text:
    Debra THOMAS, a Minor, by and through Betty Thomas, her mother and next friend, Appellant, v. James WADE, Respondent.
    No. 48688.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.

      James Hullverson, Corinne Richardson, Hullverson, Richardson & Hullverson, St. Louis, for appellant.
    Gray & Jeans, James W. Jeans, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from an adverse judgment entered on a jury verdict for defendant in her suit for $35,000 for personal injuries. She contends that an instruction given at the request of defendant was erroneous and that prejudicial error resulted in the admission of certain evidence.

Shortly after noon on July 28, 1959, Debra Thomas, age 23 months, was running westward on the sidewalk in the 2600 block of Pine Street, St. Louis, Missouri. At about the middle of the block she turned and ran into the street at a 45-degree angle and into the right side of defendant’s automobile which was traveling westward about 20 or 30 miles an hour. Defendant did not see Debra before the accident, but stopped his automobile immediately when he heard a “thump.”

Plaintiff submitted her case to the jury on two separate verdict directing instructions. Instruction No, 2, commonly called a “lookout” instruction, advised the jury that it was the duty of the defendant to exercise the highest degree of care to keep and maintain a careful and vigilant watch ■ and lookout both ahead and to the side of his intended path not only for adults but for small children who might thoughtlessly or impulsively run toward the path or side of his car. It then submitted that if the jury found defendant was driving his automobile west on Pine Street and there were no vehicles parked between his automobile and where Debra was running on the sidewalk; that Debra turned and ran in a diagonal direction into the street until she came in contact with the right front side of defendant’s automobile and defendant never saw her before the collision; that defendant failed to exercise the highest degree of care to keep a careful and vigilant lookout for persons, including children, “who might be approaching his path and that had he exercised such care he could have seen [Debra] in time, by the exercise of the highest degree of care, to have avoided her injury;” then if the jury found that such failure on the part of the defendant to keep such a careful and vigilant lookout was either the sole cause or one of the contributing causes of injury to Debra, their verdict should be in her favor.

The other verdict directing instruction for plaintiff, Instruction No. 3, first hypothesized the facts as set out in the previous instruction. It then submitted that if the jury found that by the exercise of the highest degree of care the defendant “could have seen the plaintiff running into the street and into the path of his automobile” in time, by the exercise of the highest degree of care, to have either stopped his automobile or to have slackened its speed and turned aside or to have sounded a signal of his approach and movement, and by doing any one of those things he could have avoided injury to Debra but failed to do so, then if such failure directly contributed to cause injury to Debra the verdict should be in her favor even if some act or failure to act on her part or on the part of her parents also contributed to cause her injury.

The instruction submitted at the request of defendant and of which plaintiff complains states that “under the law there was no duty on the part of Mr. Wade to stop his automobile or slacken its speed and turn it aside or sound a warning of his approach and movement until he knew, or, in the exercise of the highest degree of care, should have known, that there was danger of his automobile coming into 'contact with the plaintiff.” It then submitted that if the jury found from the evidence that after defendant knew, or in the exercise of the highest degree of care should have known, “that there was danger of the plaintiff coming in contact with his automobile, it was then too late, if you so find, for him, by the exercise of the highest degree of care, either to have stopped his automobile or to have slackened its speed and turned aside his automobile, or to have sounded a signal of his approach and movement and thus and thereby have avoided the collision,” their verdict should be for defendant.

Plaintiff asserts that Instruction No. 4 “wholly ignored defendant’s duty to keep a lookout;” that it told the jury that “the only duty owed by the defendant was to act after a ‘danger’ of collision arose;” and that it “erroneously confined defendant’s duty * * * to act at such time as there was actual ‘danger’ of plaintiff coming into contact with defendant’s vehicle, wholly ignoring defendant’s duty to anticipate the possibility of danger and injury to plaintiff.”

In this relatively simple and easily understood factual situation plaintiff has submitted two verdict directing instructions which admittedly submit different theories of negligence but are in some respects overlapping. The basic submission of each is the failure to see and to take some action. The “lookout” instruction in some respects necessarily constitutes a “roving commission” in that the jury is authorized to find “any means supported by the evidence by which the driver * * * could have avoided the collision” without the instruction hypothesizing those means. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 25. There is no contention that the evidence Supports any means other than those referred to in defendant’s Instruction No. 4, which includes at least one more than those hypothesized in plaintiff’s Instruction No. 3.

Plaintiff asserts that defendant’s duty to maintain a lookout as submitted in Instruction No. 2 “encompasses the obligation to see the plaintiff on the sidewalk” when he had a clear view. Apparently the plaintiff would include the duty to see a person walking or standing on a sidewalk even though not moving toward the street. Under certain factual situations that may be so because the duty of a motorist to maintain a vigilant lookout requires that he “look in such observant manner as to enable him to see what one in the exercise of the highest degree of care for himself and others could and should have seen under similar circumstances.” Hildreth v. Key, Mo.App., 341 S.W.2d 601; Riley v. Young, Mo.App., 218 S.W.2d 805, 808; Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 586. Plaintiff apparently admits, however, that something more than failure to see is required to result in actionable negligence because in Instruction No. 2 she submitted the failure to keep a careful and vigilant lookout for persons “who might be approaching his path” and that if defendant had maintained that lookout he could “have avoided her injury.” It is obvious that a violation by the operator of a vehicle of the duty to maintain a vigilant and careful lookout in failing to see a person not directly in but close to his path and who was moving farther away from the path of the vehicle, while perhaps theoretically constituting negligence, would not be actionable negligence. Therefore, when we analyze a “lookout” instruction, at least when applied to the situation where the injured party was not directly in the path of the vehicle when the duty to see first arose, it actually submits failure to see and failure to avoid injury by “any means supported by the evidence.” Moore v. Ready Mixed Concrete Co., supra. The question then is, when does the duty to act arise? It is not necessarily at the exact time there was a duty to see. Under the facts of this case, if the duty to see and the duty to act arose at the precise time, then under plaintiff’s theory every motorist driving on a city street would have to slow, stop, warn, or slacken his speed every time he saw or should have seen a child or elderly person, or possibly any person, on the sidewalk even though not approaching the street or the path of the vehicle. While it may be stated in various ways, and possibly in ways better than the manner it was expressed in Instruction No. 4, the duty to act when one does or should see arises at the time that a person, in the exercise of the highest degree of care, knew or should have known that there was danger, that is, a likelihood of injury. See the discussion of this issue in Nydegger v. Mason, Mo., 315 S.W.2d 816, 819. In the case of a child, that danger or likelihood of injury might well be at the time the child turned toward the street, or possibly even before that time depending upon all the circumstances. Plaintiff submitted that defendant should have seen Debra at the time she “might be approaching his path” and that he then should have acted. In other words, defendant should have acted when a person, in the exercise of the highest degree of care, would have reason to anticipate danger. This is what defendant submitted in the converse. It was for the jury to determine when that situation came into existence from all the facts and circumstances.

The basic and essential issue here presented is what would a jury understand Instruction No. 4 to mean in the circumstances of reading it together with plaintiff’s two verdict directing instructions. All three instructions involved the duty to see and then to take action. We think any reasonably intelligent jury would not have been misled by the language used in Instruction No. 4, including the word “danger,” any more than by the use of the term “might be approaching” used in plaintiff’s Instruction No. 2. While we agree that it might be said that Instruction No. 4 was inartfully drafted under the circumstances, such objections to the instruction as made by plaintiff based on the wording of Instruction No. 4 must be weighed against the language used by plaintiff in her instructions which defendant is required not to ignore, but must converse in such a way not to constitute a comment on the evidence and still present the issues to the jury in as straight forward manner as reasonably possible.

Under the circumstances of this case Instruction No. 4 is not a misstatement of the law, and when we consider all the instructions together, we do not see how the jury possibly could have been led to believe that it could or should find for defendant pursuant to Instruction No. 4 even though it believed and found the issues as submitted in Instruction No. 2. When this is true, as we are convinced it is, no reversible error resulted from Instruction No. 4.

Plaintiff next asserts that the trial court erred in permitting defendant to read to the jury an alleged statement of George Smith contained in a police report.

Police officer Edward O. Moore investigated the accident, prepared a report, and took a signed statement from defendant and from George Smith, a witness to the accident. Officer Moore testified that he had no independent recollection of what was said to him in the course of his investigation. He identified a folder as “containing all the information pertaining to this accident,” and stated that the records in the folder were kept in the usual course of the accident investigation, and that he obtained the folder and its contents from the record room at the St. Louis Police Department but that he was not the custodian of the records. After counsel for plaintiff examined the records he then said: “I don’t think they are proper records, but I will withdraw an objection to these records as such. As to the contents thereof, certain portions may or may not be objectionable. I will waive the objection as to their authenticity.” Neither the folder nor the contents were offered in evidence.

When George Smith testified he denied that a vehicle was parked at the scene of the accident and he also denied that he had said there was. Later, counsel for defendant offered to read from the police report, which had been prepared in the usual course of the accident investigation from material furnished by Officer Moore, the statement contained therein that George Smith “stated that the child ran into the street from behind an auto parked at the curb and ran into the side of Wade’s automobile.” The trial court permitted the statement to be read to the jury on “the theory of the prior inconsistent statement.” The specific objection made by plaintiff at the time was that “it is hearsay and being read from photostatic copy, the original not introduced in evidence, and there has been no identification as to whom it was made, and it is the rankest form of hearsay.”

On this appeal plaintiff seeks to assign other reasons why the admission of the statement was erroneous, but a trial court is not to be convicted of error in the admission of evidence for reasons not presented to it at the time. “It is well settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it.” Goodman v. Allen Cab. Co., 360 Mo. 1094, 232 S.W.2d S3S, 539. See also Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97; Hoffman v. St. Louis Public Service Co., Mo., 255 S.W. 2d 736. The statement was not of such nature that it obviously was not admissible for any purpose. For that reason it does not come under what has been termed a modification of the above rule that the error of admitting the evidence may be considered even though not the subject of specific objection “when it is apparent that the evidence is self-evidently wholly incompetent for any purpose or it is obviously unjustly inflammatory and prejudicial and can serve no purpose whatever in the case.” Hoffman v. St. Louis Public Service Co., supra, 255 S.W.2d at p. 742.

Section 490.680 RSMo 1959, V.A. M.S., provides that “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of 'business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” In her brief plaintiff neither denies nor asserts unequivocally that she intended to or did admit that the police report qualified for admission in evidence pursuant to the above statutory provision. It is apparent, however, from a reading of the entire record that at the time the above “waivers” occurred, counsel and the trial court considered them to apply to the qualification of the records under the Uniform Business Records Act, and we believe that is the only reasonable conclusion to be gathered from all the circumstances. In addition, plaintiff had part of the records read to the jury by Officer Moore. It is true that the parts she had read were the original copies of signed statements, but she made no effort to show they were admissible for any reason other than that they were a part of the regularly kept records of the Metropolitan Police Department. She cannot treat the records as qualifying under the Uniform Business Records Act for matters therein she wants to place before the jury, and deny they are so qualified for matters therein the defendant wants to present. Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859. In ruling on the admissibility of the statement we shall consider that the police report was a record of an act or event (the statement by George Smith) which was made in the regular course of business by the Metropolitan Police Department at or near the time of the act or event, and that the source of information, method and time of preparation were such to justify its admission in evidence. This “eliminates the hearsay objection [to the police report] * * * but it does not make admissible any evidence which would be incompetent if offered in person,” Ryan v. Campbell, “66” Express, Inc., Mo., 304 S.W.2d 825, and it does not make relevant that which otherwise would not be relevant, and any part of the record is subject to objection “on grounds other than hearsay generally.” Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666, 55 A.L.R.2d 1022. We shall now examine the objections made by plaintiff to that part of the police report which was read by defendant to the jury.

Plaintiff’s objection that the statement was being read from a photostatic copy and that the original had not been introduced in evidence obviously was .without merit. In her brief plaintiff ignores her express waiver as to the authenticity of the records. She cites cases, such as Miller v. John Hancock Mutual Life Ins. Co., Mo. App., 155 S.W.2d 324, pertaining to the rule that secondary evidence is not admissible unless it is made manifest that the primary evidence is unavailable. That rule is correct, but it has no application where the objecting party has agreed that a photostatic copy may be used in lieu of the original document.

The objection that “it [the police record] is hearsay” and “it is the rankest form of hearsay” was not a valid objection. It may be admitted that the part of the record containing the statement which was read to the jury was hearsay, but “objections to such records as hearsay * * * are, * * * not effective.if the records have been properly qualified [either by proof or admission] under the Uniform Business Records Act,” and it is only when “specific and legally proper objections are made to parts of the record, on grounds other than hearsay generally, [that] such parts may be properly excluded.” Allen v. St. Louis Public Service Company, supra, 285 S.W.2d at p. 666. In her brief plaintiff attempts to broaden the general hearsay objection made at the time to include other matters, but we are not called upon to determine whether the trial court would have erred by overruling such objections if they had been presented to him.

The remaining objection, that “there has been no identification as to whom it [the statement] was made,” also was without merit. The circumstances show that the statement could only have been made to Officer Moore or in his presence, at least the record does not affirmatively show on its face that it was not so made. See Kraus v. Kansas City Public Service Co., Mo., 269 S.W.2d 743. In view of the proof by defendant and the waivers of plaintiff the trial court was justified in finding that the source of information, and the method and time of preparation, were such as to justify its admission. That is all that is required in this respect under the Uniform Business Records Act after proof, or waiver of proof, of the identity of the record, its mode of preparation and the fact that it was prepared in the regular course of business at or near the time of the act, condition, or event. The person to whom the statement was made, or who heard it, could properly testify in person that George Smith made the statement. One purpose of the Uniform Business Records Act is to make such record evidence admissible (assuming the making of the record of such act, condition or event meets the minimum requirements) when the person cannot testify personally because he is unavailable, or as in this case has no personal recollection of the act.

In her brief plaintiff does not meet directly the issue presented by reason of her waiver of the necessary proof that the records were qualified under the Uniform Business Records Act. Instead, she cites, among other cases, Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577; Kraus v. Kansas City Public Service Co., Mo., 269 S.W.2d 743; and Kleithermes Motor Co. v. Cole Motor Service, Mo.App., 102 S.W.2d 819, where there was a failure of proof that a record qualified under the Uniform Business Records Act and there was no waiver. Those cases do not rule the issue here. In view of the circumstances we cannot convict the trial court of error in permitting the statement in the police report to be read to the jury for the reasons assigned by plaintiff.

The judgment is affirmed.

PER CURIAM.

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

Affirmed.

All concur.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    John B. JACOBSON, Plaintiff-Appellant, v. Robert VESTAL, Defendant-Respondent.
    No. 49226.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      J. W. Grossenheider, Lebanon, for appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Paul L. Bradshaw, Warren S. Stafford, Springfield, for respondent.
   HYDE, Judge.

Action for $75,000.00 damages for loss of hand in a corn picker. The court sustained defendant’s motion for summary judgment, under Rule 74.04, V.A.M.R., based on plaintiff’s admissions in his deposition, which the court found “shows he was guilty of contributory negligence as a matter of law.” Plaintiff has appealed from the judgment entered.

Negligence alleged, on which plaintiff relied, was failing to warn plaintiff that the corn picker would frequently become clogged and that plaintiff should not attempt to remove the material causing the clog with his hand while the motor was operating. Plaintiff and defendant lived on farms near each other and recently had traded work in filling silos. Plaintiff asked for a job running a corn picker defendant had recently bought. Defendant said nothing about how to run it; but plaintiff, who was 37 years old, had operated several types of corn pickers when he lived in Iowa in 1947 and 1948 while working on farms there. He said they all operated on the same principle. Plaintiff had lived on a farm with his parents, in Iowa, and had operated many kinds of farm machinery then and later. (He had army service before and during the Korean War.) Plaintiff said he had never disengaged the power on a corn picker before trying to unchoke it, either on the one by which he was injured or those previously used in Iowa. However, plaintiff' had recently operated a power mower as to which he said “whenever it plugged up, I shut it off.” Plaintiff said defendant’s picker was in good mechanical condition and was equipped with a lever on the tractor to disengage the power to the picker, which lever was located near his feet. Plaintiff was thoroughly familiar with the purpose of the lever; he knew it could be placed in neutral and thus stop the operation of the picker. Plaintiff operated the picker on Thursday and Friday of one week and soon after he started again on the next Monday morning he was injured.

The contention made in plaintiff’s brief is that "whether or not plaintiff actually realized the danger involved in unplugging the corn picker with the motor running was a jury question.” It is further stated “evidence of knowledge and appreciation of the danger is not so clear, convincing and one-sided that the court can say reasonable minds could not differ as to plaintiff’s contributory negligence.”

On this issue, plaintiff’s testimony was in part as follows:

“Q. Didn’t you realize it was dangerous to do that without disengaging the power? A. Evidently it was.
“Q. Didn’t you realize that before you did it, though ?
“A. I never thought anything about it, I just done that, got off and unplugged it and go on.
“Q. You didn’t answer my question, didn’t you realize it was unsafe and dangerous to get off and unchoke a corn picker without disengaging the power to it? A. Yes, it is dangerous.
“Q. And you realized that, didn’t you? A. I don’t know if I did or not, I had heard that it was.
“Q. You had heard it was? A. Yeah.
“Q. And you knew it was, didn’t you, you knew you might get your hand or arm caught in it ?
“A. I always figured that would happen to the other guy.
“Q. I know, but you realised that was unsafe and dangerous to try to unchoke it that way? A. Yeah, I guess you might put it that way.
“Q. Is that your answer yes, I just want a yes or no answer ? A. All right, yes.
“Q. But you realized that was dangerous and you might get your hand caught in there ?
“A. I don’t know whether I did or not, I know that is the best way to clean out a com picker, though, or it was till I lost my hand.
“Q. Now, at the time you started to un-choke the stalk ejector on this corn picker, you knew that those rollers were up in there, didn’t you? A. Yes.
“Q. And you knew that they were operating ?
“A. Yes, but I had done that before and nothing ever happened.
“Q. So you were just taking a chance that nothing would happen that time ?
“A. Well yeah, you might say that.
“Q. And you knew that you could disengage the power and stop the com picker before you got off the tractor ?
“A. Yes, I knew I could.
“Q. And you knew that was a safe way to do it?
“A. Yes, I knew that was — took the longest too, that takes a long time to unplug that dam thing that way.” (Emphasis ours.)

The court decided this case on the motion for summary judgment upon submission of both parties. In the oral argument in this court, plaintiff’s counsel made the following statements: “The only question is, and the question that the Court ruled on was: is the plaintiff himself guilty of contributory negligence as a matter of law so that a jury should not hear this case? If that is so, we are happy to have the case stop here rather than go through a trial and then have a motion for directed verdict sustained. * * * Let me say this so that there will be no doubt about it. This plaintiff is going to stand or fall on the deposition, on what’s stated in the deposition. We don’t complain that this isn’t a proper remedy. We don’t complain that we could produce any other evidence to vary this. We state that just because this man stated finally that he did understand it was dangerous doesn’t prove that he knew that it was dangerous. He may not have known, and we think it is a jury question to determine whether he did know or not.”

In two previous com picker cases, we have held plaintiff’s evidence showed contributory negligence as a matter of law. Chisenall v. Thompson, 363 Mo. 538, 252 S.W.2d 335, and Crandall v. McGilvray, Mo.Sup., 270 S.W.2d 793. Plaintiff seeks to distinguish these cases saying that in both cases the plaintiffs knew the safe way to unchoke the picker and had used the safe way part of the time, while plaintiff herein had never used any other method than to pull out stalks with the power engaged. Also in those cases, there was a warning sign on the machine, and plaintiff saw no warning sign on this machine. In the Chisenall case (252 S.W.2d 1. c. 337) we said: “We are of the opinion that plaintiff was guilty of negligence as a matter of law; that he realized it was dangerous to clean the picker by removing the stalks from the top side of the rollers while they were revolving. The danger was obvious to anyone even with limited experience in operating machinery. He knew it was safe to clean the machine while the power take-off lever was in neutral.” Likewise, we said in the Crandall case (270 S.W.2d 1. c. 800): “Under the situation as proven to have existed by plaintiff’s testimony the danger of having one’s fingers caught in the rollers in trying to remove an object from above the husking rollers while the power was on and the rollers under tension was open and obvious to a person of ordinary intelligence and particularly to one of plaintiff’s age and experience.” See also Hahn v. Flat River Ice and Cold Storage Co., Mo.Sup., 285 S.W.2d 539, 543. In both cases, we held the plaintiff had chosen an obviously dangerous method when he knew there was a safe way. Our conclusion, from the testimony hereinabove set out and from a consideration of plaintiff’s testimony as a whole, is that the situation is substantially the same in this case ; the fact that plaintiff had always used the dangerous way because he considered it quicker and easier does not change the situation. As hereinabove shown, both parties desired to have the case determined on the motion for summary judgment on the testimony in the deposition.

The judgment is affirmed.

All concur.


author: COIL, Commissioner.

text:
    Elsie Mae LASPY, Appellant, v. Jack L. ANDERSON, Respondent.
    No. 49229.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.
    Rufus Burrus, Independence, for appellant.
    Donald L. Mason, Mason, Gant & Gep-ford, Kansas City, for respondent.
   COIL, Commissioner.

Appellant, Elsie Mae Laspy, sought to have a warranty deed set aside on the ground that it was obtained by the fraud and misrepresentation of one Carl Anderson, defendant’s father. By the deed, dated May 11, 1955, she purportedly conveyed to respondent-defendant Jack L. Anderson certain real estate in Independence. The trial judge found for defendant and Mrs. Laspy has appealed.

Plaintiff’s evidence tended to show that in January 1955 she had been charged with murder (the murder of her husband on January 1 according to the transcript in a prior case, State v. Laspy, Mo., 298 S. W.2d 357), and that on April 11, 1955 (the date of the deed), she was in jail in Kansas City. Carl L. Anderson, a lawyer, now deceased, defended her on that charge in a trial ending May 4, 1955. She was found guilty (of murder in the second degree and finally of manslaughter according to the records in the prior state cases, 298 S.W.2d 357 and 323 S.W.2d 713). Three days later, May 7, 1955, Carl Anderson died.

On the front of the warranty deed, among other things, was typed the following: “Carl L. Anderson, Attorney, 641 Law Bldg. — Ha 6760 Kansas City, Mo.” By the deed Mrs. Laspy purported to convey to Jack L. Anderson for $1.00 and other valuable considerations the south sixty feet of Lot 6 in a certain addition to Independence, Missouri. The deed was signed “Elsie Mae Laspy,” had been acknowledged on April 11, 1955, before Carl L. Anderson as notary, and was recorded in Jackson County on May 14, 1955, a week after Anderson’s death. Mrs. Laspy admitted that the signature appearing on the deed was hers, but said she had no recollection of signing it, that she had not acknowledged her signature, that she did not know the grantee, Jack Anderson, had never seen him until she saw him in court, and that he paid her nothing for the deed.

Mrs. Laspy’s uncle, Mr. Thirkels, testified that he retained Carl Anderson to represent his niece and agreed to pay him a $500 fee and an additional 3500 in the event an acquittal was obtained, and that he paid Mr. Anderson a total of $250.

Defendant Jack L. Anderson, called as a witness by plaintiff, testified that at the time of the death of his father on May 7, 1955, he, the witness, was 24 years old and lived in his father’s home; that he had had no personal transactions with the plaintiff and that he did not pay any money or give anything of value in exchange for the deed.

The defendant offered no evidence other than to show that the deed had been recorded on May 14, 1955.

Thus, there was no evidence as to whether the real estate described in the deed was improved and no evidence of the value thereof. There was no evidence as to whether defendant knew of the existence of the deed prior to his father’s death or whether he knew or had discovered or had attempted to discover anything of or concerning the circumstances surrounding its execution.

Appellant contends that the warranty deed in question was in reality a conveyance from a client to her attorney and that, consequently, the presumptions and rule as to burden of proof applying to transactions between attorney and client are applicable. The respondent contends that those principles have no application to the facts here because he was not the attorney for Mrs. Laspy and thus there was no attorney-client relationship, and therefore, says respondent, the rule as to consideration and the presumptions as to delivery and acceptance applicable to transactions between strangers, control.

We are of the opinion that the conveyance in this case should be treated as one from client to attorney. Both plaintiff and defendant testified that neither knew the other, that they had had no dealings with each other, and that defendant had given plaintiff nothing of value for the deed. It is conceded that on the date of the deed defendant’s father was a lawyer representing the plaintiff in a criminal case and that about twenty days after the deed’s date he appeared in circuit court and defended the plaintiff. Carl Anderson apparently prepared the deed and purportedly took plaintiff’s acknowledgment. It seems to us that the conclusion is compelled that the deed in question constituted a conveyance for the benefit of the attorney, Carl Anderson, and that the name of his son was inserted at his father’s direction. It follows that the only reasonable inference from conceded facts, plus defendant’s own testimony, is that the deed was in fact a conveyance from a client for the benefit of her attorney and thus that the law pertaining to a conveyance from a client to his attorney is applicable.

The law is well established in this state and elsewhere that public policy dictates the necessity to protect the confidential and fiduciary attorney-client relationship. Consequently, when a conveyance from a client to an attorney is attacked it is considered presumptively fraudulent and the burden is on the attorney to prove by convincing evidence that the transaction evidenced by the conveyance, as well as the conveyance itself, was fair and equitable in every respect. 7 C.J.S. Attorney and Client § 128a, pp. 969, 970; 5 Am.Jur., Attorneys at Law, § 50, p. 289; Linneman v. Henry, 316 Mo. 674, 291 S.W. 109, 112 [2,3] ; Bybee v. S’Renco, 316 Mo. 517, 291 S.W. 459, 461 [1,2]. And see Gerlach v. Donnelly, Fla., 98 So.2d 493, 498.

Applying the law to the facts in this case results in the conclusion that defendant failed to overcome the presumption that the deed was constructively fraudulent. It is apparent that plaintiff’s evidence is not satisfactory. This is not the usual case in which the plaintiff claims that her attorney made specific misrepresentations to her or did specified acts which caused her to sign the deed. On the contrary, while present plaintiff admitted the genuineness of her signature, she testified she had no recollection of having signed the deed and that she did not acknowledge her signature, thus leaving only an inference that the deed had been obtained by some kind of trickery or deception, the form thereof being unspecified. See again Linneman v. Henry, supra, 316 Mo. 674, 291 S.W. 109. But unsatisfactory as plaintiff’s testimony was with respect to specifying fraud and misrepresentation, the fact remains that she has attacked the deed, and that her evidence made a prima facie showing sufficient to cast the burden on defendant to adduce evidence to show the fairness of the transaction as between plaintiff and her lawyer.

in effect, offered no evi-eviwhatever, perhaps relying upon the contention heretofore noted that the rules pertaining to a conveyance from client to attorney were not applicable. In any event, he made no effort to show by his father’s files and records, for example, that this deed was in payment of the balance due on the agreed fee of $500 and that the value of the real estate conveyed did not exceed the balance due. Defendant also failed to tes-tesas to his personal knowledge of the deed, whether he had recorded it, when it came into his possession, and whether it was found among his father’s papers.

The death of defendant’s father may have made it relatively easy for plaintiff, and correspondingly difficult for defendant, to adduce the necessary evidence. Be that as it may, the necessity for the enforcement of the strict rule pertaining to conveyances from client to attorney, outweighs the detriment of the possible injustice which may accrue in a particular fact situation.

The judgment is reversed and the case remanded with directions to enter a judgment setting aside the deed in question.

HOLMAN and HOUSER, CC., concur

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Frederick COOKSON, Appellant.
    No. 49202.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.
    Morris A. Shenker, Murry L. Randall, St. Louis, for defendant-appellant.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

John F. Cookson, with a prior felony conviction, has been found guilty of robbery in the first degree and sentenced to twelve years’ imprisonment. Without regard to the appellant’s connection with the offense, the basic facts are that on the 29th day of December 1960, as Mary and Gilbert Griesha-ber, operators of Gip’s Tavern, drove onto the parking lot at the rear of their tavern they were held up by masked gunmen and robbed of $6,000. The robbers escaped in a stolen automobile and the Grieshabers were unable to identify them or furnish clues as to their identity. Seven weeks after the robbery, on February 18, 1961, the appellant, his wife and his mother-in-law were arrested and finally the appellant was charged with the robbery. (

The parties have briefed and argued two principal questions: (1) whether a second admission or confession by Cookson was voluntary or involuntary, and (2) whether certain evidence was obtained by an illegal search and seizure. But these problems, particularly the second, are bound up with and hinge upon another problem determinative of this appeal and, for that reason, it is not necessary to consider the assignments with respect to the admission or the search and seizure.

When the police came to the apartment at 5794 McPherson, rented by his mother-in-law and then occupied by the mother-in-law, the appellant, and his wife (they were in fact packed and in the process of moving to other apartments), they had no warrant for the arrest of anyone and of course did not have a search warrant. Furthermore, they had no information as to who may have held up and robbed the Gries-habers except for a tip from informers. Nevertheless, they arrested Cookson, his wife and his mother-in-law and searched the apartment. As to an anonymous informer, one of the officers said, “I had received a ’phone call, anonymous; the person who called refused to five his name. He stated that John Cookson and David Satterfield, (there was no David Satterfield, the other suspected robber was known as Sam Sat-terfield) had committed the robbery of the tavern owner at Grand and Arsenel.” This informer did not give the officer Cookson’s address, he did give him a telephone number, presumably that of the mother-in-law. Subsequently, on cross-examination, this officer again told about the anonymous caller a week before the arrest and said that the call caused him to make further investigation. This time, he said, “we talked to another informant” whose previous “tips” had proved reliable, and the second informer said that Cookson and David Satterfield “had held up the tavern at Second and Arsenal,” that they had a large sum of money and were spending freely. The second informer also gave the officer a telephone number and said "they were living somewhere on McPherson.”

The police relied upon the anonymous telephone call and the tip from the informer as probable cause for arresting Cookson and the search of the apartment in which he may have had a room. Even upon direct examination the policeman stated that he did not “wish” to disclose the name of his informant, that he considered the whole matter “confidential.” On cross-examination defendant’s counsel put the direct question: “Officer, who was your second informant? ” State’s counsel objected that “the Williams case” held that the officer did not have “to disclose the confidential informant.” The court said, “Well, under the circumstances I am going to sustain the objection, but I am going to pay very little attention to it. I don’t see how you can disclose something and limit cross-examination and give it weight. * * * Well, I’ll sustain the objection, but see if you can find a case on it for me, if you can get it.” Had the problem ended there, with the court paying “very little attention to it,” it might not have been so serious. But the matter did not end there, at the conclusion of the hearing on the motion to suppress evidence and in overruling this phase of the motion the court announced, “I am going to overrule the motion to suppress; the authority is State v. Bailey, (320 Mo. 271), 8 Southwestern (2nd) [57] states in there — * * * that law enforcement officers may have informants, and this probable cause they had for, previously, to make an arrest on any information.”

In State v. Bailey, as the court indicated, it was held that the court did not err in refusing to require an officer to disclose the name of his informant. The plain implication of the case was that there is an absolute or unqualified privilege and the officer may not in any circumstance be compelled to reveal the identity of his informers. Annotation 76 A.L.R.2d 262, 328. But, unknown to the court evidently, State v. Bailey was modified if not overruled by the court en banc in State v. Edwards (1958), Mo., 317 S.W.2d 441. On motion to suppress evidence where, as in this case, the issue is the legality of an arrest or a search without a warrant, it was held that each case must be decided on its particular facts and merits. But it was further held, and that was the crux of the case, that whether the officer must reveal the name of his informer is in the first instance a matter for the trial court’s “scrutiny” or discretion. State v. Redding, (Mo.) 357 S.W.2d 103, 108; 76 A.L.R.2d, 1. c. 343-344. The state argues here that the court did not decide whether the officer should reveal the name of his informer “by a reliance upon the Bailey case,” but only considered the case “when passing upon the question of whether information gained from an informant can lead an officer to believe he had reasonable grounds to suspect a person of a felony and arrest him.” As indicated in the beginning, this problem was connected with the two principal questions, the legality or probable cause for the arrest and the propriety of the search and seizure, but in the plainest possible language the court stated that the “authority” for refusing to compel the disclosure was State v. Bailey. Not only did the court treat the privilege against disclosure as unqualified, it does not appear whether the informer was a participant or nonparticipant in the offense. 76 A.L.R.2d, 1. c. 287-288. And aside from the informer the police had no reason to suspect the appellant. The record in this case is almost identical with the record in the Edwards case and it is obvious that the court did not follow or apply the principle of that case and exercise its discretion, and as the court there said, “The conclusion here reached that the question is for the trial court in the first instance, of necessity, limits this court to review of such a ruling. Consequently, the judgment must be reversed and the cause remanded, to the end that the trial court, upon another trial, may, in the exercise of its discretion, determine whether the defendant can have a fair trial without requiring the officer to disclose the name of Jiis informant.” 317 S.W.2d, 1. c. 447.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    James E. LOVELAND, Pro Ami, Plaintiff-Respondent, v. Alfred ROWLAND, Defendant-Appellant.
    No. 49051.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Robert B. Olsen, Douglas Stripp, Kansas City, for defendant-appellant, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
    Michael F. Mahoney, James L. Basgall, Kansas City, for plaintiff-respondent.
   HYDE, Judge.

Action for $30,000.00 damages for personal injuries. After a verdict for defendant, the court sustained plaintiff’s motion for new trial and defendant has appealed. Plaintiff has filed a motion to dismiss the appeal claiming defendant’s brief fails to comply with Rule 83.05(c), V.A. M.R. but we find defendant’s brief sufficient to warrant a decision on the merits and this motion is overruled.

Plaintiff was struck by defendant’s car when he rode his bicycle into Harrison Street in Kansas City from a driveway. The case was submitted on primary negligence in failing to keep a lookout and on humanitarian negligence in failing to stop, or slow the car. Defendant does not contend that plaintiff failed to make a jury case so it will not be necessary to make a detailed statement of facts. The order granting a new trial stated two grounds* as follows:

"(1) The Court erred in giving Instruction No. 4 on behalf of the defendant;
“(2) The Court erred in admitting into evidence the changes made in defendant’s deposition and the reason for the changes, because the defendant did not comply with the statutes and the Supreme Court rule in making said changes.”

Instruction 4 submitted contributory negligence but plaintiff has not briefed this ground and so has abandoned it. Instead plaintiff claims error in giving Instruction. 2, stated to be a converse humanitarian instruction. However, because of the view we have as to the second ground on which the court granted a new trial, it is not necessary to rule plaintiff’s contentions concerning this instruction but defendant may-consider them in preparing instructions, if another trial is required.

Relevant facts are that defendant was; driving 15 to 20 miles per hour north on Harrison Street (30 feet wide) when plaintiff (then 7 years old) came out of a driveway on the east side of the street, on his. bicycle and was struck by front of defendant’s car. The principal disputed facts are whether plaintiff came out of the first driveway 62 feet north of the north curb of the intersection of Pacific Street with Plarrison Street or whether he came out of the second driveway 84 feet north (measurements to the south edge of each driveway); and the number and location of cars parked on the east side of Harrison Street north of the intersection. According to plaintiff’s evidence, there was only one parked car with its rear end two or three feet north of the north edge of Pacific Street. According to defendant’s evidence there were two parked cars, one with its front end about two feet south of the first driveway north of the intersection and another immediately behind it. Also according to defendant’s evidence, there was another car parked between the first and second driveways with its rear end extending over the north part of the first driveway. Plaintiff said he saw defendant’s car in the intersection. He said it was stopped and “thought it would stay stopped and wait for me to cross.” He later said he “meant that it was moving slow”; but he did not look again and the two times he saw it was when it was in the intersection and when it hit him.

As to the second ground stated for granting a new trial, the court’s order was made more than 30 days after entry of judgment (see Rule 75.01) so the court was limited to action on grounds stated in plaintiff’s motion for new trial, as defendant contends. See also Rule 79.03. Plaintiff’s motion for new trial alleges admission of incompetent evidence and then makes a lengthy statement of facts concerning the admission of changes made in defendant’s deposition, saying the deposition was taken April 29, 1960, filed in court May 1960 duly acknowledged by the reporter; that the changes received in evidence were made March 17, 1961; that changes of single answers consisted of paragraphs; and that only a part of the changes and reasons were in defendant’s language and •contained language admittedly not that of defendant. While this statement in the motion for new trial did not specifically state the ground stated by the trial court in granting the new trial, we consider that the facts stated do show such a claim.

The way this matter came up in the trial was that plaintiff’s counsel' started to read parts of defendant’s deposition as admissions against interest in putting on plaintiff’s case. Defendant’s counsel objected to the reading of these answers without reading the later changes and reasons made by defendant. Plaintiff’s counsel, who had been reading from his own copy, said he had never been notified of any changes. (These had been made about a month before the trial.) This was considered in chambers and the Judge stated his view that it appeared the changes were made after the deposition had been signed. Defendant’s counsel claimed the notary’s certificate showing that the deposition had been signed before it was filed in May 1960 was incorrect and that defendant actually signed it after the corrections were made on March 17, 1961, and offered to bring the reporter “and clear up this matter.” This was not done and no offer of proof about it was made. Rule 57.22 was shown to the court and plaintiff’s counsel pointed out that some changes had been made in the deposition in ink, followed by defendant’s initials without any reason stated. The court permitted plaintiff’s counsel to read the original answers and defendant’s counsel to read the changes and reasons. See Binion v. Armentrout, Mo.Sup., 333 S.W.2d 87, 92. The most material changes concerned the location of cars parked in the street, the distance plaintiff was from the center of the street when defendant first saw him, and defendant’s estimate of stopping distance.

Before the changes and reasons were read, plaintiff’s counsel made the following objection: “[Tjhose aren’t even proper changes, made a year after the deposition was taken. I was never notified of them. I am objecting strenuously to his reading those unless he sets out when they were made and recites it in full. Unless he gives the date they were made and sets out everything in there, I don’t think they are proper.” Plaintiff says he meant that the jury should have been “told that the changes were made after the deposition was signed, and that no notice was given to the plaintiff of these changes.” Thereafter, plaintiff further objected as follows: “Plaintiff objects to reading any corrections because the change was made a year after the deposition was taken and about a year after it was signed.” Although plaintiff did not specifically base his objection on violation of Rule 57.22, we consider the facts stated by him show that this was his claim. At least, the trial court properly could consider it as defectively raised and under the provisions of Rule 79.04 grant a new trial on that ground for the reasons hereinafter stated.

Rule 57.21 requires a witness whose deposition is taken to be sworn by the officer before whom the deposition is taken. Rule 57.22 provides in part as follows: “Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them; provided, however, that the answers or responses as originally given, together with the changes made and reasons given therefor, shall be considered as a part of the deposition. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing *' * (Emphasis ours)

The emphasized part of this rule clearly means that any changes shall be entered on the deposition by the officer before whom the deposition was taken and not by the witness, his lawyer or anyone else. It also means that the statement of reasons for making changes shall be given to the officer by the witness and not by anyone else. In short, the changes and reasons must be those of the witness and not a lawyer’s statement of facts and argument for the view most favorable to his case. Undoubtedly, the reason for having the witness sign the deposition after the officer has entered the changes and reasons is so the witness will sign and swear to the completed deposition, with the changes entered on.it, as required by,Rule 57.23. Of course, changes and reasons could be on separate pages inserted in the deposition or placed in it by any reasonable method which would make them a part of the deposition signed and sworn to by the witness. As provided in Rule 57.22, signatures may be waived by agreement of the parties or the officer’s certificate substituted therefor in certain circumstances stated and in such situations insertion of changes might also require agreement. Rule 57.22 is substantially the same as-Federal Rule 30(e), 28 U.S.C.A. but to be sure that other parties would be protected, we made our rule more specific than the federal rule by providing “that the answers or responses as originally given, together with the changes made and reasons given therefor, shall be considered as a part of the deposition.” Thus the opposing" party is given the benefit of the original answers. See Capra v. Phillips Investment Co., Mo.Sup., 302 S.W.2d 924, 933.

Rule 57.22 should not be considered to be an invitation to rewrite depositions on afterthoughts. It is intended to-afford an opportunity to correct errors of the reporter in transcribing and also to-permit a witness, who decides he gave a wrong answer, to have it- corrected. If an answer is changed, the adequacy of the reasons stated and the determination of the truth of conflicting statements will be for the trier of the facts. Cases under the federal rule have held that “examination should not be considered finished if a witness seeks to recant his testimony or feels that to be ‘truthful’ he must directly contradict the answers already given by him on most material points.” De Seversky v. Republic Aviation Corporation, D.C., 2 F.R.D. 113. In that case, the court required the witness after making such a change to appear for further examination saying “defendant then is entitled to examine him in the light of such answers to the same extent that they would have examined him had his new answers been first given.” This procedure was followed m Colin v. Thompson, D.C., 16 F.R.D. 194; Turchan v. Bailey Meter Co., D.C., 21. F.R.D. 232; and Downing v. Gasser, 8 Terry 273, 47 Del. 273, 90 A.2d 651; see also 2A Barron and Holtzoff, Federal Practice and Procedure 261, Sec. 718; 4 Moore’s Federal Practice 2053, Sec. 30.20. In the Colin case, changes made out of the presence of the notary were held invalid and the proper procedure thus stated: “[H]e must appear before the notary and request such changes in the ‘form or substance’ of his answers as he desires made and must state his reasons for the changes. Whether his reasons are good or not will not impair his right to make the changes, if made in the way stated in Rule 30(e), but if those changes, when made, destroy the usefulness of the deposition (as those heretofore improperly made do), then the deposition will not have been finalized, and the plaintiff will be subject to further examination.” Since the other party has this right of further examination after such changes, it would be preferable for the notary to give notice to the other party of the time the witness will appear before the officer to request the changes so that he may be present, if he desires, to examine the witness concerning them. Material changes without such opportunity certainly would be unfair to the opposing party.

Because the record herein did not clearly show the situation, we ordered the original deposition sent here. This shows obvious failure to comply with Rule 57.22. Nineteen changes, dated March 17, 1961, which with reasons cover four typewritten pages, single spaced, are stapled to the front cover of the deposition. They are addressed to “Circuit Clerk, Jackson County Courthouse”, and contain this direction: “The following changes should be noted in the deposition of Alfred C. Rowland, taken April 29, 1960.” They are not signed by defendant nor by the notary before whom the deposition was taken but a partially illegible signature appears at the end of the fourth page under the typewritten name of a Reporting Company. There are also a few short statements written in ink in several places m the deposition, apparently by defendant because followed by his initials. Defendant’s signature appears on the last page of the deposition, which is not dated, and the place for the notary to show that it was subscribed and sworn to is left blank. However, the notary’s certificate, dated May 13, 1960, does say defendant “subscribed to the same”; and the deposition was filed May 23, 1960. Under these circumstances, the changes and reasons were not admissible in evidence (see Tuttle v. Tomasino, Mo.Sup., 336 S.W.2d 683, 690, and cases cited) and the court in admitting them stated his opinion that “it is an injustice to the other side to do> it.” We agree and hold that he was justified in granting a new trial on the second ground stated in his order.

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

All concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Eugene DOEPKE, Appellant.
    No. 49036.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Taken as submitted by appellant.
    Thomas F. Eagleton, Atty. Gen., James Wilson Spencer, Special Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

By information filed in the Circuit Court of St. Louis County, defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon and, in said information, was also charged under the habitual criminal act with having been priorly convicted of two charges of burglary in the second degree, for which he had been sentenced to and thereafter discharged from imprisonment in the state penitentiary upon due compliance with such sentence. At trial, defendant, in the presence and with the consent of his counsel, and outside the hearing of the jury, admitted the aforesaid prior convictions as pleaded in the information, hut announced his desire to stand trial on the merits. After hearing the evidence submitted upon the issue of his guilt of the robbery of which he was charged, the instructions given by the court and the arguments of counsel, he was by the jury found guilty as charged. Following the filing and overruling of his motion for new trial, defendant was sentenced to the custody of the Missouri Department of Corrections for a term of ten years. He has appealed, but no brief has been filed in his behalf. We, therefore, review the valid assignments of error set forth in his motion for new trial, as required by S.Ct. Rule 27.20, V.A.M.R., and the portions of the record required by S.Ct. Rule 28.02.

The first and second assignments allege error, respectively, in (1) the overruling of defendant’s motion for directed verdict filed at the close of the State’s case in chief, and (2) the overruling of a like motion filed at the close of all of the evidence in the case. Both assert insufficiency of the evidence to support the verdict. The first was waived by the offering of evidence by defendant following the close of the evidence in behalf of the State. State v. Hutchin, Mo., 353 S.W.2d 701, 702. The second requires a review of the evidence. In determining its sufficiency to support the verdict, we consider as true the evidence favorable to the State and the inferences reasonably to be drawn therefrom; the evidence to the contrary is rejected. State v. Hutchin, supra, loe. cit. 702 [2-4].

The evidence thus reviewed warranted a finding of the following facts:

On November 25, 1960, Mrs. Alma Jung resided with her husband and three sons in a building situate at 11102 Warson Road in St. Louis. County, from which building she also operated .a confectionery store. Between 1:30 and 2:00 p. m. of that day, when she was alone in the home and engaged in ironing in the living quarters of that building, a man drove up to the side of the building in a red convertible Mercury automobile and stopped “right in front” of a window about 20 feet distant from her ironing board, enabling her to observe him closely. Thinking him to be a customer, she awaited his entrance into the store. When he rang the entrance bell, she finished the piece she was ironing, walked -into the store and asked the man what he wanted. He said, “Give me your money.” Startled, she asked him to repeat what he said, he looked down at his hand and she then saw that he was holding a revolver in his left hand. He repeated, "Give me your money.” She asked him if he knew what he was doing. He said, “Do you want me to use this?” She went to the cash register. A counter then stood between her and the man. Seeing two loaded cartridges in the chamber of the pistol, she opened the register and gave him the bills therein; he declined the “change”. The bills given him totaled $38.00 and consisted of 1 ten, 2 five, and 18 one dollar bills. He then directed her to lie down upon the floor. She squatted down behind the counter. He insisted that she lie down, saying that he would use the gun if she did not. She did as directed and he walked from the store. She ran into the kitchen and watched him leave in the car. As he left she undertook to get his license number and was able to read all of it except one digit.

During the course of the robbery as above outlined, Mrs. Jung noticed the defendant was about five feet, three .or four inches in height, had a pimply complexion, wore a hat like that worn by sailors, khaki pants and a gray jacket, zipped up; his voice sounded like that of a man who had been drinking, but she did not smell any odor of liquor. She reported the matter to the St. Louis County police immediately after defendant drove away. That report was broadcast by the police department’s dispatcher at 1:58 p. m. About 3:15 p. m., a police officer of the City of Olivette, riding in a police car, in St. Louis County, who had heard the report and description of the man and the car as given therein, saw de-iendant driving a red Mercury car such as had been described in the radio report in the “ninety-four hundred block” of Olive Street Road. He pursued defendant and effected his arrest approximately two miles from Mrs. Jung’s store. Upon search of defendant’s .person, thirty-eight dollars in currency were found in his -left front pocket. It consisted of 1 ten, 2 five, and 18 one dollar bills. Ninety-one Cents were found in his right front pocket.

Defendant, when arrested, wore a gray jacket with a zipper in front, light gray sport shirt, tan trousers and tan shoes; no hat nor weapon was found. The arresting officer thereupon delivered defendant and the money and papers found upon his person and in the car to a St. Louis County policeman, who took him to the St. Louis County police station. Later the red Mercury car was also taken by the St. Louis County police. That evening defendant and four other men standing alongside him were viewed in a police “line up” by Mrs. Jung. She there positively identified defendant as the man who drove the red Mercury car to her store and who came into the store, robbed her and fled from the store in the Mercury. She also identified the clothing worn by him at the “line up” as being that worn by him when he committed the robbery. She also identified the red Mercury convertible in which defendant was riding when arrested as being the car in which he drove to and away from her store at the time of the robbery; and she likewise pointed out and identified defendant at the trial as the man who robbed her and identified the clothing then exhibited to her as that worn by defendant at the time of his arrest and as he stood in the “line up” as being identical with that worn by him during the robbery.

Leroy Mueller, who operated a trucking and hauling business “next to” Mrs. Jung’s store, saw a man theretofore unknown to him drive up in a red Mercury convertible car to Mrs. Jung’s store, about 1:30 to 2:00 p. m. on the day of the robbery, and park near his (Mueller’s) office. The man and car were 100 to 120 feet from Mueller. Mueller watched this man for several minutes. The man kept looking back and forth — east and west. Mueller again saw the same man in a police “line up” similar to that above described and saw a Mercury car in custody of the police. He identified the man and the car viewed by him, respectively, as the defendant and the red Mercury in which defendant drove up to Mrs. Jung’s store on the day of the robbery; and at the trial he pointed out and positively identified defendant as the man who drove the red Mercury convertible up to and parked alongside Mrs. Jung’s store.

Defendant did not testify. Testimony given in his behalf by his mother and grandmother was directed to the establishment of an alibi in his behalf; and the jury was duly instructed upon that issue. Such additional evidence as may be material to certain of the assignments of error set forth in the motion for new trial will be hereinafter stated.

The evidence above narrated unquestionably made a submissible issue of defendant’s guilt of robbery in the first degree as charged in the information. Section 560.120 RSMo 1959, V.A.M.S. (to which revision all statutory references herein refer); State v. Childers, Mo., 313 S.W.2d 728, 729-731. The trial court did not err in overruling defendant’s motion for a directed verdict filed at the close of all. of the evidence.

The third assignment is that the trial court erred in overruling an objection of defendant made during interrogation of Mrs. Jung, wherein the prosecuting attorney asked her what unusual had happened on November 25, 1960, to which question defendant objected as calling for a conclusion of the witness. The court overruled the objection. The record shows that the answer of the witness to that question merely began the recital of events pertinent and relevant to the establishment of the issue of defendant’s guilt: The error, if it was error, was trivial and definitely not prejudicial. The assignment is overruled.

Assignments 4, 5, 6 and 7 state, respectively, that “the court erred in giving and reading to the jury” Instructions 1, 3, 4 and 5. Such assignments fail to comply with the requirements of S.Ct. Rule 27.20 and present nothing for review. State v. Bannister. Mo., 339 S.W.2d 281, 283.

Defendant’s final assignment (8) reads: "The Court erred in overruling the objection of the defendant to the argument of the Prosecuting Attorney when, during the closing argument, he by reference referred to the fact that the defendant had not taken the witness stand and testified. In effect, the Prosecuting Attorney stated in answering the argument of the defendant’s counsel, that if one of the juror’s children should happen to be arrested in a red Mercury convertible that in that event, your child would not say what the defendant says.”

The transcript shows that in cross-examination of one of the police officers who assisted in the arrest of defendant, counsel for the defense insisted upon the officer stating what defendant had told him following his arrest. The officer at first testified that defendant “didn’t tell me anything.” ■Finally, upon further cross-examination ■upon that phase of defendant’s arrest, the officer stated: “If I remember exactly, he said, T haven’t got a gun’, then I asked 'him in relation to the robbery, what he "knew about the robbery that occurred at Lindbergh and Lackland and he said, T •don’t know anything about a robbery’, and then I asked him where he was coming from and he says, ‘Well, I will wait until I get an attorney to do any more talking1, and he told me from then on all he would ■tell me was his name and his address.” •Counsel for defendant made no objection whatever to that answer, but on the contrary continued to press the witness as to further statements then and there allegedly made by defendant. In that state of the record, the prosecuting attorney in his closing argument said: “Now, he (counsel for defendant) says, ‘What if your boy was in a red convertible?’ He personalizes it. “What if your boy was taken in a car by the officers? What do you think he would do if he had been home with you ?’ If your boy had been home with you immediately prior to the time of the hold-up, don’t you think he would say, ‘Officer, I’m sorry, I was home with my mother and my grandmother ■ and I can account for my whereabouts’? But not Doepke. Doepke wants to say nothing until he talks to his lawyer.”

Counsel for defendant then objected upon grounds: “There is no duty on the part of an arrested party to make any statement to the police. I ask that the jury be instructed to disregard that.” The court overruled the objection.

There can be no question that as a general rule defendant was not required to make any statement to the police following his arrest and the State would not be entitled to refer to his failure or refusal to do so. State v. Allen, Mo., 235 S.W.2d 294, 296; State v. Rush, Mo., 286 S.W.2d 767, 771. However, the testimony of the police officer as to the statements made by defendant was brought out solely by and through persistent cross-examination by counsel for defendant. Under the circumstances here shown, it would seem that defendant is in no position to complain of them. But, he that as it may, the objection made to them in the motion for new trial, to wit: that the argument of counsel for the state amounted to reference to the fact that defendant had not taken, the witness stand is, on its face, devoid of merit. By no stretch of reasoned imagination can the statements allegedly made by defendant, as used in the context of the closing argument of the prosecuting attorney and in answer to argument made by counsel for defendant, be construed as a reference to his failure to testify at the trial. The assignment is overruled.

The information is in due form. § 560.-120. The verdict is responsive to the issues and the punishment is within the limits provided by law. §§ 560.120, 560.135, 556.280. Defendant was duly arraigned and entered a plea of not guilty. He and his counsel were present throughout the trial at all stages of the proceedings. He was granted allocution and the judgment is in due form.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    'Ellen WOODS, Plaintiff, v. The JUVENILE SHOE CORPORATION OF AMERICA, Respondent, and Robinson Shoe Company, a corporation, and Robinson’s Kansas Shoe Company, Inc., Appellants.
    No. 49210.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Alvin C. Randall, Ralph H. Smith, Jr., Houts, James, Randall, Hogsett & McCanse, Kansas City, for appellants.
    Thos. J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   HOUSER, Commissioner.

Ellen Woods sued The Juvenile Shoe ■Corporation of America, a corporation, hereinafter “the manufacturer,” and Robinson Shoe Company, a corporation, a retail ■shoe store, hereinafter “the shoe store,” and Robinson’s Kansas Shoe Company, Inc., a ■chain of shoe stores, hereinafter “the shoe ■chain,” for $200,000 damages for personal injuries allegedly resulting in the necessary .amputation of plaintiff’s left leg, based on negligence of the manufacturer in manufacturing and negligence of the shoe store and shoe chain in selling to plaintiff a shoe with a tack in it, without inspecting it, and breach of implied warranty of fitness. After answering plaintiff’s petition, the shoe store and shoe chain filed a joint cross-claim against the manufacturer for full indemnity for any judgment that might be rendered for plaintiff and against the shoe ■store and shoe chain. This is an appeal by the shoe store and shoe chain from a judgment of the circuit court dismissing the cross-claim.

First for consideration is respondent-manufacturer’s claim that this appeal is premature; that the judgment of October 11, 1961 dismissing the cross-claim did not dispose of all of the issues in the case, and therefore was an unappealable judgment. Appellants-shoe store and shoe chain counter with the proposition that the trial court amended its judgment, thereby making it .an appealable order. Respondent retorts that the amendment was invalid because made more than 30 days after the judgment.

After the issues were made up on plaintiff’s petition and defendants’ answers, and after the shoe chain and shoe store filed their cross-claim, the manufacturer filed a motion to dismiss the cross-claim for failure to state a “cause of action” upon which relief can be granted. The trial court heard the motion to dismiss and on October 11, 1961 made an order that the cross-claim “be and the same is hereby dismissed * * At that time, October 11, the issues framed by plaintiff’s petition and defendants’ answers had not been tried; no order for a separate trial of the cross-claim had been requested or made, and no separate trial of the cross-claim had been conducted. The order of October 11 was not a final, appeal-able judgment. It was an interlocutory order. Dotson v. E. W. Bacharach, Inc., Mo. Sup., 325 S.W.2d .737, 739 [4]. An interlocutory order is always under the control of the court making it. Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, and authorities cited, loc. cit. 519; Deickhart, Trustee v. Rutgers, 45 Mo. 132, 136. At any time'before final judgment a court may open, amend, reverse or vacate an interlocutory order, Thompson v. Hodge, Mo.App., 348 S.W.2d 11, and authorities cited, loc. cit. 13, regardless of the general rule that, absent a motion for new trial, a final judgment becomes fixed and beyond the reach of the court to change, amend, or modify after the expiration of the thirty days allowed by Supreme Court Rule 75.01, V.A.M.R. A separate appeal from the interlocutory order of dismissal dated October 11 would have been premature and subject to dismissal, because of its interlocutory character and because there were other issues in the case remaining undetermined. Dotson, supra; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo. Sup., 323 S.W.2d 788; Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605, 606. In the exercise of its discretion, the trial court on November 15, 1961 entered an order by way of amendment, which provided that the court’s order of October 11 dismissing the cross-claim “be and is hereby amended as follows : ‘This order sustaining the Juvenile Shoe Corporation of America’s motion to dismiss cross-claim of defendants Robinson Shoe Company and Robinson’s Kansas Shoe Company, Inc. and dismissing said cross-claim, is hereby specifically designated as a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo., V.A.M.S.’ * * * ” On November 15 the interlocutory order of dismissal became “for the first time an appealable and final judgment,” authorizing an appeal “within the appropriate time.” Dotson, supra, 325 S.W. 2d, loe. cit. 739 [4], Appellants filed their notice of appeal on November 20, in full compliance with the requirement of Supreme Court Rule 82.04 that the notice of appeal be filed not later than ten days after the judgment or order appealed from becomes final. The order of dismissal is properly here for review.

Under the ruling of the majority of this Court in Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, we have jurisdiction because the amount in dispute in this situation, where nothing of record indicates lack of good faith on plaintiff’s part, is the amount claimed by plaintiff from defendants, which is in excess of $15,000.

On the merits, the question is whether the cross-claim states a “cause of action” for indemnity against the manufacturer, based on negligence. The amended cross-claim recites the allegations of plaintiff’s petition that the shoes which caused plaintiff’s injury were manufactured and placed in commerce by the manufacturer, and sold to plaintiff by cross-claimants; that the manufacturer was under a duty to exercise due care in their manufacture and that both manufacturer and cross-claimants were under a duty to inspect the shoes; that there was an implied warranty to plaintiff by the manufacturer and the cross-claimants that the shoes were not defective, and that these warranties were breached. The cross-claim further alleges that the shoes in question were sold by the manufacturer to cross-claimants, which as retailer sold the shoes to plaintiff; that neither cross-claimant knew of any defect and did not cause or create any defect in the shoes; that if such defect existed it was caused and created by the manufacturer at the time it made the shoes. The liability of the manufacturer to cross-claimants in the event of a recovery by plaintiff against cross-claimants on the-basis of negligence is set forth in paragraph 5 of the cross-claim, which follows: “5. If plaintiff should prevail on the charge of negligence in this action against cross-claimants, or either of them, it will be due to a finding of the alleged fact that The-Juvenile Shoe Corporation of America created a defective shoe and that cross-claimants are liable to plaintiff because of alleged passive negligence in failing to discover the alleged defect, correct same or warn plaintiff; and in such an event, cross-claimants will have become liable, with The Juvenile Shoe Corporation of America, for harm allegedly caused to plaintiff because of" cross-claimants’ alleged negligent failure to discover, make safe or warn of, a dangerous condition in said shoe, which was created by the negligence and misconduct of The Juvenile Shoe Corporation of America, and which, as between cross-claimants on the one hand and The Juvenile Shoe Corporation of America on the other, it was-The Juvenile Shoe Corporation of America’s duty to make safe; and cross-claimants are entitled to restitution and indemnity from The Juvenile Shoe Corporation of America for expenditures properly made in-the discharge of such liability, including the amount of any judgment which may be rendered against cross-claimants and all expenses and costs incurred in the defense of plaintiff’s action against cross-claimant.”' The prayer of cross-claimants is for judgment against the manufacturer for the-amount of any judgment that might be rendered in favor of plaintiff and against cross-claimants, and for their costs and expenses in defending against the charges asserted by plaintiff.

The cross-claim states a claim upon which relief can be granted by way of indemnity for exposure of the indemnitee to liability for negligence by the act of the in-demnitor. In Kansas City Southern Ry. Co. v. Pay way Feed Mills, Inc., Mo.Sup., 338 S.W.2d 1; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo. Sup., 323 S.W.2d 788, and Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, this Court reviewed Missouri authorities, and others, ■demonstrating the circumstances and announcing the principles under which indemnity may be required for a liability arising out of negligence. No restatement of the rules or repetition of the analyses made in these opinions need be made here. Under the rules laid down in the Kansas City Southern, McDonnell and Crouch cases and the previously adjudicated cases cited therein cross-claimants, under the allegations of their cross-claim, were not in pari delicto with the manufacturer; the manufacturer was charged with negligence as the original •and primary wrongdoer, in actively creating a dangerous condition by manufacturing a •shoe with a tack negligently caused to protrude into the inside or wearing surface of the shoe, and cross-claimants were charged with negligence under their secondary duty to plaintiff. If the allegations of the cross-claim be established upon trial on the merits cross-claimants would be entitled to indemnity. for liability for negligence imposed upon them solely by their failure to discover and correct, remedy or prevent injury from a dangerous condition caused solely by the party to be charged, not joined in by cross-claimants. Restatement of the Law of Restitution, § 95; Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., supra; Eusch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614. Where one party creates the condition which causes injury and the other party does not join therein but is exposed to liability on account of it, the rule that one of two joint tort-feasors cannot maintain an action for indemnity against the other does not apply. Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297, and cases cited, loe. cit. 304.

We are not asked to determine whether the cross-claim also states a claim upon which relief can be granted by way of indemnity for liability imposed for breach of implied warranty of fitness.

The judgment is reversed and the cause remanded with instructions to reinstate the cross-claim, and for further proceedings according to law.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Apparently following the suggestion of the correct procedure in such situation made in Dotson, supra, 325 S.W.2d, loc. cit. 739, since the language of the order is identical with the language of Dotson.