author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Herman Charles DEUTSCHMANN, Appellant.
    No. 51014.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Brick P. Storts, III, Asst. Atty. Gen., for respondent.
    No brief filed for appellant.
   HOLMAN, Judge.

Defendant was charged with and found guilty of the offense of burglary in the second degree. Since it was alleged and proved that defendant had been convicted of a prior felony the court determined his punishment which was fixed at imprisonment in the penitentiary for a term of eight years. See §§ 560.070, 560.095(2), and 556.-280. (All statutory references are to RSMo 1959, V.A.M.S.) Defendant has appealed.

Defendant was charged with the burglary of a building occupied by Post 3060 of the V.F.W. which was located at 1043 Kienlen Avenue in Hillsdale, St. Louis County, Missouri. The evidence indicated that when the building was closed by an employee on the night of December 2, 1963, all windows and doors were closed and locked. When another employee arrived to open the building at 7 a. m. the next day he found the glass had been broken in a rear door and the hasp used in connection with a padlock thereon had been cut and the door was partly open. Upon entering the building he found that a cigarette machine had been broken into and its coin box was on the floor. The coin box of a coin-operated pool table had been removed from its usual place and was lying on the table. The employee notified the police, and the marshal of Hillsdale and also a detective from the county police arrived in a short time and made an investigation. An expert in identification searched for fingerprints and “lifted” several latent prints from the coin box on the pool table.

Defendant was arrested on January 27, 1964, and his fingerprints were taken. Those prints were admitted in evidence as State’s Exhibit 7. Defendant’s fingerprints and the prints obtained from the coin box were compared by David Wendel, a detective with the identification bureau of the county police, who expressed the opinion that the print from defendant’s right middle finger was identical with the one taken from the coin box. Enlarged photographs of these two prints were admitted in evidence as State’s Exhibit 8.

Sergeant Glen Kirchhoff of the Bureau of Identification of the County Police Department also testified as a fingerprint expert. He stated that fingerprints develop about two months before birth and never change. He also testified as follows: “Q. Through the development of fingerprinting and fingerprint identification, to your knowledge, are there any cases on record where two fingerprints have been found to be identical vyherein those prints belong to different individuals? A. No, sir.” Sergeant Kirchhoff further testified that he had examined the print from defendant’s right middle finger and the one taken from the coin box and that those prints were definitely identical.

No evidence was offered by the defendant.

Defendant has filed no brief and we will therefore consider the contentions properly raised in his motion for new trial. State v. Meller, Mo.Sup., 387 S.W.2d 515.

We will first consider the assignment that the State failed to make a submissible case. There is no question but that a burglary was proved. However, the evidence connecting defendant with the burglary is circumstantial. In that situation, the facts and circumstances relied upon by the State to establish guilt “must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.” State v. Walker, Mo.Sup., 365 S.W.2d 597, 601. We think the evidence was sufficient to comply with the strict requirements of the quoted rule. There was evidence that defendant was not a member of Post 3060 and had never been seen in the building as a guest or customer. The coin box of the pool table was not normally placed where customers would touch it. Therefore, when a fingerprint identified as that of defendant was found on the coin box after it had obviously been handled by the burglar, such evidence was not only consistent with the hypothesis of defendant’s guilt but inconsistent with any reasonable hypothesis of his innocence. We accordingly rule that the trial court properly overruled defendant’s motion for a directed verdict.

Another assignment in the motion complains of the action of the court in permitting the witnesses to testify that “the alleged fingerprint found on the scene was the fingerprint of the defendant, for the reason that the proper foundation had not been laid for the answer of the said hypothetical question.” An examination of the transcript shows that no objection was made to the testimony of the two witnesses who gave the expert testimony complained of. In that situation the alleged error is not preserved for appellate review. State v. Slaten, Mo.Sup., 252 S.W.2d 330.

Assignment No. 4 is as follows: “The court erred in failing to take judicial notice of the fact that a juror slept during a portion of this trial. This issue is raised by the defendant at this time with the knowledge that there is nothing presently in the record showing such conduct on the part of the juror, but the defendant desires to make a record on this point, and further urges the Court that he was in a tactical position in the trial wherein it was impossible to make a record of this juror’s misconduct at the time.” Defendant did not mention this matter during the trial and offered no proof of it when the motion for new trial was heard. He did offer to make proof of that fact at the time of allocution but such was denied. At that time the court stated, “I did not know that any juror was sleeping.”

We consider the assignment to be without merit. Defendant, having failed to mention the matter during the trial or to offer proof thereof upon the hearing of the motion for new trial, has failed to preserve the alleged error for review. The offer of proof at the time of allocution came too late. Moreover, the specific complaint is that the court erred in failing to take judicial notice of the fact. The judge stated that he did not have knowledge of the alleged fact that the juror was sleeping and hence it is apparent that he could not have taken judicial notice thereof.

Defendant next contends that the court erred in admitting in evidence State’s Exhibits 6, 7, and 8 for the reason that a proper foundation had not been laid for their introduction and a proper chain of custody had not been established. Exhibit 6 is the fingerprint which was taken from the coin box. Exhibit 7 is the card containing all of defendant’s fingerprints. No objection was made to the admission of either of those exhibits and hence the assignment of error, made for the first time in the motion for new trial, must be denied. Exhibit 8 is an enlarged photograph of the print taken from the coin box (No. 6) and the print of defendant’s right middle finger taken from Exhibit 7. When Exhibit 8 was first offered defendant objected that there had not been proof as to who took the photographs and as to how the exhibit had been prepared. Thereafter, the witness testified in detail as to the photography and manner of preparing the exhibit. When the exhibit was again offered no objection was made. In that situation it is apparent that no error occurred in admitting the exhibit in evidence.

Instruction No. 2 reads as follows: “You are instructed that the intent with which an act is done is one of the facts for you to determine from all the evidence in this case. This intent need not be proved by direct and positive testimony, but in the absence of such testimony, it may be inferred by you from all the facts and circumstances in evidence surrounding and attending the act having reference to and bearing upon the question of intent, if you find and believe from the evidence beyond a reasonable doubt that such facts and circumstances have been proved in this case.” Defendant contends the court erred in giving that instruction because “the State’s case was based solely on circumstantial evidence and in such a case it is improper to permit the jury to infer any necessary element of the crime, they being required to preclude any other reasonable hypothesis other than defendant’s guilt.” The giving of an almost identical instruction was approved in State v. Mulconry, Mo.Sup., 270 S.W. 375 [8]. It is elementary that intent need not be proved by direct testimony but may be inferred from the facts and circumstances. State v. Smith, Mo.Sup., 357 S.W.2d 120. The court in this case properly gave an instruction on circumstantial evidence. It was also proper to give Instruction No. 2 on the question of intent. Those two instructions are not in conflict and neither diminished the effect of the other. We accordingly rale that the court did not err in giving Instruction No. 2.

Defendant also contends that the court erred in giving Instruction No. 4 which is the usual instruction on burden of proof given in most criminal cases. His complaint relates to the portion which reads, “ * * * but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.” It is said that that language “tends to lessen the burden of proof required of the State.” The instruction here involved has been repeatedly approved by this court. The contention heretofore stated, and similar contentions, have been ruled adversely to defendant in State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22 [7]; State v. Turner, Mo.Sup., 320 S.W.2d 579 [10]; and State v. Williams, Mo.Sup., 376 S.W.2d 133 [3], This point is without merit and is disallowed.

Assignment No. 7 alleges that the court erred in giving Instructions 5, 6, 7, and 8 because they “did not fully, correctly and adequately state the law of the case.” This assignment is too general to preserve anything for appellate review. State v. Pinkerman, Mo.Sup., 349 S.W.2d 951[2]; State v. Johnstone, Mo.Sup., 335 S.W.2d 199[11],

We will next consider the assignments relating to alleged errors occurring during the argument of counsel. During his argument defendant’s attorney stated that the county police department had defendant’s fingerprints on file on December 3, 1963. The court sustained an objection to the effect that such was not the evidence and instructed the jury to disregard the statement. Defendant contends that the court erred in that ruling. An examination of the transcript discloses that defendant was in error and that the court ruled correctly. Sergeant Kirchhoff (whom defendant said gave the testimony) actually testified as follows: “Q. Do you know, Sergeant Kirchhoff — you are in charge of the records there — whether on December 3, 1963, St. Louis County Police Department had the defendant’s fingerprints on file at that time? A. I don’t believe they were on file December 3rd.” At the time of the ruling heretofore discussed the defendant requested that the court instruct the jurors that it was their prerogative to remember the evidence. The court failed to do so and defendant contends that such was error. We do not agree. It was entirely within the discretion of the court as to whether or not it would give the admonition requested.

In his closing argument the assistant prosecuting attorney discussed the argument of defendant in some detail and attempted to answer the same. At one point, after discussing the failure of defendant to prove his contentions, he stated, “[Why] does he wait until the case is entirely finished and then try to confuse you?” The court failed to rule on defendant’s objection to that statement. A short time later, in continuing his answer to defendant’s argument, the State’s attorney said, “Why should there be a distortion of the facts?” Defendant objected and requested that “the jury be instructed to remember the evidence.” The court overruled the objection but stated, “The jury is the sole judge of the evidence.” The defendant contends that the ruling (or failure to rule) on those two objections constituted prejudicial error. It will be noted that defendant did not request a mistrial or that counsel be reprimanded. We also observe that the court complied with the only affirmative relief defendant requested. “Whether or not the remarks of counsel are improper, and whether or not improper remarks are prejudicial under the facts of the particular case * * * are matters which rest very largely within the trial court’s discretion, and the appellate court will not interfere unless the record shows an abuse of such discretion to the appellant’s prejudice.” State v. Green, Mo.Sup., 292 S.W.2d 283, 288. We see nothing in the record before us to indicate that the court abused its discretion in the instances complained of. This assignment is overruled.

During his argument the assistant prosecuting attorney also stated, “They knew in December the man that they were looking for.” Defendant contends that the court erred in overruling his objection to the effect that such was not supported by the evidence. There was evidence that defendant had been arrested (and, we infer, released) on December 21, 1963. Also, Detective Wendel testified as follows: “Q. And then did you know at the time before Randolph had him in to be fingerprinted on January 27th the man that you were looking for was Deutschmann? A. Yes, sir.” While the evidence to support the statement complained of is not specific, we have concluded that it was sufficient to warrant an argument, i. e., a contention that such was the fact. This point is ruled adversely to defendant.

Defendant also contends that the court erred in failing to sustain his objection to the following argument of the assistant prosecuting attorney: “Mr. Shaw says, ‘where is the glass ?’ And then in the other sentence he says, ‘undoubtedly something was used other than a bare hand to break the glass.’ Do you think that this defendant is going to break the glass by putting all of his prints up there and then pushing it through ? And then — Mr. Shaw: That is a misquote. I object to counsel misquoting my argument. It’s outside the evidence. I said in lifting the pieces out. I didn’t say break the glass with his fist. This is outside certainly the scope of my argument. I object to this. Mr. Settich: I have a note to the effect that Mr. Shaw said ‘undoubtedly something else other than the hand was used.’ The Court: You may continue your argument.” We think the argument complained of was substantially in answer to the following argument of defendant: “The glass had to be removed. Glass doesn’t come that cleanly out of a hole. You know that if you have got a broken window. Whoever did it did it so they wouldn’t be cut obviously. Where is the glass? It must have been around there. Maybe they found it, maybe they didn’t. I don’t know. But if they found it his fingerprints weren’t on it you can bet your bottom dollar on that.” We rule that the court did not err in failing to sustain defendant’s objection.

During the argument of defendant’s attorney the following occurred: “This bartender with the great memory is the one that thought I tried the preliminary hearing in this case when my assistant Mr. McNary did. Mr. Settich: If your Honor please, there is no evidence in this case * * * who tried the preliminary hearing. For that reason I ask the jury be instructed to disregard it. The Court: Objection will be sustained and the jury is so instructed to disregard the remarks of counsel.” Defendant contends the ruling was erroneous and tended to establish “the credence of this witness in the eyes of the jury by the court.” This contention relates to the following testimony by Mr. Benny: “Q. Have you ever seen me before, Mr. Benny? A. Yes. I think last time when the preliminary testimony — Q (by Mr. Shaw). I conducted a preliminary hearing. You say you saw me at the preliminary hearing ? A. Yes. Q. What did I do at the preliminary hearing? A. I — oh, I don’t remember everything * * * Q. Did I ask you some questions? A. A few questions. Q. Now, Mr. Benny, if I told you that my assistant conducted the preliminary hearing and that I didn’t, would that refresh your memory any? A. I don’t remember. Q. Well, did I conduct the preliminary hearing over there, Mr. Benny? A. I don’t remember; honestly, I don’t remember. Q. Well, if I didn’t, you were mistaken that I was over there, is that right? A. Perhaps. Q. So, have you ever seen me before? A. No.” While it would appear that there was a reasonable basis for defendant’s argument it is also true, as the court ruled, that there was no evidence as to who represented defendant at the preliminary hearing. As we have indicated, the court has a wide discretion in keeping oral argument within proper limits. We are of the opinion that the ruling in this instance was not an abuse of discretion and would not constitute reversible error.

Another assignment relates to the following: “Mr. Settich: * * * Mr. Shaw says that there are other types of cases and the eourt in this case has given a circumstantial evidence instruction. Let me tell you this: the circumstantial evidence instruction in this case was given at the request of the defendant. Mr. Shaw: Your Honor, I am going to object to that. The Court is required under the law to give it in a case of this type. These are the Court’s instructions, they are not my instructions. I am going to ask the Court to so admonish Mr. Settich for such a statement. * * * The Court: I have not heard that these were not my instructions. The argument was that it was given at your request. They are the Court’s instructions. The Court has so informed the jury and does so again.” Defendant contends that the court’s ruling was prejudicial because “said argument could only detract from the importance and respect due an instruction given by the Court; and said error was further compounded by the Court in its comments following said objection, to the effect that said instruction had been submitted by the defendant.” We agree that Mr. Settich should not have stated that the instruction was given at the request of defendant. We have the view, however, that the incident did not constitute prejudicial error. In that connection it should be noted that the court did not say that the instruction was given at defendant’s request but merely repeated the attorney’s statement. Moreover, the court again reiterated that the instructions are the “court’s instructions.” We think the court’s statement would cure any damage that might otherwise have resulted from the statement of the assistant prosecuting attorney.

All of the remaining assignments relate to the allegation and proof that defendant had been priorly convicted of a felony and imprisoned therefor. It is first said that the proceeding under § 556.280 violated defendant’s constitutional rights because it deprived him of his right to have all factual issues in the case determined by the jury. This and other similar attacks upon the constitutionality of § 556.280 have been ruled adversely to the defendant in the following cases: State v. Morton, Mo. Sup., 338 S.W.2d 858; State v. Griffin, Mo.Sup., 339 S.W.2d 803; State v. Wolfe, Mo.Sup., 343 S.W.2d 10; State v. Williams, Mo.Sup., 343 S.W.2d 58, and State v. Brownridge, Mo., 353 S.W.2d 715. Since the point has been previously decided by this court we need not extend this opinion by further discussion thereof.

Section 556.280(2) provides that “[e]vidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.” The court held a hearing (out of the hearing of the jury) on the issues relating to the prior conviction and imprisonment at the conclusion of the presentation of the State’s evidence. Defendant now contends that said hearing was not held at the proper time and hence the court erred. He contends that the hearing should have been conducted and the issues relating to that phase of the case determined before the commencement of the voir dire examination of the jury panel. This for the reason that if the finding is against the prior conviction and imprisonment so that the jury would determine the punishment the defendant would then have the opportunity to examine the veniremen on voir dire relating to the question of punishment. The contention presents an interesting question but it is one which need not be decided in this case. It is our view that defendant is not in a position to raise that question on appeal since the proof clearly showed his prior conviction and imprisonment and his case was actually submitted to the jury for determination of guilt only.

Defendant also contends that the court erred in admitting in evidence State’s Exhibits 9 and 10 because no proper foundation had been laid for the introduction thereof. We do not know just what deficiency defendant intended to refer to in stating that “the proper foundation had not been laid” for the admission of said exhibits. We have, however, 'examined the exhibits and find that they were admissible. Exhibit 9 is a certified copy of a judgment of the Circuit Court of the City of St. Louis which discloses that defendant was convicted of assault with intent to rob and sentenced to 'imprisonment in the Intermediate Reformatory for a term of two years. This exhibit was duly certified in accordance with the provisions of § 490.130 and hence was properly admitted.

State’s Exhibit 10 is a duly certified copy of a “Certified Transcript of Serial Record” which discloses that defendant was received by the Department of Corrections on June 29, 1954, and was released on September 24, 1955. We have frequently held that such a record is admissible. State v. Burns, Mo.Sup., 328 S.W.2d 711. We rule that the court did not err in admitting Exhibit 10.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error with respect to the sufficiency of the information and verdict. However, in our examination of the transcript we have discovered that the trial court failed to make any finding upon the issue of defendant’s prior conviction and imprisonment. As we have stated, the evidence on that issue was offered and admitted and all proceedings occurring thereafter were the same as if affirmative findings had been duly entered. The situation here is similar to that which existed in State v. Collins, Mo.Sup., 383 S.W.2d 747. We think the procedure outlined in Collins should be followed in this case. We therefore declare the sentence herein to be void.

The judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it and to hold a hearing on the issue of the applicability of the Habitual Criminal Statute in this case, at which either side may present additional evidence. If, at the conclusion of said hearing, the court shall enter a finding, as alleged in the amended information, that defendant was duly convicted “of the offense, Assault with Intent to Rob, a felony, and in compliance with said conviction was duly sentenced to serve a term of two years in the Missouri Intermediate Reformatory, and in compliance with said conviction and sentence, the said Herman Charles Deutschmann was duly received at and imprisoned in the said reformatory,” the court shall then proceed to pronounce sentence and judgment against defendant, taking all proper procedural steps required therefor by law and the rules of this court. In the alternative, if the Habitual Criminal Statute be found inapplicable to the defendant, the court shall grant him a new trial on all issues.

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent (Plaintiff), v. Frank KLIPSCH, Jr., et al., and Maroon Brothers, Inc., a Corporation, Defendants, Maroon Brothers, Inc., a Corporation, Appellant.
    No. 50764.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Robert L. Hyder, Jefferson City, C. J. McEnery, Jr., Kirkwood, for respondent.
    Louis A. Robertson, Robertson, Baker & DeVoto, St. Louis, William L. Mason, Jr., Galena, for appellant.
   WELBORN, Commissioner.

The State Highway Commission brought suit to condemn property in St. Louis County for the construction of Interstate Route 55. A tract of 6.255 acres was taken from Maroon Brothers, Inc. Commissioners awarded Maroon $66,968 damages. Both the Highway Commission and the owner excepted to the award. The owner claimed damages in excess of $111,000 and offered evidence in support thereof. A jury returned a verdict of damages of $55,000. After its motion for new trial had been overruled, the owner appealed. Because of the amount in dispute we have jurisdiction.

Respondent has moved to dismiss this appeal on the grounds of the inadequacy of the statement of facts in appellant’s brief. Although appellant states that the purpose of the abbreviated statement is to present only those facts relevant for determination of the issues presented on the appeal, as required by Civil Rule 83.05(c), V.A.M.R., the statement is quite sketchy and hardly adequate for such purpose. However, respondent has supplied a complete factual statement and the harsh penalty of dismissal of the appeal should not be invoked. Cammarata v. Payton, Mo.Sup., 316 S.W.2d 474, 481 (6).

The property here in question is located at the northwest corner of the intersection of Bayless Road and the Missouri Pacific Railroad tracks. Frank J. Maroon, apparently an officer of the corporate owner, gave the property taken a value of $111,-165.12, based on an average value of 40‡ per square foot. Expert appraisers testifying on behalf of the owner gave the property a value of $125,000, $137,650 and $160,000. Condemnor’s expert witnesses gave the property a value of $38,600 and $37,300.

The first objection by appellant relates to the condemnor’s introduction of evidence pertaining to sales of property 6)4 miles from the property -taken. Appellant’s witnesses testified that the highest and best use for the tract taken was commercial, such as for a neighborhood shopping center or for parking space for an adjacent shopping center owned by appellant and developed subsequent to the taking. Appellant’s witnesses compared the value of the property for such purpose with that of a four-acre tract 1)4 miles away, which sold in the spring of 1960 for $25,000 per acre for development as a shopping center and on which the Reavis Barracks Shopping Center was subsequently constructed.

The Commission’s witnesses compared the value of the tract taken with that acquired for the South County Shopping Center in the vicinity of Highway 67 and Lindbergh Boulevard, approximately 6i/2 miles from the tract here under consideration. Appellant objected to testimony regarding sales for the South County Center tract on the grounds that the property involved was too remote from the Maroon property to afford any proper basis for a comparison having probative value. The objection was overruled and the testimony admitted. Appellant renews its objection on this appeal.

“Evidence of the sale price of property similarly located to that involved, and made in the neighborhood reasonably near the time of the taking, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of his property. Markowitz v. Kansas City, 125 Mo. 485, 28 S.W. 642; Kansas City & Grandview Railway Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853. The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property may be adaptable. In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge.” In re Armory Site in Kansas City, Mo.Sup., 282 S.W.2d 464, 473 (22-25). See also Jackson County v. Meyer, Mo.Sup., 356 S.W.2d 892, 894(1); State ex rel. State Highway Commission v. Bruening, Mo.Sup., 326 S.W.2d 305; Union Electric Company v. Jones, Mo.Sup., 356 S.W.2d 857, 862(10, 12); City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839, 850(26-27); St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 26 L.R.A. 751; 5 Nichols on Eminent Domain, Sec. 21.31(1), pp. 446-451.

These cases speak in terms of “same general locality” (Jackson County v. Meyer, supra) and “proximity of the property” (Union Electric Company v. Jones, supra) and “in the neighborhood” (In re Armory Site in Kansas City, supra). These are all flexible terms of no fixed meaning. “It cannot be said * * * as a matter of law how large an area, in feet or blocks, constitutes a neighborhood, and no hard and fast rule can be laid down on the subject.” Nichols, op. cit., p. 448. Proximity is merely one factor to be considered in determining whether or not the property is comparable to that taken in condemnation. Here appellant’s evidence was that the highest and best use of the property was for a shopping center. Therefore, sales for shopping center purposes became particularly significant for purposes of comparison. City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 856-7(5). Although shopping centers are becoming more and more numerous, their number is somewhat limited by the very nature of the purpose which they are designed to serve. As a result a distance which may well be too remote for the comparison of urban residential property might well not encompass more than one actual shopping center or site for such use. Appellant offered evidence of a sale 11/2 miles away. The sites compared by respondent’s witnesses were in the same general vicinity in St. Louis County. We would not hold the ruling of the trial court error simply on the grounds that 614 miles was such a distance as to make the comparison devoid of probative value.

In addition to the Reavis Barracks Shopping Center transaction, appellant introduced evidence of a sale for $84,000 in June, 1961, of a 7^4-acre tract, referred to as the “Miller tract,” fronting on Bay-less Road a short distance to the east of the subject land. One of appellant’s expert witnesses testified that the Maroon tract “from a commercial standpoint * * * (was) much better, as far as location goes.” Another testified that he did not consider the Miller tract comparable and rejected that transaction because the property was not commercial property. Mr. Maroon testified that the sale of the Miller tract would indicate the value of land in the area, but that it was not comparable with the Maroon tract. Appellant’s witnesses who testified about the Miller tract were interrogated about the subsequent sale of residential lots from the Miller tract, but they were generally unfamiliar with such sales.

One of respondent’s witnesses testified that he was familiar with the Miller tract; that approximately one acre of that tract had subsequently been plotted into eleven home sites; that the value of the residential area was $38,500 and the remaining usable 5i4 acres of the Miller tract were worth $46,500, a total of $85,000. Another of the Commission’s witnesses testified that, in his opinion, a filling station site at the Reavis Barracks Shopping Center site was worth $35,000.

As to the testimony of both of respondent’s witnesses, appellant objected at the trial on the grounds that the witnesses should not be permitted to express their opinions as to the value for specific purposes of a portion of property involved in a comparable sale, but must take the entire tract into consideration.

Condemnor’s witnesses were seeking to point out the dissimilarities between the Maroon tract and the tracts involved in transactions offered by appellant as comparable. However, the “witness cannot state his opinion of the value of neighboring land. If the price at which such land was sold is in evidence and bears against his own contention, he may, within reasonable limits, point out the difference between the two lots, but he cannot state his opinion upon the effect of the differing features or upon the elements of value of the two lots. The rule is strict; if the jury is to be aided by evidence in regard to property similarly situated, it must be by facts and not by opinions.” 5 Nichols, op.cit., Sec. 18.45(1), p. 270. See State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo. Sup., 366 S.W.2d 329; City of St. Louis v. Sheahan, 327 Mo. 305, 36 S.W.2d 951.

In admitting evidence of comparable sales on the issue of value, we follow what is generally known as the Massachusetts Rule. 32 C.J.S. Evidence § 593(3)a, pp. 730-731. See Annotation 118 A.L.R. 869 and 85 A.L.R.2d 112. In Massachusetts, the rule is well-established that a witness may not testify as to his opinion of the value of comparable land. In Old Colony R. Co. v. F. P. Robinson Co., 176 Mass. 387, 57 N.E. 670, evidence of the sale of a lot with a residence and stable upon it was introduced without objection in the condemnation of a vacant lot. The court stated:

“After such testimony is before a jury without objection, there is no good reason why the party that introduced it should not be permitted to point out the difference between the two estates, for the purpose of giving the evidence its true value, if it can be done without embarrassing the case with the collateral issues. The question now before us is whether in such a case the opinion of experts may be received in regard to the effect, upon the value of the estate sold, of features wherein it differs from the estate whose value is to be ascertained, or their opinion in regard to any elements of value which enter into the price, for the purpose of aiding in applying the' evidence of the sale to the issue before the jury. The rule has been held very strictly that the opinion of experts as to the value of other lands is not to be received. In Wyman v. [Lexington & W. C.] Railroad Co., 13 Metc. (Mass.) [316] 327, Mr. Justice Dewey uses language as follows: ‘Evidence of mere opinion as to the value of property is to be confined exclusively to the subject in reference to which damages are claimed. If you would aid the jury by reference to other articles or other property similarly situated, the evidence in reference to such other articles or other property must be that of facts, and not opinions. It is only by reference to facts that exist respecting the property that a comparison is to be made that may aid the jury in estimating the value of the property in reference to which they are to assess damages. To allow anything beyond this would be unnecessarily sanctioning the introduction of evidence of opinions of witnesses, — evidence always somewhat objectionable in its character, and to be excluded as far as it is practicable.’ This doctrine has often been recognized and reaffirmed in later cases. Rand v. Inhabitants of Newton, 6 Allen [Mass.], 38; Shattuck v. [Stoneham Branch] Railroad, 6 Allen [Mass.], 115; Phillips v. Inhabitants of Marblehead, 148 Mass. 326-328, 19 N.E. 547; Thompson v. City of Boston, 148 Mass. 387, 19 N.E. 406; Roberts v. City of Boston, 149 Mass. 346-354, 355, 21 N.E. 668; Haven v. Board of Com’rs, 155 Mass. 467, 29 N.E. 1083; Beale v. City of Boston, 166 Mass. 53, 43 N.E. 1029. It may sometimes happen, as in the present case, that the opinion of experts as to the value of some distinctive features of the property, in which it differs from the estate taken, would be helpful to a jury; but ordinarily it would be distracting to a jury to take the opinion of experts as to the value of other lands which are compared with the land in question. It would be difficult to draw a line of distinction between cases which are to be treated as exceptions, and those in which the general rule is to be applied. We are of opinion that it is unwise to introduce an exception in cases like the present, and that it is better to hold the rule absolutely, and leave the jury to judge for themselves in regard to the two estates compared, whatever differences may exist between them. Sales of other estates should not be admitted in evidence unless the similarity of these estates to that in question is such as to make the evidence helpful without aid from the testimony of experts. Differences may be pointed out to a jury, but the effect of these differences should be left to their judgment.”

See also Iris v. Town of Hingham, 303 Mass. 401, 22 N.E.2d 13, 16-17(8-10); McCabe v. City of Chelsea, 265 Mass. 494, 163 N.E. 255(1, 2).

Here, the opinion evidence of the value of the portion of the Miller tract adaptable for residential development and of the portion of the Reavis Barracks Shopping Center adaptable for filling station use would serve to confuse the issues and to divert the minds of the jurors from the essential issues which they were to determine. In our opinion, the rule enunciated in Old Colony is salutary and should be applied in this case. Under such rule, the admission of the testimony was erroneous. That it was prejudicial to appellant is obvious. On the Miller tract, for example, deduction of the value placed by respondent’s witnesses on the residential area from the sale price gave to the balance of the usable portion of the tract a value of less than $9,000 per acre, although the sale price for the entire tract was in the vicinity of $12,000 per acre. The jury’s verdict gave the Maroon tract a value of approximately $9,000 per acre.

The final assignment of error arose out of testimony by Mr. Maroon and other witnesses on behalf of appellant that, although the highest and best use of the tract was for a shopping center, it might also have been put to good use to provide additional parking area for an adjacent existing shopping center owned by appellant. One of appellant’s witnesses testified that the shopping center needed additional parking. Mr. Maroon testified that the adjacent shopping center had 217 parking spaces.

One of the Commission’s expert witnesses testified that during a luncheon break while the trial of the exceptions to the Commissioners’ report was in progress (December 17-20, 1963), he observed the adjacent Maroon shopping center and found 41 cars parked in the parking area there provided. The witness also testified that he found no difficulty in parking there the Saturday before the trial began. Appellant’s objection that testimony regarding an existing shopping center at the time of the trial was too remote and subsequent to the taking and had no bearing on the value of the property as of the date of the taking was overruled. That ruling is here challenged as erroneous.

Of course, appellant’s witnesses opened the subject of the use of the property in conjunction with a shopping center developed subsequent to the taking. Appellant, having opened the subject, may not complain of respondent’s effort to rebut its testimony in such regard. Vanneman v. W. T. Grant Co., Mo.Sup., 351 S.W.2d 729, 731(3).

On this appeal, appellant’s objection is somewhat different from that raised in the trial court. Appellant contends that the effect of the testimony was to raise a question in the jurors’ minds as to whether, had the property had a commercial use as stated, such use would be particularly needful or profitable. Appellant cannot enlarge upon the objection raised in the trial court. The question of injecting the potential profitablility of the use was not raised and an objection on such basis may not here be raised for the first time. Dyer v. Globe-Democrat Publishing Co., Mo. Sup., 378 S.W.2d 570, 582.

Reversed and remanded.

HOUSER and HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Kenneth C. MERRIMAN, Respondent, v. BEN GUTMAN TRUCK SERVICE, INCORPORATED, and Liberty Mutual Insurance Company, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellants.
    No. 50993.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Quinn & Quinn, William B. Quinn, Julia M. Quinn, St. Louis, for respondent.
    Edw. C. Friedewald, St. Louis, for other appellants.
    Norman H. Anderson, Atty. Gen. of Missouri, Irving L. Cooper, Sp. Asst. Atty. Gen., Clayton, for appellant, Treasurer of State of Missouri, as Custodian of Second Injury Fund.
   HIGGINS, Commissioner.

Appeal by employer, insurer, and custodian of Second Injury Fund from a judgment of the circuit court reversing a final award of the Industrial Commission, which award denied compensation. Appellant custodian is a state officer and we have jurisdiction. Art. V, § 3, Mo.Const., V.A.M.S.; Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241; Grant v. Neal, Mo., 381 S.W.2d 838.

On July 6, 1962, respondent was 29 years old, 6 feet tall, weighed around 195 pounds, and had been a truck driver for about six years. He had gone to work for Ben Gut-man Truck Service, Incorporated, around the middle of June, 1962, from previous employment of five years with Marine Petroleum Company. His job consisted of driving trucks and making local delivery of freight. His truck or trailer would be loaded overnight and each morning he would receive delivery tickets which showed where and what he was to deliver. Upon arrival at a delivery point he moved the freight from the forward part of the truck to the tail gate where it was taken off by employees at the place of delivery.

On July 6, 1962, respondent arrived for work at 8:30 a.m. and started making his deliveries. He made a couple of deliveries on Hall Street and then arrived at Wilson Truck Line around 11 a.m. The shipment to be delivered at Wilson was in the front of the trailer and consisted of several pieces. He had to move a round coil of rope to get to the boxes and containers. The rope had fallen over on the Wilson shipment because the load had shifted from its original placement. In the words of respondent, “ * * * the freight usually when they take off, it is stacked; when you make a couple stops, well it shifts, if it is not tied, it shifts, that is what happened. This coil of rope lying on top of the containers I had to take out and I had to step over these other boxes in order to get to this rope to throw it over out of my way so I stepped one foot forward, my right foot forward, stepped up. on another container and when I reached down to get the coil of rope, * * * three feet, three and a half feet in diameter, about twelve, fourteen inches thick, just a coil of rope wrapped in some kind of wrapper. * * * it weighed around one hundred pounds or one hundred ten. * * * It wasn’t very high because the freight it was in more or less flat boxes, I would say about sixteen or eighteen inches off the floor lying close to the floor on some stuff I had to get. * * * the coil of rope was up here in front of some more freight laying where it had fallen off of something on the freight I was supposed to leave at Wilson. I had to move it off and that’s why I had to leave one foot there and step over there to get ahold of it; you are not supposed to walk on those containers.” The rope was two and a half to three feet in front of where he was standing, and he described his movements as: “ * * * I stood with one foot on the floor of the trailer and I put my right foot on a container which was in front of me and bent forward down, in order to get to the coil of rope.” His right foot was approximately sixteen to eighteen inches off the floor of the trailer, and his feet were apart “two and a half feet, I was stretched out, lying forward. * * * Bending forward, way forward. * * * I didn’t want to stand, walk on the other small cartons, that is not a good policy, you might bust them and so I tried to keep off of them, keeping one foot down and one on a solid like carton, and to reach the coil of rope too. I tried to lift it on to its edge or either roll it out of the way, anywhere to get it off my carton I had to get out. * * * That is when something happened in my back. * * * I lifted it, I guess, approximately six inches, and then I had to drop it back.” He had lifted as much weight before but the difference on this occasion was “I was lifting all with my shoulders and arms and my hips and back was completely behind me * * As he went through the described motions and function of lifting the rope he experienced “a sharp burning pain right in the small of my back.” At another point in his testimony respondent described his motions and function as: “I had to lift the coil of rope, I had to clear it to get it on to its edge to roll it out of the way of the freight that I was going to unload at Wilson Truck Line, I had to lift it to turn it to get it out of the way, because, as I thought I brought out clear before, the freight had shuffled and fallen in the trailer and I reached over to lift it to clear it, to get it on its edge * * *. I had to hold on all the time or it would have fallen back to where it was to begin with.

“Q. You were lifting it and twisting it? A. That is right. * * * Q. And you were trying to lift one end of it up ? A. I was trying to clear it so I could * * * Just like if this was one on here, you have to get it up over the edge to roll it out of there and had to hold on to it and lift it and try to turn it all at the same time, which I didn’t do right then. * * *

“Q. * * * what, if any, degree of effort did you have to extend to attempt to accomplish that motion or function? A. I guess, all I would say all the strength I had.” He sat down and remained lying on his side for two or three minutes. He later removed the rope by getting on his hands and knees. He completed his day’s work with his back hurting. This was on Friday and his next work was Monday. He made no report because he thought it might cost him his job. He came back to work Monday but was not able to work. He was sent to a doctor from whom he received heat treatment. He went back to Marine Petroleum two weeks later. The only lifting he had to do there was of a five pound unloading hose.

William A. Stevens, M.D., examined respondent on September 27, 1962, October 8, 1962, December 13, 1962, and September 6, 1963. In addition to respondent’s complaints, he found that respondent’s right leg was one-quarter inch shorter than the left. He was of the opinion that respondent sustained a permanent and progressive soft tissue injury and strain of the lower back in the region of the lumbosacral joint as a result of the incident of July 6, 1962, and that he had right lower leg symptoms as a result of an old degenerative condition of his right hip joint. He testified also that respondent’s type of back is “vulnerable even to minor trauma, twist, lifting in a twisted position or unguarded movements that produce a severe back condition.”

Jack C. Tippett, M.D., examined respondent on behalf of appellants on August 28, 1963. Dr. Tippett gave respondent a disability rating of ten to fifteen per cent to the man as a whole by reason of the low back strain and pain condition of which respondent complained. Upon learning of respondent’s hip condition the doctor was unable to separate it from the back condition but his rating was on the low back strain.

Respondent’s claim was that he sustained accidental injury in the form of an abnormal and unusual lift, and that by reason of pre-existing congenital deformity of his right hip, he had combined disabilities greater than from the last injury alone and was therefore entitled to make claim against the Second Injury Fund.

Under these circumstances the referee made an award of compensation to respondent which was reversed by the Industrial Commission because “We find from all of the evidence that the employee, Kenneth C. Merriman, did not sustain an accident on or about July 6, 1962, within the meaning of the Missouri Workmen’s Compensation Law. The employee contends that he sustained an accident in the form of an abnormal or unusual strain within the meaning of Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401, and other cases dealing with the subject. A careful review of those cases and the facts in the instant case, convinces us that he has failed to prove that he sustained an abnormal or unusual strain. We believe that the evidence fails to demonstrate the occurrence of any unforeseen or unexpected event (other than the injury itself) which happened suddenly and violently. So far as we are aware, the strain cases do not dispense with this statutory element.” Commissioner Cates dissented, saying that the award “disregards the evidence that the employee was in the act of lifting and twisting a large, heavy, bulky and cumbersome coil of rope and that in doing so he had assumed a position with his body that placed him completely out of normal position, and when he was in this abnormal position he was exerting all the strength he had to move the rope. Such being the case, with his body in the abnormal, awkward position because he was attempting to avoid stepping on the small cartons, he was subjected to an unusual and abnormal strain.”

Upon appeal from the Industrial Commission the circuit court in a memorandum opinion reversed the award and ordered it remanded for further proceedings. The opinion of the circuit court was that “the Commission based its award on a mis-con-ception of the law * * *. The uncon-tradicted evidence * * * demonstrates that the claimant placed himself in an awkward, unusual and extended position in which he attempted to lift a heavy coil of rope and in so doing experienced a sharp, burning pain in his back. The situation involves an unusual or abnormal strain within the meaning of the three cases cited * * *. The Industrial Commission has misconstrued the law and since its erroneous ruling is on a matter of law, it becomes our duty to reverse * *

It is appellants’ contention that the circuit court erred in reversing the award of the Industrial Commission because there was sufficient competent evidence to support the facts found, and award made, by the commission. Respondent contends that an award which denies compensation on the sole ground that the employee did not sustain injury because he did not prove an abnormal or unusual strain is an interpretation or application of law and is reviewable as a conclusion of law when there is no conflict in, or expression of disbelief of, the evidence and testimony of the employee, the rules of deference to the commission being inapplicable in such situation.

We are mindful of the general rules that as to fact questions the reviewing court does not substitute its judgment for that of the commission; that such an award is to be set aside only when not supported by substantial evidence or when clearly contrary to the overwhelming weight of the evidence; that such evidence, including all reasonable legitimate inferences, will be viewed in a light most favorable to the award; that the commission could judge the credibility of the witnesses; and that burden of proof is on claimant to prove his claim. Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Powers v. Universal Atlas Cement Co., Mo.App., 261 S.W.2d 512; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Brown v. Anthony Mfg. Co., Mo., 311 S.W.2d 23; Greer v. Missouri State Highway Dept., Mo.App., 362 S.W.2d 773; Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623; Smith v. Smith, Mo., 237 S.W.2d 84; Diebold v. Great Atlantic & Pacific Tea Co., Mo.App., 241 S.W.2d 31; Long v. Mississippi Lime Co. of Mo., Mo.App., 257 S.W.2d 167; Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866. We are mindful also that awards of the commission “which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction. [Cases cited.] And where the finding of ultimate fact is reached by the application of rules of law instead of by a process of natural reasoning from the facts alone, it is a conclusion of law and subject to our reversal. [Cases cited.]” Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65 [4, 5].

Reference to the award of the commission shows that it was not made upon a ground of lack of credibility of claimant or his doctor, and neither was contradicted or impeached. There is no conflict in the evidence and the evidence as to accident and injury is undisputed and uncontradicted. There is no suggestion that any of the testimony was contrary to physical fact. In such situation the commission may not arbitrarily disregard and ignore such testimony and evidence and substitute therefor their personal opinion unsupported by sufficient competent evidence, Lunn v. Columbian Steel Tank Co., Mo.App., 275 S.W.2d 298, 301 [4]; Corp. v. Joplin Cement Co., Mo., 337 S.W.2d 252, 258 [6]; and Smith v. General Motors Corp., Mo., 189 S.W.2d 259, 264 [7], Finerson v. Century Electric Co., Mo., 227 S.W.2d 740, 742 [1], and Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149, 152 [4], which sustain commission findings of ultimate facts as sufficient in absence of request for further findings, are not in point.

We find no dispute in the evidence here, and “(w)here the evidentiary facts are not disputed, the award that should be entered by the Industrial Commission becomes a question of law and the Commission’s conclusions are not binding on the appellate court.” Corp v. Joplin Cement Co., supra, 337 S.W.2d 1. c. 258 [7],

The precise question here is whether respondent’s situation is an accident as defined in Section 287.020(2) RSMo 1959, V.A. M.S., “The word ‘accident’ * * shall * * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.”

Recent decisions have clarified this definition where a lifting injury is involved. In Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401, the claimant was assisting in adjusting an elevator on a corn picker and undertook to support a part of it which came down on him heavier than expected. We held that “where an employee’s injury is the result of an unusual or abnormal strain arising out of and in the course of his employment, the injury is compensa-ble. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a fall.” 307 S.W.2d 1. c. 405 [1, 2]. Previous cases holding to the contrary were overruled. In Williams v. Anderson Air Activities, supra, claimant was engaged in installing kitchen equipment and got under a table to raise it by resting it on his back and, raising himself on his toes, gave an “extra surge of power” and hurt his back. The court applied the rule of Crow v. Missouri Implement Tractor Co., supra, and held that: “Our interpretation of the Crow case, when it is placed alongside the Blair case [State [ex rel. United Transports, Inc.] v. Blair, [352] Mo. [1091], 180 S.W.2d 737], is that where an employee suffers an unexpected and abnormal strain (at least while he is engaged in doing something beyond and different from his normal routine) and, as a result thereof, sustains an injury which is not the result of orderly natural causes, the injury is an accident within the meaning of sec. 287.020(2). The abnormal strain is the event and the injury is the result. The unexpectedness lies in the fact that force produces more strain than the employee has contemplated. This is true even though the force which caused the abnormal strain comes entirely from the physical exertion rather than from sources external to the body.” 319 S.W.2d 1. c. 65 [1]. In Brotherton v. International Shoe Co., Mo. App., 360 S.W.2d 108, claimant was attempting to unlock a perforating machine using a long pipe wrench with a pipe over the handle. He bounced up and down in his effort; his foot slipped and he hurt his back. The court reviewed Crow v. Missouri Implement Tractor Co., supra, and Williams v. Anderson Air Activities, supra, and concluded that the claimant’s abnormal and unusual strain was sufficient to constitute a compensable accident and reversed the Commission.

Under these authorities and the undisputed evidence respondent was required to assume an extended position with his body which placed him completely out of a normal, usual or routine lifting position, i. e., his lift of a heavy, cumbersome coil of rope was with his shoulders and arms only, his back and legs being to the rear of his lifting center instead of in support of it. While exerting his full force in that position, he experienced a sudden, sharp, burning pain or sensation in the small of his back which resulted in disability in his back. (The commission’s finding acknowledged injury.) The strain was thus abnormal; was unexpected in that it was more strain than claimant anticipated he would exert, and hence was an accident within the meaning of Section' 287.020(2), supra. For these same reasons, this case is not a case of disability overtaking the claimant while at work as did the claimants’ heart conditions in State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40, and De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; nor is it like a case of pneumonia resulting from exposure in the ordinary course of work as in Joyce v. Luse-Stevenson Co., 346 Mo. 58, 139 S.W.2d 918 ; and it is not like the case of usual work in righting a barrel of oil in the same manner as on many other occasions as in Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257.

Accordingly, the judgment of the circuit court reversing and remanding this case to the commission for further proceedings is affirmed, and the cause is remanded to the circuit court to effectuate the judgment.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


text:
    Hans GOLD, a Minor, by Edie Gold, his Next Friend, Appellant, v. Marvin S. HEATH, Anne C. Heath, Marvin S. Heath, Executor of the Estate of Marcus S. Heath, Deceased, and Marvin S. Heath, Executor of the Estate of Flossie Mae Heath, Deceased, Respondents.
    No. 50913.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Harold J. Maddox, Alder & Morrison, Kansas City, for plaintiff-appellant.
    Henry G. Eager, Donald H. Loudon, Kansas City, William E. Turnage, Liberty, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondents.
   HIGGINS, Commissioner.

Action for $25,000 for personal injuries. The trial court sustained defendants’ motion for directed verdict at the close of plaintiff’s evidence and entered judgment for defendants. Plaintiff has appealed.

Plaintiff alleged in his petition that on June 13, 1963, he was an invitee of defendants at their Hillcrest Drive-In Theater in Clay County, Missouri, where he was further invited to play on a playground provided there by defendants; that while playing he was struck in the right eye by a rock thrown by a third person and injury resulted. He charged in paragraph 4 that defendants were careless and negligent:

“(a) In * * * failing to provide a safe place for this Plaintiff to play in;

“(b) In * * * failing to supervise the activities of their business invitees on said playground, or in the alternative in * * * failing to properly supervise the activities of their business invitees on said playground;

“(c) In * * * failing to exercise ordinary care for the safety of this Plaintiff

“(a) in that the Defendants knew or should have known * * * that children pick up rocks and throw them at each other and otherwise
“(b) the Defendants * * * could and should have foreseen that a child would pick up and throw a rock at this Plaintiff and injure him;
“(c) the Defendants knew or should have known that the presence of an attendant or attendants would have prevented the Plaintiff from having been injured.”

Defendants’ pleading was a general denial.

Mrs. Harold J. (Marjorie) Maddox testified that on the evening of June 13, 1963, she and her husband, Harold J. Maddox (attorney for plaintiff), took their children and plaintiff, a neighbor boy, to the Hill-crest Drive-In Theater to see the motion pictures, “Son of Flubber” and “Hatari.” The Maddox children were Randy, 13, Craig, 11, a 7-year-old girl, and a baby; plaintiff was a friend and contemporary of Craig Maddox. Upon arrival at the theater plaintiff and Craig left the car and were next seen at the intermission between “Son of Flubber” and “Hatari” when they came to the car to get money for refreshments. Later, during the showing of “Hatari,” Craig ran back to the car to report that Hans had been hit by a rock. Mr. and Mrs. Maddox left their car and went to the concession stand where a man was “trying to help Hans — doing what he could for him. And I went in the restroom and got a tissue and wet it, and came back out and took over, and he left.” The entire party left immediately for home and, upon arrival there, she put Merthiolate and a Band-Aid on the cut. The next day she and Hans’ mother took Hans to a doctor who hospitalized Hans. She did not know of any previous trouble, the boys said nothing about any fights, and no report was made of Hans’ injury.

Plaintiff testified that when the showing of “Hatari” started he and Craig watched a little of it from the patio and then went to the playground to watch it from there. They sat on the slide and, after watching for awhile, went to the merry-go-round. There were no theater employees there. Two other boys were playing on the swings nearby. “When we almost slowed down, one boy on the swing threw a rock, right here on my eye.” He ran to the concession stand and a man came up who took him into the bathroom and tried to stop the bleeding with a tissue. On cross-examination he testified that there was no disagreement or fight with either of the boys; that there was no reason for anybody to throw a rock and that he did not know they were going to throw a rock. He did not see the rock thrown and did not see the rock that hit him. He had never seen anybody throw rocks at the playground before and neither he nor Craig had ever thrown any. He knew only what Craig told him about the incident.

Mr. and Mrs. Hans Guenther Gold, parents of plaintiff, testified to plaintiff’s complaint of eye injury and hospitalization. Mr. Gold also stated that he had been to the playground two or three times before and two times after the incident, and that he had never seen anything dangerous there.

Defendant Marvin S. Heath, called by plaintiff, testified that he, his wife, and his father and mother owned the Hillcrest Drive-In Theater and that he was appointed manager by his partners. (Flossie Heath died prior to trial and Marcus S. Heath died following the trial.) The theater was opened June 4, 1954. A playground was opened two or three years later when two teeter-totters and a swing were installed in a 30' X 40' area. A new playground, 100' X 7O', equipped with a jungle gym, two sets of swings, slide, teeter-totters, and merry-go-round, was put in use around Memorial Day, 1963. It was located behind the concession stand and was surfaced with “crusher-run chat, with a lot of dust. Possibly there could have been three-quarter inch pieces in it.”

In the summer months as many as 20 or 21 people would be employed at the theater; one of them, Mrs. Frances Homan, managed the theater in his absence, and she was in charge on June 13, 1963. As of June 13, 1963, other employees would have included George Lucas, Danny Homan, Frances Homan, Jerry Richards, Richard Izatt, Bernard Buckley, Mrs. Ralph Sutton, and Ralph Sutton, Jr., and all had protection of patrons and supervision of the playground as part of their duties. He admitted to a possibility that children might pick up rocks, but had never seen a child throw one and did not know of any being thrown on the playground prior to June 13, 1963. He said that he heard Buckley state in giving a deposition that Buckley had heard of children throwing rocks at or rolling them down the slide.

Children were permitted to play on the playground as long as they behaved. If they misbehaved they were sent back to their cars. “Older and bigger” children were not allowed on the playground. The playground was lighted by floodlights and by light from the snack bar. The playground was located as it was with the assistance of The Miracle Equipment Company to provide the most in supervision with certain employees having specific duties of supervising the playground in addition to other duties. The first notice anyone had of this incident was the service in connection with the filing of the suit sometime after the occurrence.

Craig Allen Maddox testified that there were no employees on the playground when he and Hans were on the slide just before Hans was struck. Hans was struck by a rock thrown by another boy. He and Hans were then riding the merry-go-round and two other boys were present. There had been no fights, arguments, or words between the boys. He said he saw the boy who threw the rock when Hans was being helped by a man at the restroom. He tried to hold the boy but his mother came and took him away. He did not know the boy. On cross-examination he stated that only one rock was thrown and that the boy just “pulled back” and threw it. The thrower was on the swings several feet away from the merry-go-round. He had never seen anyone else throw a rock on the playground ; he and Hans threw no rocks, and there were no fights or disputes there, although Hans had been chased by another boy at intermission for going in front of him at the slide.

Frances Lucille Homan testified that she managed the snack bar and acted as theater manager when Mr. Heath was not there, as was the case June 13, 1963. Prior (23 years before) to June 13, 1963, one of her sons hit another of her sons with a rock. She was standing ten feet away, saw him pick up the rock and throw it, and could not stop him. She stated that her son Danny and Mr. Williams were assigned most of the duty of watching the playground. No one reported any incident of injury to her on June 13, 1963. She had never seen any other children throw rocks at each other.

Danny Homan testified that he had duties of watching the playground and keeping order there and that he would attempt to prevent it if he saw a boy about to throw a rock at another. He had seen boys and girls throw rocks up into the projection beams on the other side of the snack bar from the playground, but had not seen any rocks thrown at another child. If he saw a boy reach down to pick up a rock he would tell him to put it down. He would not be able to stop a rock from being thrown unless he was “right on top of him.”

Harold J. Richard, another employee, testified that he was generally aware that children sometimes threw rocks. He did not recall whether he • was at the theater June 13, 1963, and did not recall any of the incidents related by Hans ard Craig. On cross-examination he stated that he had never observed any rock throwing anywhere on the theater premises.

Ralph Lee Sutton also had duties involving supervision of the playground, and he had seen children throw rocks at the exit signs and up into the lights but had not seen any rocks thrown at children there. If he saw any rock throwing, he would try to stop it.

Appellant says the court erred in sustaining the motion for directed verdict because :

“1. There was substantial evidence of prior notice * * * of the type of conduct * * * from which the defendants could have reasonably anticipated and foreseen * * * injury to * * * plaintiff.

“2. There was substantial evidence of negligence on the part of defendants * * * (which) was the proximate cause of plaintiff’s injuries.”

Respondents counter this charge and say the court was correct “because (they), in the absence of any warning or prior altercation, could not reasonably foresee that, with no apparent reason, this boy would wilfully throw a rock at the appellant, nor would the presence of an additional attendant have prevented this brief and isolated occurrence.”

In ruling the propriety of the directed verdict, we must determine whether a submissible case was made on the grounds asserted by plaintiff and, in making such determination, evidence favorable to defendants is disregarded and only the evidence favorable to plaintiff, and the reasonable inferences therefrom, will be considered. Reimers v. Frank B. Connet Lumber Co., Mo., 271 S.W.2d 46, 47[1]; Pride v. Lamberg, Mo., 366 S.W.2d 441, 443[1]. The case is not to be submitted, however, unless all facts essential to liability are predicated upon legal and substantial evidence. Probst v. Seyer, Mo., 353 S.W.2d 798, 802[1],

In Missouri the owner of a motion picture theater or place of public amusement must exercise ordinary or reasonable care for the safety of patrons, and liability to patrons is predicated on the owner’s timely notice or prior knowledge of likely danger to them. In Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S.W.2d 609, 610[1], we said: “The proprietor of a place of public amusement is not an insurer of the safety of his patrons or invitees, the care required of him being ‘that which is reasonably adapted to the character of the exhibitions given, the amusements offered, the places to which patrons resort, and also, in some cases, the customary conduct of spectators of such exhibitions. It is a care commensurate 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; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 1220, 164 S.W.2d 318, 320, 142 A.L.R. 858; Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 999, 224 S.W.2d 989, 993-994.” See also Oakley v. Richards, Mo., 204 S.W. 505[1]; and, as to the added vigilance and caution necessary where children are concerned, see Bronson v. Kansas City, Mo.App., 323 S.W.2d 526, 531[7].

We are mindful also that what amounts to ordinary care depends upon the particular circumstances and is generally a question for the jury unless the evidence is such that reasonable men could not infer negligence therefrom, Miller v. Sabinske, Mo.App., 322 S.W.2d 941, 946 [4], and that a cause may not be withdrawn from the jury unless the facts and the reasonable inferences which may be drawn are so strongly against plaintiff as to leave no room for reasonable minds to differ. Antweiler v. Prudential Ins. Co. of America, Mo.App., 290 S.W.2d 652, 653 [2],

Appellant says that Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, is “somewhat controlling.” There, plaintiff was injured while crossing the playing field at Sportsman’s Park in St. Louis. When the ball game ended she entered the playing field by a left field gate, intending to cross to a Grand Avenue gate in the right field corner. She was caused to fall to the ground and to break her shoulder when run into by a boy who was one of a group of eight or ten engaged in wrestling and pushing each other. These boys were regularly admitted to the park near the end of each game to collect seat cushions. A submissible case was held to have been made because defendant’s manager had previously observed similar and usual activities of that particular group of boys on several occasions and had found it necessary to warn the boys and to break up such activities due to the likelihood of injury to patrons.

Appellant also relies on Pfeifer v. Standard Gateway Theater, 259 Wis. 333, 48 N.W.2d 505. There, an 11-year-old plaintiff went to defendant’s theater on Sunday afternoon. Five older boys were throwing popcorn boxes and shooting paper wads by means of rubber bands. This had gone on for some time prior to plaintiff’s arrival at the theater. Sometime during the show he was struck and injured in his eye. The court, in reversing a directed verdict, said “[T]here was evidence as to how long the conduct of the boys had continued, that such conduct should have attracted the attention of the attendants if there were attendants present, and that the attendants might, in the exercise of reasonable care, have so controlled the behaviour of the boys as to have prevented injury to the other patrons of the theater.” 48 N.W.2d 1. c. 507[3],

In respect to defendants’ duty to foresee, appellant cites Emery v. Thompson, Mo., 148 S.W.2d 479, 480 [3]: “Most duties, imposed by the law of torts, arise out of circumstances and are based on ‘foreseeability’ or reasonable anticipation that harm or injury is a likely result of acts or omissions,” and Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 474[14] : “The question is not whether the particular injury under consideration should have been anticipated, but whether, after the occurrence, such injury then appeared to have been the reasonable and probable consequence of the negligent act or omission. And, it is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable.”

In Hughes v. St. Louis Nat. League Baseball Club, supra, defendant argued that the activities of the boys were so spontaneous and sudden that there was not time to warn plaintiff. A similar contention is made here, i. e., that plaintiff’s injury was a brief and isolated occurrence rather than a situation which flowed from acts constituting prior notice and knowledge. In rejecting the defense contention in Hughes v. St. Louis Nat. League Baseball Club, supra, the court drew a distinction which supports the defendants in our case, saying: “Defendant cites cases, such as Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72, and Hawkins v. Maine & New Hampshire Theater Co., 132 Me. 1, 164 A. 628. However, these cases are not in point because they involve isolated, sudden acts of one person.” 224 S.W.2d 1. c. 994[9, 10], In Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72, plaintiff was struck by a bottle thrown by an unidentified person while plaintiff was attending a wrestling bout staged by defendant. There was evidence from the defendant himself as to a bottle being thrown four or five years before, and another probably a year before, both in a different place, and as to an occasion when someone was cut on the hand in some undisclosed way. The court found that such circumstances did not require more guards and that the presence of more guards would not have prevented the incident. “* * * [T]he misadventure suffered by the plaintiff could have happened if none of those things had existed. There is no evidence as to who threw the bottle, or why it was thrown, or from what direction it came. There is no evidence that the person who threw it was drinking, or excited, or that it was thrown at the sailor or at the plaintiff, or at anybody. It would be only conjecture to say that there was any connection between the conditions existing and the throwing of the bottle. Such things occasionally happen at football, baseball and other games at which crowds gather, with nobody to blame except the irresponsible or malevolent person who did it. If this defendant had had several times as many employees as he did have, the incident could still have occurred.” 52 S.E.2d 1. c. 75[5], And, in Hawkins v. Maine & New Hampshire Theater Co., 132 Me. 1, 164 A. 628, plaintiff alleged that defendant failed to restrain “playful, sportive and mischievous acts” of other children in the theater by failing to provide sufficient ushers and attendants. Defendant gave all children balloons, and plaintiff was injured when another child shot at the balloons with a BB gun. In ruling for defendant, the court said, “ * * * It (the management) was under no obligation to provide an attendant for every child, or to anticipate the isolated, willful, and sudden act of one boy, the natural tendency of which was to inflict serious harm upon another. There is no evidence that such an incident ever had happened before or that the defendant had any warning whatsoever that it was likely to take place. It was not a danger which it was bound to have foreseen or to have guarded against.” 164 A. 1. c. 629 [6]. See also Reay v. Reorganization Inv. Co., Mo.App., 224 S.W.2d 580, in which the court distinguished that case from Murphy v. Winter Garden & Ice Co., Mo.App., 280 S.W. 444, saying: “* * * [I]n Murphy v. Winter Garden & Ice Company boisterous and rowdylike acts were noticeably being committed by the two young men for some time before the plaintiff was hurt by them, while in the case under consideration the evidence falls short of proving any act which was likely to cause harm to other patrons of the rink by the boy who struck the plaintiff. * * * There is no evidence that the unknown boy’s conduct was in any way dangerous to other skaters prior to his collision with the plaintiff.” 224 S.W.2d 1. c. 582.

Pfeifer v. Standard Gateway Theater, supra, also may be distinguished from the present case, in which there is no evidence that the boys involved were engaging in unruly or dangerous conduct on the playground, or that there was anything which should have attracted the attention of anyone, or that anyone seeing the boys would have cause for alarm, or that anyone seeing the unknown boy about to throw a rock could have stopped him before he “let fly.”

In Dickinson v. Eden Theatre Co., supra, the plaintiff was injured in a collision between herself and a newspaper vendor in the lobby of the theater while waiting for her ticket. It was shown that the vendor had been permitted to station himself there for several years, moving in and out of the crowd to sell his papers, and that on at least one occasion prior to the incident, the vendor had “bumped” a patron. The court said of that situation: “ * * * [I]t cannot be said that there was anything inherently dangerous in the customary conduct and activity of Dieckhorner in defendant’s lobby, nor do we think that the one isolated instance where he bumped shoulders * * * in the lobby would be sufficient to charge defendant with notice of the likelihood of injury to patrons or invitees resulting from his presence in the lobby under the facts outlined. ‘Negligence which imposes liability must result from a faulty or defective foresight. (Not hindsight.) * * * On what should have been anticipated, rather than what happened.’ The Hughes case, supra [359 Mo. 993, 224 S.W.2d 995.] McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693, 696, 697; Nephlar v. Woodward, 200 Mo. 179,98 S.W. 488; Panke v. Shannon, 357 Mo. 1195, 212 S.W.2d 792.” 231 S.W.2d 1. c. 612.

Panke v. Shannon, Mo., 212 S.W.2d 792, points up the difficulty of holding one responsible for single isolated instances or incidents which result in injury. There a blacksmith was kicked by a landlord’s mule while the landlord’s tenant was using a twitch on the mule’s nose to quiet him. The court said, “A mule’s actions cannot be turned on and off like a machine by any certain pressure on a twitch; and we think it imposes an unreasonable standard to hold one responsible for failure to anticipate a mule’s reactions under such circumstances.” 212 S.W.2d 794[4],

In addition to those already mentioned, there are other cases from other states that are in point on the issue heré. Representative is Clark v. City of Buffalo, 288 N.Y. 62, 41 N.E.2d 459, where a 7-year-old girl was struck in the eye by a piece of glass which, along with several stones, was picked up and thrown in her direction by a boy who was also present at the pool area in the city’s Riverside Park. The court phrased the issue: “The problem, being one of causation, prompts the inquiry whether the record contains any evidence from which the jury could find that the proximate cause of injuries suffered by the plaintiff was a failure by the city to exercise reasonable care either in the maintenance of the park as a public place for recreation or in the supervision of facilities which it afforded for children’s play.” 41 N.E.2d 1. c. 460 [2]. The reasoning and analysis employed in resolution of that issue are in point and persuasive in our case. “There is no evidence that prior to the accident the plaintiff, her two companions and the boy who threw the glass were quarrelsome; nor is there proof that anything had occurred in their play * * * from which the most vigilant life guard or attendant could have anticipated the unprovoked conduct of the boy whose sudden and impulsive act brought injury to the plaintiff. * * * that small piece of glass, when on the ground inert, was not inherently dangerous. Had it been permitted to remain there the plaintiff would not have suffered the injury which befell her. She was subjected to no harm from the glass until it was picked up and thrown. Harm came to the plaintiff only after danger was created by the intervention of a third person, a mischievous boy, who on the impulse of the moment— of which no prior conduct on his part or by the plaintiff gave warning — picked up stones and glass and threw them toward the plaintiff and her companions. * * * The efficient cause of plaintiff’s injuries was the wrongful act of a third person — an act which, in the circumstances, could not have been foreseen in the exercise by the city of its legal duty [to exercise reasonable care] toward the plaintiff.” (Italics and bracketed insert added.) 41 N.E. 2d 1. c. 461 [2]. From Arkansas comes Twin City Amusement Co. v. Salater, Ark., 372 S.W.2d 224, where a patron of a rock and roll concert was denied recovery against the holder of the concert for injuries sustained in an affray on the parking lot leased by the holder. The affray occurred after the concert when two Negroes approached a car and demanded that the white occupants sing a rock and roll song while at the same time trying to pull some of the car’s occupants from the car. Isaac Salater and his carful of boys voluntarily went to the aid of the other group; a fight ensued and Isaac was injured. The case was treated as one of first impression in Arkansas and, after reviewing several authorities including Hawkins v. Maine & New Hampshire Theater Co., supra, Whitfield v. Cox, supra, Dickinson v. Eden Theatre Co., supra, and Stevenson v. Kansas City, 187 Kan. 705, 360 P.2d 1, 29 A.L.R.2d 911, and Restatement, Torts, § 348, the court concluded that “this was a sudden, unexpected and unforeseeable affray. * * * A statement in Stevenson v. Kansas City, supra, is apt: ‘To foresee that plaintiff while attending the wrestling matches would be assaulted at the hour of 11:00 p. m. at the particular spot on the particular ramp on the way to the particular rest room in the Memorial Building in Kansas City would indeed require imaginative foresight and such is not the type of foreseeability required under our law. Only the standard of the reasonable and prudent man * * * is required.’ * * * Nothing in the evidence suggests that more servants were necessary to provide reasonable security at the time and place here in question, or that more servants could have prevented the affray. Certainly a proprietor is not required to have an attendant, guard or usher for every patron.” 372 S.W.2d 1. c. 226 [1, 2], From Florida, Elmore v. Sones, Fla., 140 So.2d 59, is in point. A 7-year-old girl was injured when pushed by an unidentified boy from the “monkey bars” in an unsupervised play-aground maintained on theater premises for use of patrons. In dismissing her complaint the court said: “* * * [Usually, even where the duty to supervise may be found to exist, the supervision need be general only as distinguished from special or immediate. It would not be necessary to furnish every patron with an usher or an attendant. See 16 A.L.R.2d 915. In the case before us it is not fairly inferable from the complaint that general supervision would have prevented the injury caused by the impetuous or wayward boy who did the pushing.” 140 So.2d 1. c. 62 [3], The subject could be pursued still further in Huddleston v. Clark, 186 Kan. 209, 349 P.2d 888; Napper v. Kenwood Drive-In Theatre Co., Ky., 310 S.W.2d 270; Hickey v. Fox Ozark Theatres Corp., 156 Kan. 137, 131 P.2d 671; Ruehling v. American Legion Pavilion, Inc., 255 Minn. 391, 96 N.W.2d 702; Ford v. Brandan, Tenn.App., 367 S. W.2d 481; of all of which it might be said that the owners had greater reason for seeing to their patron’s care than did defendants here, yet plaintiff in each failed to make a submissible case.

Finally, the law in this instance is well stated in Restatement, Torts, § 348, cited with approval in Hughes v. St. Louis Nat. League Baseball Club, supra, 224 S.W.2d 1. c. 995[12], Dickinson v. Eden Theatre Co., supra, 231 S.W.2d 1. c. 610[1], and in Twin City Amusement Co. v. Salater, supra, 372 S.W.2d 1. c. 225-226 which says: “ ‘A * * * possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons * * * if the possessor by the exercise of reasonable care could have

“(a) discovered that such acts were being done or were about to be done, and

“(b) protected the members of the public by

“(i) controlling the conduct of the third persons, or

“(ii) giving a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive * * (Italics added.)

Under these authorities and on the record here, we conclude that there is no evidence from which a jury could find the proximate cause of plaintiff’s injury to be any failure of defendants to exercise ordinary care in any of the respects charged in plaintiff’s petition. The evidence shows that plaintiff’s injury was caused by the wrongful act of an unidentified child, whose act of throwing the rock which struck plaintiff was a single, isolated, sudden, and unprovoked act which could be neither reasonably foreseen nor prevented.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    Dr. W. O. COWAN, Plaintiff-Appellant, v. Clovis GIBSON, Earl Sears, Melvin. Eggerman, Glenn O’Dell, A. G. O’Dell, Jack Gamble and Martin A. Schilling, Members of the Board of Directors of Lockwood Memorial Hospital Association, and Lockwood Memorial Hospital Association, a Non-Profit Corporation, and Lee A. McNeel, Jr., and Harold A. Bauer, Members of the Medical Staff of Lockwood Memorial Hospital Association, Defendants-Respondents.
    No. 51069.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Martin Schiff, Jr., St. Louis, and Donnelly & Donnelly, Robert T. Donnelly, Lebanon, for plaintiff-appellant.
    Robert Stemmons, Mt. Vernon, for respondents.
   BARRETT, Commissioner.

The appellant, Dr. W. G. Cowan, was denied reinstatement to the medical staff of the Lockwood Memorial Hospital Association, the only hospital in Dade County, and, alleging a wrongful conspiracy to exclude him and to injure him in the practice of medicine, sought in this action in two counts actual and punitive damages totaling $350,000 and a declaratory judgment as to his rights and status. The respondents are the hospital, the seven individual members of its board of directors and Dr. Lee A. McNeel, Jr., and Dr. Harold A. Bauer, who together with Dr. Cowan are the only doctors of medicine in the county. And Drs. McNeel and Bauer now comprise the medical staff of the hospital. The trial court sustained the defendants’ motion to dismiss both counts of the petition for the reason that they “fail to state facts upon which relief may be granted” and Dr. Cowan has appealed from the final judgment dismissing his action.

Dr. Cowan graduated from St. Louis University School of Medicine in 1930 and for 20 years has practiced in Greenfield and surrounding area and treated his patients in and was a member of the staff of the hospital. In 1963, allegedly without just cause or reason, Dr. Cowan’s application for reinstatement to the medical staff of the hospital was denied precipitating this action. The hospital is a non-profit, tax-exempt, private institution licensed by the state and, as stated, is the only hospital in Dade County. Since the hospital is a private institution (as contrasted with a governmental agency) and the other respondents comprise its staff and board of directors it is not necessary to further detail its operation and support. Because it is a private hospital “it is generally held that the exclusion of a physician or surgeon from practicing therein is a matter which rests in the discretion of the managing authorities.” Annotation 24 A.L.R.2d 850, 852, and the cases there collected, and since the annotation Shulman v. Washington Hospital Center, D.C., 222 F.Supp. 59; Glass v. Doctors Hospital, Inc., 213 Md. 44, 131 A.2d 254; Khoury v. Community Memorial Hospital, Inc., 203 Va. 236, 123 S.E.2d 533. In view of this admittedly applicable general rule the problem upon this appeal is whether, construing the appellant’s petition as it must be viewed upon a motion to dismiss (Royster v. Baker, Mo., 365 S.W.2d 496, 500), there are any allegations which would prima facie remove the cause from the operation of the general rule and therefore entitle him to a hearing of the cause upon its merits.

There is no plainer way to present and understand the problem than to quote, in addition to the already noted averments, paragraphs 5, 6 and 7 of count one:

“5. Plaintiff further states that defendants Lee A. McNeel, Jr., and Harold A. Bauer, individually and collectively, and with malice and intent to oppress the plaintiff, have, for the past year and more, deliberately, wrongfully and unlawfully conspired with each other and with the aforesaid members of the Board of Directors, (naming them individually) to dominate the practice of medicine by licensed physicians and surgeons in Dade County, Missouri; to prevent the plaintiff from acquiring membership upon the medical staff of defendant Lockwood Memorial Hospital Association, which said membership is necessary before plaintiff can properly treat his patients anywhere in Dade County; to interfere with the contractual rights between plaintiff and his patients, and to force plaintiff’s said patients to discontinue their contractual arrangements with plaintiff and seek the services of defendants in order to obtain proper medical treatment; and to restrain and eliminate, for their own financial advantage and professional enhancement, the element of fair competition in the field of the practice of medicine in Dade County.
“6. In furtherance of the aforesaid conspiracy defendants did, on or about September 4, 1963, deliberately, wrongfully, unlawfully and maliciously, without any just reason, cause, or excuse, deny or cause to be denied plaintiff’s written application for reinstatement on the medical staff of defendant Lockwood Memorial Hospital Association.
“7. As a direct and proximate result of defendants’ deliberate, wrongful and malicious acts in furtherance of the aforesaid conspiracy, plaintiff’s professional name and standing in the community have been slandered, his contractual rights with his patients have been interfered with, his patients have been refused admission to defendant hospital and have been compelled to seek medical services elsewhere, and plaintiff has been deprived of the benefits he otherwise would have received from treating his patients, and effectively deprived of his right to practice his selected profession and calling in Dade County, Missouri.”

Summarizing and at the same time omitting reference to irrelevant and wholly conclusionary averments the substance and crux of the charge is that the governing body of the hospital, the board of directors and the two members of its staff, conspired, particularly with the doctors in their individual capacities, to oppress the plaintiff in his profession of medicine, especially to prevent him from acquiring staff privileges, a matter necessary to the successful practice of medicine in that community. It is specifically charged, aside from allegations having to do only with hospital management, that the purpose and effect of the conspiracy was "to interfere with the contractual rights between plaintiff and his patients, and to force plaintiff’s said patients to discontinue their contractual arrangements with plaintiff and seek the services of defendantsIt is repeatedly asserted that in furtherance of and as a result of the conspiracy “his contractual rights with his patients have been interfered with, his patients have been refused admission to defendant hospital” and the consequence to the plaintiff has been that he was deprived of the right to practice medicine and necessarily has sustained actual damages and because the conduct complained of was intentional and malicious he was entitled to punitive damages.

The appeal is not concerned with the proof and merits of any cause of action Dr. Cowan may have (Rosen v. Alside, Inc., Mo., 248 S.W.2d 638) or for that matter with whether a better petition or more fitting petition could be drawn, the problem is whether in their essence the particularly noted allegations transcend and take the appellant’s case out of the stated general rule. In the first place as to parties to the action, this is not a suit between the doctor and the hospital or its governing board or staff alone in their hospital character and capacities. Levin v. Sinai Hospital, 186 Md. 174, 46 A.2d 298. The two doctors, Drs. McNeel and Bauer, in addition to their capacity as hospital staff members, are charged individually; it is said that they conspired with the individual members of the hospital board to injure Dr. Cowan all to their financial benefit. Then as to subject matter, vague though it may be in some respects, there is more involved here than the mere charge of a conspiracy plus action by the corporation’s governing board (Compare Royster v. Baker, supra) there is here the additional allegation that the two doctors in their personal professional capacities conspired with hospital board members to the end and for the purpose of interfering with Dr. Cowan and his contractual rights with his patients all to their financial advantage — all of which is outside the operation and government of the hospital. All in all, as a matter of substance there is more involved here than the hospital’s mere denial of the doctor’s application for reinstatement to staff and hospital privileges, it is asserted that he lost these but in addition the allegations in their totality charge the tortious conduct of an improper interference with the plaintiff’s business and profession all to his financial loss and to at least the financial benefit of the individual doctors.

Upon allegations not nearly so dearly spelled out Chief Justice Gibson said, “There is an established principle at common law that an action will lie where the right to pursue a lawful business, calling, trade, or occupation is intentionally interfered with either by unlawful means or by means otherwise lawful when there is a lack of sufficient justification. * * * A cause of action is stated under the above principles where, as here, it is alleged that a physician of the highest qualifications is denied access to necessary hospital facilities as a result of a conspiracy designed to restrain competition and deprive him of his practice in order to benefit competing members of the conspiracy. Similar allegations were held to state a cause of action at common law in Tatkin v. Superior Court, 160 Cal.App.2d 745, 754-757, 764-765, 326 P.2d 201.” Willis v. Santa Ana Community Hospital Association, 58 Cal.2d 806, 810, 26 Cal.Rptr. 640, 376 P.2d 568, 570. While the cases did not involve doctors and hospitals the basic principles have long been recognized in this jurisdiction even though there was an insufficient allegation in the one case and a failure of proof in the other — Rosen v. Alside, Inc., supra, and Royster v. Baker, supra. The general rules as set forth in the Rosen case are frequently quoted, often, however, these two concluding sentences are omitted: “A combination for the purpose of causing a breach of contract has been held to be an unlawful conspiracy. A person who by conspiring with another or by collusive agreement with him assists him to violate his contract with a third person and to obtain the benefit of that contract for himself commits an actionable wrong.” 248 S.W.2d 1. c. 643. These principles were applied in an action for damages “for conspiracy to defraud plaintiff of his $400.-00 earned real estate commission” in Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, Mo.App., 353 S.W.2d 102.

As stated, the appeal is not concerned with the proof and essential merits of any cause of action the appellant may have, nor is it concerned now with delimiting the issues between the parties or with indicating what evidence may or may not be proper, the only concern here is whether in the language of the respondents’ motion to dismiss the petition, “state (s) facts upon which relief may be granted,” and as indicated a cause of action is stated and therefore the judgment is reversed and the cause remanded.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

The foregoing opinion by BARRETT, G, is adopted as the opinion of the court.

All of the Judges concur.