author: WELBORN, Commissioner.

text:
    Paul V. BERRY and Norma F. Berry, Appellants, v. Reginald CROUSE and Dorothy B. Crouse, Respondents.
    No. 50418.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.

      Tenney, Dahman & Smith, Edward H. Tenney, Jr., Robert L. Smith, St. Louis, for appellants.
    Gray & Jeans, Charles E. Gray, St. Louis, for respondents.
   WELBORN, Commissioner.

This is an action by appellants, husband and wife, to recover payments totaling $14,-350 which they claim to have made on a contract to purchase a farm from respondents. The trial court, sitting without a jury, found that the payments were made as rental under a lease with option to purchase and that, by the terms of the lease, the appellants were not entitled to the return of the payments which they made. The appellants appealed from the judgment of the trial court to the St. Louis Court of Appeals. Because the petition sought the return to appellants of $14,350, together with interest thereon from January 1, 1958, the Court of Appeals concluded that the amount in controversy exceeded $15,000 and transferred the appeal to this court. Berry v. Crouse, Mo.App., 370 S.W.2d 724.

In February, 1956, the appellants sold a 40-acre farm owned by them in St. Louis County, Missouri. Interested in acquiring another farm, they obtained a listing of farms which respondent Dorothy Crouse, a real estate broker at Troy, Missouri, offered for sale. In February, 1956, the appellants went to Mrs. Crouse’s office in Troy and inquired whether or not she had any farms listed which could be purchased with a $3,-000 down payment. Mrs. Crouse asked one of her salesmen, Mr. Kramer, to show the Berrys some farms. He showed them two in which they were not interested. Returning to Troy with Kramer, they passed another farm which Kramer told them Mrs. Crouse owned. Kramer suggested that they ought to buy it. The Crouses had acquired the farm in 1955 and had advertised it for sale. The Berrys and Kramer returned to Mrs. Crouse’s office. The Berrys told Mrs. Crouse they were not interested in the farms which they had been shown. However, they talked about the Crouse farm and Mrs. Crouse told them that she wanted $200 an acre for the 200-acre farm and suggested that they go look at the place. The Berrys did so and again discussed the price with Mrs. Crouse who reduced her price to $37,-500. Berry told her that the price was too high. A week or so later, Kramer and Mr. Crouse came to the Berry residence in St. Louis County and suggested that the Ber-rys come to Troy on a Thursday night and discuss the farm. The Berrys did so. At that time Mrs. Crouse told them that she could sell 13 acres of the farm for $3,000 and that she could sell the remainder to the Berrys for $34,500. Mrs. Crouse, knowing that the Berrys had $3,000 to pay down, told them that, if they could raise an additional $1,500, they “might be able to do business.”

A week or so later, Mrs. Berry called Mrs. Crouse and told her that, within a month, the Berrys could obtain an additional $1,500. According to Mrs. Berry, on the Thursday night prior to March 10, 1956, Mrs. Crouse called her and told Mrs. Berry that they would handle the transaction for $4,500 down; that the Berrys should come to her office on Saturday, bringing the $3,-000, and that it would be agreeable to pay the remaining $1,500 by May 5. According to Mrs. Berry, Mrs. Crouse told her that she would have papers for the transaction prepared.

The Berrys went to Mrs. Crouse’s office in Troy on the morning of Saturday, March 10, 1956. They had their check for $3,000 payable to Dorothy Crouse, which they gave to her. Two copies each of two separate documents, the first entitled, “Real Estate Sales Agreement,” and the second “Farm Lease,” were executed by the parties on that date.

The sales agreement, which was prepared by Mrs. Crouse, was a single page document on a printed form on which blanks had been filled on the typewriter. The agreement acknowledged the receipt of $3,-000 as earnest money and as part of the consideration for a farm containing 190 acres of land, more or less, known as the Crouse Farm. The description of the farm was typed in the agreement. A certain portion was excluded, the language used being “this piece of ground not included in sale of farm.” The agreement contained the usual language, “which farm is this day sold to said Paul W. Berry and Norma F. Berry, his wife, and purchased by both subject to the owner’s approval and not otherwise, for the gross sum of $34,500.00.” Following the statement of purchase price was the following typewritten:

“(With Contract of Deed)
“$3,000.00-Cash (At either payment date, if
1,500.00-To be paid on or before May 5,1956. loan for bal. can be Ob-
4,500.00 tained, Warranty Deed
$30,000.00-Due, with 6% int. will be recorded).
5,000.00-plus int. due Oct. 29,1956
5,000.00-plus int. due Oct. 29, 1957”

There was typed on the form a requirement that $10,000 insurance was to be carried on the buildings, and this statement: ■“Privilege is given buyer to start farming for crops immediately.” The agreement provided for closing of the sale under the contract on May 5, 1956. It bears the signatures of appellants and respondents. According to the evidence, the signature of the respondent Reginald Crouse was placed on the agreement by his wife. The agreement hears the date of March 10, 1956.

The “Farm Lease,” a 5-page wholly typewritten document, recited that it was entered into between Reginald and Dorothy ■Crouse, as lessors, and the Berrys, as lessees. The land leased was the same as that •covered by the sales agreement. The term •of the lease was to March 1, 1958. The rental fixed was $3,000 upon execution of the lease; $1,500 on May 5, 1956; $5,900 on October 29, 1956; $750 on April 29, 1957, .and $5,750 on October 29, 1957. The lessees were required to insure the improvements for $10,000. The document provided that the lessees should use the property as a farm but for no other purpose without the written consent of the lessors. The lessees covenanted to keep the improvements in good repair and to cultivate the premises in a “thorough, careful and husbandlike manner (according to the most approved methods of farming followed in Lincoln County) * * *.” The lessees agreed to pay all taxes during 1956 and thereafter during the term of the lease.

The instrument gave the lessees an option to purchase the premises on the following terms: “If this option is exercised on October 29, 1956 after the rental payment of $5,900.00 is made or on April 29, 1957 after the rental payment of $750.00 is made the purchase price shall be $25,000.00. If this option is exercised on October 29, 1957 after the rental payment of $5,750.00 is made the purchase price shall be $20,000.00. If this option is exercised on March 1, 1958, the purchase price shall be $20,600.00.”

The lease gave the lessors the right to terminate the lease on default by lessees of any of its conditions and the right to reenter the premises upon such default. It gave the lessors free access to the premises for the purpose of examining them. The lessees agreed to pay all utility hills charged against the premises for the term of the lease. Subleasing -without the consent of the lessors was prohibited by the lease.

The lease bore the signatures of Reginald and Dorothy Crouse as lessors and the Berrys as lessees. It was sworn to and subscribed to before P. G. Grewach, a notary public, on March 10, 1956.

According to the Berrys, both of these documents had been prepared prior to their reaching Mrs. Crouse’s -office on March 10 and they signed two copies of each practically simultaneously. According to Mrs. Crouse, the sales agreement-was first signed on the morning of March 10. She then took the document to her attorney and asked him to prepare the lease from it. Her attorney, Peter Grewach, testified that Mrs. Crouse brought him a document similar to the sales agreement that was introduced in evidence and asked him to draw up a lease with an option to buy, embodying the terms of the agreement. Grewach testified that he prepared the farm lease pursuant to such instructions and that it was signed by all four parties in his presence in Mrs. Crouse’s office. According to Mrs. Crouse, it was signed in the afternoon of March 10 several hours after the signing of the sales agreement.

The Berrys testified that they did not receive copies of the documents which they signed on March 10 until some thirty to sixty days thereafter. According to them, Mrs. Crouse told them that they would have to be' signed by Mr. Crouse. Subsequently, one or both of the Crouses, according to the Berrys, brought executed copies of the agreements to the Berrys. According to the Crouses, the Berrys were given copies of the documents at the time they were signed.

Berry took possession of the farm and began farming it shortly after March 10, 1956. In October, 1956, he moved his family to the farm. On April 28, 1956, Berry gave Mrs. Crouse a check for $1,500, as previously agreed. On October 27, 1956,-Berry paid Mrs. Crouse $3,500.16 and on November 10, 1956, $2,399.84. Upon making the latter payment, Berry received a receipt showing a balance due of $25,000. On December 8, 1956, Berry paid Mrs. Crouse $347.05, being payment for taxes of $308.55 and insurance of $38.50.

On April 12, 1957, Berry paid Mrs. Crouse $750 and received from her a receipt on which she wrote “Int. for six months — $25,000.” On October 30, 1957, Berry again paid $750 and obtained a receipt from Dorothy Crouse “received of Paul and Norma Berry, $750 Int.”

The Berrys were unable to pay the remaining amount due on the October 29, 1-957 payment. Berry attempted to arrange to pay one half of the amount remaining due on the payment. A check of a third person, in the amount of $1,200, which he gave the Crouses, was not paid when presented by them". In January, 1958, according to Berry, Mr. Crouse came to the residence on the farm and told Berry he was just a renter and could not remain on the place and that “he was throwing me out.” According to Berry, he said: “I would have to set your furniture out on the highway if you don’t get out.” Berry testified that, in February, 1958, he moved from the farm.

According to Berry, his net income from his operation of the farm was approximately $4,000. He testified that, when he left in February, he left growing crops of wheat and com which he had planted and which had a value of from $1,150 to $1,250.

On December 4, 1959, the Berrys filed this action in the Lincoln County Circuit Court. In their petition they alleged they had entered into the real estate sales agreement and had made payments under it in cash and crops in the total sum of $14,350. The petition alleged that, in December, 1957, the defendants notified the plaintiffs that “plaintiffs were in default under said contract, and that said contract was no longer in effect; that, pursuant to defendants’ demands and threats of eviction proceedings, plaintiffs vacated said property; ” and that defendants refused plaintiffs’ demands for a return of the payments made by plaintiffs. The petition prayed judgment for $14,350 together with interest from January 1, 1958.

The defendants’ answer admitted the execution of the sales agreement; that, in December, 1957, the defendants notified the plaintiffs to vacate / the premises and that they were in default. The answer further alleged the execution of the farm lease on March 10, 1956, and the plaintiffs’ default thereunder and failure to exercise their option to purchase as provided in the lease. By an alternative counterclaim, the defendants asked that, should plaintiffs’ claim be upheld, the defendants be given judgment for the reasonable rental value of the premises together with interest during the time of plaintiffs’ occupancy.

By their reply, the plaintiffs admitted the execution of the farm lease and alleged that no consideration was received by them for the signing of that instrument. They also alleged that the lease was signed at the same time as the purchase contract and as part of the same transaction and that the instrument was prepared by the defendants and signed by the plaintiffs upon the assurance of Dorothy Crouse that it was merely part of the contract of purchase. They also alleged that their signing the instrument was induced by false representations of Dorothy Crouse “that the instrument was not important and just provided for the same things as were in the sales contract, except that it also provided that they should keep the farm in good shape and well cared for and that in Lincoln County, it was customary to sign such papers along with a sales contract.”

The trial judge found that, “on March 10, 1956, the parties intended that the Sales Agreement was not to be their formal contract, but was to be supplanted by a more detailed written agreement, the Lease-Option, which was in fact executed by the parties later the same morning; that such intent is supplied by the execution of the Lease-Option, and further by the parties’ dealings in accordance with the terms thereof, and the plaintiffs’ surrender of the premises and abandonment of the farm, all in accordance with the Lease-Option and contrary to the provisions of the Sales Agreement. The rights of the plaintiffs therefore are fixed by the Lease-Option, and any rights they had under the Sales Agreement have merged into the Lease-Option. All money paid by plaintiffs to the defendants has therefore become that of the defendants under the terms of the Lease-Option, and plaintiffs are not entitled to recover same.”

Essentially, the appellants’ position, both in the trial court and on this appeal, is that both the sales agreement and the farm lease relate to the same transaction and that, considered together, they present a patent ambiguity which should be resolved by a construction of the instruments against the respondents, who were responsible for their preparation, and in a manner that will be fair and equitable, i. e., favorable to the appellants. In their brief here, the appellants state: “We start out with the basic rule, followed in Missouri, that when two inconsistent contracts are executed as part of the same transaction, they should be read and construed together.”

The addition of the prefix “in” before the word “consistent” places the appellants’ proposition on an erroneous foundation. Correctly stated, the rule is that where two consistent contracts are executed as part of the same transaction, they should be read and considered together in order to ascertain the intention of the parties. Such was the rule applied in National Bank of Commerce of Kansas City v. Flanagan Mills and Elevator Co., 268 Mo. 547, 188 S.W. 117; Prater v. Rush, 228 Mo.App. 922, 74 S.W,2d 875, and Empire Gas & Fuel Co. v. Stern, 8th Cir., 15 F.2d 323, all cited by appellants in support of the proposition which they urge. However, these cases do not support the proposition stated by appellants for they did not deal with inconsistent instruments. In the National Bank of Commerce case, the court found the language of a bond ambiguous and examined contemporaneous documents of the same transaction in order to ascertain the meaning of the ambiguous language. However, the ambiguity involved did not arise out of an inconsistency among the documents, but from a lack of clarity in the language used in one. In Prater, the court examined a subsequent agreement to ascertain the meaning which employers had given to a contract of employment. Again, however, the instruments involved were consistent, not inconsistent, writings. The same was true of the contract, draft and lease examined in the Empire Gas case.

The rule applicable in the case of inconsistent documents, such as appellants admit are here involved, is that, when two writings are inconsistent, the contract last executed, if valid, will supersede the first to the extent that the two are inconsistent. Ragan v. Schreffler, Mo.Sup., 306 S.W.2d 494, 498(3) ; Herboth v. American Radiator Co., 145 Mo.App. 484, 123 S.W. 533, 537; 17A C.J.S. Contracts § 382, page 452; 12 Am.Jur., Contracts, Section 246, page 783.

“ * * * It is now perfectly clear that informal contracts, whether written or oral, can be modified and discharged by a subsequent agreement, whether written or oral. The subsequent agreement, even though it is in writing, does not discharge the previous oral (or written) agreement if it is not agreed that it shall and it is not inconsistent therewith.
“The existence and the terms of this modifying or discharging agreement can be proved by the same kinds of evidence that are admissible to prove any other kind of contract; and one denying the making or the terms of such an agreement can support his denial by the usual kinds of testimony, written or oral.
“But after these issues have been determined and the court finds, as a fact, the making and the terms of the modifying or discharging agreement, we are no longer interested in the terms of the antecedent contract for purposes of enforcement of them, in so far as those terms have been nullified by the new agreement.” 3 Corbin on Contracts, Section 574, pages 372-375.

Here the appellants did testify that the sales agreement and the farm lease were executed simultaneously. If such were the case, the problem presented might be different. The trial court, however, found against the appellants on this disputed factual issue. Contrary to the testimony of the appellants, the respondent Dorothy Crouse testified that the sales agreement was first executed by the parties, she signing for her husband in his absence; that the lease was thereafter prepared and executed several hours later on the same day. Respondent Reginald Crouse testified that he was not present when the sales agreement was signed, but that he did sign the farm lease in the presence of the Berrys, his wife and Mr. Grewach. Gre-wach testified that the lease was executed in his presence, with all of the parties present. On the record before us, we find nothing to cause us to decline to defer to the findings of the trial court on the contradictory testimony of the appellants and respondents.

Although the time between the signing of the sales agreement and the farm lease was undoubtedly not such as would have prevented their being construed together as part of the same transaction if consistent, nevertheless, it was sufficient to show that, for the purpose of determining which of two inconsistent documents was last executed, the farm lease was the subsequent instrument. Therefore, if it was assented to by the parties as their contract, the latter instrument must be held to prevail and to determine the rights and liabilities of the parties.

Although not wholly consistent with their contention that the two documents should be construed together, the appellants also contend, in effect, that the farm lease was invalid and unenforceable because of lack of reality of assent. They do not urge its invalidity for lack of consideration, as alleged in their reply. Nor do they press their charge that they were induced to sign the farm lease by fraudulent representations of Dorothy Crouse concerning its legal effect. In its essence, the appellants’ contention is that the farm lease was so inconsistent with the prior negotiations of the parties and the sales agreement that it must not have been intended by the parties to have been given effect.

“(As) [a] general rule, absent fraud, accident or mistake, a person cannot avoid a written contract on the ground that he did not attend its terms, or that he supposed it was different in its terms, or that it was a mere form.” Ragan v. Schreffler, Mo.Sup., 306 S.W.2d 494, 499(11). At the trial, when the appellant first sought to show the representations of Dorothy Crouse regarding the farm lease, an objection to the testimony was sustained and counsel made an offer of proof that the witness would testify that “Mrs. Crouse represented to (appellant) and his wife on that date that this instrument, which is entitled ‘Farm Lease’ did not vary the terms of their sales contract and that it was only something which was habitually signed in Lincoln County to insure that the people buying the property would take care of the property and farm the land in a workmanlike manner and that he and his wife should simply sign it for that reason, because it was a local custom to also sign this paper along with the Sales Contract.” Subsequently, the court decided that the offer of proof should be by way of testimony. At that time, Mr. Berry stated, in relating what Mrs. Crouse said: “She pointed out the terms in there. She said in Lincoln County — said to me, ‘In Lincoln County we make out these papers to protect the mortgagor, to plow the ground and to keep the weeds down and, well, to keep things looking nice and it is only to protect the mortgagor so that he will be covered.’ Now, that is what she told me, what she pointed out on that paper to me, and also the price for taxes and insurance and interest and the payments and when they were due.” Mrs. Berry stated: “She said that it was customary. She just said that it was customary to make them up here in Lincoln County. * * * It was to protect the one that had the mortgage on it, to keep the property up and keep it looking nice and in good shape.”

In our opinion, this evidence was not sufficient to show that the parties executed the farm lease without intending it to be of any effect. If a written instrument, on its face, expresses a contractual obligation, one of the parties should not be permitted to avoid it on the grounds that it was never intended as such unless the evidence to such effect is cogent and convincing. 3 Corbin on Contracts, Section 573, page 361, et seq. We do not consider that this testimony and the other evidence of the circumstances surrounding the transaction are sufficient to show that the farm lease was not what, on its face, it purports to be, the contract of the parties.

The sales agreement obviously was in the terms of a sale, not of a lease with option to purchase. However, the sales agreement was also obviously not a complete contract. Although reciting a consideration of $34,500, it provided a schedule of payments reducing that obligation to only $20,-000. It was silent as to what should then occur should the buyer be unable to obtain financing for that amount. The sales agreement also contained provisions which the parties did not intend to be applicable. For example, it called for the seller to tender a warranty deed on May 5, 1956. Actually, however, there was no intention that a deed be delivered at that time as other provisions of the agreement showed and none was tendered or demanded on that ■date. ■

In view of the obvious omissions from and inconsistencies in the terms of the sales •agreement, it was certainly not unreasonable for the trial court to find that the parties contemplated a later instrument to supersede the first document and that the farm lease was such superseding agreement. In our opinion, the fact that the subsequent agreement was in the form of a lease with option to purchase rather than a (contract of sale does not make unbelievable that such a subsequent agreement would 'be made. The sales agreement was actually a contract for delivery of a deed at a future, uncertain date. A lease with option to purchase is not such a wholly foreign transaction as to preclude its use as a substituted contract for a contract of sale. Each is a well-recognized method of disposing of real property on an installment basis. See 1 CCH Fed.Tax Rep., 1964, Paragraph 668.56, page 17,185. The appellants’ principal basis for contending that such a procedure is incredible apparently relates primarily to what they assume to be • the difference in legal consequences in the •event of a default under each of the two instruments. The appellants in effect sqy that, had they been aware at the time of the •execution of the farm lease that the consequences of a default thereunder were such .as they suffered, they obviously would not have signed the lease, but would have adhered to the sales agreement. However, this argument presupposes that, had the sales agreement been the sole contract of the parties and had the appellants made the payments thereunder which they made in this case and then defaulted, they could -unquestionably have recovered the payments which they had made. Again, the law is not in accord with the appellants’ basic assumption. This matter was discuss•ed in the recent case of First National Bank of West Plains v. King, Mo., 363 S.W.2d 590, 1. c. 595:

“Nevertheless, in contracts in which .there is no - express provision for forfeiture, ‘a vendor not in default may in the event of default by the vendee, amounting to a total breach, elect not only to abandon performance on his part but also to retain as forfeited all money paid to him on the contract * * *.’ 31 A.L.R.2d, 1. c. 96. Also, on the theory that a party to a contract may not breach it and thereby secure some advantage to the detriment of the other party, a 'vendee who, without breach on the part of the vendor, refuses to perform a contract for the purchase of real estate, cannot recover from the vendor either the amount paid on the purchase price, or a deposit by him as earnest money or as a forfeiture ; the vendor being ready, able, and willing to perform upon his part.’ (Emphasis supplied.) Annotations 59 A.L.R. 189, 194-195; 134 A.L.R. 1064. These general rules however are subject to numerous exceptions, qualifications and limitations.”

Although we do not here reach the question of whether the general rule or one of its exceptions would have been applicable had the sales agreement been the contract of the parties, there could not have been, at the time of the transaction, such an assurance of protection from loss under the sales agreement as would render a change in the transaction to a lease with option to purchase wholly improbable. Likewise, as was undoubtedly the case, even though the parties did not have the consequences of default in mind at the time of the transaction, we could not say that the difference in such consequences between the two transactions is such as to compel the conclusion that Dorothy Crouse, from her position of superior knowledge and experience, took advantage of the appellants’ inexperience and lack of knowledge.

In any event, appellants do not contend that there was overreaching on the part of ■Mrs. Crouse such as would avoid the effect of the lease agreement. They contend that her position and her responsibility for preparation of the documents should cause them to be construed against her when construed together. However, .if the lease was the final contract of the parties, the problem is not one of construction.

The appellants assert that the trial court’s finding that the subsequent conduct of the parties was in accordance with the lease and that such subsequent conduct evidenced that the parties intended the lease to supersede the sales agreement was erroneous. Of course, the court found such intention from not only the subsequent dealings of the parties, but also from the fact that the farm lease was the later instrument. “The new agreement may make no reference to the previous contract or claim; and yet it may operate as a substituted contract. If the new agreement contains terms that are clearly inconsistent with the previously existing contract or claim, the fact of inconsistency is itself a sufficient indication of intention to abrogate the old and substitute the new.” 6 Corbin on Contracts, Section 1296, page 212. Ragan v. Schreffler, Mo. Sup., 306 S.W.2d 494. While there is some superficial inconsistency between Dorothy Crouse’s handling of the payments which she received, particularly in her acknowledging the $750 payments of April and October, 1957, as “interest,” we do not consider it to evidence that she did not regard the lease as the contract of the parties. Unquestionably, the payments under the lease were figured to provide a return in the same amount as the interest payments under the sales agreement. We do not, therefore, find that the use of such language on the receipts was wholly inconsistent with the terms of the lease.

The appellants would attach significance to Dorothy Crouse’s testimony that the payments received from the appellants were not reported on her Federal income tax returns as rental income for the years in which they were received. Appellants assert that this indicates the respondents did not consider the lease as the controlling document in the transaction. We do not-agree that this testimony must be given, such effect. The reporting of such income is governed by standards fixed by the income tax law. For purposes of that law,, the parties’ designation of the transaction is immaterial. Apparently, when a lease-with option to buy confers an equity in the-property, the transaction is, for income tax; purposes, a sale, regardless of what the parties call it. Haggard v. Commissioner of Internal Revenue, 9th Cir., 241 F.2d 288;. Beus v. Commissioner of Internal Revenue, 9th Cir., 261 F.2d 176. Mrs. Crouse’s tax advisor may well have concluded that such, rule applied in this case and have prepared' her tax returns accordingly.

On the entire record, we do not agree-with the appellants that the evidence did not warrant the finding that the lease was. intended by the parties as the final terms, of their contract. We acknowledge, as is. obviously the case, that the parties, prior to. executing the lease, had dealt in terms of an-installment sale of real estate. However,, there is no prohibition of law or public policy forbidding the substitution of a lease with option to buy for such an arrangement. The instrument which the appellants, executed shows clearly that it was a lease. They admit the execution of the instrument and in our opinion the reasons urged by the appellants are not grounds for avoiding-its effect. Effective, it is the contract of" parties sui juris and we cannot change or-disregard it in order to give effect to what might be our ideas of fairness or equity.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, (Plaintiff) Respondent, v. Henry MARKS, (Defendant) Appellant.
    No. 50250.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Claude T. Wood, Richland, Horace T. Robinson, Waynesville, for appellant.
    Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Special Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Judge.

Defendant, Henry Marks, was found guilty of the offense of felonious assault, without malice, and his punishment was fixed at imprisonment in the penitentiary for a term of two years. See § 559.190, RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment.

The issues on this appeal are such that a very brief statement of facts will suffice. Clarence Foster and Margaret Foster, his wife, operated a tavern in Waynesville, Missouri. In October 1961 defendant was in the tavern and threatened Margaret with a knife because she would not sell him beer on credit. He was then ordered to stay out of the tavern. On December 14, 1962, defendant went to the tavern about 7:30 p. m. accompanied by Lonnie Ricker-son and they sat down at the bar. When Margaret waited on them they ordered two beers and she told Rickerson she would serve him a beer but “wouldn’t serve defendant because he wasn’t supposed to be in there.” Defendant left the establishment and returned about an hour later with a loaded shotgun which he pointed at Margaret’s chest. The gun was not on safety and he had his finger on the trigger. About that time defendant státed, “I am getting damned tired of you running me out of here and this will be your last time.” Margaret called to her husband and shortly thereafter defendant was overpowered by three customers who were present and his gun was taken from him.

Defendant interposed the defense of insanity. There was evidence to indicate that he had suffered from a nervous condition since his release from the army in 1945; that he regularly took tranquilizers and other sedatives prescribed by physicians connected with the Veterans Administration.

Several lay witnesses testified that at times defendant’s conversations didn’t make sense and that he frequently talked to himself. Two of these witnesses were of the •opinion that he did not know the difference between right and wrong at the time of the occurrence heretofore described. Dr. Miller, an M.D. of Waynesville, testified that he had treated defendant for a nervous condition a number of times during the past ten years. While he was of the opinion that defendant was mentally defective, he testified that it was his opinion that •defendant knew the difference between right and wrong.

The first point briefed relates to an alleged error in an instruction, but that contention was expressly abandoned at the time of the oral argument and will not be further noticed.

It is defendant’s next contention that he should be granted a new trial because the verdict indicates that the jury did not decide the issue of insanity. The verdict reads as follows: “We, the jury, find the defendant guilty of felonious assault, without malice, and assess his punishment at imprisonment in the state penitentiary two years. We request this man be given mental examination.”

After the verdict was received there was a discussion between the court and the jury foreman. Defendant’s attorney, Mr. Wood, also asked the foreman some questions. In that colloquy the following occurred: “The Court: Gentlemen, I don’t feel like I ought to let you go without mentioning this last sentence you put on here. Of course, I don’t know just how we could do that. I suppose the lawyers wouldn’t object if I’d discuss just what you had in mind. It might help us to understand your thinking. The Foreman: Well, we just kinda’ decided that we would like to have him checked, and if he had a mental ailment, why we wanted him to be doctored and cared for, if he could be, till he was healed. And the way I understand the jury, we wanted that test to be made first, and if there wasn’t anything wrong, why we request him to serve his time. * * * Mr. Wood: If I understood you correctly a while ago, the jury would like to — for the man to have a psychiatric examination to determine whether he is sane or insane. The Foreman: That’s right. If he isn’t, why we want him to serve his sentence. * * * The Court: * * * The penitentiary gives — these officials up there give them these tests and they have psychologists and psychiatrists, and if they find he’s mentally incompetent, they transfer him over to the State Hospital for treatment instead of keeping him there. The Foreman: Your Honor, I think that’s what we had in mind, that he would receive medical up there and not just be * * * The Court: I’m sure that they do that. They not only see that he has medical attention, which they give all of them, but if he is mentally incompetent to be there, they transfer him over to Fulton where they are prepared to treat him.”

In support of his contention defendant has cited State v. McCarthy, Mo.Sup., 336 S.W.2d 411, State v. Thost, Mo.Sup., 328 S.W.2d 36, and State v. Lovitt, 243 Mo. 510, 147 S.W. 484. These cases state general rules relating to the sufficiency of ver-, diets but do not specifically support the defendant’s contention. For example, in Lovitt, it is said that “[i]n determining the sufficiency of a verdict, the controlling object is to learn the intent of the jury; and, if such intent may he ascertained and the verdict made definite and certain by reference to the pleadings and instructions, it will he sustained, ‘and all reasonable presumptions are indulged to sustain the verdict, and that the jury has found all the facts necessary to support it.’ State v. Bohle, 182 Mo. [58] loe. cit. 68, 81 S.W. 179.” 147 S.W. 487.

We have concluded that the part of the verdict in which a mental examination was requested must be disregarded as surplus-age. In that connection it should he noted that the jury was instructed that if it found that “defendant’s mind was so perverted or deranged that he was not capable of knowing right from wrong, then, if you so' find and believe, it will be your duty to find the defendant not guilty on the ground of insanity.” The jury found defendant guilty. Therefore, we must conclude that the jury did not find defendant “insane” as that term is defined and explained in the instruction. It is doubtful whether we are authorized to consider the statements of the foreman at all. In a somewhat analogous situation this court said that “in polling the jury, defendant was limited to inquiry touching the fact of the concurrence of the jurors in the verdict as returned. It was not proper to inquire into 'the reasons actuating the respective jurors in so concurring.” State v. Hubbs, 294 Mo. 224, 242 S.W. 675, 677. We have, nevertheless, considered those statements and do not find that they are inconsistent with a verdict of guilty. The issue submitted to the jury related to defendant’s sanity on December 14, 1962. It is apparent that the jury was concerned with his condition on the date of’ trial, i. e., April 2, 1963. Moreover, it appears that the jurors did not want defendant-confined in the penitentiary if he had a. “mental ailment” but wanted him to receive-treatment. The fact that the jurors may-have suspected that defendant was suffering; from a “mental ailment” did not indicate that they thought he was insane in the-sense that he did not know right fromi wrong.

We have said that “any recommendation of a jury, unless authorized by statute, is treated as mere surplusage.” State v. Burton, 355 Mo. 792, 198 S.W.2d 19, 23. See also State v. Wood, 355 Mo. 1008, 199 S.W.2d 396, and State v. Churchill, Mo.Sup., 299 S.W.2d 475. When the portion of: the verdict relating to the mental examina-.tion is disregarded the remainder is clear- and not subject to criticism; We accordingly rule that the verdict was not prejudicially-erroneous. While we fully understand and, appreciate the desire of the learned trial; judge to ascertain what the jurors had in: their minds, we think it would have been, the better practice to have instructed the-jury to return to the jury room for further deliberations and to return a verdict in proper form, in accordance with the-instructions, as was done in the case of.' State v. Wood, supra.

The remaining contention of defendant is that he. did not receive a fair and impartial trial because the foreman of" the jury, Jim Doyle, was.biased and prejudiced against him. In support of that assignment defendant attached to his motion-for new trial his affidavit in which he stated! that “the said Jim Doyle is a son of Claude-Doyle; that the affiant and the said Claude-Doyle and,the families of each lived on adjoining farms during the early life of affi-ant; that there were violent disagreements, and conflict between the families of affiant and of said Claude Doyle of whose family the said Jim Doyle was a member; that affiant has reason to believe and does believe that the said Jim Doyle has and had at: the time of this trial a high degree of •dislike of the affiant and affiant has reason to believe and does believe that the said Jim Doyle did not and could not 'have acted fairly and impartially in con■sideration of the charge against affiant and in the trial of which said Jim Doyle served .as juror and foreman thereof. Affiant •states that in the voir dire examination of ■the jury panel prior to selection of the jury to try the charge against affiant the said Jim Doyle failed to disclose the facts relating to his parenthood and his adverse feeling towards the affiant and his family •or to give any indication that he had known the affiant and affiant states that he did not recognize the said Jim Doyle as a member •of the family of Claude Doyle * *

The foregoing affidavit is wholly insuffi•cient to warrant the granting of a new trial. There is no fact alleged which would ■show that Doyle was prejudiced against ■defendant. The fact that there had been some ancient conflict between the Doyle .and Marks families would not necessarily indicate that this particular member of the ■Doyle family was prejudiced against defendant. There is no specific contention ■that the juror did not truthfully answer all ■questions propounded to him on the voir ■dire examination. Defendant did not challenge this juror for cause, and failed to •question him concerning the matters disclosed in the affidavit. He seeks to excuse 'his failure to examine the juror in regard to those matters by saying that he did not recognize him as a member of the family •of Claude Doyle. If the difficulties between these families occurred so long ago •that defendant failed to . recognize Jim Doyle it is reasonable to assume that Doyle ■did not recognize defendant. At least there is no showing that he knew defendant and realized that he was a member of the family with whom his family had formerly had ■difficulties. The conclusions stated in the •affidavit, based only upon defendant’s belief, are not sufficient to warrant the relief •sought. We are also mindful of the fact that the trial court was in a better position to determine the merits of this contention than is this court. Since the trial court overruled the motion for new trial it is evident that it concluded that defendant was not entitled to a new trial because of the presence of Jim Doyle on the jury. We not only defer to the ruling- of the trial court, but have independently arrived at the same conclusion. This point is ruled adversely to defendant.

An examination of the record as required by S.C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    Edgar W. GREEN, Respondent, v. RALSTON PURINA COMPANY, a Corporation, Appellant.
    No. 49693.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.

      Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, Dorman L. Steelman, Salem, J. A. Fraser, St. Louis, for defendant-appellant.
    Geo. F. Addison, L. Clark McNeill, Salem, for respondent.
   HOUSER, Commissioner.

Edgar W. Green, a dealer in feeds and raiser of broilers on a commercial scale, sued Ralston Purina Company for $22,-239.88 loss of broilers and $100,000 loss of future earnings, investment and good will, a total of $122,239.88, based upon breach of warranty that chicken feed defendant sold plaintiff was a wholesome and fit “complete” broiler food. Ralston Purina filed a general denial; an affirmative plea that any loss or damage suffered by plaintiff was the direct result of his own conduct, and a counterclaim for $22,767.59 plus interest, claimed due Ralston Purina on several negotiable instruments in the form of 75-day trade acceptances, executed by plaintiff (Count I); $3,680.85, plus interest, on certain 120-day trade acceptances (Count II); and $3,475.42, plus interest, on an itemized account for goods sold by defendant to plaintiff (Count III). Count III was dismissed by defendant during the trial. A trial jury returned a verdict finding the issues for plaintiff and against defendant “on the plaintiff’s petition and on defendant’s counterclaim,” and assessing plaintiff’s damages at $57,166.66.

The petition alleged that defendant manufactured and sold its prepared broiler raiser feed as a “complete” broiler food, in accordance with an established trade custom and under a warranty that it was a complete and whole feed for this purpose, and that plaintiff bought and fed this feed to his broilers, and sold it to his customers, relying upon the warranty; that in violation of the custom and in breach of an express and an implied warranty the feed was not wholesome and fit for the purposes warranted, and was not a complete broiler feed, adequate without supplementation, to sustain and promote normal health and growth of broilers. Plaintiff also charged defendant with negligence in failing to mark on the label that the feed was not a complete food but was merely a supplement and that other supplemental food was required; failing to warn that it was merely an experimental formula and that no adequate research had been conducted to determine the safety, efficacy, efficiency or completeness of the feed, and in failing to include and provide sufficient nutriment for the healthy growth and development of broilers. Plaintiff alleged that beginning in October, 1957 and continuing for a period of approximately two years plaintiff fed this feed to his broilers and sold it to his customers, as a result of which his broilers became sickly, afflicted and died and others failed to develop and become marketable; and that he lost customers.

Abandoning the charges of negligence plaintiff went to the jury on breach of implied warranty.

Defendant’s points IV and IX raise the question whether plaintiff introduced sufficient evidence either to make a submissible case or to support the giving of main verdict-directing Instruction No. 1. Defendant claims there was no evidence to warrant the submission that the food was not a complete food, or a wholesome food, or that it caused the broilers to sicken and die and others to stunt and fail to develop.

Plaintiff’s evidence showed that in the fall of 1957 defendant came out with a new high fat broiler feed called “Top Banana,” from which defendant’s representatives said the growers could' expect to produce a pound of broiler on two pounds or less of feed; that they had finally “broken the 2-pound barrier” ; that it would be “better than anything [the growers] had ever had”; that they had overcome the problem of putting animal fat in greater amounts in feed and had developed pellets firm enough to stand up and not crumble. About October 1, 1957 plaintiff began feeding Top Banana to his various flocks in his own houses and in the houses of several contract growers. Before that date on the feed previously used he had experienced a normal 5% mortality rate and a normal feed conversion in the production of broilers. After that date, with no change in his methods of operation or management except a change to Top Banana feed, he testified that he suffered an average mortality rate of 29% and feed conversion rates varying in different flocks' from 2.19 to 3.73, whereas a mortality rate of 5%'and a feed conversion rate of 2.30 was to be expected. His evidence indicated that as these flocks reached the age ■ of from three to seven weeks the chickens would develop an uneven," “staggery,” wobbly gait and wobbly legs; get down on their legs, squat and be unable to walk, “holler” and make peculiar noises. “You could tell it hurt them to move.” They were restless, wilder than normal and would shake, tremble and quiver. They developed into irregular sizes, showed a lack of uniformity, and had to be culled at marketing time. The mortality rate would increase rapidly and they would die in large numbers. Post-mortem examinations disclosed red splotches on the birds; a hemorrhagic condition of the skin: a strawberry-colored, bloodshot condition of the intestines and body cavity; thim and watery blood; yellow or straw-colored; liquid in the heart sac, and the heart would seem to be excessively fat. Some of the-conditions were commonly known and some had never been encountered prior to the use of Top Banana.

Plaintiff’s evidence showed that Top Banana was much darker than other feed, looked like bran or chops mixed together, was greasy and looked like it had cylinder oil poured over it; it had a strong rancid odor. Plaintiff did not feed Top Banana exclusively. Twelve or fifteen of the 28-flocks grown by plaintiff during the period involved were fed a mixture compounded by plaintiff’s employees in plaintiff’s mixer, consisting of defendant’s Chowder Mix, a broiler concentrate feed, to which plaintiff added .his own ground corn which plaintiff purchased from various truckers. Plaintiff’s employees found and sifted from the Chowder Mix “fat balls,” dark, black, greasy balls ranging in size from that of a match head to a half inch in diameter.. Plaintiff sent some of these to defendant’s, laboratory for analysis, but received no. report on their contents. Defendant’s witnesses testified they were formed by fish: solubles and that their ingredients were corn, milo, oats, dehydrated alfalfa, corn-gluten feed, cottonseed meal, soybean meal, fish meal, fish solubles and meat scraps..

Plaintiff’s manager testified that Dr. Mc-Cune of Missouri University made an investigation and reported that he did not know and could not tell whether it was. a feed problem or a chicken problem. He said it could be a combination of both;: that it might be that the chickens were not strong enough to stand the feed or that the feed was not strong enough for the chickens; that it might have too much fat. In many tests made nothing was found wrong. Orville Black, contract grower, testified he did not know whether the feed “killed the chickens or not, but they died.”

Statistics compiled by plaintiff from original records of all flocks and all feeds used after October 1, 1957 showed the ■number of deaths above normal mortality, but these statistics did not differentiate between deaths caused by feed problems and deaths caused by the ordinary diseases which plaintiff admitted all flocks have from time to time, such as chronic respiratory disease, salmonella, synovitis, etc., ■and did not take into account deaths from •crippling, injuries in moving, bad weather, and other accidental mortality. Plaintiff ■admitted 1232 deaths in one brood on the .first four days resulting from a severe cold wave, and that deaths in the first week ■are not usually caused by any feed difficulty, but nevertheless in making his claim for excess mortality over normal mortality “caused by bad feed” plaintiff sought compensation for all chickens that died over -normal mortality, regardless of cause of ■death.

The defense was that the trouble was ■due to disease, poor management practices, ■such as failing to change the litter between flocks, and not to the feed. A veterinarian, manager of defendant’s animal pathology division, found numerous diseases in chickens of plaintiff on which he conducted post-mortems: infectious synovitis, chronic respiratory disease, salmonella, naval infection, epidemic tremor and hemorrhagic syndrome, none of which is caused by feed. Three out of 21 chickens examined had hydropericardium. There are five or six causes of this disease, one of which is the toxic fat factor. Toxic fat is an animal feeding grade fat which when fed to chickens may be toxic to them. Introduced into feed it has a very high potency. One of defendant’s other dealers had a problem which was identified in December, 1957 as due to toxic fat. Some toxic fat did go into defendant’s feed, some of which was called Top Banana. Every effort was made to identify the ■source of the toxic fat. Defendant worked with Merck Company on the problem. Kentucky Chemical Company was found to be the source of the fat. The most common denominator found which would “tie down to the involved flocks” was this one source of fat. That source was discontinued; the fat impounded; not further used, destroyed and removed from the premises as soon as possible. After December, 1957 but at a time not specified, two other sources of toxic fat developed. There was no proof, however, that there was toxic fat in any of the feed shipped to plaintiff, or that any of the feed sold to plaintiff by defendant and fed to his flocks contained toxic fat.

To recover for breach of implied warranty of wholesomeness plaintiff not only had the burden of proving facts from which such a warranty would arise, but also that defendant’s product was actually harmful or deleterious in some way, Dougherty v. Lee, 74 Cal.App.2d 132, 168 P.2d 54, 55; Anno.: Animal and Farm Supplies—Liability, 81 A.L.R.2d 138, § 17, p. 162; and that there was a causal relationship between the unwholesome product and the loss sustained; Quaker Oats Co. v. Davis, 33 Tenn.App. 373, 232 S.W.2d 282, 289; American Cyanamid Co. v. Fields, 4 Cir., 204 F.2d 151, 153; Hildebrand & Son v. Black Hawk Oil Co., 205 Iowa 946, 219 N.W. 40; Anno., 81 A.L.R.2d 138, § 21, p. 165; in this case, that unwholesome feed supplied by defendant “was the efficient cause of the production difficulties experienced” with plaintiff’s flocks. Ralston Purina Co. v. Edmunds, 4 Cir., 241 F.2d 164, 167. Plaintiff was not bound to exclude every other possible cause, Monahan v. Economy Grocery Stores, 282 Mass. 548, 185 N.E. 34; Peckham v. Eastern States Farmers’ Exchange, 1 Cir., 134 F.Supp. 950, aft. Eastern States Farmers’ Exchange v. Peckham, 1 Cir., 234 F.2d 488, or to prove an “absolutely positive causal connection.” Bradford v. Moore Bros. Feed & Grocery, 268 Ala. 217, 105 So.2d 825. After showing the unwholesomeness of the product a prima facie case would be made where the evidence was susceptible to a reasonable inference that the death or illness resulted from the eating of the unwholesome feed. Dougherty v. Lee, supra, 168 P.2d, 1. c. 56. The finding, however, must be based upon probative facts, and a verdict founded on speculation and conjecture cannot stand. American Cyanamid Co. v. Fields, supra. Probative facts may be established by circumstantial evidence, and while circumstantial evidence need not have the quality of absolute certainty, Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, the circumstances must point to the desired conclusion with such a degree of certainty as to make that conclusion reasonable and probable and must rise above the stature of guesswork, speculation or surmise. Gray v. Williams, Mo.App., 289 S.W.2d 463. Plaintiff’s evidence must be viewed in the light most favorable to him, and he is entitled to the benefit of all inferences reasonably arising from the evidence. American Cyanamid Co. v. Fields, supra.

Under these rules the evidence is not sufficient to form a substantial basis for the jury verdict for plaintiff. There was sufficient evidence to find that there was an implied warranty that the feed was wholesome and fit for use as a chicken feed, at least as to that portion supplied in sealed bags, Albers Milling Co. v. Carney, Mo.Sup., 341 S.W.2d 117 [1], but plaintiff failed to prove an implied warranty that Top Banana was a complete feed not requiring supplementation, and failed to prove that the feed was unwholesome, and that unwholesome feed caused the production difficulties.

The solution of the question whether Top Banana and Chowder Mix would cause chickens to sicken, stunt and die, and to manifest the abnormalities found on postmortems, is essentially a matter of expert opinion; questions of medical science which a court or jury could not answer without the aid of expert opinion, Dunn v. Ralston Purina Co., 38 Tenn.App. 229, 272 S.W.2d 479, 482; Tracy v. Liberty Oil Co., 208 Iowa 882, 226 N.W. 178, but plaintiff produced no expert witnesses to establish that the feed was unwholesome or harmful or that it caused the production difficulties encountered. Plaintiff did not show either by expert or lay opinion that the Top Banana or Chowder Mix supplied plaintiff was unwholesome, harmful, contaminated, adulterated, or that it contained any deleterious substances, unless this may be found in the evidence that “a few” moldy lumps or “fat balls” were found in some of the feed. That evidence would be insufficient, however, as a basis for the verdict because plaintiff did not show that these fat balls were moldy when the feed was received by plaintiff from defendant, or that any moldy feed was actually fed to his chickens, or that feed with moldy fat balls in it will kill or injure chickens, see Burns v. Ralston Purina Co., 210 Ga. 82, 77 S.E.2d 739, or that such a consequence occurred in this case. Plaintiff failed to. prove the content, composition and ingredients of Top Banana, other than that it was a high fat content broiler feed; and failed to show that the feed was deficient in any respect from a nutritional standpoint. While there was evidence that defendant had toxic fat troubles there was no evidence, direct or circumstantial, that toxic fat was contained in the feed shipped by defendant to plaintiff or fed to plaintiff’s flocks during the period.

Plaintiff relies upon the post hoc ergo propter hoc method of proof. The plaintiff’s theory is that before using the feed the flocks sustained only a normal 5% average mortality, but after using the feed they sustained an abnormal 29% average mortality, therefore the feed was unwholesome and harmful and the cause of the excess mortality. We note that the average mortality was not 29% as plaintiff testified orally but was 12.2%, if we correctly compute the figure from plaintiff’s Exhibit A, which lists the mortality rate of each of the 75 flocks raised by plaintiff and all his contract growers during the period in question. But whether it was 29% or 12.2%, there was no substantial evidence of causation. The only approach to proof of causation was the testimony that defendant’s salesman Hilgedick stated that plaintiff’s problem “evidently was a feed problem” (too indefinite to amount to substantial evidence of causation), and the following: While testifying on damages plaintiff referred to his claim against defendant for damages “from this bad feed,” and when questioned as to when he made up his mind he was having trouble with his chickens “from Top Banana feed,” he answered “I would say in the month of January, * * * of ’58.” These two oblique references are not definite enough or sufficient to consth tute a lay opinion that the feed was the proximate cause of the excessive mortality and other bad results experienced. From the statistics compiled in Exhibit A no general recognizable pattern emerges as the basis for an inference of reasonable probability of causation. Plaintiff did not have trouble with every flock fed Top Banana. There was wide fluctuation in the mortality rate as between the several flocks, ranging from 2% to 42% mortality. Some of these wide variations between two flocks raised by the same grower on the same feed under the same conditions occurred quite near in point of time. The average mortality rate of the 28 flocks fed exclusively on defendant’s products was 14.1%. Of the 28 flocks of which complaint is made four flocks experienced 6% mortality or less. Fourteen had 12% or less. Only six flocks had mortality rates in excess of 14%. In the 24 flocks fed on feed purchased from a competitor, Stamper, (flocks grown by the same growers in the same houses during the same period) quite similar wide variations and results were experienced. Mortality on Stamper feed varied from 1% to 47%. Nine flocks on Stamper showed a mortality rate of 6% or less; fifteen showed 12% or less. Eight were above 14%. There was no evidence of the experience of other broiler raisers using defendant’s products. (There was evidence that another dealer “had a problem” due to toxic fat, but this was not developed, and is too indefinite and uncertain to have any significance or weight.) There was no evidence thát the symptoms found when plaintiff’s chickens were “posted” (given post-mortem examinations) were typical symptoms to be expected if they died as a result of eating unwholesome food. The only evidence on this question supported the contrary inference, that they died of various poultry diseases. Plaintiff’s case of breach of implied warranty is essentially based upon the circumstantial evidence that the chickens sickened, stunted and died after eating this feed. This is not enough to raise a reasonable inference that unwholesome feed was the proximate cause of the production difficulties, with that degree of certainty or probability required. Thus in Hildebrand & Son v. Black Hawk Oil Co., 205 Iowa 946, 219 N.W. 40, 1. c. 41, the Iowa Supreme Court said that in a case of this kind, where there was no expert testimony on causation, no post-mortem evidence favorable to plaintiff and no evidence that the injury to the herd of hogs was the result of feeding to them the preparation manufactured by defendant, “ * * * proof that the animal died or was permanently injured does not alone establish a case for the plaintiff. * * * The evidence is wholly wanting to connect the death of these hogs with the feeding of this preparation, and equally so as to their stunted growth. * * * The record is wholly wanting in evidence showing that the death and the injury to these hogs were not the result of disease or other natural causes not chargeable to the use of this preparation. With this state of the record the court should not have allowed this case to go to the jury.” And in Tracy v. Liberty Oil Co., 208 Iowa 882, 226 N.W. 178, 182, the same court said: “There was no evidence that any of the ingredients of the mineral were per se dangerous or deleterious, or that its administration was the proximate cause of the death of the hogs. The veterinarians spoke of gastritis, enteritis, hemorrhagic septicaemia, as a probable cause of the death of the hogs in question. * * * If it may be concluded, from the circumstances surrounding the case, that [the facts] indicate simply a possibility that the theory of plaintiff is true, then plaintiff has not made out his •ease.” In Poovey v. International Sugar Feed No. 2 Co., 191 N.C. 722, 133 S.E. 12, a suit for breach of implied warranty of fitness, where defendant sold plaintiff feed for his cattle, and they died after eating it along with some wheat straw and “other Toughness,” and there was no evidence that "there was any poisonous or deleterious matter in the defendant’s product, the court said: “The conclusion from the testimony 'is irresistible that the only evidence of a breach of warranty was the fact that after ■feeding the product for ten days or more two of plaintiff’s cows died from what was diagnosed- as ptomaine poisoning. No •analyses of the stomach of the dead cows was made, and it appears from the record That the particular cows that died were also ■fed with ‘wheat straw and roughness.’ The mere sickness and death of the cows is not ■sufficient evidence in itself to establish a prima facie case of breach of warranty. The doctrine of ‘res ipsa loquitur’ does not apply to a breach of warranty [citing authority], There is no more reason to conclude that the cows died from this particular feed than that there was some deleterious or injurious substance in the ‘wheat ■straw or roughness’ that was fed to them •at the same time. * * * [T]he evidence of the breach of warranty was not •sufficient to be submitted to the jury, -* * And in Murphy v. Sioux Falls Serum Co., 47 S.D. 44, 195 N.W. 835, in a negligence case, where there was no evidence of defendant’s negligence “other than the death of the hogs” it was held that a verdict could not stand, because it rested only upon conjecture and speculation.

The evidence makes it clear that causes for which the defendant is not liable were at least equally probable, if not more probable, causes of the production difficulties as the defendant’s feed. We refer to the different poultry diseases in evidence, the symptoms of which were revealed by numerous post-mortems conducted on chickens fed with Top Banana; poor growing methods admitted by plaintiff and his contract growers, such as failing to clean the houses and replace the litter after each flock was sold; not using chemically treated footpads to prevent spread of infectious disease from house to house; casualties from weather, crippling, etc. Plaintiff made no effort to show that his chickens did not sicken, stunt or die from disease or casualty, but admitted some died from casualty and testified that all flocks have some disease from time to time. The testimony of plaintiff’s general manager, that Dr. McCune, the expert whose advice he sought, could not tell whether there was a feed problem or a ‘chicken problem and that it might he that the chickens were not strong enough to stand the feed or might be that the feed had too much fat, shows the alternative possibilities, and that plaintiff’s case was based upon speculation and guesswork, and points up the fact that no issue for the jury was raised. Ralston Purina Co. v. Edmunds, supra. The most that can be said of plaintiff’s evidence is that it established the possibility that his production difficulties resulted from the use of Top .Banana and Chowder Mix, but the possibility of fault and causation is not sufficient to attach liability, where there are alternative possibilities under one of which defendant is liable and under the other of which there is no liability. Ralston Purina Co. v. Edmunds, supra.

Point II assigns prejudicial error in overruling defendant’s objection to argument of plaintiff’s counsel to the jury, in failing to reprimand plaintiff’s counsel, and in overruling defendant’s motion for a mistrial, based on plaintiff’s argument as to the size and wealth of defendant and its ability to buy witnesses, and that the court magnified the error by stating that plaintiff’s counsel was within his rights.

The following occurred during the opening argument in behalf of plaintiff:

“MR. McNEILL: * * * This is a place where men and corporations must have their arguments decided.
“MR. RICHESON: I want to object to that type of argument, it is prejudicial.
“THE COURT: Continue, Mr. McNeill.
“MR. McNEILL: This represents a struggle of a little man against one of the biggest corporations in the business.
“MR. RICHESON: I object to the argument of poor man and little man. It has been condemned many times by the Court. May I ask the Court to reprimand counsel for making that argument?
“THE COURT: I assume it was not made in bad faith and that it will not continue.
“MR. RICHESON: I move the Court to discharge the jury and declare a mistrial.
“THE COURT: The motion will be denied. Continue, Mr. McNeill.
* * * * * *
“MR. McNEILL: Any corporation that can reach out and bring witnesses from Germany, Jefferson City or anywhere else can by their soul.—
“MR. RICHESON: I want to object to the prejudicial argument.
“THE COURT: I think he is within his rights, Mr. Richeson. Go ahead.”

An individual and a corporation come before a court as equals in the eyes of the law. A comparison between the size, power or wealth of the litigants is wholly extraneous and should not be made by counsel. A reference to the financial ability of a corporate defendant to “buy the soul” of witnesses appearing in its behalf is patently improper. It carries the implication if not an indirect charge of subornation of perjury. This has no place in a trial in a court of justice, in the absence of supporting evidence. The rich-man-poor-man argument, in which counsel consciously and deliberately array the size, wealth or power of a corporation on the one hand against the position of an individual on the other, and an argument that the corporation has the resources to buy the soul of the witnesses appearing in its-behalf, could have no other effect than to-prejudice the corporation in the eyes of the jury and deprive it of its right to a fair' and impartial trial. See Beck v. Quincy, O. & K. C. R. Co., 129 Mo.App. 7, 108 S.W. 132. Such statements are “dangerous and harmful indulgences, potent in exciting sympathy or prejudice, and should be-discouraged, especially when apparently used for that purpose * * *.” Hendrick v. Kauffman, Mo.App., 66 S.W.2d 985, 988. This type of jury appeal is not permitted. It is the duty of the trial judge to stop-such an argument at its inception; to-instruct the'jury to disregard it, and to-reprimand counsel. A mistrial should be-declared where it appears impossible for the jury to deliberate dispassionately on the-merits of a cause or defense as a result of the action of counsel in charging the atmosphere of the trial with prejudice. Instead of nipping it in the bud the court in this situation encouraged counsel to go-to full bloom in making a prejudicial argument by directing counsel to continue, and by assuming that the argument was not made in bad faith. The court then condoned and stamped its approval on the-argument by the erroneous comment that counsel was within his rights. This constituted error, Goucher v. Woodmen Accident Co., 231 Mo.App. 573, 104 S.W.2d 289, 295; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482, sufficient alone and of itself to effect a reversal of the judgment.

Although the points considered are dis-positive of this appeal, other points deserve brief mention.

Point I involves the action of the court in orally instructing the jury. After deliberating 45 minutes to an hour the jury, brought back into the courtroom, asked the court “whether if they found for plaintiff, plaintiff would still have to pay the counterclaim.” The court orally stated that “There are in effect two lawsuits. If you find for the plaintiff and also for the defendant on the counterclaim in any amount, the difference between the two would be the final amount of your verdict.” This was error because instructions should be in writing, and because the instruction given was not complete and did not cover all of the possibilities. Where there are issues to be resolved both on petition and counterclaim verdict forms covering all possibilities should be given. Reference is made to Disbrow v. People’s Ice, Storage & Fuel Co., 170 Mo.App. 585, 157 S.W. 116 [2] for a helpful discussion of the proper way in which to instruct in such a case.

Point III relates to the action of the court in failing to take corrective action when, according to defendant’s counsel, plaintiff’s wife audibly said “You lied like a dog” to one of defendant’s witnesses as he was leaving the witness stand. The record supports the conclusion that the jury did not hear the remark, and we are not prepared to say that the court abused its discretion in not taking corrective action on this ground.

Point V raises the question of the propriety of the language of Instruction No. 8A, directing the'jury to find against the defendant on its counterclaim for the purchase price for any part of the feed found to be unfit for feed for growing broilers “for any of the reasons shown in the evidence.” On a new trial such a roving commission should not be employed, but the jury should be guided and directed by reference to the specific reasons in evidence.

We find no error in the admission of the evidence of defendant’s employee, Hilge-dick, as suggested in Point VII. On the admissibility of opinion evidence of lay witnesses as to diseases and physical condition of animals and fowls see Albers Milling Co. v. Carney, Mo.Sup., 341 S.W.2d 117, 122; Anno.: Opinion Evidence-Animal—Condition, 49 A.L.R.2d 932.

It is not necessary to explore the point relating to the alleged excessiveness of the verdict. For whatever assistance it may be worth, we refer to Anderson v. Abernathy, Mo.Sup., 339 S.W.2d 817 and Fuchs v. Curran Carbonizing and Engineering Co., Mo.App., 279 S.W.2d 211, on the requirements in proving loss of profits in the case of an established business.

The judgment is reversed for failure of proof. The record does not indicate that all available essential evidence has been fully presented and that no recovery can be had in any event. It appearing that on a new trial plaintiff may be able to make a submissible case, Prince v. Bennett, Mo.Sup., 322 S.W.2d 886 [3]; Mo.Dig. Appeal & Error,

[7], the cause is remanded for a new trial on all issues.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLLINGSWORTH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert Joseph LANE, Appellant.
    No. 50064.
    Supreme Court of Missouri, Division No. 1.

      March 9, 1964.

      See, also, 371 S.W.2d 261.
    William B. Spaun, Hannibal, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Presiding Judge.

By an information filed in the Hannibal Court of Common Pleas, defendant was charged with feloniously assaulting one Geraldine Avery with a deadly weapon, to wit: a loaded pistol, with intent to kill. Thereafter, on application of defendant, the case went on change of venue to the Circuit Court of Shelby County, where an amended information was filed charging defendant under § 559.180 RSMo 1959, V.A.M.S., with feloniously, on purpose, and of malice aforethought making an assault upon Mrs. Avery with a deadly weapon, to wit: a loaded pistol, with intent to kill.

Tried to a jury, defendant was found guilty of felonious assault with intent to kill Mrs. Avery, with malice aforethought, and his punishment was assessed at imprisonment in the State Penitentiary for a term of five years. His motion for new trial was overruled and he has appealed from the judgment rendered and the sentence imposed in accordance with the verdict. Jurisdiction is here vested under Article V, § 3, of the Constitution of Missouri, V.A.M.S.

The sole error assigned on appeal is that the trial court erred in submitting the issue of defendant’s guilt of assault with intent to kill without malice aforethought.

The evidence in behalf of the State was, in substance, as follows:

At the time of the shooting, Mrs. Avery and her husband, Vincel, resided at 1714 Vermont Street in the City of Hannibal. Defendant, Robert Joseph Lane, frequently referred to in the evidence as “Bobby Joe” Lane, was married to the Averys’ daughter, Donna. The two families had been on friendly terms until a disagreement arose between them some year or more prior to the shooting concerning a joint venture by them undertaken in the acquisition and operation of a boat.

On February 9, 1962, Mr. and Mrs. Avery stopped at Bud Head’s tavern to cash a check. They there saw Bobby Joe playing shuffle board, stayed in the tavern only a few minutes, and then went to their home. About 6:15 p. m., at which time Mr. Avery was asleep in the bedroom and Mrs. Avery was watching television in the living room, Mrs. Avery heard a knock at the hack door. She went into the back hall, turned on a light and, looking through a glass in the back door, saw Bobby Joe standing at the door, with a .32 caliber revolver in his hand. He opened the door and stepped inside the hall; Mrs. Avery stepped back and dropped her hands to her sides. Bobby Joe walked in and, with his finger on the trigger of the pistol, “stuck the gun in [her] chest.” She said, “Bob, what are you going to do ?” He said, “I’m going to shoot you and I’m going to kill you. Is Vince home?” She said, “No”, and said, “Bob, put that darned gun down.” Bobby Joe, then standing a foot or more in front of her, and very angry, was pressing the revolver hard into her chest and it was hurting her so bad that she said, “If you’ve got to shoot somebody, shoot me and leave [Vince] alone.” Bobby Joe then shot her in the chest. She raised her hand to her chest and ran through the kitchen into the living room, where she encountered her husband and told him, “Bob shot me.” She then ran out the front door to the home of Mr. and Mrs. Don Pickett across the street. She was taken from the Pickett home to Levering Hospital, where Dr. Robert Joseph Lanning, M. D., treated the shot wound inflicted upon her by the bullet fired into her chest by Bobby Joe. The bullet had entered the central portion of Mrs. Avery’s chest and pierced her right lung, causing it to collapse and blood to flow into the pleural cavity. The immediate treatment given her consisted of placing a tube into the lung to suck out the air and blood. If the condition found had not been promptly treated, death could have ensued within hours. The bullet was removed from her lung on February 19.

Vincel Avery testified that he, awakened by the shot fired by Bobby Joe into Mrs. Avery’s chest, jumped from his bed, came out of the bedroom, met his wife, saw blood coming from her chest, and his wife said, “Bobby Joe shot me.” He then saw Bobby Joe, who followed him back into the bedroom. Vincel got behind the bed. Bobby Joe came around to Vincel, who said, “Bobby, don’t shoot no more, you’ve done enough damage.” Bobby Joe said, “Don’t touch me, Vince, I’ll kill you.” Vincel then ran past Bobby Joe and began to back out the door,. Bobby Joe shot Vincel, first in the stomach and then in the back. Vincel also went across the street to the Pickett home and was taken from there by ambulance to Levering Hospital.

Bobby Joe was arrested about 8 p. m. and taken to the police station, where he made a statement which was transcribed and thereafter read and signed by him. That statement was admitted into evidence and read by the jury after defendant’s counsel announced that he neither challenged nor desired “a separate hearing on its volun-tariness or anything of that sort”, his only objection, he said, being “that it might have been effected by his [Bobby’s] mental condition.” Counsel for defendant also suggested, “I think the jury could read it themselves,” which the court then permitted the jurors to do. That statement, to the extent material, reads:

“Some time after 4 o’clock I called a cab at Head’s Bar and rode around between 30 and 45 minutes then I went to 2010 Hope Street and got my car. Then I went back down to Head’s Bar; and later left there, I don’t know what time, and went to my father-in-law’s on Vermont Street I unlocked the glove compartment of my car and took out a .32 revolver which I bought at Harve’s Hunting Hut on Thursday for $15.00. I had the gun in my hand when I knocked on the door. My mother-in-law opened the door and grabbed my hand and we went to scuffling and she called me some names. I don’t remember exactly what she said. I had the gun cocked in my hand and when she grabbed my arm I pulled the trigger. She screamed and I don’t know if the bullet hit her or not and I don’t know where she went. I don’t see how I could have missed her. This happened just inside the door.

“I went on into the house and Vincel jumped up off of the bed and said, ‘My God, what happened ?’ He came running into the kitchen where I was and told me I could have the god-dammed boat and a bunch of stuff but I was so god-dammed mad I don’t know if I shot him while in the house or not, and he went running back into the bedroom and down under the bed and out the other side. Then he ran out the front door which faces Vermont Street. I ran out the front door after him and shot at him while he was running toward Donny Pickett’s house. I don’t know if I shot at him once or twice and I don’t know if I hit him. I don’t know who opened the door over there so I did not shoot him in the doorway.

“I got in my car and drove around the block and came in the back driveway and went back in the house looking for my mother-in-law and could not find her. Then I left again and I saw the ambulance and right after that the Police Car put a light on me and I drove down a dead-end street and stopped. I got out of the car and I don’t know if the Police took gun out of my hand or if it was in the front seat of the car or in my pocket or what. Then they brought me to the police station.”

Mrs. Gertrude Lane, Bobby Joe’s mother, testified in his behalf, saying that she saw Bobby Joe at the Hannibal Police Station shortly after the shooting and that he did not look normal to her. Mrs. Howard Kiser, the wife of Geraldine Avery’s brother and a sister of defendant, testified to the same effect and that Bobby Joe seemed hypnotized, like he was in another world. Police Officer Radford testified that while enroute to the police station, Bobby Joe said he did not “aim” to shoot his mother-in-law.

Defendant testified: Mrs. Avery unlocked the back door and admitted him into the hall. He then had a pair of gloves, a revolver and a belt in his hand and was engaged in lighting a cigarette. He did not tell her he was going to kill her husband; it was not his purpose to harm anyone. He did not push the revolver against Mrs. Avery, she grabbed it. He pushed her away, she came back, and he again tried to push her away and “purtnear fell through the door and the gun went off.” He did not tell the officers at the police station, as recited in the written statement signed by him, that “I had the gun cocked in my hand and when she grabbed my arm I pulled the trigger.”

The record shows that defendant was represented by his own counsel throughout the trial and by the same counsel on this appeal; that the trial court comprehensively instructed the jury on the issue of defendant’s (1) guilt of feloniously assaulting Mrs. Avery with malice aforethought in the manner described in the information and in the evidence under § 559.180; (2) the issue of his guilt of so assaulting her without malice aforethought under § 559.190; (3) the issue of defendant’s innocence by reason of an insane condition of mind such as rendered him unable to distinguish between right and wrong with reference to such an assault; (4) the issue of his innocence on grounds that the shooting of Mrs. Avery was the result of accident or misadventure; and (5) the general issue of innocence based upon the presumption of his innocence and the necessity of the State proving his guilt beyond a reasonable doubt before he could be convicted of either of, the .two degrees of felonious assault submitted under the instructions.

As stated, defendant’s sole complaint is that there was 'no evidence upon which he could be found guilty of assault'with intent to kill without malice aforethought. In support of that assertion, defendant cites State v. Lane, Mo., 371 S.W.2d 261 and State v. Hagerman, Mo., 244 S.W.2d 49. He also says: “The only defense that defendant maintained was accident and/or insanity and the instructions to find the defendant guilty on lesser offense of assault with intent to kill without malice was not justified and placed an undue burden on defendant, where instruction was given over objections of defendant.” And, further, he says: “The law presumes malice as a concomitant of an assault with a deadly weapon where there is absence of countervailing circumstances or testimony”, citing § 559.180 and State v. Ayers, Mo., 305 S.W.2d 484.

.The argument in support of the foregoing contentions is thus stated in defendant’s brief:

“As related in the Statement of Facts, defendant stood on the defenses accident and insanity. He elected to be tried on the offense as charged, and objected to the Jury being instructed on a lesser offense. Certainly under the evidence there could be no other conclusion than that the offense was committed with malice. Had it been an accident, he should have been acquitted, and had the Jury found him insane at that time he should have been so found by the Jury. The Jury by their verdict found him not guilty of an assault with Malice aforethought, and ruled out the defenses of accident and insanity. The Instruction given by the Court, No. 4, was clearly in error under the evidence, and the defendant respectfully urges the court to reverse the conviction of the defendant.”

Said Instruction, in material part, reads:

“If you find the Defendant not guilty of an assault with intent to kill with malice aforethought, you should then determine whether or not, under the evidence and these instructions, the Defendant is guilty of an assault with intent to kill without malice aforethought.

“Bearing in mind the definitions of the terms ‘wilfully,’ ‘on purpose,’ ‘malice aforethought,’ and ‘feloniously,’ heretofore given you, you are instructed that if you believe and find from the evidence, to a moral certainty and beyond a reasonable doubt, that an assault was made by the Defendant upon Geraldine Avery with a pistol loaded with gun powder and leaden balls, and if you find that the Defendant made such assardt with the felonious intent, then and there, to kill Geraldine Avery, if you so find, but that the assault was made without malice aforethought, as that term has been defined, and if you further find and believe that said pistol was a deadly weapon, that is a weapon, likely, as used, to produce death, then you will find the Defendant guilty of assaidt with intent to kill without malice aforethought, and unless you so find all the facts to be, or unless you find that the Defendant is not guilty by reason of insanity in accordance with Instruction Number 5, or unless you find that the Defendant is not guilty by reason of accident in accordance with Instruction Number 6, you will acquit the Defendant of assault to kill without malice aforethought.

“If you find the Defendant guilty of assault with intent to kill, without malice aforethought, then you will assess his punishment at imprisonment”, etc.

As we understand the effect of defendant’s contention, it is that, under the evidence, the jury could have arrived at no conclusion other than that the shooting of Mrs. Avery by him was done by him either (a) on purpose, “with malice aforethought”, or (b) by reason of his insanity or (c) accidentally; that had the jury found either that the shooting was accidental or an insane act on his part, then its verdict, under the instructions of the court, necessarily would have been “not guilty”; consequently, defendant contends, the only lawful verdict of guilt that the jury could have returned was assault with intent to kill with malice aforethought; and that, therefore, the verdict finding defendant guilty of assault with intent to kill without malice aforethought was unlawful and void.

It is the sole province of the jury to believe or disbelieve the whole or any portion of the testimony of any witness with reference to any fact in dispute in the case and then to arrive at its verdict upon the basis of the facts as it finds them to be. There was ample evidence in the case, as hereinabove shown, to support either a finding that defendant feloniously assaulted Mrs. Avery in the manner alleged in the information with malice aforethought or that when he entered the Avery home Mrs. Avery began to scuffle with him and to call him “names”, whereupon he, with the cocked pistol which he then held in his hand pointed directly at her chest, in angry retaliation, intentionally “pulled the trigger”. If the jury so found the latter to be the fact, its verdict finding defendant guilty of assault with intent to kill without malice aforethought is supported by substantial evidence.

The statute, § 559.180, under which defendant was charged, definitely includes the lesser offense of assault with intent to kill without malice aforethought, as defined in § 559.190. Therefore, under the provisions of § 556.230 the court correctly submitted the issue of defendant’s guilt of the lesser offense (as defined in Instruction 4, supra) and the jury was authorized to find him not guilty of the offense charged in the information under § 559.180 and to find him guilty of the lesser offense, as defined and included in § 559.190 and as submitted under Instruction 4. State v. Parrish, Mo., 214 S.W.2d 558, 560-561; State v. Ayers, Mo., 305 S.W.2d 484, 486 [1-3] ; State v. Swiney, Mo., 296 S.W.2d 112, 114 [2] [3]. Defendant’s contention that the trial court erred in submitting the issue of his guilt of assault with intent to kill without malice aforethought, as hypothesized in Instruction No. 4, must be denied.

Examination of the record, as required by S.Ct. Rule 28.02, V.A.M.R., shows that defendant and his counsel were present at all pretrial, trial and after-trial proceedings; that the information is in approved form; that defendant was arraigned and entered a plea of not guilty; that all trial proceedings were in due form; that the verdict is sufficient in form and the punishment assessed is within the limits provided by the statute, § 559.190; that defendant was granted due allocution; and that the judgment and sentence are valid.

The judgment is affirmed.

All concur.

      . To which revision all statutory references herein are made.

      . Which affirmed a sentence of imprisonment of ten years imposed upon defendant for the shooting of Yincel Avery.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John WILLIAMS, Appellant.
    No. 49964.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.

      Jack L. Koehr, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Carl R. Gaertner, Special Asst. Atty. Gen., St. Louis, for respondent.
   STORCKMAN, Presiding Judge.

This is an appeal from a conviction of robbery in the first degree by means of a dangerous and deadly weapon. The court found that the defendant had been convicted of a prior felony and assessed punishment at imprisonment for ten years. The defendant was sentenced accordingly after his motion for new trial was overruled.

The appeal is before us on the transcript of the record and the brief of the state. Since no brief has been filed by the defendant, our appellate review^ extends to all assignments of error properly preserved in the motion for new trial and the essential portions, of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Todd, Mo., 372 S.W.2d 133, 134 [1],

The first assignment of error is that the trial court erred in overruling the defendant’s motion for judgment of acquittal offered at the close of the entire case. The evidence favorable to the verdict tends to prove that on July 12, 1962, Frieda Zide was in charge of a grocery store operated by her and her husband, Sam Zide, at Shreve and Lee in St. Louis. At about ten minutes after noon, two negro men, who were later identified as the defendant and one Solomon Collor, entered the store. Collor produced a gun and said this is a stickup. The defendant went to the cash register and started banging on it with his hand and demanded, “Open this damn register.” Neither man wore a mask nor had his face covered in any way. The defendant took over $500 from the cash register and Collor placed the gun against the back of a bakery delivery man who was in the store and took his money also. The two men were in the store for approximately five minutes. Mrs. Zide called the police immediately after they left, and the delivery man observed the direction in which they went.

On the same day, at about the same time, Mary Ann Berry, who lived nearby, observed an orange and white Pontiac automobile parked in the alley behind her house in such a position that it blocked traffic. As she watched the car, she heard running footsteps in the alley and saw two men go past the back of her house, get in the car and drive away. She saw one of the men well enough that she was able to identify him as Solomon Collor three days later in a lineup in a police station. Two days after the robbery, police officers arrested the defendant together with Solomon Collor while they were riding in a white and red Pontiac automobile belonging to the defendant. The latter color was variously described by witnesses as an orange, red or rust color.

Mrs. Zide picked the defendant and Collor out of a police lineup which included two or three other men of similar age, build and appearance. She identified them as the men who had robbed the grocery store and again identified the defendant as one of the robbers at the trial. Solomon Collor was jointly indicted with the defendant but was tried separately. The evidence above related was substantial and clearly sufficient to justify the jury in finding beyond a reasonable doubt that the defendant was an active participant in the robbery. State v. House, Mo., 349 S.W.2d 928, 929 [3]; State v. Martin, Mo., 347 S.W.2d 680, 681 [1] ; State v. Thompson, Mo., 299 S.W.2d 468, 474 [16]; State v. Hagerman, Mo., 244 S.W.2d 49, 53 [7],

The next assignment of error is that the court erred in giving instruction No. 5 defining reasonable doubt. The instruction is in the form approved numerous times by this court in criminal cases. Nevertheless, the defendant contends that the instruction “interferes with the established legal principle that the factual existence of a reasonable doubt within the evi-dentiary proof of guilt, by and of itself, is sufficient basis for an acquittal, and * * * creates the inference that something more than a reasonable doubt is necessary for an acquittal.” The defendant further asserts that the instruction fails to define the technical legal meaning of “reasonable doubt”. The portion of the instruction complained of is identical with that given and approved in State v. Turner, Mo., 320 S.W.2d 579, 584 [10]. We have again considered the instruction in view of the criticism here made and find that it is not erroneous. State v. Velanti, Mo., 331 S.W.2d 542, 545 [4]; State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 93 [7]; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46, 54 [14].

The third and fourth assignments of error (which relate to the same subject and will be treated together) are that the trial court erred in admitting evidence of prior convictions and prison records of one John Williams and in finding that the defendant was guilty of two prior convictions because there was no proof that the defendant was the same John Williams named in the records. Evidence was heard and the finding was made in accordance with § 556.280, RSMo 1959, V.A.M.S., as amended Laws 1959, S.B. No. 117, § 1. Identity of names is prima facie sufficient to establish a defendant’s identity for the purpose of showing a prior conviction with- ’ in the Habitual Criminal Act. State v. Romprey, Mo., 339 S.W.2d 746, 753 [13]; State v. Reed, Mo., 298 S.W.2d 426, 428 [6]; State v. Hands, Mo., 260 S.W.2d 14, 18 [3], The specification of error is denied.

The next ground of error alleged is that the court committed prejudicial error in not permitting defendant’s counsel to argue to the jury that the state had not produced all the evidence in view of the fact that police officers had testified that the defendant had made a statement to them. This information was elicited by the defendant during the cross-examination of two of the state’s witnesses. When the first police officer was asked by defendant’s counsel if the defendant made a statement to him, the state objected on the ground that the statement would be self-serving. The court overruled the objection and told counsel at the bench without the hearing of the jury: “He didn’t ask what the statement was; I won’t let that in.” The officer then answered the question in the affirmative and the witness was not interrogated further about the statement. A second officer also testified that the defendant made a statement and the officer was not questioned further in that regard. During his oral argument defendant’s counsel called attention to the fact that the police officers in response to his questions had affirmed the fact that the defendant had made a statement and then asked of the jury the rhetorical question, “Now, where is that statement?” The state objected and the court stated he had “sustained the objection to it yesterday”, and that “it is not here because I ruled it out yesterday.” Continuing his argument, defendant’s counsel stated, “Well, anyway, it is in the evidence that a statement was made.”

It is improper for counsel in oral argument to comment on or refer to evidence which the court has ruled not to be admissible in evidence. Rizzo v. United States, 8 Cir., 304 F.2d 810, S29 [22]; 23A C.J.S. Criminal Law § 1093 b, p. 144, and § 1094, p. 155, n. 48; State v. Powell, Mo., 357 S.W.2d 914, 918 [6]. In fact it is improper to refer to such evidence even though the court erroneously excluded it. Bolin v. Commonwealth, 206 Ky. 608, 268 S.W. 306, 310 [9]. The court has a wide discretion in keeping oral argument within proper bounds. The court did not err in sustaining the state’s objection to the defendant’s argument.

The two remaining assignments of error are that the verdict was against the substantial evidence and against the weight of the evidence, because the state had only one eyewitness to the robbery and the defendant offered two witnesses to testify that the defendant was at home the entire day. The defendant did not testify. The defendant’s two witnesses were his landlord and the landlord’s wife. Their testimony tended to prove an alibi for both the defendant and his automobile. The landlord, his wife, and their children occupied the first floor of a residence building, and the defendant rented from them an apartment on the second floor. The landlord testified that on July 12, 1962, he borrowed the defendant’s automobile at about 9 a. m. and took it to a garage where he worked on it until about noontime; then he went shopping for food and did not return home until about 2 p. m. He remembered the date because the next day was Friday the thirteenth. The landlord’s wife testified that the defendant was with her and her children in front of their home from about 8:30 in the morning until after 12 noon.

We have already ruled that the evidence favorable to the state was substantial and sufficient to make a case for the jury’s determination. The testimony of a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to establish the identity of the defendant in a criminal prosecution since the credibility of the witness and the weight of the evidence is for the jury. State v. Andrews, Mo., 309 S.W.2d 626, 628 [4]; State v. Pease, Mo., 133 S.W.2d 409, 413 [2]. On appeal this court does not undertake to determine the credibility of witnesses or to weigh the evidence in a criminal case. State v. Hampton, Mo., 275 S.W.2d 356, 359 [4]; State v. Howe, Mo., 343 S.W.2d 73, 74 [2]. The specifications are insufficient to afford any relief to the defendant on appeal.

We have considered all of the specifications of error preserved in the defendant’s motion for new trial and find them to be without merit. The defendant was present and represented by counsel throughout the trial including his allocution and sentencing. The trial court appointed a public defender who ably and effectively represented the defendant. In fact the case was well and fairly tried on both sides.

We have examined the parts of the record and entries designated in St.Ct. Rules 28.02 and 28.08 and find them to he proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.