author: DALTON, Judge.

text:
    Petition of the CITY OF ST. LOUIS, a Municipal Corporation, for a Pro Forma Decree Authorizing the issuance of $4,207,000 of Bonds Pursuant to Ordinance No. 50678, Approyed November 22, 1961, being the Remainder of $7,957,000 of Bonds Authorized Under and Pursuant to Proposition No. 5 at an Election Held on the First Day of August, 1944, Pursuant to Ordinance No. 42,952, Approved June 17, 1944, City of St. Louis, Petitioner-Respondent, P. F. Palumbo, Appellant-Intervenor.
    No. 49539.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.
    P. F. Palumbo, St. Louis, pro se.
    Thomas J. Neenan, City Counselor, Thomas F. McGuire, Associate City Counselor, Stephen M. Plereford, Asst. City Counselor, St. Louis, for respondent.
   DALTON, Judge.

This is an appeal by intervenor, P. F. Palumbo, from the judgment and decree of the Circuit Court of the City of St. Louis holding that unissued bonds of the City of St. Louis, in the sum of $4,207,000 are valid and legal obligations of the City of St. Louis, and authorizing and validating the issuance of said bonds by the said city.

The record shows that, on June 17, 1944, the Board of Aldermen of the City of St. Louis enacted Ordinance No. 42952, submitting to the voters of the City of St. Louis, eleven propositions for the incurring of indebtedness and the issuance of bonds of said city, among which was Proposition No. 5, authorizing the City of St. Louis to borrow money and to issue its bonds in the sum of $7,957,000 for the purpose of constructing, reconstructing, repairing, replacing, reconditioning and improving sewers and drains and the acquiring of rights of way and land therefor. The voters of said city approved said Proposition No. 5 on August 1, 1944. Appellant-intervenor admits that subsequent to the adoption of Proposition No. 5 the respondent city proceeded in an orderly manner to plan, construct and reconstruct sewer facilities in said city.

During the time prior to the adoption by the voters of the City of St. Louis and St. Louis County of the Plan of the Metropolitan St. Louis Sewer District, $3,750,000 of said bonds, as authorized by the adoption of Ordinance No. 42952, were offered for sale. The mentioned Plan went into effect on July 1, 1954. A judgment of ouster of the mentioned District was denied by this court on January 10, 1955. See State on Inf. Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225.

The Plan for the Metropolitan St. Louis Sewer District was adopted pursuant to the provisions of Sec. 30(a) of Article VI of the Constitution of Missouri 1945, V.A. M.S., which provided that: “The people of the city of St. Louis and the people of the county of St. Louis shall have power * * to establish a metropolitan district or districts for the functional administration of services common to the area included therein.” Sec. 30(b) of the same article also provides that a plan so adopted “shall become the organic law of the territory therein defined, and shall take the place of and supersede all laws, charter provisions and ordinances inconsistent therewith relating to said territory.”

On November 22, 1961, Ordinance No. 50678 of the City of St. Louis was enacted. It directed the Mayor and Comptroller of the City of St. Louis, to offer the unissued bonds theretofore approved on August 1, 1944, in the amount of $4,207,000 for sale, and sealed bids to be received at the Office of the Mayor in the City Hall in said city until the hour of 10 a. m., central daylight saving time on Monday, the 28th of May, 1962.

On April 16, 1962, the City of St. Louis filed its petition in the Circuit Court of the City of St. Louis pursuant to Sec. 108.310 RSMo 1959, V.A.M.S., for a pro forma decree declaring the validity of the proposed issuance of $4,207,000 in sewer bonds, such bonds, as stated, being the remainder of $7,957,000 of sewer bonds authorized to be issued by the qualified voters of the City of St. Louis, at a bond issue election held on August 1, 1944, at which time the qualified voters had approved Proposition No. 5 for the issuance of said bonds. As part of its petition, the petitioner filed as exhibits certified copies of all records, petitions, publications, orders and resolutions and other documents pertaining to the authorization and issuance of said bonds.

The parties agree that all procedural requirements relative to the approval by the voters of the mentioned bonds, and the procedural steps for the issuance of said bonds have been met, as well as the procedural steps for the institution of this proceeding under Sec. 108.310 RSMo 1959.

On April 17, 1962, intervenor, after being permitted by the court to intervene in this action, filed his intervening petition denying the right of the city to issue the remaining bonds on the ground: 1. That the authority of the city was terminated by the adoption of the Plan of the Metrópoli-tan St. Louis Sewer District; and (2) that there had been an unreasonable delay of 18 years, terminating the city’s authority to issue the bonds.

The cause was heard on the pleadings, exhibits and evidence adduced by petitioner and intervenor. Séé Secs. 108.320 and 108.-330 RSMo 1959; Boggess v. Pence, Mo. Sup., 321 S.W.2d 667.

The parties have stipulated that:

“7. The Court heard uncontroverted evidence of the Pétitioner-Respondent that there has been a continuing need for the construction, reconstruction, replacing, reconditioning and improving the public sewers in the Mill Creek Valley, Kosciusko, Tandy and Murphy areas in the City of . St. Louis, and that this urgent need existed - prior to the approval of the said Proposition No. 5 by the voters of the City of St. •Louis and continues to the present time. There was uncontroverted testimony that moderately heavy or heavy rainfall in these . areas produce flooding conditions on the public streets in these areas, restricting the movement of vehicular traffic due to the fact that the trunk,sewer lines (to which street drains are. connected) are of insufficient • size to handle such rainfall and that flooding of homes and businesses during heavy rains is, and was,, common. Further, that these conditions are a direct and immediate threat to the public health, safety and welfare of persons residing within, and businesses located within, those areas.

“8. In order to eliminate these conditions, a contract was entered into between the Metropolitan St. Louis Sewer District, pursuant to Section 3.020(7 and 8) of Article 3 of the plan of the Metropolitan St. Louis Sewer District, and the City of St. Louis, dated March 1, 1962 under the terms of which-the City of St. Louis would build, alter, and construct sewers, drains and other related facilities in the Mill Creek Valley, Kosciusko, Murphy and Tandy areas in the City of St. Louis, financed from the pro- ' ceeds of the sale of said sewer bonds of the City of St. Louis; the issuance of the remainder of said bonds having been authorized by Ordinance No. 50678 of the City of St. Louis. The contract further provides that the Metropolitan St. Louis Sewer District shall inspect such construction and shall accept title to same upon completion. Thereafter the Metropolitan St. Louis Sewer District shall be responsible for the operation, maintenance, and repair of said facilities.”

At the trial of the cause, intervenor offered in evidence Articles 3, 9 and 12 of the Plan of the Metropolitan St. Louis Sewer District. Sec. 3.010 of said Article 3 provides for the taking over of all existing sanitary and storm-water sewer systems and facilities of any and all municipalities, sewer districts, and other public agencies within the boundaries of the District. Sections 9.010, 9.050, 9.060 and 9.090 of said Article 9, provide for the method of payment for sewers in the District. Section 12.090 of said Article 12, provides that any outstanding and unpaid sewer bonds or liabilities (on July 1, 1954) of any municipality, sewer district or other public agency situated within the District should not be affected or altered in any way. And see Secs. 30(a) and 30(b), Article VI, Constitution of Missouri 1945.

On April 28, 1962, the trial court rendered its judgment and decree holding:

1. That the adoption by the qualified voters of the City of St. Louis and St. Louis County, of the Plan of the Metropolitan St. Louis Sewer District at a special election held on February 9, 1954, did in no way affect the power, jurisdiction, and authority of the City of St. Louis to issue sewer bonds of such city as authorized by the qualified voters of the City of St. Louis, at an election held on August 1, 1944;

2. That notwithstanding the lapse of time accruing since the date of the 1944 election, there has at no time been an abandonment on the part of the City of St. Louis of its authority to proceed with the issuance of the remainder of said bonds, and

3. That the remaining-unissued bonds in the sum of $4,207,000 are in all respects valid and binding obligations upon the City of St. Louis, according to their terms.

Thereafter, intervenor, within the time prescribed, filed his motion for new trial, which was overruled, and he then filed a notice of appeal to this court.

Appellant and respondent have filed in this court an agreed statement of the case pursuant to Supreme Court Rule No. 82.13, V.A.M.R., which statement has been approved by the trial court; and the cause has been submitted in this court pursuant to the provisions of Secs. 108.340 and 108.350 RSMo 1959.

The appellant-intervenor contends that (a) the authority of the City of St. Louis to issue sewer bonds was terminated upon the adoption of the Plan of the Metropolitan St. Louis Sewer District, and that the issuance of said sewer bonds is contrary to, and militates against Articles 3, 9 and 12 of such plan; and (b) that the lapse of 18 years between the authorization and the proposed issuance of such bonds constitutes an unwarranted and unreasonable delay, so as to terminate the authority of the City of St. Louis to issue said bonds.

Appellant insists that the trial court erred in holding that the adoption of the Plan of the Metropolitan St. Louis Sewer District in no way affected the power, jurisdiction and authority of the City of St. Louis to issue sewer bonds, as authorized by the qualified voters of the City of St. Louis at the election held on August 1, 1944. Appellant says that, under Sec. 3.010 of Article 3 of the Plan of the Metropolitan St. Louis Sewer District, said District acquired complete title, jurisdiction, control, possession and supervision of all existing sanitary and storm-water sewer systems of the City of St. Louis; that said Plan further, under Secs. 9.050, 9.060 and 9.090 of Article 9 of said Plan, provides for the construction and improvement of all sanitary and storm sewers and for the payment therefor; that under Sec. 12.090 of Article 12 of said Plan no provision was made for the issuance of bonds in the future by any municipalities for sanitary and storm sewers, but that the Plan did recognize that all bonds outstanding and unpaid as of July 1, 1954, were unaffected by the adoption of the Plan. Appellant further says that the City of St. Louis cannot exercise the sam,e ppwer, jurisdiction and control over its; s,ewers concurrently with the Metropolitan St. Louis Sewer District in the same territory.

While it is true that, under Sec. 3.010 of Article 3 of said Plan, all existing sanitary and storm-water sewer systems and facilities of any and all municipalities, sewer districts and other public agencies within the boundaries of said District were transferred to and dedicated to the use of and under the jurisdiction, control and supervision of the Metropolitan St.. Louis Sewer District, nevertheless, Sep: 3.020, subdivision 7, of Article 3 of the Plan, fixing the powers of the Distrjct, expressly provides that the new District shall have power “To contract with municipalities, districts, other public agencies, .indiyiHuals, or private corporations, or any of them ydiether within or without the District,for the construction, use or maintenance, of common or joint sewers, drains, outlets, and. disposal plants, or for the performance of any service required by the District.” It is under this provision that the contract of March 1, 1962, was entered into between the District and the City of St. Louis, in pursuance of Ordinance No. 50678 of the City of St. Louis, as enacted on November 22, 1961, providing for the .issuance of the remaining bonds authorized by the election of August 1, 1944. And see Section 3, subdivision 19, of the Plan to the effect that no sewer or drainage facilities may be constructed or reconstructed in the District without the approval, supervision and inspection of the District. The Plan provides for its own method of construction and improvement of all sanitary and storm-water sewers in said District, and expressly provides that, if any existing municipality, sewer district or other public agency situated within the District shall on July 1, 1954, have outstanding and unpaid .apy sewer bonds or liabilities, the creation of the District under this Plan they shall not be affected; and that the transfer and dedication of the sewer systems and facilities of any municipality, sewer districts or other public agency, to the uses and purposes of the District, shall not affect or alter in any way the said bonds or liabilities, nor shall it affect or alter the rights or obligations thereunder (Sec. 12.090, Article 12 of the Plan). It is also true that the City of St. Louis cannot exercise the same power, jurisdiction and control over sewers that it previously exercised; and that it cannot exercise such powers concurrently with the Metropolitan St. Louis Sewer District in the same territory (see Wellston Fire Protective Dist. of St. Louis County v. State Bank & Trust Co. of Wellston, Mo.App., 282 S.W.2d 171, 175(7); McQuillin, Municipal Corporations, 3rd Ed., Vol. 2, Sec. 7080, pp. 269, 270), nevertheless these facts do not exclude the City of St. Louis from cooperation with the Metropolitan St. Louis Sewer District, as provided in Sec. 3.020(7) of the Plan, nor do these facts prevent the city from entering into a contract such as was entered into between the city and the District on March 1, 1962, or from passing and putting into effect on November 22, 1961, Ordinance No. 50678 of the City of St. Louis providing for the sale of the remaining unissued bonds, as authorized by the election held on August 1, 1944. We find nothing in the Plan of the Metropolitan St. Louis Sewer District, as adopted at the special election held on February 9, 1954, effective July 1, 1954, which prevents the issuance of the remaining bonds authorized in' 1944, nor should the adoption of the mentioned Plan be held to prevent the city’s cooperation with the new District. Appellant’s first assignment must be and is overruled.

In support of his second assignment, intervenor contends that the delay of eighteen years by the City of St. Louis in issuing the remaining sewer bonds was unnecessary and unreasonable and that it constitutes an abandonment by the city of its authority to issue the bonds for the purpose authorized in the 1944 election. In argument he seeks to add a further point with reference to change of conditions by reason of the adoption of the Plan of the Metropolitan Sewer District. He cites only Missouri Electric Power Co. v. Smith, 348 Mo. 738, 155 S.W.2d 113 and Fuller v. Knight, 241 Ala. 257, 2 So.2d 605, 135 A.L.R. 760.

Appellant concedes that whether the delay is reasonable or unreasonable depends upon the facts and circumstances in evidence, and insists that in this case there has certainly been a most important intervening fact, to wit: the adoption of the Plan of the Metropolitan St. Louis Sewer District in 1954. In the Missouri Electric Power Company case, supra, it was held that “mere lapse of time, in view of the conceded facts, did not terminate the authority granted by the special election”; that “The court should not substitute its judgment for that of the governing body of the city as to the advisability of proceeding with the registration and sale of the bonds for the purpose intended.” The court pointed out that “If a mere delay due to pending litigation could thwart the will of the voters and withdraw the authority given to the city officers to proceed with the mandate of the people for a municipally owned electric light plant, then a way would have been found to effectively prevent such an improvement”; and that, “In addition, in view of the history of such matters in this state, the voters could reasonably have assumed that the matter might be greatly delayed by litigation, and a considerable time elapse between the date of the election and the sale of bonds or the construction of the plant.” On the issue of “changed conditions” the court said: “In view of the facts in this case we must and do hold that the lapse of time, coupled with the changed conditions shown in the evidence, did not terminate the authority of the city officials to issue bonds upon the basis of the special election of September 1, 1931.” In that case the delay was from September 1, 1931, to April 8, 1940. The court in that case cited and quote,1 from the case of McNichols v. City and County of Denver, 101 Colo. 316, 74 P.2d 99, 108, where the rule was stated as follows: “The law applicable is uniformly to the effect that a delay, even of several years, in the exercise of the authority to issue bonds, will not necessarily cause a forfeiture of that authority if, in the light of all the facts and circumstances, the delay was reasonable, prudent,, or necessary.” Numerous cases are thereafter cited in support of that holding.

The only other case cited by appellant is the case of Fuller v. Knight, supra, 2 So.2d 605, 611(5), where the court said:

“After reviewing the authorities and considering the question before us in all its bearings, we are of the opinion that, the Bond Act of 1913 for Cullman County contemplated the issuance of bonds for the construction and improvement of the public roads of the county, a project to be accomplished as a continuous undertaking within a reasonable time for the benefit of the people of the county who ratified the issue of bonds at an election. Twenty-seven years, have intervened. The electorate of the county has largely changed; an entire change of set up for highway construction, including State and Federal aid, has intervened. The fund from the proposed issue of $40,000 cannot now be used for the road improvement contemplated when they were authorized by vote of the people. * * *
“We lay down no hard and fast rule on the question of time limit for such issues. We base ,our conclusion on the reasonable in-tendments in the case at hand. We hold that on the alleged authority exhibited in the pleading, the ‘additional $40,000 principal amount of bonds’ cannot be legally issued.” (Italics ours.)

This is the only case cited where the right to issue such bonds has been denied because of lapse of time and changed conditions.

In the case of State ex rel. City of Carthage v. Gordon, 217 Mo. 103, 116 S.W. 1099, 1104 (where there was a delay of 18 months) the court said: “There is nothing disclosed by the record which indicates, or from which it can be conclusively presumed, that the voters of the city have revoked, or intended to revoke, the authority given by the election of March 12, 1907, to issue the bonds in question, or which would justify this court in holding that the time which has elapsed between the election and the presentation of the bonds for registration is so unreasonable as to justify the auditor in refusing to register them.”

In the case of State ex rel. School Dist. of Kansas City v. Thompson, 327 Mo. 144, 36 S.W.2d 109, 111(1-2), the court held that where bonds in a fixed amount were duly authorized by the electorate of the municipality that they could be issued and sold in installments.

In Stokes v. Montgomery, 203 Ala. 307, 82 So. 663, it appeared that pursuant to a statute then in force a city election was held in 1908 at which a majority of the votes cast were in favor of issuing bonds for a hospital. The court upheld the right to issue and sell such bonds as late as 1919, and this although the form of city government had been changed in 1911, and said: “It would appear that there is no inhibition of the Constitution, statute, or ordinance that would now prevent the board of city commissioners from issuing and selling said bonds or from applying the proceeds as prescribed by law, unless the time elapsing between the authorization by the election and the proposed issue and sale of the bonds has affected the right of the city in the premises. * * * The fact that the bond issue was required to be authorized or sanctioned by a majority vote cast in favor thereof, at the election held pursuant to the statute for such purpose, did not require the issue of the bonds at or within a specified time, since there was no statute to that end. The election was had in conformity with the statutory requirement for the consent of the people to the governing body of the city (mayor and council, or board of city commissioners) to exercise the power at such time thereafter as deemed by such body to be necessary and expedient. We are of opinion that the bonds in question may be issued and sold at this time, that the proceeds of such sale may he expended'for the specific purpose authorized by the people and in accordance with the declared judgment of the hoard of commissioners. * * * We have sought diligently and found no authority to the contrary. * * * [T]here is nothing disclosed by this record which indicates, or from which' it can be presumed, that the voters had revoked, or intended to revoke, the authority given by the election. * * * There was; or is, no statute requiring that said authorized bonds be issued and sold within a, designated time. The necessity for the city hospital and the time of issue and sale of the bonds and the erection of the hospital were left to the sound discretion of the city officials, and we cannot say that -this discretion has not been reasonably exercised. By the delay they have imposed ■no burdens on the people by interest charges •in the' meantime, and it is presumed that •they have proceeded to give the necessary hospital facilities at a time when most needed by the municipality and its residents.” .

The Stokes case has been widely cited and followed. See Annotation 135 A.L.R. 768. And see 64 C.J.S. Municipal Corporations § 1929 p. 553.

In Quaid v. City of Detroit, 319 Mich. 268, 29 N.W.2d 687, it was held that: A mere lapse of time between authorization and issuance of bonds, such as sewer and drain bonds, by a city, does not in and of itself show a forfeiture or an abandonment of the right to issue bonds duly approved by the electors and the approval of city’s sewer and drain bonds, which were voted by electors in 1928, was not invalidated by city’s failure for 19 years to issue the bonds, where city was prevented from issuing the bonds from 1932 until 1945 by conditions beyond its control, due to overall debt limitations imposed by statute and city charter, corporate limits of city were the same as in 1928, proceeds were to be used as originally proposed, and no abuse of discretion or fraud was shown; and that a Constitutional amendment changing the qualifications of electors who could vote on issuance of public improvement bonds did not invalidate an approval given by electors of city, prior to amendment, of sewer and drain bonds.

In Perl-Mack Civic Ass’n v. Board of Directors, of Baker Metropolitan and Sanitation District, 140 Colo. 371, 344 P.2d 685, it was held that where the issuance of $75,-000 in bonds for improvements for sanitation district was authorized by election held in 1952, delay of five years in issuance of bonds was not unreasonable and election was not invalid because of such delay.

In the case of In Re Verde River Irrigation & Power District Bonds, 37 Ariz. 580, 296 P. 260, the court held that, unless the statutes require bonds to be issued within specified period after election authorizing them, time of issuance rests in sound discretion of officials upon whom that duty is imposed, and that seven years elapsed between election authorizing irrigation and power district bonds and the decree of court validating them did not invalidate bonds.

In State ex rel. Boynton, Atty. Gen. v. City of Topeka, 141 Kan. 309, 41 P.2d 260, the court held that, in the absence of a statute requiring municipal bonds to be issued within specified time after election authorizing them, when the bonds shall be issued rests in the sound discretion of municipality; and that authorized bonds may be issued by any municipality from time to time and in its discretion as necessity therefor arises.

In Weathers et al. v. Todd County et al., 271 Ky. 172, 111 S.W.2d 638, the court held that, the fiscal court’s delay in issuing the last $17,000 worth of a $300,000 county road and bridge bond issue authorized by voters, did not constitute abandonment of the authority to issue such bonds, although ten years had elapsed since the voters authorized bonds and five years had elapsed since last preceding block of bonds was issued, where proceeds of issue were not needed except as bonds were made and issuance of bonds as needed, instead of all at once, and where said delay affected large interest savings. And see Jonson v. Fiscal Court of Muhlenberg County, 272 Ky. 9, 113 S.W.2d 453 (eleven years’ delay) ; State ex rel. McDonald-Coolidge & Co. v. Curry, 136 Ohio 322, 25 N.E.2d 681 (nine years’ delay); Covington v. McInnis, 144 S.C. 391, 142 S.E. 650 (seven years’ delay).

In the case now before us no ordinance, statute or constitutional provision prohibits the issuance of the remaining bonds authorized August 1, 1944; nor has there been any change in the need for the improvements for which tiie bonds were voted and authorized. No valid ground is shown why the mere lapse of time alone should bar the issuance of the bonds. Almost half of the authorized issue have been issued and sold during the lapsed period. We find nothing in the record to show any abuse of the city’s discretion in not providing for the issuance and sale of the remaining bonds at an earlier date. Nor are any facts shown which tend to show any abuse of discretion in contracting and cooperating with the Metropolitan St. Louis Sewer District. No arbitrary or fraudulent action is charged or shown.

Ordinance No. 50678 of the City of St. Louis providing for the issuance of the remainder of these bonds is presumed to be valid and lawful. “It cannot be presumed that the city was ignorant of its charter powers, or that it deliberately intended to violate the organic law of the state or city. * * * Where an ordinance is legally passed with due authority under the organic law of the state and city, the courts will not declare it unreasonable, unless no difference of opinion can exist upon the question.” Wagner v. City of St. Louis, 284 Mo. 410, 224 S.W. 413, 414, 12 A.L.R. 495. The trial court did not err in entering the judgment entered.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    Louie CHAILLAND, Respondent, v. Franklin Elwood SMILEY, Appellant.
    No. 48487.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Ford & Ford, Wendell W. Crow, James F. Ford, Kennett, James W. Steinsiek, Oscar Fendler, Blytheville, Ark., for appellant.
    Dalton & Treasure, John Hall Dalton, Harold B. Treasure, James C. Bullard, Kennett, for respondent.
   HOLLINGSWORTH, Judge.

Plaintiff sued for damages for personal injuries and property loss sustained when a tractor-trailer truck owned and operated southward by defendant on Highway “Y” in Dunklin County came into collision with a horse owned and ridden southward on said highway by plaintiff, causing death of the horse and physical injuries to plaintiff. The case, originally filed in the Circuit Court of Dunklin County, went on change of venue to and was tried in Stoddard County, resulting in a verdict and judgment for plaintiff for the sum of $15,000 for personal injuries sustained by him and $500 for the loss of his horse. Defendant has appealed, asserting error as follows: that plaintiff failed to make a submissible case of defendant’s alleged failure to stop his truck and thereby avoid the collision; that plaintiff was contributorily negligent as a matter of law; error in plaintiff’s submission instruction “P-1” and plaintiff’s measure of damages instruction “P-2”; improper and inflammatory remarks by one of counsel for plaintiff during closing argument; improper and prejudicial statements on the part of the trial judge in orally instructing the jury during trial, in commenting on the evidence and in expressing his views and opinions as to the facts and the sufficiency and weight of the evidence; and improper añd prejudicial admission of certain hospital records.

The appeal herein was originally heard and an opinion rendered in Division. Thereafter, the case was transferred to Court en Banc, where it was reargued and resubmitted upon the briefs filed in Division. Portions of that opinion will be adopted without use of quotation marks.

In determining defendant’s contention that plaintiff failed to make a sub-missible case and his further contention that plaintiff was guilty of contributory negligence as a matter of law, we view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences and disregard defendant’s evidence, except to the extent it may be favorable to plaintiff. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 663 [1].

The collision occurred JHjths of a mile south of Caruth, in Dunklin County, about 1:00 p. m. on May 13, 1959, a clear day. Highway “Y” at the scene and for at least one-fourth mile north thereof is a straight and level north-south blacktop road, 21 feet wide with a marked center line and has a good 6-foot shoulder on each side.

Plaintiff was sixty-six years of age and had engaged in farming, carpentering, and training horses. He was considered a good horseman. The horse, a filly named Tangerine, lacked about two months of being three years old. Plaintiff bought her when she was about three months old and had been riding her eleven months, training her for five gaits. He described her as the gentlest, best dispositioned filly he ever handled. She did not buck or try to run away; neither did she have a habit of “backing up”. During early training, she showed fear of bicycles and, colt-like, wanted to go home, both of which faults she easily got over. Plaintiff rode her four or five times a week, six miles each way, and had ridden her on “this blacktop” and other highways. She had given him no trouble on any of them. As plaintiff started south on “Y” on this occasion, he stopped and talked to a hitchhiker, Albert Brisher. As he talked with Brisher, a car and a gravel truck passed without incident. Plaintiff then proceeded south at about five miles per hour along the center of the west shoulder of Highway “Y”.

Defendant, 38 years old, engaged in farming and trucking, was southbound in his tractor-trailer unit, with a 27,500-pound load of gravel. The tractor was 8 feet long, the trailer 16 feet long and 7½ feet wide. He stopped and picked up the hitchhiker, Albert Brisher, and saw plaintiff about a quarter of a mile ahead of him. Thereafter plaintiff was at all times within defendant’s view.

About 15 seconds before the collision; plaintiff heard an “awful noise”, a spitting, popping, backfiring, missing noise, to his rear, north of him. The noise frightened the filly and she squatted, made a couple of little jumps, and turned her rear slightly toward the blacktop. Plaintiff spoke to her, tapped her on the neck, touched her with his heels, and she started lining up with the highway. About 3 seconds later, 12 seconds before the collision, the noise, “worse than ever”, began again and she became unruly. Plaintiff tried to get her under control but never completely got control of her after she first became scared. She began to “work” slightly backward toward and onto the center of the blacktop. Plaintiff got a glance at the truck’s cab as it passed him and, in an instant, the left rear-of the horse and the west side of the trailer, about three feet from its rear end, collided. At that moment the tractor-trailer was about 18 inches west of the center line and traveling 25 to 30 miles per hour. The collision knocked the filly back in the direction of the west shoulder. She was fighting to stay on her feet. Plaintiff, feeling she was going to fall and might injure him, “brought [his] foot over” and pushed the filly from him. He sustained severe injuries when he landed about the center of the blacktop. The filly fell at the edge of the blacktop and died.

Defendant testified that after he picked up the hitchhiker, Brisher, he started his truck in low gear and increased his speed. He pulled to the east to go around plaintiff when about 150 feet north of him; his vehicle was on the east side of the blacktop about as far as it could be and remain on the blacktop as he passed plaintiff, at which time his truck was traveling about 30 miles per hour. When the tractor got even with plaintiff the horse started “showing out big” and running backward toward the truck and defendant heard it strike the right rear of the trailer. He pulled over onto the west side of the blacktop and stopped in 150 to 200 feet. The trailer brakes were new and good .and .the tractor brakes were ordinarily good brakes. He did, however, plead guilty in the magistrate court to the charge of having “insufficient brakes”, to avoid the expense of hiring a lawyer.

Trooper Frank Sheible arrived at the scene about 1:45 p. m. He drove the tractor-trailer just far enough to test the brakes. He testified the tractor did not have any foot brakes and that “it was a noisy rig.” He did not test the trailer brakes.

Additional evidence will be stated as necessary to determine certain of the assignments of error.

Did plaintiff make a submissible case of actionable primary negligence on defendant’s failure to stop? Under the evidence favorable to plaintiff the noise from defendant’s truck frightened the filly and her actions gave defendant notice of plaintiff’s efforts to control, but lack of control over, her while defendant was approaching the point of impact, about 12 seconds. Plaintiff was in defendant’s line of vision. Defendant never attempted to stop before the collision after having attained a speed of approximately 30 miles per hour. He pulled over to the west side of the road and stopped in 150 or 200 feet after the collision. At 30 miles per hour, a vehicle travels approximately 44 feet in a second. Plaintiff’s case was clearly submissible on defendant’s primary duty to stop. Priebe v. Crandall, Mo.App., 187 S.W. 605, 607 [3]; Schulkey v. Brown, 59 N.D. 345, 230 N.W. 6 [1, 2]; 60 C.J.S. Motor Vehicles § 381, p. 935; Holloway v. Barnes Grocer Co., 223 Mo.App. 1026, 15 S.W.2d 917.

Defendant’s contention that plaintiff was contributorily negligent as a matter of law is based upon plaintiff’s failure to look to his rear and to dismount from his horse. Plaintiff knew that something, but not what, was coming from the north. He at no time looked to his rear. He thought he was agile enough to have “jumped” off the filly in 15 seconds, but he made no attempt to do so. Upon hearing the second noise, 12 seconds before the impact, the filly became completely unruly, put herself into a bow, bowed her head towards the center of the highway and worked backward onto and toward the center of the blacktop. Plaintiff was working with, pulling and reining, the filly, “hoping I’d get her under control without having no collision.” He stated that when a horse bows “you can’t rein them nowhere.” Defendant cites the following cases: Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 625-626 [12-14]; Carpenter v. Kansas City Pub. Serv. Co., Mo., 330 S.W.2d 797, 800; Curtis v. Capitol Stage Lines Co., Mo.App., 27 S.W.2d 747, 750 [1-4]; Adkins v. Boss, Mo., 290 S.W. 2d 139, 144. They do not control the situation here presented. The rider of a horse, an animate object, does not have that exclusive control over the horse’s and his own movements as does the pedestrian or motorist, who, ordinarily and under the circumstances of this record favorable to plaintiff, has and should have exclusive control over himself and the movements of the machine he operates. Moreover, defendant was under a duty to exercise the highest degree of care. Plaintiff’s duty was to exercise ordinary care. The duties and abilities of the parties to avoid the collision in the available seconds were not the same; defendant being in the better position and plaintiff having a right to rely to some extent upon defendant’s exercising the required care to avoid in jurying him and his filly. Annotation, 50 L.R.A., N.S., 566; 38 Am.Jur., Negligence, §§ 185, 188, pp. 862, 864-865; 61 C.J.S. Motor Vehicles § 466, p. 25 et seq. Defendant’s contention that plaintiff should have jumped off the filly overlooks certain testimony. Plaintiff thought he was agile enough to jump off in 15 seconds. After the first noise 15 seconds before the collision, plaintiff was getting the filly under control and lining her up with the highway, when the second noise, which caused the filly to become unruly, occurred 12 seconds before the collision. The noise from defendant’s motor vehicle, not an act attributable to plaintiff, frightened the filly and brought about the situation above stated. Plaintiff’s evidence does not establish as a matter of law that he voluntarily and unnecessarily, that is, of his own free will, placed himself in an appreciated dangerous or perilous position. Defendant’s cases involved different factual situations and some of them did not turn upon an issue of plaintiff’s contributory negligence as a matter of law.

Defendant makes extended contentions of prejudicial error in the giving of plaintiff’s requested instruction P — 1. The portion of the instruction under attack is:

“ * * * and if you further find that the defendant, Franklin Elwood Smiley, was driving and operating his 1950 Chevrolet tractor-trailer along said road in a southerly direction, and if you further find from the evidence that the defendant’s vehicle collided with the plaintiff’s filly causing plaintiff to be injured and plaintiff’s filly to be killed, and if you further find that the defendant saw or in the exercise of the highest degree of care could have seen the plaintiff’s filly was frightened and out of control, and if you further find that the defendant, Franklin Elwood Smiley, thereafter could have stopped his vehicle and could have avoided the collision with the plaintiff’s filly, and if you further find the acts on the part of the defendant, Franklin Elwood Smiley, above mentioned, if you find that he did so commit them, were negligent, and if you further find that the acts of the defendant, Franklin Elwood Smiley, above mentioned, caused or directly contributed to cause the injuries to the plaintiff and damages for the loss of the plaintiff’s filly, if any, and if you further find that the plaintiff was not guilty of contributory negligence as defined in Instruction No. D4 & DS, then your verdict shall be in favor of the plaintiff, Louie M. Chailland, and against the defendant, Franklin Elwood Smiley.”

Defendant says that the “acts” (which he concedes “evidently referred to failure to stop and failure to avoid collision”) were not “acts” as such, but relate to failure to take action; and that, therefore, the instruction did not make any requirement of a finding of the failure to act. Obviously, the word “acts”, as used in the instruction is inaccurate and inept; it patently refers, as defendant readily admits, to defendant’s failure to stop and thereby avoid the collision. Can there be any reasonable doubt that the jury likewise so understood it? We think not. But, says defendant further, the instruction, as worded, is susceptible of different interpretations and sets up different and conflicting requirements. We do not believe that a reasonably intelligent juror, after hearing the clearcut fact issue upon which decision of the case necessarily would turn, could have been misled by the instruction in this respect.

The next contention is that the instruction erroneously hypothesizes and “attempts to charge negligence relative to failure to stop and then gives the jury a roving commission * * * to find [defendant] negligent if he could have avoided the collision at any time, any place or in any manner * * We do not so read the instruction. When the phrase “could have stopped his vehicle” is joined by the conjunctive “and” with the phrase “could have avoided collision with the plaintiff’s filly”, the entire clause cannot reasonably be construed to hypothesize a finding of defendant’s ability to avoid the collision by any means other than that with which it was conjoined, viz: that he “could have stopped his vehicle” (truck) and thereby avoided the collision. A further contention is that the two phrases above set forth, when joined with the conjunctive “and”, result in the submission of both a general charge and a specific charge of negligence. These contentions are without merit.

Defendant’s next contention is that the clause “that the acts of the defendant * * * caused or directly contributed to cause the injuries to plaintiff,” etc., “authorizes remote and non-causative negligence; it gives the jury a roving commission as to causation.” The evidence shows that plaintiff’s injuries and property loss directly resulted, at least in part, from defendant’s failure to stop, irrespective, for the moment, of whether that failure was the result of negligence on his part. But the instruction also further hypothesized as a necessary element of plaintiff’s case (1) a finding that defendant, in the exercise of the highest degree of care, saw or could have seen that the horse was frightened and out of control and (2) the further finding that plaintiff was not guilty of contributory negligence as hypothesized in defendant’s instructions D4 and DS, which submitted, respectively, the' issues of plaintiff’s contributory negligence. It is true, of course, that the horse contributed to cause her. own destruction and plaintiff’s injuries by backing herself onto the highway and into the path of defendant’s truck. But, inasmuch as a horse cannot be held contributorily negligent, the misconduct on the horse’s part would not relieve defendant of contributing to cause the collision by negligent failure to stop his truck after he knew, or in the exercise of the highest degree of care, should have known that a closer approach of his truck would endanger plaintiff or his horse, or both of them. The instruction is not prej-udicially erroneous in that respect.

Defendant further contends that the instruction was erroneous, misleading and in conflict with D4 and DS. D4 submits the issue of plaintiff's contributory negligence in failing to (1) get off the horse, (2) to stop it, or (3) to change the direction of its travel and thereby avoid the collision; D5 submits plaintiff’s contributory negligence in riding upon the highway a horse that was not adequately trained and controllable. Plaintiff’s instruction P-1 was in conflict with those instructions only in that it hypothesized plaintiff’s fact theory of causation while D4 and DS hypothesized defendant’s fact theory of causation. Defendant also claims that the instruction attempts to combine primary negligence with humanitarian negligence. Those contentions are also without merit.

We have also considered the remaining contentions levelled by defendant against the instruction. They are that the instruction sets up different standards pertaining to the several findings required of the jury; does not properly negative a finding of plaintiff’s contributory negligence; combines contributory negligence with humanitarian negligence; assumes that plaintiff was injured (as, unquestionably, he was) ; and does not require a finding of the whereabouts or location of plaintiff, the distances involved, the action of the horse, time elements or speed or when and where the horse was frightened or out of control. Again we say that the instruction is by no means a model; it is ineptly drawn. But the directions by it given to the jury must be considered in the light of the issues, which, as stated, were simple and clearcut. Defendant admits that when the truck was even with the horse she was seen by him to be out of control, at which time he stopped his truck within 150 to 200 feet. But plaintiff’s evidence tended to show that 12 seconds before the collision defendant, driving his truck at 30 miles an hour — 528 feet from the point of collision— then saw or in the exercise of the highest degree of care should have seen that the horse was out of control and veering toward his path of travel. If the jury so found, surely it could also find that defendant, with his truck brakes in good condition, as he testified they were, could also have stopped his truck and thereby avoided the collision and that he was, therefore, guilty of negligence in failing so to do.

We are forced to the conclusion that, despite its faults, instruction P-1 sufficiently advised and enabled the jury to return a verdict based upon the issues.

Defendant next contends that plaintiff’s measure of damages instruction P-2 was prejudicially erroneous. It reads:

“The Court instructs the jury that if you find the issues for tire Plaintiff herein, then in determining the measure of the Plaintiff’s damages, you should take into consideration the following:
“1. Such pain and suffering of body and mind, as you find from the evidence, that he has suffered in the past as a direct result of the collision, if any, and
“2. Such pain and suffering of body and mind, as you find from the evidence, that he is reasonably certain to suffer in the future as a direct result of the collision, if any, and
“3. Such permanent injuries as you find from the evidence that he has suffered as a direct result of said collision, if any, and
“4. Such loss of earnings plaintiff has suffered, if any, as a direct result of said collision, and
“5. Such loss of earnings plaintiff is reasonably certain to suffer in the future as a direct result of said collision, and
“6. Such sums, which you may find from the evidence, plaintiff has incurred for physician’s fees, surgeon’s fees, and hospital bills directly caused by said collision, if any, to the extent of the reasonable value thereof.
“7. Such sums as you find from the evidence represents the difference between the reasonable value of the filly owned by the plaintiff immediately before the collision and immediately after the collision.”

Defendant insists that there was no evidence to support elements 4 and 5 relating to loss of earnings by plaintiff. The uncontradicted evidence shows that plaintiff, aged 65, retired from active farming in 1958. In February or March of 1959, he began to do carpenter work in rebuilding the home of Mr. Welsey. He did all of the work, except the help of one man for one-half day on roof work; rebuilt a room, the rear porch and a bedroom. After he had worked 102½ hours at $1.00 per hour, he went to a doctor in Memphis for treatment of a skin cancer and was advised to quit work. On thé date of the collision, May 13, 1959, and prior thereto his health had become “good, excellent”. He was taken from the scene of the collision to the Dunk-lin County Memorial Hospital where he was under the care of Dr. Paul Miltenberger. His injuries consisted of a broken vertebra; a broken leg at the hip joint, which is held in place by a nail; and a broken ankle. He has suffered and in the future will experience much suffering and is permanently lamed. He has a permanent 50 percent loss in the forward and backward motion of his injured foot; a permanent 10 percent disability of his knee; and a permanent 10 to 15 percent limitation of flex-ion in his back. His medical bill was $500.-00; his hospital bill was $857.25. There was testimony in behalf of defendant that at the scene and time of the collision plaintiff admitted that the value of his horse was $500.00. Defendant makes no claim of ex-cessiveness of the verdict; he offered no instruction limiting the amount allowable for plaintiff’s past or future earnings. The jury saw plaintiff throughout the trial and heard the doctor testify as to the extent and permanency of his disabilities. The verdict does not reflect, of course, what amount of damages, if any, it awarded for past or future earnings. But, we think the jury reasonably could find from the evidence that prior to the collision plaintiff’s earning capacity was $1.00 per hour and that, by reason of the injuries sustained in the collision, he had been and in the future would be deprived of earnings to the extent of his disability resulting from the collision. We have concluded that elements 4 and 5 of the instruction were properly a matter for consideration of the jury. Young v. Kansas City Pub. Serv. Co., Mo. App., 255 S.W.2d 113, 119 [11].

Another complaint is that, by reciting “that if you find the issues for the plaintiff”, the instruction indicated to the jury that the only “issues” involved were those hypothesized in instruction P-1 and gave the jury a roving commission to “set up the issues” and the measure of damages it should consider in arriving at the amount of its award. This contention is hypercritical. If, under the circumstances here shown, defendant desired more specific or limiting direction on the measure of damages, he should have submitted an explanatory or modifying instruction. Young v. Kansas City Pub. Serv. Co., supra, loc. cit. 119 [10].

Another complaint made of the instruction is that elements 4 and 5 make no reference to findings based upon' evidence, as did all of the other elements enumerated. “ * * *, it might have been better in each instance to have added the phrase ‘from the evidence.’ However considering the requirement of the first clause that the jury’s finding of the fact submitted in that clause should be ‘from the evidence’ together with the quoted language of the other clauses, we are of the opinion the instruction could not have misled the jury to defendant’s prejudice; that is, we believe a jury composed of ordinarily intelligent laymen would understand, when all of the instruction, including the first clause, was read to or by them, that the trial court was submitting all the facts hypothesized in the instruction for the jury’s finding from the evidence.” Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 569 [9]. The contention is denied.

Defendant’s next contention is that the court erred in refusing to declare a mistrial when, in closing argument to the jury, one of counsel for plaintiff declaimed: “I want to get briefly to the injuries in this case. You have heard the testimony here of Dr. Miltenberger, we brought you Dr. Miltenberger here today and you heard his testimony on this stand. He is the only doctor, he is the only doctor you have heard. Now, I don’t know whether Mr. Ford or Mr. Elbert Ford (of counsel for defendant) thinks this man isn’t injured or not, but I don’t know where any other doctors are, I haven’t seen any, and I know you haven’t, we’ll just have to leave that open.” The import of the statement, fairly construed, was true. The argument was proper. The situation here shown is not comparable to the argument made by counsel and condemned in Hoffman v. Illinois Terminal Railroad Co., Mo.App., 274 S.W.2d 591, 594-595. The contention is denied.

The several incidents of which defendant assigns prejudicial conduct on the part of the trial judge are:

(1) During cross examination of plaintiff with respect to statements made by him in a prior deposition, defendant’s counsel read certain statements made therein relating to whether he had pulled the horse back toward the shoulder when she heard the first noise or the second noise. After some of the statements contained in the deposition were read to him by counsel for defendant and plaintiff appeared confused, the court said: “Let’s get it clear whether you are talking about after he heard the first or second noise, that doesn’t show here.” We find no error in that statement.

(2) During cross-examination of plaintiff, counsel for defendant asked him: “Did you contact your attorneys the date of this incident?” Counsel for plaintiff objected on ground of irrelevancy. The court stated: “Objection sustained. The question is whether the man was injured and if so whether it was due to the negligence of the defendant.” The volunteered statement of the court was improper; and it did not include the issue of plaintiff’s contributory negligence. However, no objection was made; and, in any event, the court thereafter gave two liberal instructions, D4 and D5, on that issue. This, we conclude, amply served to erase any prejudicial effect the remark may have had.

(3) In response to a question propounded by counsel for defendant, the keeper of Dunklin County Memorial Hospital records had testified that certain records tendered in evidence by plaintiff had been transcribed from dictation into a dictaphone by Dr. Canias, who attended plaintiff during an absence of Dr. Miltenberger. But she further testified, “According to hospital practice original records were written out.” Her testimony was to some extent, therefore, confusing. The court then inquired as to whether the records in plaintiff’s case were kept as far as the hospital was concerned in the manner records were kept “on all patients”, to which the witness replied, “Yes.” We see nothing prejudicial in the inquiry made. The court apparently thought it needed that information in order to determine the admissibility of the record tendered. The information by the court sought was material. The contention is devoid of merit.

(4) During extended cross-examination of the keeper of the hospital records as to the method of keeping them, defendant’s counsel sought to discredit them by showing that, due to illness, Dr. Milten-berger was not in actual attendance upon plaintiff for a period of about ten days. The judge then inquired of the witness whether certain X rays were taken at the direction of Dr. Miltenberger, to which inquiry the wite^s gave an affirmative answer. Moreover, Dr. Miltenberger, who had priorly examined plaintiff and thereafter treated the specific injuries therein shown, definitely identified them as X rays of plaintiff. We see no prejudicial conduct of the judge in making the inquiry.

(5) -During direct examination of Albert Brisher, the hitchhiker who rode to the scene of the collision with defendant, counsel for defendant repeatedly undertook to get before the jury the witness’ testimony as to a “conversation” he allegedly held with plaintiff prior to the collision. The court had repeatedly held the testimony incompetent. Finally, the court said: “Mr. Ford, I don’t advise you to continue asking questions that are directly in conflict with the Court’s ruling.” Incidents such as this should be avoided when possible. But when, as here, they are provoked by counsel there is little else to be done.

(6) On direct examination of Brisher, the witness closely corroborated the testimony of defendant as to the manner in which the collision occurred. On cross-examination he patently undertook to, evade admission of a prior conviction, saying “they told a lie on me”, “he accused me of saying something”, “it was a bum rap”, “accused me of talking”, “calling them bad names.” When admonished by the court to state the offense of which he was convicted, he said it was disturbance of the peace. But, he then admitted that he had served a term of two years in the penitentiary for the offense of which he was convicted. Also, during further cross-examination as to the manner in which the collision occurred, the witness categorically denied having made a long series of answers as shown in a transcript of questions asked and answers given by him, which were taken by stenograph and transcribed by the official court reporter. Finally, he undertook to explain the discrepancy between the answers therein and the testimony given by him at the trial. In so doing he said: “ * * * actually, I went back up there and recollected all of it, you know, seen into it, * * Shortly thereafter the court excused the jury, called counsel to the bench and said: “Now, Gentlemen, it’s evident that this man has sworn here falsely, and I think deliberately so. I think we ought to find out about this conviction. I intend to find out about it, if none of the attorneys want to, I think it’s only fair to all the parties, and I think it ought to be brought out before he’s remanded to the custody of the sheriff anyway. * * * ” After some colloquy, oné of counsel for defendant said of the witness’ testimony relating to his conviction, “I know it was something else besides disturbing the peace.” Following further colloquy, the jury was recalled, and the witness, upon persistent questioning by counsel for defendant admitted that he had been convicted of “sodomy” (by means, it seems, of immoral molestation of a female child). Also, upon further questioning by counsel for defendant, the witness, referring to the collision, stated: “Well, I recollected what it was all about when I went back, you know, in passing by there, you know, and looking at things and everything. Well, I didn’t know nothing the day he hit him, I didn’t know a thing in the world, I didn’t think nothing about it at all, it wasn’t me done it and I didn’t think no more about it.” On cross-examination, the witness, in substance, also testified that he did not really know how the collision occurred; that it was not his fault; that it was nothing to him.

The measures taken by the court were drastic, but they occurred out of the presence of the jury. The proceedings thereafter taken before the jury were orderly; and gave the jury the benefit of testimony highly material in weighing the other portions of the witness’ testimony. Under the circumstances here shown, we cannot say that the action of the court was erroneous.

Defendant’s final contention is that the court erred in admitting into evidence certain X rays, plaintiff’s exhibits “C” through “M”, for the reason that they were not properly identified. No good purpose would be served in lengthy discussion of the evidence on this point. The X rays were produced by the medical records custodian of the hospital. Dr. Miltenberger ordered them made by the technician at the hospital. The doctor was not present when they were taken; he was ill and absent for ten days. At trial he identified the above exhibits as those taken at his direction and pointed out the injuries inflicted upon plaintiff as shown therein. Defendant objected upon the ground of hearsay. The qualification of the doctor to testify as to the injuries shown therein is not questioned. Plaintiff was treated for those injuries. There is no evidence that he was not disabled by them to the extent testified by the doctor. The fact that the doctor was absent from the hospital and that he did not see the X rays taken does not render them inadmissible. Perringer v. Lynn Food Co., Mo.App., 148 S.W.2d 601, 603, 610 [19]. See also § 490.680 RSMo 1959, V.A.M.S.; Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 666-668, 55 A.L. R.2d 1022; Tomlin v. Alford, Mo., 351 S. W.2d 705, 712 [8].

The judgment is affirmed.

All concur except DALTON, J., not sitting.

      . Adkins v. Boss, Mo., 290 S.W.2d 139, 144; Morris v. Kansas City Light & Power Co., 302 Mo. 475, 258 S.W. 431, 432; Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573, 575 [2-4]; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345, 351 [12-14],

      . Dietz v. Magill, Mo.App., 104 S.W.2d 707; Ezell v. Kansas City, Mo., 260 S.W.2d 248, 250 [4]; Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912, 915 [7]; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, 24 [12].


author: STORCKMAN, Judge.

text:
    STATE of Missouri ex rel. Charles W. BUSH, Relator, v. Honorable R. Kenneth ELLIOTT, Judge of the Circuit Court, Division Two, Within and for the County of Clay, State of Missouri, Respondent, and Robert Gene Shipley, a Minor, By His Mother and Next Friend, Ella Mae Shipley, Parties to be adversely affected.
    No. 49453.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Sylvester Powell, Jr., Heilbron & Powell, Kansas City, for relator.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.
   STORCKMAN, Judge.

This is an original proceeding in prohibition. The relator who is the defendant in a personal injury action seeks to prohibit the respondent circuit judge from requiring him to answer an interrogatory propounded by the plaintiff which calls for the-production of a copy of the defendant’s-motor vehicle liability insurance policy. The question presented involves a construction of Supreme Court Rules 56.01 and. 57.01(b), V.A.M.R.

Robert Gene Shipley, a minor nine years-of age,, by his mother as next friend, filed suit for personal injuries alleged to have-been received as a result of a collision between a bicycle he was riding and an automobile operated by the defendant Bush, the-relator herein. The prayer of the petition-is for actual damages in the sum of $50,000.. The defendant’s answer admitted the collision but denied all other allegations of the,petition.

Thereafter the plaintiff filed interrogatories that he requested the defendant to-answer, among which were these:

“11. For the purpose of voir dire inquiry of the jury, state if any person, firm, or corporation is financially interested in the cause-of action herein because of any-contracts or relationships either with you or by which you may-benefit.
“12. If you answered the preceding interrogatory in the affirmative, state the name and address of said persons, firm, company or corporation.
“13. If you answered the interrogatory immediately preceding the-last interrogatory in the affirmative, state whether said contract was written or verbal, and if written, attach copy thereof, and if verbal, state the general terms of said- contract.”

The respondent circuit judge entered an, order that unless prohibited he would require the defendant to answer these interrogatories. The defendant-relator admits . that his answers to interrogatories 11 and 12 will disclose the name of his liability insurance carrier and concedes that under existing law the supplying of such information is proper for “the purpose of voir dire inquiry of the jury.” He objects, however, to interrogatory 13 and contends that re■quired compliance with such an interrogatory is not authorized by the Supreme •Court Rules of Civil Procedure relating to •pretrial discovery. The precise question involved is whether a defendant in a suit for actual damages for personal injuries based on negligence in the operation of a ■motor vehicle can be required to furnish the plaintiff with a copy of his policy of liability insurance which will disclose the limits and all other terms of his liability ■insurance coverage.

The Supreme Court Rules insofar as ■.pertinent to this inquiry are:

Rule 56.01: “Interrogatories may relate 'to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party.”

Rule 57.01(b): “Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates "to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location •of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testi■mony will be inadmissible at the trial if the testimony sought appears reasonably •calculated to lead to the discovery of admissible evidence.”

The portions of Rules 56.01 and 57.01 (b) set out above are identical with Federal Rules of Civil Procedure 33 and 26(b), Title 28 U.S.C.A. As indicated by the Committee Note and Comment appended to Supreme Court Rule 57.01, the present rules broaden the scope of discovery to include not only admissible evidence but also matters reasonably calculated to lead to the discovery of admissible evidence.

In an original prohibition proceeding such as this, the question for the determination of this court is whether the document is relevant and material to the subject matter in the pending action or is reasonably calculated to lead to the discovery of admissible evidence, and the simple test is whether the document sought tends to prove an issue in the case. State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 387 [6], 8 A.L.R.2d 1124; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757, 760 [2-5]; State ex rel. Kroger Company v. Craig, Mo.App., 329 S.W.2d 804, 806 [1, 2] ; Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo.App., 317 S.W.2d 841, 847 [4],

The elicitation of the name of the liability insurance carrier in a personal injury case and the interrogation of the veniremen concerning their interest or connection with the insurer are permitted if the inquiry is made in good faith for the purpose of determining the qualifications of the prospective jurors, but the use of this or other means to inject into the case for an improper purpose the fact that a litigant is covered by liability insurance constitutes reversible error. McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 367 [3, 4]; Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458, 461-462 [1, 2] ; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 681 [1] ; Rytersky v. O’Brine, 335 Mo. 22, 70 S.W.2d 538, 539-540 [4, 5]; Gooch v. Avsco, Incorporated, Mo., 340 S.W.2d 665, 667 [1-4].

The respondent’s first point is that the insurance policy itself is the best evidence of the financial interest of the insurer. The only information a party needs for examining the jury panel is the name of the insurance company. This information is usually ascertained by inquiring of defendant’s counsel, or at a hearing before the court, or as in this case by interrogatories propounded to the defendant. Carter v. Rock Island Bus Lines,, 345 Mo. 1170, 139 S.W.2d 458, 462 [6]; Glick v. Arink, Mo., 58 S.W.2d 714, 718 [5, 6], Since the name of the insurer is , only collaterally and incidentally involved, the best evidence rule does not apply. In re Mingo Drainage District, 267 Mo. 268, 183 S.W. 611 [4]; Levelsmeier v. St. Louis & S. Ry. Co., 114 Mo.App. 412, 90 S.W. 104 [3]; Cable v. Johnson, Mo.App., 63 S.W.2d 433 [2],

In the second paragraph of Rule 56.01(a) is this provision: “Interrogatories may require as a part' of or with the answers * *' copies of such documents, * * * not privileged, as are relevant to the answers required, * * Since the relator concedes the propriety of his answering interrogatories 11 and 12,, the respondent argues that “relator must produce his policy of insurance because said policy of insurance is related to his previous answer that he does have such a contract.” This reasoning overlooks the fact that the name of the insurer was required for limited use on the voir dire examination and nothing more is required or proper for that purpose. The contents of the policy continue to be irrelevant and immaterial to any proper issue in the case.

The plaintiff’s petition alleges that the defendant was operating an automobile and the defendant in his answer asserts that he was operating a pickup truck. On this ground the respondent urges that the existence of liability insurance is relevant because the form of policy required by statute will reveal the identity of the vehicle insured. In support of this contention the respondent cites Layton v. Cregan & Mallory Co., 263 Mich. 30, 248 N.W. 539, and Orgel v. McCurdy, D.C.N.Y., 8 F.R.D. 585. In the Layton case the defendant denied ownership of the motor vehicle involved and the agency of the driver. The court held that the policy and the reports of the accident would tend to throw some light on these issues and that the plaintiff was entitled to their production in order that she might “prepare for the trial”. The question involved in the Orgel case is not as clearly spelled out, but it appears that the corporate defendant’s office manager was ordered’ to testify at a pretrial examination “on. all issues relating to any liability insurance-carried by said defendant upon the motor vehicle of defendant McCurdy”. Apparently agency was also an issue in the Orgel case. There are no issues of ownership or agency in this case. Whether the defendant was driving an automobile or a truck makes no difference so far as the degree of care is concerned. Each is a motor vehicle — the operation of which requires the exercise of the highest degree of care. Section 304.010, RSMo 1959, V.A.M.S.

Further in this connection the respondent asserts that § 303.190, subd. 2(1), which is part of the Motor Vehicle Safety Responsibility Law, “provides that the vehicle insured shall be described in said policy”. The exact language of this provision is-that the owner’s policy of liability insurance “Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted”. Subd. 3 of this section provides that an operator’s policy shall cover liability for damages arising out of the use of any motor vehicle not owned by him. The pleadings in this case present no issue of ownership of the motor vehicle involved or of the agency of its operator. The record does not demonstrate that the policy has any bearing on the kind of motor vehicle the defendant was actually operating. at the time of the casualty.

In another assignment the respondent contends that the public policy of this state as evidenced by the Motor Vehicle Safety Responsibility Law vests the injured party with an interest in the liability insurance proceeds and renders the production of the policy relevant. He refers specifically to § 303.190 which deals with the provisions required in contracts of liability insurance. He also relies on Johanek v. Aberle, D.C.Mont., 27 F.R.D. 272; Noyak v. Good Will Grange No. 127, Patrons of Husbandry, D.C.Conn., 28 F.R.D. 394, and Brackett v. Woodall Food Products, Inc., D.C.Tenn., 12 F.R.D. 4. We need not discuss these cases or the kind of statutes involved because there is nothing in the Missouri Responsibility Law that gives any substance to the plaintiff’s contention that the terms of the liability policy are relevant under existing rules or statutes relating to pretrial discovery. See in particular §§ 303.051, 303.120, 303.160 and 303.170, RSMo 1959, V.A.M.S. The statutes in question do not indicate any purpose or intent that the courts should require a disclosure of the amount of a motorist’s liability insurance coverage prior to the rendition of a judgment against him and the institution of proceedings to apply the insurance proceeds to the satisfaction of the judgment.

Another ground assigned by the respondent is that the production of the liability policy is relevant because a judgment may be obtained upon which garnishment proceedings could be instituted against the insurance company. The theory urged is that a garnishment proceeding is ancillary to and a continuation of the main action and that production of the policy should be required at this time in order to preserve it for possible future use. In Maddox v. Grauman, Ky., 265 S.W.2d 939, 41 A.L.R.2d 964, the question propounded was whether the defendant had liability insurance, the name of the carrier, and the policy limits; however, the right to have the first two questions answered was not conceded as in the case at bar. Under a similar discovery rule, the Kentucky court held all three questions should be answered. Reference was made to possible future garnishment action. The decision was based on the broad ground that the information sought was relevant to the subject matter of the action. Other cases cited by respondent are Superior Insurance Company v. Superior Court, 37 Cal.2d 749, 235 P.2d 833, and Laddon v. Superior Court, 167 Cal.App.2d 391, 334 P.2d 638. The cases relied on are not persuasive. Most personal injury claims are settled, some prior to suit and others before verdict and-final judgment. Of those tried, some result in defendant verdicts. In the present case the plaintiff has the name of the liability insurance company. If he obtains a judgment, he knows against whom to proceed to collect the insurance money, and the information as to policy limits which he now seeks would then be relevant. The Missouri statutory provisions for the preservation of the rights of a potential judgment creditor and for the application of liability insurance proceeds to the payment of a final judgment are salutary and adequate. See §§ 379.195 and 379.200, RSMo 1959, V.A.M.S. We decline to require the disclosure of the limits of a motorist’s liability insurance upon such a speculative pretext.

The respondent’s remaining contention is that the relator should be required to answer interrogatory 13 “because the disclosure of said policy, including the limits of liability therein, would promote the disposition of litigation without trial.” The respondent’s written argument states that “the underlying reason for the controversy over the production of insurance policies, both pro and con, results from the injured party’s desire, and we think right, to know the limits of the policy, and the insurer’s desire to keep the injured party from becoming aware of the likelihood of sizable policies.” It goes on to say that “there has been invented a number of legal reasons persuading courts to allow the production of the policy for reasons that, though perfectly proper, avoid the main issue.” We are assured that: “No other one thing could be done that would dispose of personal injury litigation with more dispatch than the interpretation of its rules by this Court, which would require the production of the insurance policy on the sole ground that it is related to the subject matter because it would tend to dispose of litigation.”

The question presented is one of first impression in this state. It has seldom arisen in other jurisdictions and the cases on the subject are not in agreement. The respondent cites People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588; Lucas v. District Court, 140 Colo, 510, 345 P.2d 1064, and Pettie v. Superior Court, 178 Cal.App.2d 680, 3 Cal.Rptr. 267. These cases reject the concept that the information sought must be admissible in evidence and apparently give no effect to the provision of the rule that the matter must be reasonably calculated to lead to admissible evidence if the matter itself is not admissible.

The Missouri courts have held quite uniformly that unless the matter sought is admissible in evidence, or is likely to lead to admissible evidence, discovery is not permitted even though the information sought might aid the inquiring party in preparing for trial. State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645, 647-648 [9], 166 A.L.R. 1425; State ex rel. Kroger Company v. Craig, Mo.App., 329 S.W.2d 804, 806 [2], To decide the issue in accordance with the respondent’s contention would be a radical and complete departure from this concept.

The more persuasive cases from other jurisdictions have held against requiring disclosure of policy limits. They are better reasoned and more consistent with the primary purpose of the rules relating to pretrial discovery. Some of the cases so holding are: Cooper v. Stender, D.C.Tenn., 30 F.R.D. 389; McDaniel v. Mayle, D.C.Ohio, 30 F.R.D. 399; Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649; McClure v. Boeger, D.C.Pa., 105 F. Supp. 612; McNelley v. Perry, D.C.Tenn., 18 F.R.D. 360; Gallimore v. Dye, D.C.Ill., 21 F.R.D. 283; Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746; Ruark v. Smith, 1 Storey, Del., 420, 147 A.2d 514, and Brooks v. Owens, Fla., 97 So.2d 693. All that needs to be said on the subject has been well expressed in the above cases.

We refer to Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, for a discussion and careful analysis of the cases in existence when that case was decided. Our views are in harmony with the following quotations from Jeppesen and other cases..

“It would seem to us that, even though the discovery is not to be limited to facts which may be admissible as evidence, the ultimate goal is to ascertain facts or information which may be used for proof or defense of an action. Such information may be discovered by leads from other discoverable-information. The purpose of the discovery rules is to take the surprise out of trials, of cases so that all relevant facts and information pertaining to the action may be-ascertained in advance of trial. Where-it is sought to discover information which-can have no possible bearing on the determination of the action on its merits, it can-hardly be within the rule. It is not intended to supply information for the personal use of a litigant that has no connection with the determination of the issues involved in the action on their merits.” Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, 656-657.

“The law favors compromise settlements,, but not at the expense of giving one party an advantage over the other in bringing-about those settlements. But, we are not so sure that the giving to plaintiffs the limits of a defendant’s liability insurance policy will bring about more compromise settlements than will the withholding of such information. Oftentimes cases are not settled because plaintiffs ask for greater damages than their cases justify.' Compromise settlement is not the aim of the discovery rules. There is a body of opinion that holds to the belief that it is a by-product of the discovery rules.” Cooper v. Stender, D.C. Tenn., 30 F.R.D. 389, 393.

On the case before us it seems, as stated in McClure v. Boeger, D.C.Pa., 105 F.Supp. 612, 613, that “every argument that could be made in favor of requiring the disclosure could also be made in favor of compelling a defendant in any civil case, tort or contract, to furnish the plaintiff with full information as to his financial resources, and, in the case of an individual, as to the extent of his private fortune.”

“Under the guise of liberal construction, we should not emasculate the rules by permitting something which never was intended or is not within the declared objects for which they were adopted. Neither should expedience or the desire to dispose of lawsuits without trial, however desirable that may be from the standpoint of relieving congested calendars, be permitted to cause us to lose sight of the limitations of the discovery rules or the boundaries beyond which we should not go.” Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, 658.

The plaintiff suggests if the requested disclosure is not within the purview of the existing rules that the rules should be changed so as to authorize it. While the question is not before us for decision, it should be observed that the supreme court’s rule-making power is not without limitations. Art. V, § 5, Constitution, 1945, V.A.M.S. provides: “The supreme court may establish rules of practice and procedure for all courts. The rules shall not change substantive rights, or the law relating to evidence, * * Furthermore, we are not persuaded that requiring the disclosure of policy limits would lessen the number of pending cases. It seems just as likely that awareness of “sizable policies” might warp the judgment of an injured person and perhaps his counsel as to the real worth of the claim and keep alive a case that should be settled. Where court congestion exists, there are means by which it can be attacked directly with more assurance of success.

Requiring the defendant-relator to answer and comply with interrogatory 13 would constitute an excessive exercise of respondent’s jurisdiction in the circumstances of this case and cannot be approved. State ex rel. Transit Casualty Co. v. Mc-Millian, Mo., 349 S.W.2d 210; State ex rel. Chicago, Rock Island & Pacific R. Co. v. Riederer, Mo., 303 S.W.2d 71; State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85.

The provisional rule in prohibition is made absolute.

All concur.


author: BOHLING, Commissioner.

text:
    Isaac NASH, Appellant, v. PLAZA ELECTRIC, INC., a Corporation, Respondent.
    No. 49300.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 14, 1963.

      Edward F. Aylward, Robert A. Meyers, George V. Aylward, Charles Schnider, Kansas City, for plaintiff-appellant, Cohen, Schnider, Shamberg & Jenkins, Kansas City, of counsel.
    Morrison, Hecker, Cozad & Morrison, Karl F. Schmidt, Byron J. Beck, Kansas City, for defendant-respondent.
   BOHLING, Commissioner.

Isaac Nash sued the Plaza Electric, Inc., a corporation, for personal injuries, asking $100,000 damages. Plaintiff has appealed from the judgment entered on a nine-juror verdict for the defendant. He contends reversible error resulted from a colloquy between the court and the jury after its retirement to deliberate on its verdict, and the court’s thereafter giving what plaintiff designates an instruction to the jury, and the exclusion of complaints plaintiff made to lay witnesses in regard to his injuries. The defendant contends no prejudicial error occurred and, also, that plaintiff failed to make a submissible case.

Plaintiff was the chief chef at Hogerty’s Restaurant and Cocktail Lounge in the Brookside area of Kansas City, Missouri, and also served in a supervisory capacity in the purchase of foods, and the employment of help. On the night of May 1, 1958, a fire occurred in the kitchen of the restaurant. About noon on May 2, two of defendant’s employees were inspecting and repairing the electric wiring and fixtures, using a 7 or 8-foot wooden stepladder. Plaintiff, on his hands and knee's inspecting the vegetables in the bottom of a refrigerator, heard a noise, looked over his shoulder, and saw the stepladder coming down. He was unable to get out of the way, and the ladder struck him on his back a little below his belt line. He had pain in his back, and saw a doctor when his employer sent him to see one three or' four days later. His condition continued to become worse, and in March, 1959, his employer discharged him. Defendant’s cross-examination of plaintiff impeached his credibility as a witness. The medical testimony is not included in the transcript, but plaintiff states in his brief that his medical testimony showed he suffered a traumatic neurosis, and defendant’s medical testimony tended to show plaintiff was not injured.

The trial started September 25, 1961; and at 4:15 p. m. September 29th the jury, after deliberating on a verdict, returned to the court room and the following colloquy, in substance and so far as material, occurred between the court and the jury in the presence of counsel for the parties. The court, requesting that the Foreman answer his inquiries and nothing more, stated: “You have been out about three and a half hours altogether, or a little more, on your deliberations. * * * Now, here is what I want to know. * * * You have not arrived, of course, at a verdict? The Foreman: No, sir.

“The Court: Is it your opinion that a verdict can be reached? The Foreman: No, sir.
“The Court: Is it your opinion that you have such differences among the members of the jury that they can not be resolved? The Foreman: It is my opinion that is so, yes, sir.
“The Court: Is that the opinion of the other members of the jury? Jurors: Yes, sir.
“The Court: Do you say that you are deadlocked, so to speak? Jurors: Yes, sir.
“The Court: How long has that condition obtained? The Foreman: Well, we have been apart right from the beginning, and it has not changed very much either way.
“The Court: Do you think that if you were afforded an opportunity for further deliberations 'that progress might be made ? The Foreman: I don’t believe so, sir.
“The Court: What about the rest of you ? Jurors: (Nodding) No. A Juror: I don’t think so.
“The Court: Of course, you can readily see that what I am trying to do is this. This has been a long case. It has taken all week. I certainly want a verdict arrived at if it is possible to do so. I know' for those of you who are not accustomed to being in the court room all the time it has probably been a rather grueling situation, and tiring. Naturally, we want the case resolved if it can be. I am willing to do one of two things to give you further time. If it will enable you to reach a verdict I will send you back, or if you prefer, if you are tired, we will quit and come back. We will quit for today and you will be back tomorrow. The Foreman: May I personally poll the jurors?
“The Court: Yes. It is purely an advisory opinion. It is 'not binding, but I would kind of like to know which way the wind is blowing.' The Foreman: I have polled all the jurors. There seems to be no hopes of changing our position.
“The Court: Will the lawyers come up, please?
“(Thereupon, discussion was had off the record.)
“The Court: I will tell you what we are going to do. We are going to adjourn until nine o’clock tomorrow morning. Maybe a night’s sleep and a little fresh air will be beneficial to you people. We will find out. * * * ”

The court thereupon again admonished the jurors not to talk about the case with each other until they returned to the jury room, or with other persons, or allow anyone to discuss the case within their hearing or presence.

Court then adjourned to 9:00 a. m. Saturday, September 30, 1961, at which time the following proceedings were had:

“The Court: * * * Now before sending you up there, I do want to say this. This is, as I recall, the sixth day in the trial of this case. There were four days of testimony, and half a day of instructions and argument. You went out yesterday and were out three hours and a half, or three-quarters — something like that — and that is why I had you to come back today. After a trial of such duration, of course, the jury is going to require and should be afforded an ample opportunity and to endeavor to arrive at a verdict. That is what you are here for this morning — to have further time to deliberate. It is desirable that in every case a verdict be reached, if possible. It costs a lot of money to the litigants and to the State to try cases. You people who were selected as jurors are representative of the jurors who were in the jury assembly room. There is no reason to believe that you are any less intelligent than any other twelve jurors that might be called upon to try this case. You should, of course, follow the instructions of the Court. You should not violate any principles that you might have, but you should afford and afford fully to each of your fellow jurors an opportunity to express his opinion or her opinion and to give it the most consideration in endeavoring to arrive at a fair and impartial verdict.”

The jury retired and then the following occurred:

“Mr. Meyers: Let the record show that the plaintiff objects to the Court’s charge to the jury.
“The Court: “I didn’t know that it was a charge.
“Mr. Meyers: Or instructions just given by the Court to the jury.”

While plaintiff sets forth in his motion for new trial and in the argument portion of his brief the whole of the remarks between the court and jury of September 29th and 30th, his contention that the colloquy between the court and the jury of September 29th coerced a defendant’s verdict is based upon the jurors unanimously indicating they were deadlocked at that time. Plaintiff at the trial did not attempt to interpose any objection to any remark between the court and the jury on September 29th. In these circumstances this contention of plaintiff has not been preserved for appellate review, as a failure to object when the opportunity presents itself constitutes a waiver of the claimed trial error. State v. Baker, Mo., 293 S.W.2d 900 [5]; State v. Whitaker, Mo., 275 S.W.2d 316 [17-19]; State v. Linders, Mo., 224 S.W.2d 386 [21]; State ex rel. Miser v. Hay, Mo., 328 S.W.2d 672 [5] ; Brown v. Thomas, Mo.App., 316 S.W.2d 234 [6-8]. The reasonable conclusion from the fact the court and counsel held an off-the-record discussion and the immediate adjournment thereafter to the following day, without any objection being interposed, is that the litigants and the court were agreed that this was the proper action to take.

We next consider the admonition to the jury of September 30th, passing any issue with respect to the objection thereto being timely or sufficient.

Plaintiff, to establish coercion on the part of the court, stresses Anderson v. Bell, Mo., 303 S.W.2d 93, 100 [9, 10]. In the Anderson case a plaintiff’s nine-juror verdict was upheld, the admonition being considered not reversible error. We, however, cautioned against the use of the admonition, stating it should be given only on infrequent occasions when it is reasonably certain no coercion is being exercised.

An appellant ordinarily has the burden of establishing prejudicial error upon appeal. Respondent does not have the burden of establishing the correctness of the court’s ruling. Hardy v. McNary, Mo., 351 S.W.2d 17, 20 [1-3], citing authority; Nibler v. Coltrane, Mo., 275 S.W.2d 270, 277 [11]. Consult Civil Rule 83.13(b), V.A.M.R., formerly § 512.160(2), RSMo 1959, V.A.M.S.

Trial courts may exercise a sound discretion in the length of time a jury should be kept together. State v. Shelby, 333 Mo. 610, 62 S.W.2d 721, 725 [8-10]; Hoffman v. St. Louis Pub. Serv. Co., Mo., 255 S.W.2d 736 [15, 16].

We think when jurors report after 3½ hours of deliberation that they are unable to agree following a trial extending into the fifth day before its submission, that the trial court should not abnegate its function and refuse to advise the jury of its duties and powers. See Civil Rule 69.02.

The propriety of similar admonitions to juries has been considered in, among others, the Shelby, Hoffman and Anderson cases, supra; State v. Roberts, Mo., 272 S.W.2d 190, 192; State v. Stegall, Mo., 327 S.W.2d 900 [1, 2] ; State v. Keller, Mo., 344 S.W.2d 65, 68.

Considering the admonition in the case at bar as a whole, the court was acting within its discretion to afford the jury ample opportunity to arrive at a verdict. The statement: “There is no reason to believe that you are any less intelligent than any other twelve jurors that might be called upon to try this case,” although not in words used in some other admonitions, conveys the underlying thought that the jurors were as well qualified to decide the case as any others that might be selected, admonitions found in the Roberts, Stegall and Anderson cases. Consult Railway Express Agency v. Mackay, 8 Cir., 181 F.2d 257, 19 A.L.R.2d 1248, 1256 [6].

Quoting further: “You should, of course, follow the instructions of the court. You should not violate any principles that you might have, but you should afford and afford fully to each of your fellow jurors an opportunity to express his opinion or her opinion and to give it the most consideration in endeavoring to arrive at a fair and impartial verdict.” This portion of the admonition may not have been as judiciously worded as possible, but we think jurors'of average intelligence would understand they should discuss the case openly and frankly but should not violate any principles they might have with respect to what the true facts were under the evidence. Consult again the admonitions, for instance, in the Roberts, Stegall and Anderson cases. See also annotations, 19 A.L.R.2d 1261, § 3; 109 A.L.R. 82, III; 85 A.L.R. 1434, V.

The trial court in overruling plaintiff’s motion for new trial considered its admonition to the jury was not coercive. This finding is supported by the fact that three of the jurors did not agree to the verdict. We sustain the trial court’s ruling.

A point first made in plaintiff’s motion for new trial is that the admonition of September 30th constituted reversible error because it was not in writing and counsel had no opportunity to object to it until after it was given.

Civil Rule 70.01(a) authorizes litigants to submit in writing and request the court to give instructions “on the law applicable to the issues in evidence in the case”; and: “The court may also instruct the jury in writing of its own motion. The court shall afford ample opportunity for counsel to examine the instructions before the same are given and to make objections out of the hearing of the jury.” Rule 70.01(a), formerly § 510.300(1), RSMo 1959, V.A.M.S., applies by its terms only to instructions “on the law applicable to the issues in evidence in the case,” or otherwise stated, “instructions which submit to the jury the issues being tried.” Reliable Life Ins. Co. v. Bell, Mo.App., 246 S.W.2d 371, 381 [16, 17]. O’Donnell v. St. Louis Pub. Serv. Co., Mo.App., 246 S.W.2d 539 [8]; Lumatz v. American Car & Foundry Co., 217 Mo.App. 94, 273 S.W. 1089, 1092 [2],

Directions to jurors to withhold their conclusions until all the evidence is in; or cautioning them against permitting any person to talk to them or engaging in conversation with each other on the merits before the case is submitted for deliberat tion; or to disregard evidence or remarks or argument of counsel stricken on motion are not considered instructions required to be in writing. The Lumatz and Reliable Life Ins. Co. cases, supra. Other statements also have been considered admonitions not rising to the dignity of an oral instruction upon an issue in the case in Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 494; Riehle v. Broadway Motors, Inc., Mo.App., 350 S.W.2d 89, 92, 94 [1] ; Hoeffner v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 722, 731 [22]; Meyer v. Dubinsky Realty Co., Mo.App., 133 S.W.2d 1106, 1111 [15].

It is stated in 88 C.J.S. Trial § 330, p. 868: “Moreover, the court may orally state to the jury the importance of agreeing on a verdict if they could do so without the sacrifice of their honest convictions, and may orally direct them to retire and consider the verdict further. * * * In accordance with the general rule, remarks to the jury of a general character as to their duty and power as jurors are not a part of the instructions required to be put in writing.” Consult 53 Am.Jur., Trial, p. 445, §§ 562-565.

The court did not indicate the case at bar was a simple one on the law or the facts and that the jury ought to come to an agreement. Consult State v. Keller, Mo., 344 S.W.2d 65, 68. The court orally informed the jurors of their duties and powers without commenting on principles of law affecting the merits. Civil Rule 69.02 authorizes courts to “orally instruct the jury in conformity with the contents” of the Handbook of Information for Jurors approved by The Missouri Bar. See pages 9 and 10 of “Handbook of Information for Trial Jurors” approved by the Supreme Court December 17, 1959. Consult also Wright v. Gillespie & Co., 1891, 43 Mo.App. 244, 249 (stating the objection that an instruction should be in writing should be timely and specific); State v. Whitaker, Mo., 275 S.W.2d 316, 321 [19]; Boll v. Spring Lake Park, Inc., Mo., 358 S.W.2d 859, 867.

We do not understand that McPeak v. Missouri Pac. Ry. Co., 128 Mo. 617, 30 S.W. 170, 173, 176(4); Boyd v. Pennewell, Mo. App., 78 S.W.2d 456, and Anderson v. Bell, supra, plaintiff’s cases, were remanded because the admonition or direction to the jury was not in writing. In Anderson v. Bell there also was an oral admonition that if a verdict could not be reached on plaintiff’s claim and the cross-claim of one defendant against the other defendant, the jury might reach and return a verdict on one or the other of the two (303 S.W.2d 1, c. 99).

We overrule plaintiff’s contention.

Plaintiff’s remaining point is that the court erred in not permitting lay witnesses to testify concerning physical com-i plaints made by plaintiff to them after his injury, citing Benson v. Smith, Mo.App., 38 S.W.2d 749 [3-5]; Kickham v. Carter, Mo., 335 S.W.2d 83, 91 [9] and case there cited.

The record does not establish prejudicial error. The testimony was relevant only on the issue of plaintiff’s damages. The jury never reached that issue, the verdict being for the defendant. Russell v. Kotsch, Mo., 336 S.W.2d 405 [7]; Clark v. Reising, 341 Mo. 282, 107 S.W.2d 33 [9]; Merritt v. Mantony, Mo., 353 S.W.2d 768 [2], Other reasons need not be developed.

The foregoing disposes of all points presented in the appellant’s brief.

The judgment is affirmed.

BARRETT and STÓCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.