text:
    STATE of Missouri, Respondent, v. Fred Park CHEEK, Appellant.
    No. 52060.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    George E. Sullivan, O’Fallon, for appellant.
   HOLMAN, Presiding Judge.

The amended information in this case charged defendant with murder in the first degree. The jury found him guilty of that crime. Since it was alleged and proved that defendant had been convicted of two prior felonies the court determined his punishment which was fixed at imprisonment in the penitentiary for life. See §§ 559.010, 559.030, and 556.280 (all statutory references are to RSMo 1959, V.A.M.S.). He has appealed. Defendant was represented in the trial court and in this court by counsel of his own choosing. His counsel, however, elected not to file a brief in this court. We will therefore consider the contentions properly raised in his motion for new trial. State v. Smith, Mo.Sup., 394 S.W.2d 373.

During the early evening of September 18, 1965, defendant drove his Ford Mustang automobile from O’Fallon to St. Charles, Missouri. He was accompanied by Lee English, Walter Thomas, Harvey Huber, and Rose Wells, all of whom lived in the O’Fallon area. While en route to St. Charles defendant was stopped by a highway patrolman and was given a ticket for passing a line of cars on a hill. The patrolman testified that while he smelled an odor of alcohol, the defendant was not intoxicated. About 45 minutes later defendant shot Terry Aldrich in front of the Aldrich home in St. Charles.

Rose Wells testified for the State. She stated that at least three of the men had been drinking when she entered the car at about 8 p. m.; that after arriving in St. Charles, the men bought a fifth of Bourbon which they mixed with grapefruit juice and that they were all drinking; that defendant then drove his car to a trailer court (Trio Mobile Homes Park); that when they arrived at a point near the Court they saw a Volkswagen on the road with a boy pushing it; they stopped and Walter Thomas asked if they could help by pushing the car but the boy said no, they could do it themselves; that at that point defendant and Huber insisted that they would help anyway and defendant backed his car up and then ran it forward and hit the Volkswagen from the rear; that he backed up again and hit the Volkswagen a second time; that a boy then got out of the Volkswagen and came around to the driver’s side of the Mustang and reached in, pulled defendant’s shirt, and asked him what he thought he was doing; that defendant and Huber both got out of the car — Huber carrying a .38 caliber revolver in his hand and defendant carrying a .22 caliber Derringer; that she then heard a shot and a girl scream; that the men got back in the car and defendant said, “I shot the guy in the throat”; that they then started back toward O’Fallon and defendant gave the Derringer to Huber, who fired the other shot out the car window, and said he would take it to work the next day and melt it down with a welding torch.

Coleen Skelly testified that on the night in question she had a date with Terry Aldrich and that they were double-dating with Don Campbell and Linda Crosley; that they were all at the home of Terry Aldrich’s parents and decided to go play miniature golf; that they started to leave in Don’s Volkswagen but the car would not start; that one of the boys was pushing it when some people in a Mustang drove alongside the Volkswagen and asked if we needed help; that Don said “No, we can manage it ourselves,” and someone in the Mustang said, “We are going to help you anyway”; and that they backed the car up and drove into the Volkswagen. “Then we all got out of the car” and the Mustang hit it again “real hard”; that she then looked at Terry who was standing in the street and about ten seconds later she saw the flash of a gun in front of him and Terry fell; that Terry was standing still at the time he was shot; that she saw that Terry was bleeding and ran to his home nearby and reported that Terry had been shot.

Somewhat similar testimony was given by Linda Crosley and by Donald Campbell. Donald also testified that Terry may have grabbed defendant’s shirt when he walked to the driver’s window of the Mustang, and that Terry then walked back towards Huber before the shot was fired but was not moving at the time he was shot.

Terry, a 20-year-old college student, was taken at once to the hospital where he died later that night. According to the testimony of Dr. Roberts who performed an autopsy there were powder burns on deceased’s neck, and the bullet punctured the right jugular vein so that blood filled the windpipe and lungs of the deceased. In answer to a hypothetical question Dr. Roberts expressed the opinion that deceased died as a result of the gunshot wound.

Linda Crosley had been able to get a part of the license number on the Mustang before it left the scene and the car was located about midnight in Wentzville, at which time defendant, Huber, and Thomas were arrested. It later developed that Huber had thrown the revolver out of the car at the time of his arrest and it was found at that place early the next morning. An officer testified that defendant denied knowing anything about the shooting at the time of his arrest.

The State obtained a tape recorded joint statement of defendant and Huber which was admitted in evidence and heard by the jury. We will not recite that testimony herein as defendant’s version thereof did not vary greatly from his testimony at the trial, which is hereinafter set out.

Defendant testified that he had stolen the .38 caliber revolver, which Huber had on the night of the killing, about three weeks before from a man called “Herb”; that he had purchased the Derringer in St. Louis about three years before the shooting; that in 1962 he dropped that gun and broke the pin which held the trigger; that he repaired it by replacing the pin with a small wire brad, and since that time the gun had been “real easy to trigger.” He further testified that on the night of the shooting, when the boy refused their offer to push the Volkswagen, someone said, “Let’s give them a push anyway”; that he backed the car up and pulled in behind the other car and “let it roll down and bump into” the Volkswagen; that at that time a boy, whom he later learned was Terry Aldrich, came back to his car, grabbed and tore his shirt, spilled his drink, and then said “Are you guys looking for trouble?”; that Huber got out and walked around the back of the car and the boy then let go of him and started back toward Huber; that he then opened his door and went back to where Aldrich was; that before getting out of the car he had obtained the Derringer from between the seat and the transmission; that he then walked toward Aldrich and put his hand on his arm and “I started to say something to him and had the gun in my hand, and when he turned around he bumped into me — turned into me — and when he did the gun went off”; that somebody said, “Let’s get in the car”; and “we ran and got in the car and took off.”

Defendant further testified that he knew that Huber, who was intoxicated, had the .38 revolver when he got out of the car; that when he first got out of the car he saw that Huber was pointing the gun at Aldrich.

On cross-examination he stated that his Derringer would not go off unless it was “cocked” and that he did not know it was cocked at the time of the shooting.

Both Walter Thomas and Lee English testified for the defendant. They each stated that when defendant got back in the car he said he didn’t mean to shoot the boy. English testified that in returning from St. Charles to O’Fallon defendant used country roads and “drove like a maniac.”

Additional evidence will be hereinafter stated in connection with our discussion of points raised on this appeal.

Defendant’s first assignment is that the court erred in submitting murder in the first degree. He says that the intentional killing of a human being with a deadly weapon is presumed to be second degree murder; that there was no proof of deliberation and hence the evidence did not overcome the presumption of second degree murder and a submission of first degree murder was not warranted. We do not agree. In this case the evidence was rather fully developed by eyewitnesses. There was evidence from which the jury reasonably could have found that after deceased grabbed defendant’s shirt defendant picked up the gun, tried to stop his car from rolling forward, got out of the Mustang, traveled a distance of at least ten feet, raised the gun so that it was pointing at deceased, and shot him in the neck while he stood motionless. That was ample evidence to reasonably support a finding of deliberation. The point is ruled adversely to defendant.

The Court gave instructions authorizing a conviction for murder in the first degree, second degree, and manslaughter. At the request of defendant an instruction was given which directed an acquittal upon a finding that the killing was accidental. In the first degree submission the jury was required to find that defendant shot the deceased “wilfully, feloniously, deliberately, premeditatedly and of his malice aforethought.” For his second assignment defendant says the instruction was erroneous because the definition of “deliberately” was incomplete. Since the quoted words have overlapping meanings, we set out the definition of all of them, as follows: “ ‘Wil-fully’, as used in these instructions, means intentionally, not accidentally. ‘Feloniously’ means wickedly and against the admonition of the law. ‘Deliberately’ means in a cool state of blood; that is, not in a heat of passion caused by some just provocation to passion. ‘Premeditatedly’ means thought of beforehand for any length of time, however short. ‘Malice’, in its legal sense and as used in these instructions, does not mean mere spite, ill will, hatred or dislike, as it is ordinarily understood, but it means that condition of the mind which prompts a person to intentionally take the life of another without just cause, justification or excuse, and signifies a state of disposition which shows a heart regardless of social duty and fatally bent on mischief. ‘Malice aforethought’ means malice with premeditation.”

In his motion for new trial defendant cites State v. Evans, 158 Mo. 589, 59 S.W. 994, in which (although not reversed for that reason) a similar definition of “deliberately” was said to be erroneous because it did not include the words considered or reflected upon. However, we note that in 11 Words and Phrases, p. 632, the precise definition here involved is given with thirteen Missouri cases cited in support thereof. See also State v. Bobbst, 269 Mo. 214, 190 S.W. 257, and State v. Hershon, 329 Mo. 469, 45 S.W.2d 60. We are inclined to the view that, in this instance, the definition would have been more complete, and hence preferable, if it had included words indicating that the act was the result of a formed design arrived at after some degree of reflection. However, under the facts of this case and upon a consideration of all the definitions in the instruction, we are convinced that the omission would not constitute reversible error. Under the various definitions in the instruction (considered together, as they must be) the jury was required to find that the act was intentionally done after having been thought of beforehand while defendant was in a “cool state of the blood.” We think that was sufficient and that the jury would not have been misled as to the requirements. Since there was no prejudicial error this assignment is disallowed.

The next assignment is that the trial court should have granted defendant a new trial because the jury reached a verdict 45 minutes after the case was submitted to it, thus indicating that the jurors were biased and prejudiced against defendant. There is no merit in that contention. Section 546.240 provides that “[w]hen the argument is concluded, the jury may either decide in court or retire for deliberation. * * * ” In discussing a similar contention we stated: “Nor does the fact that the jury deliberated but twenty minutes militate against the verdict or demonstrate that individual jurors did not have sufficient opportunity to weigh the evidence and express their separate opinions.” State v. Eckenfels, Mo.Sup., 316 S.W.2d 532, 534. See also State v. Payne, Mo.Sup., 342 S.W. 2d 950 [11]. In the case at bar the jury was not required to fix the punishment and the principal issue it had to decide was whether the shooting was intentional or accidental. We see nothing in the circumstances to indicate that the jury should have deliberated longer or that it was biased or prejudiced against defendant. As indicated, we rule this point against defendant.

Defendant’s fourth assignment is that the court erred in permitting an argument by the prosecuting attorney to the effect that “something had to be done about the defendant and the persons with him at the time of this incident and that if they did not do something to the defendant he would commit other crimes.” We have read the entire argument of the prosecuting attorney and we do not find any statement of that kind. He did make a rather strong plea for law enforcement and asked for a verdict which would deter defendant and others from the commission of crimes “like this.” That kind of argument is proper and we find no error in that regard. State v. Gridley, Mo.Sup., 353 S.W.2d 705 [11]. It is also contended that counsel for the State “improperly argued the prior conviction of the defendant and in connection therewith, the evidence of another crime for which there was no conviction, i. e., that prior to this homicide, some two weeks previous, the defendant had taken a gun from the home of another individual without his permission.” In reading the argument we find that the portion in which reference is made to other crimes was not objected to and hence the alleged error is not preserved for review. Moreover, we note that the mention of defendant’s other convictions (which defendant admitted in his testimony) was made in connection with an argument concerning defendant’s credibility which is entirely proper. In that connection defendant incidentally complains of the fact that the State was permitted to show on his cross-examination that he had taken a revolver without the permission of the owner, but we find that there was no objection to that testimony and defendant is therefore in no position to assign error in that regard.

Complaint is also made of the fact that a photograph of deceased was admitted in evidence and that his mother, in her testimony, volunteered the fact that deceased was her only son. While the photograph was admitted, the court did not permit it to be shown to the jury. When the statement was made that deceased was the only son of the witness defendant requested that the remark be stricken and the jury told to disregard it. The court granted the relief with the following statement: “Yes, the voluntary remark of the witness in the last statement was improper and will be ordered stricken and the jury instructed to disregard that statement.” Since the photograph was not shown to the jury, and the other requested relief was fully granted, we rule that no prejudicial error occurred.

A mailbox was located near the place where deceased was shot and the bullet apparently went through it. A picture of the mailbox, and also the mailbox itself, were admitted in evidence. In his next assignment defendant contends that the court erred in “allowing the counsel for the State to argue facts not in evidence with regard to the mailbox with the bullet hole in it and refused to instruct the jury to disregard the prosecuting attorney’s statements in the final half of his closing argument with regard to the trajectory of the bullet hole in the mailbox as being an evidentiary factor indicating the flight of the bullet, and further refused to the counsel for the defendant, even though he requested it, additional time to reply to the new argument and entirely new theory which counsel for the State brought up for the first time in the second half of his closing argument.” We find no merit in that contention. In regard to the suggestion that the argument related to new matter mentioned for the first time in the closing argument, the court ruled that it was proper rebuttal to defendant’s argument. Since defendant has not seen fit to include his argument in the transcript we must assume that the court was correct in that ruling. Defendant also says that there was no evidence as to the height of the mailbox from the ground, nor of the distance from the mailbox to the point where the shot was fired, but we note that the court sustained defendant’s objections to statements concerning “the height and the distance.” Xs indicated, this point is overruled.

The next assignment is that “the' court erred in permitting counsel for the State to inquire into evidence of another crime, i. e., the alleged threat by one Huber against witness Wells that he would kill her if she ratted on 'Chico’, for the reason that there was no showing that the defendant had anything to do with this threat or that he acquiesced in it or was in any way involved and the result of such inquiry further heightened and inflamed the bias and prejudice and passion of the jury and when coupled with the entire manner in which the counsel for the State conducted this trial resulted in the biased and prejudiced and passion-engendered verdict.” That point relates to testimony by Walter Thomas to the effect that after they had returned to O’Fallon, and Rose was seated in the front seat of the car between Huber and defendant, Huber put a gun to Rose’s neck and said he would kill her if she told or “ratted” on defendant. Assuming (but not deciding) that the evidence was inadmissible, we hold that proof that Huber committed a crime would not warrant a reversal of defendant’s conviction. Most complaints of this nature, and the cases relating thereto, concern proof of other crimes by a defendant. The evidence here in question indicates that Huber may have been guilty of exhibiting a deadly weapon in a threatening manner, as proscribed by § 564.610, but it is conceded that defendant had no connection with the commission of that crime. We have concluded that it was not reversible error to permit proof of another crime by one other than defendant even though it was in defendant’s presence and related to a matter in which he may have had an interest. The point is disallowed.

Defendant next contends that the court erred in not permitting him to testify as to what he was going to do when he got out of the car. That assignment apparently relates to the following portion of defendant’s testimony: “Q And it was at this point that you got out of the car? A Yes. Q What were you going to do? Mr. Dalton: Your Honor, I object to that, again. I think it is self-serving. The Court: Yes, I think you can ask him what he did do; not what he was going to do. The objection will be sustained. Q (by Mr. Sullivan) What did you do ?” As shown by the foregoing, defendant made no offer of proof as to what his answer would have been, and in that situation the alleged error is not before us for review. State v. Spikes, Mo.Sup., 367 S.W. 2d 515 [1]; Thayer v. Sommer, Mo.Sup., 356 S.W.2d 72 [11, 12],

It is also defendant’s contention that the court erred in failing to give an instruction on manslaughter by culpable negligence as a part of the law of the case. We have read that assignment many times and we cannot find any facts stated or any theory discussed which would have supported a culpable negligence submission. It would appear from defendant’s discussion of a case he cites that he would base the submission upon the fact that the gun was accidentally discharged. That con-clusionary statement would obviously not support the submission of “culpable negligence” which has been defined to mean “negligence of such reckless or wanton character as to indicate an utter indifference to the life of another.” State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374, 376.

Supreme Court Rule 27.20(a) provides that a motion for new trial “must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” In discussing that rule we recently said: “Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.” State v. Luttrell, Mo.Sup., 366 S.W.2d 453, 459. To like effect, see also State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335 [15], State v. Kukovich, Mo.Sup., 380 S.W.2d 324 [10], State v. Sprout, Mo.Sup., 365 S.W.2d 572 [9], State v. Pope, Mo.Sup., 364 S.W.2d 564 [2], and State v. Benjamin, Mo.Sup., 309 S.W.2d 602 [8]. As we have indicated, defendant in the case before us, has completely failed to specify any facts in evidence which would have supported a submission of manslaughter by culpable negligence. In that situation we rule that this assignment wholly fails to comply with S.Ct.Rule 27.-20(a) and hence does not preserve anything for review.

The court gave the following manslaughter instruction: “The court instructs the jury that ‘manslaughter’ is the killing of a human being not herein declared to be murder or excusable or justifiable homicide, and the court instructs the jury that if you find and believe from the evidence that the defendant killed the deceased while in the heat of passion on a reasonable provocation, without malice and without premeditation, as these terms are hereinbefore explained, and under circumstances not constituting justifiable or excusable homicide, as defined in other instructions, but that defendant in a sudden passion, on a reasonable provocation, intentionally shot and killed the deceased, without malice or premeditation, then the jury should find defendant guilty of manslaughter. Unless you so find the facts, you will find the defendant not guilty of manslaughter.”

Defendant says the instruction is erroneous because it did not contain a preface stating that if the jury found defendant not guilty of murder in the second degree it should then consider whether he was guilty of manslaughter. While we think such a statement would have been desirable, we do not consider its omission to be prejudicial. The instruction was complete and the jury would undoubtedly know that it could not find defendant guilty of more than one grade of homicide. Error is also assigned because the instruction contains the exception, “under circumstances not constituting justifiable or excusable homicide, as defined in other instructions,” when justifiable or excusable homicide is not defined in any other instruction. Under the circumstances of this case we do not consider that omission to be reversible error.

Defendant says the failure of the instructions to define those terms made the manslaughter instruction confusing and prejudicial, but he does not clearly specify the reason it does so. He does not contend that if the instructions had contained those definitions the jury would have found him guilty of voluntary manslaughter and hence would not have found him guilty of first degree murder. It would be difficult to reasonably so contend because the terms that were not defined did not relate to elements required for a finding of guilt but referred to defenses which, if so found, would have required an acquittal of manslaughter. In that connection it should be noted that justifiable homicide means a killing in self-defense and that there is no contention that such was a defense in this case. The reference to that defense was surplusage and there was no need to define it. State v. Westmoreland, Mo.Sup., 126 S.W.2d 202 [5]. In contending that “excusable homicide” should have been defined, defendant says, “How could the jury know that if they believed the gun was discharged accidentally they could * * * acquit the defendant?” A short answer to that question is that the court, at defendant’s request, gave an instruction to the effect that the defense in the case was that Aldrich came to his death by accident and that if the jury found that his death was accidental it should find defendant not guilty. We have considered the contentions advanced by defendant as to why the omissions under consideration would constitute prejudicial error and have decided that they would not warrant such a conclusion.

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

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    William M. JACKSON, (Plaintiff) Appellant, v. SKELLY OIL COMPANY, a Corporation, (Defendant) Respondent.
    No. 52584.
    Supreme Court of Missouri, En Banc.
    April 10, 1967.

      William A. Collet, Kansas City, for appellant.
    Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.
   HOLMAN, Judge.

On April 9, 1962, a collision occurred between plaintiff’s automobile and a tractor-trailer tank truck belonging to defendant. Plaintiff thereafter filed this suit seeking to collect damages resulting therefrom in the sum of $10,000. A trial resulted in a verdict for defendant. Plaintiff appealed to the Kansas City Court of Appeals. That court adopted an opinion reversing the judgment and remanding the case for a new trial. Upon defendant’s application we ordered the case transferred to this court. It will be determined here “the same as on original appeal.” Civil Rule 84.05(h), V.A.M.R. and Mo.Const. Art. V, § 10, V.A.M.S.

The collision involved occurred on an access ramp to the west end of the Intercity Viaduct which connects Kansas City, Kansas, and Kansas City, Missouri. Near the access ramp Armstrong Street runs east and west. It intersects north-south Fourth Street. Approximately one block north of Armstrong is the point where the access ramp curves to the right (east) from Fourth Street to the viaduct.

At the time in question plaintiff was going from his place of employment in Kansas City, Kansas, to his home in Kansas City, Missouri, and was driving a 1957 Plymouth automobile. The defendant’s vehicle consisted of a tractor pulling a 49-foot tank trailer and was being driven by Marshall W. Hatfield. Plaintiff was the only eyewitness to the collision. The facts relating to it come from his testimony and from the testimony of Hatfield and a police officer concerning statements made by plaintiff shortly after the collision.

Plaintiff testified that he was proceeding west on Armstrong and stopped at the four-way stop intersection with Fourth Street; that he then turned right and drove north on Fourth Street for a short distance, and then entered the access ramp and proceeded to a point about 25 feet from the point of entry onto the Intercity Viaduct; that he was in the right lane and his car was almost against the right curb; that he had stopped because traffic on the ramp had stopped to yield to traffic on the viaduct; that the defendant’s tractor-trailer then came alongside his car and as it passed a valve box located about the middle of the trailer hit his car, and immediately thereafter the right back tire of the trailer also hit it; that the impact caused damage to his left front fender and other damage farther back on the left side of his car; that defendant’s truck did not stop but entered the viaduct and continued to cross it; that he followed the truck in his car and was able to come alongside the truck near the east end of the viaduct; that after he motioned to the driver the defendant’s truck stopped and he told Mr. Hatfield about the collision; that they examined the truck and found red paint on the valve box and on the rear tire which matched the paint on his car; that they then went back to the Kansas end of the viaduct where Hatfield called the police and they made a report to the police officer. Plaintiff further testified that the ramp was wide enough for two cars to operate side by side; that his speed did not exceed 15 miles per hour as he proceeded up the ramp and that he was completely stopped at the time of the collision. He stated that he was not aware of the fact that on a sharp curve the rear wheels of a trailer “cut across and can’t follow the path of the wheels of the tractor.”

The police officer testified that he was called to the scene of the collision and interviewed both of the drivers. He quoted plaintiff as saying that “he was going north on Fourth Street and was in the turn going onto the Intercity Viaduct; * * * was alongside the right side of the trailer when he saw this trailer moving over, so he stopped, when right rear of trailer swung over and hit his left front fender. * * * that when he first noticed there was any danger of an accident he was going about ten miles an hour.”

Mr. Hatfield testified that he never saw plaintiff’s car and did not know of the collision until plaintiff stopped him and told him about it; that he and plaintiff went back to the scene of the collision and plaintiff pointed out where it occurred; that plaintiff stated that the collision occurred near the point where the ramp left Fourth Street which would be approximately 80 feet from the point it enters Intercity Viaduct; that plaintiff further stated, “he couldn’t get by me. * * * he was behind me and stopped on this curve. When I hit the curve he went up behind me on the curve.”

In describing his own actions Mr. Hatfield stated that he stopped at the four-way stop sign and then turned to his right on Fourth Street; that at that time there was no one on his right and when he made his turn from Fourth Street onto the ramp his tractor was in the left lane and the back end of his trailer was in the right lane; that the ramp was not wide enough for a tractor-trailer and a car to proceed alongside each other at the same time; that in making the curve on the ramp his trailer would occupy at least half the right lane.

As will be noted from the foregoing the principal conflict between plaintiff’s and Hatfield’s testimony as to what plaintiff said is that plaintiff placed the point of collision near the east end of the ramp while Hatfield said that plaintiff, in describing the collision shortly after it occurred, had stated that it happened near the west end or entrance of the ramp; and plaintiff testified that his car was ahead of defendant’s tractor-trailer and he had stopped and was struck as defendant was passing him, while Hatfield quoted plaintiff as saying that he was behind the defendant’s vehicle and had overtaken it and was apparently trying to pass at the time the trailer came over into the right lane and struck his car.

Plaintiff’s case was submitted upon a finding of defendant’s negligence in that its driver: “(a) moved into plaintiff’s lane at a time when it was not reasonably safe to do so, or (b) failed to keep its vehicle under proper control, or (c) failed to keep a careful lookout.”

The sole contention of error • upon this appeal is that the court erred in giving Instruction No. 5, at the request of defendant, which reads as follows:

“Your verdict must be for the defendant (whether or not defendant was negligent) if you believe, First, plaintiff either (a) failed to keep a careful lookout, or (b) drove alongside of the moving Skelly truck while both vehicles were on the access ramp; and Second, plaintiff’s conduct in any one or more of the respects submitted in paragraph First was negligent ; and Third, such negligence of plaintiff directly caused or directly contributed to cause any injuries and damage plaintiff may have sustained.”

Plaintiff says the court erred in giving that instruction because there was no evidence to support either of the grounds of negligence submitted therein. In his motion for new trial he stated the contention as follows:

“The Court erred in giving at defendant’s request Instruction No. 5 submitting to the jury the issue of plaintiff’s alleged contributory negligence in view of the fact that there was no evidence in the record upon which the jury could find that plaintiff was contributorily negligent.”

It will therefore be seen that he does not complain of the form or content of the instruction but only that the evidence did not support it. In that situation we need not (and do not) approve or disapprove the form and content of the instruction.

In determining whether defendant’s Instruction No. 5 was supported by evidence we must consider the evidence in the light most favorable to defendant and give it the benefit of any favorable inferences that may reasonably be drawn therefrom, and disregard plaintiff’s evidence unless it tends to support the grounds of contributory negligence submitted in the instruction. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656.

Considering in reverse order the two items submitted we think it is obvious that the evidence supported item (b) which was that plaintiff drove his car alongside the moving truck while both vehicles were on the access ramp. Defendant’s driver, Hatfield, and the police officer both testified that plaintiff made statements indicating that he was driving his car alongside the trailer when he noticed that the trailer was moving over toward his car.

We have also concluded that the evidence supported item (a) of the instruction, i. e., that plaintiff “failed to keep a careful lookout.” Plaintiff says the evidence did not support the submission because all of the evidence indicates that he saw the trailer and stopped his car before it was struck. We agree that such was the evidence but we do not agree that such evidence would bar the submission.

In considering the subject of lookout we have said that the “object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions. It is only because of that knowledge and awareness that the operators of motor vehicles may-take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril.” Miller v. St. Louis Public Service Co., Mo.Sup., 389 S.W.2d 769, 771. The Virginia Supreme Court has stated the rule in this fashion: “The law requires the driver of a car to keep a proper lookout, in order that he may avail himself of what the lookout discloses to prevent injury to himself as well as to others. Keeping a lookout is without avail unless one utilizes the information thereby secured. One who keeps a lookout, and fails to take advantage of what it discloses, is as guilty of negligence as one who fails to keep a lookout.” Yellow Cab Co. of Virginia v. Gulley, 169 Va. 611, 194 S.E. 683, 686. See also, 2 Blashfield Auto Law 3rd Ed., § 104.1, p. 266, wherein it is said that “The duty of a motorist to maintain a lookout involves not only the physical act of looking but also a reasonably prudent reaction to whatever danger has been disclosed * * *.” Similar rules are stated in 60 C.J.S. Motor Vehicles § 284 c; Penoso v. D. Pender Grocery Co., 177 Va. 245, 13 S.E.2d 310, Humphries v. Gray, 305 Ky. 206, 203 S.W.2d 8, and Bowers v. Treuthardt, 5 Wis.2d 271, 92 N.W.2d 878.

This court has also said that in fulfilling his duty to keep a careful lookout the operator of the vehicle is “required to look in such an observant manner as to enable him to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances.” Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 82.

As indicated by the rules heretofore quoted it is our view that plaintiff could not satisfy the duty of keeping a careful lookout by looking and seeing the trailer on the access road. There was evidence that the access road was narrow for two-lane traffic (from 12 to 15 feet wide) and that it curved sharply for a considerable distance from the point where it left Fourth Street. Although plaintiff said he did not know it at the time, all parties now concede that plaintiff’s car and the tractor-trailer could not traverse that curve side by side without colliding. That resulted from the fact that by reason of the sharp curve the rear part of the trailer would not follow the path of the wheels of the tractor but would cut across and occupy a substantial part of the right lane.

In view of the foregoing evidence we think a jury reasonably could have found that if plaintiff had been keeping a careful lookout at the time his car overtook the trailer and was being driven near the rear thereof he would not only have seen the trailer but would have become aware of the dangerous situation into which he was about to enter and hence, in the exercise of the highest degree of care, would have refrained from attempting to pass the trailer or to otherwise drive alongside it.

It follows from what we have said that the favorable evidence was sufficient to support the submission of plaintiff’s contributory negligence in failing to keep a careful lookout. Since we have ruled that the evidence supported both items submitted in Instruction No. 5, and since that is the only contention of error plaintiff has suggested in regard thereto, we accordingly rule that the court did not err in giving that instruction.

The judgment is affirmed.

All concur.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Janies Winston HARRIS, Appellant.
    No. 52082.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Sp. Asst. Atty. Gen., Clayton, for respondent.
    Gerald D. Moris, St. Louis, for appellant.
   HOLMAN, Presiding Judge.

The indictment in this case charged defendant with the offense of murder in the first degree. The jury found him guilty of murder in the second degree. Since it was alleged and proved that he had been convicted of two prior felonies, and imprisoned thereon, the court determined his punishment which was fixed at imprisonment for a period of twenty years. See §§ 559.010, 559.020, 559.030, and 556.280, RSMo 1959, V.A.M.S. Defendant has appealed.

The evidence on the part of the State tended to show that Bobby Davie, Billie Guthrie, Alfred Williams, and Bobby Crawford all gathered at the Crawford home in St. Louis, Missouri, shortly after midnight on the early morning of February 27, 1965, where they drank a quantity of whiskey and beer. They later walked to a nearby restaurant where they visited and drank coffee for a time, and then proceeded to Irene’s Coffee Shop at 1705 Franklin, arriving at about 4 a. m. Although the coffee shop was crowded, with some 30 or 40 people, they obtained a table and some of them ordered more coffee. Shortly after they arrived Crawford went to the toilet located in the rear of the building and Alfred (hereinafter referred to as deceased) went to the front of the shop and sat down in a chair by the vending machine. Shortly thereafter deceased was shot in the left temple with a gun in the possession of defendant, and this wound admittedly caused his death which apparently occurred immediately.

Irene Wiley testified that she saw defendant when he entered her coffee shop about five minutes before the shooting and that she “didn’t like the expression on his face”; that defendant then walked over by the vending machine where deceased was sitting and took a gun out of his belt and shot deceased; that he then put the gun back in his belt and left by the front door; that deceased had nothing in his hands, was seated, and was not making any motions of any kind.

Bobby Davie testified that he had known defendant for two or three months and that he and deceased had roomed together for several months prior to the shooting; that after they arrived at Irene’s on this occasion defendant came in and grabbed his coat and asked him why he hadn’t called, and the witness replied, in effect, that he had called but that defendant was not home; that at about that time deceased came back to their table and obtained a cigarette and then went back to the front and sat down by the vending machine; that shortly thereafter he heard a shot, and when he looked up he saw defendant with a gun in his hand, moving it back toward his belt, and that defendant then turned and walked out the door; that deceased slumped down in his chair and, at Irene’s request, his body was removed from the restaurant and placed on the sidewalk in front; that he saw no knife or other weapon in deceased’s hands and there was nothing of that kind around the chair where deceased had been seated.

Shortly after the shooting defendant went to the home of Peggy Damous where he left the gun. A little later he and Peggy went to the home of his sister. At about noon defendant had a neighbor of his sister call off-duty policeman Nowland Brown. Brown talked with defendant on the phone before going to the residence of defendant’s sister where he placed defendant under arrest. Brown then took defendant and Peggy to Peggy’s home where Peggy gave the gun to defendant and defendant gave it to Brown.

Defendant was the only witness offered by the defense. He testified that he was in Irene’s Coffee Shop from 2:30 a. m. until about 4 a. m. on February 27, 1965; that he saw deceased and his three companions enter the coffee shop shortly before 4 o’clock. He stated that he had a conversation with the deceased about a girl, at which time deceased grabbed him by the coat and pulled out a knife; that deceased released him but that a few minutes later he had another conversation with deceased in which the subject was money; that deceased then grabbed him with his left hand and pulled him off the chair on which he was sitting and then pulled the knife out of his pocket with his right hand, at which time he, the defendant, pulled a pistol out of his waistband with his right hand; that deceased hit the pistol and it discharged. He denied that he intentionally shot deceased. Defendant further testified that “the fellows pushed me out the door” and he took a cab and went to Peggy’s house; that he and Peggy then went to his sister’s home and, later that day, used the telephone next door and called the police. On cross-examination defendant stated that he had won this gun in a crap game earlier that morning and that he didn’t know it was loaded.

The court gave instructions submitting murder in the first degree, second degree, and manslaughter. Instructions were also given submitting the defenses of self-defense and accidental shooting.

The first point briefed relates to the testimony of Joseph Harr who was offered as a rebuttal witness by the State. Harr, a detective in the police department, testified that he questioned defendant after his arrest. He stated that the defendant talked with him about the occurrence in the coffee shop but the witness did not purport to relate the conversation. In an effort to rebut defendant’s testimony the State elicited testimony from this witness that when he asked defendant what happened defendant did not tell him that deceased touched him, or had a knife, or that the gun went off when deceased grabbed him and hit his arm. He stated that in obtaining certain information from defendant no force was used and no threats or promises were made. He was not asked whether he told defendant of his right to counsel or to remain silent.

Defendant contends that he should be granted a new trial because he has been deprived of his rights under the Fifth and Sixth Amendments to the United States Constitution. He concedes that he made no appropriate objection to the testimony, that it was not mentioned in his motion for new trial, and hence that the point was not preserved for appellate review. It is asserted, however, that a miscarriage of justice resulted from the admission of that evidence and that we should review the contention under the “plain error” rule. See S.Ct. Rule 27.20(c), V.A.M.R.

We see no reason for reviewing this contention under the plain error rule. This case was tried prior to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that case would not afford defendant any relief. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Also, we do not see that there was any violation of the holding in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See State v. Beasley, Mo.Sup., 404 S.W.2d 689. Moreover, we are mindful that there was no proof of a “confession” in the usual sense. Here, in an effort to discredit defendant’s testimony, there was a showing that certain facts he related in his testimony were not stated to the police officer when he talked with him about the occurrence. Under the circumstances stated we do not deem it appropriate to consider this point under Rule 27.20(c).

The second point briefed is that the trial court abused its discretion and therefore committed prejudicial error in refusing to grant defendant a new trial because of newly discovered evidence. In support of that assignment there was attached to the motion for new trial an affidavit by defendant’s attorney wherein he stated that “immediately upon conclusion of the trial of this case, it was brought to the attention of your affiant by Mr. Melvern F. Reinhardt, one of the jurors who tried this case, that State’s Exhibit No. 1, alleged to be the gun which caused the death of Alfred Williams, was not in proper operating condition in that the gun would not ‘cock’, that is, be set in a firing position by pulling back the hammer, and the trigger was extremely hard to pull. Thereafter, your affiant consulted with a person who is expert in firearms and was informed that if the hammer mechanism on a revolver of practically any type is broken or worn so that the full pressure of the hammer rests directly on the firing pin it is very likely that a sudden blow or bump would cause the gun to discharge without the trigger being pulled or the hammer being pulled back and released. * * * that it was never brought out in trial that defendant would have said he did not pull the trigger and your affiant states that he did not learn of the worn or broken condition of Exhibit No. 1 until after the trial. * * * that the above described evidence goes to the essence of the questions of intent and accident presented in this case.”

The requirements for securing a new trial because of newly discovered evidence are “(1) that the evidence has come to the knowledge of the defendant since the trial, and (2) that it was not owing to his want of due diligence that he did not discover it sooner, and (3) that the evidence is so material that it would probably produce a different result on a new trial, and (4) that it is not cumulative only or merely impeaching the credit of the witness.” State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113. In this case it would have been relatively easy to have obtained possession of the gun prior to the end of the trial and, by examination, to have determined its “operating condition.” Also, defendant’s attorney could have determined at any time what defendant would have said about whether he pulled the trigger by merely asking him. It therefore appears that there was a lack of diligence in failing to discover this evidence prior to or during the trial. Moreover, the effect of defendant’s testimony was that the gun was accidentally, rather than intentionally, discharged and hence the newly discovered evidence would not likely have produced a different result. We are convinced that the trial court did not abuse its discretion in refusing to grant a new trial upon this assignment.

During the examination of Irene Wiley the following" occurred: “Q What did he have in his hand? A Apparently it was the murder weapon.” Defendant immediately objected and the court sustained the objection and directed the jury to disregard the answer. Defendant then moved for a mistrial which was denied. After that ruling the court again instructed the jury to disregard the answer. It is here contended that the use of the word “murder” in the answer was so prejudicial that the court abused its discretion in failing to declare a mistrial. We do not agree. It seems apparent to us that the word “murder” was used simply as a descriptive term in order to indicate that the gun was the one used in the homicide. Certainly, a reasonably intelligent jury would not consider that Mrs. Wiley was attempting to pass on all of the legal and factual elements to be considered in determining whether or not the killing constituted murder. Also, it must not be overlooked that the court twice told the jury to disregard the answer and we may reasonably assume that the jury did so. We see nothing to indicate that the trial court abused its discretion in denying the motion for a mistrial. State v. Camper, Mo.Sup., 391 S.W. 2d 926.

Near the end of the closing argument of the assistant circuit attorney the following occurred: “Mr. Fredericks: * * * if this man is guilty your verdict should be such that it is a deterrent to others, a deterrent to others to carry a gun, a deterrent to others to bring a gun into a crowded place, a deterrent to shoot another man in his head— Mr. Morris: I object; carrying a gun, that is not in this case. The Court: I strike out, and the jury will disregard, the reference to the carrying of the gun.” The effect of the court’s ruling was to sustain the objection and to instruct the jury to disregard the portion of the argument objected to. Defendant concedes that he received all the relief requested, but in his motion for new trial he contended that the argument was so prejudicial that the court should have granted a new trial under the plain error rule. He here contends that we should review the argument under the plain error rule and grant a new trial by reason thereof.

While we doubt that the reference to carrying a gun was improper, it will be noted that the jury was instructed to disregard that portion of the argument and we consider that action sufficient to eliminate any possible prejudice that might otherwise have occurred. The principal contention advanced here is that it was prejudicial for the assistant circuit attorney to argue that the verdict should be such that it would be a deterrent to others when, as in this case, the jury would only determine guilt or innocence and would not fix the punishment. We see no merit in that contention. It is not improper to argue that guilty persons should be convicted in order that others be deterred from the commission of crime. The fixing of punishment is secondary; but a finding of guilt is basic and fundamental to any argument that the verdict should be such as to deter others from the commission of crime. The trial court denied the contention under consideration in overruling the motion for new trial. We are convinced that the court did not abuse its discretion in so ruling. As indicated, this point is disallowed.

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

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    LINWOOD STATE BANK, a Corporation, Plaintiff-Respondent, v. Laclede LIENTZ, Defendant-Appellant, W. C. Teghtmeyer, Charles W. Marsh, Spencer Norton and Donald G. Rumsey, Defendants, and Rodney HILL, Third-Party Defendant-Respondent.
    No. 52168.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 10, 1967.

      Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondent.
    Billy S. Sparks, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for appellant.
   WELBORN, Commissioner.

The Linwood State Bank sued the appellant here, Laclede Lientz, and four co-guarantors to recover $44,237.89 upon their guaranty of obligations of The Lientz Company, Inc. Appellant Lientz denied liability on the guaranty agreement and cross claimed against his four coguarantors for any amount for which he might be found liable to the bank. Lientz also filed a similar claim against third party defendant Rodney Hill. The trial court directed a verdict in favor of Hill. A jury found in favor of the bank and against the five co-guarantors in the sum of $43,114.38 and in favor of Lientz in a like amount against his four coguarantors. Lientz is appealing from the judgment in favor of the bank against him and from the judgment in favor of Hill upon Lientz’s claim against him.

Lientz Company, Inc., incorporated in 1958, was engaged in the business of manufacturing power burners. Appellant, La-clede Lientz, had been president of the corporation prior to 1960. After that time, when he disposed of his controlling stock interest, he was a director of the company. The other defendants, W. C. Teghtmeyer, Charles W. Marsh, Spencer Norton and Donald G. Rumsey, acquired the controlling interest in the corporation. Teghtmeyer, Marsh and Norton became the executive officers of the corporation and, along with Lientz, members of its board of directors.

In 1960, the corporation negotiated a Small Business Administration loan through the Southgate State Bank in Kansas City. The Lientz directors executed a guaranty agreement in connection with this transaction.

In August or September, 1961, the corporation began borrowing at the Linwood State Bank. Originally the borrowing there was small. When the corporation required additional funds to carry out a $300,000 contract, the Linwood State Bank, according to the testimony of its officers, agreed to advance the corporation the necessary credit on the basis of a purchase order assignment under the $300,000 contract and the execution by the directors and principal shareholders of the corporation of a guaranty agreement. The guaranty agreement, on which this action was based, was signed by Teghtmeyer and Norton in the presence of Mr. Price, the bank president. Teghtmeyer and Norton took the guaranty-form with them and obtained the signatures of Marsh, Rumsey and Lientz and returned the signed instrument to the bank at around its date, January 11, 1962.

Credit was extended by the bank to the corporation from time to time, with payments being credited against the indebtedness from time to time.

In March, 1963, Lientz and members of his family contracted to sell to the corporation the remainder of their stock holdings. The contract required that within six months the corporation change its name by eliminating the word “Lientz.” In December, 1963, as a result of a lawsuit by Lientz, the corporation changed its name to Technology, Inc.

In December, 1963, an involuntary petition in bankruptcy was filed against the corporation. On December 31, 1963, the bank made demand against the five guarantors for the $43,114.38 principal amount, represented by two demand notes, of the corporation’s indebtedness to the bank. Upon failure of the guarantors to make payment, this action was filed.

Marsh, Norton, Rumsey and Teghtmeyer, by their pleadings, admitted the execution of the guaranty. Lientz’s answer denied execution of the guaranty. However, by a pleading denominated a counter claim, he alleged that he executed the guaranty upon the representation that it would be delivered to the bank only in connection with the bank’s taking over the Southgate Small Business Administration loan, which the Linwood State Bank did not do; denied that the corporation was authorized to borrow from the Linwood State Bank; alleged that the transactions between the Lientz Company and the Linwood State Bank were the result of the actions of Rodney Hill, an officer of the bank whom the bank had caused to be placed on the board of directors of Lientz. He named Hill as a third party defendant and sought judgment against him. Lientz also cross claimed against his coguarantors. The other cross claim defendants filed no responsive pleading.

The trial resulted in a directed verdict in favor of Hill on Lientz’s third party claim and jury verdict in favor of the bank on its claim against all defendants and in favor of Lientz on his claim against the coguaran-tors. Only Lientz has appealed, complaining of the judgment favorable to the bank and Hill.

On this appeal, Lientz’s first contention is that he was entitled to judgment on the bank’s claim because there was no evidence that the bank communicated to him its acceptance of his offer of guaranty. Without getting into the question of whether or not the guaranty here was an offer of guaranty or an absolute contract of guaranty (see 24 Am.Jur., Guaranty, § 37, p. 899), the question of acceptance is eliminated by the terms of the instrument whereby the guarantors waived any notice to that effect. See Industrial Bank & Trust Co. v. Hesselberg, Mo.Sup., 195 S.W.2d 470, 473-474 [4-11]. The language of waiver is clear as contrasted with that relied upon in Ladd & Bush v. Hayes, 9th Cir., 105 F.2d 292, cited by appellant.

Appellant’s second objection is that the borrowing by the Lientz corporation from the bank was not authorized, as required by the corporation’s bylaws, by a resolution of the corporation’s board of directors. Lientz argues that the borrowing was therefore illegal, that Hill, as a director of Lientz, was chargeable with knowledge of the lack of proper authorization of the borrowing and that by virtue of Hill’s official position with the bank, the bank was likewise chargeable with notice of the lack of authority. Lientz also claims that he brought the lack of proper authority to Hill’s attention.

Lientz Company, Inc.’s bylaws prohibited incurring indebtedness “except by resolution of the Board of Directors, duly passed.” No record of the passage of a resolution authorizing borrowing from Linwood was found in the Lientz Company minutes. However, the bank did produce from its file what had been presented to it as, and appeared on its face to be, a certified copy of a resolution of the Lientz directors, enacted August 9, 1961, authorizing the president, secretary or treasurer of the corporation to procure loans from Linwood. The instrument bears the signatures of Teght-meyer as President, Norton as Treasurer and Marsh as Secretary. It is certified by Marsh as a true copy of a resolution passed by the Lientz directors and also by Norton. Appellant Laclede Lientz’s signature is not on the document and he denied knowledge of the passage by the board of directors of any such resolution.. The Lientz Company’s minute book contained no record of a directors’ meeting on August 9, 1961.

This deficiency, however, may not be taken advantage of by appellant. He acknowledged that he was aware of the borrowing from Linwood and that the funds borrowed were employed for corporate purposes. He also acknowledged that he did not inform the bank that the borrowing was not properly authorized, stating, “I wasn’t there to protect the Linwood State Bank.”

Lientz Company, Inc., would not be permitted to avoid the obligation on the grounds of lack of authority of its officers. The law in this regard is stated in Farmers & Merchants Bank v. Burns & Hood Motor Co., Mo.App., 295 S.W.2d 199, 202, as follows :

“Although the instant note was conced-edly executed by the president of defendant company, in the absence of express authority from the board of directors, and therefore contrary to the provisions of the applicable by-law, we must nevertheless hold that the note constitutes a binding obligation. This follows because the law is well settled that where, as here, a corporation with knowledge of the act has ratified it, or has accepted the consideration of the note, it will be as much bound as if the note had been originally executed in exact conformity with the provisions of its bylaws.”

See also Wilks v. Stone, Mo.App., 339 S.W.2d 590, 595; Milligan v. G. D. Milligan Grocer Co., 207 Mo.App. 472, 233 S.W. 506, 508; 2 Fletcher, Cyclopedia of Corporations, § 430, p. 297; 19 Am.Jur.2d, Corporations, § 1255, pp. 661-663. The appellant-guarantor stands in no better position than the debtor, and, therefore, cannot avoid the obligation on this ground. Pulitzer Publishing Co. v. Chitwood, Mo.App., 9 S.W.2d 251, 252 [2]; 38 C.J.S. Guaranty § 43, p. 1192.

Appellant contends that the fact that Hill, an officer of the bank, was a member of the Lientz board at the time of the borrowing makes inapplicable the rules above referred to.

Transactions involving corporations having directors or officers in common may present problems. See Annotations “Validity of contract between corporations as affected by directors or officers in common,” 114 A.L.R. 299, 33 A.L.R.2d 1065. Hill was elected to the Lientz board of directors on January 13, 1962. The borrowing from the bank was not his idea as a member of the Lientz board. The arrangements for the borrowing had been made prior to his election to the board. No evidence was presented as to the role of Hill in the transactions which followed between the bank and the corporation, other than Hill’s testimony that he represented the bank when the notes which are the basis of .the plaintiff’s claim were prepared by him and signed by Norton on behalf of the corporation. There is no showing whatsoever that the transactions between the bank and the corporation were unfair. See 19 Am.Jur.2d, Corporations, § 1307, p. 714. Appellant points out no evidence that Hill, as director of the corporation, took advantage of his position on the Lientz board to benefit the bank at the expense of the Lientz corporation.

Appellant argues further that, hy reason of Hill’s membership on the Lientz board, the bank is chargeable with knowledge that its loans to Lientz had not been properly authorized. According to appellant, the bank’s knowledge thereby acquired of the absence of authority for the loans would prevent its recovery against the borrower and precludes recovery on the guaranty.

Appellant states that he protested repeatedly at the Lientz directors’ meetings that the borrowing from the Linwood bank was illegal. However, insofar as the evidence shows, those protests were based upon Lientz’s contention that the Southgate Small Business Administration loan prohibited the additional borrowing. On his deposition, he stated that he had not called the attention of any officer or representative of the Linwood bank to the fact that there was no proper corporate resolution authorizing such borrowing. At the trial, Lientz stated that he did not tell the Linwood State Bank that there was no authorization of the borrowing because “I wasn’t there to protect the Linwood State Bank.” Since Hill was, as Lientz knew, an officer of the Linwood State Bank, we must take his testimony to mean that he never told Hill of the 'lack of authority. The fact that he protested the borrowings on other grounds would not put Hill on notice about the resolution.

Lientz would charge Hill with constructive knowledge of the lack of authority. He argues that Hill was chargeable with knowledge of the requirements of the company’s bylaws, as he undoubtedly was. 18 C.J.S. Corporations § 180, p. 590. However, the knowledge of the bylaws is not what appellant seeks to impute to Hill. It is knowledge that what had been presented as evidence of compliance with the bylaws had not been properly enacted. The circumstances surrounding the preparation of the purported resolution of the Lientz directors does not appear. However, on its face, it purports to show due enactment of the resolution by the board of directors and proper authorization for the borrowing. It shows that the resolution was adopted August 9, 1961, long before Hill became a member of the Lientz board, and before he had any dealings whatever with the Lientz account. In such circumstances; Hill should not be charged with a duty to examine the corporate records or with knowledge of what such examination would have revealed. Furthermore, since Hill’s knowledge would be constructive only, it is doubtful that such knowledge would be imputed to the bank. See 1 Rest, of Agency (2d), § 277, p. 604.

Appellant’s next contention is that the forms of verdict submitted to the jury by the court did not permit a finding in favor of the plaintiff against less than all of the defendants. Appellant argues that the jury evinced a desire to find in his favor upon the bank’s claim, but that the court’s instructions and the forms of verdict submitted did not permit the jury to do so. Appellant states that the guaranty instrument, by its terms, creates several liability on the part of the guarantors and, therefore, plaintiff was required to establish its claim against each of the defendants, and each of the defendants might have urged a separate defense, valid only as to himself. Appellant argues that he did present a valid defense of conditional delivery of the guaranty as to him and other defenses which the jury might have found valid only as to him. Appellant also points out that he was the only guarantor who sought to establish such defenses at the trial and therefore the court should have permitted the jury to give separate consideration to his liability.

The guaranty agreement provided that its obligations were “the several obligations and agreements of each of the undersigned * * However, appellant has ignored the language following that which he relies upon, to-wit: * * * but at your option any or all may be enforced against any or all of the undersigned jointly.” That option was exercised by plaintiff in its petition wherein it alleged that the defendants had “personally guaranteed to the plaintiff, jointly and severally, the payment of any and all sums lent or to be lent by the plaintiff to The Lientz Company, Inc.” The prayer of the petition prayed “joint and several judgment against said defendants * * *.” See §§ 431.140 and 431.150, RS Mo 1959, V.A.M.S.

In this action to enforce the joint and several liability of the defendants, Lientz was allowed to present defenses applicable to himself only and also, as he endeavored to do, applicable to the liability of all of the guarantors. If, however, he failed to establish his personal defenses, the jury could not have, consistently' with the evidence presented upon the liability of the defendants, have returned a verdict in favor of Lientz alone. If, therefore, Lientz did not present evidence justifying the submission of his personal defenses, the verdict form instruction cannot have been prejudicial to appellant.

As above pointed out, appellant’s alleged defenses based upon the failure of the bank to notify him of its acceptance of the guaranty, upon the absence of a properly adopted corporate resolution and upon the dual role of Hill are without merit. Lientz also attempted to submit a defense of waiver, which the court properly rejected, the defense not having been pleaded (Civil Rule 55.10, V.A.M.R.), and there being no evidence to support it.

The defense of conditional delivery of the guaranty was based upon the testimony of Lientz that he signed the guaranty at Norton’s request and upon Norton’s assurance that the guaranty would be delivered to the Linwood State Bank only if that bank took over the Southgate Small Business Administration loan. However, such condition must have been known to the bank or the bank must be chargeable with notice of it if failure to comply with the condition is to permit Lientz to avoid liability. 24 Am.Jur., Guaranty, § 39, p. 900. The bank officials who testified did state that there was at one time some discussion about the Linwood bank’s taking over the Southgate loan, but this was not done. However, Mr. Price, the Linwood president to whom the guaranty was delivered, stated categorically that no conditions were attached to the delivery of the instrument. There was no other testimony pertaining to the communication to the bank of any condition upon delivery of the guaranty.

Appellant argues that the jury could have found knowledge on the part of the bank of the condition under which Lientz executed the guaranty from Hill’s silence when Lientz inquired about the corporation’s borrowings. We fail to see where such circumstances would support the inference which appellant would draw.

Appellant also points to Hill’s failure to-make any reference to the guaranty to Linwood when, in March, 1963, while Hill was on the Lientz board, the corporation contracted to purchase the balance of Lientz’s stock. This silence is allegedly significant in view of the reference in the contract for the sale of the stock to the fact that Lientz and others had executed guaranties in connection with the South-gate loan. Again, we fail to see how the conclusion which appellant would draw may be obtained from such fact. The contract did recite that the Lientz stock had been pledged in connection with the Southgate loan and a guaranty executed in connection with the transaction. However, there would appear to have been no reason to refer to the Linwood transaction, which did not involve any sort of pledge of the guarantors’ stock in the corporation.

Appellant finds error in the form of submission in that, according to him, it permitted the bank’s counsel to argue that an inference unfavorable to Lientz might be drawn from the failure of his co-guarantors to testify. However, the court did not so rule. It sustained appellant’s original objection to such argument. One objection to plaintiff’s counsel’s remarking on the failure of Rumsey, although present in the courtroom, to testify, was overruled. However, error in that ruling is not here assigned, and we cannot presume that the court’s ruling was based upon its form of verdict instruction.

Appellant also argues that the form of jury instruction permitted evidence and admissions properly applicable to only one defendant to be considered as to all. His four coguarantors did admit that the balance owed by the corporation to the bank was $43,114.38. The appellant made no such admission, although he in no way contested the bank’s documentary evidence of the amount owed. However, when the admissions of the four codefendants were offered, appellant made no request that the admissions be given effect only as to those four defendants. Furthermore, no objection was made to the bank's attorney’s use of these admissions in final argument. Appellant may not now relate such admissions and argument to the form of jury instruction and predicate error thereon.

[11] He also points to the fact that by virtue of the jury verdict form instruction, statements by Norton regarding the delivery of the guaranty might have been considered by the jury against appellant. However, when the evidence was presented, it was limited in its application to Norton alone and the jury advised to recall such limitation in connection with the closing argument.

Appellant also attacks the verdict forms submitted on the grounds that as to him the jury might have concluded that the plaintiff failed to carry its burden of proof and that the jury was entitled to consider separately the proof as against each defendant. Lientz acknowledged that he signed the guaranty. In view of such acknowledgment, the jury could not have consistently found against the other guarantors and in favor of Lientz. Therefore, the court was not required to submit the verdict form prescribed by MAI 32.05.

Appellant advances numerous objections to the plaintiff’s verdict-directing instruction. Many of the objections repeat the theories advanced in support of allegations of error previously considered. Our finding of lack of merit in them is equally applicable to the reliance upon such theories in connection with Instruction No. 2. We will not consider them separately with respect to this instruction.

Plaintiff’s verdict-directing Instruction No. 2 reads as follows:

“The Court instructs the jury that if you believe from all the evidence that the defendants executed the guaranty which is in evidence and that said guaranty was unconditionally delivered to the plaintiff and that the plaintiff relying on said guaranty thereafter extended credit and loaned money to The Lientz Company, Inc., in varying amounts from time to time and there is now due and owing by The Lientz Company, Inc., to the plaintiff the sum of $43,114.38, then your verdict must be for the plaintiff and against defendants for such sum, with interest thereon at the rate of 6% from February 21, 1964.”

Appellant contends that the instruction does not contain a complete statement of the ultimate facts necessary in order to sustain a verdict for plaintiff. He points to the absence of any required finding of the date of delivery of the guaranty. There was no evidence of a time of delivery other than at or about the date of the guaranty. Appellant’s suggestion that the guaranty got into the bank’s possession in November, 1963, when Hill got the Lientz file in the South-gate Small Business Administration loan is pure conjecture, and wholly contrary to all of the testimony of delivery of the guaranty at or near January 12, 1962. In any event, the instruction did require the finding that the bank extended credit to Lientz after the delivery of the guaranty and the amount of indebtedness thereafter incurred. These are the basic ultimate facts of liability and the instruction adequately set them out.

We find no merit in appellant’s contention that the instruction improperly assumes that the credit was extended in reliance upon the guaranty. We find that the instruction sufficiently required a finding to such effect and did not improperly assume such fact.

Appellant also complains that the instruction ignores Lientz’s defenses. However, we have previously dealt with such defenses and concluded that they were not established. Therefore, plaintiff’s verdict-directing instruction was not required to allude to them.

Appellant complains of Instruction No. 3, offered by plaintiff and given by the court. Examination of this instruction shows that it was probably intended as a converse of defendant Lientz’s defense of conditional delivery. The court did not give the conditional delivery instruction offered by Lientz.

The instruction tendered by defendant on the subject wandered into the area of fraud and would have been erroneous even though there had been evidence to support the claim of conditional delivery. Since the defendant’s instruction on the issue had not been given, there was no occasion for plaintiff’s converse instruction on the issue. However, in view of our conclusion about the lack of evidentiary basis for the defense in any event, the instruction could not have prejudiced the appellant.

Appellant’s next assignment of error is again interrelated with his contention that the jury should have been entitled to consider his obligation separately. Lientz’s verdict-directing instruction on his claim against the four cross claim defendants told the jury that their verdict in Lientz’s favor under the instruction should be the same as any amount found in favor of plaintiff. (Inasmuch as the cross claim defendants have not appealed, we are not concerned with the basis of liability which Lientz submitted.)

The jury returned a verdict in favor of the bank and against the defendants in the amount of $43,114.38 and in favor of Lientz and against the cross claim defendants for $8,622.88. Counsel for appellant objected that the verdict on the cross claim did not follow the instructions. A lengthy colloquy ensued, involving the court, the attorneys and the jury foreman. However, the upshot of the matters about which appellant now complains is that the jury was instructed to resume its deliberations and to submit a verdict in accordance with the court’s instructions. The jury did so and eventually returned a verdict in favor of appellant on his cross claim in the amount of the recovery by plaintiff. We fail to see how appellant could have been prejudiced by the matters complained of. In fact, he was benefited.

Again, appellant endeavors to relate the entire incident to his contention that the form of jury verdict submitted was erroneous. We need not again consider that issue.

Appellant complains of the directed verdict in favor of Hill. What we have said previously about the lack of basis for any claim against Hill is sufficient to dispose of this contention. Appellant offered an instruction which would have bottomed liability by Hill on the proposition that he “put his relationship as officer of the plaintiff ahead of his duties as Director of Lientz Company, Inc., and violated his fiduciary relationship of a Director.” There simply was no evidence to support such a theory of liability.

The assignments of error based upon the court’s refusal of appellant’s instructions offering defenses based upon lack of notice of acceptance of the guaranty by plaintiff and waiver are adequately covered by our discussion of the unavailability of such defenses. Finally, the appellant complains of the refusal of his instruction based upon Hill’s alleged constructive notice of the absence of a corporate resolution authorizing the borrowing by Lientz. Our previous discussion of this issue disposes of this assignment of error.

The judgment is affirmed.

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.