text:
    STATE of Missouri ex rel. Freda F. WHITAKER, Relator, v. Hon. Harry A. HALL, Judge of Division 10 of the Circuit Court of Jackson County, Missouri, Respondent (two cases).
    Nos. 48980, 48981.
    Supreme Court of Missouri, En Banc.
    July 16, 1962.

      William J. Cason, Clinton, for plaintiff.
    Robert B. Langworthy, Billy S. Sparks, Kansas City, for respondent. Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel.
   HOLLINGSWORTH, Judge.

These are original proceedings brought by relator, Freda F. Whitaker, a resident of Benton County, Missouri, seeking to prohibit the respondent, Judge of the Circuit Court of Jackson County, from assuming jurisdiction of two actions pending against her in the Circuit Court of Jackson County, Missouri, on grounds no lawful venue of either action existed against her in said county and that said circuit court is without jurisdiction of her person. Our provisional rule in prohibition was issued in each case and the cases were thereafter consolidated for hearing and final determination by this court. The facts essential to determination of the issues thus presented are, for the purpose of this decision, agreed.

On April 8, 1956, Benton Jackson, his wife, Elsie, and their daughter, Mary K., all of whom were residents of Bates County, Missouri, were riding in an automobile driven by Benton Jackson when it came into collision with an automobile driven by relator, Freda F. Whitaker, in Benton County, in which county, as stated, relator resided. Benton Jackson died that day as a result of his injuries and Elsie, his wife, and Mary K., his daughter, sustained personal injuries.

On April 20, 1956, (twelve days after the collision) Mary K. Jackson was by the Probate Court of Bates County duly appointed administratrix of the estate of her deceased father. Publication of notice of the grant of letters of administration to her was begun on April 26, 1956, and thereafter completed as required by law. She thereafter acted as the duly appointed and qualified administratrix of the estate of Benton Jackson. On the 19th day of December, 1956, three lawsuits were filed against relator in the Circuit Court of Benton County, wherein the collision occurred and relator then and ever since has resided. The first of these suits was brought by Mary K. as ad-ministratrix for the alleged wrongful death of her father. Trial of that case resulted in a verdict and judgment in favor of relator. The two other suits, one by Mary K. for the personal injuries allegedly sustained by her and one by her mother for personal injuries allegedly sustained by her, were dismissed without prejudice.

Administration of the estate, with Mary K. acting as administratrix, continued without any further action being taken, insofar as the record shows, until March 31, 1961, on which date two incidents occurred : (1) Mary K. Jackson, with the approval of the Probate Court of Bates County, withdrew as administratrix and Herman M. Swafford, a resident of Jackson County, was by the Probate Court of Bates County appointed administrator de bonis non and qualified as such; and (2) on the same day two lawsuits, the lawful venue of which are in these proceedings challenged by relator, were filed in the Circuit Court of Jackson County, to wit: an action by Mary K. Jackson (still a resident of Bates County) vs. Freda F. Whitaker and Herman M. Swaf-ford, administrator de bonis non of the estate of Benton Jackson, deceased, for the ■sum of $25,000 for personal injuries allegedly sustained by Mary K. in said collision; and an action by Elsie Jackson (still .a resident of Bates County) vs. Freda Whitaker and Herman M. Swafford, as administrator of the estate of Benton Jackson, deceased, for the sum of $35,000 for the personal injuries allegedly sustained by her in said collision. Summons in each case was served upon Herman M. Swafford, administrator de bonis non, in Jackson County and summons in each case was served upon Freda F. Whitaker in Benton County.

Although the first publication of letters occurred, as stated, on April 26, 1956, none ■of the plaintiffs in any of the actions filed .against relator has ever complied with the provisions of the non-claim statutes, §§ 473.360, 473.363, 473.367 and 473.370, RSMo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise noted). The administrator de bonis non has answered to the merits in the actions here involved by pleas of general denial but he asserts no defense to the failure of either of the plaintiffs to comply with the provisions of these non-claim statutes.

Relator, by special entry of appearance, moved for dismissal of the actions as against her, to which motions she attached the affidavit of her counsel reciting the facts essentially as above set forth, accompanied by copies of the probate court rec■ords pertinent thereto.

Relator does not question the general rule of law that the venue of actions against administrators lies in the county of the residence of the administrator regardless of the county of probate. State ex rel. Nute v. Bruce, 334 Mo. 1107, 70 S.W.2d 854, 859; Sanders v. Savage, 234 Mo.App. 9, 129 S.W.2d 1061, 1065. But she does contend that failure to comply with § 473.360, by the filing of these claims in the probate court within nine months after the first published notice of letters of administration (April 26, 1956), forever barred any allowance of these claims against the estate or the administrator for any purpose whatsoever; that, therefore, no valid judgment can be rendered against the administrator because of total noncompliance with the aforesaid statutes; that being not suable at law on these claims he is not and cannot be a lawful party defendant so as to make the relator subject to suit in Jackson County under § 508.010, which provides that where there are several defendants and they reside in different counties the suit may be brought in any such county. Respondent, on the other hand, contends that one defendant may not invoke the benefits of a statute of limitations applicable to another defendant; that the statute here involved is an affirmative defense and does not extinguish the cause of action; and that the amendment of the non-claim statute in 1959, Laws 1959, S.B. 305, which became effective August 29, 1959, permits the maintenance of these actions against the estate, especially the suit brought by the wife, Elsie M. Jackson.

Prior to the collision of the automobiles herein referred to on April 8, 1956, the new probate code was enacted (Laws 1955, p. 385, Chap. 473, RSMo Cum.Sup.) and by its terms became operative January 1, 1956. Extensive changes were there made with reference to the time for filing claims in the probate court and the effect of failure to comply therewith. Section 473.360, to the extent here pertinent, provided:

“1. Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person, * * whether due or to become due, absolute or contingent, liquidated or unliqui-dated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent. * * *
“2. All actions against the estate of a deceased person, pending or filed under sections 473.363 or 473.367, shall abate or shall be barred unless notice of the revival or institution thereof is filed in the probate court within nine months after the first published notice of letters.”

Although § 473.360 was repealed and a new § 473.360 was enacted in lieu thereof, Paragraph 1 thereof remained unchanged but Paragraph 2 was materially altered in 1959, S.B. 305, Laws 1959, RSMo 1959, V.A.M.S. That act became effective August 29, 1959. Paragraph 2 reads:

“2. Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distribu-tee or other person receiving such assets.” (Italics supplied.)

By the same 1959 act §§ 473.363 and 473.-367 were also changed and likewise became effective on August 29, 1959. New § 473.-363 deals with actions pending against any person at the time of his death and need not be further considered. New § 473.367 now reads:

“Any action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator, and the filing of a written notice in the probate court of the institution of such action.”

Thus, as shown, Paragraphs 1 and 2 of § 473.360 (except as to an immaterial amendment to Paragraph 2 made by Laws 1957, page 847) and §§ 473.363 and 473.367, as originally enacted, remained in effect for three years and four months after the first publication of letters on April 26, 1956.

In Clarke v. Organ, Mo., 329 S.W.2d 670, finally decided on November 9, 1959, this court en banc gave careful consideration to the provisions of § 473.360. After an extended study and discussion of the effect of that section and the other sections therein referred to (as may be noted from the majority and minority opinion filed therein), it was held: (1) That in view of the all-pervading terms of these non-claim statutes, which became effective January 1, 1956, they became and were applicable to all actions in tort for personal injuries and wrongful death; (2) that the proceedings therein prescribed placed the burden upon the plaintiff, not the administrator, to comply therewith; (3) that they were mandatory and, in effect, jurisdictional; and (4) that such actions for damages are barred for failure to comply therewith.

We think it inescapably follows that under the facts here shown and the construction placed upon § 473.360 in Clarke v. Organ, supra, the claims made in these actions were forever barred against the estate of deceased Benton Jackson, his administrator, heirs, devisees and legatees; and that the Circuit Court of Jackson County is without jurisdiction to hear and determine either of the actions here in question, unless the contentions made by respondent show good and valid grounds for now holding otherwise. We turn now to those contentions.

First, says the respondent, relator may not invoke a statute of limitations allegedly applicable to her co-defendant, the administrator de bonis non of the estate of Benton Jackson, citing in support of that contention the case of First National Bank v. Security Mutual Life Insurance Co., 283 Mo. 336, 222 S.W. 832, 835; Quirk v. Metropolitan Street Railway Co., 200 Mo.App. 593, 210 S.W. 106, 109. But they are not in point. They deal with the ordinary statutes of limitations which a claimant is privileged to assert or refrain from asserting as he may elect. The statutes here involved deal with and define in precise terms the limitations placed upon the jurisdiction of probate courts to allow claims not filed, within the time and manner prescribed by law; they are mandatory and jurisdictional; so made for the purpose of expediting the liquidation and distribution of estates of deceased persons and they may not be waived. “Taking these statutes at their face value, they bar (or abate) all claims, whether filed in the probate court or instituted in the circuit court, unless the claim or the required notice of suit or copies of the process and return are timely filed in the probate court.” Clarke v. Organ, supra, 329 S.W.2d 670, 673 [1], Admittedly, there was never any compliance with the requirements of § 473.360.

The law as thus declared makes it clear that failure to comply with these statutes, as they existed, unconditionally and forever barred their allowance in the probate court, unless, as respondent contends, they were given new life to the extent therein provided by the act of 1959, to which contention we now direct attention.

Respondent also insists that despite the law as declared in Clarke v. Organ, supra, § 473.360 is an affirmative defense and does not extinguish the cause of action and must be pleaded as a defense in the answer of any defendant allegedly entitled to assert it, citing (1) S.Ct.Rule 55.10, V.A.M.R. which, after enumerating certain specific defenses that must be affirmatively pleaded, closes with the general phrase “and any other matter constituting an avoidance or affirmative defense”; (2) S.Ct.Rule 55.43, which provides, in substance, to the extent here pertinent, that all defenses not raised in a responsive pleading are waived, except “failure to state a legal defense to a claim” and except “lack of jurisdiction over the. subject matter”; and (3) the case of Rabin v. Krogsdale, Mo., 346 S.W.2d 58.

Before discussion of this contention, we should mention that Clarke v. Organ, supra, 329 S.W.2d 670, treated with the distinction between the necessity of pleading the general statute of limitations as distinguished from the mandatory and jurisdictional requirements of § 437.360, saying, loc. cit. 676-677: “The statutory notice (section 473.360, subd. 2) or copies of process and service (section 473.367) were specifically required to be filed ‘in the probate court/ not merely to be served on the administrator. It is a notice in an in rem proceeding, intended to afford protection as well as notice, to all interested parties and to the Probate Court. The burden of filing the notice is upon the plaintiff, not upon the administrator. Moreover, the general statutes require service of process on the administrator, as on any other defendant, and the filing of an answer by him. If these steps constituted the required notice or a waiver of notice, then the carefully selected provisions of the present notice requirements were wholly pointless. In other words, if the filed notice was merely another notice to the administrator, there would be absolutely no point in thus giving him, or her, two notices of the suit. It is thus seen that there is an additional purpose in and reason for the filed notice. Even under the old law, which required the exhibition and filing of claims, our courts were strict in forbidding any waiver by an administrator of the time of filing claims.”

In Rabin v. Krogsdale, Mo., 346 S.W.2d 58, an action for personal injuries had been brought by plaintiff Rabin against Mrs. Edna Krogsdale. On January 6, 1959, while the action was pending, Mrs. Krogs-dale died. Thereafter, plaintiff, pursuant to the nonclaim statutes, suggested her death and her executor was substituted as defendant. The 1959 act was approved on June 29, 1959, but had not then gone into effect; Defendant contended that the action was governed by the non-claim statutes as they existed prior to the effective date of the act and was barred. Plaintiff did not comply with the original statutes because he did not (and apparently could not) file his claim in the probate court as required by § 473.360. He did, however, comply with the provisions of the 1959 act. If the original act was applicable, the penalty was that he could not satisfy his claim out of the assets of the estate; if the act of 1959 should be construed to apply, he could do so. The trial court sustained defendant’s contention. Plaintiff appealed.

In discussing the problem, this court stated the law to be (omitting quotes within quotes), loe. cit. 60: “And, generally speaking, no one has a vested right in a statute of limitations, and it is competent for the legislature, either by extending or reducing the period of limitation, to regulate the time within which suits may be brought even on existing causes of action. [Cases cited.] Since no one has a vested right in a statute of limitations, the legislature may enact a nonclaim statute applying retroactively to claims against estates of deceased debtors if a reasonable time is allowed after enactment. Annotation 117 A.L.R. 1208.” The opinion went on to note, however, and to quote with approval a further statement found in 46 A.L.R. 1101, to the effect that inasmuch as statutes prescribing the time within which particular rights might be enforced relate to remedies only, “the legislature has the power to increase the period of time necessary to constitute limitation, and to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations.” (Italics supplied.) The opinion then considered the provisions of the general procedural statutes relating to abatement and revival of actions, which provided that such actions could be revived within one year after death; and held, 346 S.W.2d loc. cit. 61: “While the legislature [by the 1959 act] did not lengthen or shorten the period for filing claims, it changed the effect of failure to timely file a claim from abating or barring the claim to preventing ‘recovery * * * in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court.’ Laws Mo. 1959, S.B. 305.”

That case is clearly distinguishable from the instant case. In the Rabin case the action was pending when the defendant died. In the instant case some 38 months had elapsed since the first publication of letters before the act of 1959 was even approved. More than two years had expired since the bar of limitations had run and no effort whatever had been made to comply with the existing statutes; and the admin-istratrix had filed and lost her wrongful death action and Mary K, and Elsie Jackson had dismissed their personal actions against relator. Not only under the rule announced in Clarke v. Organ, supra, were they barred, but, under the rule relating to general statutes of limitations to actions, they were also barred because the causes of action here involved had long since been extinguished under pre-existing statutes. See the quotation from 46 A.L.R. 1101, as approved in Rabin v. Krogsdale, supra.

However, respondent further insists that the 1959 act was “intended” to and did modify the statute which previously existed and clearly contemplates that a judgment may be obtained in a proper case even where the notices required in § 473.360 are not filed as therein required. His argument is that: “Prior to November 12, 1957, it was the opinion of attorneys throughout the State of Missouri that a suit could not be brought by one spouse against the estate of a deceased spouse for torts committed during the marriage. This was the opinion of several judges- of this Court. See: Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382. However, on November 12, 1957, this Court for the first time held (over two strong dissents) that a wife could recover against the administrator of the estate of her deceased husband damages for personal injuries caused by the husband’s tort. Ennis v. Truhitte (Mo.Sup. en banc, 1957), 306 S.W.2d 549. Until that date, no spouse could recover. Since that date, recovery could be had. * * * At the first opportunity the Legislature had, it corrected this inequity so that the statute would not bar such claims, at least to the extent that there were other assets from which a spouse (or any other person) could make recovery. * * * There is, of course, one further reason why the Legislature may have considered such an amendment necessary. It is useless for a claimant to file a claim in an estate if there are no assets in the estate to pay the claim. However, if assets are discovered at a later date and an administrator de bonis non is appointed, and if the assets newly discovered are such that all claimants can be paid, should the creditor now be barred from attempting to reach those assets? The Legislature must have felt that there should be no bar as to assets not previously administered upon.”

In the first place, no one may reasonably say that had Elsie Jackson brought a timely action against her husband’s administrator for the personal injuries sustained by her and complied with the provisions of § 473.360 that this court would have held differently than it held in Ennis v. Truhitte. But be that as it may, we think that contention will not withstand careful scrutiny on its merits. “A statute of limitations will not be construed so as to affect causes of action already barred, if such construction can reasonably be avoided, especially where the limitation in force when the cause of action accrued is a part of the right of action itself. Revival by statute of a right of action already barred by limitations is an extreme exercise of legislative power which will not be deduced from words of doubtful meaning. * * * The statute will lift the bar, however, where the intent of the legislature is clear.” 53 C.J.S. Limitations of Actions § 4e, page 917.

We have also considered the recent case of Darrah v. Foster, Mo., 355 S.W.2d 24, referred to by respondent in the oral presentation of these cases. The Darrah case involved a timely filed and pending action and cited the rule as announced in 11 Am.Jur., Constitutional Law, § 382, p. 1212: “As a general rule, where there is no direct constitutional prohibition, the legislative branch of government, whether Federal or state, may pass retrospective laws, such as, in their operation, may affect suits pending and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings. Such acts are of a remedial character and are the peculiar subjects of legislation.” (Italics supplied.)

For the reasons above and hereinafter stated, we have concluded that the rule therein announced will not permit the institution and maintenance of the instant actions because, as stated, they long since ■ had been extinguished under pre-existing statutes.

There is nothing in the 1959 act from which it may reasonably be declared that the legislature intended these (so-called) amendments to extend the new privileges therein granted to the bringing of new actions or the filing of new claims that had been extinguished under the provisions of the law as it existed prior to the effective date of the act. Actually, that act does not purport to be an amendment of any of the sections here involved. To the contrary, it expressly repealed those sections and “enacted three new sections in lieu thereof to be known as Sections 473.360, 473.363 and 473.367.” We must construe that act as written; to hold otherwise would be contrary not only to the law as announced in Clarke v. Organ, supra, but also to the general rules long established for the construction of legislation such as is here considered.

We are not here concerned with what may occur in the cases pending against the administrator, but we do hold that inasmuch as the actions pending against the administrator were long since barred by the provisions of the non-claim statutes prior to the amendment of 1959 to the full extent declared in Clarke v. Organ, he is not a legitimate defendant so as to render his co-defendant, relator, subject to being sued in Jackson County under the provisions of § 508.010.

The provisional rule in prohibition heretofore issued is made absolute.

All concur.

      . See Laws 1959, “Effective Date of Laws”, Page 15a.


source: Caselaw Access Project

author: BOHLUSTG, Commissioner.

license: Public Domain

text:
    W. C. COONCE, Appellant-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent-Appellant.
    No. 48937.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.
    Ralph R. Bloodworth, Bloodworth & Bloodworth, Poplar Bluff, for W. C. Coonce.
    George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for Missouri Pac. R. Co.
   BOHLUSTG, Commissioner.

W. C. Coonce recovered a verdict and judgment of $4,500 for personal injuries sustained when struck by a train of the Missouri Pacific Railroad Company, a corporation. In due course each party has appealed. Plaintiff contends that the verdict and judgment is grossly inadequate and seeks a new trial on the issue of damages alone. Defendant contends plaintiff failed to make a case and claims error in the overruling of its after-trial motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence.

This case is here upon transfer from the Springfield Court of Appeals. See 347 S.W.2d 242. Plaintiff sued for $100,000 damages and recovered $4,500. Plaintiff was severely injured. He appeals on the ground the judgment is inadequate and, absent exceptional circumstances, the amount in dispute is the difference between the amount prayed for and the amount of the judgment in the trial court, as stated by the Court of Appeals. The appeals were properly transferred here.

Plaintiff was injured on defendant’s “Cat Branch” line, upon which trains move north past the station in Poplar Bluff, Missouri, and thence eastwardly, cross the Cat Branch bridge over the Black River about 600 feet east of the station and, about three-fourths of a mile farther east, cross a levee.

Plaintiff, 52 years old, owned and, with his wife, lived on twenty acres of land about five miles east of Poplar Bluff and a quarter of a mile south of defendant’s tracks. He came to Poplar Bluff about noon of May 10, 1958. He loafed around, and that evening proceeded to defendant’s station until he came to the Cat Branch track and started walking on or alongside the track toward his home. He walked in the dark, crossed the Black River bridge, and arrived at the levee “after 8 :30 p. m.” He adduced evidence that the night was clear, there was no fog or rain. He testified there were no lights on the track or around where he was. Defendant’s track is straight and level for the three-fourths of a mile between the bridge and the levee. He stated: “The levee runs around Poplar Bluff.” The levee there extends north and south. Plaintiff did not know when the trains ran. He was tired, and “thought I would rest a little bit and go home.” He sat down, facing north, on the south rail of the track about fifteen or twenty feet west of the levee ditch, with his feet between the rails, folded his legs, put his arms across his legs, his head on his arms, and went to sleep. He next remembered being dragged along the railroad track, could feel his feet dragging and hitting rocks, and then next remembered being in the hospital. According to all the testimony, plaintiff was south of the tracks and east of the levee after the accident, plaintiff’s witnesses putting him 30 to 40 feet east and defendant’s witnesses putting him 55 feet east of the levee.

Plaintiff read the deposition of Lovell Miller, the engineer of defendant’s train. The train was not quite a mile long, had four Diesel units pulling 111 cars, 105 of which were loaded. It was dark, and the weather was foggy, kind of a misty fog, not raining. He had gradually increased the speed of the train to about 28 m. p. h. when he first saw what looked like a man “hunkered down” on the rail about 150 to 200 feet ahead. He immediately applied the air brakes, full power, sounded short blasts of the whistle and rang the engine bell. Plaintiff never moved. The train came to a complete stop in 927 feet. The equipment on the train, including its headlight, was in good condition.

Plaintiff’s witness Robert L. Losh, a retired Missouri Pacific engineer, who had operated and was familiar with defendant’s Diesel engines and their headlights in use on May 10, 1958, testified that such a Diesel headlight in good condition would light up the track on a clear night and reveal a man sitting in the position plaintiff was sitting 1200 to 1500 feet ahead, regardless of the color of the clothes the man was wearing.

Plaintiff’s counsel judicially admitted that plaintiff was contributorily negligent as a matter of law, and submitted plaintiff’s case on defendant’s duty to have timely stopped its train under the humanitarian doctrine.

Plaintiff alleged in his petition, among other things, that he “was sitting along and upon the defendant’s railroad tracks at a point east of Poplar Bluff, Missouri, at a place where the general public usually and habitually walk in traveling to and from the Morrocco-Providence Community to the City of Poplar Bluff, Missouri.” (Italics supplied.)

Plaintiff predicated a verdict upon findings to the effect, so far as material, “that the railroad track both east and for one-half mile west of the point where plaintiff was struck was at that time frequently used, and had for a long time prior thereto been frequently used by pedestrians with the knowledge of the defendant, its servants, and employees, as a passway leading to and from the city of Poplar Bluff” and, if so, then it was the duty of defendant’s trainmen “to exercise ordinary care to keep a lookout for persons on said track”; and further findings that plaintiff, “asleep and oblivious” of defendant’s approaching train “while sitting on defendant’s track after dark became in imminent peril of being struck by defendant’s train”; that defendant’s employees “under the weather conditions then and there prevailing and by use of the train headlight then and there in operation saw, or by the exercise of ordinary care could have seen the plaintiff in such position of imminent peril” and thereafter, under the humanitarian doctrine, could have but did not stop said train and avoid injuring plaintiff.

Plaintiff’s presentation here is on the theory defendant was not entitled to expect a clear track at the places specified by reason of the use of its track by pedestrians as a passway to and from Poplar Bluff for so long a time and so frequently prior to plaintiff’s injury as to impose a duty upon defendant to exercise ordinary care to look out for and discover persons upon its said track. Plaintiff’s counsel stated in argument here that if defendant did not owe plaintiff the duty to look out for him, that is, to discover his peril, plaintiff failed to make a case.

A railroad track is private property and the railroad generally has the exclusive right to the use of its tracks except at public crossings or in certain situations at other places where it has actual or constructive notice of the habitual use of its tracks by the public. Hoops v. Thompson, 357 Mo. 1160, 212 S.W.2d 730, 731; and see Isabel v. Hannibal & St. J. Rd. Co., 60 Mo. 475, 482 (cited by plaintiff). As stated in plaintiff’s case of Rice v. Jefferson City Bridge & Transit Co., Mo., 216 S.W. 746, 752 (citing plaintiff’s case of Eppstein v. Missouri Pac. Ry. Co., 197 Mo. 720, 734, 94 S.W. 967, 971), the railroad’s knowledge of public user is not generally established by direct evidence, “but must be inferred, if they exist, from other facts, as, for example, the long acquiescence of the company in the open, known, free, continuous, and extensive use of its tracks by the public as a footway.” At places where the railroad has no right to expect a clear track its duty is to exercise ordinary care to maintain a lookout for persons upon the track; and at all other places there is no duty on the trainmen to act until they actually see a person, a trespasser, in danger. The Hoops case, supra, and cases cited; Frye v. St. Louis, I. M. & S. Ry. Co., 200 Mo. 377, 98 S.W. 566, 574, 8 L.R.A.,N.S., 1069; Barney v. Hannibal & St. J. R. Co., 126 Mo. 372, 382(1), 28 S.W. 1069, 1071(1), 26 L.R.A. 847.

Peach Street, a graveled east-west street, is about 300 feet north of and parallels defendant’s tracks. We understand Pine Street, on which is located U. S. Highway-60, is a block north of Peach Street. There is a house on Peach Street at the levee and some residences between Peach Street and Pine Street.

Plaintiff’s evidence established that no road crossed the railroad where it passed over the levee and that automobiles could not cross over the rails there. Plaintiff testified that in this area there were elm bushes, bushes that grow on wet ground. Plaintiff’s exhibits are to the same effect. There are no business establishments or industries in this vicinity. The Gamblin Lumber Company is a quarter of a mile from there.

Coroner Grover Greer drove his ambulance to the scene of the accident. Someone got in the ambulance at Peach Street and showed him how to get around. He didn’t have trouble getting in with his ambulance, but described the road as a little dim, a “pretty twisted” road, through some rough area, up to the levee. He drove up on the north side of the track and turned around, because an automobile couldn’t cross the railroad tracks. He testified he had been “through there a few times” and “quite a few people” walked on the track and people used it on May 10, 19S8. His only testimonial qualification as to people using the track on May 10, 1958, shown of record was his presence at the scene after the accident to take plaintiff to the hospital. He stated that he was 70 years old and it had been “some fifty years” since he had walked this track while a boy working at a mill then in that area. He had not used it in recent years.

Clarence Pierce, Circuit Clerk of Butler County, testified his farm was east of the levee and north of where the railroad crosses the levee. He testified that the road from Peach Street down to the levee and railroad “was used quite often by a lot of people” prior to May 10, 1958; that the road and pathway on the levee to Highway ■60 “was traveled” by the general public; that there was a pathway but no roadway on the levee south of the railroad tracks, and that the general public used the track between the Cat Branch bridge and where the railroad crosses the levee. On cross-examination he stated he was in Poplar Bluff, away from his farm, ten or twelve hours a day five or six days a week; that the police traveled that area quite often at night; that he did not watch and did not know what people in the automobiles passing there did; that he spends most of his time on Sundays at his farm; that “on Sundays always people will go up and down through there”; “I mean different times of the day,” “not just a constant stream of them out through there, but there is people that goes out through there all the time, different times. Q. Would it be better to say occasionally? A. That will be all right. Q. Infrequently? A. That would be all right.”

The home of W. L. Peoples, defendant’s witness, is at the intersection of Peach Street with the levee, 300 feet north of the railroad. He testified he would see “some few” people, not too often, walking the railroad track; that a few automobiles, one or two a week and possibly two or three on Sunday, would drive on the levee; that a fishing slough is about a half-quarter east of the levee and north of the railroad, and during the fishing season a lot of colored people go there to fish and some come up the railroad and cross over the fence there to get in.

Plaintiff says his injury was within the city limits of Poplar Bluff; and he invokes the statute requiring railroads to fence their tracks along enclosed or cultivated lands or unenclosed lands, and provide cattle guards to prevent horses and other animals getting on the tracks, particularly jf 6 of § 389.650, RSMo 1959, V.A.M. S., reading: “6. If any person not connected with or employed upon the railroad shall walk upon the track or tracks thereof, except where the same shall be laid across or along a publicly traveled road or street, or at any crossing, as herein provided, and shall receive harm on account thereof, such person shall he deemed to have committed a trespass in so walking upon said track in any action brought by him on account of such harm against the corporation owning such railroad, but not otherwise.” From plaintiff’s petition and submission this issue appears to be an afterthought. Plaintiff stresses Isabel v. Hannibal & St. Joseph Rd. Co., 60 Mo. 475, 482 et seq., an action for the wrongful death of plaintiff’s twenty-one-months-old son. The railroad had constructed its tracks in close proximity to plaintiff’s house and between the house and the family well. Its employees knew this and that the family crossed the track to obtain water. In that case the irresponsibility of the infant was classed with that of domestic animals, and the admission of evidence of defendant’s failure to fence as an element tending to show negligence was held not error. In cases wherein railroads contended that under said ¶ 6 the plaintiff, in walking upon defendant’s track, was a trespasser, whether otherwise technically a trespasser or not, we have held said ft 6 made no innovation on the general rule for determining that issue. Under like reasoning said jf 6 should make no innovation on the general rule for determining that an adult plaintiff is not a trespasser. Murphy v. Wabash R. Co., 228 Mo. 56, 128 S.W. 481, 486(c), and cases cited. This adult plaintiff was contributorily negligent as a matter of law; no publicly traveled road or street crossed the tracks at the place involved ; plaintiff was sleeping, not walking, upon the tracks, was not an employee of defendant, and the statute does not affect his status or rights. Consult Barney v. Hannibal & St. J. R. Co., supra, 28 S.W. 1. c. 1072(2) ; Williams v. Kansas City, C. C. & St. J. Ry. Co., 222 Mo.App. 865, 6 S.W.2d 48, 50 [4].

Plaintiff’s other cases on the issue of liability are Morgan v. Wabash R. Co., 159 Mo. 262, 60 S.W. 195; Chamberlain v. Missouri Pac. Ry. Co., 133 Mo. 587, 33 S.W. 437, 34 S.W. 842; Eppstein v. Missouri Pac. Ry. Co., 197 Mo. 720, 94 S.W. 967, 969-971; Rice v. Jefferson City Br. & Transit Co., Mo., 216 S.W. 746.

In the Morgan case plaintiff’s husband was walking eastwardly on the day in question on defendant’s tracks, which were-fenced and paralleled a public road, when: an eastbound special train (being run backward, pushing a tender in front, so loaded' with coal as to prevent the enginemen from seeing the track, and pulling the caboose) struck and killed him. Plaintiff’s evidence established that said track had been used by men, women and children for twenty-five years as a footpath in preference to the country road between the town and a road! crossing, near which was a tie yard, to-which deceased was going, and steps had' been erected over the railroad’s fence in the town and also near the road crossing for the convenience of those using the railroad tracks (60 S.W. 1. c. 196). Ini these circumstances the trainmen were not entitled to expect a clear track and defendant’s duty extended to discoverable peril (1. c. 200).

In the Chamberlain case plaintiff’s husband, while walking east on defendant’s, track on his way to work, was struck by one of defendant’s eastbound trains at about 6:45 a. m. September 2, 1892. The-place involved was at a planked private road crossing, outside the city limits but in a thickly populated neighborhood with-large industries along defendant’s route- and where it had been the custom for years, for workmen to walk the track to and' from work, and particularly at the hour in question. The court stated the question of" defendant’s liability “must be answered by a reference to the time and place,” and defendant’s duty embraced discoverable peril (33 S.W. 1. c. 438-440).

In the Eppstein and Rice cases the plaintiffs adduced facts as favorable to a plaintiff as were the facts in the Morgan and' Chamberlain cases. It is not necessary to.. extend this opinion to detail them. In each of plaintiff’s cases the person struck was standing or walking on defendant’s track and in each the casualty occurred in the ■daytime with the exception of the Rice case. In the Rice case plaintiff had evidence to sustain a finding that her husband was standing or walking on defendant’s track and could have been timely seen (216 S.W. 1. c. 751 [1,2]); and that “the railroad track had for many years been used indiscriminately by pedestrians, both by day and by night, in going back and forth between Jefferson City and North Jefferson, and such use had been continuous and extensive and was known to and acquiesced in by defendant” (1. c. 748).

In Frye v. St. Louis, I. M. & S. Ry. Co., 200 Mo. 377, 98 S.W. 566, plaintiff, at 5:30 a. m., February 16, 1903, started walking from Mill Springs on defendant’s track to a saw mill where he worked at Leeper, 1[4 miles north. Pedestrians preferred the track, which was straight, to an adjacent parallel road. After about a half mile the shaking of the ground caused plaintiff to turn his head and defendant’s engine was upon him. Plaintiff testified “there was a Reap of people going and coming both ways, night and at all times during the day.” A plaintiff’s witness testified that eight or ten millmen walked the track to and from work and some people likewise used the track to go to a saloon at Leeper at night to drink. There was other testimony of a general nature of travel over the track at night. The track was fenced, and warnings were posted not to use the track. The court pointed out that a railroad’s right to a clear track might be waived by its tacit consent and long acquiescence in permitting the open, known, free, continuous and extensive use thereof by footmen and its duty thereby extended to exercise ordinary care to look out for and protect footmen against injury. Conceding, arguendo, that the daytime use was such as to deprive the railroad of the right to expect a clear track, the court held the nighttime use of the track by eight or ten millmen living at Mill Springs and working at Leeper and by thirsty denizens of Mill Springs to drink at the Leeper saloon did not deprive the railroad of its right to expect a clear track in the nighttime at the place plaintiff was injured; that it owed plaintiff no duty to look out for him, and that plaintiff had the burden of establishing he was actually seen by the trainmen in time to avoid injuring him (200 Mo. 405, 98 S.W. 574).

In Hoops v. Thompson, 357 Mo. 1160, 212 S.W.2d 730, plaintiff and his wife, about 9:00 p. m., were sitting upon a concrete pier which extended about five feet beyond the south end of the ties near the east end of the defendant’s bridge over the Black River. An eastbound freight passed over the bridge and, according to plaintiffs, the engine when about ten feet west began emitting steam and hot water, which scalded and burned plaintiffs as it passed. Defendant admitted there was a sufficient user of the bridge by pedestrians to place a duty on its trainmen to look out for persons on the tracks of the bridge. There was some evidence that at times persons sat upon the piers at the side of the bridge and that children played on and jumped off the piers. Court en Banc held the evidence did not establish such open and continuous user and for such a length of time as to apprise the railroad that it should expect persons to be upon the piers and thus place a duty upon it to maintain a lookout for the plaintiffs while upon the pier, stating: “The requirement for such look-out is confined to the place of user and does not extend to other portions of the railway property,” citing, among others, the Crossno case, infra.

To bring a case within the rule depriving a railroad of its right to expect a clear track “ ‘the use established in the public may be likened somewhat to that giving rise to a prescriptive right; i. e., the use must be a known use, and must be confined to the limits proved/ (Italics ours.)” Crossno v. Terminal R. Ass’n, 333 Mo. 733, 62 S.W.2d 1092, 1093 [2]. See also Ducoulombier v. Baldwin, Mo.App., 101 S.W.2d 96, 101 [7, 8], second appeal, Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105 [1], reversing a plaintiff’s judgment.

It is stated in English v. Wabash Ry. Co., 341 Mo. 550, 108 S.W.2d 51, 57: “However, this rule of waiver of the right to expect a clear track has always been applied to places of limited extent around which there is a considerable population in cities or towns, or which is continuously used for access to shops, mines, industries, work camps, schools, or other similar places where a considerable number of people go regularly at certain times.”

In Cochran v. Thompson, 347 Mo. 649, 148 S.W.2d 532, plaintiff’s husband was “hunkered down” in the daytime against the west rail of defendant’s north-south track about a half mile south of Poplar Bluff. The trainmen saw this object when a quarter to a half mile south of it, but did not discover it was a man until within 250 to 300 feet of it. The train stopped in 800 to 900 feet. This was in open country and defendant’s tracks were properly fenced, but plaintiff’s evidence established public user of defendant’s tracks by pedestrians at the place involved. True, the facts in the Cochran case differ from the facts in the case at bar, but the court stated (148 S.W.2d 1. c. 536): “Moreover, as the Frye case [98 S.W. 566, 573] commented on lack of evidence ‘to establish the night use’ of that defendant’s track for travel, so here there is a complete absence of any evidence to establish use of this defendant’s track for lying down. [Citing cases.]” After pointing out that in none of plaintiff’s cited cases was the person struck “hunkered down” as was plaintiff’s husband, the court held “that the evidence of user is insufficient to place upon defendant the duty of keeping a lookout to discover a man in such a position at such a place.”

Plaintiff says he presented stronger evidence of public user than was presented in his cited cases. We have read plaintiff’s cases and others. We do not agree. In all of his cited cases the injured person was walking or standing on the track, and the casualty occurred in the daytime (with one exception), and at a time and place wherein the public user of the track was well established. The exception is the Rice case, supra, where there was an indiscriminate user for many years of defendant’s track at the place in question during the nighttime as well as the daytime. Plaintiff states he is not attempting to prove constant use of defendant’s track for the three-fourths of a mile between the Cat Branch bridge and the levee. Witness Greer had not been over the track in recent years and his testimonial qualifications as to public user appear based upon the user when he was a boy working at a mill then in that area “some fifty years” prior. Plaintiff’s witness Pierce’s testimony of the greatest user was of people going up and down “through there on Sundays”; and that the “better” characterization of that user was “occasionally,” “infrequently.” It is doubtful that he removed notice to defendant of daytime public user from the field of speculation. The area where the tracks cross the levee was one in which elm bushes were growing. There were no business establishments or industries in that area. There was no evidence that residents of any of the houses, which were 300 or more feet from where the railroad crosses the levee, used the tracks. Pierce had seen automobiles pass through that area at night, the police quite often, but did not know what the people in the automobiles did. The tracks were not laid across a publicly traveled road or street. Motor vehicles could not and did not cross the tracks. The evidence did not establish the extent of any public user of the levee south of the railroad.

In the Frye case, supra, the user of defendant’s track by eight or ten mill workers at night and also by residents of Mill Springs to go to a saloon at Leeper at night to drink did not deprive the railroad of its right to a clear track and placed no duty upon it to look out for people on the track in the nighttime. In the case at bar there is less evidence of a public user of defendant’s track in the nighttime at the place involved, as, also, less evidence of user than in the Hoops case, supra. And note the evidence of public user of the track where the person struck was “hunkered down” against the track in the daytime in the Cochran case, supra. A path for use as a passageway on or along a railroad track is not an invitation to use the track for a place to sit or sleep. Driving automobiles from Peach Street or from U. S. Highway 60 to the area where defendant’s track crosses the levee does not establish a public user in the nighttime of a railroad track that cannot be crossed. The evidence of user in the case at bar did not place a duty upon defendant to keep a lookout to discover a man in plaintiff’s position at the place involved.

There is no probative evidence of record upon which to base a submission that the trainmen could have avoided injuring plaintiff after they actually discovered him upon the track. Plaintiff concedes this.

Plaintiff’s injuries bespeak sympathy but should not disturb the scales of justice. We conclude plaintiff failed to make a sub-missible case of nighttime public user.

The judgment is reversed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    Robert BOLL, Respondent, v. SPRING LAKE PARK, INC., Appellant.
    No. 48738.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.

      Morris A. Shenker, Murry L. Randall, Bernard J. Mellman, St. Louis, for appellant.
    James F. Koester, St. Louis, for respondent.
   STOCKARD, Commissioner.

Defendant has appealed from a judgment in the amount of $75,000 for injuries sustained by plaintiff when he dived into shallow water at a swimming pool. In addition to challenging two of plaintiff’s instructions, defendant contends that plaintiff was contributorily negligent as a matter of law. We shall refer to the parties as in the trial court.

Defendant was the owner of Spring Lake Park which it operated as a recreation area. On June 18, 1953, plaintiff, who was then 21 years of age, and his girl friend went to the park, paid the admission fee of sixty cents each, and were admitted to the grounds. After playing tennis for awhile plaintiff and his friend changed to swimming attire and went to the swimming pool. The pool was about 200 feet in length and somewhat oval in shape. It had vertical concrete sides with a concrete walk around it, but it had a “natural earth bottom” which was “filled with sand” from three to four inches. A photograph of the pool taken when empty indicates that the bottom would be quite muddy when water was in it. At one end of the pool there was a diving board, and the depth of the pool at the area where a diver from the board would enter the water was 9 to 10 feet. However, this deep area did not extend across the entire end of the pool where the diving board was located, and near the sides of the pool the water was not nearly so deep. A rope, apparently buoyed in some manner, was stretched across the pool about 50 to 55 feet from the diving board. Plaintiff walked around the pool to a point which was between the rope and the diving board and was about ten to fifteen feet farther down the pool from the end of the diving board. The water in the pool was “like a muddy lake” and it was “at least as dark as coffee.” Plaintiff could not see the bottom. No one was in the pool at the time and no lifeguard was on duty. Plaintiff testified that he looked for depth markings but saw none. Although there was a sharp dispute in the evidence of plaintiff and defendant on the issue, the jury was authorized to find, if it believed the evidence of plaintiff and disbelieved that of defendant, that there were no markings or signs at the pool indicating the depth of the water. Plaintiff received no oral warnings as to the depth of the water. He threw a rubber inner tube into the water two or three feet from the edge of the pool and then dived “straight down” through the tube. At that place the water was approximately three feet in depth, and he struck the bottom of the pool with his head. His neck was broken resulting in permanent paralysis from the shoulders down through his body.

Plaintiff was an experienced diver and he had had considerable experience over a period of approximately nine years around water and swimming pools. He admitted that he knew “it would be dangerous to dive in three feet of water straight down.” The occasion on which plaintiff yras injured was the first time he had been to the pool that “season,” and the evidence indicates that he had not been in the pool in previous years, but this is not entirely clear.

Plaintiff submitted his case to the jury on the alleged negligence of defendant in failing to warn him of the danger of diving in the pool at the place he did when the water was in such a dirty and unclear condition that he could not see the bottom of the pool. While the defendant does not contend on this appeal that plaintiff’s evidence did not present a submissible case as to defendant’s negligence, a review of the duties of defendant as the operator of a recreation area is helpful in ruling on the contention of defendant that plaintiff was contributorily negligent as a matter of law.

Defendant maintained and operated the pool for use by the public upon the payment of an admission fee. It was designed for use and was in fact used for both swimming and diving. While defendant was not the insurer of the safety of plaintiff, Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52, 48 A.L.R.2d 97; Vukas v. Quivira, Inc., 166 Kan. 439, 201 P.2d 685, 688; 52 Am.Jur. Theaters, Shows, Exhibitions, and Public Resorts § 47, it was bound to use reasonable care in furnishing and maintaining its accommodations for the purpose for which they were apparently designed and to which they were adapted. Waddel’s Adm’r v. Brashear, 257 Ky. 390, 78 S.W.2d 31, 98 A.L.R. 553; Vukas v. Quivira, Inc., supra; Lake Brady Co. v. Krutel, 123 Ohio St. 570, 176 N.E. 226, Blanchette v. Union St. Ry. Co., 248 Mass. 407, 143 N.E. 310; Johnson v. Hot Springs Land & Improvement Co., 76 Or. 333, 148 P. 1137, L.R.A.1915F, 689; Cleary v. Indiana Beach, Inc., 7 Cir., 275 F.2d 543; 52 Am.Jur. Theaters, Shows, Exhibitions, and Public Resorts § 71; Hughes v. St. Louis Nat. League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904; Annotations 22 A.L.R. 610 and 48 A.L.R.2d 104. While the standard of care remains the same, what constitutes its exercise necessarily varies with the situation and attending circumstances, or “with the particular conditions and circumstances involved in the given case,” Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 1029, 61 A.L.R. 1269, and in the case of a diving pool this “involves the duty of being diligent to see that water in a diving pool is of sufficient depth to make it reasonably safe for the purpose; or, if it be not safe for that sport with the use of the facilities furnished, there arises the duty to warn or caution patrons by signs or otherwise of the hazard, particularly of any latent or hidden condition of danger.” Waddel’s Adm’r v. Brashear, supra [78 S.W.2d at p. 31, 32, 33], See also Perkins v. Byrnes, supra; Blanchette v. Union Street Railway, 248 Mass. 407, 143 N.E. 310; Louisville Water Co. v. Bowers, 251 Ky. 71, 64 S.W.2d 444; Johnson v. Hot Springs Land & Improvement Co., supra, Grove v. D’Allessandro, 39 Wash.2d 421, 235 P.2d 826; Annotation 48 A.L.R.2d 126, 129, 131.

We shall now look to the reciprocal duty of a patron of a recreation area. A patron of a public swimming pool operated for profit has a right to rely upon the assumption that the proprietor has discharged his duty and provided a place that is reasonably safe for the use invited. Waddel’s Adm’r v. Brashear, supra; Johnson v. Hot Springs Land & Improvement Co., supra; Annotation 48 A.L.R.2d at p. 118. He is not required to make a critical inspection to assure himself that it is safe. Waddel’s Adm’r. v. Brashear, supra; Louisville Water Co. v. Bowers, 251 Ky. 71, 64 S.W.2d 444; Gates v. Gautier, 29 Cal.App.2d 524, 85 P.2d 141. See also Hughes v. St. Louis Nat. League Baseball Club, Inc., supra. However, he has the duty to exercise ordinary care to avoid known or appreciated dangers and also has the duty to discover conditions of danger which a prudent person in the exercise of ordinary care under the attending circumstances would discover. Waddel’s Adm’r v. Brashear, supra. There is no question but that plaintiff did not know the water at the place he dived was only three feet deep. Therefore, while he knew of the danger of diving in three feet of water, he did not have knowledge of the dangerous condition at the place he made his dive. The precise issue thus presented is whether it can be said under all the attending circumstances that as a matter of law plaintiff was negligent in not discovering the dangerous condition, that is, in not discovering that the muddy water was only three feet in depth.

The pool was approximately 200^ feet in length and one fourth of it was set apart from the rest by a rope stretched across the pool. A person reasonably could infer that the portion so set apart was designed for diving as evidenced by the presence of the diving board, and the defendant knew or should have known that in an area so set apart, at least when there were no warning signs, patrons would dive from the sides of the pool as well as from a springboard. Plaintiff apparently was not familiar with the underwater physical features of the pool and could riot, because of the muddy water, see the bottom of the pool, but he was not required to make a critical examination of the facilities, and he was entitled to rely to a certain extent that defendant would not invite him to use a dangerous facility. We are of the opinion that a jury could have found from the facts and attending circumstances that plaintiff was contributorily negligent. In other words, under the evidence defendant was entitled to an instruction on contributory negligence, } and such an instruction was given at its request. However, when the evidence favorable to plaintiff is taken as true and all legitimate inferences deducible therefrom are viewed in the light most favorable to plaintiff, as we must do in determining the issue of plaintiff’s contributory negligence as a matter of law, we cannot say that the legal effect of the evidence is such that negligence on the part of plaintiff is the only reasonable conclusion which could be drawn therefrom.

Defendant cites and relies on several Missouri cases in which contributory negligence as a matter of law was found to exist. We do not disagree with those cases, but the factual situation in each makes them distinguishable. McFarland v. Grau, Mo. App., 305 S.W.2d 91, was a drowning case in which a boy fourteen years of age with known limitations as a swimmer attempted to swim across a lake where he knew the water was deep after telling his companions that he “couldn’t make it.” In Turner v. City of Moberly, 224 Mo.App. 683, 26 S.W.2d 997, another drowning case, a fourteen-year-old non-swimmer, who had been warned to stay away from a lake, swung on a rope over known deep water and fell in. McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33, involved a boy thirteen years of age who walked in front of an approaching train which was in clear and open view. Van Alst v. Kansas City, 239 Mo.App. 346, 186 S.W.2d 762, was another drowning case, but in a pond not designed for swimming. The suit was based on the attractive nuisance doctrine. A boy fourteen years of age who had been forbidden to swim in the pond dived in and was drowned. There was no latent or concealed dangerous condition. In addition, to the above cases defendant cites Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52, 48 A.L.R.2d 97. This also was a drowning case, but the court there expressly held that the issue of contributory negligence was for the jury. The remaining cited case, Richardson v. Ritter, 197 N.C. 108, 147 S.E. 676, is somewhat similar to the pending case on its facts, but apparently in that case the water was not muddy although that is not certain from the rather short and tersely stated opinion. In such event the danger would have been readily apparent to the diver upon only a casual view, and if the facts are otherwise we do not consider that this case does or should represent the majority view.

This is not a case where plaintiff voluntarily exposed himself to the risk of injury from a known dangerous condition, as in Johnson v. Hot Spring's Land & Improvement Co., supra [76 Or. 333, 148 P. 1137, L.R.A.1915F, 689], Neither is it a case where a casual observation on the part of the plaintiff would have revealed the dangerous condition, as in Ryan v. Unity, Inc., Fla., 55 So.2d 117; Day v. Trion Co., 56 Ga.App. 1, 192 S.E. 88; and Stungis v. Wavecrest Realty Co., 124 Neb. 769, 248 N.W. 78. We necessarily conclude that whether plaintiff was contributorily negligent under all the attending circumstances was a jury question, and the trial court did not err in denying defendant’s motion for a directed verdict.

Defendant challenges Instruction No. 3 given at the request of plaintiff. For a better understanding of the contention we shall set forth Instruction No. 3 and the substance of Instructions No. 1, 2 and 5. Instruction No. 1, plaintiff’s verdict-directing instruction, hypothesized certain facts concerning the physical characteristics of the pool, that plaintiff could not see the bottom of the pool because of the muddy water, and that the depth of the water was unknown to plaintiff but the danger was known to defendant. It then submitted as negligence the failure of defendant to warn plaintiff, and it required a finding by the jury “that plaintiff in the exercise of ordinary care for his own safety, could not have discovered the danger of diving in the said area, and was not negligent as submitted to you in other instructions.” At the request of defendant the trial court gave Instruction No. 2 that “the burden of proof rests upon the plaintiff to prove his case by a preponderance or greater weight of the credible evidence, and unless he has done so your verdict will be in favor of the defendant.” Instruction No. 3, given at plaintiff’s request and apparently as a counter-instruction to Instruction No. 2, was as follows: “The court instructs the jury that if you find and believe from the greater weight of the credible evidence the facts to be as submitted to you in Instruction No. 1, then the plaintiff has [met] and carried the burden of proof as required of him under the law and instructions herein.” Defendant now asserts prejudicial error resulted from Instruction No. 3 because it “emphasized plaintiff’s evidence and was inconsistent with and defeated the effect of Instruction No. 5 on the issue of contributory negligence.” Instruction No. 5 submitted that if the jury found that plaintiff came on the premises when it was daylight and visibility was good, that he elected to enter the pool by diving from the wall where no provision was made for diving and where there was a clearly visible notice or sign reading “Shallow 2 feet” which plaintiff saw or should have seen, that plaintiff was sufficiently mature to appreciate the danger and failed to exercise ordinary care, then the jury should find for defendant.

Instruction No. 3 was a cautionary instruction, and generally speaking whether such an instruction is to be given is a matter within the discretion of the trial court. Baccalo v. Nicolosi, Mo., 332 S.W.2d 854; Boedeker v. Wright, Mo., 312 S.W.2d 829. Unless it states an incorrect or inapplicable rule of law, or constitutes an abuse of discretion, an appellate court will not hold such an instruction to constitute prejudicial error. Morris v. E. I. Du Pont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, 42. When we analyze these instructions we find that Instruction No. 1 told the jury what facts it had to find to authorize a verdict for plaintiff unless it found that plaintiff was negligent as submitted in other instructions, and this necessarily referred to Instruction No. 5, the only other instruction on the subject. Instruction No. 2 told the jury that the plaintiff had the “burden of proof” to “prove his case” by a preponder-anee or greater weight of the credible evidence. Instruction No. 3 then told the jury that if it found from “the greater weight of the credible evidence,” that is, all of the credible evidence and not just that in favor of plaintiff, “the facts” to be as submitted in Instruction No. 1, which included the fact that plaintiff was not contributorily negligent as submitted in Instruction No. S, but of which defendant had the burden of proof, then plaintiff had met the burden of proof required of him. This was a correct statement of the applicable law, and we do not see how Instruction No. 3 emphasized plaintiff’s evidence any more than defendant’s evidence. It certainly was not inconsistent with Instruction No. 5.

Defendant cites several cases, such as Thompson v Gipson, Mo., 277 S.W.2d 527, to the effect that it is error to give inconsistent or conflicting instructions, and of course we agree. Such cases do not control the situation here. Defendant also cites Knipp v. Mankin, Mo., 336 S.W.2d 371, but there the instruction was different from Instruction No. 3 in several respects, the most important of which was that it told the jury that plaintiff had met the burden of proof if the jury found “from the credible evidence in favor of plaintiff” the facts to be as submitted in plaintiff’s verdict-directing instruction. We doubt that Instruction No. 3 in this case told the jury anything a reasonably intelligent jury did not already know or would understand from the other instructions. It was not a misdirection, and we see no basis for the contention that it was prejudicial to defendant.

Defendant next challenges Instruction No. 1, plaintiff’s verdict-directing instruction, and asserts that it “conflicted with the instruction submitting the defendant’s defense of contributory negligence.” We experience some difficulty in ascertaining the alleged conflict. Defendant asserts in its argument that Instruction No. 1 “did not properly negate the issue of contributory negligence and was inconsistent with Instruction No. 5” for the reason, if we correctly understand the argument, that it “attempted to negate the issue of contributory negligence merely by requiring a finding that the plaintiff could not have discovered the danger of diving in the area and was not otherwise negligent.” In this manner, defendant says, the instruction “minimized the defendant’s theory of the case set out in Instruction No. 5 on the issue of contributory negligence” and “really failed to require the jury to consider the issues of contributory negligence raised by both the plaintiff’s and the defendant’s evidence” and “told the jury to consider only the evidence favorable to the plaintiff.”

By the submission in plaintiff’s Instruction No. 1 that “if you further find that plaintiff, in the exercise of ordinary care for his oto safety, could not have discovered the danger of diving in the said area” plaintiff assumed a burden not required of him. This was the negative of a basis for finding contributory negligence on the part of plaintiff. Whether plaintiff, could or should have discovered the danger of diving in the area in the absence of any notices or signs was not submitted to the jury as a basis for finding him contrib-utorily negligent. Therefore, plaintiff was not required to refer to that possible submission of contributory negligence or negative it in his verdict-directing instruction. Shepard v. Harris, Mo., 329 S.W.2d 1, 7. It was necessary for plaintiff “to refer to or negative” the submitted contributory negligence. Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 24. The required finding in Instruction No. 1 that “if you further find that plaintiff * * * was not negligent as submitted to you in other instructions” was sufficient “to refer to or negative” the submission of contributory negligence which was made in Instruction No. 5. See Van Buskirk v. Missouri-Kansas-Texas Railroad Co., Mo., 349 S.W.2d 68, 73; Martin v. Kansas City, Missouri, Mo., 340 S.W. 2d 645, 649-650; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 498. The unnecessary phrase in Instruction No. 1 did not conflict with Instruction No. 5, and we find it difficult to see how its inclusion in the instruction could have been prejudicial to defendant. We cannot follow defendant’s argument that by including the phrase the court failed to require the jury to consider the issues of contributory negligence and told the jury to consider only the evidence favorable to plaintiff. That argument to us is a non sequitur.

Defendant next asserts that Instruction No. 1 was erroneous because there was no evidence warranting a finding that one in the exercise of ordinary care “could not have discovered the depth of the water,” and also because it did not negative plaintiff’s knowledge of the danger. We shall first dispose of the latter contention.

The instruction required the jury to find that the water was so dirty and unclean that it “prevented plaintiff from seeing the bottom of the pool,” and that “said depth [of approximately three feet] was unknown to plaintiff prior to his dive.” The dangerous condition consisted of muddy water only three feet in depth in a diving area. Nothing further is necessary to demonstrate that Instruction No. 1 did negative knowledge on the part of plaintiff of the dangerous condition.

As to the objection that there was no evidence that one in the exercise of ordinary care could not have discovered the depth of the water, we note that the submission which was actually made was that “plaintiff, in the exercise of ordinary care for his own safety, could not have discovered the danger of diving in the area.” We previously have stated that the phrase submitting this issue was surplusage to plaintiff’s submission. In addition, it was submitted in the conjunctive, and the fact, assuming it to be so, that there was no evidence to support it would not result in the instruction being prejudicially erroneous. Belisle v. Wilson, Mo., 313 S.W.2d 11. But, in any event, we think it was supported by evidence. The water was muddy and plaintiff could not see the bottom, but he was at a place which one reasonably could assume from the physical characteristics had been set aside for diving. From this evidence it would have been for the jury to determine, at least if the issue had been submitted as a defense by the defendant, whether in the exercise of ordinary care plaintiff could or should have discovered the danger of diving in the area. From the same evidence it would have been for the jury to determine whether he could not have discovered the danger in the exercise of ordinary care.

Defendant also argues that the above phrase, which it asserts was without evidentiary support, “did not properly submit the issue of plaintiff’s contributory negligence,” and that “the jury was not told [in plaintiff’s verdict-directing instruction] that plaintiff’s failure to observe and determine the condition could prevent recovery.” We assume defendant means “negligent” failure to observe. Of course, plaintiff had no duty to “submit the issue” of his contributory negligence. He had only the duty “to refer to or negative” it in his verdict-directing instruction when it was submitted in other instructions, and we have held that he adequately did so.

Defendant next contends that Instruction No. 1 “unduly and improperly made reference to the corporate status of the defendant.” The instruction is somewhat lengthy, but in five places therein the defendant is referred to as “defendant corporation” and in one place as “the defendant Spring Lake Park, Incorporated.” We note that in Instruction No. 5, which was requested by defendant, reference is there made to “the defendant, Spring Lake Park, Inc.”

The defendant is a corporation and that fact was clearly brought out by the evidence. The reference in the instruction to defendant as a corporation told the jury nothing that was not true, and nothing that a reasonably intelligent juror would not have readily known and understood from the evidence. The reference to the corporate status was not made in an inflammatory or argumentative setting. While the instruction, by unnecessary repetition singled out a particular fact, there was no direction or even a suggestion that that fact was to receive any extra or special consideration by the jury or that its existence had any special significance. In this respect the instruction differs from that in Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, cited by defendant, where the instruction singled out one feature of the evidence and instructed the jury that it could take such circumstance into consideration. We cannot say, as a matter of law, that error prejudicial to the defendant resulted in this case. We add this comment. The transcript shows that the first objection to the references in the instruction to defendant’s corporate status was in the motion for new trial when it was then too late for the trial court to take any corrective action other than the drastic course of granting a new trial which was not warranted. While it is true that specific objections to instructions do not have to be made when the instructions are offered in order to preserve the matter for appellate review, they do have to be made at that time if the court is to have an opportunity to remedy those defects which do not result in reversible error. The references in the instruction to the corporate status do not call for reversal of the judgment, but we feel confident that corrective action would have been forthcoming upon a timely request to the trial court.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: DALTON, Presiding Justice.

text:
    STATE of Missouri, Respondent, v. Larry E. FENNER, Appellant.
    No. 48975.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.

      Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Special Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Justice.

The defendant was charged and convicted of the offense of stealing $2000 by deceit and was sentenced to imprisonment in the county jail for one year. See Sections 560.-156 and 560.161 RSMo 1959, V.A.M.S. He has appealed from the judgment entered against him.

The verdict does not specifically find the defendant guilty of the offense, “as charged,” nor of stealing property of the value of more than $50 by deceit; however, the offense of which defendant was convicted is a graded or mixed felony and, in view of the amount charged to have been stolen and the general verdict of guilty, the jurisdiction of the appeal is properly in this court.

Appellant is not represented by counsel in this court and it is our duty to consider the valid assignments of error as set out in defendant’s motion for a new trial. Of course, no assignment of error respecting the sufficiency of the information, verdict, judgment and sentence is necessary upon this appeal because the appellate court is required to render judgment as to these matters upon the record before it. Supreme Court Rule 28.02, V.A.M.R. However the first assignment of the motion for a new trial is that the information does not state facts sufficient to constitute a crime under any statute or under the common law.

Section 560.156 RSMo 1959, V.A.M.S., upon which the prosecution is based, is in part as follows: “Stealing — element of offense. 1. As used in sections 560.156 and 560.161, the following words shall mean: (1) ‘Property’, everything of value whether real or personal, tangible or intangible, in possession or in action, and shall include but not be limited to the evidence of a debt actually executed but not delivered or issued as a valid instrument and all things defined as property in sections 556.-070, 556.080 and 556.090, RSMo; (2) ‘Steal’, to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.

“2. It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit. * * * ” And see the several sections referred to in this statute.

An amended information purporting to charge an offense under this statute was filed in the Circuit Court of Boone County on March 14, 1961, as follows:

“Comes now Larry M. Woods, Prosecuting Attorney within and for the County of Boone and State of Missouri, and upon his official oath informs the Court that Larry E. Fenner on or about the 3rd day of February, 1960, at the said County of Boone and State of Missouri, did wilfully, unlawfully, feloniously and intentionally steal Two Thousand Dollars ($2,000.00), the property of the Columbia Savings Bank of Columbia, Missouri, by means of deceit, and did then and there obtain said Two Thousand Dollars ($2,000.00) as a loan from said bank by falsely and fraudulently representing to said bank that he, the said Larry E. Fenner, was the owner of a certain 1952 Model A. John Deere tractor complete with plow, disc, and cultivator and there were no other mortgages or liens against said tractor, plow, disc, and cultivator, where as in truth and in fact said 1952 John Deere tractor was owned by John Reith of Kirkwood, Missouri, and said plow, disc, and cultivator had been previously mortgaged to Ellsberry Equipment Company of Ellsberry, Missouri; against the peace and dignity of the State.”

This information was not attacked by motion to dismiss, nor was any motion for a bill of particulars filed or ruled. See Supreme Court Rules 25.05 and 24.03. The record does not show any formal arraignment of the defendant; however, that is immaterial since the defendant appeared in person and by attorney and was tried as if he had been arraigned and had entered a plea of not guilty. See Supreme Court Rule 25.04; Section 546.020 RSMo 1949, V.A.M.S.; State v. Ferris, 322 Mo. 1, 16 S.W.2d 96, 99 [6].

The statute in question, Section 560.156 RSMo 1959, V.A.M.S., creates and denounces a new and distinct offense. State v. Zammar, Mo.Sup., 305 S.W.2d 441; State v. Gale, Mo.Sup., 322 S.W.2d 852, 854; State v. Mace, Mo.Sup., 357 S.W.2d 923. Generally speaking, an information charging the commission of an offense that is created by statute is good if it follows the language of the statute, and this is particularly true if the language of the statute which purports to define the crime sets forth all of the constituent elements of the gffense. State v. Varsalona, Mo.Sup., 309 S.W.2d 636, 639[2-3] ; State v. Futrell, 329 Mo. 961, 46 S.W.2d 588, 590. Such is not the case if the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against. We find this statute to be of the latter class. It is vitally important that every man accused of a crime should have a reasonable opportunity to know what he is charged with, and that he not be called upon to meet evidence at the trial which he could not have anticipated from the charge filed against him.

As stated in State v. Mace, supra: “When the Legislature (Laws 1955, p. 507, §§ 560.156, 560.161), for reasons well known to all attorneys familiar with criminal procedure, repealed the multitude of confusing statutes dealing with the many grades and differing definitions, distinctions and penalties fixed for the crimes of larceny, embezzlement, and the fraudulent appropriation of the property of another, and in lieu thereof abolished the theretofore technically described distinctions between those offenses and placed all of them within the general term of ‘stealing’, its purpose and intent were to avoid the many reversals of cases based upon technical grounds. But these statutes do not and could not constitutionally do away with the right of the accused to demand the nature and cause of the accusation made against him. Article I, § 18(a), Constitution of Missouri, V.A. M.S. The requirements of an indictment or information have been thus well stated: ‘First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.’ United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 574, 31 L.Ed. 516. See also United States v. Callanan, 1953, (U.S.D.C., Mo.) 113 F.Supp. 766.”

As to the validity of the information respondent says: “The word ‘steal’ is defined by statute, and the information alleges intentional stealing, by means of deceit, and then sets forth the deceitful means used”; and that this should be sufficient.

It will be noted that the information does not specifically describe the property charged to have been stolen by deceit, nor does it charge that the defendant, on the date mentioned, obtained “$2000 in lawful money of the United States of the value of $2000” from said bank, nor does it specifically describe any other property, tangible or intangible, such as a check, draft, certificate of deposit, credit, et cetera, of the value of $2000, although it is subsequently charged that $2000 was obtained “as a loan from the bank.” Even the term “as a loan” might be considered ambiguous since the information does not expressly allege that the mentioned $2000 was in lawful money of the United States of the value of $2000.

Respondent insists that the essential question before the court is whether the information “properly charges the defendant with the offense of stealing by deceit” ; however, we have reached the conclusion that in view of other defects in this record we need not determine the validity of this information or whether it would be sufficient under the Statute of Jeofails, Section 545.290 RSMo 1959, V.A.M.S., if the record was otherwise sufficient. Instead, we shall consider the sufficiency of the evidence to show any offense under the statute.

Various assignments of error in the motion for a new trial are directed to the sufficiency of the evidence to support the verdict of the jury and error is particularly assigned on the court’s refusal to direct a judgment of acquittal at the close of all the evidence. Supreme Court Rule 26.10. A review of the State’s evidence is required. The State’s evidence tended to show that on February 3, 1960, defendant was indeht-ed to the Columbia Savings Bank of Columbia, Missouri, on a note for $1985 dated December 31, 1959, due and payable thirty days after date and secured by a chattel mortgage of the same date. Across the right end of the face of the note was the typewritten word “tractor”. The property described in the chattel mortgage was as follows: “1952 model A John Deere tractor complete with plow, disc, mower and cultivator.” No further description appears ; no serial numbers were shown. The location of the property was not specifically designated and no one was named as being able to identify the property.

When the note became due and payable the defendant did not pay it, nor did he respond to notices mailed by the bank to him at Ashland, Missouri (the post-office address given on the note). On investigation, a representative of the mentioned bank located the defendant in the Boone County Jail at Columbia, Missouri. On January 19, 1960 (prior to the mentioned date) the defendant had entered a plea of guilty to a charge “of writing an insufficient funds check” and had been fined twenty-five dollars and costs, which fine and costs had apparently not been paid as the defendant was in the Boone County Jail on February 3, 1960. In any event, a representative of the bank interviewed defendant at the jail and defendant requested a new loan to pay off the old one, that is, he asked for further time to pay off the indebtedness evidenced by the note of December 31, 1959.

Defendant was advised that the bank “was not going to carry a machinery loan indefinitely” and that additional security was required, if there was to be any extension of time. Defendant agreed to give some additional security to wit: some sows and pigs and an International truck. Thereupon a new note was prepared, dated February 3, 1960, for $2000 payable “on demand” to the bank, and a new chattel mortgage drawn to include the additional property given as additional security and both were signed by defendant. Since the evidence shows that the note of February 3, 1960, was for the same indebtedness evidenced by the note of December 31, 1959, we assume the $15 increase was accrued interest. In any event there is no evidence that defendant obtained any additional money or credit in any form. Across the left-hand end of the face of the note of February 3, 1960, were the following words:

“1952 John Deere tractor with equiptment [sic]
“4 Hampshire sows and 39 pigs
“2 “ " “ “ increase
“International truck-1953”

The tractor and machinery described in the February 3, 1960, chattel mortgage were the same as in the prior chattel mortgage of December 31, 1959. The sows and pigs were described as was shown on the face of the note, but the truck was described in the chattel mortgage as a “1953 International truck, Engine #13262.” On the face of the chattel mortgage below the described property were the words, “There are no other mortgages or liens against personal property conveyed herein.” There was no further description of the property, no notation as to where it was located or by whom it could be identified. Subsequently defendant’s wife delivered the truck title to the mentioned bank.

The prosecution in question is based upon the mentioned occurrences of February 3, 1960. The evidence shows that the representations in the chattel mortgage, as to the absence of other mortgages and liens, was read to and discussed with defendant prior to the time this chattel mortgage was signed and accepted by a representative of the mentioned bank and the defendant represented that all were free and clear.

At the time defendant signed this new note for $2000 and gave the mentioned additional security the bank did not surrender to him the $1985 note dated December 31, 1959, or place any credits on it, nor did the bank release the chattel mortgage securing the same. A representative of the bank testified that he said to defendant: “Larry, since you are in jail and there might he a question as to whether somebody else got this stuff I will keep this note for you in our files and hold it because I want the protection for us.” The witness also testified: “I told Mr. Fenner at the time that I took the new chattel mortgage that since he was in jail that I did not know whether there were other suits, or something, involved and I was still' going to hold that in my files until that was paid. When that was paid I would release both of them at the same time.”

Thereafter the defendant was unable to pay the note of February 3, 1960. When it became due, the sows, shoats and pigs were taken under the chattel mortgage and sold; however, the bank was only able to locate fourteen or fifteen pigs out of the thirty-nine mentioned in the chattel mortgage of February 3, 1960. Defendant was unable to account for the shortage, unless they were stolen. He further testified that his farm had been sold under foreclosure and his property dissipated. After the sale of the livestock and the truck and after their proceeds had been credited on the note, and after certain other credits were given, a balance of $1500 of principal remained due and unpaid on May 2, 1960. After the sale of the truck and the hogs, the bank undertook to assemble the tractor and other machinery which they believed to be covered by the chattel mortgage. It was assembled and placed at a filling station near Columbia pending a foreclosure and sale of the property under the chattel mortgage. Prior to such foreclosure it was repossessed by other persons who claimed to own it, or under prior chattel mortgages which had been filed in the counties in which the property had previously been located, except the mower, which was in fact owned by defendant. The mentioned mower, owned by defendant, was not subject to any prior liens or mortgages and was shown to be worth $150 to $200. If it should be sold by the bank the proceeds will further reduce the defendant’s indebtedness.

Over defendant’s objections (but for the purpose of showing defendant’s intent to defraud the mentioned bank), the State was permitted to show prior dealings between the Columbia Savings Bank and the defendant. One Harold E. Cox, Vice-President of the Columbia Savings Bank of Columbia, Missouri, testified that he became acquainted with the defendant in November, 1959; that defendant wanted a loan to purchase Christmas trees and Christmas decorations on a thirty-day basis until he could collect his money from the sale of the Christmas trees and Christmas decorations. He wanted to borrow $2000. When advised that security would be required, the defendant stated that he had equipment — tractor, plow and other things free of debt that he could use for security, if a loan could be obtained. He described the equipment as being worth as much as $2000, to wit: A tractor, a cultivator, a plow, a mower and a disc. Thereafter, “a loan” was made in November, 1959. The terms of the loan were for thirty days to give defendant time to get “his merchandise out and collect the money in.” A chattel mortgage was also drawn at that time. A copy of the chattel mortgage was not in evidence, but witness Cox said that it covered a John Deere tractor and the equipment that goes with it — a plow, cultivator, disc, a harrow and a mower. He stated that defendant said the security was free from debt and that defendant represented that he had other equipment, but the loan was made on the items mentioned in the chattel mortgage. Defendant was the only signer on the note and chattel mortgage. The witness did not remember the exact date “the loan” was made, but he thought it was in November 1959. Defendant paid $15 on this loan and applied for a new loan to pay off the balance due. A new loan in the amount of $1985 was made on December 31, 1959, for that purpose, as stated. Over defendant’s objections, the note and chattel mortgage of December 31, 1959, were identified and offered in evidence, and there was testimony that the prior note and chattel mortgage (executed sometime in November 1959) were released and delivered to defendant.

Except for the testimony that a “loan was made” to defendant, we find no evidence offered by the State as to how or by what means or in what form or manner the defendant received the original loan, that is, as to whether he was given $2000 in lawful money of the United States of the value of $2000; whether he was given a check, a draft or a deposit slip or credit with the bank for such a sum.

After the court had permitted the State to show how the original indebtedness was incurred and the execution of the successive documents evidencing the indebtedness, the defendant testified that after the original loan was made to him and the negotiations completed in November 1959, “I got up and I walked over to the window over there and I told the lady I would like to draw out about $400.00, that I had some Christmas tree lights and bulbs coming in from Kansas City. She gave me the money and I walked out of the bank.” This is the only evidence we find in the record that defendant received anything at any time, except as might be inferred from the words “made a loan.”

In determining the sufficiency of the evidence to make a case for the jury we consider only the State’s evidence in support of the verdict returned. We consider the State’s evidence as true, together with such legitimate inferences as may reasonably be drawn therefrom. State v. Green, Mo.Sup., 305 S.W.2d 863, 870 [10, 11]. Hence we need not here review defendant’s evidence tending to show that the machinery attempted to be repossessed by the bank was not the property intended to be covered by the chattel mortgages, nor do we need review the testimony of the defendant as to his ownership of a tractor and other machinery that met the descriptions in the chattel mortgages, and that the tractor, free and clear of liens, was located in another county.

We find no evidence in the record to support the verdict of guilty of stealing by deceit on the date charged and submitted (February 3, 1960). How did defendant violate the statute? What did he obtain? He received no cash or credit. No extension of time was granted. Defendant was not guilty of stealing by deceit on the date charged. The bank retained the old note of December 31, 1959, which bore interest of eight per cent, and received a new demand note with additional security. There was also an agreement that the prior note was not to be surrendered or the chattel mortgage satisfied until the note of February 3, 1960, was paid. The bank, on the added collateral, realized some $500 and the mower has not yet been sold.

The court erred in overruling defendant’s motion for judgment of acquittal offered at the close of all the evidence.

The judgment is reversed.

All concur.