corporation is affirmed. The judgment in favor of Peerless Serum Company is reversed, and this case is ordered remanded for new trial against that remaining defendant in accordance with the trial court’s alternative order.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    Helen P. FISHER, Appellant, v. Everett A. WILKINSON, and G. Robert Reinhardt, Respondents.
    No. 49337.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.
    Rehearing Denied Oct. 12, 1964.

      Elwyn L. Cady, Jr., Kansas City, for appellant.
    Roy F. Carter, Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment in favor of defendants entered pursuant to jury verdict in her suit for alleged malpractice wherein she sought damages in the amount of $130,000.

Plaintiff’s only point on this appeal pertains to the giving of an instruction at the request of defendants. However, defendants contend that plaintiff did not make a submissible case for the jury. For the reasons subsequently set out we agree with defendants’ contention, and it is therefore unnecessary to discuss the allegedly erroneous instruction.

Dr. Everett A. Wilkinson had been the family physician for plaintiff since 1937. In April 1958 he performed an operation on plaintiff to remove her gall bladder. She was hospitalized about two weeks and had what was referred to as an uneventful operation and confinement. On the third day after her release from the hospital her son called Dr. Wilkinson by telephone and stated that plaintiff was “sick,” that she had a- “slowing” of urine, and that she appeared to have a temperature. Dr. Wilkinson , asked that plaintiff’s son obtain a thermometer and take his mother’s temperature. When this was done it was then after office hours, and plaintiff’s son talked to Dr. Reinhardt (who was associated with Dr. Wilkinson in the practice of medicine) and related to him the symptoms of his mother. Dr. Reinhardt testified that in view of the recent gall bladder operation, the symptoms indicated that plaintiff had a urinary tract infection. He first suggested that plaintiff be given a sulpha drug, but her son stated that his mother had been allergic to it in the past. The doctor then prescribed terra-mycin, and he testified at trial that it was the “commonly accepted medication for this condition.” No house call was requested .by plaintiff or her son.

Plaintiff testified that on the following day, a Sunday, she was “no better,” and that her skin was beginning to have a sensation of scratching as though “someone had rubbed me with wire.” On Monday she called Dr. Wilkinson and told him that she still had a temperature, and that she had a “sensation” in her face and eyes. She testified that she asked Dr. Wilkinson if the cause could be the medicine she was taking and he replied that it was not, and that “everybody takes terramycin.” On the following Wednesday, in response to a request from plaintiff, Dr. Reinhardt made a house call to see plaintiff. He testified that at that time he did not notice anything unusual .about plaintiff’s skin and he diagnosed her condition as a low-grade urinary infection. He obtained a urine specimen for examination, and later reported to plaintiff by telephone that there was nothing in her urine “to worry about.” Plaintiff’s son testified that his mother had redness around lier eyes and that “they were starting to puff and swell.” However, it is not clear from his testimony when he first noticed this condition. Mrs. Mamie Winn, who was visiting plaintiff, testified that she was present when Dr. Reinhardt called, and that plaintiff then had very small red spots beneath the surface of the skin, and that her eyes “were swollen and puffy looking.” Plaintiff testified that when Dr. Reinhardt was there he “pulled my gown and housecoat ■down, and looked around a little” and said that he “could see no redness.” While plaintiff did not specifically so state, the inference is that Dr. Reinhardt made this examination by reason of some suggestion or complaint by plaintiff.

On the following Tuesday, May 6, Dr. Reinhardt returned to see plaintiff, and at that time plaintiff was “obviously sick,” although not “critically ill,” and she “had a redness, a rash, * * * over her face and shoulder, * * * [and the] upper part of her trunk” which was “an allergic reaction to something.” He told her that she “should be in the hospital immediately,” but she “absolutely refused” because she said that she could not afford it and she did not think she was yet that sick. Dr. Reinhardt then prescribed a cortisone preparation which was a recognized treatment for allergic reaction. On Thursday, May 8, she re-entered the hospital where her condition was diagnosed as exfoliative-dermatitis.

Dr. Wilkinson testified that all drugs have potential “side effects,” including aspirin, depending upon the individual. He further stated that the only side effects of or reaction to terramycin of which he was aware by reason of his own experience, “and that would include possibly any case that has ever been in Research Hospital,” was “pseudo-mucinous entercolitis” which is a reaction that occurs in the bowel resulting from the antibiotic killing off normal bacteria as well as the infection producing bacteria.

Dr. Harry Wiener, of New York, who was associated with Chas. Pfizer & Company, producer of terramycin, as associate medical director and director of technical writing, testified that dermatitis was not an expected or a common condition to be looked for in the use of terramycin, and further that the occurrence of exfoliative-dermatitis brought to his attention by Dr. Wilkinson and Dr. Reinhardt in 1958 was the only case in which it appeared that the cause could be traced to the use of terramycin. The “package insert” or “package brochure” supplied in 1958 by Chas. Pfizer & Company "with terramycin and available to members of the medical profession, contained a paragraph headed “Precautions,” and therein it was státed that “Glossitis and dermatitis as reactions of an allergic nature may occur but are rare. If adverse reactions occur or individual idiosyncracy or allergy occur, discontinue medication.” Dr. Wiener testified that the term “dermatitis” used in the brochure was used without the term “exfoliative” and with reference only “to dermatitis, meaning essentially a skin irritation” which does not include exfoliative, and the two are distinct conditions, the ex-foliative-dermatitis being a “much more serious condition than dermatitis alone” and also being a “very rare condition.”

Plaintiff does not charge that defendants do not each possess the requisite knowledge and skill. In fact, the testimony establishes beyond doubt that they do. She does charge negligence on their part in the failure to exercise that skill, and those charges as set out in her verdict directing instruction are as follows:

(1) defendants failed “to make a reasonably careful examination * * * to discover and diagnose the ailment or ailments from which she was suffering; ”

(2) defendant Dr. Reinhardt called upon, examined and treated plaintiff at “irregular intervals” and “too far apart to treat effectively plaintiff in her illness, * * *

[thereby] depriving plaintiff of the continuous attention of a physician who had the benefit of observing day to day changes in plaintiff’s condition;”

(3) defendants failed to “change the medical care and treatment of plaintiff after it should have been reasonably apparent to a physician of ordinary skill and learning that plaintiff was not responding favorably to the treatment given;”

(4) defendants failed to discover within a reasonable period of time that plaintiff was suffering from an allergic reaction after it should have been reasonably apparent; and

(5) defendants failed “to administer such treatment as under the circumstances should have been administered by ordinarily careful physicians acting with reasonable care and their best judgment in Kansas City, Missouri.”

We express no view as to whether plaintiff’s verdict directing instruction would have sustained a verdict for plaintiff if a submissible case had been made.

“The standard of care imposed upon the defendant in a malpractice case has been stated as follows: ‘The defendant was required to use and exercise that degree of care, skill, and proficiency which is commonly exercised by the ordinarily skillful, careful, and prudent physician and surgeon engaged in similar practice under the same or similar conditions. It is not sufficient that he may have possessed the requisite training and skill; he must also have used and applied it in the treatment of the plaintiff.’ ” Rauschelbach v. Benincasa, Mo., 372 S.W.2d 120. See also Steele v. Woods, Mo., 327 S.W.2d 187, 196, and: Williams v. Chamberlain, Mo., 316 S.W.2d. 505, 510. However, as long as the physician has the requisite skill and exercises, the requisite degree of care, he is not liable in a malpractice action for an honest-error of judgment, and having so acted, he is not liable merely because of an unexpected or bad result. Williams v. Chamberlain, supra; Mann v. Grim-Smith Hospital, and Clinic, 347 Mo. 348, 147 S.W.2d 606; Ewing v. Goode, C.C.S.C.Ohio, 78 F. 442, 443; 41 Am.Jur. Physicians and Surgeons. § 103. In an action for malpractice based, on specific negligence no presumption of' negligence on the part of a physician is indulged in by the courts by reason of an adverse result from medical treatment, 41 Am. Jur. Physicians and Surgeons § 127; 70’ C.J.S. Physicians and Surgeons § 62, but. plaintiff has the burden to establish the negligence on the part of the physician in-failing to exercise his skill or the requisite-degree of care, and his burden also includes, presentation of proof that the negligent acts caused the injury. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600. Plaintiff offered no expert medical testimony,, and her evidence consisted only of the testimony of herself, her son, her daughter-in-law, a family friend (none of whom-qualified as a medical expert witness), the-hospital records, and certain excerpts from the depositions of Dr. Wilkinson and Dr. Reinhardt.

Without detailing the medical testimony presented on behalf of defendants it may be said that it was to the effect that in the treatment of plaintiff the defendants-did employ that skill and care used and exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances. Plaintiff’s evidence did no more than establish the presence of the illness, the treatment therefor selected by the defendants, and the adverse result in the form of an allergic reaction. The question thus presented is whether a jury, composed of lay personnel, may determine from the evidence that the defendants failed to conform to the required standards and for that reason were negligent.

The first and fourth charges of negligence above set out and taken from plaintiff’s verdict directing instruction pertain to the diagnosis of plaintiff’s ailment. Because of the failure to hypothesize the facts it is not clear whether it was intended by plaintiff that the first charge should pertain to a failure to make a careful examination to discover that plaintiff was in fact suffering from a urinary tract infection before prescribing terramycin, or to a failure to examine and discover that after the administration of terramycin she was suffering from exfoliative-dermatitis. However, we find no contention that the diagnosis of the presence of a urinary tract infection was erroneous, and we find no contention that the use of terramycin, absent a situation where the physician knew or should have known of an adverse reaction, was not the proper treatment for such condition. Neither is there a contention that the diagnosis of exfoliative-dermatitis was erroneous. Therefore, the only questions presented by the first and fourth charges of negligence are whether from the evidence the jury could find that defendants were negligent in failing to discover that plaintiff was allergic to terramy-cin before administering it, and failing to discover the allergic reaction within “a reasonable period of time.”

The other three charges of negligence pertain to the treatment administered by defendants. The third charge expressly re•quired the jury to find that the treatment did not meet the standard of “ordinary skill and learning,” and the fifth charge required the jury to find that what was done was not what would have been done by “ordinarily careful physicians acting with reasonable care and their best judgment.” The second charge of negligence is that the treatment was at “irregular intervals” and “too far apart” so that plaintiff was deprived of “the continuous attention of a physician who had the benefit of observing day to day changes in plaintiff’s condition.” Perhaps a patient could contract for the “continuous attention” of a physician, but in a tort action for negligence, absent expert testimony to the effect that plaintiff’s condition was such that the standards required of physicians called for “continuous attention,” this charge of negligence presents a theory for which we find no precedent.

It has frequently been said that when the issue for determination by the jury is whether the defendant physician exercised the proper skill in the diagnosis and treatment of plaintiff’s illness, which includes the selection of the remedy, expert medical testimony ordinarily is essential because only in exceptional cases may a jury of lay personnel make a determination based on common knowledge whether the conduct of the physician was in violation of the required standards imposed by law. Williams v. Chamberlain, supra, 316 S.W.2d at p. 511; Mitchell v. Robinson, Mo., 334 S.W.2d 11, 79 A.L.R.2d 1017; Steele v. Woods, Mo., 327 S.W.2d 187, 198; Morgan v. Rosenberg, Mo.App., 370 S.W.2d 685; 70 C.J.S. Physicians and Surgeons § 62 d(2), p. 1006. In Williams v. Chamberlain, supra, this court quoted with approval from Hopkins v. United States, D.C.W.D.Mo., 152 F.Supp. 473, as follows: “ ‘A plaintiff in a malpractice action assumes a very heavy burden where the basis of recovery is predicated on an attack on the technique and skill exercised by an operating surgeon or on a charge that he failed to exercise reasonable judgment. In the absence of most unusual circumstances it is a burden that cannot be discharged in normal course by lay testimony. * * * When plaintiff fails to show by calling an expert that the care given by defendant and its agents falls below the required standard of the school of medicine to which he belongs, and fails to show that [the physician] neglected to use standards of skill and treatment required of others in the area, then plaintiff has failed in her burden.’ ”

“The making of a diagnosis [by a physician] is largely a matter of judgment. Even if there be an erroneous or mistaken diagnosis the mistake must be a negligent one to create liability.” Williams v. Chamberlain, supra, 316 S.W.2d at p. 512. See also Gottschall v. Geiger, 207 Mo.App. 89, 231 S.W. 87, 95; Trask v. Dunnigan, Mo.App., 299 S.W. 116, 117; Sibert v. Boger, Mo., 260 S.W.2d 569; McDonald v. Crider, Mo.App., 272 S.W. 980; Skodje v. Hardy, 47 Wash.2d 557, 288 P.2d 471; 41 Am.Jur. Physicians and Surgeons § 92. Also the mode of treatment selected by a competent physician for the treatment of an injury or illness is largely a matter of professional judgment. Williams v. Chamberlain, supra, 316 S.W.2d at p. 512. That would include the frequency of house calls, 41 Am.Jur. Physicians and Surgeons § 100, and also whether a change should be made in the method of treatment. All of these matters call for the exercise of the judgment of a trained person and are beyond the common knowledge and experience of lay persons. “If laymen [who sit on juries] are not to be guided on issues requiring peculiar and thorough special training in a science or art beyond the experience and knowledge common to mankind by witnesses possessing the necessary testimonial qualifications, juries will be cast into a river of doubt and must establish an arbitrary standard of their own founded upon conjecture and surmise in their effort to reach certain and sure ground. Juries should not be thus turned loose and privileged to say, perchance, the method of treating an injury * * * [or an illness] was negligent notwithstanding, for instance, the uncontradicted competent testimony establish [ing] that the uniformly adopted practice of the most skillful surgeons [or physicians] had been followed.” Pedigo v. Roseberry, 340 Mo. 724, 736, 102 S.W.2d 600, 607. Without the aid of expert medical testimony in this case a jury could not, without resorting to conjecture and surmise or by setting up an arbitrary standard of their own, determine that defendants failed to exercise their skill and use the care exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances.

It is recognized that in certain cases involving malpractice the testimony of an expert witness is not always necessary to make a submissible case for the jury. Williams v. Chamberlain, supra, 316 S.W.2d at p. 511; 70 C.J.S. Physicians and Surgeons § 62 at p. 1009. See also the discussion of this question in the note, “The Law of Malpractice in Missouri,” Washington University Law Quarterly, June 1962, p. 409, where a logical differentiation of the cases is presented. However, this case clearly is one where expert medical testimony is required. See Pedigo v. Roseberry, supra, Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659; Brown v. Scullin Steel Co., 364 Mo. 225, 260 S.W.2d 513; Snyder v. St. Louis Southwestern Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504; Fausette v. Grim, 193 Mo.App. 585, 186 S.W. 1177.

We necessarily conclude that the plaintiff failed to make a submissible case for the jury, and it is therefore immaterial whether or not the instruction complained of was erroneous.

The judgment is affirmed.

BARRETT, C, concurs.

PRITCHARD, C., not participating.

PER CURIAM.

The foregoing opinion by STOC'KARD, C., is adopted as the opinion of the Court.

All of the Judges concur.