author: HOUSER, Commissioner.

text:
    Hattie ARNOLD, Respondent, v. John H. EDELMAN and T. Lowrie Lyon, a Partnership, d/b/a Edelman-Lyon Company, Appellants.
    No. 49683.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Bane Denied Feb. 10, 1964.

      Roy F. Carter, Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for appellants.
    Albert J. Yonke, Kansas City, for respondent.
   HOUSER, Commissioner.

Action for damages for personal injuries sustained by a city employee using the revolving doors in City Hall in Kansas City. Plaintiff Hattie Arnold sued the contractors who installed the doors, John H. Edelman and T. Lowrie Lyon, a partnership, for $100,000. A jury returned a verdict for $36,000. Defendants have appealed from a judgment against them for $30,000, to which figure the verdict was reduced by re-mittitur.

Plaintiff charged negligent failure of defendants to set the panic-exit device on the revolving doors at the proper pressure to prevent collapse of the doors while being used in the normal manner.

City Hall is 30 stories high. Multi-story buildings create draft problems. They act like a chimney. Heated air rising through elevator shafts and stair wells (called “wind stack draft”) creates a pressure which tends to draw air into the building through doors and openings on the first floor. This pressure allows infiltration of cold air. Ordinary swinging doors, which are constantly being opened and closed, do not bar these drafts. Swinging doors are hard to open against such pressure, which at times amounts to 50 pounds. Revolving doors, which can be activated with from 2 to 5 pounds pressure, were designed to solve this problem. They admit persons to a building without any free passage of air, overcome the pressure and eliminate influx of cold air. Persons using a revolving door must pass through in single file. This limits the number who can pass through in a given time. In case of an emergency people will try to go through both sides of the center post and jam or bunch up, making exit impossible and creating a dangerous condition.

For safety purposes revolving doors have a built-in safety device called a panic-exit device. This is a spring-loaded ball that fits into a socket at the top and bottom of each of the four leaves, which separate the sections of the revolving door. When excess pressure is applied the ball is forced out of the socket and the leaf releases and folds into an outward position. This leaves two clear openings, one on each side of the center post, allowing a constant stream of people to make an emergency exit without having to wait to go through the revolving door one at a time. A “tensioning arrow” at the top of the doors makes it easier to force the ball out of the socket and thus fold the wings. By turning the tensioning arrow the pressure on the wings is reduced ⅜.

A panic-exit device may be set to release upon application of pressure to the outer stile of the door within a range of from 60 to 180 pounds, as governed by building regulations. An effort is made to adjust the mechanism tight enough not to collapse the doors in ordinary use by pedestrian traffic, but not so tight as to prevent their collapse in emergencies. The optimum release adjustment involves several factors which determine the pressure exerted by wind stack draft: the difference between the temperature within and without the building; the number of openings in the building; the number of elevators being operated; the number of windows open; the height of the building; its location with respect to other buildings; prevailing winds; amount of pedestrian traffic through the doors, and the exhaust and ventilating systems of the building.

Defendants entered into a contract with the city to replace the revolving doors in City Hall and construct and install new ones and related mechanisms, and to furnish all labor and materials to do all work necessary to complete the improvement according to specifications. The specifications required the wings to be held in radial position by means of a stainless steel ball engaging in the top and bottom disc of each wing, and provided that excess pressure on the wings, greater than 60 pounds and less than 180 pounds, applied on the outer stile at a point 42 inches from the floor, shall force the ball from the socket and leave the wings free to collapse, and that tension, shall be adjustable but that its maximum shall not prevent collapse of the wings. It was defendants’ responsibility under the contract with the city to examine the site-, of the work, be familiar with the specifications, the conditions affecting' the work, the amount of work to he done, and to complete the work according to specifications. Under defendants’ contract with the manufacturer, by which defendants were employed and acted as factory representatives, defendants agreed to perform necessary services in connection with the installation and servicing of the product, including the furnishing of erection crews, and to cause the doors to be delivered, assembled and installed, and the manufacturer agreed to pay defendants an agreed sum to cover such work and to pay defendants for “the reasonable servicing of such revolving doors until final acceptance thereof.”

From the evidence favorable to plaintiff the jury could have found these facts: The manufacturer ships revolving doors from the factory with a moderate setting of tension (85-90 lbs.) on the panic-exit device. The factory setting will take care of normal conditions. If the installer knows there are heavy winds and heavy stack drafts he will ■take that into account in making the setting when he installs the doors. Load and weather conditions tell the installer whether the tension is set tight enough, or whether the device needs further adjustment. Customarily the installer has to go back to the job and adjust doors after they are installed, depending upon conditions found at the job site, and subject to customers’ and building inspectors’ requests. It is the installer’s duty to go back and readjust the pressure according to conditions.

Jesse Curtis, defendants’ employee, installed these doors under defendants’ supervision. Defendants were familiar with stack draft and wind conditions around City Hall. Many times they discussed these problems with the factory expert who had a file on the building and had visited there dozens of times, and they had discussed them with the assistant engineer at City Hall. Curtis had no knowledge of these wind conditions. Defendants said nothing to Curtis about “bad” wind or “bad” stack draft conditions. . The doors came from the factory pre-set. Curtis tightened them “according to conditions.” He decided what tension the doors should be put on; he set the doors “to the strength of the doors”; he adjusted them according “to the condition of the traffic.” He did not, however, take into consideration wind stack or stack draft problems on this job. At trial he said he re-set the tension on installation but did not say at what pressure he set the doors. In his deposition Curtis testified he did not make any setting at time of installation. His employer, defendant Edelman, testified that the factory setting was not changed at time of installation. Edelman acknowledged that the final responsibility was on defendants to adjust the doors “until they are right or until the City, or whoever [they sold] them to, accepts them”; that he was familiar with the “bad” wind and stack draft conditions around City Hall which can cause doors to collapse; that defendants “used the factory setting” of 80-85 lbs., because that setting “should have been ample.” Defendants “thought they would hold satisfactorily.” Defendant Lyon testified that the doors were set to 80-85 lbs. pressure when received from the factory; that when defendants finished the installation on October 10 the doors were “set to around 85” lbs.; that this is a proper setting for average conditions. He admitted that the conditions around City Hall were not average; that stronger winds are encountered there than in other parts of the city; that he knew the winds were severe there but that defendants “relied on our factory to make the first tension setting” ; that defendants “just installed the doors” and left them set at the factory setting “until events proved otherwise,” i. e., until the doors collapsed, in which event defendants “would probably investigate it and find out why.” The installation was completed on October 9. Curtis instructed the city hall engineer how to operate the doors and make adjustments for tension and release tension. Curtis turned over the keys to the doors to the city’s engineer on October 10. The public started using the doors at once. Between October 10 and 23 defendants received two complaints from city officials that the doors had collapsed. The city was “having trouble” with the wings collapsing under wind pressure. Wind conditions were “bad.” During that period defendant Lyon and city officials discussed the trouble the city had with the old doors collapsing because of “terrific wind conditions in that area.” Defendant Lyon communicated with the sales manager of the revolving door division of the manufacturer, who knew intimately the conditions that existed at City Hall. They discussed wind and draft conditions. Responding to requests from city officials defendants sent Curtis to City Hall to make adjustments. On his visit October 21 Curtis readjusted and tightened the panic-exit device to a pressure of from 100 to 110 lbs., working on the doors for two hours. Defendant Lyon tested the doors that day and found them set at 100 to 110 lbs., “just about in the middle range of tension.”

On October 23 plaintiff, attempting to leave the City Hall, started out the north exit through the revolving doors. There was no one in the revolving door when she stepped in. She put both hands on the crossbar, chest high, and started pushing the door, gently, easily, the door moving slowly. She was walking at a natural gait, moving at a slow rate of speed. After she had gotten a foot to a foot and a half through the door (at least one step after she got in) the door suddenly stopped. Then “the other door from the back came real fast” and hit her on the top of her shoulders and buttocks and threw her head back and forward. In an instant the third door did the same thing, then the fourth door, until three leaves of the door had hit her from behind. She was not thrown to the floor but she was dazed and felt pain.

On October 24, in response to another call from the city, defendants sent Curtis to make a further adjustment. This time the panic-exit device was tightened up to the maximum of the specifications, 180 lbs. pressure, in accordance with the suggestion of the expert from the factory. After the 180-lb. setting was made there was no further trouble from the collapsing of the wings. On November 8 the city wrote the manufacturer expressing concern that the doors “would not collapse under any condition” after the last increase of tension. A factory representative made an investigation, fo\md the doors adjusted to 160-170 lbs. pressure to withstand heavy draft and wind pressure, but that they could still be collapsed under emergency conditions. He instructed defendants to increase the tension if they found the doors would collapse when the temperature dropped. He believed that the doors, adjusted to 180 lbs. maximum, would withstand most winds and temperatures encountered at City Hall. The city accepted the doors on November 21. Defendant Lyon tightened the doors further on November 30, but still within code requirements.

The sales manager of the revolving door division of the manufacturer gave testimony from which the jury could find that 180 lbs. would be the proper pressure, “the satisfactory setting,” for the city hall doors under the conditions existing in the fall of 1957. The doors are not supposed to collapse when a lady is walking through them pushing in a normal manner; they are not supposed to collapse automatically except in a panic. People are supposed to be able to walk through these doors safely without having them swing around and hit them. If the doors collapsed when people walked through them normally, under the setting made on October 21, they were not ■ set right. Assuming they collapsed on October 23 when the setting was 125 to 130 pounds, that setting would be wrong, and a setting of 180 lbs. would be better for safety. The doors “should have been adjusted to hold.” If the doors collapsed it had to be because there was more pressure applied than the doors were set for, and if not set at the proper setting for the existing conditions the doors could have collapsed. At 180 lbs. pressure it would be difficult — would take a lot of force- — to put the wings out of radial position.

Appellants’- first point is that the court erred in refusing to direct a verdict for defendants because the panic-exit device was set between 60 and 180 lbs. in accordance with the plans and specifications of the contract under which the revolving doors were installed; that the plans and specifications were not defective; and that the installation of the doors had been completed and control relinquished to the city.

Appellants seek exoneration under the rule that a contractor is entitled to rely upon the plans and specifications and is not liable for injuries due to “defects” in what he constructs unless the plans and specifications are “so apparently and obviously defective as to put a contractor of average skill and ordinary prudence on notice that the work is dangerous and likely to cause injury and that he should not attempt construction according to the plans and specifications.” 65 C.J.S. Negligence § 95, p. 613; Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1; Romano v. Rossano Const. Co., 341 Mass. 718, 171 N.E.2d 853, 855. Appellants argue that they adhered strictly to the contract, setting the panic-exit device within the 60-180 lb. range as required by the specifications, and that there is nothing to show that defendants knew or should have known that such a setting was dangerous or likely to cause harm. Appellants further argue that there was no duty on defendants to do anything with respect to the doors on October 23; that they had finished the installation, turned over the keys, instructed the city engineer how to adjust and release the tension, made an adjustment on October 21, and were no longer in control of the doors and of the panic-exit device; that the control was in the city, and many people not under defendants’ control could operate the doors and the tension-releasing arrow.

The rule relied on is inapplicable and appellants’ argument is based upon a fundamentally erroneous conception of their duty. There is nothing in the pleadings or evidence to suggest that the minimum and maximum limits of excess pressure specified in the contract were defective, improper or dangerous. On the contrary, the inescapable conclusion to be drawn from the evidence is that limits of 60 to 180 lbs. of excess pressure are the standard limits customarily prescribed. It is undisputed that, depending upon conditions existing at the time of the setting, an optimum setting at any given time could be made within these limits. The simple act of hanging a revolving door unit with a panic-exit device capable of being set to work at from 60 to 180 lbs., pre-set at the factory at 85 lbs., was not the alpha and omega of defendants’ duty. Their duty went further. In addition to installing they were required by custom, by their contract with the manufacturer, and under their contract with the city to service and adjust the tension on the panic-exit device for both normal and emergency usage, to the satisfaction of the city, under the existing conditions of wind stack draft. It is true that defendants did not have “control” of the doors in the sense of possession of or dominion over the doors, but this is immaterial. An obligation to adjust and service an installation until acceptance by the customer does not require the installer to retain possession, control or dominion over the mechanism. On the date of the accident, October 23, the .city had not accepted the work or paid the bill, and there was no acceptance until November 21. (We do not mean to imply that if the city had accepted, defendants would thereafter be absolved of all claims arising out of negligent installation.) At the time of the accident defendants were under a contractual duty to the city and to the manufacturer, and under a common-law duty to the general public using the revolving doors to exercise ordinary care, to make the adjustments of the panic-exit device reasonably calculated to protect the public from harm in the normal use of the doors.

Appellants’ second point is that the court erred in refusing to give Instructions Nos. 4-A and 4 — B for the reason that they incorporate appellants’ theory of defense; that refusal of Nos. 4-A and 4-B necessitated the use of Instruction No. 5, which placed a heavy burden on defendants and ■denied them the right to rely upon the plans and specifications.

Refused Instruction No. 4-A follows:

“The Court instructs the jury that if you find that the revolving door mentioned in ■evidence was installed by the defendants and the keys to the door were turned over to a representative of the City of Kansas City, Missouri, after instructions had been ■given to a representative of the said City as to the operation of the door, and if you further find that the said City commenced to and did permit the public and employees of the City to use the door, and if you find that the door was installed according to the specifications of the City of Kansas City, Missouri, then your verdict shall be for the ■defendants even though you find and believe the plaintiff was injured.”

Given Instruction No. 5 was identical, except for the addition in No. 5 of the words, “and in so doing the defendants exercised ordinary care and were not negligent,” immediately preceding the direction of a ver■dict.

Refused Instruction No. 4 — A did not submit facts constituting a defense under the facts in evidence. It omits an essential element; the duty to exercise ordinary care to adjust the mechanism after installation. It relates to the performance ■of a part only of defendants’ duties under their contract with the city, does not take into consideration defendants’ duty to the •public, and does not negative negligence resulting in harm to plaintiff.

Refused Instruction No. 4 — B follows :

“The Court instructs the jury that if you find and believe from the evidence that the •defendants contracted with the City of Kansas City, Missouri, to install the revolving door referred to in evidence according to specifications furnished by the said Kansas City, Missouri, and if you find said door was installed according to the specifications, then your verdict shall be for the defendants.”

4 — B adds nothing to 4 — A. It submits the undisputed fact that the contract and specifications existed, and resubmits the third finding of 4 — A. It was not error to refuse 4 — B for the same reasons that it was not error to refuse 4 — A. In refusing 4-A and 4-B the court correctly ruled. For all practical purposes they directed a verdict for defendants.

Appellants’ third point is that the court erred in giving plaintiff’s main verdict-directing Instruction No. 1:

“The Court instructs the jury that if you find and believe from all the evidence in this case that defendants, John Edelman and T. Lowrie Lyon, doing business as Edelman-Lyon Company, installed the revolving doors at the north entrance to the City Hall at or during the times mentioned in evidence and if you further find that the said doors had not been accepted by the City on or before October 23, 1957, if so, and if you further find that the defendants had not set the panic exit device on said dooi's to a holding power of 180 pounds at or prior to October 23, 1957, if so, and if you further find that the defendants knew or should have known that said doors were likely to collapse and injure persons using said door, if so, under all the circumstances and conditions existing at and around said entranceway, if said panic exit device was not set at the pressure of 180 pounds, if so, and if you further find that the plaintiff was an employee of the City of Kansas City, Missouri, on October 23, 1957, and on said date was walking through said north revolving door in a normal manner, if so, and if you further find that as she was walking through said revolving door said door collapsed and struck her, if- so, and if you further find that said doors collapsed because the panic exit device was not set at 180 pounds pressure, if so, and if you further find that defendants were negligent in so failing to set said panic exit device at 180 pounds' pressure, if so, and if you further find that as a direct and proximate result of said negligence,-plaintiff was injured, if so, then your verdict must be for plaintiff and- against the defendants.”

Appellants complain that No. 1 ignores the fact that the doors were set in accordance with the specifications. This is true but immaterial. Compliance by defendants with the specifications of the contract was not an essential element of plaintiff’s case, which was based on negligent failure to set the panic-exit device at a pressure sufficient to prevent collapse of the doors.

Appellants say that No. 1 assumes that the doors would collapse if not set to 180 lbs., but we do not agree. The language does not make that assumption but requires the jury to find from the evidence not only defendants’ knowledge, actual or constructive, of the likelihood of collapse if the device was-not set at 180 lbs. pressure, but also the fact that doors did collapse because the device was not set at that pressure.

Appellants urge that No. 1 does not specify and hypothesize the “circumstances and conditions existing at and around the entranceway,” and therefore gives the jury a roving commission to find for plaintiff if the doors collapsed from causes not connected with defendants’ responsibility. The circumstances and conditions there existing included the setting of the panic-exit device and the tensioning arrows, the amount of pressure exerted by the wind and by plaintiff, the sudden stopping of the doors, the nonexistence of other traffic in the doors, temperature, etc. There was no evidence that the doors or tensioning arrows were tampered with. The only evidence on this was that the arrows were always in proper place. There was no quarrel or dispute as to what circumstances and conditions were relevant factors or what'they actually were at the time, hence there was no error in using the general language quoted above.

Appellants contend that No. 1 places an absolute duty upon defendants to set-the door at 180 lbs. pressure; that this ignores the duty of defendants to the public as a whole to make the doors collapsible so as to allow ready egress in case of a panic. In support appellants cite Trautloff v. Dannen Mills, Inc., Mo.App., 316 S.W.2d 866, condemning an instruction that defendant was “bound to keep its premises * * * in a reasonably safe condition for the use,”' etc. No. 1 does not use this language or employ this approach. It does not charge that there is an absolute duty on defendants to set the device at 180 lbs. It submits for the consideration of the jury the questions whether the defendants knew or should have known of the likelihood of collapse if not set at 180; whether the doors collapsed because not set at 180, and whether defendants were negligent in not setting it at 180. There was evidence that the doors collapsed before October 21 on a low setting; that they collapsed again on October 21 with a - somewhat higher setting but less than 180; that after the doors were set at 180 they did not collapse, and that 180 was the proper and satisfactory setting. No. 1 does not ignore defendants’ duty to the-public under panic conditions. While the figure 180 is the maximum figure under the-specifications, it is yet within the range of permissible adjustment for panic conditions.

Appellants maintain that there was no duty to plaintiff unless defendants had control and that No. 1 assumes but does not require a finding that defendants were still 'in control of the doors at the time of the casualty, citing Tucker v. Taksel, Mo.App., 345 S.W.2d 385, for the proposition that an instruction omitting a requirement of a finding of control is erroneous. That was a landlord and tenant case in which liability-depended upon whether defendant retained control of the premises for the purpose of making repairs. “Control” was used there in the sense of possession or dominion, a type of control not involved here. We are dealing with the performance of the duty of an installing contractor to return to the premises after original installation, and after the facility is placed in use by the public, for the purpose of servicing and making adjustments in the mechanism, adjustments required to be made until final approval and acceptance by the customer. In such case it would be inappropriate to require a finding that defendants had “control” over the doors. The requirement of a finding that the doors were installed by defendants and had not been accepted by the city was enough, without requiring a finding of control.

Appellants comment on the failure of No. 1 to submit performance by defendants of a function so inherently dangerous that they should not have undertaken it. No such submission was required. Plaintiff’s case was not based on any theory of inherent danger.

Appellant’s fourth point is that the court erred in its ruling on plaintiff’s objection to the following portion of defendants’ closing argument to the jury:

“They complain about the setting on this panic exit device, but who set it? It was set by the International Steel Company. As I told you, these gentlemen don’t have the equipment or the engineering experience to figure out all these things. They have got that back at International Steel Company, and they have a fellow on it back there, and they set this with the idea in mind of the conditions that were there at the City Hall. If anybody is responsible, International Steel would be responsible, and they aren’t here. International Steel would be responsible, and if she doesn’t recover in this case she can sue—
“Mr. Yonke: (interrupting) “That is an improper statement of the law, and it is no defense by these defendants, anyway.
“The Court: No, sustained.”

We find no error in the ruling. Defendants’ argument that the manufacturer, and inferentially only the manufacturer, was liable to plaintiff because the manufacturer, through its experts, set the panic device with the conditions at City Hall in mind, ignores the indisputable facts. It fails to recognize that before shipping the doors from the factory the manufacturer adjusted the panic-exit device to a moderate tension within the minimum and maximum limits, not as a final adjustment but as an average setting within the limits prescribed in the specifications, and that it was the duty of the installing contractors to make the more precise and final adjustments required to suit the customer and building inspector, and protect pedestrian traffic in normal operating conditions and public safety in emergency conditions. Under the evidence the argument was not based upon the essential facts and exceeded the wide range and latitude ordinarily afforded counsel in argument.

Appellants’ fifth point is that the court erred in its ruling on objections to portions of plaintiff’s counsel’s argument in which, discussing the value of pain, he was permitted to argue that “When you hear someone died, you always say you hope they were fortunate enough that they didn’t have much' pain, or that they died quickly” and “Pain is such a terrible thing that society invents ways to execute people so they don’t have pain.” Defendants objected that the latter argument is contrary to law, prejudicial, argumentative and outside the issues of the case, and calculated to arouse the sympathy, passion and prejudices of the jury. We have read the cases cited by appellants but find them different and distinguishable. Although the quoted arguments are extreme and not recommended we do not consider them so far outside the bounds of propriety in portraying human and social aversion to pain, as a consideration for the jury in determining the monetary worth and value of pain, as to require judicial intervention in this case.

Appellant’s sixth and last point is that the verdict is excessive. With slight modification we adopt plaintiff’s statement of her injuries and damages.

Plaintiff, 45 years of age, married, with two children, was employed by the city as a clerk at a salary of $220 a month. Immediately following the accident she felt pain in her right knee, right pelvis, left forehead and the back of her head and neck. She was dazed for a second. After 15 minutes or more she walked to a bus stop and caught the bus home. She returned to work the next morning and the second morning. She began seeing double and went to General Hospital. A doctor advised her to see her own physician. She called Dr. Sinclair, who gave her some pills for the pain she was suffering about the back, neck, forehead, left arm and shoulder, and told her to see another doctor. She went to Dr. Pipkin, who took X-rays. He suggested surgery but she did not take his advice. She consulted Dr. Pearl, who sent her to St. Joseph’s Hospital a half day for about three weeks for physiotherapy and traction treatment. This gave her temporary relief. Thereafter she consulted Drs. Pucci, Cooper and Feierabend. She began wearing a neck brace; was confined to St. Joseph’s Hospital for 13 days in bed traction with a piece of harness under the chin that came up over the head, attached to weights. The doctor fitted up a device so that she could take traction treatments in her home. She was using this device at the time of the trial four and a half years later, every day from two to three hours a day. It helped relieve the pressure and tension. She went to St. Joseph’s Hospital for three days for a myelogram, which showed that on the right side between the sixth and seventh cervical vertebra the nerve root appeared to occupy a considerably larger space than on the left side. This was also true to a slightly lesser degree at the inter-space between C-5 and C-6. Impression: “Rather minimal defect in the cervical area on the right side between C-6 and C-7 * * * questionable slight irregularity of the interspace above on the same side.” After the accident she worked on a part-time basis, half days, until December 26, 1957. She has tried to work at other places but has been unable to do so because of pain and headaches. Dr. Feierabend prescribed a traction and a neck brace like the one she had been using. She wore a collar up to 10 months before the trial (some three and one half years). She wore it when she was out of bed and not using traction. She stopped wearing the collar because it was chafing her skin and causing her more pain. She is able to do light housework but when she tries to iron or sweep or peel vegetables the pain comes back worse into the back of the neck and down into the thumbs. She has a dull aching pain in her head all of the time, and in her neck when she tries to look down. The pain extends down through the arms and into the left hand. The fingers are numb and the thumb has pain.

Before her accident plaintiff was in good health. She worked a great deal in a flower and vegetable garden; did all her own housework; was active in church affairs. Since her accident her husband and children have done most of the housework and laundry. She does not work in the garden anymore.

Dr. Cooper testified he found some limitation of the movement of the neck in all directions. On the left there was a C-7 nerve root hypalgesia (diminution in sensation). The C-7 is the nerve root which arises just at the top of the seventh cervical vertebra, which is the lowest vertebra in the neck. The loss of sensation was sustained within the C-7 nerve root distribution. There was some disfunction of the seventh cervical nerves. This all leads up to a cervical in-tervertebral disc syndrome; the same as a herniated disc, a protruded disc in the cervical area. She has suffered a disability of around 30 percent; she has a herniated intervertebral disc. Her clinical symptoms are consistent with that and her condition is permanent. There are two courses of treatment. The conservative, which entails limitation of activities, and surgery. The type of operation necessary for this kind of a case would cause stiffness and loss of motion. He could not guarantee the relief of Mrs. Arnold’s symptoms if she underwent surgery.

Dr. Pucci found the following positive conditions: Limitation of neck motion in all directions, especially on turning the head to the left and upon turning or bending the head forward and backward. Tenderness overlying the cervical spine at the level of the fifth and sixth cervical vertebrae; tenderness of the muscles at the back of the neck, especially on the left, tenderness in the left trapezius muscle, and weakness of the left biceps muscle and triceps muscle, which has decreased as compared with the right; loss of sensation in the area supplied by the sixth cervical root on the left; signs of irritation or compression of the sixth cervical root on the left and probably some injury to the brachial plexus on that side. His final diagnosis was a herniated disc between C-6 and C-7 on the left. He put her in a collar and recommended cervical traction and physiotherapy. He saw her again on April 11, 1962. Her complaints and his findings were essentially the same as they had been on all previous examinations. She had some numbness on the left side of the face, a difference of sensation in the left arm as compared with' the right. She had some hyperactivity in the deep tendons reflexes at the knee and elbow, which she had had more or less throughout all previous examinations. His diagnosis remains that of irritation of the sixth cervical root on the left, a neuralgia or persistent pain syndrome involving the brachial plexus on the left, and the possibility of a ruptured disc. In his opinion she will always have discomfort and probably would not be able to hold a job. He thought that an attempt at surgical therapy was justified. Other than surgery there is no treatment he could recommend except traction, physical therapy, muscle relaxation and drugs. In his opinion her condition is permanent. He estimates her disability at about SO percent of the body as a whole. Her biggest defect was between C-6 and C-7 where the seventh cervical root comes out, but there is also a defect at C-5 and C-6, where the sixth cervical root comes out. She has a persistent neuralgia involving the nerve roots, i. e., the brachial plexus. This would be worse than having a disc. Referring to a report he had previously made he testified “This report says her C-6 nerve root seemed to be better, but on the other hand she was not only having trouble with C-6 but also with C-7; and in addition to that it was the first time I noticed marked hyperactivity of the ankle, * * * I thought the signs not present before were present now. This means that she has more of a neurological deficit in January than on previous occasions.” There is likelihood of her having a disc. He explained the term “nucleus pul-pous.” If a disc protrudes, it may protrude to the side. It can also protrude backwards and press on the spinal cord, so what he was saying, in effect, was that the disc was not only bulging to the left but also bulging backwards against the spinal cord, which was more serious than just having the C-6 involved.

Dr. Feierabend testified that the neck had limitation of rotary movements to the right and left. Referring to the myelogram report he testified this shows an area where there is a break in the column at this level which he would say is suggestive of pressure at this level, which would mean a protruded disc. He could not say it is absolutely certain, but it certainly is suggestive. It may be that she needs surgery. He examined her again on March 20, 1962. He found that she had neck limitation of motion in all directions. She complained of pain in all these motions and their extremes. The left biceps is diminished. There is an inequality of reflexes and that is important. He found a sensory deficit on the left upper extremity that did not fit any particular pattern. The left hand is ¼. inch smaller than the right, indicating some atrophy, caused by interference of the nerve supply to the muscles of the hand. Regarding permanency of these injuries he testified, “Yes, it is permanent if they don’t do something for her. I think she will have to have some surgery and even then they are not as good as new. There will be some permanency even after the surgery.” By permanent he meant for the rest of her life.

From the date of her injury in October, 1957 to the time of her trial, April, 1962 plaintiff had lost four and one-half years’ wages at $220.00 a month, or $10,880.00. She had intended to continue working. Her life expectancy was 26.0 years. Assuming that she would have worked for only seven years of that period, she would have earned approximately $18,000 in wages. This would represent a total loss of earnings of nearly $29,000.

The question is whether $30,000 is an excessive award, after reduction from $36,000 by the remittitur ordered below. Numerous cases have been cited to assist us in determining this question. In trying to fit this case into the general pattern of awards for similar injuries under the rule of uniformity of judgments we have closely compared Hattie Arnold’s case with these and other cases. We have considered her age and life expectancy, the nature, extent, seriousness and disabling characteristics of her injuries in the light most favorable to her. We have weighed the pain and suffering, the treatments she received, the hospital confinement, the experience of the myelogram, the necessary use of appliances and devices, the restriction of her physical activities, the loss of earnings she has sustained, the possibility of future surgery and its prospective result. We have considered the value of the dollar at the time this verdict was rendered, and the fact that an able and experienced trial judge, who saw and heard plaintiff and the medical witnesses testify, reduced the verdict by $6,000 in the exercise of his judgment on the matter of the proper amount to be awarded. Everything considered no further remittitur should be required.

Judgment affirmed.

COIL and WELBORN, CC, concur.

PER CURIAM.

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

All of the Judges concur.

      . Appellants’ citations: Brown v. Payne, Mo.Sup., 264 S.W.2d 341; Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69; Schaefer v. Trans-American Freight Lines, Inc., Mo.Sup., 173 S.W.2d 20; Arno v. St. Louis Public Service Co., 356 Mo. 584, 202 S.W.2d 787; Enyart v. Santa Fe Trail Transp. Co., Mo.Sup., 241 S.W.2d 268; Lange v. St. Louis Public Service Co., Mo.Sup., 233 S.W.2d 641; Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 230 S.W.2d 856; Baker v. Kansas City Terminal Ry. Co., Mo.Sup., 250 S.W.2d 999; McCaffrey v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361; Miller v. Multiplex Faucet Co., Mo.Sup., 315 S.W.2d 224. Respondent’s citations: Donahoo v. Illinois Terminal R. Co., Mo.Sup., 300 S.W.2d 461; Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 969; Easterly v. American Institute of Steel Construction, 349 Mo. 604, 162 S.W.2d 825; Kelly v. Kansas City Public Service Co., Mo.Sup., 335 S.W.2d 159; Hillis v. Home Owners’ Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Chambers v. Mo. Pac. R. Co., Mo.Sup., 356 S.W.2d 64.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles GRATTEN, Jr., Appellant.
    No. 50137.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.
    Jack J. Isgur, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Sp. Asst. Atty. Gen., St. Joseph, for respondent.
   BARRETT, Commissioner.

Charles Gratten, Jr., better known to his numerous jailhouse witnesses (nine) as “Lawyer Gratten,” has been found guilty of robbery in the first degree and sentenced to ten years’ imprisonment.

Gratten did not testify; however, his partially supported defense was an alibi, that at the hour of the robbery on Cypress Street, 9:15 a. m., he was getting a haircut “and shot a little craps” in the poolhall at 12th and Garfield. Nevertheless, this in summary was the evidence adduced by the state: On January 7, 1963, Mr. and Mrs. Thompson were alone in their neighborhood grocery store at 1715 Cypress Street, Kansas City. Mr. Thompson was at the produce stand and Mrs. Thompson at the checkout counter when, about 9:15 a. m., Mr. Thompson turned around and there was a young girl with “a knife on me” and a man with “a gun on my wife.” The knife “looked like a good-sized pocket knife” and the girl, eighteen inches to two feet away, had the knife pointed at Thompson’s stomach and, he said, “I began to get afraid right quick. * * * I didn’t want to get stuck with a knife, and, at the same time, I didn’t want anything to happen to my wife.” Mrs. Thompson said that she was counting money at the check-out counter when a man approached and said, “This is a stick up. * * * If you keep your mouth shut and do as I tell you, you will not get hurt.” Neither she nor Mr. Thompson knew what kind of a gun the man had, whether it was an automatic pistol or a revolver, but, she said, “It was a one-barreled pistol, and it was a shiny gun” and “He had a gun on me, yes, sir.”

The man took the money she was counting, $206, said, “Give me that” and at the same time ordered her to turn around and open the cash register from which he took $142 in bills. The man and the girl went out the front door, entered a 1955 Mercury convertible parked at the curb on 18th Street, backed down the hill to Edmond Street and drove away. Mr. Thompson called the police and gave them a description of the automobile and the robbers. The next two or three nights the Thompsons looked at a large number, several hundred, of police photographs of Negro men but were unable to identify any of them as their assailant. Then on February 12 the police came to the store with a photograph of Grat-ten and without hesitation both Mr. and Mrs. Thompson said, “That is him.” Subsequently at a preliminary hearing and upon the trial the Thompsons positively identified the appellant as the robber.

In addition to the Thompsons, Jacqueline Harris, age 15, testified that as she left her boy friend’s room at 2844 Tracy at one or two o’clock in the morning she, for the first time, met the defendant (known to her only as “Skillet”) as he sat with a girl in his car parked at the curbing. And, she said, “He started talking to me about places to look at that he could hold up, and we rode around, looking at filling stations to see if anybody was guarding them” and finally the other girl “fingered” the grocery store, and Jacqueline and Gratten, in the manner described by the Thompsons, with knife and gun held them up, drove away, abandoned the automobile on Norton, and “we divided the money, and he said we was going to split up, so I called a cab.”

These briefly narrated circumstances, needless to say, support the jury’s finding of Gratten’s guilt. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113. There was no direct proof that the gun was loaded. But, despite the allegation in the information and the hypothesis of instruction 2 of “a dangerous and deadly weapon, to wit; a pistol, loaded with gunpowder and leaden balls,” there was no “countervailing testimony on the point, the jury was authorized to find that the revolver (s) or automatic pistol(s) used in the robbery were (was) what the robbers intended their victims to believe they (it) were (was), to wit, (a) dangerous and deadly weapon (s) and that their lives would be imperiled if they resisted the robbers who were armed there"with.” State v. Kowertz, 324 Mo. l. c. 754, 25 S.W.2d l. c. 115; State v. Martin, (Mo.) 346 S.W.2d 71, 72-73. In general, instruction 2 in hypothesizing robbery in the first degree is an adaptation of the language of the statutes (V.A.M.S. §§ 560.120, 560.135) and includes all the elements of the offense (State v. Politte, (Mo.) 249 S.W.2d 366) including the essential of “fear” which •of course was a reasonable inference from the circumstances. State v. Ball, (Mo.) 339 S.W.2d 783, 91 A.L.R.2d 1042; State v. Parker, (Mo.) 324 S.W.2d 717; State v. Moore, (Mo.) 80 S.W.2d 128. The testimony of the Thompsons was sufficient to warrant and support the appellant’s conviction and, therefore, he was not as a matter of fact found guilty upon the uncorroborated testimony of his accomplice, Jacqueline. State v. Brim, (Mo.) 339 S.W.2d 775. Jacqueline’s credibility as a witness was collateral to the main issue, there was no offer or request for a cautionary instruction as to her credibility and the court did not err in failing to specifically instruct the jury on this and related collateral subjects. State v. Mahan, (Mo.) 226 S.W.2d 593. Compare State v. Clark, 221 Mo.App. 893, 288 S.W. 77.

In connection with the witnesses and proof in general it is urged that the court erred in admitting in evidence “exhibit 1,” Jacqueline’s certified birth certificate. On cross-examination and otherwise the defendant sought to establish that Jacqueline was born in 1944 rather than in 1947 and, therefore, for the purposes of the criminal law, was subject to all the disabilities of majority and an accounting, as the appellant argues, “for lack of her prosecution” as an adult. But Jacqueline’s majority or minority was likewise collateral to the main case and its essential problems. And while her certified birth certificate may not have been conclusive as to her paternity, it was nevertheless admissible and was prima facie evidence of the date of Jacqueline’s birth and hence of her age. V.A.M.S. § 193.170; State v. Shelby, 333 Mo. 610, 62 S.W.2d 721; State v. Spinks, 344 Mo. 105, 125 S.W.2d 60.

Partially in this latter connection it is urged that the court abused its discretion in “admitting evidence in rebuttal which was improper, cumulative, prejudicial and a proper part of the state’s case in chief.” Jacqueline’s mother was called in rebuttal and in connection with her testimony as to Jacqueline’s age had the birth certificate. Aside from Jacqueline’s mother — the other rebuttal witness was Detective King who testified that the “pickup (order) for Charles Gratten was issued at 9:15 a. m., January 16, 1963.” The reason for this particular rebuttal testimony was that an attorney friend of Gratten’s (corroborated by police officials connected with the incident) testified that on a certain date in January (prior to his arrest) Gratten and the attorney’s handyman came to his office and said there was a rumor that the police were looking for him. They all went to police headquarters and inquired of the chief of detectives, with an offer “to turn him in,” whether the police were looking for Gratten and, according to the attorney, “they didn’t seem to have anything on him.” It is not necessary to consider whether the rebuttal testimony, particularly that of Detective King, was relevant and properly admissible (People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79, 83), it is not manifest that it improperly infringed the appellant’s right to a fair trial and even though cumulative if one witness, or collateral if the other rebuttal witness, there was no demonstrable abuse of discretion in the court’s permitting it. State v. Dees, (Mo.) 276 S.W.2d 201; State v. Smith, (Mo.) 261 S.W.2d 50.

Other matters assigned as error by appellant’s industrious court-appointed counsel relate to the conduct of the prosecuting attorney in making certain “comments” in the course of the trial, his interrogation of certain defense witnesses on cross-examination and finally to portions of his argument to the jury. The “comment” was a reference on voir dire to a police officer whose name had not been endorsed on the information. But, upon objection, the prosecutor said, “O. K. I will strike him off.” There was no other or further reference to this particular officer and of course in this incident no obvious prejudice to the appellant’s right to a fair trial. The “interrogation” came about in that Gratten called certain custodial officers and nine inmates of the county jail to prove that on the day of his preliminary hearing he had applied soot, lipstick, chewing gum and other contrived theatrical makeup and had in this manner made his complexion “much darker,” had added a “false mole” or two, employed “some type of mouthpiece” and otherwise disguised his features until, as one witness said, “I didn’t recognize him when I first looked at him.” The inference, presumably, the appellant would have drawn from this testimony was that with this clever disguise the Thompsons could not possibly have identified him. Of course it was immediately established that these nine witnesses were then all “residents” of the county jail, and obviously were there for some reason, either serving sentences or awaiting trial on some criminal charge. And these particular witnesses had prior convictions of one kind or another, and while they were “competent witnesses,” unfortunately for the appellant, their prior convictions “may be proved to affect (their) credibility.” V.A.M.S. § 491.050; State v. Hood, (Mo.) 313 S.W.2d 661, 663-664.

In part the prosecuting attorney’s argument was a plea for law enforcement and the prevention of crime, and in part it was retaliatory and it does not plainly appear that the retaliatory phase of the argument was so manifestly inflammatory as to outweigh the right to reply. State v. Fuller, (Mo.) 302 S.W.2d 906; State v. Rhoden, (Mo.) 243 S.W.2d 75. In so far as the so-called “cumulative effect” of all these complaints is relied on it may only be said in conclusion that there was not present in this case the repeated inflammatory appeals to passion, or conduct manifestly prejudicial, demanding the granting of a new trial irrespective of proper objections and the trial court’s ruling as illustrated by State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, and State v. Webb, 254 Mo. 414, 162 S.W. 622.

As indicated the briefed assignments of error are without merit and there is no> error as to these matters upon the record before the court (Sup.Ct. Rule 28.02) and therefore the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Alvin ROSS, Appellant.
    No. 50008.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.

      Alvin Ross, pro se.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Edward A. Glenn, Sp. Asst. Atty. Gen., Louisiana, Mo., for respondent.
   PRITCHARD, Commissioner.

Defendant was convicted by a jury of the offense of operating a motor vehicle without the permission of the owner thereof. Sections 560.175 and 560.180. (All statutory references herein mentioned are to RSMo 1959, V.A.M.S.) Defendant was also alleged to have had previous convictions of eleven different felonies, a finding thereof having been made by the court outside of the hearing of the jury, and after the verdict of the jury, of which defendant was informed, and allocution was had, a sentence of four years’ imprisonment in the State Penitentiary was pronounced upon defendant by the court in accordance with the Habitual Criminal Act. Section 556.280. Defendant was given credit for his jail time spent prior to sentence.

Defendant is acting as his own counsel on this appeal. While he had counsel (the Public Defender) appointed by the court for him during the trial, the after-trial motion, which was overruled, was prepared and timely filed by defendant acting in his own behalf.

The brief filed by defendant pro se here is wholly insufficient under Supreme Court Rule 83.05(e), V.A.M.R., which provides:

“The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.”

Defendant’s entire brief deals very abstractly with what he says constitutes an improper oral comment by the court on the instructions and evidence and the giving of oral instructions to the jury on the law of the case. However, from our search of the transcript we find that none of these things occurred. The instructions were in writing, Supreme Court Rules 26.02(6), 26.09, V.A. M.R., and these writings were properly read to the jury by the court at the close of the evidence and prior to argument by counsel. It may be that this reading of the instructions led to defendant’s claim in his brief. If so, the contention is without merit.

In the case of State v. Russell, Mo., 324 S.W.2d 727, loc. cit. 729 [1], a case involving alleged procedural errors similar to those claimed by defendant, the court said:

“Following the overruling of his (defendant’s) motion for new trial and sentence, he has appealed. He was represented in the trial court by court appointed counsel. In this court, however, he has filed a brief pro se which, although revealing an extensive acquaintanceship with criminal procedure, pays little heed to the valid assignments in his motion for new trial. See S.Ct. Rule 27.2Q, 42 V.A.M.S. We shall review the valid assignments in the motion for new trial and make use of the brief to the fullest extent possible. S.Ct.Rule 28.02.” -

See also State v. Pilkinton, Mo.App., 310 S.W.2d 304, 306 [1], and State v. Mace, Mo., 295 S.W.2d 99, 101.

We shall in this case review defendant’s properly raised assignments of error in his motion for new trial.

None of defendant’s assignments of error in his motion for new trial preserves anything for appellate review except assignment No. 2. That is to the effect that the attorney, Jack Carr (Koehr), appointed by the court on the 13th day of December, 1962, to represent the defendant, was denied his motion for a continuance to give the defense attorney a reasonable time to prepare a defense on behalf of defendant.

An examination of the transcript shows that the matter arose as follows: On December 13, 1962, the day of the trial, Mr. James A. Bell appeared as counsel for defendant. He stated to the court, outside the hearing of the jury and in chambers, that the defendant had requested that counsel be waived, that he would like to handle his own case, that he did not want this particular counsel, and that counsel (because of difficulties with defendant’s conduct during the impanelling of the jury) had developed the same attitude toward defendant. Counsel then requested to be relieved of the responsibility of defending the defendant.

It further developed that upon being appointed as defendant’s counsel (defendant was arraigned and counsel appointed on October 24, 1962), defendant was visited by counsel in the county jail on one occasion only, at which time defendant would not cooperate and did not give counsel the names of two witnesses whom defendant said, on the day of trial, he wanted subpoenaed. Counsel did not see defendant thereafter until the day of trial, and the record is silent as to whether anything' was reported in the interim to the court of this situation. Defendant remained in jail all of this time. Defendant told the court on the trial date that he did not want Mr. Bell as his counsel, that he wanted a jury trial and another attorney, but that he had no money. The court then relieved Mr. Bell of the appointment, and immediately summoned and appointed Mr. Jack Koehr, Public Defender, to represent defendant, after which the court was in recess from 12:10 P.M. to 2:00 P.M.

Mr. Koehr then made an oral request for a continuance in this matter upon the ground that the defendant did not feel that he had an adequate time with his counsel to prepare a defense in this matter. Defendant himself stated to the court he needed time to prepare the defense, to try to locate a witness (one who was with him when he was arrested, and defendant mentioned he also wanted as a witness the warden of the workhouse). The court advised defendant that the processes of the court would be available to him in the subpoena of witnesses. After further colloquy involving the court, counsel and the defendant, the request for continuance was denied and the trial proceeded. The state rested its case, and defendant offered no evidence in his own behalf.

Supreme Court Rule 29.01, V.A.M.R. (as effective at the times herein mentioned), provides:

“ * * * If the defendant so requests, and if it appears that the defendant is unable to employ counsel, it shall be the duty of the court to appoint counsel to represent him. * * * Counsel so appointed shall be allowed a reasonable time in which to prepare the defense. * * ⅜ »

It is the general rule that the granting or refusing of an application for a continuance rests within the sound discretion of the trial court. State v. Belleville, Mo.App., 362 S.W.2d 77; State v. White, Mo.App., 313 S.W.2d 47. The action of the trial court with respect to the requested continuance is subject to appellate review. State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, 596. Upon such review, each case must be judged upon its peculiar facts when the propriety of the granting or refusal of a request for continuance is challenged. State v. Maddox, 117 Mo. 667, 23 S.W. 771, 775.

In this case the trial court did not abuse its discretion in refusing defendant’s oral request for continuance in order that he might have time to prepare for trial for the reason that the whole situation was caused or was contributed to by defendant’s own conduct with respect to his first appointed counsel, Mr. Bell. Annotation, 66 A.L.R.2d 304. Defendant therefore has no ground to complain of the trial court’s refusal of the continuance. Apparently, defendant was not satisfied with his appointed counsel, and so informed him on the first attempted conference of counsel with defendant, at which time he refused to give counsel the names of witnesses he desired to be called. Defendant reported none of this to the court which he could have done through the officers of the court, he being in custody. It is true that Mr. Bell, the first appointed counsel, told defendant at the conclusion of the first attempted conference that he would not be back to see him, but this counsel did appear with defendant in court on the day of trial, at which time the defendant, even while im-panelling the jury, insisted on making certain derogatory remarks, talking loud in counsel’s ears so counsel could not hear what was going on, and defendant at this time emphatically told his counsel and the court that he did not want Mr. Bell to represent him.

There was here no explanation of why defendant did not want his first proffered counsel, and from this record there appears no good reason by which defendant would have been justified in discharging such counsel who was not guilty of any misconduct. There is nothing in this case which would bring it within the cases of State v. Richardson, 329 Mo. 805, 46 S.W.2d 576; State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843; and State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, in all of which the defendants were not at fault in creating situations whereby they were not prepared for trial on the eves thereof. Under these circumstances, defendant has wholly failed to demonstrate (or even to allege) any reason which would excuse him from cooperating with his willing first appointed counsel and timely preparing for trial, said counsel having afforded him the opportunity to do so. State v. Clary, Mo., 350 S.W.2d 809. Nor does the defendant in any way demonstrate that the result of this trial would have been different had he been granted the requested continuance. 66 A.L.R.2d 318. This assignment of error is overruled.

Upon this record, and concerning the matters which we have examined pursuant to Supreme Court Rule 27.20(c), V.A.M.R., we find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles ARRINGTON, Appellant.
    No. 49965.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.

      Charles Arrington, pro se.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   COIL, Commissioner.

Charles Arrington was convicted of rape by forcibly ravishing a woman over the age of sixteen. See Section 559.260, RSMo. 1959 and V.A.M.S. The jury fixed his punishment at forty years in the state penitentiary. He appealed but has filed no brief. We shall examine the assignments-of error in his motion for new trial.

There is no. contention that the evidence was not sufficient to make a submissible-case. Consequently, a brief statement of the facts giving rise to the charge will suffice.

On the night of May 5, 1962, a medical student escorted a young lady to a party-given in honor of one of the nurses from-the school. At the conclusion of the party, about midnight, they drove to the young-lady’s home in south St. Louis, where she changed from her formal 'attire and she intended to then drive her escort (the car was hers) to Barnes Hospital. They traveled north on Jefferson and stopped at Chouteau because of a red traffic signal. A man approached the driver’s side with a gun (the student was driving), forced his way into the car, drove it left on Chouteau, west one block, then, by two left turns, into an alley. As the car entered the alley another man, the defendant, ran toward the car. Thereafter, the defendant and his companion searched the student and the young lady and took what money and valuables they found. The defendant and his companion then each forcibly ravished the young lady while the other forced her escort at gunpoint to lie facedown on the front seat. Both the student and the young lady positively identified defendant two days later at a police station and again at the trial. The state’s evidence showed that defendant orally and in writing admitted his guilt.

New trial assignment 5 complains that the trial court erred in not granting defendant a continuance. The record shows that on the morning of the trial, in chambers, defendant’s counsel requested that the case be continued until the first of the following year on the ground that recent publicity concerning a brutal rape and murder involving (as did the present case) a white woman and colored men, which had occurred during the prior week, had been so widespread and extensive that it was impossible for this defendant to receive a fair trial. The court overruled the motion. At one of the adjournments during voir dire examination of prospective jurors, defendant’s counsel again moved for a continuance for the reasons previously stated and asked that a copy of a St. Louis paper, containing a front-page article concerning the persons who had allegedly committed the other crime, be made a part of the court file. The court overruled that motion. After the jury had been selected and impaneled, defendant’s counsel renewed his motion for continuance and had another newspaper marked as a defendant’s exhibit and called attention to the front-page headline: “No penalty severe enough, Three women identify * * * as attacker,” and thereafter a long article some of which was quoted into the record. Again defendant’s counsel urged a continuance on the ground that his client could not receive a fair trial. Again the court overruled his motion. The next morning, before the jury was sworn, the court asked the members of the panel “whether anything that you might have read in the newspapers, or heard on the radio or television has, in any way, influenced you.” There was no answer and the court stated he took that to mean that the answer of each was in the negative. Whereupon the jury was sworn and the trial proceeded.

While portions of the examinations of prospective jurors are contained in the record, there is nothing which shows or purports to show that any question was asked the panel members which was designed to inquire into their knowledge concerning or the effect upon them of the publicity in connection with the other rape case, other than the general question asked by the trial court. While the newspapers that were marked are not before us, we nevertheless do know that there was publicity concerning the rape and murder in St. Louis to which defendant’s counsel referred. The fact is, however, that there is no showing in this record which tends to indicate that the jury selected in this case could not, solely by reason of the publicity in the other case, assuming, because it was not shown, that they were aware of it, give this defendant a fair trial. Certainly, there is nothing in the record to indicate to us that this defendant was automatically prejudiced simply because of publicity in the other case; nor is the conclusion apparent that a fair trial for this defendant was not possible. Under the circumstances we may not say that the trial court abused its discretion in refusing to grant the thrice-sought continuance. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 111-113.

Assignment 35 charges that the trial court erred in failing to grant defendant a continuance, pursuant to his request made on the morning of trial, on the ground that the state had been permitted to endorse the names of two additional witnesses on the indictment four days prior to the trial date, thereby allegedly preventing defendant “from preparing a complete and adequate defense.” The record shows that on December 6, four days before the trial which began on Monday, December 10, the names of a police officer and of a police laboratory serologist were endorsed on the indictment. In chambers prior to trial counsel moved for a continuance stating that he had received the memorandum indicating that the two additional witnesses had been endorsed on the preceding Friday and requested a continuance on the ground of surprise, claiming that no witness from the laboratory had theretofore been endorsed and that her name threw “a completely different light on the case * * *.” Criminal Rule 24.17, V.A.M.R., provides that the names of additional witnesses may be added at any time on court order and after notice to defendant or his attorney. Defendant’s attorney had notice in this case, and the state’s attorney offered to produce the witnesses for depositions and stated that the serologist would testify that there was seminal fluid on certain clothing of the victim and that the police officer would testify that he found certain items in the automobile in which the alleged rape occurred.

Neither defendant’s motion at the time nor his motion for new trial suggested or demonstrated a sufficient cause for a continuance, and the trial court did not abuse its discretion in denying defendant’s request. There is no showing and it is not otherwise apparent that the testimony of either or both witnesses cast the case in a different light or that the endorsement of the names prevented defendant from preparing a defense. “An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and the appellate courts will not interfere unless it clearly appears that such discretion has been abused. State v. Le Beau, Mo.Sup., 306 S.W.2d 482 [5]; State v. Ward, 337 Mo. 425, 85 S.W.2d 1 [1].” State v. Scott, Mo., 338 S.W.2d 873, 876 [4-6],

Assignment 6 charges that the trial court erred in not declaring a requested mistrial when the state’s attorney said during the voir dire examination of a jury panel that “he knew that the defendant * * * was guilty.” The record shows that defendant’s counsel asked a prospective juror whether the fact that defendant had been confined in the city jail since May—whereupon state’s counsel objected on the ground that the question was irrelevant and was asked “merely as a plea of mercy.” The court sustained the objection, whereupon defendant’s counsel objected to the “statement about mercy,” and said, “There is no mercy; this man is innocent, as far as I am concerned.” The court then began a statement addressed to defendant’s counsel, which the prosecutor interrupted and said, “He is guilty, as far as I am concerned.” Thereafter, the trial court sustained defendant’s objection to the “plea of mercy” statement, after which there was a colloquy among court and counsel out of the hearing of the jury, during which defendant’s attorney moved for a mistrial because of the prosecutor’s statement as to his belief that defendant was guilty. Thereafter, the court directed the jury to disregard the remarks of both lawyers as to their respective beliefs that defendant was innocent and guilty, and not to consider those remarks at any time nor consider any other opinions of counsel. While it is, of course, improper for a state’s attorney to express his opinion as to the guilt of a defendant, aside from the fact that the statement in this case was immediately retaliatory, the trial court’s prompt action shows clearly the justification for the denial of defendant’s request for a mistrial. State v. Warren, Mo., 320 S.W.2d 575.

Assignment 7 is that the trial court erred in not granting a mistrial for the reason that the state’s attorney in his opening statement said that defendant was a friend of one Arthur Dugger and that Dugger’s wallet had been found in the automobile in which the rape had occurred. The record shows that defendant’s own testimony showed his friendship with Dugger and the state’s evidence showed that Dugger’s billfold was found in the automobile and that Dugger was a participant in the alleged crime. It is apparent, therefore, that the trial court did not err as charged.

Assignment 9 complains that the trial court erred in not permitting defendant’s attorney to say in his opening statement that the testimony would show that defendant was innocent. The record shows that defendant’s counsel began his statement by saying that he would show three .things: first, that the defendant “is innocent of this charge—* * * This will be the testimony—.” An objection was made and correctly sustained on the ground that the statement was argumentative. Defendant asserts (assignment 10) that the trial court erred in preventing counsel from setting forth in his opening statement the substance of defendant’s testimony with respect to a statement that was taken from defendant following his arrest. The record shows that defense counsel said, “You will be then shown testimony that this statement, this alleged statement [apparently referring to the written question and answer statement made by defendant], is a fraud and a disgrace to the better — * * * portion of our police department.” The court correctly sustained an objection to that statement. It was argumentative and it was essentially conclusory.

Assignment 23, in so far as it is sufficiently specific, complains that the trial court erroneously permitted a witness to testify whose name had not been endorsed on the indictment. The witness in question identified city hospital records, testified as to the manner of their preparation and answered certain questions as to the contents of those records which she had in her possession. Criminal Rule 24.17 provides that it is unnecessary to endorse the name of a person who appears “for the production or identification of public records.” See State v. Brooks, Mo., 360 S.W.2d 622, 626 [5].

Assignments 12, 15, 16, and 30 complain that the trial court erred in limiting defendant’s cross-examination of various witnesses in specified instances.

Assignment 12 pertains to the cross-examination of the prosecuting witness with respect to her description of her assailants. We have examined that portion of the record and it does not support the complaint that counsel’s cross-examination was unduly limited. Certain objections were sustained to the form of questions or because they were repetitious, but counsel was not prevented from making full inquiry with respect to the description of her assailants which the prosecuting witness had given the police.

Assignment 15 pertains to the cross-examination of the medical student and particularly to that part designed to show that there were contradictions between the testimony of the victim on the witness stand and what she had told the police. This assignment fails to complain of any particular ruling by the court, and our examination of the part of the record in question convinces us that the trial court did not unduly limit defendant’s cross-examination of the witness in the respect charged.

Assignment 16 pertains to the cross-examination of a police officer “regarding statements made to him by [the victim] * * *, relative to the searching of the glove compartment in the car in which the alleged rape took place.” Again no complaint is made of any particular ruling by the court and we have read the cross-examination referred to and it does not indicate any undue limitation thereof.

Assignment 30 pertains to the cross-examination of another pclice officer and avers that the trial court erred in not permitting defendant’s counsel “to cross-examine Sergeant Roth as to specific portions”' of the written question and answer statement made by defendant to.a state’s attorney. In the state’s case the statement was marked as an exhibit but had not been offered in evidence. There was an attempt by defendant’s counsel either to have the entire statement read to the jury or to be permitted to ask questions concerning specific portions thereof. We are unable to-determine from the record whether counsel made plain to the court what his exact contention was or whether the court in fact denied defendant’s counsel the right to cross-examine as to specific portions of the statement. But it seems plain that defendant’s counsel’s ultimate purpose was to make certain that the jury became aware of the contents of that statement. The record shows thát the entire question and answer statement, state’s exhibit 11, was read to the jury. Thus, defendant’s counsel’s avowed purpose was accomplished and no prejudice could have resulted to defendant from any specific ruling the court made prohibiting specific questions designed to show the'contents of the statement.

Assignments 13, 18, and 22 allege that the court erred in permitting “undergarments” of the prosecuting witness to be identified and observed by the jury on the ground that the appearance of the clothing because of blood thereon would tend to inflame the jury to the unnecessary prejudice of the defendant. The record shows that a pair of panties was marked as state’s exhibit 2 and identified by the prosecuting witness as an undergarment she was wearing at the time of the occurrence in question. At a later time the exhibit was shown to a police officer who testified that he obtained it from a nurse at the city hospital after he had taken the prosecuting witness there and that he had marked the article and sent it to a police laboratory. A serologist employed by the St. Louis Police Department laboratory testified that she had examined the exhibit and found seminal fluid on it. Apparently the panties were extensively bloodstained and apparently the exhibit was observed by the jury on the three occasions mentioned. The evidence showed that after defendant and his companion had fled from the scene of the crime, the prosecuting witness and her escort immediately went to a nearby gas station from which they called the police; that the call was answered promptly by officers who conducted an investigation of the automobile and the surrounding area; that one of those officers escorted the prosecuting witness to the city hospital and that a nurse who there cared for the witness handed the exhibit in question to the officer who, as noted, sent it to the laboratory.

The exhibit was admissible if it tended to throw any light upon a material issue in the case. The fact that the undergarment showed the presence thereon of seminal fluid was some evidence tending to corroborate the testimony of the prosecuting witness and her escort with respect to the acts of defendant and his accomplice on the occasion in question. Consequently, the question whether the exhibit should have been admitted was one which was within the discretion of the trial court and, based upon this record, we may not say that the court abused its discretion in admitting the exhibit and the evidence identifying it. See State v. Swinburne, Mo., 324 S.W.2d 746, 752 [8], and cases there cited.

Assignment 14 is that the court erred in permitting the state’s attorney to so question the medical student as to permit him to repetitiously state his certainty that defendant was involved in the commission of the offense charged. The record shows that the trial court permitted counsel for the state, over the objection of the defendant, to ask the witness, after he had identified defendant as one of the two men, whether there was any doubt at all in his mind that defendant was one of the men and immediately thereafter to ask whether he was certain that he saw this man (pointing to defendant) come to the car on the occasion in question. It seems apparent that there was no unduly extensive or harmful repetition of the witness’s positive identification of defendant.

Assignment 17 complains that the trial court erred in permitting a police officer to testify that defendant and Andrew Dugger (the other alleged participant) were friends and that as a result of that friendship defendant was arrested. The record shows that upon a search of the automobile in which the rape occurred, police found a billfold which, based on its contents, apparently belonged to one Arthur Dugger; that they investigated and found that defendant was Dugger’s friend and thereafter arrested defendant. While it is not apparent to us that the fact that the investigation of Dugger led to defendant’s arrest was relevant, we are convinced that such testimony under the facts of this case was not prejudicial to the defendant.

Assignment 21 avers that the trial court erred in permitting a police officer to testify that defendant was not injured while at the police station on the ground that such was a conclusion. The portion of the record which deals with the subject of this assignment indicates that the trial court sustained the only objection made, which was to the form of a question.

Assignments 11 and 26 charge that the trial court held defendant’s counsel “up to ridicule” and thereby made it impossible for the defendant to receive a fair and impartial trial. As to the first incident, the record shows that during cross-examination a state’s witness gave an answer to a question; thereafter the court inquired of defendant’s counsel whether he had any further questions. Counsel said “Yes,” and the court remarked, “Well, you are writing and I just wondered if you were going to ask any more questions, * * Counsel at the bench out of the hearing of the jury stated that he had been cross-exam-ing for only ten minutes and that the court’s remark made it appear that he was improperly trying the case and held him up to ridicule. He asked that the jury be instructed to disregard the court’s remarks and that a mistrial be declared. The court requested counsel to use less time in writing and more in asking questions, and noted that during the short cross-examination counsel had written six pages. Thereafter the cross-examination proceeded. While it would have been much better for the trial court to have admonished counsel out of the hearing of the jury, the court’s remarks, standing alone, did not tend to “hold counsel up to ridicule,” much less prejudice defendant.

The second incident (assignment 26) involves this situation: defense' counsel in his closing argument said that the written statement given by defendant to the police-did not indicate a voluntary disclosure by one who was telling what he knew to have happened; the implication apparently intended was that the statement showed that defendant did not know what had happened because he wasn’t there. Counsel then said, “You can take that statement down to the jury room, if you want to, and read it.” Whereupon the trial court told counsel he had no right to make that statement, that he should know he should not have made it (apparently counsel then must have thrown some papers onto a table) and the court said, “And don’t throw your papers down, either. We are going to try this case like a trial should be conducted.” Then at the bench when defendant’s counsel contended that the jury did have a right to take the exhibits to the jury room, the court emphasized that counsel did not have the right to tell the jury that it could take anything to the jury room and defense counsel objected that the court was talking in a loud voice. The court agreed that he was so talking in order that the jury would know that it was not entitled to the exhibits as a matter of course and that counsel was not entitled to say otherwise. Colloquy along the same line continued. Finally, defense counsel asked whether he could say to the jury that it could take the statement to the jury room and the court said, “You may not.” Whereupon, counsel requested a mistrial because the court had held him “up to such ridicule that the defendant cannot receive a fair and impartial trial.” The court remarked that counsel “had invited everything,” and told counsel to make no further^ reference to what the jury could take to the jury room, whereupon counsel proceeded with his argument with respect to the statement which he had been theretofore discussing.

It is true that a jury may not as a matter of right take exhibits to the jury room; whether a jury may so do is within the trial, court’s discretion. State v. Smith, Mo., 357 S.W.2d 120, 123 [9]. Consequently, it was incorrect and it was improper for defendant’s counsel to state, without having obtained the prior approval of the trial court, that the jury might take defendant’s statement to the jury room. It appears that defendant’s counsel had given the trial judge some provocation for the court’s seemingly- uncalled-for repetition within the hearing of the jury of the fact that counsel’s statement was erroneous. Further, in the absence of any other showing, we must assume that defendant’s counsel’s actions, in- addition to what the record reflects, in some way must have, as the trial court said, “invited” the course which the trial court pursued. In any event, there is nothing in the record which demonstrates or from which we may reasonably infer that it was likely that the incident was such as to have prejudiced the jury against the defendant as distinguished from his lawyer.

Assignments 36, 37, and 38 charge that the trial court erred in giving the state’s main instruction 2. Defendant says the instruction was erroneous in that it hypothesized that defendant “did then and there at said time” forcibly rape the victim and consequently was not definite as to time and place and further that the circumstances surrounding the occurrence should have been hypothesized. The instruction required the jury to find that defendant “on the 6th day of May, 1962, acting alone or with another,” etc. Thus, the exact time of the alleged offense was stated. It was unnecessary to hypothesize the facts shown in evidence as to the manner in which the forcible ravishment was accomplished. Defendant contends further that because the instruction required the jury to find that defendant “did * * * forcibly and against the will of the said * * * rape, ravish and carnally know the said * * *,” it thereby had repetitiously and prejudicially used the four words, “rape,” “ravish,” and “carnally know,” when, we assume, one would have sufficed. The crime charged was rape by forcibly ravishing, as set forth in Section 559.260, supra. But it is apparent that the additional words used in the indictment and the instruction did not prejudice the defendant. Finally, defendant says that instruction 2 was erroneous because it required the jury to find that the rape must have been accomplished forcibly “and against the will of the female; that is, without the consent of such female and against the utmost resistance of which she was capable of making and offering under the circumstances shown by the evidence to have existed at said time.” Defendant argues that the instruction was erroneous because there was no evidence “to show what, if any, resistance was used by the female.” There is no merit in the contention for the reason, among others, that there was ample evidence of the resistance made.

In assignment 39 defendant contends that the alibi instruction, No. 6, was erroneous “in that it requires the jury to be convinced beyond a reasonable doubt of the defendant’s innocence.” The instruction does not so do. It directed, “If, from all the evidence you have a reasonable doubt as to whether the defendant was present when the crime was committed, then you should give the defendant the benefit of such doubt, and find him not guilty.”

Assignment 27 is that the trial court erred in permitting the state’s attorney in closing argument to refer to the fact that defendant and Andrew Dugger were friends. As we have noted heretofore, defendant’s own evidence showed that he and Dugger were friends and obviously a statement of that fact was not improper.

Assignment 29 complains of error in permitting the state’s attorney to argue that defendant should be convicted because “of the prevalence of crime in the City of St. Louis.” We do not find in the record the statement or the implication that defendant should be convicted solely because crime was prevalent in St. Louis. We have examined the argument apparently in question and the references therein to the prevalence of crime in St. Louis were well within the scope of proper jury argument. State v. Cox, Mo., 352 S.W.2d 665, 671.

Assignment 28 is that the trial court erred in permitting state’s counsel in closing to argue that the reason defendant had no prior convictions was because he was only seventeen. The record shows that the state’s attorney said that the evidence indicated that defendant was seventeen ; that “ * * * you can’t get a criminal record until you are seventeen. So he has only had, at most, a year to get a criminal record, so that doesn’t mean so much for him because he is only seventeen years of age, so he hasn’t lived any long lifetime of peace and quiet, he is only seventeen years of age.” The court overruled defendant’s objection on the ground that the argument had been invited. Defendant’s counsel had theretofore argued that his client was innocent of the crime charged and that he had never been convicted of a crime. While, as pointed out by defense counsel in stating his objection, a 15 or 16 year old can be tried as an adult, still, we think the argument was invited and that what was said by state’s counsel did not exceed the bounds of' proper retaliatory argument.

Assignment 24 charges that the trial court erred in permitting three police officers and an assistant circuit attorney to testify in rebuttal because their testimony did not constitute “proper rebuttal evidence.” In so far as the assignment may be sufficient under Criminal Rule 27.20, V.A.M.R. (See State v. McCormack, Mo., 263 S.W.2d 344, 346 [5]), the record shows that no objection was made to the testimony of any of the witnesses specified except to the testimony of one of the police officers. During the trial, on cross-examination, that officer testified that he had taken defendant to a shower room at the police station sometime subsequent to his arrest. On redirect it was shown that defendant was taken to a shower room several days after his arrest so he could shower and change clothes. Defendant testified he was taken to the shower room, required to remove his clothes, lie on his back, and that an officer kicked him in the leg. The officer, whose testimony was objected to, testified in rebuttal that he did not take defendant to the basement at any time, did not require him to remove his clothes, did not kick him, did not see any other officer kick him, and that defendant was not taken to the basement for any purpose on the day of his arrest.

It is apparent that most of the officer’s testimony was proper rebuttal but even if some of his testimony was not strictly rebuttal evidence, still “the scope of rebuttal testimony is largely within the sound discretion of the trial court, and, unless the court has abused its discretion, or a defendant’s rights are prejudicially affected, an appellate court will not reverse on that ground, even though the evidence in question is not strictly rebuttal evidence.” State v. Martin, Mo., 56 S.W.2d 137, 140.

Assignment 33 is that the punishment assessed was excessive and (34) so excessive as to indicate bias and prejudice on the part of the jury. The punishment, fixed by the jury, 40 years in the state penitentiary, was within the range provided te the statute under which defendant was charged and convicted. Section 559.260, supra. There is nothing suggested in the new trial motion and nothing appears in the record to support the claim that the jury’s verdict indicated prejudice, nor is there anything in the record which is relevant to the question of excessiveness. Thus, there is no merit in either assignment. State v. Sheard, Mo., 276 S.W.2d 191, 195 [10, 11]; State v. Rose, Mo., 249 S.W.2d 324, 334 [18]; State v. Stumph, Mo., 349 S.W.2d 954, 955 [4].

Each of defendant’s new trial assignments, 1, 2, 3, 4, 8, 19, 20, 25, 31, and 32, is too general to have preserved any matter for appellate review in that none is sufficient under the requirement of Criminal Rule 27.20 that a motion for new trial must set forth in detail and with particularity specific grounds or causes therefor. Those assignments aver, respectively, that the trial court erred: in permitting plaintiff’s counsel to inject improper, illegal, unlawful and prejudicial material in his opening statement and his closing argument; in admitting illegal, incompetent, immaterial, and prejudicial testimony; in giving and reading to the jury each and every instruction given as the law of the case; in limiting and restricting defendant’s right of cross-examination of state’s witnesses; in limiting and restricting defendant’s examination of prospective jurors on voir dire; in permitting a police .officer to testify as to what other officers did and to give testimony which was hearsay; in permitting an officer to testify pertaining to police department rules relating to taking of persons to the hospital”; in limiting defendant’s attorney in his closing argument; in not permitting the jury to examine and read the state’s exhibits; and in not granting a mistrial when the state’s attorney “made marks and underlined” portions of defendant’s signed statement.

We have examined those record matters which we are required to review and find no error in connection with them.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.