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    Oscar ERBES, Respondent, v. UNION ELECTRIC COMPANY, a corporation, Appellant.
    No. 48501.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.
    Donald Gunn and Barnhart & Sommers, by Don B. Sommers, St. Louis, for respondent.
   HOLMAN, Commissioner.

On October 1, 1957, plaintiff was engaged in his employment as an ironworker in the construction of a new Southwestern Bell Telephone building at the corner of Main and McKinley Streets in the City of Union, Missouri. Upon the date mentioned he was severely shocked and burned when a cable he was holding made contact with one of the wires of defendant’s 34,500-volt overhead subtransmission line which ran along the west side of McKinley Street. The trial of this action resulted in a verdict for plaintiff in the sum of $75,000. Plaintiff entered a required remittitur of $15,000 and defendant has duly appealed from the ensuing $60,000 judgment.

The two-story building mentioned was being constructed on the northwest corner of the intersection by Plez Lewis Construction Company, the general contractor. For many years defendant had maintained a pole line at this point along the west side of McKinley Street. On the top crossarm were three bare copper wires constituting the 34,500-volt circuit. Another crossarm below contained the wires, also uninsulated, of a 7,200-volt circuit. The poles were 105 feet apart. At the low point of the “sag” the wires of the higher circuit were 32 feet above the ground and those of the 7,200-volt circuit were six feet lower. A barricade had been placed across McKinley at Main and the portion of McKinley Street adjacent to the building site had been used to store building materials.

On the morning in question plaintiff and his foreman, Steve Tourville, were engaged in installing two lintels on the east side of the building. These lintels were about 14 feet long and are described as metal beams or plates that are placed at the top of a window or door opening so as to support the wall above. In doing this work they were using a crane which was mounted on a truck bed and was being operated by Johnny Bay. The crane had a 40-foot boom and there was a ⅝-inch metal cable which ran from a drum on the truck bed over the top of the boom and then dropped vertically to the ground. On the end of the cable was a large metal hook and a short distance above the hook was a “headache” ball. This ball is a heavy metal cylinder 12 to 14 inches long and 6 inches in diameter. It weighs about 60 pounds and its weight causes the cable to descend when the brake on the drum is released.

There was a metal scaffold along the east side of the building which extended out about five feet. On the morning of the casualty the crane truck was positioned parallel to the side of the building about as near the east wall as the scaffolding would permit. The boom was lowered and used to move the lintels from the street to the area alongside the building. The boom was then raised to a 70-degree angle and was about 40 feet above the ground and from six to eight feet west of the west wire ■of each of defendant’s high-voltage circuits. At this point it was discovered that one of the lintels was bent and would need to be straightened before being installed. They attempted to do so with a hammer but were not successful. Plaintiff then decided to use the “headache” ball as a hammer and drop it on the lintel in an effort to straighten it. He tried it once and then requested that Johnny give him more slack so that the full force of the ball would strike the lintel. Johnny let out from two to four feet more cable. Steve was holding the lintel and plaintiff had one hand on the hook and the other on the cable. When he struck the second blow a ball of fire came down the cable. Steve was knocked ten feet away and plaintiff fell back on a pile of straw which was ignited by the charge. The movement of the headache ball had caused the slacked cable above to whip about in the air to the extent that it contacted the westerly wires of defendant’s nearby high-voltage circuits. In addition to receiving burns from the electricity plaintiff’s right leg was severely burned by the straw fire before he could be dragged away and the fire in his clothing extinguished. He was removed by ambulance to the St. Francis Hospital in Washington, Missouri, and three days later was taken to St. John’s Hospital in St. Louis. The extent of his injuries will be hereinafter detailed in connection with our consideration of the claim that the judgment is excessive.

Steve Tourville testified that the wires were in plain sight but he did not know that they carried electricity or that they were uninsulated; that he would not have intentionally touched them because he would not purposely touch any wire; that there were no warning signs concerning those wires; that on other projects where he had worked near high-voltage uninsulated wires there had been warning signs such as “Caution, High Voltage”; that on a few other occasions he had seen a headache ball used in the manner plaintiff was using it.

Johnny Bay testified that he did not know the wires were uninsulated or that they were high-voltage wires; that there were no warning signs and no one had told them that they were high-voltage uninsulated wires; that just as plaintiff hit the lintel the second time he (Johnny) had shouted a warning to “watch the wires”; that he didn’t know why he attempted to warn them because it hadn’t entered his mind that the cable might flip into the wires. On cross-examination Johnny stated that the boom could have been lowered to a point below the wires in about two minutes and that the headache hall could have been detached from the cable in about 15 minutes.

Plaintiff testified that he was 38 years old at trial time; that he had seen these wires but didn’t know they were uninsulated and didn’t think they carried electricity although he wouldn’t have touched them deliberately; that he hadn’t thought about the cable swaying back and forth in the air ; that on practically all other jobs where he had worked near uninsulated high-voltage wires there had been warning signs; that he had worked on this job about five weeks in the early summer of 1957 and two days about a week before the casualty; that it was a common practice to use a headache ball as a hammer.

The deposition of defendant’s district engineer, John W. McLaughlin, was read into evidence by plaintiff, and he also testified in person as a witness for defendant. This witness stated that early in 1957 the architects had sent him a sketch of the building in question and had written about the manner of furnishing power for it; that 40-foot poles had been used on the instant line but that defendant had poles in storage in 45, 50, 55, and 60-foot lengths; that defendant did not follow a practice of posting warnings except at substations; that no warnings were given or other precautions taken to guard the lines in this construction area; that a 34,500-volt wire could not be insulated; that four-foot line guards made of fiber are used on high-voltage wires to protect men working on poles; that if line guards were used to cover a 105-foot span it would increase the weight 260 pounds and the wind and vibration would probably break the wire; that in the event of insulation additional poles could have been installed and thus have reduced the weight on the wires; that this 34,500-volt circuit was 32 feet above ground and the minimum requirement of the National Electrical Safety Code was 22 feet; that he had seen a crane working around the building but not in the area of defendant’s wires; that he made no inquiry concerning the use that would be made of cranes in constructing the building; that no attempt had been made to erect guards for these lines or to raise the lines by substituting 60-foot poles; that he had passed this building once a week during the construction period and had seen the materials stock-piled in McKinley Street; that if the contractor had so requested defendant would have raised the lines or defendant would have relocated the lines at the expense of the contractor if the contractor had requested that such be done. This witness further testified that the contact of the cable with defendant’s circuits had caused a power failure in the area and he had gone to the scene of the casualty shortly after it occurred and had observed burned contact marks on the cable and on the west wires-of both the 34,500 and 7,200-volt circuits.

Defendant offered the testimony of Paul Crawford, a registered professional engineer, who stated that he was employed by L. E. Meyers Company in doing the engineering work for the construction of electric transmission lines. He testified that insulated 34,500-volt wires were not in existence and that there was no way to join line guards so as to completely cover a span of 100 feet. Upon cross-examination he stated that a longer crossarm could have-been attached to the poles at either end of the 105-foot span and a “dead” wire affixed to each end of it which would have guarded! the live wires and prevented a cable from-coming in contact with them.

Defendant also presented the testimony of Mrs. Frank Carter, a shorthand reporter,, who stated that she accompanied Mr. Weh-meyer of the Union Electric Company to-St. Francis Hospital at Union on October 2, 1957, at which time Mr. Wehmeyer questioned plaintiff concerning the instant occurrence. She read questions and answers-from her notes which indicated that plaintiff said he knew the wires were there and that “they all talked about the hot wires, but I didn’t know how hot they were,” and. that "there must have been too much slack in that line.” In this connection it should perhaps be stated that when plaintiff was questioned on cross-examination about this interrogation at the hospital the day after his injury he stated that he had no recollection of Mr. Wehmeyer or Mrs. Carter having been there.

Defendant’s first contention is that the trial court erred in overruling its motion to set aside the verdict and enter judgment for the defendant, which motion was based upon the grounds that (1) the evidence failed to make a submissible case of negligence, and (2) the evidence showed that plaintiff was guilty of contributory negligence as a matter of law.

In considering whether plaintiff made a submissible case we deem it advisable to review plaintiff’s verdict-directing instruction (No. 1). It is rather long and, for convenience, will be divided into two parts. The first part contains findings required which relate to a determination of defendant’s duty. Such reads, in part, as follows: “ * * * [A]nd if you find that no warning signs were posted on said job site calling attention to the fact that said power lines carried high-voltage electric current and were uninsulated, and if you find that by reason thereof there existed a reasonable likelihood or probability that someone lawfully within said area would be endangered thereby, and if you find that the defendant Union Electric Company, acting through its agents and employees, knew of the aforesaid circumstances and conditions, or in the exercise of the highest degree of care could have known thereof, then the court instructs you that under the law of the State of Missouri the defendant, Union Electric Company, owed the non-delegable duty to exercise the highest degree of care to avail itself of every protection and precaution reasonably available and accessible, at its own expense to erect an adequate and sufficient guard, or to insulate its said power lines, or to isolate said power lines by elevating said power lines at an adequate and safe height above said operations, or by relocating said power lines so as not to endanger anyone whose business or employment might require them to be within said area for any lawful purpose and who might in the course of such use or employment, by accident or inadvertence and without apprehending the danger thereof, come or be brought into dangerous proximity with said power lines and be injured as a direct result thereof. Any failure on the part of the defendant, Union Electric Company, to discharge this duty constitutes negligence *■ *

Thereafter, the instruction requires specific findings of fact relating to the manner of plaintiff’s injury, including a finding that plaintiff was exercising the degree of care that a reasonably prudent person would have exercised under the same or similar circumstances, and then told the jury that “if you find that the defendant, Union Electric Company, in the exercise of the highest degree of care and at its own expense, prior thereto could and should have adequately and sufficiently guarded said power lines, or isolated said power lines by elevating them an adequate and safe height in the air or by relocating said power lines and thereby made said area reasonably safe for use by all persons who might reasonably be expected to be in said area on any lawful purpose, and if you find that the defendant failed to take any one of said precautions, and that in this respect it failed to exercise the highest degree of care, then the court instructs you that in this respect the defendant was negligent and * * * plaintiff is entitled to recover.”

In determining defendant’s contention that plaintiff failed to make a sub-missible case (as well as the contention that he was guilty of contributory negligence as a matter of law) we view the evidence in the light most favorable to plaintiff, give him the benefit of all favorable inferences arising therefrom, and disregard defendant’s evidence unless it aids plaintiff. De Mariano v. St. Louis Public Service Company, Mo.Sup., 340 S.W.2d 735; Kickham v. Carter, Mo.Sup., 314 S.W.2d 902.

“Suppliers of electricity must exercise the highest degree of care to keep their wires in such condition as to prevent injury to others who lawfully may be in close proximity to those wires. Smith v. Southwest Missouri R. Co., 333 Mo. 314, 320 [1], 62 S.W.2d 761, 763 [2-4]; Thornton v. Union Electric Light & Power Co., 230 Mo.App. 637, 644, 72 S.W.2d 161, 164 [4], Of course, as defendant points out, this duty did not make instant defendant an insurer of the safety of all persons. But defendant was required to use the highest degree of care to prevent injury which it could reasonably anticipate. It was not necessary, however, that defendant should have anticipated the exact injury which did occur or the exact manner in which the injury occurred. It was sufficient that a jury reasonably could find that defendant reasonably should have anticipated that some injury was likely to occur to one lawfully at or near the tree in question by reason of the presence of the line in its particular location.” Lebow v. Missouri Public Service Co., Mo.Sup., 270 S.W.2d 713, 715. In the Thornton case, supra, it is said that “Electricity is a most subtle and dangerous agency. It lurks unsuspected in the simple and harmless wire, and gives no warning of its deadly presence. Wherefore, it is uniformly held that an electric company employing wires highly charged with this subtle and violent agency in streets, highways, or other public places, is in duty bound either to insulate such wires or place them beyond the range of contact with persons rightfully using such streets, highways, or places, and to exercise the utmost care to keep them so.” 72 S.W.2d 164.

We have recently said that “a duty to insulate wires has often been stated by this Court. 18 Am.Jur. 485, Sec. 93; 29 C.J.S. Electricity § 44, p. 589; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. 654; Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 202 S.W. 1; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233. If it is true, as indicated by defendant’s evidence, that it is impossible to fully insulate wires carrying such high voltage as these, then certainly the exercise of the highest degree of care requires that such wires be so isolated that they will not be likely to cause injury to persons in places where they may lawfully be and may be reasonably expected.” Gladden v. Missouri Public Service Co., Mo.Sup., 277 S.W.2d 510, 515. Of course, it clearly appears from the evidence that defendant. could have used one of the three methods, hypothesized in Instruction No. 1, and in-, that event workmen on this construction! project would have been reasonably protected from the danger of contact with said wires. Whether defendant should have taken one of those protective steps requires a determination of the question as to-whether, under all the facts and circumstances in evidence, defendant, in the exercise of the highest degree of care, should', reasonably have anticipated that someone-lawfully in the area was likely to be injured as a result of contact with those high-voltage wires.

We have concluded that there was sufficient substantial evidence in this case from; which a jury reasonably could have found', that defendant, in the exercise of the highest degree of care, should have foreseen-the reasonable likelihood that some of the-persons engaged in the construction of the instant building would have been injured as a result of the nature and location of' said power lines. In that connection we-observe that since defendant had seen fit to bring a 34,500-volt subtransmission line-into and through a city having a population of about 3,500 people its agents should' have been especially alert in their efforts, to detect and remedy dangerous situations, that might arise as a result of the location! of that line. It has been said that “where-the wires maintained by a company are-designed to carry a strong and powerful 'current of electricity, so that persons coming; in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its plant to prevent such injury, especially where high-tension wires are suspended over the streets of populous cities or towns, for here the danger is great, and the care exercised must he commensurate with it.” 18 Am.Jur., Electricity, § 48, pp. 445, 446.

The conclusion stated at the beginning of the preceding paragraph is particularly supported by the following: (1) The uninsulated wires carried a very high voltage and were located in the business district of a city, (2) the wires were within about 21 feet of the east wall of the building being ■constructed, (3) building materials were stored in McKinley Street where they ordinarily would be transported under the wires in question in being taken to the building, (4) defendant’s district engineer had knowledge that the building was to be constructed, its general plan, and such other knowledge of the situation as would be received by a casual once-a-week observation ■of the building, (5) said engineer had observed a crane being used upon this proj ect, (6) defendant knew that it had given no warning to the men employed at that site ■concerning the high voltage of these wires and the dangers incident to working in close proximity thereto, and (7) defendant is ■charged with knowledge that the erection ■of the scaffolding along the east side of the building reduced by five feet the working area between the building and the wires. These factors, and perhaps others, should have caused defendant to reasonably anticipate that some workman on that project would be reasonably likely to receive injury in some manner as a result of working in close proximity to said wires.

In support of its contention that no sub-missible case was made defendant places ■chief reliance upon the cases of Manaia v. Potomac Electric Power Co., 4 Cir., 268 E.2d 793, and Berry v. Atlantic Coast Line R. Co. et al., 4 Cir., 273 F.2d 572. These cases are distinguishable from the case at bar upon the facts. The Manaia case involved a paving project with a transmission line crossing the street being paved. A crane was used under the power line to lift a paving machine onto tracks. The crane operator deliberately operated the boom close to the line and electricity entered it killing two workmen who were holding the paving machine. The project could have been accomplished with the crane positioned so that it would not have been under the power line. The court held that defendant was not negligent because it could not be held to have anticipated that the contractor would use such a dangerous method when an equally practical alternative was available which entailed no risk. In Berry, plaintiff’s decedent was electrocuted when a crane unloading a car of steel was caused to tilt and contact a nearby power line. The crane operator was fully aware of the danger from the power line and failed to take adequate precautionary measures available. The court followed the Manaia case and held that the power company would not reasonably have anticipated the negligent acts of the operator and hence it was not negligent. While, as stated, the factual situation in the instant case is different from those involved in the Manaia and Berry cases, we make the observation that the court in those cases gave very little consideration to the rule that the power company need not anticipate the exact injury that occurred or the exact manner in which it occurred.

In the case before us there were, of course, other methods that could have been used to straighten the lintel which, in hindsight, would have been safe. However, we do not think that fact would necessarily indicate that defendant was not negligent. As we view the situation, defendant, for reasons heretofore stated, reasonably should have anticipated that in the over-all construction project some workman was reasonably likely to sustain injuries by reason of the close proximity of said wires.

We are of the opinion that under the facts and circumstances in evidence plaintiff was not guilty of contributory negligence as a matter of law. There was evidence to indicate that plaintiff did not know that these wires were uninsulated electric wires, and it was conceded that defendant had not warned him of the extreme high voltage thereof. He testified that it was a common practice to use a headache ball as a hammer. When he asked the operator for a “little more slack” there is nothing to indicate that he knew the operator would give him more than was required, or so much more as to make it possible for contact to occur between the cable and the high-voltage wires. Also, we do not think that plaintiff, when he used the ball in the manner he did, would necessarily know or suspect that the ⅝-inch steel cable would whip about in the air to the extent that it would travel from six to eight feet in an easterly direction and thus contact defendant’s wires. Under the circumstances shown, we are clearly of the view that the issue of plaintiff’s contributory negligence was properly submitted to the jury for its determination. Lebow v. Missouri Public Service Co., supra; Potter v. Sac-Osage Electric Cooperative, Inc., Mo.Sup., 335 S.W.2d 192. Defendant, in support of its contention to the contrary, has cited the case of Hamilton v. Laclede Electric Cooperative, Mo.Sup., 294 S.W.2d 11, but that case is so factually different from the instant case that it lends little, if any, support to defendant’s position.

Defendant complains that Instruction No. 1 was prejudicially erroneous in that in two respects it was not supported by the evidence. It required a finding that the contractor “undertook to erect a two-story commercial building for the Southwestern Bell Telephone Company on the northwest corner of Main and McKinley Streets * * * and if you find that in the erection of said building McKinley Street, in the block north of Main Street, was barricaded and used as an area in which to store building material used in the erection of said building and that cranes were frequently employed at said location in the erection of said building * * Defendant says the submission that “cranes were frequently employed at said location” referred to the area adjacent to McKinley Street and that such was not supported by the evidence. We do not think it is clear whether the submission complained of referred to the specific area involved or the construction site in general. However, there was evidence that a crane was being used on the east side of the building on the morning of the occurrence in question and that cranes had theretofore been frequently used at other locations on the building site. In view of that evidence we do not think the instruction was prejudicially erroneous in the respect complained of.

There is no merit in defendant’s contention that there was no evidence to support the submission in said instruction that defendant “could and should have adequately and sufficiently guarded said power lines.” The testimony of Paul Crawford would support a finding that a dead wire could have been placed at the end of a longer crossarm and that such would have prevented the cable from coming in contact with the live wires.

Another contention of defendant is that the court erred in permitting plaintiff’s medical expert, Dr. Scherman, to testify that plaintiff “is fifty percent disabled as a whole man.” Defendant’s counsel objected to the question “as speculative and I don’t know what it means; it is cryptic, invades the province of the jury.” In its brief defendant states its primary contention here as follows: “The real point, however, is that testimony of this sort is just too abstruse, too speculative for submission to a jury.” We ruled a somewhat similar contention in the recent case of Knipp v. Mankin, Mo.Sup., 336 S.W.2d 371, wherein we held it was not error to permit an expert to express the opinion that plaintiff had a fifty percent disability in his back. In so ruling we stated that “In Missouri the courts have held that an expert may express the opinion that an injury is permanent, Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S.W. 821, and that the plaintiff is totally disabled. Stearns v. Prudential Ins. Co. of America, 235 Mo.App. 135, 140 S.W.2d 766. If it is proper for an expert to express the opinion that a person is totally disabled it would seem proper to permit expert testimony that he has sustained a percentage of disability. We have been unable to think of any logical reason why a qualified medical expert should not be permitted to express the opinion that a person has sustained a certain percentage of disability in a certain area of the body.” 336 S.W.2d 375. What we said in that case will indicate our view that the trial court did not err in admitting the testimony in question.

Defendant also says this opinion was not admissible because it was based on hearsay. This reason cannot be considered as a ground for the exclusion of the evidence when originally offered because such was not assigned in the objection made. Defendant cross-examined Dr. Scherman at length as to the basis of the opinion in question and finally obtained a statement that the opinion was based in part upon what plaintiff had told him “about the character of the accident he suffered.” Defendant then moved “that the witness’ testimony about the percent of disability be stricken as founded on hearsay evidence,” which motion was overruled. Defendant in its brief has not assigned the ruling on said motion to strike as error but does mention it in the argument upon the point now being considered. In any event, the failure of the court to sustain the motion to strike would not be reversible error because (1) the facts concerning the nature of plaintiff’s accident had been given to the doctor, during his testimony concerning disability, by means of a hypothetical question, and (2) similar testimony was given by Dr. Pearl, i. e., that plaintiff “is totally disabled from forty to fifty percent of a man,” and there was no objection or motion to strike that opinion on the ground that it was based on hearsay or for any other valid reason. See Hunter v. St. Louis-Southwestern Ry. Co., Mo.Sup., 315 S.W.2d 689 [5], and Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130 [7].

George Hagemann testified for plaintiff to the effect that he was a claim manager for an insurance company that carried the workmen’s compensation insurance for plaintiff’s employer; that a workmen’s compensation claim was presented by plaintiff; that his company paid medical and hospital expenses for plaintiff’s treatment in the total sum of $5,350.02; that he had paid hospital and medical expenses in connection with approximately 40,000 claims, and in his opinion the bills for the treatment of plaintiff were reasonable.

Defendant contends that the court erred in giving Instruction No. 14 which told the jury that it “must not make any reduction in the amount of damages that you find that plaintiff is entitled to receive * * * by reason of the fact that plain-tifT * * * was entitled to the benefits of the Missouri Workmen’s Compensation Law because, under the provisions of said law in the event that plaintiff recovers herein, he must reimburse his employer’s workmen’s compensation insurer for all sums of money received by him as compensation payments and all sums of money expended by them in furnishing plaintiff medical care.” It is said that the giving of the instruction was error because there was no evidence of any workmen’s compensation payments to plaintiff and “it impliedly invites the jury to speculate about the amount of such payments and to take such speculation into account when determining damages.” We do not see how defendant could have been prejudiced by this instruction. It was a cautionary instruction which told the jury, in effect, not to deduct any amount from its verdict because of benefits plaintiff may have received under the workmen’s compensation law because he would have to repay those amounts out of his judgment. Ia view of the negative direction contained in the instruction it is of no consequence that the evidence did not disclose the amount of the benefits that had been paid and we see no reason why the jury would have speculated about the amount in making its determination of the amount of plaintiff’s damages.

Defendant also complains that Instruction No. 15 was erroneous because it included as an item of damages “the reasonable value of hospital, medical and surgical expenses reasonably and necessarily expended.” It is said that there was no evidence of the reasonableness of such expenses. We do not agree. There was evidence that the amount claimed had been paid and we have held that the presentation of the bills and their payment is some evidence that the charges were reasonable. Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697. Moreover, it would seem that the vast experience of Mr. Hagemann in the approval and payment of medical expenses would have been sufficient to qualify him to testify, as he did, that these charges were reasonable. This contention is ruled adversely to defendant.

Defendant also contends that the court erred in admitting medical testimony that, as a result of the instant casualty, plaintiff suffered a lung “blowout” which followed a pulmonary embolism and caused death to a certain part of the right lung, for the reason that said evidence was outside the scope of the pleadings. Among other things the petition alleged that plaintiff’s “internal organs and body” were permanently injured. The question presented is whether that allegation is a sufficient specification to permit proof of the injury to plaintiff’s lung. The decisions of the appellate courts of this state do not appear to be in strict harmony upon that question. The following cases would tend to support a ruling that the evidence was admissible under the quoted allegation: Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813 [15]; Gurley v. Mo. Pac. Ry. Co., 122 Mo. 141, 26 S.W. 953 [3]; Fuchs v. St. Louis Transit Co., 111 Mo.App. 574, 86 S.W. 458 [3]; Van Cleve v. St. Louis M. & S. E. R. Co., 124 Mo.App. 224, 101 S.W. 632 [1]; Haywood v. Kuhn, 168 Mo.App. 56, 151 S.W. 204 [1]; Van De Vere v. Kansas City, Mo.App., 196 S.W. 785 [10]; Swinehart v. Kansas City Rys. Co., Mo.App., 233 S.W. 59 [1]; Malone v. Kansas City Rys. Co., Mo.App., 232 S.W. 782 [8]; Price v. Met. St. R. Co., 220 Mo. 435, 119 S.W. 932 [12]. On the other hand,, decisions in the following cases would tend to require that the injuries complained of be particularized and specifically alleged in order to permit proof thereof: Taylor v. Kansas City Southern Ry. Co., Mo.Sup., 293 S.W.2d 894 [2]; Ziervogel v. Royal Packing Co., Mo.App., 225 S.W.2d 798 [1, 2]; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20 [16, 17]; Connor v. Kansas City Rys. Co., 298 Mo. 18, 250 S.W. 574 [1]; Walquist v. Kansas City Rys. Co., 292 Mo. 34, 237 S.W. 493 [5]; Hibler v. Kansas City Rys. Co., 292 Mo. 14, 237 S.W. 1014 [3, 4, 5].

A number of the cases in the first group heretofore cited appear to give considerable significance to the fact that the defendant therein did not seek a more definite-specification of the injuries alleged by filing a motion to make such allegations more-definite and certain. Also, we note that in the instant case, prior to the rulings complained of, similar testimony, without objection, was given by Dr. Scherman as follows: “Also, some two weeks after this-accident he suffered a thrombus or a clot into his lung with considerable pain in his; right chest, collapse and shortness of breath. At the present time he still complains of shortness of the breath and weakness and occasional episodes of pain in the-right chest region.”

We have concluded that the trial court did not commit reversible error in admitting the evidence under consideration. Our decision is supported by the following factors or reasons: (1) The petition alleged that plaintiff’s “internal organs” had been permanently injured and, of course, his lung is an internal organ; (2) no motion to make more definite and certain was filed by-defendant; and (3) other evidence of the injury in question was admitted without objection prior to the admission of the evidence of which complaint is now made.

The final point briefed by defendant is that the judgment, after trial court remittitur, is still greatly excessive. Before discussing that question we will state the evidence relating to plaintiff’s injuries and his condition at trial time. Plaintiff remained in St. John’s Hospital until December 3, 1957. At the time of discharge the hospital record entries were as follows: “Final diagnosis: ‘1) Electrical burns, second and third degree, involving both hands and both feet. 2) Fire burns, second and third degree, involving leg and thigh, right. Pulmonary embolism. Skin grafts, split thickness. Case summary: Patient entered for the treatment of electrical burns involving both hands and feet and fire burns involving the leg and thigh. These areas required repeated dressings, debridements, and skin grafts. Course complicated by pulmonary embolus. Made eventual fine recovery from all conditions but convalescence will be prolonged and he is discharged to continue this at home.’ ”

During the period of plaintiff’s hospitalization a number of operations were performed in which skin was taken from both his thighs and grafted upon the burned areas. Skin grafts were made upon both hands and both feet to repair damage where the current entered and left the body. Also, grafts were made upon a considerable area of the right leg where plaintiff had sustained fire burns. Dr. Scherman testified these were “excellent skin grafts” but certain areas tend to break down and they may need alteration at some future time; that as a result of the injuries plaintiff had a limitation of the use of the middle finger and some weakness of grip in the right hand; that there was some numbness and limitation of motion in the thumb of the left hand; that the nerves and sweat glands in the skin graft areas are impaired which results in some numbness and in inability to react normally to temperature changes so that plaintiff often has a dry and prickly sensation in those areas; that the condition of his right lung, as a result of the “blowout” heretofore described, is permanent; that plaintiff is suffering from nervousness and the whole body was affected by the electrical shock; that “on the basis of the disability which he has acquired I believe the man is fifty percent disabled as a whole man.”

Plaintiff testified that he suffered “terrible pain” from the burns for a time after the casualty; that after his discharge from the hospital he continued to receive treatment from Dr. Lahey of St. Louis, and Dr. Pearl of St. Clair; that he returned to work in June 1958 and during the balance of that year his friends on the job helped him by doing the hard work; that during 1959 and the first half of 1960 he had worked on one job continuously as a foreman of iron-workers which did not require manual labor. He further testified that he earned $6,262 in 1956, $4,467 in 1957, $3,467 in 1958, and $7,921 in 1959.

In regard to pain and the ability to use the various parts of his body plaintiff stated that his hands hurt when he uses them and that use of his hands for a period of time will sometimes cause the graft areas to break down and bleed; that there is constant pain in the scar on top of the right foot and the left foot “breaks down and it is just like walking on a nail”; that the scar areas are cold in winter and itch in summer; that he now tires easily and has been nervous since he was injured; that he stuttered before the accident but that condition is gradually getting worse, “it is horrifying.” Plaintiff also stated that his present job as foreman was about over, he didn’t expect to be able to get further work as a foreman, and he seemed in doubt concerning his ability to do the work required in order to have steady employment as an ironworker.

Dr. Pearl was of the opinion that plaintiff’s body was damaged all along the path taken by the electrical current; that before the accident plaintiff was not nervous but since that event he has been “very nervous and irritable”; that the trauma has “possibly” increased plaintiff’s speech impairment; that in his opinion plaintiff is disabled “from forty to fifty percent of a man.”

“ There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries * * *.’ Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127. We recognize that it is most difficult to endeaver to maintain a standard of uniformity of judgments in personal injury cases.” Carnes v. Kansas City Southern Ry. Co., Mo.Sup., 328 S.W.2d 615, 623. Although we have considered the cases cited, we do not find that any of them are of much assistance from the standpoint of comparable injuries.

We have heretofore stated the facts relating to this problem in some detail and see no occasion for any lengthy discussion of this question. The total of plaintiff’s medical expense and loss of wages was about $10,000. He has suffered pain and discomfort in the past and will continue to suffer such to some extent in the future. He will likely lose some future earnings as a result of his injuries, although the extent of such loss is somewhat problematical.

Upon consideration of the facts heretofore outlined, in the light of all relevant factors which should be considered in connection therewith, including the fact that the trial court considered this question and ordered a substantial remittitur, we have concluded that the judgment herein is still excessive and that the maximum amount for which a judgment should be permitted to stand is $50,000. If, within 15 days after the filing of this opinion, plaintiff will enter here a remittitur of $10,000, the judgment will stand affirmed in the sum of $50,-000 as of the date of the original judgment. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Clifton DAVIS and Lela Heath, Appellants, v. QUALITY OIL COMPANY, Respondent.
    No. 48636.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.

      James E. Curry, Ava, M. J. Huffman, Hartville, Garner Moody, Mansfield, for appellants.
    Chinn, White & Dickey, Springfield, for respondents.
   STOCKARD, Commissioner.

Clifton Davis and Lela Heath, the divorced parents of the deceased, Leroy Davis, have appealed from the judgment entered on the jury’s verdict in favor of Quality Oil Company in their action for $25,000 for the wrongful death of their son.

Appellants’ son died as the result of injuries sustained when the automobile he was operating was struck by respondent’s truck. The case was submitted to the jury on humanitarian negligence of respondent’s driver in failing to stop or slacken the speed of the truck. Appellants’ only contention on this appeal pertains to the alleged error in an instruction. Respondent contends, however, that appellants did not make a submissible humanitarian case and that its motion for a directed verdict at the close of all the evidence should have been sustained. If this is true, the error in the instruction, if any, is immaterial. We shall review the evidence from a standpoint favorable to appellants and give them the benefit of any part of respondent’s evidence favorable to them which is not contradicted by their own testimony and not contrary to their theory of recovery, and we shall give them the benefit of all favorable inferences arising therefrom. Yarrington v. Lininger, Mo.Sup., 327 S.W.2d 104.

Leroy Davis and two companions left the Ava, Missouri High School about 12:30 o’clock in the afternoon of October 23, 1958 and drove to Mansfield, Missouri, about fifteen miles away. Leroy was driving, and in Mansfield he turned west on the “business route” of U. S. Highway 60 and drove to an intersection with “bypass” U. S. Highway 60 about one half mile west of town. This intersection forms a “V” with the apex to the west, and it appears from photographs in evidence that the angle between the highways is about 45 degrees, or perhaps less. The bypass is located north of the business route. East of the intersection, but near it, is a connecting .road running almost north and south between the bypass and the business route. Westbound traffic on the business route is directed to use this connecting road to get to the bypass. Leroy did not turn onto the connecting road, but improperly continued on the business route to the “V” intersection, and according to Donald Cunningham, a passenger in the automobile, he stopped before entering the bypass. Marlin Jenkins, the other passenger, said that Leroy “slowed down or nearly stopped,” that he “may have stopped,” and that he shifted gears to “low or second.”

Earlin L. Friend was operating respondent’s three axle tractor-trailer truck about fifty miles an hour in the westbound lane of the bypass and approaching the intersection from the east. The collision occurred, however, in the eastbound lane of the bypass after Leroy, in attempting to turn back east on the bypass, drove his automobile onto the bypass in a continuous circular sweep to the right into the westbound lane and to within nine inches of the north edge of the pavement. At that time the automobile was completely in the westbound lane but headed eastward, and it was moving easterly and southeasterly on a curve. Leroy continued his circular movement back into the eastbound lane where the automobile was struck by the truck which, in an effort to miss the automobile, had swerved sharply into the eastbound lane immediately prior to the collision. The speed of the automobile while making this turn is not shown, but Marlin said that Leroy “was going faster in the turn” than when he came up to the intersection. Donald said that when the automobile was in the westbound lane Leroy “gunned” it and “peeled” the tires. Either because of the speed of the automobile or the spinning of the wheels in an attempted acceleration it left tire marks on the pavement starting in the westbound lane and circling to the east and southeast back into the eastbound lane for a distance of about 42 feet to the point of impact. It is not definitely shown where the truck was when Leroy started his circular turn. Marlin said that when the automobile was stopped, or nearly stopped, the truck was “approximately where the culvert was in the road there,” but this distance is not shown except by way of inference that it was “400 or 500 or maybe 600 feet” away. Donald said that when Leroy “gunned” his automobile, that is, when it was completely in the westbound lane but headed east, the truck was at the connecting road about 250 or 300 feet away, but a highway patrolman estimated the connecting road to be 400 feet away. Respondent’s truck slid its wheels leaving skid marks 168 to 170 feet in length. These marks started in the westbound lane and extended in a straight line, and then veered sharply to the left into the eastbound lane to the point of impact. At the time of the collision the truck and the automobile admittedly were completely in the eastbound lane.

It is not at all clear from appellants’ verdict directing instruction just what was fceir theory as to when Leroy entered into a position of imminent peril. Without hypothesizing any facts as to the movement or location of Leroy’s automobile or the speed or location of respondent’s truck, the instruction abstractly submitted, in substance, that if the jury found that Earlin Friend saw or should have seen Leroy in a position of imminent peril within a reasonable time for Earlin Friend thereafter to have stopped the track or slackened its speed before striking the automobile, and could thus have avoided injuring and killing Leroy, they should find for plaintiffs. The sufficiency of this instruction is not an issue on this appeal.

From all the facts in the case including the location of the skid and tire marks of both vehicles, the admitted point of impact, and the damage to the track and the automobile resulting from the collision, it is evident that after Leroy’s automobile crossed the bypass into the westbound lane it returned to the eastbound lane of the bypass which was out of the path the truck would have followed if it had not swerved to the left immediately before impact. The cross-examination of Earlin Friend indicates that it was appellants’ theory that if the truck had continued on in the westbound lane without swerving to the left Leroy would have moved out of the track’s path and the collision could not have occurred. We must, therefore, determine whether a jury could reasonably find that Leroy entered into a position of imminent peril, as that term is used in the application of the humanitarian rule, and if so, whether after Earlin Friend received actual or constructive notice thereof, he had the ability thereafter, with the means at hand by stopping the truck or slackening its speed, to have averted the impending injury without injury to himself.

The constitutive elements of the humanitarian rule have been set out many times by this court. See the discussion and cases cited in § 13.5 Missouri Civil Instructions, p. 189, published by the Missouri Bar. We shall briefly restate them, for the most part as set out in Yarrington v. Lininger, Mo.Sup., 327 S.W.2d 104, and apply the applicable principles to the facts of this case.

The first and basic fact of liability, “It might be denominated the chief one,” under the humanitarian rule is a position of imminent peril. Banks v. Morris & Co., 302 Mo. 254, 267, 257 S.W. 482, 484. It is only when imminent peril arises that the humanitarian rule seizes upon the then existing situation, in effect “blotting out primary or antecedent negligence” Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930, and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury. McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 707; Wilson v. Toliver, Mo.Sup., 305 S.W.2d 423, 429. In this case, whatever transpired from the standpoint of either Leroy or Earlin Friend prior to the time that Leroy entered into a position of imminent peril, if he did, does not affect the right of the parties thereafter. Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 571. In other words, regardless of whether or not Earlin Friend had some duty to act or refrain from acting in the exercise of the required degree of care based on primary negligence, under the humanitarian rale there arose no duty whatever on his part to take or refrain from taking any action unless and until Leroy came into what is called a position of imminent peril. Paydon v. Globus, Mo.Sup., 262 S.W.2d 601; Schmidt v. Allen, Mo.Sup., 303 S.W.2d 652; Davis v. St. Louis Public Service Company, Mo.Sup., 316 S.W.2d 494. In addition, if it is shown by the evidence that Leroy was in a position of imminent peril, in order to impose liability on respondent under the humanitarian rule, it is necessary that the evidence also show that Earlin Friend, after receiving actual or constructive notice of the imminent peril, then “had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others,” and that he failed to exercise the required care to avert such injury. Banks v. Morris & Co., supra at page 484 of 257 S.W.; Shirley v. Norfleet, Mo.Sup. 315 S.W.2d 715.

“The imminent peril referred to in the humanitarian rule is that position of danger to the plaintiff, whether or not plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to him is reasonably certain and not a mere possibility contingent on some other occurrence. The courts have said that ‘The peril truly must be imminent — that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.’ ” (Italics added). Yarrington v. Lininger, supra at p. 109 of 327 S.W.2d.

Although, as previously noted, appellants did not hypothesize the facts upon which the jury was authorized to find that Leroy came into a position of imminent peril, it is evident that they contend Leroy came into a position of peril at some time after he left, or immediately upon leaving, his position of safety when stopped or almost stopped. He obviously was not in a position of peril prior to that time. “ ‘In the absence of obliviousness, the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it.’ * * * But, when the plaintiff is oblivious, it has been said that the zone of imminent peril is widened to that point where it was or should have been reasonably apparent to the defendant in the exercise of the required degree of care that the plaintiff was oblivious of the approach of defendant’s moving vehicle and was intent on continuing across its path.” Yarrington v. Lininger, supra at p. 110 of 327 S.W.2d. Appellants do not rely on obliviousness, and under the facts of this case it is immaterial whether or not Leroy was oblivious of the approach of the truck which was in plain and unobstructed view. A jury could reasonably find that once he started his continuous circular sweep he could not then have stopped short of the projected path of the truck, and that this would or should have been apparent to Earlin Friend. Therefore, if he ever entered a position of imminent peril he did so when he started his continuous circular sweep across the bypass whether oblivious or foolhardy.

The evidence shows that from the time Leroy left his obvious position of safety, he started a course of travel which would take him into the path of the approaching truck and then out of it and into a position of safety in the east lane of the bypass unless something occurred which was not then occurring. From the testimony of appellant’s witnesses as to the distance of respondent’s truck from the intersection, and based on what actually happened, it appears that Leroy drove into and then otit of the westbound lane of the bypass before the truck would have arrived even though Earlin Friend did nothing to stop or to slacken its speed. In this event he was not in a position of imminent peril within the meaning of the humanitarian rule either while approaching or while actually in the then intended path of the truck because Leroy was moving in a direction and at a speed which would remove him from that path of the moving vehicle before injury from it could befall him. The peril, if any, to Leroy arising from that situation was not certain, immediate and impending. It was contingent. As stated in McClanahan v. St. Louis Public Service Co., 360 Mo. 500, 251 S.W.2d 706, “ ‘something would have to happen other than that which was then happening before injury would befall [Leroy].’” In this case, before injury could befall Leroy, the direction of travel of the truck had to be changed, that is, Earlin Friend had to swerve sharply into the eastbound lane. In Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, this court pointed out that one who is not oblivious (but as previously noted obliviousness is not material here), does not come into a position of imminent peril when he is moving toward the path of a moving vehicle until he is directly in its path or so close thereto that he cannot stop short of its path, “or even if he is in its path with ability and time to get out of it.” See also Clark v. Atchison, T. & S. F. R. Co., 319 Mo. 865, 6 S.W.2d 954, and the somewhat related situations in Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, and in Homfield v. Wilcoxon, Mo.Sup., 304 S.W.2d 806.

Notwithstanding what we have already said concerning the fact that Leroy drove out of the projected path of the truck, it might be said when the evidence is considered most favorable to appellants that a jury possibly could find that when Leroy started his continuous circular sweep across the bypass and into the westbound lane, he did not have time to return to the eastbound lane before a collision would occur if the truck had stayed in the westbound lane. It may be that this requires some speculation, but we shall assume this was so and that the truck was at such distance from the intersection and traveling at such rate that when Leroy’s automobile entered its path, or when it should have been reasonably apparent to Earlin Friend that it was going to enter the truck’s path, that unless the truck was stopped or its speed slackened, Leroy would not leave its path before a collision occurred. In this situation Leroy would have been in a position of imminent peril. However, if this is true, appellants’ evidence conclusively establishes that by sliding the wheels and laying down skid marks Earlin Friend did slacken the speed of his truck, and that he did so sufficiently that Leroy did in fact leave and get out of the projected path of the truck. The collision occurred in the eastbound lane, not in the path of the truck, and it did not occur because Earlin Friend did not stop the truck or slacken its speed sufficiently to prevent colliding with the automobile in its path, but because he swerved the truck and changed the direction of its travel so that it struck Leroy’s automobile after he had left the path, and after Leroy had returned to what would have been a position of safety but for that change of direction by the truck. Therefore, assuming that Leroy entered a position of imminent peril as above set out, appellants’ evidence establishes as a matter of law that the failure of Earlin Friend to stop the truck or slacken its speed was not, and could not have been the proximate cause of the collision.

It may be that Earlin Friend was negligent in swerving to his left into the eastbound lane of the bypass so as to strike Leroy’s automobile, but if so that was primary negligence, not humanitarian negligence. It is also evident that after Earlin Friend swerved his truck so that Leroy’s automobile was then in the path of the truck in this new course of travel then Leroy was in imminent peril. But, the evidence discloses no possible action that Earlin Friend could have taken thereafter with the means at hand to avert the then pending collision. See East v. McMenamy, Mo.Sup., 266 S.W.2d 728, 732; Yarrington v. Lininger, supra at p. 111 of 327 S.W.2d. We must necessarily conclude that the evidence, when considered most favorable to appellants, does not present a submissible case under the humanitarian rule based on the failure of Earlin Friend to stop the truck or slacken its speed. Presumably appellants abandoned such other grounds as failure to warn or failure to swerve, but in any event we do not see how a submissible case on either such ground could be made under the evidence in this case.

Assuming that the instruction of which appellants complain on this appeal is erroneous, it might be contended that since we have noted that Earlin Friend may have been guilty of primary negligence, the judgment should be reversed and the cause remanded so that they may retry their case on primary negligence if so advised. See East v. McMenamy, supra; Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662; Homfield v. Wilcoxon, supra; and Yarrington v. Lininger, supra. However, contributory negligence on the part of Leroy is a complete defense to an action against respondent based on the primary negligence of Earlin Friend. Section 537.080 RSMo 1959, V.A.M.S.; Fitzpatrick v. Kansas City Southern Ry. Co., 347 Mo. 57, 146 S.W.2d 560; McCloskey v. Renne, 225 Mo.App. 810, 37 S.W.2d 950. The evidence discloses that when Leroy was stopped or nearly stopped at the intersection the truck was in clear and unobstructed view, but that he then drove onto the through highway, and on the wrong side thereof, directly into the projected path of the truck. It was this negligent act which set in operation the subsequent chain of events which resulted in the collision and Leroy’s death. Whether Leroy looked and did not see the truck or failed to look at all, under these facts he was contributorily negligent as a matter of law. Roberts v. Consolidated Paving & Material Co., 335 Mo. 6, 70 S.W.2d 543; Payne v. Smith, Mo.Sup., 322 S.W.2d 764; Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621; Roux v. Pettus, Mo.App., 293 S.W.2d 144. Therefore, if upon examination the instruction should be found to be erroneous, and if under the circumstances appellants would desire to retry their case on primary negligence, the contributory negligence of Leroy would make a directed verdict mandatory. For this reason we need not examine the instruction.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Eugene Lovereture CAMPER, Appellant.
    No. 48836.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Simon & Pierce, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Dale Reesman, Special Asst. Atty. Gen., for respondent.
   HOUSER, Commissioner.

Eugene Lovereture Camper, charged with burglary second degree and stealing, was found not guilty of burglary second degree but guilty of stealing property of the value of at least $50 and his punishment was assessed at two years in the penitentiary. Defendant appealed but filed no brief, so we examine the seven assignments of error in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.

The information charged, inter alia, that on August IS, 1960 in Jackson County defendant unlawfully, feloniously, intentionally, and without the consent of the owner thereof, did steal two adding machines of the value of $800; four adding machines of the value of $490; one typewriter of the value of $75, (all described with particularity), of the aggregate value of $1365, the property of Atlanta Life Insurance Company.

The first assignment is error in failing to strike from the jury panel juror number 15 “who indicated by an outburst during the voir dire by defendant’s counsel, extreme hostility toward the defendant and his counsel.” The record shows that defendant’s counsel said in open court: “Members of the panel, at this time, I wish to ask generally whether members of the panel understand the difference between civil cases generally and criminal cases, technically as to the amount of proof required?” Juror number 15 said: “I don’t think any of us understand that. You are .going to have to make a speech.” ' The judge then told the jurors to address their remarks to the Court and properly hold up their hand, and orally explained to the jury the difference between the requirement of a finding by a preponderance of the evidence in civil cases and beyond a reasonable doubt in criminal cases; asked if any member did not understand the difference and would not follow the instructions of the court at the close of the case, and stated that the State was obligated to prove guilt beyond a reasonable doubt; that it was not the duty of the defendant to prove himself innocent; that the jury would be instructed thereon at the close of the case. Thereupon defendant’s counsel moved that juror number 15 be excused from the panel “as indicating hostility towards counsel or defendant.” The court overruled, stating “I did not understand it was hostile.” The record reveals no outburst or manifestation of hostility on the part of the juror and the trial judge, present and observing the entire incident, did not sense any hostility. The motion to excuse the juror was addressed to the sound discretion of the trial court. In the determination of the qualifications of a juror the court has a wide discretion, State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 8; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 654, and we find no abuse but rather a proper exercise of the court’s discretion in this instance.

The second and third assignments charge error in failing to sustain defendant’s motion to suppress evidence of a cash box found in the seat of the car, and to exclude from evidence the metal box and items taken from the car seat. Appellant gave no reason in his motion for new trial why the evidence should have been suppressed and excluded, but from his motion to suppress it appears his contention is that this was an illegal search and seizure made in violation of his constitutional rights. At 2:50 a. m. on the date in question Officer Davies, driving a patrol car, saw an automobile come out of an alley in the rear of 1900 Paseo in Kansas City at a “pretty high rate of speed into the street and swerve.” After this car got “straightened away into the street” the lights were turned on. The patrol car followed the other car for several blocks. Finally its driver pulled over to the side and parked. The patrol car stopped behind it. As Officer Davies opened the door of the patrol car two men or boys jumped out of the car ahead and fled. Two men remained in that car. Davies hollered to the fleeing men to stop, that they were under arrest, but they kept on running. Davies went to the car, and placed the two men in the car under arrest, for violation of traffic ordinances: driving in a careless manner and driving without lights. While Officer Davies was talking to defendant at the rear of the car, Patrolman Harkness looked into the interior of the car. In the center of the front seat he saw a little green cash box and two screwdrivers. After he saw the box he opened the door of the car, turned on his flashlight and looked “all around underneath the car,” under the seat, etc., but discovered nothing more. Neither officer had any knowledge that a felony had been committed. Patrolman Harkness acted without a search warrant, and without gaining the consent of the defendant to check the car.

The constitutional guaranties against unreasonable search and seizure are not infringed where stolen property is recovered without search, i. e., where stolen property “lies fully disclosed, open to the eye and in plain view. * * * A search, within the constitutional provisions invoked, * * ⅜ ‘implies a prying into hidden places for that which is concealed.’ Observation of that which is open to view is not a search. A search (such as is prohibited by the constitutional provisions invoked) is not made by merely looking at that which can be seen.” State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692, quoted with approval in an identical situation in State v. Reagan, Mo.Sup., 328 S.W.2d 26, 28, and again cited, along with the Reagan case and State v. Campbell, Mo.Sup., 262 S.W.2d 5, 9, in State v. Mallory, Mo.Sup., 336 S.W.2d 383, 385. And see 47 Am. Jur., Searches and Seizures, § 20. As indicated in the Mallory case, there was no unreasonable search and seizure of the metal cash box, and no error in overruling the motion to suppress it as evidence. It was admissible in evidence, if properly identified. State v. Mallory, supra. Appellant’s contention that the court erred in not excluding it from evidence, however, is without substance for the reason that the transcript does not reveal that the metal cash box was ever marked as an exhibit, offered or received in evidence.

The fourth and fifth assignments alleged error in “failing to sustain defendant’s motion to suppress evidence taken from the locked trunk of the defendant’s car. The automobile was not searched at the time of arrest or incident thereto, but was searched later without a search warrant,” and in “failing to exclude from evidence over defendant’s objection, the machinery and equipment taken from the locked trunk in the rear of defendant’s car while said car was in custody and said search was made without a search warrant.” The facts are that after arresting defendant and finding the metal cash box and screwdrivers, the officers took defendant and his car to the police station, where the metal cash box was pried open. It contained checks payable to Atlanta Life Insurance Company, 1900 Paseo. At that time Officer Davies proceeded to 1900 Paseo, where he found that a window had been broken, and the window raised. With assistance he entered the window, which led into the offices of Atlanta Life Insurance Company. Davies called the district manager of the company by telephone. The latter testified he received this call at 3:30 or 4 a. m., and came to the office. He and the officers there ascertained that a file cabinet safe had been broken into, and that the cash box, a typewriter, two electrically operated Burroughs calculating machines, four manually operated adding machines, and a receipt machine, were missing. Six desks were burst open. The cigarette machine was broken open, cigarettes were missing and the cigarette cash drawer had been removed. Officer Davies returned to police headquarters where the car used by defendant was being held. Defendant had told the officer that he did not have the key to the trunk, so the officers “yanked the back seat off.” A “whole trunk full of cigarettes, adding machines, and business machines” were found in the car trunk. They were identified the next day and at the trial as the property of Atlanta Life. At the time the rear seat was removed and the contents of the trunk revealed the car had been in police custody for a period of time estimated at one hour. The officers did not have a warrant to search the car.

Defendant having committed a misdemeanor in the presence of the officer (speeding and driving without lights), the arrest without a warrant was lawful. Section 84.710, RSMo 1949, V.A.M.S. In the course of this lawful arrest one of the officers saw a metal cash box and two screwdrivers through the car window. Considering the time of the night, the erratic course of the car and the way it was being driven, the fact that two of the passengers fled as defendant’s car stopped, and the discovery of the cash box and screwdrivers, the officers had reasonable grounds for suspicion, and a duty to the public to further investigate, State v. Cohn, Mo.Sup., 347 S.W.2d 691, 695, to determine whether another offense had been committed. When the cash box was opened and found to contain cash and checks payable to the insurance company; when upon further investigation the offices of the insurance company were found to have been broken into and a cash box and other articles missing, the officers had probable cause to believe that defendant had committed the theft; that the automobile had been used as the getaway car, and that it contained other stolen articles. A reasonable belief or probable cause for believing that a felony has been committed and that an automobile contains that which by law is subject to seizure, will justify a search of an automobile and seizure incident to a lawful arrest, without a search warrant. State v. Loftis, 316 Mo. 878, 292 S.W. 29; Lawson v. United States, 8 Cir., 254 F.2d 706; 79 C.J.S. Searches and Seizures § 69a. The traffic offense, the arrest, the discovery of the cash box and the investigation which revealed the theft constituted one continuous flow of events which led without interruption to the search of the automobile. The search of the automobile and seizure of the fruits of the crime without a warrant were not unreasonable under these circumstances, but were based upon probable cause, as an incident to a lawful arrest. State v. Mallory, Mo.Sup., 336 S.W.2d 383; State v. Edwards, Mo.Sup., 317 S.W.2d 441. The interval of approximately an hour between the time of the arrest and the time of the search did not break the continuity of events. State v. Green, Mo.Sup., 292 S.W.2d 283, l. c. 287. The disclosure, by the search, of evidence of the commission of another offense than that for which the arrest was made did not invalidate the search and seizure or render the evidence obtained therein inadmissible when defendant was placed on trial for the other offense. State v. Padgett, 316 Mo. 179, 289 S.W. 954; Haverstick v. State, 196 Ind. 145, 147 N.E. 625; State v. Flanagan, 251 Wis. 517, 29 N.W.2d 771; King v. State, 73 Okl.Cr. 404, 121 P.2d 1017. The motion to suppress was properly overruled and the machinery and equipment were properly admitted in evidence, despite the fact that no search warrant was caused to issue.

The sixth and seventh assignments allege error in failing to sustain defendant’s motion for a judgment of acquittal at the close of the state’s case and at the close of the entire case for insufficiency of the evidence to sustain the offense alleged in the information. The offense alleged, of which defendant was convicted, was stealing property of the value of at least $50. Under the evidence the jury could find that defendant was caught red-handed, in flight from a theft, near the scene of the crime, with stolen property of the value of several hundred dollars in his possession. The state made a strong case, and there is no error in this record in the respects mentioned in the motion for new trial.

There is no error with respect to the sufficiency of the information, verdict, judgment and sentence, which we have examined under Rule 28.02.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.