author: BARRETT, Commissioner. PER CURIAM.

text:
    Margie WEST, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 48923.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      Sherman Landau, St. Louis, for appellant.
    William M. Corrigan, St. Louis, for respondent.
   BARRETT, Commissioner.

Claiming to have been seriously injured by reason of the negligence of the St. Louis Public Service Company, Margie West instituted this action to recover $18,500 damages. A jury returned a verdict in favor of the defendant company and Mrs. West has appealed. She asserts that the court erred in the giving and refusal of certain instructions and that, therefore, she is entitled to a new trial at the hands of this court, the trial court having overruled her motion for a new trial.

Some of her complaints are so obviously lacking in substantial merit that they may be disposed of rather summarily. There was an instruction to the effect that the jury should consider and determine liability before it considered the amount of damages. The instruction also cautioned the jury against being influenced by passion and prejudice. The appellant says that by this instruction the trial court “dictated the sequence of the jurors’ reasoning processes,” thereby infringing upon the “traditional and constitutional power and duty of the jury to arrive at its own conclusions through such sequences of reasoning as it deems best for that purpose.” It is also said that the instruction was a “subtle but unmistakable implication to the jury” that there was no liability on the part of the defendant. In so far as these assertions constitute statements of fact, it can only be said that the court did not direct the “reasoning processes” of the jurors and there was not the slightest implication in this abstract, cautionary instruction that there was no liability on the part of the defendant. In support of her assertions the appellant cites Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, but she has not properly raised or presented a question in constitutional law under either the Seventh Amendment to the Constitution of the United States or Article 1, Section 22(a) of the Constitution of Missouri, V.A.M.S.,— “That the right of trial by jury as heretofore enjoyed shall remain inviolate.” In any event, these constitutional provisions do not mean that trial courts may not instruct jurors, even caution them as to some matters. The appellant has cited no Missouri cases on this subject, and as against the specific objections made here it need only be said that the trial court did not abuse its discretion in giving this cautionary instruction. Landau v. St. Louis Public Service Co. (Mo.), 347 S.W.2d 870, 873; Mendenhall v. Neyer, 347 Mo. 881, 884—887, 149 S.W.2d 366, 371-372.

There was also an instruction on the credibility of witnesses and the weight to be given their testimony, and in the instruction there was a paragraph on false swearing. It is said that this instruction had the prejudicial effect “of intimating that, in the opinion of the court trying the case, some of the witnesses had testified falsely.” The appellant does not say that there was no basis in fact upon this record for the instruction, she says that “there was no fact or circumstance in the case to justify the implication injected into the case” by that instruction. She also says that an abstract instruction “without proper application to the facts” in this particular case “was so misleading as to constitute reversible error.” These abstract, cautionary instructions should, of course, be employed judiciously, and in some instances it is improper to give them at all, as where the defendant offers no testimony and there is no contradictory evidence. Farmers’ State Bank v. Miller (Mo.App.), 26 S.W.2d 863. Then too there is the risk that instructions of this type may be misconstrued as implying that some witness has testified falsely, and so, if there is only “some conflict in the evidence,” the court does not abuse its discretion in refusing to give them. Oliver v. City of Vandalia (Mo.App.), 28 S.W.2d 1044, 1046. On the other hand, if there is a factual basis in the testimony and the instruction authorizes, does not direct, the jury to disregard false testimony, the giving of such an instruction is not an abuse of discretion. Duffy v. Rohan (Mo.), 259 S.W. 2d 839, 843. It is not necessary to demonstrate upon the record or characterize particular testimony, in several material respects there was a conflict of testimony. The propriety of a false testimony instruction “does not depend upon the relative importance of the material testimony.” Duffy v. Rohan, supra. It may be that the instruction was “a useless declaration of the obvious” but in the circumstances of this case it was not an error materially affecting the merits of the action. Rossomanno v. Laclede Cab Co. (Mo.), 328 S.W.2d 677, 680-681.

Mrs. West’s proof supported the factual hypothesis of her instruction 4, that she boarded the defendant’s bus and paid her fare as the bus “started forward into movement,” that she then proceeded to walk to the rear of the bus to a seat and “the defendant caused the bus to be brought to a sudden abrupt and unusual stop, and thereby caused plaintiff to be thrown violently backward onto the floor of the bus and to be injured * * From all the facts and circumstances in evidence, the jury was permitted to find that “the sudden, abrupt and unusual stop * * * was negligent.” The defendant’s proof was that the bus stopped at the curb on Washington Avenue to pick up passengers, including Mrs. West. The bus operator looked and in his rear-vision mirror saw in the next traffic lane to the rear of the bus an old model automobile. After the bus started forward and had traveled about five feet "the driver of the car, without any warning or anything, just swerved in front of me.” And “naturally” the operator applied his brakes and brought the bus to a stop. The automobile was traveling at a speed of about 15 miles an hour and barely missed hitting the bus: “If he hadn’t been going at the speed he was going I would have probably turned him over.” The automobile, driven by a colored man, proceeded on its course and turned right at Seventh Street. It was an older model Chevrolet with an Illinois license plate, but the plate was “dirty” and the operator was unable to get the license number.

In this connection and upon these circumstances the defendant offered and the court gave instruction 5, an emergency instruction. In an opening paragraph the instruction abstractly informed the jury of the defendant’s duty to exercise the highest degree of care to “a passenger” and “for the safety of the driver of the automobile mentioned in evidence.” The instruction hypothesized the place and circumstances in which Mr. Parr, the bus operator, stopped the bus for passengers and started forward. And then the instruction specifically hypothesized the noted evidence as confronting the operator “with a sudden emergency,” necessitating an emergency application of the brakes to avoid colliding with the automobile. The instruction concluded with the hypothesis that under these circumstances Mr. Parr “did not negligently cause or contribute to cause such emergency * * * and if you find that the defendant and Mr. Parr were not guilty of negligence in any manner submitted to you in other instructions herein” plaintiff was not entitled to recover.

The appellant lodges six specific complaints against this instruction, some of them tediously technical and some without foundation in fact. In 80 A.L.R.2d 5, there is a 160 page annotation “Instructions on sudden emergency in motor vehicle cases.” The Missouri cases are collected and analyzed in that exhaustive study, there is also a suggested outline for an appropriate emergency instruction. 80 A.L.R.2d, 1. c. 22, 35. The mere bulk of that study demonstrates that a comparatively simple matter has been permitted to become very complex and unnecessarily technical. A mere reference to the recitation of the defendant’s evidence is a sufficient answer to the claim that “there was no evidence in the record to support” the hypothesis of a “third-party motorist” and his failure to signal. Boatright v. Bruening, 363 Mo. 494, 499, 251 S.W.2d 709, 712. Likewise the quotation from the instruction sufficiently demonstrates that the presence of the third-party automobile was not assumed, and, plainly, it was not erroneous in so far as it set forth the defendant’s duty to the driver of that vehicle. Nix v. St. Louis Public Service Co. (Mo.App.), 228 S.W.2d 369, 374. Furthermore, under the defendant’s noted evidence, there was an emergency, one that from his point of view the bus operator could not anticipate and one to which he did not contribute, and instruction 5 appropriately submitted all these issues to the jury. Shelley v. St. Louis Public Service Co. (Mo.App.), 279 S.W.2d 182, 185-187; Guiterrez v. St. Joseph Light & Power Co. (Mo.App.), 294 S.W.2d 360; Layton v. Palmer (Mo.), 309 S.W.2d 561, 569, 66 A.L.R.2d 1242. It is in these important respects that instruction 5 differs from the instructions in Rohde v. St. Louis Public Service Co. (Mo.), 249 S.W.2d 417, and Grace v. St. Louis Public Service Co. (Mo.), 249 S.W.2d 409. In those cases the instructions omitted an essential prerequisite to the application of the doctrine, “viz., the hypothesis that no negligence of defendant caused or contributed to cause the emergency.” And, as the court pointed out in Layton v. Palmer, supra, with respect to the Rohde case, “the antecedent negligence omitted was that of the party whose liability was directly in question, not that of a person not a party to the suit.1’ (Emphasis supplied.) And finally in this connection, the court gave, at the plaintiff’s request, an instruction which told the jury that if the negligence of the bus operator and the negligence “of the driver of the automobile mentioned in the evidence, directly concurred, combined, and contributed to cause plaintiff to sustain injury” she was nevertheless entitled to recover. In short, in all these considerations, it is not necessary to further encumber the subject of emergency instructions with more technicalities, and the court did not err to the plaintiff’s manifest prejudice in giving instruction 5.

The plaintiff offered and the court refused to give instructions A and D. Instruction A told the jury “that if you find from the evidence that the occurrence mentioned in Instruction No. 4 (quoted above) took place as submitted therein, then the negligence of the defendant submitted in that instruction need not be proven by direct and specific testimony, but may be inferred from all other facts and circumstances in evidence.” Instruction D told the jury that if it found the facts to be as submitted in instruction 4 plaintiff “has met and carried the burden of proof required of her under the law” and further that the defendant’s negligence “need not be proved by direct and specific testimony, but such negligence may be inferred by the jury from the facts and circumstances in evidence.” The plaintiff now urges that she was unfairly prejudiced by the court’s refusal to give these instructions. Her argument is, since her case was submitted upon res ipsa loquitur, that she was denied the right to have the jury instructed that she was not required to prove “defendant’s negligence by specific evidence, but was properly entitled to prove it circumstantially.” In her reply brief she urges that the refusal of these instructions deprived her of any favorable testimony “as came into the trial in defendant’s case,” particularly with respect to negligence on the part of the defendant carrier “in the maintenance, inspection and supervision of its vehicles.”

Neither of these instructions, admittedly, is a rescript of the instructions suggested in Harke v. Haase, 335 Mo. 1104, 1111, 75 S.W.2d 1001, 1004. There the suggestion, in connection with a plaintiff’s principal instruction, was that if the jury found and believed the hypothesized facts “such facts * * * are sufficient circwru-stantial evidence to warrant a finding by you, that the defendant was negligent * It may be conceded that the instructions suggested in that opinion “were not prescribed as compulsory forms” or that “any deviation from the phrasing * * ⅜ would constitute error.”. The suggestions, however, are a far cry from the cryptic, peremptory direction that if the jury finds the facts as submitted in instruction 4 “the plaintiff has met and carried the burden of proof.” In many of the cited res ipsa loquitur cases there were instructions on burden of proof and circumstantial evidence. In this case there were no instructions on either the burden of proof or circumstantial evidence, and in submitting her case the plaintiff did not, as suggested in Harke v. Haase, include as a part of her principal instruction or elsewhere that “such (hypothesized) facts * * * are sufficient circumstantial evidence to warrant” a finding that defendant was negligent. Here she attempts in instruction D to tell the jury that negligence may be found from “the facts and circumstances in evidence,” but preceding this authorization is the peremptory direction that if the jury finds the facts as submitted in instruction 4 “then the plaintiff has met and carried the burden of proof required of her under the law and under the- other instructions herein.” These offered instructions submit no more than "the facts and circumstances in evidence,” amd in her principal instruction the jury was permitted to find that the defendant “was negligent under all the facts and circumstances' in evidence.” With respect to res ipsa loquitur these were not appropriately typical burden of proof or circumstantial evidence instructions, and if the plaintiff desired to inject these issues into the case she would have been well-advised to have followed the suggestions of Harke v. Haase.

If upon this record Mrs. West was entitled to and did rely upon the “mere neutral circumstances of control and management by the defendant” (Plumb v. Richmond, 233 N.Y. 285, 288, 135 N.E. 504, 505, 25 A.L.R. 685) and this was in point of fact “a true res ipsa loquitur case” (Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 1078, 246 S.W.2d 749, 752) in its primary or distinctive sense (Jarboe v. Kansas City Public Service Co., 359 Mo. 8, 15, 220 S.W. 2d 27, 31), the refusal of these instructions did not deprive the plaintiff of any inferences with respect to maintenance, inspection and supervision of the bus any more than the giving of them would have enlightened the jury as to any of these matters. This jurisdiction is committed to the view that the res ipsa loquitur doctrine is applicable to the sudden stopping or lurching of a public service vehicle (annotation 57 A.L. R.2d 5, 68), but the failure to always observe the distinction in res ipsa loquitur in its “strict and distinctive sense” and reliance upon circumstantial evidence (annotation 78 A.L.R: 731, 732; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722) has caused some confusion in instructing juries. For some illustrative instances in which the neutral circumstances and res ipsa loquitur in its primary or distinctive sense was employed or involved see Van Houten v. Kansas City Public Service Co., 233 Mo.App. 423, 122 S.W.2d 868; Jett v. Terminal R. Ass’n (No. 48,434), (Mo.) 357 S.W.2d 135; Jarboe v. Kansas City Public Service Co., supra, and perhaps Harke v. Haase. Here the submission was that “the defendant caused the bus to be brought to a sudden abrupt and unusual stop * *

This was after all an elemental negligence case involving very simple easily understood issues, and as to all the allegations of error if is not manifest that “error was committed by ’ the trial court against the appellant, materially affecting the merits of the action.”- Sup.Ct.Rule 83.13(b), V.A.M.R.; Rossomanno v. Laclede Cab Co., 328 S.W. 2d, 1. c. 681; Goldstein v. Fendelman (Mo.), 336 S.W.2d 661, 665; Knox v. Weathers, 363 Mo. 1167, 1178, 257 S.W.2d 912, 918. For the reasons indicated, the appellant is not entitled to a new trial and the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    Sherman LANDAU, Individually and as Surviving Partner of Miller & Landau, Appellant, v. Leo F. LAUGHREN and Grace Miller, Respondents.
    No. 48665.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied May 14, 1962.

      Sherman Landau, St. Louis, for appellant.
    Leo F. Laughren, St. Louis, for respondents.
   STORCKMAN, Judge.

This action for an accounting was brought by the plaintiff, Sherman Landau, individually and as surviving partner of Miller & Landau, a partnership for the practice of law, against the defendant, Leo F. Laughren, individually and as attorney for the other defendant, Grace Miller, who is a sister of the defendant Laughren and the widow of Louis E. Miller, the deceased partner.

The petition alleged and the separate and joint answer Of the defendants admitted that numerous, complicated mutual accounts were involved, and the Honorable Raymond E. LaDriere, a retired circuit judge duly qualified as a commissioner and referee under §§ 476.4S0 and 476.500, RSMo 1959, V.A.M.S., was appointed as referee by the Circuit Court of St. Louis County and was assigned to serve as such by an order of the Supreme Court. The referee heard the evidence, took the accounts, made findings of fact and conclusions of law, and filed his report. The plaintiff, alone, filed exceptions to the report of the referee. His exceptions were heard and overruled and judgment was rendered in accordance with the findings of the referee. The plaintiff filed a motion for a new trial which was overruled and he has appealed. The prayer of plaintiff’s petition is for a judgment of $16,289.73 and interest. His motion for new trial asserts that his aggregate recovery of $2,211.87 is inadequate in that he is entitled to a judgment for $21,007.94 including interest.

In the summer of 1945 the plaintiff and Louis E. Miller formed a partnership for the practice of law under the firm name of Miller & Landau. There was no written contract between them, but they shared equally in the net proceeds derived from their practice. The partners engaged in the civil practice of law, but the major portion of their law business was the representation of claimants for damages on account of personal injuries and property damage. Mr. Miller’s services consisted primarily of the trial of jury cases, while the plaintiff handled the office work, interviewed clients, took statements and depositions, prepared and filed pleadings, attended to pretrial and aftertrial motions, tried nonjury cases, prepared briefs in the trial court, and briefed and argued the firm’s cases on appeal.

The partnership of Miller & Landau continued until it was dissolved at the instance of Mr. Miller as of June 1, 1952. Thereafter, until the death of Mr. Miller, four months later on November 1, 1952, the plaintiff and Mr. Miller continued to occupy the same offices, to maintain a firm bank account, and employ the same secretarial help, and to pay office expenses from the partnership bank account. After June 1, 1952, the plaintiff and Mr. Miller continued to work together in processing the cases which had come to the firm prior to June 1, 1952, but legal matters referred to them after June 1, 1952, were handled by the one to whom the matter was referred unless there was a specific agreement for association in a particular case.

The evidence showed that there were/approximately forty-one pending actions or claims for damages which had not been disposed of at the time of Mr. Miller’s death on November 1, 1952. The essential issues in this accounting suit involve the proper division of the attorney fees received in these cases and whether the plaintiff is entitled to be reimbursed for one-half of the amount expended by the partnership for the maintenance of the office library which had its origin in law books owned by Mr. Miller individually.

The defendant Laughren represented his-sister as her attorney at all times after the death of her husband. He also tried some of the partnership jury cases and disposed of others by settlement. But the necessity of dealing separately with the interests of the defendant Grace Miller, as widow or as executrix of the estate of Louis E. Miller, deceased, and of the defendant Lau-ghren, was obviated by an agreement by the parties to the suit that the defendants may be considered as one entity, and any orders or judgments for or against them be entered accordingly. After the death of Mr. Miller, practically all contacts, negotiations and arrangements with the plaintiff were made by the defendant Laughren. Consequently, the defendant Laughren will be intended when the singular defendant is used in the course of this opinion.

The evidence is convincing that within a few days after the death of Mr. Miller, the plaintiff and the defendant Laughren made an agreement of some sort for the participation of each of them in the disposition of the partnership business not concluded at the time of Mr. Miller’s death. The precise nature of this agreement and its application to each of the cases is the principal issue in this accounting suit. The respective position of the parties and the salient evidence on this issue is well-stated by the referee in his report as follows :

“Landau, the plaintiff, contends that there was no agreement that Laughren would handle all the cases and that the fees would be divided equally between plaintiff, on the one hand, and Laughren and Grace Miller on the other, as if the latter two (defendants herein) were taking the place of Mr. Miller, the deceased. (P. 389)

“Plaintiff further states that on the contrary he proposed that Laughren handle only the trial of the jury cases on a 50-50 basis but that Laughren did not agree to that, (see page 36 for Landau inconsistent statement), and hence there was no binding contract in existence. (See letter Landau to Laughren Dec. 30, 1953, Tr. p. 556, and Feb. 13, 1954, PI. Ex. 5; also Laughren to Landau Mar. 2, 1954, PI. Ex. <6. See also Page 48).

“In answer to Mr. Laughren’s question during trial, Mr. Landau testified that ■'When you took a case that was completely prepared and negotiated a settlement in the case you performed a service for which you were not engaged and, for that reason, are not entitled to compensation, and it is a service which I could have performed myself.’ (P. 215).

“He admits, however, that Mrs. Miller would be entitled to one-half of any fees arising because of work done on a given •case before Miller’s death and adds that he should receive not only the other half but is also entitled to be paid on quantum ■meruit for the percentage of the work done by him after his partner’s death, (See Exhibit 27).

“Mr. Laughren testified (P. 382) that Landau stated he would like him (Lau-•ghren) to handle the Miller and Landau ‘cases with him jointly and on an equal fee •division basis, that he would much prefer me handling the cases than to turn them •over to some other lawyer with trial experience; that he would have to pay such •a lawyer fifty percent of the fee for trying the cases; that he would do all the preliminary work, and after-trial work; that I would handle the cases after they came ■on the docket. * * * I asked him what he meant by a division of the fees and he said that he would divide the fee with me, or the estate, on a fifty-fifty basis, * * * of course I would have to make arrangements with the Miller estate to pay for the work Mr. Miller had done in the cases prior to his death and any interest that the estate had in the cases at that time * * * ’. (Page 383). The next day (P. 389) Mr. Landau said ‘that in the main Mr. Miller’s work was to handle the cases after they came on the trial docket. I asked Mr. Landau if from our conversation the previous evening and the statement he had just made, that if I did accept his proposition, if that is what he would expect me to do, and Mr. Landau stated that was correct. I then said to Mr. Landau, or in effect, that in effect for all practical purposes I would take Mr. Miller’s place, or the place Mr. Miller occupied in the partnership prior to its dissolution, in handling the cases after they came on the trial docket, and Mr. Landau stated that was exactly what he meant.’ (P. 389). .

“I told Mr. Landau ‘that I wanted it definitely understood then that the only cases I would handle were those in which suits were filed in the name of Miller and Landau, and the cases that had come to the partnership before June 1st, 1952, on which suits had not been filed, that is the Bloemker, Looser and Lorenzen cases, and I would carry out Lou’s commitment to him and would handle the Kostman and Bedenk cases on an equal division basis.’ (P. 393-4-5-, also P. 656).”

The correspondence between the plaintiff and defendant referred to above is enlightening and at the expense of brevity will be set out at least in part. Defendants’ Exhibit LL, a letter dated December 30, 1953, and signed by the plaintiff, is directed to the defendant Laughren and reads as follows :

“I am still of the opinion that it would be to the best interests of the Louis E. Miller estate if you would continue to handle the jury trials of the Miller & Landau cases on behalf of the Louis E. Miller estate. I will continue to handle all briefing, pleadings, appeals, and the trials of all non-jury cases. Under that arrangement, the ultimate fee would go to the Miller & Landau partnership, so that one-half of the benefits would be retained by the Louis E. Miller estate, and the other one-half by myself. Unless we can agree upon this arrangement, or upon some other arrangement which would enable us to equitably divide the work of handling the cases, it appears to me that we will be faced with the alternative of directing the clients to secure other counsel.

“The situation is further complicated by the fact that we have retained these cases for the last thirteen months upon the representation that we would handle these cases through to completion for the clients, and they may have some just complaint about being directed at this late hour to cast about for other counsel.

* ⅜ * ⅝ * *

“I sincerely solicit your cooperation to the extent of handling the jury trial of these cases, but if you should conclude not to do so, please let me know at once so that the clients may, in turn, be advised of the situation.”

Plaintiff’s Exhibit 5 is a copy of plaintiff’s letter to defendant Laughren dated February 13, 1954, the first three paragraphs of which are as follows:

“This letter will evidence our understanding of last month, to my best recollection.

“As to all cases which came to the Miller & Landau partnership on or before June 1, 1952, and subject to the approval of the client, and the forwarding attorney where there is one:

“I will continue to handle all briefing, pleadings, appeals, and the trial of the non-jury cases. You will continue to handle the trials of jury cases. Upon a file being completed for trial, Miller & Landau will withdraw from the case and you will enter your appearance as sole counsel for the client. In those cases where the matter has been sent to us by forwarding counsel, you will enter your appearance as associate counsel with the forwarding attorney. The net fees resulting from the handling of these cases are to be divided equally between you and me.” The letter then offers to close out the firm bank account of Miller & Landau and to open a new account “in the individual names of both of us”. The letter concludes by stating that the plaintiff is “continuing to solicit the approval of clients and forwarding attorneys to this arrangement” and that he has “up to the present time secured express approval” in twenty-two cases which are listed in the letter.

On March 2, 1954, the defendant Lau-ghren wrote the plaintiff as follows:

“This will acknowledge your letter of February 13, 1954, setting out to the best of your recollection our understanding of the matter we agreed upon sometime during January, 1954.

“The statements I made to you in January, 1954, were a reiteration of the agreement we had reached in November, 1952, at the time of our first discussion of these matters after Mr. Miller’s death. At that time it was agreed that the partnership of Miller & Landau had been dissolved on June 1, 1952 and that you and I were to conclude this business with the approval of the clients on an equal fee division basis. You repeatedly told me that you had contacted all the clients or forwarding attorneys and they had agreed to this arrangement, that is, that you and I were to conclude the cases with the exception of two cases referred by your brother-in-law and one case referred by an East St. Louis lawyer who later employed you alone to handle the case.

“I don’t suppose it is necessary to call to your attention the fact that the case of Mayor v. St. Louis Public Service Company was my case and I turned it over to Mr. Miller to handle for me under an agreement whereby I would receive one-half of the fee. The remainder fee, of course, will be divided agreeable to our understanding with respect to the division of fees.'

“When you are in position to write me including the remainder of the cases, and deliver the files to me, I will proceed with the matter of disposing of the cases as we agreed upon verbally in November, 1952 and again in January, 1954:”

The referee found that in November 1952 after the death of Mr. Miller the plaintiff and the defendant Laughren had orally agreed that all cases which had come to the partnership of Miller & Landau before June 1, 1952, would be considered as firm business and that all cases which came in thereafter would be the individual business of the one to whom the client came. As to the handling of the cases and the division of fees, the referee concluded: “D. That Plaintiff and defendant Laughren also agreed that said Laughren would handle all the firm’s jury cases after same were prepared for trial by plaintiff, and that the fees would be divided equally between the plaintiff on the one hand and the defendants Laughren and Grace Miller, the widow of Louis E. Miller, on the other, and that said defendants were taking the place of the deceased, Louis E. Miller; said agreement included all the cases which were pending and the Bloemker, Looser and Lor-enzen cases which had not yet been filed.”

When the letters of December 30, 1953, February 13, 1954, and March 2, 1954, were written, the first nineteen (perhaps twenty) of the forty-one cases listed on plaintiff’s Exhibit 27 had been concluded as appears from the dates set opposite the names of the cases and the fees had been distributed in a manner consistent with the defendant’s version of the agreement and the referee’s finding as set out above. The letters indicate a purpose to continue to handle the cases on the same basis and, according to Exhibit 27, this was done in all of the cases as they were disposed of and fees received except the last three. In these, Spágnola, Walz and Semanek, the cases were disposed of but the fees were not paid over by the Alton attorneys before this litigation started.

It is unnecessary to discuss each case separately and in detail. In summary it may be said that as to eleven of the forty-one cases on his Exhibit 27, the plaintiff concedes that the fees were properly divided equally between him and the defendants and, as to those cases, he makes no claim for an adjustment or refund. As to the three cases of Spagnola, Walz and Sem-anek against the Illinois Terminal, -in which the fees aggregating $4,958.33 were paid into court by the Alton attorneys, the plaintiff claims the entire amount. As to the remaining cases, the plaintiff claims that the defendants were overpaid in that they were not entitled to share equally with him and that he is entitled to be reimbursed in the amount shown opposite the style of each case in the “deficit” column of his Exhibit 27. The plaintiff also claims $637.-32, being one-half of the amount expended by the firm in the maintenance of the library. In most cases the plaintiff distributed the fees personally. In the Mayor case the defendant Laughren was also allowed one-half of the fees as the forwarding attorney. In the Bloemker case the plaintiff deposited the fee of $3,083.33 in his personal account and then gave the defendants a check for one-half of the fee out of the firm’s account which resulted in the plaintiff receiving $2,312.50 and the defendants $770.83.

In accordance with the report and recommendations of the referee, the court found that.the plaintiff and the defendants were each entitled to one-half of the sum of $4,958.33 deposited in court, one-half of the proceeds of a $500 U. S. Treasury Bond with coupons attached belonging to the firm which had also been deposited in court, and one-half of the partnership bank account ; but that defendants were entitled to receive $770.83 from the plaintiff as their full share of the fee in the Bloemker case, and that $253.53, being one-half of the .bank account, also be deducted from plaintiff’s share of the funds on deposit and be paid to the defendants, after which the plaintiff would be entitled to withdraw and retain the entire amount in the firm’s bank account. Further, the court ordered that the plaintiff’s claim for one-half of the .proceeds of the sale of the library, books and equipment and for a refund from defendants for alleged overpayments be denied, and that the plaintiff pay the costs other than reporter fees which had been paid equally by the parties.

We agree with the conclusion of the referee and court that there was an agreement between the plaintiff and the defendant Laughren for winding up the partnership which was in substance that the defendant would do the trial work necessary to dispose of the remainder of the partnership business and in effect perform the services and take the place of Mr. Miller in the liquidation of the partnership in consideration of the defendants on behalf of themselves and the Miller estate receiving the same share of the fees that Mr. Miller would have received if he had lived. The twenty-three-page report of the referee bespeaks meticulous care in receiving and analyzing the testimony supporting the conclusions he reached. There is no need to expand on it here. We have carefully examined the transcript of more than 700 pages and approximately 65 exhibits. The record is unnecessarily long by reason of circumlocution on the part of witnesses who should know how to answer or state a thing directly. Our examination of the record and exhibits, however, convinces us that the report of the referee and his conclusions which were accepted by the trial court have overwhelming support in the evidence.

If there were any doubt or ambiguity with regard to the agreement and its terms, the conduct of the parties in handling the' cases and dividing the fees during the seven years following the death of Mr. Miller would be quite conclusive. It is well " established that in construing an ambiguous or disputed contract the interpretation the parties placed on it by their conduct is of great weight in determining what the agreement actually was. Lee v. Missouri State Life Insurance Co., 303 Mo. 492, 261 S.W. 83, 86 [3] ; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969, 973 [4]; State ex inf. McKittrick ex rel. City of Springfield v. Springfield City Water Co., 345 Mo. 6, 131 S.W.2d 525, 532 [7]; Barnes v. Boatmen’s National Bank of St. Louis, 348 Mo. 1032, 156 S.W.2d 597, 601 [5] ; Mathews v. Danahy, 26 Mo.App. 660; Zeppenfeld v. Morgan, Mo.App., 168 S.W.2d 971, 976 [13]. Where a party by his performance construes the contract in a manner that is against his interest, his actions are generally considered conclusive against him. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W .2d 833, 852 [16].

The conduct of the parties was consistent with the agreement as testified to by the defendant and found by the referee and the court. Some of the settlements of the cases, although satisfactory to the client and the defendant, were over the protest of the plaintiff. Nevertheless, after each of the cases were disposed of, except for the three fees that were paid into court, the plaintiff either distributed the net fees between him and the defendants in accordance with the arrangement testified to by defendant Laughren, or else the division made by others was with the consent of the plaintiff. In excusing his conduct, the plaintiff says that the defendant was demanding and threatening. The testimony of the plaintiff falls short of showing any coercion. It is inconceivable that demands or threats could produce in the plaintiff a uniform course of action over a period of years if it were not in accordance with the agreement of the parties.

Except the first four cases on Exhibit 27 in which the work was substantially complete before Mr. Miller’s death and the .Truer, Thorp, Crockwell and Sykes cases, .every case on the list had been docketed for trial one or more times before it was disposed of, and with these exceptions the defendant Laughren either tried the case or negotiated the settlement where they were disposed of in that manner. Four or five cases were completely tried and in some of the others juries were impaneled but the cases were settled before final submission. But the plaintiff says defendant is entitled to compensation only in cases tried to a successful conclusion; that the defendant is entitled to nothing for a settlement negotiated during or prior to trial. A contract of the sort for which plaintiff contends would not only be an unreasonable and improvident one for the trial attorney and contrary to usual experience in the handling of cases on a contingent fee basis, but would tend to create an atmosphere, if not an obligation, on the part of the trial attorney (if he is to receive any compensation) to try all cases to a jury verdict contrary to the admonition of S.Ct. Rule 4.08, V.A.M.R., that: “Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation.”

The decision we have reached as to the contract and its terms necessarily disposes of several of the questions presented by the plaintiff. In this category are the assignments that the trial court erred “in its findings of defendant’s purported charges against plaintiff” in that they were not supported by the evidence; that the court erred in holding that the plaintiff was bound to compensate the defendant “for services other than the actual trial of cases which were given to him for that purpose” because the “only offer of employment tendered to him was for actual trial of jury cases” and the defendant had no authority to negotiate settlement of cases; that the court erred in denying the plaintiff “full compensation for the proportionate part of the fees earned through his individual services after the death of his partner”; that the court erred in allowing the defendant additional compensation as the original attorney in the Mayor case, and that the court erred in making an allowance to the defendants in the Pierce and Harris cases and the cases against the Illinois Terminal except the Donahoo case. In support of these contentions the plaintiff cites us to elemental rules of law such as the one that an offer must be accepted in the terms made or it is considered rejected and no contract results. We are also cited to decisions involving partnerships and the winding up of partnerships for the practice of law as in Creason v. Deatherage, 325 Mo. 661, 30 S.W.2d 1, and Creason v. Harding, 344 Mo. 452, 128 S.W.2d 1179. We have no quarrel with any of the authorities cited, but the fact is they are not directly relevant to the issues as we find them. After the dissolution of the partnership by Mr. Miller on June 1, 1952, both of the parties were available to assist in winding up the partnership business until Mr. Miller died, at which time the plaintiff became the surviving partner and as such competent to enter into contracts for the liquidation of the partnership business consistent with the rights of the estate of his deceased partner and other persons interested. The plaintiff does not contend that the parties were legally incompetent to contract, but denies that the terms of the agreement were as the defendants claim. Therefore, the contentions of the plaintiff referred to above are excluded and denied by reason of the holding made as to the contract and its terms.

The plaintiff further charges that the court erred in denying his motion to reopen the case under S.Ct. Rule 78.01 on the ground that the defendant had made a personal attack upon plaintiff’s professional character and that the interest of justice required that plaintiff be afforded opportunity to refute such charges by the testimony of witnesses who were unavailable to plaintiff at the time of the hearings before the referee. The referee held eight hearing sessions at intervals over a period of about eighteen days, and the motion to reopen was not filed until approximately three months after the referee filed his report. Furthermore, the motion does not give the names of the witnesses nor outline the facts to which they would testify. The court did not err in overruling the motion since the granting of a motion to reopen is largely within the trial court’s discretion and it is quite clear that the trial court did not abuse its discretion in denying the plaintiff’s motion. Everett v. Clinton County, Mo., 282 S.W.2d 30, 40 [17]; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1019 [16].

After the referee’s report was filed and the case was pending in the circuit court on plaintiff’s exceptions, the plaintiff filed a motion, purporting' to be under S.Ct. Rule 60.01, for an order requiring the defendant Laughren to submit to an examination by a psychiatrist to be selected by the court “in order to enable this court to adequately evaluate the testimony of said defendant in this proceeding.” The plaintiff charges that the trial court erred in overruling the motion. This is not a case where the mental or physical condition of a •party “is in controversy” as contemplated by Rule 60.01. Kenner v. U. S., 8 Cir., 286 F.2d 208, cited by the plaintiff, obviously is not in point since it is a criminal case in which there was a motion to inquire into the mental condition of the defendant for the purpose of determining whether he had sufficient capacity to stand trial. Nevertheless, the plaintiff contends that such an examination would assist the referee in evaluating the testimony of the defendant. It was for the referee initially to determine if the alleged hostility of the defendant toward the plaintiff had a reasonable basis. Clearly a trial court cannot order a witness to submit to a psychiatric examination any more than it could order him to take a polygraph test. Certainly if the court had the power and the willingness to determine credibility by this means it should be applied to all alike. The credibility of the witnesses (parties or otherwise) was for the referee in the first instance and his ability and long experience as a circuit judge well qualified him for the task. The motion was without any reasonable foundation and was properly denied.

Two of the plaintiff’s assignments of error are related and will be treated together. They, in effect, charge that the trial court erred in ruling that the partnership of Miller & Landau was “terminated” on June 1, 1952, and in treating the terms “dissolution” and “termination” as though they were synonymous because a partnership is not “terminated” until the business of the partnership had been completely liquidated and wound up. While the word “terminated” was sometimes used during the course of the hearings and in the referee’s report, the plaintiff overlooks the fact that the referee in his conclusions of law expressly stated that the partnership was “dissolved” by Mr. Miller as of June 1, 1952. In common parlance “termination” is sometimes used to indicate a change in the status of a partnership when “dissolution” would be legally correct. There is no showing that the referee misunderstood the relevant rule of law or misapplied it. The charge of error is strained and fastidious. It is without merit and is denied.

Finally the plaintiff contends that: “Upon the basic theory of unjust enrichment, plaintiff was entitled to receive, as the surviving partner, one-half of the amount of the partnership funds which had been expended for the purchase of the law books which comprised the partnership’s library, and the trial court erred in refusing to credit plaintiff with the amount so expended out of partnership funds.” The plaintiff himself testified that the library originated with law books owned by Mr. Miller but states that $1,274.64 of partnership funds had been invested in the maintenance of the library at the time of Mr. Miller’s death. There was evidence tending to show that the partners had agreed that the firm would use the books and that any replacements or additions made out of partnership funds would become the property of Mr. Miller, thereby compensating him for the use of his library. The plaintiff himself testified that in November 1950 he stamped the firm name of Miller & Landau in the front cover of all the books in the library and that Mr. Miller upon discovering this had called the plaintiff at his home on a Sunday afternoon and complained of the plaintiff’s action; that the plaintiff told Mr. Miller that he had done so because books borrowed from the library by other lawyers had not been returned and that he felt if the firm name was inside the books the borrowers would remember where they had obtained the books and there would be a better chance of their being returned. At Mr. Miller’s insistence the plaintiff wrote and delivered a note to Mr. Miller stating that he, the plaintiff, had not intended to deprive Mr. Miller of his interest in the books and that the plaintiff was willing to paste labels over the firm name or stamp Mr. Miller’s name in the books.

In his written argument the plaintiff concedes that ownership of the library “in the sense of determining title, is not necessarily involved in this suit”; he bases his claim to half of the expenditure on the theory of unjust enrichment, citing in support of his contention the cases of Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 670 [4], 18 A.L.R.2d 1335, Minor v. Lillard, Mo., 289 S.W.2d 1, 3 [3], and Toalson v. Madison, Mo.App., 307 S.W. 2d 32, 34-35 [1,2]. This is not a proper case for the application of the doctrine of unjust enrichment. The arrangement is not an unusual one in the practice of law by partners. There was no mistake or unexpected result and the amount expended by the firm over the period of seven years prior to Mr. Miller’s death is not exorbitant or unreasonable. If the plaintiff was dissatisfied with the arrangement concerning the library he should have told Mr. Miller so in November 1950 when the matter of marking the books was being discussed. There is no evidence that he did so. The plaintiff has shown no grounds for relief; the courts cannot undertake to make a new contract for the plaintiff but must enforce the agreement as the parties made it. Monticello Bldg. Corp. v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545, 551 [10]; Blanke Bro. Realty Co. v. American Surety Co., 297 Mo. 41, 247 S.W. 797, 801 [2],

We have considered all of the appellant’s assignments of error and finding them to be without merit they are denied. The judgment is affirmed.

All of the Judges concur.


author: PER CURIAM.

text:
    Gary Eugene HALL, a Minor, by his father and next friend, Dorwin Hall, Respondent, v. Verne F. RAGER, Appellant.
    No. 48856.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      Robert L. Jackson, Kansas City, for appellant.
    James E. Lockwood, Brenner, Wimmell, Ewing & Lockwood, Kansas City, Walter B. Patterson, Fort Scott, Kan., for respondent.
   PER CURIAM.

In this action plaintiff sought to recover damages in the sum of $50,000 for personal injuries sustained in an occurrence involving the car in which he was riding and a truck operated by an employee of defendant. A trial resulted in a verdict for defendant. Thereafter, the trial court entered an order granting plaintiff a new trial upon the grounds that the court had erred in giving Instructions 7 and 9 at the request of defendant. Defendant has appealed from that order.

While defendant here contends that the said instructions were not prejudicially erroneous, his first and perhaps primary ■contention is that any error in the instructions would be immaterial because plaintiff failed to make a submissible case, and hence the trial court should have sustained his motion for a directed verdict filed at the close ■of all the evidence. In determining that contention we will view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences flowing therefrom, and disregard defendant’s ■evidence except as it may aid plaintiff. Erbes v. Union Electric Co., Mo.Sup., 353 .S.W.2d 659.

The casualty in question occurred shortly .after noon on July 18, 1957, at the intersection of two county roads located approximately six miles northeast of Fort Scott, Kansas. Plaintiff, then 5 years of age, was riding in an automobile being driven by his .grandmother, Mrs. Alta Jacquinot. The intersection involved was located a little more than a mile west of the Jacquinot farm home. Both roads were constructed of ■chat on rock. The east-west road (known as Richards Road) was 25 or 30 feet wide while the north-south road was not that wide. There were no stop signs at the intersection. Mrs. Jacquinot was driving her 1949 Chevrolet westwardly on Richards Road. John Bower was driving defendant’s ■stock truck northwardly on the intersecting ■county road. The car and truck reached the intersection at about the same time, but, as will hereinafter more fully appear, there was no actual contact between the two vehicles.

Mrs. Jacquinot testified that when her car was one quarter mile east of the intersection she saw defendant’s truck about a half mile to the south thereof; that from that point ■on her view of cars approaching from the south was obscured by corn growing in a field at the southeast corner of the intersection; that her car was going “around” 25 m. p. h. and when she arrived at the east ■edge of the intersection she saw the truck about 40 to 50 feet to the south traveling at a speed of 50 m. p. h.; that when she saw the truck “I didn’t think I had time to go across, * * * I didn’t have time to stop. If I had stopped, I would have been right in front of it. * * * I swerved to the right, and I kind of lost control of the car and I went back kind of to the west and hit the ditch on the northwest corner of the intersection and ran into a big bank there. * * * The truck went behind me as I hit the bank, going toward the north. He didn’t slow down or he didn’t stop. He went straight on to the north through the intersection just as I hit the bank.” This witness further testified that as a result of the impact she received certain injuries and that plaintiff’s head hit the dashboard and he was rendered unconscious; that the truck driver returned to the intersection and took them to the home of a neighbor who drove them to the hospital.

Defendant presented the testimony of the truck driver, John Bower, who related a much different version of the occurrence. He stated that his truck arrived at the intersection first; that as he started to cross the intersection he looked to the east and saw Mrs. Jacquinot’s car from 125 to 150 feet away and “it looked like she put the brakes on and the front end went down and started to slide sideways a little”; that he went on across and her car passed back of the truck and he could see in the rear-vision mirror that it was in the ditch. On cross-examination Mr. Bower testified that as he approached the intersection his view to the east was obscured by tall brush; that his truck was going from 40 to 45 m. p. h. and he did not apply his brakes, reduce the speed of the truck, swerve or sound his horn.

Plaintiff’s main verdict-directing instruction conjunctively submitted two assignments of negligence, i. e., (1) that the Jacquinot car entered the intersection ahead of or at the same time as defendant’s truck and that defendant’s driver failed to yield the right of way, and (2) that the truck was driven into said intersection at a speed of 45 to 50 m. p. h. and that under the circumstances detailed in said instruction such speed was negligent.

In considering the first assignment submitted it should be noted that § 8-550, General Statutes of Kansas 1949, provides as follows: “(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway, (b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, (c) The foregoing rules are modified at through highways and otherwise as hereinafter stated in this article.”

Defendant contends that plaintiff failed to make a submissible case of failure to yield the right of way because there is no substantial evidence to the effect that defendant’s truck interfered with the right of way of the Jacquinot Chevrolet. His brief recites that “there never was a collision between the two vehicles involved in this case, and, furthermore, there was no evidence that if both cars had proceeded in the same manner as testified to by Mrs. Jacquinot, that there ever would have been a collision between said vehicles. In fact, the evidence strongly indicates exactly to the contrary.” He cites cases such as Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203, 208, which state the rule that “mere violations of traffic laws are not themselves sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the violation contributed to the collision and was a proximate cause of the injury sustained.”

At the outset of our consideration of this question it should be made clear that the “mere absence of contact does not prevent an act of negligence from being the proximate cause of an injury. This general principle is applicable where a vehicle is forced off the highway, and is in accordance with the rule that he who, by his negligence,. creates a dangerous situation is liable to one who, acting as a reasonably prudent person, is injured while attempting to avoid the danger so created. * * * To be the producing or proximate cause of an accident, it is not necessary that there be actual contact between the respective automobiles; the test of whether the negligent acts of two or more persons concurred in contributing to an accident being whether the accident could have happened without the co-operation of such acts.” 4 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, § 2538, pp. 35, 36, and § 2644, p. 146. See also Tilden v. Ash, 145 Kan. 909, 67 P.2d 614, and Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557.

Defendant’s contention in regard to nonsubmissibility as to excessive speed is substantially the same as his contention in regard to failure to yield the right of way. He says the speed of defendant’s truck was not shown to be a proximate cause of the accident. He states in his brief that “regardless of what defendant’s speed was, there was no collision between the two vehicles. Furthermore, there was no substantial evidence that there was ever any danger of a collision * * *. Obviously, whatever

defendant’s speed was, the proximate cause of the accident here was Mrs. Jacquinot’s misjudgment and loss of control of her own car.”

We have concluded that plaintiff made a submissible case on both of the assignments. It is not essential to submissibility that plaintiff demonstrate to a mathematical certainty that there would have been a collision unless some action had been taken to prevent it. It is sufficient for the evi•dence to reasonably support a jury finding that because of the manner in which defendant’s truck approached the intersection Mrs. Jacquinot would reasonably have anticipated that a collision would - occur unless she took evasive action. When the front of the Jacquinot car arrived at the intersection the driver saw defendant’struck 40 feet to the south traveling at a speed of 50 m. p. h. Mrs. Jacquinot’s car was going 25 m. p. h. Had no evasive action been taken it might be that no collision would have occurred. However, a jury could reasonably have found that under the circumstances Mrs. Jacquinot could reasonably have concluded that there would be a collision unless she took emergency action in an effort to avoid it. As indicated, the evidence was sufficient to warrant the jury in finding that defendant’s negligence, in either or both of the respects submitted, was a proximate cause of plaintiff’s injuries.

In Tilden v. Ash, supra, it is said that if “appellants had not driven onto No. 10 as they did, there would have been no occasion for the Ash truck to swerve into the proper lane of an approaching car from the west. Except for appellants’ conduct the Ash truck could have proceeded westerly by remaining on its proper north side of the slab and the Tilden car could have proceeded east on the south side of the highway which it was rightfully occupying. Because the driver of the Ash truck was also guilty of negligence it does not follow appellants were free from negligence. The fact appellants’ truck did not strike the Ash truck does not relieve them of liability for the damage which their conduct, combined with the negligence of another, wrought upon an innocent third party. In Huddy’s Cyclopedia of Automobile Law, [vols.] 3, 4, it is said: ‘The negligence of a driver in forcing another traveler off the road may be the proximate cause of injuries received by the latter through a collision with an object outside of the road.’ Page 48.” 145 Kan. 916, 67 P.2d 618. In the case before us there was ample evidence to reasonably support a jury finding that had it not been for the fact that defendant’s truck approached the intersection at a high rate of speed (under the circumstances) the Jacquinot car would have remained on the road as it proceeded through the intersection and plaintiff would not have been injured.

Furthermore, in regard to the speed issue, we think it is apparent that evidence to the effect that defendant’s driver approached to within 40 feet of the intersection at a speed of 50 m. p. h., when he admittedly could not see vehicles approaching from the east, was sufficient, under all the circumstances in evidence, to reasonably support a finding that such was an excessive and negligent speed. The contention that plaintiff failed to make a submis-sible case is ruled adversely to defendant.

In its order granting plaintiff a new trial the court found that defendant’s Instruction No. 7 was erroneous because it failed to “specifically negate the existence of any negligence on the part of defendant and failed to hypothesize the specific negligence of the third person relied upon as the sole cause of the collision.” Said instruction reads as follows:

“The court instructs the jury that under the law of Kansas it was the duty of Alta Faye Jacquinot, the driver of the vehicle in which the plaintiff was riding, to drive and operate her vehicle at a reasonable and prudent speed under the conditions then and there existing, and she was under a further duty to drive and keep her vehicle under proper control. You are instructed that if you find and believe from the evidence that Alta Faye Jacquinot, as she drove in a westerly direction approaching the intersection, as mentioned in evidence, if so, was driving her vehicle at an excessive rate of speed under the circumstances then and there present, and if you find and believe that she failed to drive and operate her vehicle in such a manner as to keep same under proper control, under the circumstances then and there present, if so, and that she was thus and thereby negligent, if so, and that as a result of said negligence she caused her said vehicle to drive into the ditch on the northwest corner of the intersection, as mentioned in evidence, and that her negligence in so doing, if you find she was negligent, was the sole cause of the accident and occurrence in question, then your verdict will be for the defendant and against the plaintiff.”

We fully agree with the foregoing conclusions of the trial court. The instruction does not, in any manner, negative the existence of negligence on the part of the defendant. Also, while the instruction submits two charges of negligence on the part of Mrs. Jacquinot, it fails to hypothesize any facts which would demonstrate that her acts were the sole cause of plaintiff’s injuries. We have recently said that a defendant may “undertake to absolve himself of liability on the ground that the negligence of the plaintiff or of some third person was the sole proximate cause of plaintiff’s injuries, and he may submit this issue to the jury by what is referred to as a sole cause instruction. This latter form of an instruction, as contrasted to a converse instruction, concedes that the injuries to plaintiff resulted from the negligence of someone, and it authorizes a finding by the jury for the defendant only if it finds that the negligence of the plaintiff, or someone other than the defendant, was the sole proximate cause of the injuries, and also that defendant was not negligent, or if he was negligent that his negligence was not concurring negligence. Therefore, if the defendant undertakes to absolve himself from liability to plaintiff on the basis of sole cause negligence, he thereby assumes the burden of hypothesizing a statement of facts, supported by the evidence, from which a jury could find that not only did his negligence not contribute in causing plaintiff’s injuries, but in addition thereto that the sole proximate cause of plaintiff’s injuries was the negligence of someone other than him, and the hypothesization of facts in the instruction, or by proper reference to other instructions, must be complete in both respects.” Happy v. Blanton, Mo. Sup., 303 S.W.2d 633, 637. For the reasons heretofore indicated we hold that Instruction No. 7 was prejudicially erroneous. In addition to Happy, our conclusion is supported by the following cases : Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289, Johnson v. Cox, Mo.Sup., 262 S.W.2d 13, Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254, Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, and Counts v. Kansas City-Southern Ry. Co., Mo.Sup., 340 S.W.2d 670.

Defendant has briefed the contention that any error in failing to negative defendant’s negligence in Instruction No. 7 was cured by Instruction No. 8 which told the jury that if it found that Mrs. Jacqui-not and John Bower were both guilty of negligence which combined to cause the casualty, “then such negligence, if any, on the part of Mrs. Jacquinot constitutes no-defense whatever to this action.” We do-not agree. Instruction No. 7 purported to-be a complete submission and directed a verdict for defendant in accordance with the findings and directions therein contained. It entirely omitted an essential element of the submission. In that situation the error in question was neither waived, nor cured by the fact that the court gave Instruction No. 8 at the request of plaintiff. Hickerson v. Portner, Mo.Sup., 325 S.W.2d 783; Landau v. St. Louis Public Service Co., Mo.Sup., 322 S.W.2d 132; Stanich v.. Western Union Tel. Co., supra.

It is also contended by defendant, that it was unnecessary that the instruction contain a hypothesis of the facts relied upon as a basis for a finding that the-conduct of Mrs. Jacquinot was the sole cause of the casualty because “the driving-off of the road by Mrs. Jacquinot constituted a res ipsa, loquitur situation with respect to which defendant was entitled to submit in terms of general rather than specific negligence.” There is no merit in that contention. The res ipsa loquitur doctrine has-no application in this situation where the evidence on both sides indicated that the casualty resulted from the efforts of Mrs. Jacquinot to avoid a collision with the defendant’s truck. Moreover, defendant did' not draft the instruction in accordance with the res ipsa loquitur doctrine. It actually submitted two charges of specific-negligence. As relates to this point the defect in the instruction was its failure to-hypothesize the facts relating to those assignments. In that situation defendant is in no position to contend that the res ipsa loquitur doctrine would excuse his failure to hypothesize the facts in the instruction.

We deem it unnecessary to extend this opinion by a discussion of the contention that the court erred in giving Instruction No. 9. Prior to another trial counsel for defendant will have the opportunity to reexamine that instruction and make such corrections therein as may be considered necessary in view of the attack made thereon by plaintiff.

The order granting a new trial is affirmed and the cause is remanded.


author: COIL, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Willie Lee FINGERS, a/k/a Willie Lee Ervin, Appellant.
    No. 49161.
    Supreme Court of Missouri, Division No. 1.
    May 14, 1962.
    Deeba, Sauter & Herd, St. Louis, James B. Herd, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Special Asst. Atty. Gen., Jefferson City, for respondent.
   COIL, Commissioner.

The jury found Willie Lee Fingers guilty of robbery in the first degree by means of a dangerous and deadly weapon, and the trial court, having found that he theretofore had been convicted of a felony as charged in the amended information, sentenced him to fifteen years’ imprisonment. Fingers has appealed and contends the trial court erred in admitting a photograph and in giving instruction S.

The state’s evidence tended to show that about eight o’clock in the evening of March 11, 1961, two men, one of whom was later identified as defendant Fingers, entered a gasoline service station on Carson Road in St. Louis County and took from Max Collins, the attendant on duty, approximately $79 of his employer’s money. Collins identified Fingers as one of the robbers and testified that while defendant was clean-shaven at the trial, he wore a thin mustache and a little goatee at the time of the robbery.

Defendant denied participation in the robbery and a witness who theretofore had confessed the crime and was at trial time confined in the state penitentiary, testified that Fingers had nothing to do with the robbery in question.

A St. Louis police department detective testified that at the time he arrested him Fingers wore a mustache and a goatee and that Exhibit B was a photograph of the defendant which accurately portrayed his appearance at the 'time of his arrest on March 20, 1961.

The exhibit was admitted in evidence and defendant-here urges that the trial court thereby erred because, says defendant, the picture was irrelevant to and lacked probative value on any issue in the case. As we understand defendant’s contention, it is that because Exhibit B was taken nine days after the robbery it had no tendency to prove that defendant wore a mustache or a goatee on the date of the robbery; that when a photograph is offered to show a condition easily changed such as the presence or absence of a facial beard, it must have been taken on the date of the robbery, else it has no tendency to prove that the' accused wore a beard at the time of the robbery.

The filling station attendant testified that at the time of the robbery defendant wore a mustache and a goatee. At the time of the trial defendant wore neither a mustache nor a goatee but was .clean-shaven. The fact that defendant wore a goatee and a mustache at the time of his arrest nine days following the robbery was a relevant and probatively valuable circumstance for the jury to consider on the issue of defendant’s identity as one of the robbers. The jury reasonably could have found that Collins’ testimony that defendant, who was clean-shaven at the trial, wore a mustache and a goatee at the time of the robbery, was made more credible by the fact that defendant was wearing a mustache and a goatee nine days after the robbery. Thus, the appearance of defendant at the time the photograph was taken was pertinent to the question of the identity of defendant as one of the robbers. See 22A C.J.S. Criminal Law § 616b(l), p. 427, and 23 C.J.S. Criminal Law § 852(1), p. 347. It is true, as pointed out by defendant, that the state did not display the photograph in question to the witness Collins and obtain his testimony as to whether or not the photograph correctly portrayed the appearance of defendant at the time of the robbery. That omission, however, affected the weight of the photographic evidence and did not make the picture inadmissible in view of the fact that it had been identified by the arresting officer as an accurate portrayal of defendant’s appearance at the time of his arrest.

Defendant says the trial court erred in giving a part of instruction 5. The first portion was a usual credibility-of-witnesses instruction. The second paragraph was: “In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must reject such portion of the testimony as you believe to be false, if any, and you are at liberty to reject all other portions of such witness’ testimony.”

Defendant contends the instruction was erroneous because it “failed to advise the jury of their obligation to weigh each and every portion of such witness’ testimony and * * * failed to instruct that perjury on one issue was merely a fact which it might consider in determining the credibility of the remainder of the witness’ testimony.” This court has often discussed the propriety of instructions embodying the principle of the falsus in uno maxim. There is no contention here that the evidence did not justify the trial court’s giving an instruction on the subject. The present question relates only to the language used to express the principle of the maxim.

It is true, as defendant contends, that in State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 1053, and since, this court often has suggested that “ * * * a court has gone far eriough when it instructs the jury that if they believe a witness has wilfully sworn falsely on a material issue, they should consider that fact in determining the credibility of the rest of his testimony.” See State v. Abbott, Mo., 245 S.W.2d 876, 881; State v. Jackson, Mo., 338 S.W.2d 848, 853 [8, 9]. We have not held, however, that giving the instruction in language other than that suggested in the Willard case necessarily constitutes reversible error. On the contrary, as demonstrated by State v. Abbott, supra, this language has been held to be passable: “If you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’ testimony.” The court in the Abbott case (245 S.W.2d 881) quoted with approval what had been said concerning similar language in the prior case of State v. Barnes, Mo., 204 S.W. 264, 266:

“The legal maxim, ‘Falsus in uno, falsus in omnibus,’ is a crystallization of general experience. It is held, of course, that such an instruction is improper unless there is evidence upon which to base it. The instruction, according to the ordinary understanding, simply tells the jury that if they believe a witness has testified falsely in any material particular, in weighing the testimony of such witness that fact furnishes them a reason for disbelieving anything else the witness may have said. They are not required to reject it, but they may do so; and no jury would be likely to understand that this option would authorize them to reject it if they believed it to be true. The instruction has been given so often and the propriety of giving it is so imbedded in the rules of approved practice that no reason appears sufficiently cogent to require its rejection at this late day.”

The instruction in the present case properly required the jury to reject the portion of a witness’ testimony which they believed to be false. State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 323, and permitted the jury to reject the other portions of the witness’ testimony; but it did not, as contended by defendant, thereby imply that the jury was to reject even those parts of the witness’ testimony which they believed to be true. We repeat a portion of the quotation from the Barnes case, supra, concerning the jury’s understanding of similar language: “They are not required to rej ect it, but they may do so; and no jury would be likely to understand that this option would authorize them to reject it if they believed it to be true.” 245 S.W.2d 881.

We are of the view that the deficiencies, if any, in the language of the instruction are due to “understatement,” State v. Willard, supra, and not to misdirection, and that the trial court did not commit reversible error in giving the second paragraph of instruction 5. Trial courts may wish, however, to adopt the suggestion contained in State v. Jackson, supra, 338 S.W.2d 853, where, in speaking of falsus in uno instructions, the court said: “And even where the doctrine is properly invoked and the court, in its discretion, instructs upon it, the instruction should go no further than to advise the jury that if it believes a witness willfully has sworn falsely on a material issue, the jury should consider that fact in determining the credibility of the rest of his testimony. State v. Abbott, Mo., 245 S.W.2d 876, 881 [11].”

We have found no prejudicial error in connection with those matters which we review upon the record before us, even though defendant made no allegation of error with respect to them.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


text:
    STATE of Missouri, Respondent, v. Sylvester WASHINGTON, Appellant.
    No. 48955.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.
    Gene R. Martin, Kansas City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Thomas R. Green, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

The appellant, Sylvester Washington, has been found guilty of an assault with intent to rob and sentenced to two years’ imprisonment. Specifically, the information charges that on April 23, 1961, the appellant and Robert Edward Williams “feloniously and with malice aforethought make an assault upon one LeRoy Watkins, with a deadly and dangerous weapon, to-wit: brass knucks, then and there by force and violence to the person of the said LeRoy Watkins, by putting the said LeRoy Watkins in fear of some immediate injury to his person, with the felonious intent the said LeRoy Watkins, to rob * * It has been pointed out that it is not the common practice to employ the assault statutes, V.A.M.S. Secs. 559.180, 559.190, in instances of robberies or attempted robberies, usually such offenses have been prosecuted under the robbery statutes, V.A.M.S. Secs. 560.120, 560.135. Nevertheless, if all the elements of the offense are present, particularly malice, and there is an attempt to rob, it is permissible to employ the assault statutes. State v. Hagerman (Mo.), 244 S.W.2d 49. This information, in the language of the statute (Sec. 559.180), appropriately charges the substantive offense of an assault with malice with intent to rob. State v. Bateman, 196 Mo. 35, 36, 95 S.W. 413.

The evidence adduced by the state was that about 2:10 a. m. LeRoy Watkins and his wife Margie Bell, parked their automobile at the curb at 12th and Forest Streets in Kansas City. Margie remained in the car with the doors locked while LeRoy went across the street to a lunchstand for food. As LeRoy stood in line at the lunchstand he saw four young men cross the street and approach the automobile. They attempted to open the car doors and Margie started “blowing the car horn” to attract her husband’s attention. When she honked the horn the boys moved away but one of them returned and peered into the automobile. LeRoy walked back to the automobile inquiring, “What is the matter, fellows, what is the matter?” By that time the young men were around the automobile again and one of them said, “ ‘Let’s surround him. * * * Let’s rush him,’ ” and immediately the boys “jumped” LeRoy and began “swinging” as he went to the car door. LeRoy saw that Robert Williams had brass knucks and “so I started swinging.” He hit Williams on the chin and “he threw his hand up in the air, that is when I grabbed the knucks away from him.” In the meantime the appellant Washington jumped from the curb across the front of the automobile and “hit me in the back and felt for my (hip) pocket” in which he carried his wallet. “When he jumped over the car, two fellows standing in front of me, when he jumped over the car got behind me, I turned around and swung at him, I got hit at the same time in the chin.” It was when someone said “Let’s rush him” that Washington jumped across the car, “that is when he struck me” and grabbed for the billfold in his hip pocket,— “I just felt him when he hit my pocket. * * * All of them had taken a swing at me.” Williams with his knucks “had tried to throw some blows into me, he didn’t get to hit me.” After LeRoy grabbed the knucks he backed away towards the lunchstand to call the police, the boys separated and ran down 12th Street except that Williams followed LeRoy and asked for the return of his knucks. The police arrived almost immediately and at 12th and Lydia Streets arrested four young men, one of them Washington. It turned out that two of the four arrested had not participated in the assault (two of them got away and the appellant did not know their names). LeRoy and his wife positively identified the appellant as one of his assailants.

In these circumstances the jury could find concert of action “with a common intent” and the court did not’ err in giving the jury the conventional abstract instruction on the subject. State v. Hicks (Mo.), 167 S.W.2d 69; State v. Pease (Mo.), 133 S.W.2d 409; State v. Gillespie (Mo.), 336 S.W.2d 677. Furthermore, in these circumstances the jury could reasonably find all the elements of an assault with malice with intent to rob (State v. Cox, 250 Mo. 375, 157 S.W. 308) and instruction two appropriately submitted the hypothesis. “(T)he defendant is simply charged with an assault with intent to rob, and the instruction complained of required the jury to find that the assault was made with such intent, which is followed with a-clear explanation of what constitutes robbery, and this is manifestly all that was required and submitted to the jury, every essential element constituting the offense charged.” State v. Bateman, 196 Mo., 1. c. 40, 95 S.W., 1. c. 414.

And in this connection the court did not err in refusing to give, for the assigned reasons that they were proper “converse instructions,” instructions B and C. In effect the defendant testified that he was a mere bystander, that for some unknown or unexplained reason there was a melee or mutual combat between Watkins and two or three of their group of four and that Williams got the knucks out of his pocket and swung after being kicked by Watkins. Instruction C told the jury that if it found that Washington did not make an assault upon Watkins he should be acquitted. Instruction B told the jury that if it found that he made an assault upon Watkins but that it was not made with the intent to rob he was not guilty of an assault with intent to rob. Principal instruction two contained the exculpatory paragraph “And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Assault with the Intent to Rob with Malice Aforethought.” Thus the jury was instructed to acquit the appellant if the facts were not found to be as set forth in the principal instruction. As indicated, it was the state’s theory that the appellant in concert with two others and Williams, who was using brass knucks, made an assault upon Watkins for the purpose of robbing him. The évidence supported the charge and the hypothesis of the principal instruction and instructions B and C were not in point of fact correct converse submissions of instruction two. State v. Hicks, 353 Mo. 950, 956, 185 S.W.2d 650, 653.

The meritorious question upon this appeal is whether the court erred in failing to instruct the jury upon the lesser but included offenses of assault without malice (V.A.M.S. Sec. 559.190) or common assault. V.A.M.S. Sec. 559.220. As indicated, it is permissible, providing all the elements of the offense are present, to employ the assault with malice statute (V.A. M.S. Sec. 559.180) in instances of attempted robberies rather than the robbery statutes. V.A.M.S. Secs. 560.120, 560.135. However, difficulties and complications may arise in prosecutions under the assault statutes; in the first place these statutes provide that “Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.” V.A. M.S. Sec. 556.230. When this statute is applicable to the circumstances it is the court’s duty “Whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict * * V.A.M.S. Sec. 546.070; Sup.Ct. Rule 26.02, V.A.M.R.; State v. Fine, 324 Mo. 194, 23 S.W. 2d 7; State v. Marlin (Mo.), 177 S.W.2d 485, 1. c. 488. The differences in prosecutions under the statutes, assault with malice or robbery, is indicated by a case relied on by the state, State v. Benjamin (Mo.), 309 S.W.2d 602, which in point of fact was a prosecution under the robbery statutes. The following cases were prosecutions for assaults with malice with deadly weapons or with intent to kill, not attempts at robbery, and involved various weapons, guns, rocks, sticks and knucks, but in the circumstances the convictions were reversed for failure of the court to also instruct the jury upon the included and lesser offenses of assault without malice or common assault: State v. Fine, 324 Mo., 1. c. 199, 23 S.W.2d, 1. c. 10; State v. Shipley, 174 Mo. 512, 74 S.W. 612; State v. Fredericks & Langon, 136 Mo. 51, 37 S.W. 832; State v. Reynolds, 126 Mo. 516, 29 S.W. 594. Before instructions on the included or lesser offenses are compelled, however, there must be evidenti-ary support for such offenses. 6 C.J.S. Assault and Battery § 128(d), p. 1005; State v. Allen (Mo.), 343 S.W.2d 63; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Brown (Mo.), 245 S.W.2d 866; State v. Johnson, 326 Mo. 1030, 33 S.W.2d 912. While the annotator was probably not concerned with distinctions in prosecutions under the two types of statutes, he nevertheless states the rule: “Generally, it may be said that where, in a prosecution for robbery or assault with intent to rob, the evidence is such as would warrant a conviction of the crime charged, and there is no evidence which would warrant a conviction for assault or assault and battery, or the evidence indicates that if the defendant is guilty at all he is guilty of the higher offense, an instruction on the lesser offenses need not be given.” Annotation “Effect of failure or refusal of court, in robbery prosecution, to instruct on assault and battery,” 58 A.L.R.2d 808, 810.

The appellant Washington testified that there was a fight, circumstances which would compel an instruction on common assault (State v. Shipley, supra; State V. Fredericks & Langon, supra), but he denied that he was a party to it. He claimed that he was a mere bystander, that he did not jump on Watkins’ back, did not strike at or hit him, had no intention of robbing him and did not engage in the melee. According to him, he was not guilty of any offense. Had he admitted participation and a reason for the assault other than robbery or denied a felonious intent even though engaging in the combat, an instruction on the lesser or included offenses may have been required. 58 A.L.R.2d, 1. c. 810. Thus, upon this record, the appellant was either guilty of the supported charge of assault with malice with intent to rob or he was not guilty of any offense. State v. Brown (Mo.), 245 S.W.2d 866; State v. Henggeler, 312 Mo. 15, 278 S.W. 743 ; 58 A.L.R., 1. c. 818. In the detailed circumstances the jury could reasonably find concert of action in an assault and attempt to rob Watkins, one of his assailants employed metal or brass knucks, a “dangerous or deadly” weapon (V.A.M.S. Sec. 564.610; 94 C.J.S. Weapons § 6(c), p. 489) and for the reasons indicated the court did not err in failing to instruct the jury on the included or lesser offenses.

As stated, the appellant denied that he took part in the assault on Watkins. On cross-examination he conceded that he was with three other boys who did engage in a fight with Watkins. He claimed, however, that he did not know the names or whereabouts of two of the boys. He said that he did not know whether Williams attempted to open one of the car doors even though he admits having told a detective that he did. Also, he saw Williams with the knucks and he told the detective that Watkins knocked Williams down and took the knucks away from him. He did not give the police a signed statement but “he told them what happened.” In the course of his cross-examination the state’s attorney asked Washington this question: “Now, previously that evening Robert Williams had bragged to you about getting some money off of a white man at 12th and Troost, hadn’t he?” The court promptly sustained objection to the question and in the circumstances the mere question was not so manifestly inflammatory as to demand the granting of a new trial by this court. 24B C.J.S. Criminal Law § 1914(3), p. 16, § 1948 (2) (d), p. 350; State v. Curtis (Mo.), 325 S.W.2d 489, 494.

Questions not required to be presented in a motion for a new trial have also been examined and the transcript shows compliance with all matters necessary to be considered by this court upon the record before it. Sup.Ct.Rule 28.02. Accordingly, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.