author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Montie Leon MATHIS, Appellant.
    No. 50136.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.
    Richard F. Adams, Kansas City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Montie Leon Mathis was found guilty by a jury of burglary, second degree, and after finding that he had previously been convicted and sentenced for the offense of stealing a motor vehicle, as alleged in the amended information, punishment was fixed by the trial judge at imprisonment for eight years. Sentence and judgment followed and defendant has appealed to this court.

In his brief defendant contends that the trial court erred in admitting evidence of the commission by him of a crime for which he was not charged. This is the only assignment of error in his motion for new trial.

Defendant was charged by amended information with burglary, second degree, in that on August 29, 1962, he broke into and entered “the storeroom of the Rapid Auto Sales, a corporation, located at 1210 Truman Road, Kansas City, Jackson County, Missouri,” and with stealing. The jury found the defendant not guilty of stealing but guilty of the burglary.

The jury could reasonably find from the evidence that shortly after midnight of August 29, 1962, a member of the Kansas City Police found the defendant sitting in a Buick automobile with the engine running, and which was parked on the used car lot of Texas Traders Auto Sales located at 1401 Truman Road. Defendant had in his possession a “rubber stamp” which contained the address of 1210 Truman Road and was the kind used to “stamp ⅜ * * envelopes and papers.” An investigation disclosed that the storeroom of the Rapid Auto Sales located at 1210 Truman Road had been broken into. A window was broken out, a door pried open, a desk in the storeroom had the drawers pulled open and the papers inside the drawers scattered around. Tools of the value of $10.00 were missing. Fingerprints found on pieces of glass from the broken window matched those of defendant.

The arresting officer testified that defendant told him that his automobile had broken down and “they” had picked it up to repair it and he had gone “down there,” apparently to Texas Traders Auto Sales, to see if it was ready, and while there he was “trying the engine” on the Buick car. The officer then testified that he “checked the area” and the office building on the used car lot “had been broken into.” No objection was made to this. He was then asked the color of the paint on the building which had been broken into, and counsel for defendant objected on the ground that defendant was charged with breaking into a building at 1201 Truman Road, and he objected to testimony as to the color of the paint on “the building at 1400 [sic] Truman Road” because it “is irrelevant of this crime.” This objection was sustained and the jury was instructed to “disregard the last answer,” which was that “the office building on the lot at 1401 Truman Road had been broken into.” Subsequently, a second police officer, who had been called by the arresting officer, testified without objection that he had “checked the building at 1401 Truman Road.” He did not testify as to what he found. Later this officer was asked whether he talked to the defendant and what he had said. He gave this answer : “Well, he told me that he was at the lot on 1401 Truman Road, for the purpose of checking on the transmission and repair of his automobile, and he was in this car that he was found in for — he wanted to try the motor on it is what he said, and at the time of his arrest, some yellowish paint was on his hand, which, in color matched the paint on the building at 1401 Truman Road.” Defense counsel objected to “this rambling narrative” because it was not responsive, and “further that the testimony in regard to the yellow paint connecting up this building at 1401 Truman Road is completely prejudicial and I ask that the jury be discharged at this time.” Both the motion to discharge the jury and the objection to the testimony were overruled. The prosecuting attorney then asked this question: “Now, you say that there was paint on him and it matched the building at 1410 (sic) Truman Road?” and the witness replied, “1401 Truman Road.” On cross-examination defense counsel developed that there were two buildings at the used car lot at 1401 Truman Road, and that defendant’s automobile, a Studebaker, was parked near a concrete building with a green door, and that the “yellow building” was “roughly fifty feet” west of the concrete building and that it had been “painted soon before.” He also asked questions which had the purpose of showing that when defendant walked from his Studebaker to the Buick he would pass by the yellow building, but the witness answered to the effect that the yellow building was not in line with the two automobiles. On redirect examination, this witness testified without objection that the office building was “yellowish green,” and that he observed paint of “a similar color” on defendant’s hand. Then in response to the question as to whether the witness noticed “anything peculiar about the yellow building” he testified that “the windows on the west side were broken out.” Counsel for defendant then objected “to the testimony * * * as to the fact these windows were broken out as imputing some sort of crime on the part of this defendant * * The trial court overruled this objection on the ground that “You went into the location of the buildings and where they were.” The witness then stated that windows on the yellow building were broken, that they were located on the west wall which was the wall “closest to the garage” or concrete building where defendant’s Studebaker was parked, and that the “broken windows on the office building” were fifty or sixty feet from the concrete building. This testimony was brought to a halt when the court advised the prosecuting attorney that “the officer has described the location of the building enough.”

Defendant was charged with the burglary of “the storeroom of the Rapid Auto Sales, a corporation, located at 1210 Truman Road.” The testimony that on the used car lot of the Texas Traders Auto Sales located two blocks away another and different building had been broken into, that it had recently been painted, and that at the time of his arrest defendant had paint on his hands similar to that on the building constituted evidence tending to show that defendant was guilty of a crime for which he was not charged. Obviously, the breaking of the building at 1401 Truman Road was not and could not have been a part of the res gestae as suggested by the prosecuting attorney. The rule permitting the admission of evidence of the commission of another offense, when by reason of time, place or circumstance the acts constituting the other offense are part of the acts constituting the offense charged, or when taken together the acts constitute one continuous transaction (see 22A C.J.S. Criminal Law § 662(1) et seq.; State v. Bell, 359 Mo. 785, 223 S.W.2d 469; State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763; State v. White, Mo., 301 S.W.2d 827) cannot extend to the situation here when the commission of the burglary charged was necessarily a completed transaction separate and apart from the commission of a second burglary or unlawful breaking two blocks distant. Compare State v. Summers, Mo., 362 S.W.2d 537.

We conclude that defendant made adequate objections to this testimony. His first objection was sustained, and it was then clear to all that defendant was objecting to any evidence that tended to show that he had broken into or burglarized the office building on the lot of Texas Traders Auto Sales. When the testimony came in, as the result of the unresponsive remark of the police officer, defendant’s objection was overruled, and then with that approval by the court, the prosecuting attorney brought out that defendant had paint on his hands when arrested which matched that on the building. Defendant sought to make the best of the situation he could by attempting to show an explanation of the presence of the paint, but this did not waive his previously overruled objection.

It is the well-established general rule that the proof of the commission of other crimes by the defendant is not admissible unless such proof tends to establish the charge for which he is on trial, even though the other crimes were of the same general nature and committed about the same time and place. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24; State v. Summers, supra at p. 542. The state contends that the evidence which admittedly tended to show that defendant broke into the office building at 1401 Truman Road was properly admitted over objection because it tended to establish intent, absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tended to establish the other, or the identity of the defendant. We cannot agree. The crimes were not related, and the fact that defendant may have broken into a building at 1401 Truman Road could not tend to show his intent to commit an unrelated burglary at some previous time two blocks away at 1210 Truman Road. Neither could it tend to show absence of mistake or accident in breaking into the building at 1210 Truman Road, or the identity of the one who did so.

It was prejudicial error to admit the evidence tending to show that defendant had broken into the office building on the used car lot of the Texas Traders Auto Sales.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    Charles BENGIMINA and Tudy Gulotta, d/b/a B & G Amusement Company, Plaintiffs-Appellants, v. John ALLEN and Louis Bell, d/b/a Indiana Buffet, Defendants-Respondents.
    No. 23925.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      I. I. Ozar, Kansas City, for appellants.
    Hammond C. Woods and Dan Boyle, Kansas City, for respondents.
   CROSS, Judge.

Plaintiffs instituted this action in magistrate court by filing a statement alleging that defendants had breached a contract entered into by the parties and that by reason thereof plaintiffs were entitled to liquidated damages. Defendants defaulted and judgment was entered against them in the sum of $2000.00. Defendants appealed to the circuit court and the cause was tried to that court, de novo, without a jury. From a judgment in favor of defendants, denying plaintiffs a recovery, plaintiffs have appealed.

By stipulation of the parties the case was tried in the circuit court on an agreed statement of facts. The stipulation and facts agreed upon are quoted as follows:

“STIPULATION
“Come now the parties by their respective counsel and stipulate and agree that the above-entitled cause coming on to be tried de novo on appeal from the Magistrate Court may be determined upon the following statement of facts, which it is stipulated and agreed are not disputed:
“a. That on or about the 16th day of December, 1957, the parties hereto executed an instrument in writing referred to in plaintiffs’ Statement filed in the Magistrate Court as a Contract, a copy of the same being attached and made a part of Appellees’ Statement filed in the Magistrate Court;
“b. That the Appellees (plaintiffs below) are entitled to liquidated damages as provided for in said contract in the sum of Two Thousand ($2,000.00) Dollars, if said contract is a valid and binding contract and enforcible against the Appellants (defendants below) ;
“c. That on or about the 1st day of February, 1960, the Appellants (defendants below) refused and refrained from operating automatic music machines and other automatic machines furnished by the Appellees (plaintiffs below); that said equipment was removed from the premises operated by the defendants as the Indiana Buffet at 2225 Indiana, Kansas City, Missouri, at Appellants' request and insistence;
“d. That it is further stipulated and agreed that the Appellants (defendants below) contend that the contract aforementioned is illegal, unlawful, void and not enforcible as against the Appellants (defendants below) as a matter of law.”

The alleged contract sued upon and referred to in the statement of facts reads as follows:

“MUSIC LOCATION CONTRACT
“THIS AGREEMENT, made and concluded this 16th day of December, 1957, by and between B & G AMUSEMENT COMPANY hereinafter referred to as Company and John Allen & Louis Bell, d/b/a Indiarja Buffet hereinafter referred to as Proprietor, Witnesseth:
“In consideration of the mutual covenants hereof, it is agreed:
“Proprietor leases unto Company appropriate space for the operation of automatic music equipment upon premises located 2225-Indiana, Kansas City, Mo. Proprietor also agrees to furnish electric outlets herefore and to permit operation of such equipment during usual business hours and under usual conditions without hindrance.
“It is agreed that the following equipment is to be installed:
“As Rental herefore, it is agreed that the contents of coin boxes of such equipment shall be opened weekly, at which time the Company shall receive the first $2.00 and, thereafter, the remaining moneys shall be divided equally between the Company and the Proprietor.
“Proprietor grants unto Company the exclusive right to operate automatic music machines upon the premises during the full term hereof, and no other person, persons, or corporations shall have the right to operate the same during the full term hereof, including the Proprietor, nor shall any other commercial music system be operated on said premises during the said term.
“Title to all equipment placed by Company, shall at all times be and remain the equipment of the Company and Proprietor agrees that Company may remove the same at any time during the term hereof.
“In the event of any breach of this agreement by the Proprietor, the Company shall have the right to enjoin the Proprietor from operating any other equipment in the said premises by an appropriate action in Equity, the Proprietor agreeing that jurisdiction might vest in Equity without his objection and as cumulative right, it is further agreed that as liquidated damages and not as a penalty, upon such breach, the Company shall be entitled to and shall, at time of breach, receive from Proprietor a sum equal to the average weekly share of the Company prior to the said breach, multiplied by the number of weeks remaining in the unexpired term of the agreement. These rights shall be cumulative.
“It is agreed that this agreement shall continue for a period of four (4) years from the date hereof and thereafter for an additional period of one year and so on from year to year until written notice of termination be received no> less than sixty days prior to the end o£ any term hereof.
“This agreement shall he binding not only on the parties hereto, but also on their heirs, executors, administrators, successors and assigns and, in the event the Proprietor sells his interest in the said premises, that such successor shall be fully bound by the terms of this leasehold agreement.
“This contains all the agreements of the parties, there being no other reservations or understandings.
“Parties certify authority to enter into this agreement.

Upon consideration of the stipulated facts the trial court found the issues generally in favor of defendants and against plaintiffs and rendered judgment that plaintiffs take nothing. The court specified no ground for its action.

The primary question in this appeal is whether the writing entitled “Music Location Contract” is in fact a valid, binding and enforceable contract, the essential elements of which are universally considered to be (1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and, (5) mutuality of obligation. 17 C.J.S. Contracts § 1(1), p. 545.

Preliminarily it may be said that the concept of a legal contract held by both parties is not at variance with the above statement of requirements therefor. Plaintiffs and defendants both recognize and concede that there can be no enforceable contract unless the proposed undertaking is supported by consideration, expresses mutual agreement and imposes mutual obligation upon the negotiating parties. However, the parties differ sharply as to the meaning and effect of the writing they executed.

It is the contention of defendants that although the “Music Location Contract” clearly provides for a consideration from defendants in the form of a promise to allow plaintiffs the privilege of operating music machines on their premises, it provides for “absolutely no consideration flowing from the appellants” because it did not impose any enforceable obligation upon plaintiffs. Specifically, defendants contend that under its terms plaintiffs are under no obligation to furnish defendants automatic music machines or equipment of any other kind or nature. Therefore, defendants say, there was no mutual consideration provided, and the writing did not amount to a valid, enforceable contract.

On the other hand plaintiffs contend that the “agreement” was a bilateral contract containing mutual promises between the two parties, by reason of which both became a promisor and a promisee as well. Each promise, plaintiffs argue, was a benefit to the promisee and a legal burden to the promisor, and, therefore, constituted the necessary consideration for the “contract”. Plaintiffs maintain that the proposed undertaking does in fact contain a binding promise on their part to furnish defendants automatic equipment. For that reason they insist that the writing did not lack mutuality between the parties because it imposed mutual obligations upon both. Therefore, urge plaintiffs, the parties consummated an enforceable written agreement.

If it be the case that both parties have obligated themselves by mutual promises contained in the paper writing imposing some legal duty or liability on each promisor, there is consideration to support it as a contract, since the one promise furnishes a sufficient consideration to support an action on the other. See 17 C.J.S. Contracts § 97, p. 781; Ragan v. Schreffler, Mo., 306 S.W.2d 494. If, on the other hand, plaintiffs have not hound themselves to such an obligation by a promise on their part, there is no legal contract between the parties because there is a failure of consideration.

Our examination of the document concerned discloses that defendants are clearly and abundantly bound in obligation to plaintiffs by definitely expressed promises whereby they (1) lease space for the operation of automatic music equipment, (2) agree to furnish electric outlets therefor, (3) permit operation of such equipment, (4) grant defendants exclusive right to operate music machines on the premises, and (S) grant drastic legal rights to plaintiffs in the event the “agreement” is breached by defendants.

In contrast, whether by accident or design, the writing is completely void of any direct, unequivocal expression of agreement on the part of plaintiffs to do or furnish anything. The only language in the entire document that even hints of promise ot agreement on the part of plaintiffs to do any act, furnish any article or perform a duty is found in the words “It is agreed that the following equipment is to be installed”. Even these words are meaningless since they are not followed by any specification or listing of the “equipment to be installed”. The space which follows the quoted words was left blank and contains nothing. Absent from the instrument is any reference to or identification of any specific item, article or thing that can be considered as the subject matter of agreement.

Plaintiffs inform this court by statement contained in their brief that “The equipment was to be one cigarette machine, one bowling machine and one music machine”. There is nothing in the writing before us or in the whole record to warrant or support the foregoing statement. It is a bare assertion resting alone on the authority of those who make it. We cannot accept plaintiffs’ ipse dixit as a substitute for material matter that was omitted from the writing they now seek to establish as a contract. However, this effort to inject extraneous matter into the case is not without significance. It effectively demonstrates the absence of any identifiable subject matter of agreement and that plaintiffs are aware thereof.

It is essential to a contract that the nature and the extent of the obligations be certain. If an offer is so indefinite as to make it impossible for a court to decide just what it means, and to fix exactly the legal liability of the parties, its acceptance cannot result in an enforceable agreement. 17 C.J.S. Contracts § 36(2), pp. 647-651; Burger v. City of Springfield, Mo.Sup., 323 S.W.2d 777.

It is the general rule and the law in Missouri that “A written agreement may be uncertain because of blanks left therein”, -17 C.J.S. Contracts § 36(2), p. 654; and that “A writing is incomplete as an agreement where blanks, as to essential matters, are left in it unless they can be supplied from other parts of the writing itself”. 17 C.J.S. Contracts § 65, p. 742. Also see Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, which quotes the foregoing statements With approval.

In Huttig v. Brennan, supra, the subject of intended contract was certain property which was only generally referred to in the writing but left for identification and description by exhibits to be attached and “made a part of the contract”. The exhibits “were not then or ever attached”. Under authority of the rule that a writing is incomplete as an agreement where blanks as to essential matters are left in it, the court held that the document concerned was not a contract and stated, “In short, if one of the parties is not bound, neither is. Therefore, if there was no agreement or understanding as to what property respondent and Quinby were contracting for, there' was no meeting of their minds on the essential part of the contract”.

In this case, as in the Huttig case, the blank space left in the writing amounts to a fatal omission that prevents it from being a contract. Since no item of equipment to be furnished by plaintiffs is named or identified, there was no understanding or agreement as to what the parties were contracting for and there was no meeting of their minds on the subject matter — an dement essential to a valid contract. There is no enforceable promise or obligation, on plaintiffs’ part, ascertainable from the writing. Hence there is a failure of consideration and there is no resulting contract.

Plaintiffs further argue that there is an “independent consideration provided in the writing running to each of the parties wherein the money received from the equipment shall be divided equally between the company and the proprietor”. This contention is without merit. The provision relied upon by plaintiffs provides for a division of proceeds from “such equipment”. Since the writing does not obligate plaintiffs to furnish any equipment capable of producing revenue, we consider that the money-division proviso is without effect as a promise and constitutes no consideration.

Plaintiffs also suggest that part performance of the terms of the writing has caused it to be a valid bilateral contract and enforceable as such. This argument is based upon the fact that some variety of automatic machine was actually installed and operated in defendants’ premises until February 1, 1960, on which date the equipment was removed on defendants’ demand. The rule of law which governs the instant question is stated in 17 C.J.S. Contracts § 100(3), pp. 802-803, as follows: “While partial performance has been held to satisfy the requisite of mutuality, where the contract, is signed by the party to be charged, at least to the extent that the contract is completed, mere part performance of a contract which is not binding on the parties does not make it binding as far as it remains executory”. Also see Solice v. T. J. Moss Tie Co., Mo.App., 142 S.W.2d 1079, wherein the foregoing quoted statement from C.J.S. is cited and relied upon. We necessarily rule that the suggestion has no merit.

It is the separate finding of this court that the writing entitled “Music Location Contract” is not a valid contract, enforceable against defendants.

Therefore, the judgment is affirmed.

All concur.


author: MAUGHMER, Commissioner.

text:
    Robert OPPENHEIMER, Appellant, v. Robert S. BURNS and Lawrence R. Brown, and Mary Oppenheimer, Respondents.
    No. 23931.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Albert W. Thomson, Clarence Finley, Kansas City, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant. •
    David R. Hardy, Charles L. Bacon, Frederick Beihl, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondent Mary Oppenheimer.
   MAUGHMER, Commissioner.

This is a suit in equity. There is little disagreement as to the facts. Only two witnesses testified — one contestant and the attorney for the other contestant. Of vital importance in determining the controversies arising on this appeal are the provisions of a property settlement and the contents of a 1961 income tax return.

This being a suit in equity tried by the court, we are required to “review the case upon both the law and the evidence”. But “[t]he judgment shall not be set aside unless clearly erroneous”. V.A.M.R. Civil Rule 73.01(d). Numer et al. v. Kansas City, Missouri et al., Mo.App., 365 S.W.2d 753, 758.

In January, 1961, Robert Oppenheimer, appellant, and Mary Oppenheimer, one of the respondents, then husband and wife, but with a divorce suit pending, entered into a written Property Division Agreement, which became effective February 9, 1961, on which date these people were divorced. In this Agreement, which we shall hereinafter refer to as the Settlement, the parties recited that it finally settled all of their marital property rights.. Custody of the minor child was placed with Mary Oppenheimer, who was allowed $100 monthly for their support and maintenance and $1.00 per month as alimony. Each' party was to pay his or her own attorney fees. Respondent Robert S. Burns, attorney for Mr. Oppenheimer, and respondent Lawrence R. Brown, attorney for Mrs. Oppenheimer, were by the Settlement appointed as joint trustees to collect, liquidate and convert into cash the marital assets and from the proceeds pay off all obligations, including income taxes and accrued alimony and child support. The residue was then to be divided two-thirds to Mary, and one-third to Robert.

These assets included a residence, the usual incidental items and numerous insurance policies which had substantial cash values. The largest and most valuable asset was 10,000 shares common stock of Oppenheimer Brothers, a family-held corporation. In accordance with the Settlement provisions, this stock was liquidated or sold and converted into $121,174.84 cash. No disputes have arisen concerning the sales and conversions of these assets. The Settlement carried the following provisions:

“Upon liquidation of Oppenheimer Bros. Inc., its assets will be placed with Robert Burns and Lawrence Brown as co-trustees to be distributed on their joint order as herein provided: First to the payment of the corporate debts, then to any unpaid tax liabilities of the Parties, with interest and penalties to the extent then determined, with respect to years prior to 1960 for which the Parties have filed joint Federal and Missouri income tax returns. The Parties will file joint Federal and Missouri income tax returns for the calendar year 1960 and the balances of tax, if any, shown to be due thereon shall next be paid out of the proceeds of said liquidation. * * * The balance of the proceeds of liquidation, including any assets distributed in kind, will be held until the amount of Federal and State income taxes due on account of and attributable to the gain realized by the Parties on the liquidation” (Oppenheimer stock) “shall have been determined, at which time the taxes so attributable shall be paid out of such balance”.

Mr. Oppenheimer married (Jean) soon after his divorce from Mary and about July, 1961, became a resident of New York State. He filed his 1961 Federal Income Tax Return jointly with his wife, Jean, and included as income therein the long term capital gain of $60,587.41 received from liquidation of the Oppenheimer stock. As computed and shown on the face of this Return, the amount of tax due was $24,278.-61, which sum the respondent trustees paid to Internal Revenue out of the trust funds. The trustees also paid the state income tax.

Mr. Oppenheimer claims that these income tax payments do not discharge the obligation of the trustees to pay the “taxes attributable to the gain realized” on the sale of the Oppenheimer stock. He claims he is entitled to be paid seven additional sums out of the trust fund. The trustees refused to allow or pay any of these seven items and sought a judicial determination as to their liability therefor, by filing a Bill of Interpleader in which lawsuit Robert and Mary Oppenheimer were joined as defendants.

We shall now identify and describe these seven claims as presented by Mr. Oppenheimer. One was in the sum of $39.60, which amount Mr. Oppenheimer had been required to refund to the Veterans Administration on an insurance policy dividend overpayment. Unquestionably he is entitled to reimbursement for this overpayment, the original total payment having been turned over to the trustees. No appeal has been taken from the allowance of this particular claim.

The other six claims arise out of and can only be determined by careful examination and consideration of the 1961 Income Tax Return and the Settlement provision that the “amount of Federal and State income taxes due on account of or attributable to the gain realized by the parties on the liquidation” of the Oppenheimer stock “shall be paid out of the trust funds”.

The 1961 Federal Income Tax Return which was prepared by or under the direction of Mr. Oppenheimer contains some unexpected elements which we now mention: (1) It was a joint return in the names of Robert Oppenheimer and of his present wife Jean; (2) It included 1961 earnings of Jean in the sum of $3900.01; (3) It included a loss of $790.45 for a business activity carried on for a part of 1961 by Robert and Jean; (4) It listed as an expense, attorneys’ fees in the sum of $1,916.-46; (5) It listed as a credit on the tax due the sum of $2,101.73, which was a refund due the Oppenheimers for overpayment of their 1960 income taxes; (6) It listed and took credit for $615.78, the amount withheld during 1961 from the salary of Jean Oppenheimer, who had been employed as a teacher at Smith College.

We now consider the six claims in detail: (1) Appellant claims that the $2,-101.73 refund for overpayment of the 1960 Federal tax and which was credited in like amount on the 1961 tax was his personal property, reduced the 1961 tax by that amount, is a part of the tax “attributable” to the sale of the Oppenheimer stock and should be repaid to him. The trial court denied the claim. Under the evidence here the 1960 overpayment was on a joint return by Robert and Mary Oppenheimer, although it actually existed because of excessive withholding from Rohert’s 1960 salary. It was an overpayment or a prepayment which both owned. The Settlement recites and provides that Robert and Mary file a joint income tax return for 1960. We affirm the trial court judgment denying Robert’s claim for recovery of this sum.

(2) Robert deducted on the Return as an expense the sum of $1,916.46 paid by him to his attorneys. He says such deduction reduced the tax due by $555.78, which he seeks to recover from the trust funds. It will be noted that Robert does not claim that this attorney fee in toto is a joint expense or a trust expense or that the Trust should pay this whole fee. He only asks reimbursement for $555.78 which he claims was the Income Tax saving resulting from this deduction. The attorneys to whom this fee was paid represented Robert in the divorce proceedings and he estimated he paid them about $3,000. However, he says part of their services included securing saleable title in his name to the Oppenheimer stock (At the time the marital difficulties arose it was held by Mary as his attorney-in-fact). The Settlement Agreement specifically provided that each contestant should pay his or her attorney fees. We approve the trial court’s refusal to allow reimbursement to Robert for this alleged tax saving because, first of all, we think the payment was for his own individual attorney fees in the divorce contest and its various ramifications, and if this be so, the item is not properly deductible as an income tax expense. If on Internal Revenue audit it is disallowed, the estate will be required to pay the additional tax. If the deduction is permitted to stand, both Robert and Mary will receive the benefit. If this amount of attorneys’ fees was in truth and in fact solely an Oppenheimer stock sale expense, the trust estate, including both Robert and Mary, should probably pay the fee in full but appellant does not even advance this theory.

(3 and 4) Robert remarried soon after the divorce and the 1961 Federal and State tax returns which he filed were joint — in his name and in the name of his present wife, Jean. He contends that by reason of his remarriage he was able to file a joint return and thereby save the trust estate- $3,297.59 on the Federal return and $22 on the Missouri state return. He says the taxes would have been greater by these amounts had he remained single or had he filed an individual return for 1961. That is true. However, the Settlement squarely provides that the trust estate shall pay “the income taxes due on account of and attributable to the gain realized”. The whole gain was reported on the return by Mr. Oppenheimer. The trust estate paid all — 100 percent — of the tax due as shown by the return. If later, Internal Revenue audits determine that additional taxes are due, then the estate will be required to pay those. It could not reasonably be said, we think, that more than 100 percent of the tax actually paid could be attributable to the sale of the Oppenheimer stock. We approve the finding that Robert’s claims under 3 and 4 be denied.

We have had more difficulty with the remaining two items which we shall designate as No. 5 and No. 6. (5) Mr. Oppenheimer, because he was a resident of Missouri for part of 1961, and a resident of New York for part of that year, was faced with the problem of determining whether a return should be filed in both states, and if so, what income was properly attributable to each state. Mr. Oppenheimer, or more likely his New York attorneys, consulted Touche-Ross, New York City accountants and received some advice from them on the problem. Mr. Oppenheimer in this proceeding asks that the trustees be directed to pay him $725.00 which he says is the amount of the Touche-Ross fee. No part of this fee has been paid by Mr. Oppenheimer, the record contains no bill in any amount from Touche-Ross, and no attempt was apparently made to show that the $725 was a reasonable fee for their services. Accounting fees incurred in the preparation of tax returns which are reasonable in amount would be, we think, a tax expense and under the Agreement, payable out of the trust funds and probably a deductible Income Tax expense item. However, we believe that under the showing here — nonpayment of the fee and with no showing as to its reasonableness, or even that this specific fee had been charged — the court properly denied appellant’s claim for payment.

(6) The trial court directed the trustees to pay Mr. Oppenheimer and his present wife the sum of $615.78, which sum had been withheld from her wages and which was credited against the tax due on the 1961 Oppenheimer return. No appeal has been taken from this portion of the judgment by either Mary Oppenheimer or by the trustees, nor has the allowance been questioned on the appeal orally or in the written briefs. Its correctness therefore is not before us for review. However, we shall comment briefly on this item. Certainly Jean should pay no part of the Robert and Mary income tax. However, Jean’s salary of $3900.01 was included in the gross income shown on the return. Jean’s tax on her salary would be almost as much as was withheld. When the full amount is returned to her, the tax due on her earnings will in effect be paid out of the trust funds and Jean personally will have paid no tax.

Prior to the commencement of the present litigation the trustees had made three partial distributions, including accrued child support and alimony payments and the sum of $25,466.96 for Federal and State income taxes, leaving an undistributed balance of $12,956.28. In the present lawsuit the trustees asked the court to approve, and the court by its judgment did approve, the three accountings and the partial distributions there reported. The amount of moneys therein accounted for and distributed is far in excess of $15,000, the jurisdictional limit of this court. However, neither party questions those three settlements in any respect and no appeal has been taken from that portion of the judgment. The undisputed balance ($12,956.28) is within our jurisdiction and the items actually in dispute on this appeal are in an even lesser amount. This court therefore has jurisdiction.

The judgment below ordered a further or fourth distribution, including payment of accrued alimony and child support allowances and then directed the trustees to liquidate and cash the remaining assets (of undetermined value) and hold such funds, together with any others not already distributed or ordered to be distributed “until three years from the date of filing of the 1961 Federal, New York and Missouri income tax returns of Robert Oppenheimer, or until further order of this court”. The exact amount of the funds so sequestered does not appear but it is only a few thousand dollars. We believe there is a likelihood of further income tax assessments arising (a) from the doubtful deduction of $1,916.46 as attorney fees and (b) from a possible New York State assessment. The order to hold the funds for three years (Statute of Limitations period) or until the further order of the court seems reasonable and we shall not disturb it.

We have examined some of the cases cited by appellant and by respondents. We do not disagree with the principles and rules pronounced therein. But none of those cases is decisive on the issues presented by our particular case. The facts here are peculiar to this case and exactly similar facts will not, we think, be found elsewhere. The decision here should, must and does rest upon the application of equity to our facts, with special emphasis upon the Property Settlement Agreement and the 1961 Income Tax Return.

We believe the trial court’s judgment is not clearly erroneous, but is rather, supported by the evidence. The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the ocinion of the Court.

All concur.


author: HUNTER, Judge.

text:
    Ronald R. PORTER, Plaintiff-Appellant, v. Warren T. SMOOT, Jr., Defendant-Respondent.
    No. 23842.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Lantz Welch, Quinn, Peebles & Hickman, Kansas City, for appellant.
    Byron J. Beck, Karl F. Schmidt, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
   HUNTER, Judge.

Plaintiff, Ronald R. Porter, sued defendants, Warren T. Smoot, and John A. Chud-ley for $11,000 for personal injuries and for damage to his car. The jury verdict and judgment were for plaintiff and against defendant Smoot, and in favor of defendant Chudley in the amount of $150.00 for property damage, and in favor of both defendants on plaintiff’s claim for personal injuries.

Plaintiff has appealed only from the judgment for $150.00 against defendant Smoot, claiming the trial court erred in failing to grant a new trial on the issue of damages, because the verdict was against all the evidence and was contrary to defendant Smoot’s admissions in his opening statement and closing argument.

On April 20, 1960, about 4:15 p. m. plaintiff was driving his three months’ old Morris Minor “compact” automobile in a southerly direction on the inside lane on Main Street in Kansas City. As he approached the Plaza district and was just north of 47th Street he drove down a long hill. About half way down it was a pedestrian blinker light which turned red. Plaintiff stopped his car at the pedestrian crosswalk pursuant to the red light.

Meanwhile, defendant Smoot in his 1955 Plymouth car was also driving south on the inside lane on Main Street. He came over the crest of the hill, proceeded down it and came to a stop about ten feet behind plaintiff’s stationary vehicle. To quote Smoot, “I was sitting there with my foot on the brake pedal to hold the car, and the pedal went to the floor and I rolled into Mr. Porter’s car.” * * * “The first thing I did was pump the brake pedal, which is a normal reaction, and the next thing I remember doing was putting the car in a lower gear in hopes that it would slow it down, and then I reached for the emergency brake, pulled it out.” There was considerable evidence from several witnesses to the effect the front flex line of the braking system of Smoot’s car had broken making the foot brake ineffective, and that defendant Chud-ley, a service station operator, had done some brake work on the car several weeks before the accident.

According to Smoot’s testimony the greatest speed his car attained in the ten foot distance before it struck plaintiff’s car was one mile per hour. The impact knocked plaintiff’s car forward “maybe five, ten feet.” As to the resultant damage Smoot stated, “The only damage that I noticed to Mr. Porter’s car was the bumper had a very small dent in it. * * * about as big as the end of your thumb.” Smoot also stated his own car had “just a little scratch on the bumper.”

Plaintiff testified to a considerably more substantial impact and damage to his car, produced a repair bill in the sum of $145.00 and stated his car was worth $150.00 less immediately after the impact than just before it. Plaintiff did not see defendant’s car before the impact and did not have any personal knowledge of the Smoot car’s speed at the time of the impact.

Turning to plaintiff’s evidence Concerning his claimed personal injuries, plaintiff stated at .the scene of the accident that he was not injured. He said he had no pain at the scene, nor any cuts or bruises. He was “shook up”, but went on home. There he was “a little nauseated.” Before he went to bed he called up his best friend, a law student, who was then an employee of the Kansas City law firm presently representing plaintiff in this action and now a trial attorney in that firm. His friend went right out and took a statement from defendant Smoot on a recording machine.

The next morning, according to plaintiff, he got up and his neck was stiff and his back was sore. The following day he had the same condition so he contacted Dr. Huffman, an osteopath, who treated him a little less than a year for his complaints of terrific blinding headaches, a very stiff and sore neck, a very painful right shoulder and a dull pain in the lower center of his back that ripped down his right leg. Dr. Huffman used a kind of collar machine that would gradually raise and lower his head and gave him heat therapy, ultrasonic therapy and medicine. Dr. Huffman also took some X-rays, principally of the neck and back region. He saw Dr. Huffman about forty-five times and his medical bill was $340.00.

Plaintiff testified he was still having difficulty with his neck, with headaches and upper back-shoulder area when he met Dr. Yennie, a chiropractor, at a social gathering in the summer of 1961. On June 21, 1961, he switched over to Dr. Yennie, who treated him to the date of the trial, for a total of about sixty times at a cost of approximately $270.00. These treatments consisted of corrective manipulation, massage and heat. Plaintiff’s complaints at trial time included headaches though less frequent, continued difficulty with his right shoulder and upper hack, infrequent low back trouble, excessive fatigue and reduced efficiency at work.

On cross-examination plaintiff conceded that he was never confined to bed and other than the first seven days after the accident he worked regularly and in an employment involving considerable physical activity. His income from his employment continued to rise with each passing year. While he had “excessive” and “unnatural” fatigue he continued his normal social activities, including some swimming. He was able to do about everything at home and at work that he could do before the accident but experienced the mentioned fatigue. He admitted being in an automobile accident seven years ■earlier in which the driver of the car in which he rode was killed, and he settled his ■claim of personal injury for his back, which was just sore a week or two, for $500.00. In February, 1961, he applied for life insurance and in response to a question concerning claims for disability stated he had a whiplash neck injury in April, 1960, but that he “now” was in good health.

Generally, both Dr. Huffman and Dr. Yennie to some extent in their testimony supported plaintiff’s claim of injury from the accident in question. However, each found a congenital defect in plaintiff’s back. Doth treated plaintiff principally on the basis of his subjective complaints. Both found some minimal muscle spasm about the neck, which under a hypothetical question they attributed to the accident in question. Dr. Huffman concluded plaintiff’s injuries to be “a sprain or strain to the cervical muscles and associated ligaments. Also a sprain and strain of the low back.” When asked if the forty-five treatments he gave were necessary he replied, “Well, at first I certainly didn’t think they would be. However, he continued to complain, and since I am unable to see pain or I can’t look at a patient and tell whether he is uncomfortable or not, if he says he is sick, he is sick, I am going to treat him.” Both doctors stated in the past they had been employed by plaintiff’s present law firm counsel to examine other persons and to testify in other cases.

The defendants offered no evidence in the case.

We first discuss plaintiff’s contention that the trial court erred in failing to grant a new trial on the issues of damages only, because the verdict was against all the evidence in the case.

Where a jury in a personal injury action by its verdict has found liability it is bound to award plaintiff such damages, if any, as are commensurate with the nature and extent of the injuries incurred. The determination of that amount is primarily for the jury. Coghlan v. Trumbo, Mo.Sup., 179 S.W.2d 705, 706; Donahoo v. Illinois Terminal Railroad Company, Mo.Sup., 300 S.W.2d 461, 469.

In passing on plaintiff’s motion for a new trial, which asserted the inadequacy of the damage award, the trial court weighed the evidence, and by overruling the motion in effect approved the amount of the award and found it to be not against the weight of the evidence.

Unlike the trial court, this court on plaintiff’s appeal from the order overruling his motion for a new trial based on inadequacy of the verdict amount, does not weigh the evidence but determines only whether the trial court abused its discretion in ruling as it did. Roush v. Alkire Truck Lines, Mo.Sup., 245 S.W.2d 8, 10; Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73.

In determining whether the verdict is grossly inadequate we must consider the evidence favorable to the verdict returned because it was the peculiar province of the jury on the trial, and the trial judge on the motion for a new trial, to pass upon the weight of the evidence and the credibility of the witnesses.

Several grounds are now recognized as individually sufficient for granting relief against either excessively large or shockingly inadequate awards. They were recently summarized in Pinkston v. McClanahan, Mo.Sup., 350 S.W.2d 724, 728: “‘[T]he test is and the fact of inadequacy is made to appear when the verdict is so meager as to be shocking and can be accounted for or justified only on the hypothesis that it resulted from passion and prejudice on the part of the jury.’ But many cases recognize hypotheses other than passion and prejudice alone as accounting for, and as a ground of relief against either excessively large or shockingly inadequate awards. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050, 1056, enumerates ‘passion, prejudice or misconduct of the jury.’ Vogrin v. Forum Cafeterias of America Inc., (Mo.) 308 S.W.2d 617, 622, says this: ‘As to inadequacy of damages, the rule is that the jury’s discretion is conclusive on appeal unless the verdict is so grossly or shockingly inadequate as to indicate that their discretion has been arbitrarily exercised and abused or is the result of passion and prejudice.’ (Emphasis supplied.) See, also, Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115.”

It is, of course, possible for a jury to find liability and also find that only property damage and no personal injuries resulted, if the evidence so permits. Such a verdict is not necessarily inconsistent. Not everyone who suffers property damage to his automobile in a collision is also personally injured. Different proof is required as to the claim of property damage and the claim of personal injury by plaintiff. The jury in a particular case might be satisfied by the evidence on the issue of property damage but not satisfied by the evidence that there was any personal injury at all, and properly find, under the instructions, the claimed property damage and also find no personal injury resulted to plaintiff from the accident. See, Skadal v. Brown, Mo. Sup., 351 S.W.2d 684.

In Davidson v. Schneider, Mo.Sup., 349 S.W.2d 908, 913, plaintiff sued for $35,000 for personal injuries and $250.00 for damage to his automobile. The jury’s verdict was for $531.50 and plaintiff appealed, alleging inadequacy. In affirming the trial court, our Supreme Court noted, “The jury could find from the conflicting evidence that the plaintiff’s complaints were all subjective, that his injuries were in fact trivial or not serious in the end result and they have awarded him his actually established financial losses. Thus upon this record ‘the verdict can be reasonably accounted for on the theory that the jury believed only enough of plaintiff’s evidence to fix liability’ (Grodsky v. Consolidated Bag Co., 324 Mo. loc. cit. [1067] 1083, 26 S.W.2d loc. cit. [618] 624) and having commensurately made an award there is no occasion for this court’s interference. Grayson v. Pellmounter, Mo.App., 308 S.W.2d 311.”

In Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915, 920, plaintiff sued for $25,000 personal injury damages and recovered only $1,000. The trial court refused to grant a new trial. In affirming, the coúrt pointed out, “The jury had the whole record before them, they could determine the credibility, weight and value of each witness and particularly the weight and value of appellant’s own testimony concerning the pain, suffering and difficulties experienced * *

Applying the foregoing established rules to the evidence before us we have concluded that it does not show as a matter of law that the trial judge abused his discretion in refusing a new trial because of the alleged inadequacy of the verdict. In performing its function of weighing and evaluating the testimony the jury could consider as persuasive on the issue of injury or no injury the evidence that plaintiff stated at the scene he was not injured; that prior to seeking medical aid he consulted a law student employed by the present law firm handling this case; that he had no cuts, bruises, broken bones, or other apparent manifestations necessarily demonstrating injury (with the possible exception of some muscle spasm or tenderness as testified by plaintiff’s doctors) ; that he was never confined to bed; that he substantially continued his former activities and work and lost no wages; that in February, 1961, he stated to an insurance company that he was in good health; that he had a minor back injury seven years earlier and that he also had a congenital defect that could possibly account for some of his complaints. This evidence plus other evidence in which he had to correct a few misstatements in his deposition which at least to some extent bore on the issue of credibility is such as to prevent us from declaring that the trial court erred in the respect charged.

Plaintiff calls our attention to the recent cases of Wise v. Towse, Mo.App., 366 S.W.2d 506, and Hay v. Ham, Mo.App., 364 S.W.2d 118. However, those case are quite distinguishable on their facts and concern and rule entirely different questions. In the Wise case the court erroneously refused to allow the jury to consider certain evidence of medical expense, and in the Hay case the jury was permitted to consider and it allowed certain medical expenses. The question was whether the evidence was sufficient to support that action.

Plaintiff’s other contention is that the verdict was contrary to defendant Smoot’s counsel’s admissions in his opening statement and closing argument. Plaintiff claims Smoot’s counsel made the judicial admission that plaintiff suffered some personal injury from the accident, and that therefore the verdict must grant some damages for the admitted personal injury to escape being reversibly erroneous. The difficulty with this contention is that a fair reading of what plaintiff’s counsel said not only does not amount to a judicial admission of some injury (see Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 155) but in fact was no more than a part of Smoot’s counsel’s trial technique in which he took the general position that if plaintiff had any injury it was at most only minor. In his answer Smoot’s counsel specifically denied that plaintiff had received any injury from the accident, and in his general conduct throughout the trial he did not abandon that denial. We find no merit in plaintiff’s contention to the contrary.

The judgment is affirmed.

All concur.


text:
    Christine RUTLEDGE, Appellant, v. Margaret BALLANCE, Respondent.
    No. 23877.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Henry L. Graf and Morris Dubiner and Dubiner & Gregg, Kansas City, for appellant.
    C. William Garver, Kansas City, for respondent.
   HUNTER, Judge.

This is a suit for personal injuries in which plaintiff sought damages in the sum of $15,000. Upon trial, the verdict and judgment were for defendant. This appeal by plaintiff followed.

The single question presented on appeal is whether the trial court committed prejudicial error in refusing to allow plaintiff’s husband as a witness to testify to an alleged admission made by the defendant as to how the collision in which plaintiff alleges she was injured occurred.

Plaintiff was a passenger in an automobile being driven by defendant east on Linwood Boulevard between Brooklyn and Park Streets in Kansas City, Missouri. It was plaintiff’s trial theory that no third car was involved but rather that as defendant drove slowly along the middle lane of the three lane street she negligently turned her car to the right hitting one of the automobiles parked on the south side of Linwood Boulevard injuring plaintiff. It was defendant’s trial theory that although she personally did not see or feel another car strike her car and of her own personal knowledge does not know why her car turned right and struck the parked car, she relied on the testimony of her witness that a third car proceeding along behind her car pulled out to the left and around her car to pass it and in the process hit her car’s rear bumper and swung her car around enough to cause it to strike the parked car.

Turning to the incident before us, plaintiff’s husband testified that he arrived at the scene of the accident shortly after it occurred. He was asked: “Q. Now, did you ever hear Mrs. Ballance (defendant) tell you at any time what happened ? Mr. Gar-ver: Objected to as calling for hearsay. The Court: Sustained.” In making the offer of proof outside the jury’s presence the witness gave his answer as to what defendant said to him at the scene of the accident: “A. I said,‘What happened? What took place?’ She said, T don’t know, just all of a sudden the first thing I turned into this car.’ ”

It is the general rule that an admission of a party against his interest of a material fact relevant to an issue in the case is competent against him as substantive evidence of the fact admitted. The rule under which such evidence is admitted is a well recognized exception to the hearsay rule, and proof of such an admission does not depend for its admissibility on its conforming to any other exception to the hearsay rule, such as res gestae. 31A C. J.S. Evidence §§ 272 and 317, pp. 696 and 801 respectively; Roush v. Alkire Truck Lines, Inc., Mo.Sup., 299 S.W.2d 518.

Thus, the trial court erred in sustaining the objection to the question and offered answer set out above. The rejected testimony was of a material fact relevant to a vital issue (liability) in the case.

Defendant contends the error could not be prejudicial because the offer-of-proof answer was merely cumulative evidence and its refusal was of no prejudice to plaintiff. If the refused testimony was merely cumulative and its refusal did not prejudice plaintiff, the verdict and judgment should stand, for cases are not to be reversed because of the commission of harmless error. Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47.

However, we are unable to agree with defendant that the error was not prejudicial. There were only three witnesses who testified on the liability question, the defendant, the plaintiff and defendant’s witness Haynes. As it turned out, plaintiff’s husband, Rutledge, was the only witness of plaintiff’s to whom defendant told what happened to cause the collision and Rutledge’s statement is reasonably subject to the interpretation that defendant herself, without any third car being mentioned or involved, turned her car into the parked car. While the transcript contains other statements of defendant, some made during the trial and some in an earlier deposition (some of which may possibly be considered as admissions against interest) in none of them does defendant admit she turned her car into the parked car. Rather, defendant carefully refrained from any such statement, took the position she did not know why or what caused her car to strike the parked car, and then adduced the testimony of a spectator to the general effect that it was a third car which struck defendant’s car in the rear, causing it to strike the parked car. In the light of this testimony we are constrained to hold that the error was prejudicial and to order a new trial in what otherwise was a well tried case.

The judgment is reversed and the cause is remanded for a new trial.

All concur.


author: PER CURIAM.

text:
    Sula LYNCH, Respondent, v. RAILWAY MAIL ASSOCIATION (United Federation of Postal Clerks Benefit Association) a Corporation, Appellant.
    No. 23908.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      D. D. Bonewits, William M. Day, Kansas City, for appellant.
    Allan R. Browne, Ennis, Browne & Martin, Kansas City, for respondent.
   PER CURIAM.

This is an action upon an accident insurance policy. Plaintiff recovered a verdict and judgment for the face amount of the certificate, $5,000, together with interest thereon. Defendant appealed.

On October 22, 1927, appellant issued to William Boyd Lynch, a postal employee of the Railway Mail Service, the policy sued on. Plaintiff, Sula Lynch, insured’s wife, was the named beneficiary. The policy provided that no benefit would be paid “where death * * * results from voluntarily inflicted injuries * * *.” Insured was found dead in Room 702, Plaza Hotel, in Kansas City, Missouri, on March 23, 1958. Appellant’s defense was that insured committed suicide.

In the early morning of March 23, 1958, insured together with a fellow employee, Paul Armbruster, was at work in a mail car on the Missouri Pacific Railroad. Their run was from St. Louis to Kansas City. Armbruster testified that insured, whom he called “Joe” was required to carry a revolver “because he had a register run.” This revolver was a 38 stub-nosed Colt, and was carried in a hip holster. The two arrived in Kansas City about 7:00 a. m. and went to the Plaza Hotel; that it was their custom to request the clerk in charge of the hotel office to call them at 6:30 p m

Armbruster testified: “I was sitting in the hotel lobby about 7:00 in the evening and I heard the clerk talking to bellboys that he couldn’t raise Joe. Two colored boys and I went to Room 702. The door was ajar, possibly three inches and we went in. I saw Joe crossways across a single bed. There were two beds. He was on the one nearest the door crossways on his back with his head over the edge and his feet were on the floor on the opposite side of the bed, at right angles to the length of the bed. I saw a wound in the right side of his head, halfway between the eye and the ear in the hairline. The left side of his head was quite bloody and there was a pool of blood on the floor under his head. He was dressed in shorts and T shirt. The revolver was between his legs.” Armbruster remained in the room until the police came. He was asked to leave the room while the police took pictures.

The evidence showed that the bullet had entered insured’s right temple and came out behind his left ear. All of the witnesses agree that the revolver had no safety; that there were no powder burns, and that no note was found.

Several witnesses described insured as a “genial” person, “easy to get along with; a happy person; jolly and never morose or depressed.” Mr. Armbruster said that the night before insured’s death “was just an ordinary night, nothing unusual happened;” that insured “was always telling a joke or wisecracking.”

Respondent testified that she married insured in 1924; that it had been a happy marriage; that their financial condition was normal; all of the children were raised and away from home except a daughter; that they had ten grandchildren, were a happy family, enjoyed their home life and the daughter was expecting to be married; that the children returned home and had a reunion every summer; that insured looked forward to the children coming home, and they were expecting them to come that summer and had planned trips and cookouts; that her husband was not a churchgoer; but he believed in the Bible, lived by the Bible and taught his children the Bible; that he loved his job, and had been a regular worker since 1933; that he slept with the pistol under his pillow at home; that she knew of no reason why he would want to take his own life.

We will first consider appellant’s last point — that respondent failed to make a submissible case. If it is well taken then, of course, there will be no need to discuss appellant’s remaining contentions.

The law pertaining to the instant case is free from doubt. As stated in the case of Mayhew v. Travelers’ Protection Ass’n of America, 52 S.W.2d 29, 32, Mo.App.:

“It is well-settled law that in an action on an accident insurance contract, such as is in suit here, the burden is on the plaintiff to show that the death of the insured resulted from an accident. But by showing that the cause of death was violent, the plaintiff establishes prima facie that the death was accidental.”

In the fairly recent case of Edwards v. Business Men’s Assur. Co. of America, 350 Mo. 666, 168 S.W.2d 82, our Supreme Court reviews many cases and says:

“It is well settled in this state that, where the evidence is wholly circumstantial, suicide cannot be declared * * * as a matter of law, unless such circumstances exclude every reasonable hypothesis except suicide.”

The plain truth is that the undisputed evidence in the instant case completely excluded every conceivable reason for intentional or voluntary self-destruction. What was the evidence? There was no suicide note, nor were there any threats of suicide. There was no powder burn, and common knowledge tells us that one intending to shoot himself would likely place the weapon near or against his person. The undisputed evidence was that a gun held close to the temple and fired would produce powder burns. The deceased had left a call to be aroused from his sleep so that he could go to work. He was happily married. He owed no money except current bills. He had beloved children and grandchildren, with whom he was anticipating a visit soon. He was not sick. He had no extra-marital affairs. He was a steady worker with a good job. He was jolly, fun-loving, a good joker, and not morose or depressed. He had good friends and fellow workers. He had an interest in the future. He was religious and taught his children that it was a sin to commit suicide.

In the Edwards case, supra, the insured said before he died that he had shot himself. The wound had powder burns. The insured had taken a revolver to the bathroom and locked himself in. He had suffered from impaired vision, hearing loss, nervousness, extreme pain requiring sedatives. His mouth had been eaten away by cancer. In addition to his physical afflictions the insured had become involved in financial reverses and there was an indictment pending against him. Yet the Supreme Court held that a case was made upon the basis of an accident.

In the case of Gilpin v. Aetna Life Ins. Co., 234 Mo.App. 566, 132 S.W.2d 686, there were many factors in the evidence, any one of which might be considered to have impelled a person voluntarily to take his life. The deceased had venereal disease. He had been off work for a period. He had been indulging in extra-marital affairs. He was a spendthrift. He said he could only pay his debts by death. He was at an isolated place, had only bought three gallons of gas, and had powder burns. Notwithstanding those facts this court held that plaintiff made a submissible case for the jury.

The case of Bear v. Sovereign Camp, W. O. W., 207 Mo.App. 82, 230 S.W. 369, was also by this court. In that case there was strong evidence pointing to death by suicide. Yet this court held the question was one for the triers of the fact. So in the instant case (the evidence being wholly circumstantial) we hold that the question of whether or not insured came to his death by reason of an accident was for the jury to determine.

Appellant contends that it was error to admit into evidence Exhibits 5 and 6, which were photographs of decedent and his family taken in the fall of 1957. Respondent says these photographs were merely cumulative evidence of happy family life and were properly admitted on the important issue of lack of motive for the deceased voluntarily to inflict fatal injuries upon himself. The determination of the relevancy and materiality of a photograph in the first instance-is left to the sound discretion of the trial judge and his ruling in that regard will not be held error on appeal unless that discretion has been abused. State ex rel. State Highway Commission v. Cone, 338 S.W.2d 22, 27, Mo.Sup.; Hutchison v. Moerschel Products Co., 234 Mo.App. 518, 133 S.W.2d 701, 706. We find no reason to convict the lower court for an abuse of discretion in admitting the exhibits.

Appellant also contends that the court erred in admitting into evidence respondent’s Exhibits in the nature of tests showing powder burns from shots fired at various distances. In the first place, the evidence was merely cumulative of undisputed evidence, not objected to by appellant, from the deputy coroner, that there would be powder burns if the gun had been held directly against the temple and fired. The witness testified that the gun was similar, that the test was made in-doors where there were no air currents, that the revolver was first held as if against a temple, by being placed against a flesh-colored cardboard, and then the weapon was withdrawn in successive distances of six inches and discharged to determine the powder marks at each distance. In the case of Lynch v. Missouri-Kansas-Tex. R. Co., 333 Mo. 89, 61 S.W.2d 918, 921, it was said:

“The appellate courts have quite uniformily maintained a very commonsense attitude with regard to the admission or rejection of experimental evidence in the court below. Admission of evidence of experiments, or permitting them to be performed in court, is a matter peculiarly within the discretion of the trial judge. His discretion in this regard should not be interfered with on appeal unless it is manifest that it has been abused. One reason for the rule leaving the admission or rejection of experimental evidence to the discretion of the trial court is that such a court is in a better position than the appellate court to judge of the similarity of conditions. But a much stronger reason is that the trial judge should not be hampered by arbitrary rules which, if drawn in detail as to this class of evidence, would obviously be so technical as to be difficult of application and productive of appeals.”

We rule the contention against appellant.

Appellant also asserts that the court was in error in giving Instruction No. 2 at plaintiff’s request. The instruction told the jury that in considering whether insured “voluntarily inflicted such a wound, if so, you may not indulge in surmise, guesswork or speculation outside of and beyond substantial evidence, and the reasonable inferences directly deducible therefrom, and you may further take into account the common knowledge that normal human beings love life and shrink from death.”

The instruction did not, as appellant asserts, “refer to and employ the presumption against intentional suicide because of love of life by humans, a presumption which is not in this case.” It did refer to “the common knowledge that normal human beings love life and shrink from death” as an evi-dentiary fact. In the Gilpin case, supra, one of the leading cases in this state on this type of accidental death, this court held that even where the facts are consistent with either an accident or suicide the common knowledge of love of life acts “as an evidentiary fact”. There was no submission, therefore, as to presumption, but only as to this evidentiary fact of common knozul-edge.

In the well considered case of Parker v. Aetna Life Ins. Co., 289 Mo. 42, 232 S.W. 708, 709, 716, our Supreme Court said: “[W]e have no doubt that it would be entirely proper * * * for the jury to consider in reaching their verdict, that the love of life is the strongest instinct of a human being, and no man ought to be presumed to commit suicide.”

In any event we fail to see how appellant, under the facts in this case, was prejudiced. Appellant presented absolutely no evidence supporting its defense of suicide— nothing but surmise and speculation. And we are admonished by the statute (Section 512.160) not to reverse any judgment unless we believe that error was committed by the trial court materially affecting the merits of the action.

Appellant also contends that respondent made such admissions in furnishing her proof of loss as to preclude her right to recover. Appellant refers to the certificate of death and statement of the Coroner and says that both state that insured came to his death “apparently by suicide.” There is no such statement in either. The question relating to suicide was marked with a question mark. In any event, the question called for a mere “conclusion” and not the statement of a “fact.” Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 207 S.W.2d 279, 287; Schmidt v. Supreme Council of Royal Arcanum, 207 S.W. 874, 877, Mo.App. There is no statement in the entire transcript emanating from respondent that the insured came to his death from voluntarily or intentionally self-inflicted injuries.

Finding no error in the transcript prejudicial to appellant, the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Elmer MILBY et al., Appellants, v. LOUISVILLE GAS & ELECTRIC COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    June 21, 1963.
    As Modified on Denial of Rehearing Feb. 7, 1964.

      Davis Williams, Munfordville, for appellants.
    Stokes A. Baird, Charles R. Richardson, Munfordville, Peter, Heyburn & Marshall, Gavin Cochran, Samuel R. Wells, Louisville, for appellee.
   CULLEN, Commissioner.

The Louisville Gas and Electric Company brought proceedings, under KRS 278.501, to condemn the right to store natural gas in an underground storage field below a 92-acre tract of farm land owned by the Milby family. Certain surface easements necessary for the storage operations also were being condemned. The jury in circuit court awarded damages of $13,000 and judgment was entered accordingly. The Milbys have appealed, primarily on the basis that the damages are inadequate, and the gas company has cross-appealed, contending the damages are excessive.

A number of points will require discussion, but we shall say at the outset that the damages are excessive. The taking involved three things: (1) The surface easements; (2) the use of an existing gas well; and (3) the underground storage rights. (The Milbys also claimed there was a taking of existing gas in the underground field, but there was no probative evidence of the amount or value of existing gas.) Witnesses were permitted on the trial to put a separate market value on each item of damage instead of confining their estimates to before and after values of the whole tract, which violated the rules stated in Commonwealth v. Stamper, Ky., 345 S.W.2d 640, so we shall discuss the estimates as made without implying approval of the approach used.

The highest estimate of damage by the condemnor’s witnesses was $1950 for the surface easements, $2175 for loss of the use of the existing gas well, and $800-for the storage rights — a total of $4,925. The highest estimate by the Milbys’ witnesses was $2,000 for the surface easements, '$12,900 for the existing well, and an astronomical figure of some $6,000,000 for the storage rights. Most of the testimony of the Milbys’ witnesses concerning value of the storage rights was stricken, and it all should have been stricken (proper objections and motions to strike were made) because the witnesses obviously were not undertaking to express opinions as to market value but were estimating value on the basis of what it would cost the gas company to provide substitute surface storage-facilities, such as metal tanks. Such evidence clearly was improper under the rule stated in West Virginia, P. & T. R. Co. v. Gibson, 94 Ky. 234, 21 S.W. 1055, that:

“ * * * The issue * * * is not what the land is worth to the appellant [condemnor], or how profitably it may use it in its business, nor the costs and expenses it would be compelled to incur in obtaining other property, or in fitting it for its business, if it failed to obtain that particular property. * * * ”

See also 2 Lewis, Eminent Domain, sec. 706, p. 1231.

The witnesses for the Milbys said that the existing well, which produced gas only for use in the dwellings and outbuildings on the farm, furnished a supply of gas that would cost $300 a year if purchased from a gas utility company. Because of this production the witnesses said the well was worth some $12,000. Obviously this value estimate is excessive. $7,500 invested at four percent would produce $300 a year, so in our opinion a value in excess of $7,500 could not be attributed to the well. Even the latter sum would be too high because it does not allow for the expenses of servicing and maintaining the well, nor for depreciation of the equipment. (The evidence shows that the well did not produce gas of commercial value—the gas was suitable only for use on the farm.)

Since the top value attributable to the existing gas well is less than $7,500 and the highest estimate of damages for the surface easements was $2,000, the combined damages for these two items would be something less than $9,500. The evidence for the gas company was that the storage space had a value of $800, reached by capitalizing at six percent the standard rental being paid for leases of other comparable storage space. We think the jury would have been entitled to capitalize the rentals at four percent instead of six, which would put the value of the storage space at $1,200. Adding this to the other damages would make a total below $10,700. It thus is apparent that the verdict of $13,000 is in excess of the highest amount that could be supported by the evidence.

We are reversing the judgment because of excessive damages. Upon retrial the case will be governed by the principles laid down in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, particularly the principles that taking damages are not to be separated from resulting damages, and that the evidence is to be addressed solely to difference in market value of the whole tract before and after the taking.

Under the Sherrod case and under Commonwealth, Department of Highways v. Stamper, Ky., 345 S.W.2d 640, the witnesses in estimating “before” value will be entitled to give consideration to the existing gas well and to the underground storage space as elements of value, to the extent that they can be shown actually to enhance the market value of the tract. But this mean’s an actual market enhancement—it means that the existence of the well and the storage space must be factors that would enter into the sale price on an available potential market.

As concerns the well, it appears that the availability of gas for domestic use on the farm might enhance the market value of the farm in some reasonable relationship to the value of the gas supply from the well, so it would be proper for the witnesses to testify as to what features of the well would tend to enhance the value of the farm, and the extent of the enhancement. But such testimony would have probative value only up to the point the estimated enhancement would be credible to reasonable men. See Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472. As indicated above, an estimated enhancement of more than $12,000 for a well producing gas worth only $300 a year would not be credible.

As concerns the underground storage space, a difficult problem is presented, because, as far as the record in this case shows, there have been no known sales in Kentucky of underground gas storage rights nor any sales of land in which the existence of underground, gas storage space was a factor in the sale price. However, there have been a substantial number of leases of underground storage space.

The gas company introduced evidence that leases of underground gas storage space had been obtained on a large number of tracts in the Magnolia Storage Field (of which the Milby land is a part) at a standard rental of 50 cents per acre per year. We think that an established lease value is a fair basis from which to measure market value. In Cornwell v. Central Kentucky Natural Gas Co., Ky., 249 S.W.2d 531, this Court tacitly approved valuation of underground gas storage space by capitalizing a lease value of 50 cents per acre per year, which was shown to be the going lease value in the community. A similar approach was approved in United Fuel Gas Co. v. Allen, 137 W.Va. 897, 75 S.E.2d 88. So it would seem that upon the new trial of this case the witnesses would be entitled to give consideration to lease value of the underground storage space as a factor entering into the market value of the Milby tract.

A problem arises, however, from the fact that the only leases referred to on the first trial were leases held by the Louisville Gas and Electric Company on other tracts in the Magnolia Storage Field. The Milbys argue that evidence of the rental paid in such leases is not admissible under the rule that evidence of prices paid by the con-demnor for similar properties is not admissible. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880. And the gas company, although it is willing that the lease rentals be considered as evidence of market value, argues that no one has leased any underground gas storage space except public service corporations having the power of eminent domain; that such companies have no use for one tract in a large storage field unless they can acquire control of the entire field (because gas pumped into the space under one tract could escape to other parts of the field) ; that the storage space has no use value except for the special purposes of a public service corporation; and therefore the storage space under a single tract has no actual market value.

Both parties agree, however (and there is evidence in the record to support it), that there is strong competition among gas suppliers and gas pipeline companies for underground storage space. This fact, we think, distinguishes this case from Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169, where it appeared that the underground storage space sought to be condemned had no use value to anyone other than the particular condemnor for one particular project.

In view of the fact that there is a competitive demand for underground gas storage space it is our opinion that rental prices paid in negotiated transactions for such space should be entitled to consideration as bearing on the mai-ket value of the land below which the space lies, even though the demand is only by public service corporations having the power of eminent domain, and even though the demand for an individual tract is conditioned to some extent on the prospect of the corporation’s being able to acquire control of the entire storage field. It also is our opinion that the mere fact that the particular condemnor has succeeded in obtaining control of most of a particular field, and thus has created a situation in which no other public service corporation would have any use for the individual tract sought to be condemned, should not preclude the assignment of a market value to the lease rights in the tract sought to be condemned, in accordance with the rental price paid for leases of other comparable rights. Any other view would enable the condemnor to obtain parts of a storage field for nothing, even though the field as a whole would have a substantial value on a competitive market.

We do not mean that a rental price paid in one single isolated transaction could be considered as acceptable evidence bearing on market value. But the number of leases here involved (77), at a standard rental, is sufficient, we think, to establish the rental as a reliable indication of value.

Our conclusion, then, is that upon another trial of this case the established rental price paid for leases of underground gas storage space as shown by a substantial number of negotiated transactions may be considered as a factor bearing on market value of the Milby land, regardless of whether the leases were taken by the particular con-demnor here or by some other public service corporation having the power of eminent domain.

We are required to give an attention to another factor claimed to have a bearing on the market value of the Milby land. It appears that prior to the institution of the proceedings to condemn the storage rights under the Milby land the gas company had pumped some gas into the Magnolia Storage Field, through wells located on other tracts. It is claimed that some of that gas had flowed into the space under the Milby land and therefore, under the decision in Ham-monds v. Central Kentucky Natural Gas Co., 255 Ky. 685, 75 S.W.2d 204, such gas was subject to being recovered by the Milbys as their personal property. As hereinbefore stated, there was no evidence of the amount or value of such gas. It is our opinion that upon another trial a qualified witness could be permitted to testify as to enhancement of the market value of the Milby tract by reason of the existence of a supply of gas underneath the tract, but such testimony would have credibility only to the extent that it had reasonable, rational and logical support. Certainly no substantial enhancement of value could be attributed to the gas supply in the absence of a showing that there was commercially recoverable gas of some substantial quantity.

What we have said concerning the major issues in the case malíes it unnecessary for us to discuss many of the 23 separate claims of error asserted by the Milbys. However, some of the claims relate to matters that may arise on another trial, so we shall express our opinion concerning them.

A witness for the gas company was permitted to testify as to the value of the existing well on the Milby farm, to the company for its purposes. This was error, because as hereinbefore stated, the value to the condemnor is not the test. The existing well was a factor to be considered only as it enhanced the market value of the land.

Counsel for the Milbys, for purposes of cross-examination of one of the gas company’s witnesses, should have been permitted to examine a paper which the witness had referred to in giving his testimony. See Wigmore on Evidence, 3rd Ed., Vol. Ill, sec. 762, pp. 108, 109.

The court properly awarded the burden of proof to the condemnor, both parties having appealed from the county court. See Commonwealth, Department of Highways v. Snyder, Ky., 309 S.W.2d 351.

The statements by the gas company’s counsel, in argument to the jury, with reference to the status and character of the company as a public utility, were not improper, and there was no appeal to the personal and selfish interests of the jurors.

We do not consider it good practice for counsel, in closing argument, to address individual jurors by name.

Evidence as to assessed value of the land for tax purposes should not be admitted unless it is shown that the property owner turned in the assessment. See Commonwealth v. Gilbert, Ky., 253 S.W.2d 264, 39 A.L.R.2d 205.

On the direct appeal the judgment is affirmed; on the cross-appeal the judgment is reversed, for further proceedings in conformity with this opinion.


text:
    Johnnie SMITH, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    As Modified on Denial of Rehearing Feb. 14, 1964.

      Frank G. Gilliam, E. Lawson King, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Johnnie Smith, Jr., appeals from a judgment imposing a death sentence pursuant to a verdict finding him guilty of murder in killing with a knife his aunt by marriage. The sufficiency of the evidence to sustain the conviction is not questioned so it will be unnecessary in this opinion to state the circumstances of the killing. The appellant asserts 10 grounds of error, which we shall consider in the order in which they are set forth in the brief.

During cross-examination of the defendant the Commonwealth’s attorney held in his hand a jacket and asked the defendant whether this was the jacket he was wearing at the time of the killing and whether after the killing he had attempted to wash blood from the jacket. It is contended that the display of the jacket, and the references to blood, were calculated to arouse the passions of the jury. The record indicates that the jacket was rolled up while being displayed by the Commonwealth’s attorney, and, further, that there was no blood on the jacket at the time of the trial. The defendant had testified on direct examination that he got blood on his clothing at the time of the killing (which he claimed was done in self-defense). Under these circumstances it is our opinion that the displaying of the jacket, and the references to blood by the Commonwealth’s attorney, could not have had any prejudicing effect.

The defendant was arrested in his mother’s home a few hours after the killing. While in the home the arresting officers made a search. They testified on the trial that they found a man’s jacket in the washing machine, partly washed, and with evidence of blood having been on it. The appellant maintains that this testimony by the officers, and the display of the jacket by the Commonwealth’s attorney, were improper because the search by which the jacket was discovered was illegal, it having been made (it is contended) before the arrest and without consent.

The contention that the search was illegal cannot be sustained because, first, no objection was made to the search and no coercion was employed by the officers such as would induce the occupants of the house not to make an objection. See Hightower v. Commonwealth, 286 Ky. 561, 151 S.W.2d 39. Second, the premises searched were not owned by the accused and the place where the jacket was found was not in an area of the house of which he had exclusive occupancy, so he cannot complain of the search. See Combs v. Commonwealth, Ky., 341 S.W.2d 774; Lewis v. Commonwealth, 242 Ky. 628, 47 S.W.2d 66. Third, although it may be that the search preceded the arrést by a few moments, the search was practically contemporaneous with the arrest, and the arrest was not in any way a result of the'search, because the officers came to the home for the express purpose of arresting the appellant. Under these circumstances the search was permissible as incidental to the arrest. See Manning v. Commonwealth, Ky., 328 S.W.2d 421; Commonwealth v. Puckett, 277 Ky. 131, 125 S.W.2d 1011; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. In any event, the evidence concerning the jacket could have had little if any effect in the determination of guilt.

The jury was out only 34 minutes. The appellant argues that this shows the jury did not make due deliberation. There is no merit in this argument. See Beach v. Commonwealth, Ky., 246 S.W.2d 587, where the jury was out only eight minutes, and De Berry v. Commonwealth, Ky., 289 S.W.2d 495, where the jury was out only 20 minutes.

When the jurors left the courtroom for an evening meal recess, several large boxes containing folding army cots were standing in the hallway. It is argued that the presence of these cots may have created in the minds of the jurors the impression that unless they promptly returned a verdict they would be compelled to spend the night in the courthouse sleeping on the cots. The possibility of the jurors’ thus having been influenced not to give due deliberation to the case is so remote that we could not in good conscience hold that the presence of the cots was a prejudicing factor.

The taking of evidence at the trial began around 2:45 p. m. A dinner recess was taken between 6:00 and 7:15 p. m. and the case then was completed in about two more hours. It is contended that prejudicial error was committed in holding the night session. This contention is fully answered by our decisions in Anderson v. Commonwealth, Ky., 353 S.W.2d 381, and Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544.

In selecting the jury the regular panel was exhausted and bystanders were called. Appellant concedes that this was authorized by the Criminal Code (under which this case was tried), but he argues that bystanders tend to be in more of a hurry to decide a case than regularly summoned jurors, and that the fact that bystanders are not suitable is evidenced by the provision of the new Criminal Rules prohibiting the use of bystanders except by consent of the parties. We believe that the change made by the new rules evinces only the belief that it is better practice not to .use bystanders — not that the use of bystanders is inherently prejudicial. We see no compelling reasons for not continuing to apply ⅛ cases tried under the Criminal Code, the long-standing authorization for use of bystanders.

At the request of defense counsel the appellant was examined by a doctor, concerning his mental capacity to stand trial. The doctor certified that the appellant was mentally able to stand trial. The contention is made that the examination was not adequate because it was completed in ten minutes or less. However, the doctor made affidavit, in response to the assertion of inadequacy of the examination, that the time devoted to the examination was ample and the examination was adequate. There is no basis in the record upon which this court can question the doctor’s judgment on this matter.

It is maintained that the court erred in admitting appellant’s confession, because the evidence showed that the confession was obtained by use of physical violence. The answer to this is that there was no evidence that any violence was used in connection with the giving of the confession. The only evidence of violence at any time consisted of the appellant’s testimony that when he was being put in the police car after his arrest, and was in handcuffs, one of the officers knocked his hands down when he attempted to raise them, and his testimony that later, when he was brought back to his mother’s house, an officer struck him in the face when he attempted to go upstairs in violation of the officer’s order. Both of these acts by the officers seem to have had justification, and they have no apparent relationship to the later giving of the confession.

The indictment charged that the killing was done with a knife having a seven-inch blade. The proof showed that while the knife had an overall length of seven inches, the blade was only three and one-half inches long.- We find no merit in appellant’s argument that this variance between the indictment and the proof had a. prejudicial effect.

When testifying in his own defense the appellant said that one of the ■officers struck him in the face when he attempted to break away from the officer and go upstairs in his mother’s house. The ■officer was called in rebuttal and denied the striking. The appellant then offered his mother in surrebuttal, to confirm his story of being struck. The court refused to permit the mother to testify, on the ground that her testimony should have been offered in chief. We think the ruling was proper. Under any other ruling there could be an endless series of rebuttals and surrebuttals. If the mother were permitted to testify in rebuttal of the officer, then another officer could testify to rebut her, and an aunt could testify to rebut him, and so on endlessly. Furthermore, whether or not the defendant was struck was of no real significance in the case.

On the whole record we find no error prejudicial to the substantial rights of the appellant.

The judgment is affirmed.