author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. Charles JONES, Appellant.
    No. 50631.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.
    Crouch & Fitzgerald, Warrensburg, for appellant.
   DALTON, Judge.

Defendant was charged and convicted under the Habitual Criminal Act of the offense of “forging an endorsement on a writing commonly relied upon in business and commercial transactions,” to wit, a counter check, as hereinafter further described. The Court assessed defendant's punishment at five years’ imprisonment in the Missouri State Penitentiary. Section 561.011 RSMo 1959, V.A.M.S. Defendant, being an indigent person, was represented in the trial and on this appeal by court-appointed counsel.

On January 28, 1964, the Court, out of the presence of the jury, heard evidence tending to show that defendant had previously been convicted of a felony, to wit, the offense of wilfully, unlawfully and fe-loniously stealing a motor vehicle in the State of Missouri, for which he was imprisoned in accordance with the judgment and sentence of two years in an institution designated by the Department of Corrections; however, he was only imprisoned from the 13th day of July, 1962, until the 1st day of February, 1963. The Court found the facts in accordance with the foregoing ■evidence and determined that the cause must he heard under the Habitual Criminal Act. Under this Act the jury determines the guilt of defendant and, if guilty, the Court assesses the punishment. Section 556.280 RSMo 1959, as amended Laws 1959, S.B. No. 117, V.A.M.S.

The State’s evidence tended to show that on February 15, 1963, the defendant, a person about twenty-one years of age, resided at the DeVault Hotel in Warrensburg, Missouri; that on Friday, February 15, 1963, at about 11:30 a. m. defendant went to Nora’s Bakery Shop, a business place owned and operated by Mrs. Nora Ginn in Warrens-burg. Mrs. Ginn was not present at the particular time, but her employee, Mrs. Shirley Abbott, was in charge. Defendant purchased a dozen doughnuts from Mrs. Abbott and presented a check (State’s Exhibit 3), as follows:

Defendant asked Mrs. Abbott if she could cash the check; she agreed, and asked defendant to endorse the check by writing his name, address and phone number on the back of the check. Defendant, thereupon wrote, “Clifford Racy 106 W. Culton 747-3427.” Mrs. Abbott deducted the price of the doughnuts from the amount of the check and gave the balance in money to defendant.

Early in the afternoon on the same day, Mrs. Nora Ginn, the owner of the shop, learned of the presence of the check and called the telephone number defendant had written on the back of the check. She received no answer, but only a recording, and, thereupon, notified the police. Later, that afternoon or early evening Mrs. Ginn and Mrs. Abbott went to the county jail where Mrs. Abbott viewed four or five persons. and identified defendant as the person who had given her the check and written the name “Clifford Racy” on the back of it. She also identified the defendant at the trial as the person who presented the check and made the mentioned endorsement. On the day following defendant’s arrest, Mrs. Ginn presented the mentioned check at the Peoples National Bank of Warrensburg and received no money for it at any time.

The words “no account” were written across the face of the check by Mrs. Maxine Miller, a machine bookkeeper employed by the mentioned bank; she also wrote her initials on the check. At the time the check was presented to the bank for payment it had two endorsements, the last being the endorsement of Mrs. Nora Ginn. The check in question was what was commonly known as a counter check and was of the type that is generally used and accepted in an ordinary commercial transaction in the community where the check was endorsed and passed.

Clifford Racy, a resident of Warrensburg, residing at the Martin Hotel, 106}4 West Culton, testified that the endorsement on the hack of the check in question was not his signature; that he did not write it; that he had not seen the check before; and that lie did not know any “James Brown” whose name appeared as maker on the check, nor ■did he know the defendant. Mr. Racy further testified that he had lost his billfold ■on the 3rd or 4th of February, 1963. He first missed his billfold on the morning of February 4, 1963, but whether he had lost it the day before, or whether it was taken from his room, he didn’t know. When it was located and returned to him his state ■driver’s license was missing. The missing ■driver’s license, however, was found on defendant’s person when defendant was arrested by Sheriff William O. Fortney in Warrensburg on the evening of February 15, 1963. The missing driver’s license bore an expiration date of 2/11/66 and Mr. Racy liad promptly, after its loss, applied for and received a new driver’s license. He identified State’s Exhibit No. 4 as his missing ■driver’s license.

The defendant offered no evidence.

At the close of the State’s evidence the 'State asked and was permitted to amend its amended information, as filed on October 12, 1963, so as to conform to the proof, “by alleging that defendant received the sum ■of $19.50 in property and money from the ■check. Defendant’s motion for judgment ■of acquittal presented at the close of the State’s evidence was overruled. The jury ■returned a verdict of guilty, as follows: '“We, the jury, find the defendant guilty of forging an endorsement on a writing commonly relied upon in business and commercial transactions.”

Appellant assigns error on the action of rthe Court “in failing to sustain the challenge for cause to juror Sidney Davis.” Appellant insists that his (Davis’) association with the complaining witness and the prosecuting attorney, and his prior connection with check offenses, rendered him incapable “as a matter of law, to be impartial in the trial of this case, and therefore defendant was deprived of a fair trial.”

The record shows that Davis was asked whether he was acquainted with Mrs. Nora Ginn and he answered: “I am acquainted with Mrs. Ginn. Her son-in-law is employed at my place of business.” Davis also said there was nothing about the acquaintanceship or relationship with her son-in-law that would cause him to be prejudiced for or against the defendant in this case. Subsequently, appellant’s counsel inquired of the panel as to whether “any of you have had occasion to consult with him [prosecuting attorney], either in his capacity as prosecuting attorney or as a private attorney ?” Mr. Davis answered, “I have.” He was then asked if he had consulted the prosecuting attorney “on a criminal charge” and he answered “Yes.” When asked the kind of a criminal matter, he said on a “bad check,” not a forged check. When asked if he had ever been “a complaining witness in any criminal case in any state, in Missouri or any place,” he answered that he had on both robbery and checks. When asked whether that would “tend to prejudice you against the defendant in this case” he answered, “I can’t say that it would.” See Johnson v. Missouri-Kansas-Texas R. Co., Mo.Sup., 374 S.W.2d 1, 2. Subsequently, counsel asked Davis if he had ever heard or read anything about this case and Mr. Davis indicated that he had, but that he had formed no opinion as to the guilt or innocence of this defendant at this particular time; and that he had not heard or read anything about the case that would preclude him, if chosen, “from giving [defendant] a fair and impartial verdict in the case.” Defendant’s counsel then challenged Davis for cause on the ground that he had “been a complaining witness, * * * on a check and has been a witness in criminal cases, check cases”; and that counsel felt that under the circumstances and in view of Davis’ statements he could not he a fair and impartial juror. The challenge for cause was overruled and the defendant used one of his peremptory challenges to remove’ Davis from the list.

There is no contention here of any intentional concealment or any failure on the part of Davis to make a full disclosure of the matters inquired about on voir dire examination. Here the sole question presented is whether the facts disclosed by Davis disqualified him as a matter of law from being a qualified juror.

There is no contention here that Davis was disqualified by either § 494.010, as amended Laws 1959, S.B. No. 246, or by § 494.190 RSMo 1959, V.A.M.S.; however, these sections are not all’ inclusive. Barb v. Farmers Ins. Exchange, Mo.Sup., 281 S.W.2d 297, 301 [1-3]. It has been said that, “there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced. * * * The question of the qualification of a juror is a question to be decided by the court, and not one to be decided by a juror himself. It is the prerogative and duty of the trial court to exercise a wise, judicial discretion in this regard, and the conclusion of the court should rest upon the facts stated by the juror with, reference to his state of mind, and should not be allowed to depend upon the conclusions of the juror as to whether or not he could or would divest himself of a prejudice he admitted existed in his mind.” Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359; State v. White, 326 Mo. 1000, 34 S.W.2d 79, 81 [2-4].

Defendant’s challenge of venireman Davis for cause, on the grounds stated, was directed to the sound discretion of the trial court. In' the determination of the-qualifications of a prospective juror, the Court has a very wide discretion and his rulings should not be disturbed unless they are clearly and manifestly against the evidence. State v. Camper, Mo.Sup., 353 S.W. 2d 676, 678 [2-4]; Johnson v. Missouri-Kansas-Texas R. Co., supra, 374 S.W.2d 1, 3 [1-5]; Strahl v. Turner, Mo.Sup., 310 S.W.2d 833, 840-841 [11 & 12]; Paige v. Missouri Pac. R. Co., Mo.Sup., 323 S.W.2d 753, 765 [16, 17]; State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 7 [7] ; State v. Walton, 74 Mo. 270, 284; State v. Brooks, 92 Mo. 542, 575, 5 S.W. 257; State v. Poor, 286 Mo. 644, 228 S.W. 810, 814 [5]; State v. Jones, 64 Mo. 391, 397. It is our view that no abuse of the trial court’s discretion appears from this record. Venireman Davis was not disqualified as a matter of law, as claimed by appellant, and the Court did not abuse its discretion in refusing to sustain the challenge for cause.

Appellant further contends that “the Court erred in holding that Sec. 556.280 RSMo 1959 (Habitual Criminal Act) applicable to this Defendant for the reason that the State fáiled to prove Defendant was convicted of the felony alleged in the amended information and failed to prove identification of Defendant and that the Defendant had been released as provided in said statute.” The amended information set out in the transcript alleges that the prior conviction was for “stealing a motor vehicle,” and in State’s Exhibit 1, which purports to be the trial court’s record of this prior conviction in the case of State of Missouri, Plaintiff, vs. Charles Ferguson, Defendant, No. 3237, “Car Theft,” the fol-. lowing order appears: “Now on this day the State appears by the Prosecuting Attorney. Defendant appears in person and by his attorney Wm: J. Hensley. Special reporter is sworn. Defendant arraigned, and waives formal pleading [sic] of amended Information and for his plea says he is guilty as charged. The Defendant, granted allocution. The Defendant sentenced to be committed to custody of the State Board of Correction for a Term off Two Years. * * *It is true that the exhibit includes a further certified copy of a judgment in the same Case No. 3237 which is styled State of Missouri v. Charles H. Ferguson, No. 3237, setting out a more detailed and extended form of judgment, in which there is a recital that, “the defendant being duly arraigned, waives the reading of the information and enters his voluntary plea of guilty to the charge therein contained * * *.” And there is a further recital that “the court states to the defendant that he has voluntarily entered his plea of guilty to the said charge of STEALING, a felony, and now asks the defendant if he has any legal reason to give why judgment should not be pronounced upon him in accordance with his plea of guilty * * *

The State further offered the testimony of the sheriff of the county to the effect that he knew Charles Jones, the defendant in this case, and that he had known him also under the name of Charles Ferguson and Charles H. Ferguson, as described in Plaintiff’s Exhibit 1; and that under the judgment and commitment in the case of State v. Chas. Ferguson, Case No. 3237, he took the defendant in that case-, who is the defendant in the present cause, to the penitentiary, and that at that time defendant was going by the name of Charles Ferguson. This testimony was entirely sufficient when believed, as it was, to establish defendant’s prior conviction- for a felony. We think that, in view of the copy of the amended information as set out in the transcript and the certified copy- of the records of the Circuit Court of Johnson County in the mentioned cause, No. 3237, and the sheriff’s testimony, the evidence was entirely sufficient to prove the allegation in the amended information that defendant had been previously convicted of the felony of “stealing a motor vehicle.” State v. Baugh, Mo.Sup., 323 S.W.2d 685, 690 [6, 7].

State’s Exhibit 2 further shows that Charles H. Ferguson was imprisoned both in the State Training School and subsequently in the state penitentiary at Jefferson City and that he was discharged upon commutation of sentencé on February 1, 1963. It was only necessary for the State to show that defendant had been imprisoned under the prior conviction for a felony and not additionally that he had been released therefrom, since the present statute only requires a finding that subsequent to the conviction and sentence the defendant was “subsequently placed on probation, paroled, fined or imprisoned therefor.” Section 556.280, as amended Laws 1959, S.B. No. 117, § 1; State v. Tucker, Mo.Sup., 362 S.W.2d 509, 514 [12].

Appellant further contends that “The Court erred in submitting to the jury State’s instruction No. 2 for the reason that thereunder the jury could find a verdict of guilty on less evidence than it would require to find á verdict of not guilty; that said instruction used the word ‘duty’ to find guilt and the word ‘should’ to find an acquittal.” Instruction No. 2 was apparently taken from the opinion in State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 26 [7].

We find no merit in’ this assignment of error or in the argument in support of it, where it is contended that under this instruction the jury “must consider '‘all’ the evidence for acquittál, but only : consider ‘the’ evidence to a verdict of guilty.” Appellant insists that the Court should reconsider the position it has 'many times taken in approving- instructions in substantially the same language. We find no error in Instruction No. 2 which in our view, in the respects mentioned, is favorable to defendant. State v. Turner, Mo.Sup., 320 S.W.2d 579, 584 [10]; State v. Williams, Mo.Sup., 376 S.W.2d 133, 135 [3]; State v. Cheatham, Mo.Sup., 340 S.W.2d 16, 20 [10]. The assignment is overruled.

Appellant further contends that “the Court erred in failing to sustain the objection of the defendant in closing argument of the State when reference was made to ‘duty to community to be performed by the jury, for the reason that such argument was immaterial and irrelevant and deprived defendant of a fair trial.”

The record shows that the prosecuting attorney in the first portion of his closing argument stated: “It is important to our community that in commercial life, matters that people rely on in every day affairs, that they be protected from this type of fraudulent activity.” The objection interposed by defendant to this argument was that it was immaterial, irrelevant and improper argument. The objection was overruled.

The applicable law is well stated in State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 [7,8], as follows: (We shall omit the authorities supporting the several statements.) “It has long been held that so long as a prosecutor stays within the record and its reasonable inferences, he may legitimately argue the necessity of law enforcement as a crime deterrent, and he may argue also that the responsibility for the suppression of crime and the protection of the public rests upon the trial juries. * * * And the authorities also hold that it is permissible for the prosecutor to draw and state his reasonable inferences concerning the effect which may result from the jury’s failure in this regard. * * * It has been held entirely proper for the prosecutor to ask for a severe penalty as a deterrent to crime, if the jury believes the defendant guilty. * * * And it is not reversible error for the prosecutor to tell the jury that the community or the people will be watching the result of the trial. * * * Such remarks have been characterized as a mere ‘rhetorical appeal.’ ” And see State v. Dipley, 242 Mo. 461, 147 S.W. 111, 117 [22]; State v. Feltrop, Mo.Sup., 343 S.W.2d 36, 38 [8, 9]; State v. Cheatham, supra, 340 S.W.2d 16, 20 [11, 12]; State v. Gridley, Mo.Sup., 353 S.W.2d 705, 707 [10-12]; State v. Cox, Mo.Sup., 352 S.W.2d 665, 671 [9-11].

Appellant recognizes that the rule stated in the Laster case, supra, is in force in this State, but he insists that “this rule is wrong” and asks this Court “to reverse this line of cases.” Appellant’s theory apparently is that the argument is unfair and is not directed to the guilt or innocence of defendant. Appellants says that such argument by a prosecuting attorney is devastating to a defendant. Appellant argues that “there is no way to test the feelings of the community or their thinking on this particular type of crime”; that the facts stated in the argument were not relevant and' material to the issues in the case; and that as. a result of such argument “the defendant is left hanging in his chair” with no- way to make an adequate reply, particularly when the Court lends “its majestic power to the point, by overruling the objection” to this type of argument. Appellant insists that the argument “puts the pressure on” and deprives a defendant of a fair trial.

We think the trial court properly ruled the objection to the prosecuting attorney’s argument. We find no sound basis for refusing to follow the established precedents. The assignment of error is overruled.

Appellant further contends that “the Court erred in allowing witness Nora Ginn to testify that she received no funds from the check alleged to have a forged endorsement, and the defendant was prejudiced in not being allowed to comment in argument about such non-payment prior to time of crime alleged in information; the admission, of such evidence and deprivation of right of argument tending only to prejudice the-minds of the jury against the defendant.”'

The testimony that Nora Ginn received', no money on the check in question “from any person whatever” was put in evidence before any objection was made. After the evidence was before the jury, an objection was made that the question called for facts, outside the issues in this particular case. The objection was overruled and the question was again answered.

Defendant’s counsel by cross-examination of Mrs. Ginn showed that she presented' the check to one of the cashiers of the Peoples National Bank and that, “They referred me upstairs”; and that she went upstairs. The State also showed by Mrs. Maxine Miller, who was a machine book-keeper at the bank, that it was part of her duties “to check instruments and check on accounts on which the instruments can be paid”; and that the words “No account,” and her initials on the face of the check, were in her handwriting.

Since the fact that Mrs. Ginn received no money on the check came into evidence before an objection was made there was no error in its admission. Further, after objection was made there was no request that the prior answer be stricken. Further, the same fact could be inferred from other evidence in the record, including the fact that the check was presented to the bank for payment and the bookkeeper wrote across its face the words “No account.” Also, there was evidence that Clifford Racy, the payee in the check, had never heard of the maker of the check, James Brown, and that the name endorsed on the back of the check was not the signature of Racy or made by him. In view of the record in the case, the defendant could not have been prejudiced by the evidence complained of whether it was properly admissible in the case or not.

Appellant further argues that “there is no requirement to sustain the crime of forgery that the forger actually obtain something of value,” citing State v. Witherspoon, 231 Mo. 706, 133 S.W. 323, 326, and 23 Am.Jur., Forgery, § 28, p. 687. However, the receipt of the doughnuts and the balance in money for the check with the forged endorsement were a part of a single transaction and so closely related to the forging of the endorsement that it was competent for the State to show the circumstances accompanying the making of the endorsement and the purpose for which it was made. The record further shows that no objection was made to the testimony of Mrs. Abbott in respect to the making of the endorsement and the money and property obtained thereby. Appellant also argues that the alleged forgery preceded the alleged non-payment of the check and hence he should have been permitted to argue to the jury that the “non-payment of the check could not have occurred before the arrest and identification of the defendant as the alleged passer of the check”; and that in sustaining an objection to this argument the Court erred and “compounded its own error in allowing the question of non-payment to come into the case during testimony of the witnesses.” We find no merit in this assignment, since the evidence complained of came into the record before objection was made and there was no motion to strike. Further, under all the evidence in the case an inference could clearly be drawn that the check in question would not be paid.

We have also examined the record in regard to those matters not required to be preserved in the motion for a new trial or presented in appellant’s brief and find no prejudicial errors.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Arintha HELLRUNG and J. M. Wittels, Plaintiffs-Appellants, v. Emil E. HOECHST and Elsa A. Hoechst, Defendants-Respondents.
    No. 50133.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 14, 1964.

      Burton M. Greenberg, St. Louis, London & Greenberg, St. Louis, of counsel, for plaintiffs-appellants.
    . Albert A. Michenfelder, Jr., Robert C. Jones, Clayton, Ziercher, Tzinberg, Human & Michenfelder, Clayton, of counsel, for respondents.
   BARRETT, Commissioner.

This is a three-count action by J. M. Wittels (Arintha Hellrung is a straw party) against Emil and Elsa Hoechst to recover damages for breach of a real estate contract. Count two for actual and punitive damages for fraud has been abandoned. In count one Wittels sought $110,000 damages and the return of $5,000 earnest money for breach of contract while in count three he sought only the return of the earnest money. At the close of the plaintiffs’ evidence the court sustained the defendants’ motion for a directed verdict and the plaintiffs have appealed from the judgment entered upon that order..

The subject matter of the contract is the Steinberg Estate, a sixteen room mansion-on a twenty-nine acre tract of land in St. Louis County. On October 22, 1954, Wit-tels, an investor and real estate dealer with forty years’ experience, made an earnest money payment of $5,000 and entered into a written contract with the Hoechsts in which they agreed to sell and he agreed to buy the Steinberg Estate for the total price of $115,000. The property was subject to two deeds of trust, a first securing a $30,000 note and a second securing $19,000. The closing date of the contract was “on or before November 22, 1954.” On or before that date Wittels was to give the Hoechsts -a “return deed of trust” in the total sum of the two encumbrances then on the property, $49,000, and make a “(c) ash payment of $66,000, of which the earnest money ($5,000) is a part.” The sale was to he closed at the office of the Wittels Investment Company “under the usual closing practices of the St. Louis Real Estate Board.” These practices were set forth on the back of the printed form contract (prepared at the direction of Wittels) which provided, as far as material here, that “Title shall be merchantable” and “Seller shall furnish a general warranty deed, subj ect to * * * general taxes payable in current year” and subject, of course, to the specified indebtedness of $49,000. As to earnest money and the purchaser, insofar as involved here, the practices provide that “if purchaser wrongfully refuses to close, earnest money is to be forfeited.”

In support of his claim that the Hoechsts had breached the written contract Mr. Wit-tels reviewed the contract terms and said that assuming the deeds of trust totaling $49,000 and the earnest money payment of $5,000 his “cash payment” would have been $61,000. But, he said, two or three days prior to the closing date he was served with two levies against the Hoechsts for federal taxes, these levies and “warrant(s) for dis-traint” were dated November 1 and 2, 1954. One levy in the sum of $1,053.83 was a notice that withholding taxes were due from “Emil E. Hoechst D/B/A Commercial Plumbing Company.” The other levy was for $5,189.49 taxes due from Emil and Elsa Hoechst. Nevertheless, Mr. Wittels says that he and his attorney and the Hoechsts’ attorney appeared at the appointed place on the closing date but the transaction was not closed. He said that in addition to the two federal tax liens he found that there were delinquent state and county taxes exceeding $13,000 and that sums in excess of $49,000 were due on the deeds of trust. But, admittedly, Mr. Wittels did not have the $61,000 and he does not claim that on that occasion he tendered the Hoechsts or their attorney $61,000. He testified that he told their lawyer “that I would give them the money if .they showed me a clear title free of any encumbrances or liens against the property.” Repeatedly he testified that he said “I will give you the money if you give me a clear title,” or, once he put it “if they would give clear title free of encumbrances.” While he did not have a check or money and does not claim to have made a formal tender of $61,000 he said that he had left a $15,000 check with the Title Insurance Corporation, dated November 15, 1954, (a date on which he did not remember meeting the sellers or their counsel), to apply on the purchase price. And then he claimed to have made arrangements with a Mr. Bruñe to “loan him some money (no limit specified) to help him close his deal.” He also claimed to have made an arrangement with Mercantile Trust Company to borrow $50,000 but Mercantile insisted on a first deed of trust as security and, finally, he said that the $50,000 was not to be used in the closing, that was a separate transaction between him and Mercantile. He testified that he did not refuse to close; “At no time did I ever make any statement about refusing to close the deal on November 22nd, and I am going to repeat to you again — that I said I will give you the money if you give me a clear title.”

Mr. Wittels does not claim that the sellers, the Hoechsts, or their representatives, repudiated the contract or refused to proffer, as the closing practice specified, “a general warranty deed.” And other than the indicated tax liens and encumbrances, he does not claim that the sellers did not have the required “merchantable title.” On the closing date the sellers were to “furnish a general warranty deed” conveying a merchantable title, there was no stipulation in this contract that the sellers were to have a title free and clear of all taxes and liens “as of the time of the contract, or some time prior to that fixed for conveyance.” Annotation 109 A.L.R. 242, “Right of vendee prior to time fixed by contract for conveyance to complain of encumbrances or defects in title.” And, as a court of appeals said, “the language of the 'contract convinces us that the parties intended that a distinction might be observed between defects that impaired the soundness of the fee-simple title and mere incumbrances.” Snyder v. Betker, 159 Mo.App. 325, 330, 140 S.W. 323, 325. And in these circumstances, absent fraud or misrepresentation (claims that have been abandoned here) it is the general rule that “a vendee cannot, prior to the time fixed by the contract for conveyance, complain that the vendor’s title is defective or encumbered.” 109 A.L.R. 1. c. 244. The purchaser is not excused from tender or performance and may not rely on an anticipatory breach of the contract unless the defect is “irremediable” and of course unpaid taxes and mortgages are not irremediable defects. Annotation 40 A.L.R. 693, 701, 705. Also in these circumstances “(t)he general rule is that in the case of a contract containing concurrent conditions or mutual and dependent covenants, either an offer of performance or of readiness to perform by one party must be shown before he can charge the other with a breach, and without a breach there can be no ground for rescission.” Annotation 40 A.L.R. 693. “Payment or tender of unpaid purchase money as condition precedent to the right of a purchaser of land to rescind on the ground of defects in or want of title.”

This is not a suit in equity, it is an action at law for damages and “(a) defendant, though himself delinquent, may thwart the plaintiff’s action by showing the latter has not complied with the agreement, although, if the controversy were turned around, and the defendant were complaining, he might be in the same fix.” Wimer v. Wagner, 323 Mo. 1156, 1167, 20 S.W.2d 650, 653, 79 A.L.R. 1231. In that case it is pointed out that before the vendee may rely on a defect in title or an anticipatory breach of the contract thereby excusing tender the vendors must have openly and unconditionally refused to perform or the defect in title must have been irremediable. “But it is not true that the vendee is excused from making a tender merely because he thinks (even though correctly) the vendor will be unable to perform within the time stipulated. There must be definite acts or facts convicting the vendor in evidence of a breach, and, where these do not exist, the best and only way for the vendee to show his ability and readiness to fulfill his part of the contract is for him to make a tender of performance.” (323 Mo. 1. c. 1167, 20 S.W.2d 1. c. 653-654).

As indicated the purchaser claims that the sellers were unable and failed to furnish a merchantable title and that he was ready, able and willing “to perform all of his obligations under the terms of the written sales contract.” But he did not tender the sellers the sum admittedly due, $61,000, thereby confronting them with the necessity of delivering a warranty deed free of all claims except those specified in the contract. The buyer’s offer that he “would give them the money if they showed me a clear title” was no more than an oral promise or request to do what the written contract in plain terms provided. “Plaintiffs’ evidence tended to show that they were ready, willing and able to comply with their part of the contract, but this evidence falls short of that necessary to show a compliance on the part of plaintiffs with their part of the contract, as, in addition to such evidence, there should have been facts tending to show a tender such as we have indicated should have been made.” Jose v. Aufderheide, Mo.App., 222 Mo.App. 524, 293 S.W. 476, 479. “The stipulations in the contract for the delivery of the deed conveying a fee-simple title to plaintiff and for the payment of the purchase money were dependent covenants, and a cause of action could not arise in favor of either party without a tender of performance by him, or a waiver of such tender by the other party.” Pioneer Gold Mining Co. v. Price, 189 Mo.App. 30, 33, 176 S.W. 474, 475. The fact of failure to tender the specified purchase price, $61,-000, distinguishes the Davis-Barada cases (Davis v. Barada-Ghio Real Estate Co., 115 Mo.App. 327, 92 S.W. 113; Davis v. Barada-Ghio Real Estate Co., 163 Mo.App. 328, 143 S.W. 1108) because in those cases “The money was demanded and a deed was tendered.”

As to the recovery of the $5,000 earnest money, the court is not called upon in this particular appeal to reconsider the rationale of forfeiture in real estate contracts. See the exhaustive analysis in 31 A.L.R.2d 8-131, “Right of vendee in default to recover back money paid on the contract and withheld by the vendor as forfeited.” In the trial of this case and here the appellant Wittels’ only claim to the earnest money is that stated in his brief: “All of the evidence, oral and documentary, shows without doubt that the respondents’ title failed and was not perfected within the required period of sixty days. Under such circumstances, a purchaser may recover his deposit even without a tender or offer of performance.” But as indicated upon the merits of the appeal, it does not appear that the sellers’ “title failed,” and that may be sufficient to dispose of the point now urged. In addition, even the critics of the forfeiture doctrine recognize that “(u)nder the forfeiture law of most jurisdictions, if the vendee not only defaults but by word or act makes plain an actual intent to abandon performance, or admits his inability to perform, the vendor will be justified in regarding performance as at an end, and while the situation thus produced remains unchanged he may resell the premises (here several years after November 22, 1954, and after institution of this suit in 1957) without becoming obligated to return the money paid.” 31 A.L.R.2d 1. c. 128. And finally, Missouri cases holding or indicating that the appellant Wittels is not entitled to recover the $5,000 earnest money for the reason now asserted in his brief are: Pioneer Gold Mining Co. v. Price, supra; Jose v. Aufderheide, supra; Snyder v. Betker, supra; In re First National Bank of Adrian, 207 Mo.App. 115, 230 S.W. 358; Massey v. Butts, 204 Mo.App. 55, 221 S. W. 153, and Long v. Lackawanna Coal & Iron Co., 233 Mo. 713, 741, 136 S.W. 673, 681.

For these indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri ex rel. Marcella PLATZ, Appellant, v. STATE TAX COMMISSION, State of Missouri, Respondent.
    No. 50765.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Christian F. Stipp, Carrollton, for appellant
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

This is an appeal by an individual property owner and taxpayer, Mrs. Marcella Platz, from a judgment of the Circuit Court of Carroll County affirming an order of the State .Tax Commission which in effect affirmed a county board of equalizátion. order assessing for the purposes of taxation the appellant’s residential property at $15,000. The county assessor had assessed', the property at $10,000 but after a notice- and hearing the county board of equalization raised the valuation to $15,000. In its. final order the tax commission briefly reviewed the evidence before it, set fortín certain conclusions of law; among others,, that there was a presumption of correctness-as to the actions of taxing officials and that in its proceedings the commission was the-solé judge of “the credibility of witnesses, appearing before it.” The commission-specifically concluded that- “the evidence-adduced by the Petitioner herein does not. show that the assessed valuation of. the-property described herein, as fixed and determined by the Board of Equalization of' Carroll County, Missouri, is unlawful, discriminatory, unfair, improper, arbitrary or capricious.” And finally the commissiont found, “after due consideration and study of the evidence, record and data submitted' on behalf of the Petitioner,” that “the- assessment of the Petitioner’s property should’, be affirmed at”, $15,000.

Mrs. Platz has briefed three interrelated' points and finally urges that by reason of' these contentions the $15,000 assessment “should be set aside and the appellant’s-property * * * assessed at $10,000 for tax purposes for 1961.” She contends that-the circuit court erred in affirming the-order of the State Tax Commission because,, she says, the order and assessment were contrary to and in violation of Sections 3 and' 4(b) of Article X of the Constitution of Missouri, V.A.M.S., and Section 137.115'-RSMo 1959, V.A.M.S., and “because said order and assessment were arbitrary, capricious and unreasonable.” The constitution provides that property shall be “assessed for tax purposes at its value or such percentage of its value as may be fixed by law” (Art. X, Sec. 4(b) ) and that taxes “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax” and that “the methods of determining the value of property for taxation shall be fixed by law.” Const.Mo. Art X, Sec. 3. In this connection, presumably, the General Assembly has provided that the assessor “shall assess the property at its true value in money.” V.A. M.S. Sec. 137.115. The appellant’s basic complaint is that these constitutional and statutory provisions were violated in that her “property was assessed on the basis of the cost of construction of the dwelling upon it.”

It would not be helpful to a determination of this particular appeal to analyze the constitutional and statutory provisions relating to the valuation and assessment of property, to consider the procedure involved, or to review terms and definitions, that has been done repeatedly and definitively. Cupples Hesse Corporation v. State Tax Commission, Mo., 329 S.W.2d 696; In re St. Joseph Lead Co., Mo., 352 S.W.2d 656. The taxpayer has, appropriately and properly, pursued the prescribed administrative course for the redress of her grievance of unfair valuation and .assessment of her property and this court “on appeal may only determine, with deference to findings involving credibility, whether the commission could . reasonably have made the finding and set aside decisions clearly contrary to the overwhelming weight of the evidence.” Peck’s Products Company v. Bannister, Mo., 362 S.W.2d 596, 599; Stein v. State Tax Commission, Mo., 379 S.W.2d 495. In short, the appellate court problem is whether upon this record, the record made before the tax commission, there is competent and substantial evidence in support of its finding of value. Drey v. State Tax Commission, Mo., 345 S.W.2d 228; Foster Bros. Mfg. Co. v. State Tax Commission, Mo., 319 S.W.2d 590. The identical argument has not heretofore been made, but not altogether incidentally, it may be observed, it has been unsuccessfully urged that the sale price of property was conclusive of its “true market value.” Stein v. State Tax Commission, supra. Nevertheless, for the purposes of this opinion, it may be assumed that an assessment of a residence based wholly on the single factor of cost of construction would not stand the test of substantiality of evidence. State ex rel. Thompson v. Dirckx, 321 Mo. 345, 11 S.W.2d 38. But in no event does this or any other court have the power and authority to fix value and thereby assess the appellant’s property at $10,000 or any other specific sum. In re St. Joseph Lead Co., supra.

In view of these basic rules and assumptions it is only necessary to briefly review the record in this case. In 1959 Dr. and Mrs. Platz purchased a lot, about one half of a block (assessed at $1,000) in a preferred residential area in Carrollton, and during" the tax year 1960 were engaged in building a house, landscaping and otherwise improving the property. The completed residence is a one-story stone and brick house with a patio and two-car garage. There are three bedrooms, two full baths and two half baths, a living room, country kitchen, dining room and a utility room. Mrs. Platz says that she asked her architect to “draw up a plan of around $45,000.” She did not know the total cost of her home but said, “I have been told that I would be doing good to get $35,000 or $40,-000 for it.” She called as a witness a former recorder of deeds, now engaged in the real estate business, and he gave it as his opinion, based on what a willing buyer would pay and a willing seller would take in Carrollton, that the value of the Platz property was approximately $40,000.”

The taxing authorities called as witnesses the contractors, subcontractors, workmen and suppliers of materials who had worked on Mrs. Platz’s home and they detailed the amounts of their respective bills and they approximated $61,000. The face amount of her home-owner’s insurance policy is $50,-000. There were lists of the sales of residential property in Carrollton over the years and tabulations showing its assessed value, said to be 18% of the consideration paid for the properties, but there were no sales of comparable property in Carroll County. The township assessor says that he made an appointment with Mrs. Platz “to malee the assessment” and this is his description of the interview: “She only wanted to sign for $10,000. She asked me where I got the idea it should be $20,000. I told her I thought the property cost between $80,000 and $100,000 and she mentioned the fact it only cost $50,000. I still maintained the house cost closer to $80,000 or $100,000 than $50,000. There was no other house to go by in making the assessment. We assessed it based upon the only thing we could go by and that was the cost price or in equivilent (sic) to other property in that bracket which there wasn’t anything to go by. I thought at $75,000, twenty per cent would make it $15,000.” In any event the property was initially assessed at $10,-000, and the county board of equalization, one member said on the recommendation of the assessor, after a hearing increased the valuation to $15,000., One member of the board said “We all know the costs of these buildings around here” and he said that in assessing this property its cost was considered and he thought “it would cost $100,000.” But on direct examination this witness had said, “We based it on less than we thought it would cost. Q. You were basing it upon cost, is that correct? A. No, what it would bring when sold.” Another board of equalization member said that “Because of what it cost” he still thought the property should be assessed at $20,000 or $25,000 but the other members “thought it was too strong and made it $15,000.”

The burden was upon the taxpayer “of establishing a discrimination”

and a mere overvaluation of specific property, in the absence of proof of a systematic plan, is not sufficient to establish unfair or improper discrimination. Cupples Hesse Corporation v. State Tax Commission, Mo., 329 S.W.2d 1. c. 700. In its final order the-commission noted in passing its prerogative-of judging the credibility of the witnesses', and, of course, the commission could disbelieve plaintiff’s evidence of value or for that matter particular testimony of other witnesses. May Department Stores v. State Tax Commission, Mo., 308 S.W.2d 748, 761. But it is not necessary to analyze the evidence and point out all the circumstances, or indicate the permissible inferences, it is sufficient to say that cost alone was not the only factor before the commission. The noted evidence and its reasonably permissible inferences establishes the presence of other factors and, in short, substantially supports the order and finding of the commission. Stein v. State Tax Commission, supra; Cupples Hesse Corporation v. State Tax Commission, supra; May Department Stores Co. v. State Tax Commission, supra.

The respondent has filed a motion to dismiss the appeal, allegedly because the transcript does not comply with Supreme Court Rule 82.14(d) and was not timely filed. (Supreme Court Rules 82.18, 82.19), Y.A.. M.R., and because the points relied on are abstract and therefore the appellant’s brief' does not comply with rule 83.05(e).' The-motion is without substantial merit and is. overruled.

Since, as indicated on the merits of the-appeal, the finding and order of the commission is supported by substantial evidence, the judgment is affirmed.

STOCKARD and PRITCHARD, CC.„ concur.

PER CURIAM.

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

All of the Judges concur.


author: LEEDY, Judge.

text:
    Edith TAYLOR, Widow, Respondent, v. George Raymond RIDDLE, Lloyd A. Fry Roofing Company, Burris Milton Ford, and Glen Corum, Appellants.
    No. 49335.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Leon Roulier, Colby, Kan., William H. Sanders, Dean F. Arnold, Walter F. Moudy, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondent. ;
    Samuel J. Molby, Kansas City, Conn Withers, Liberty, Robert L. Coleman, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for appellants.
   LEEDY, Judge.

Action under the Kansas wrongful death statute (60-3203, 3204, Kan.G.S.1949, as amended G.S.1961 Supp. 60-3203) brought by Edith Taylor as the widow of William A. Taylor whose death resulted from injuries sustained in an automobile collision allegedly occasioned by the negligence of the defendants. Verdict and judgment against all (four) defendants in the sum of $25,000, from which judgment two (separately briefed) appeals have been taken; one jointly by George Raymond Riddle and Lloyd A. Fry Roofing Company (a corporation), and the other jointly by Burris Milton Ford and Glen Corum. These two sets or pairs of defendants were the respective owners or operators of the two large tractor-trailer rigs or outfits involved in the casualty. The third vehicle was a 1955 Mercury passenger car driven by plaintiff’s decedent (hereinafter referred to as Taylor), the front end of which Mercury struck or rammed into the rear end of the Riddle-Fry trailer.

The casualty occurred on Kansas Highway 18 at about 8 p. m., on December 18, 1958, at a point .9 miles east of tthe junction of that highway with Highway 181, which junction or intersection is one mile north of the town of Sylvan Grove, and an estimated distance of 12 to 14 miles west of the town of Lincoln, Kansas. Some of the general, uncontested facts are these: The weather was clear and the road dry. Highway 18 is new, of modern construction, and has a paved asphalt or blacktop surface some 25 feet in width exclusive of the shoulders, and, in the area in question it extends east and west, is straight, and the surrounding terrain somewhat rolling; “right out of Lincoln it’s not so rough, but as you get a little further west, it gets more hilly, kind of up and down.” The Riddle-Fry tractor-trailer unit was proceeding west (as was the Mercury). It was approximately 40 feet long and about 8 feet wide. The trailer was a 32-foot flat bed grain trailer with sideboards 42 to 48 inches in height, carrying a load of roofing material weighing 58,000 pounds. The Ford-Corum tractor-trailer (of approximately the same length) was eastbound, carrying a cargo of wheat.

The Mercury car was owned by plaintiff’s decedent’s brother-in-law, Chester A. Moore. Moore and his wife (Louise) together with Taylor and his wife and the Taylor’s infant son (Harry, aged 15 months) had started from their homes at or near Levant and Colby, Kansas, about 7 a. m., on the day in question and drove to Manhattan (distance estimated at 300 miles) to attend a funeral. Moore had done all the driving until the town of Lincoln was reached on the return trip, and there the group stopped, had the car serviced, and ate. Leaving Lincoln, their homeward, westbound journey was resumed but with Taylor at the wheel. It so continued until the collision, which occurred in what was referred to as a wide valley that extended east and west two and one-fourth to two and one-half miles between hillcrests. The hillcrest at the east end of the valley was the one over which both the Riddle-Fry truck and the Mercury car came upon the scene (its distance from the point of collision an estimated two-tenths to one-fourth mile).

Plaintiff’s ’ verdict-directing instructions submitted hypotheses of negligence on the part of the defendants, respectively, as follows : As against Riddle and Fry in having stopped their vehicle so as to obstruct the north half of the traveled portion of the highway in the immediate vicinity of the standing eastbound Ford-Corum vehicle when Riddle knew that such stopping created a hazard of collision to the passage of westbound traffic; and as against Ford and ■Corum in failing to set out fusees, flares or lights as prescribed by regulations of the Kansas Corporation Commission, after Ford knew that westbound traffic might collide with the Riddle-Fry vehicle standing alongside the Ford-Corum truck. The court also gave a concurring negligence instruction which authorized the jury, in appropriate circumstances, to return a verdict against all defendants.

Both sets of defendants challenge the submissibility of plaintiff’s case; Ford and Corum on the sole ground that plaintiff’s decedent was “contributorily negligent as a matter of law in failing to correlate his speed with his ability to stop within the range of vision provided by his headlights.” Riddle and Fry urge, first, that “The evidence did not establish an illegal, wrongful, •negligent or actionable stopping of their truck on the highway”; secondly, that Taylor was guilty of contributory negligence as a matter of law (and adopting in full the authorities and argument of Ford and Corum on this point). These assignments necessitate further delineation of some of the environing circumstances and conditions, but the questions raised by them are to be determined by considering “the probative facts not entirely unbelievable or opposed to the physical facts, Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105 [5, 6] from the standpoint most favorable to the plaintiff, including facts established by defendant’s evidence aiding plaintiff’s case when not in conflict with plaintiff’s testimony or plaintiff’s fundamental theory, giving plaintiff the benefit of all legitimate favorable inferences and disregarding defendant’s evidence unfavorable to plaintiff.” Capra v. Phillips Investment Co., (Mo.) 302 S.W.2d 924, 929 [1]. 3 West’s Missouri Digest, Part 1, Appeal and Error,

Other evidence bearing directly upon (and which is, in fact, determinative of) the question of submissibility, when considered in accordance with the rule just referred to, justifies this statement in relation to such critical facts:

As stated, Taylor was driving. His brother-in-law, Moore, was riding with him in the right front seat; Moore’s wife was riding behind her husband in the right rear seat; Mrs. Taylor and the baby occupied the left rear seat behind the driver. The three surviving adults of this group testified on the part of plaintiff, and from their testimony it appears that as the Meroury topped the hillcrest an estimated two-tenths to one-fourth mile east of the point of collision, Taylor’s speed was 50 to 55 m. p. h., and at that time the headlights of the Ford-Corum vehicle (then admittedly stopped in the south lane of the pavement, headed east) came into view. The headlights were “pretty bright,” but not blinding. These witnesses observed no westbound traffic ahead either at that time or as they passed through the adjacent valley to the east, and could not tell whether the lighted vehicle was moving or standing, but when their car “got half way down there * * * [they] could tell that the truck was stopped.” Taylor blinked his lights two or three times, then kept them on dim as he proceeded westward in his own lane. The truck headlights were not dimmed in response to his signal, but remained on bright. Taylor’s speed remained constant at 50 or 55 m. p. h. until he applied his brakes, an estimated 100 or 150 feet east of the point of collision.

As either the application of the brakes was felt or the screeching of the tires was heard, or both, Mr. and Mrs. Moore and Mrs. Taylor saw for the first time the Riddle-Fry truck ahead in the westbound lane, and they were positive that what they saw was only the top part of the truck. Until that time Moore saw nothing ahead except the two headlights. More specifically, no lights on the rear of the Riddle-Fry truck were seen by any of the passengers in the approaching Mercury “until we was real close * * * I would say twenty-five or thirty feet,” and the two tractor-trailer outfits were then stopped or standing on the highway “side by side * * * abreast of each other,” about five feet apart with insufficient room for a car to pass between them. It was not until that time that Mr. and Mrs. Moore saw three non-blinking red lights on the right rear of the Riddle-Fry truck, but they did not see any on the left; Mrs. Taylor saw no lights on it at any time. In this connection, Moore testified that “there was something across the road — that was going across the road between me and the truck,” but he could not “make out what it was * * * until we were right in it. * * * It was smoke.” Mrs. Moore stated “it appeared to be dust. Later I found out it was smoke * * *. It was [as later ascertained] coming from between the trucks that were parked side by side on the road — it just swirled around behind — the smoke was coming from the rear tires on the trailer of the eastbound truck.” Both of the Moores testified that when they saw the westbound truck ahead of them it was stopped.

By application of the brakes, Taylor’s speed had been reduced to not more than IS or 20 m. p. h. at the time of the collision, but even so, the right front of the Mercury struck the left rear corner of the standing Riddle-Fry trailer, pinning the hood of the car under the bed of the trailer, with resulting fatal injuries to Taylor. The Mercury came to rest about even with the tractor part of the eastbound truck. The position of the Riddle-Fry vehicle was that its tractor was about opposite the left rear wheels of the Ford-Corum trailer, the whole vehicle being a little closer to the center of the lane than it was to the outside edge; in other words, it was not over at the edge as though it was parking or getting ready to park. No part of either of the two tractor-trailer outfits was on the shoulder.

Plaintiff’s witness LeRoy Gicr, a farmer and lifetime resident of the area, testified to this effect: That on the night in question he was driving a pickup truck east on Highway 18 enroute to Sylvan Grove when he observed the lights of the two trucks which were then stopped on the road ahead of him. He first saw the trucks as he came over the hillcrest approximately one and one-fourth miles to the west of them; he continued on to the Sylvan Grove intersection where he turned off to the right (south) to go into-town, but his attention had been attracted “by a glow up ahead in the road.” After turning off he continued to watch the glow or fire and “kept seeing that light” which seemed to get larger, so that he finally “thought I’d go up and see what it was.”' He stopped, turned his car around, and ‘retraced his route a half a mile or more back to Highway 18, then proceeded eastward .9 miles to the two standing trucks which he found were on the paved or traveled portion, and not off on the shoulders. There he found the “left rear corner” of the eastbound (Ford-Corum) truck was burning— “the tires and a part of the bed.” There were no other vehicles there at the time; more specifically, he did not remember seeing any passenger car either to the west or to the east of either of the trucks; that if there had been one there he thought he would have seen it. The only persons he saw at the scene at that time were two men (later identified as Ford and Riddle) who-“had stopped me with a flashlight.” After some exchanges concerning the availability of fire fighting equipment, they requested that he summon the volunteer fire department at Sylvan Grove. (Nothing was said about an ambulance.) He agreed to do so, and proceeded forthwith to the adjacent farm home of his uncle and aunt, Mr. and Mrs. Achenbauer, and ’phoned for the fire department, as requested, and also relayed word to the sheriff’s office. After making the ’phone calls he sat and chatted with these relatives for maybe five or ten minutes, and during the course of their conversation he “heard a loud noise” or “crash,” and when he returned to the location of the stopped trucks, the Mercury car was there. In this connection, he testified on cross-examination: “Q. And you said you heard a noise while you were in there [the Achenbauer residence]. Are you telling this jury that that noise that you heard was the crash of this impact or was that tires blowing out? A. I don’t know, sir. I never seen it. All I know is what I heard.” Without setting out further details of his testimony, the substance and import of it, when taken as a whole, is such as would support the inference that the collision did not occur prior to his arrival at the scene in the first instance; that as much as fifteen or twenty minutes may have elapsed between the time he first crested the hill and saw the lights of the trucks ahead until after driving along and watching the fire as indicated above,.he “got up there the first time.” When he returned to the scene after making the telephone calls there were stopped cars and trucks along the highway extending from the point of collision westward to the Achenbauer driveway, a distance of two or three hundred yards. There was perhaps some corroboration of Gier in the testimony of another of plaintiff’s witnesses (Hassebroek), but, even so, it is not of enough importance to justify further extension of this statement by detailing it.

Plaintiff called Ford as a witness, but apart from testifying as to the circumstances under which he discovered the tire on fire, and the extent of it, together with certain facts going to the question of his own negligence, his direct examination had no relevancy to the question of the negligence of Riddle and Fry. The latter subject was developed on his cross-examination, and will be hereinafter separately treated.

Other evidence, if pertinent, will be stated in connection with the point or points to which it relates.

Riddle and Fry concede for present purposes that their vehicle was stopped at the moment of impact (a concession directly opposed to the testimony of Riddle and, by inference, Ford’s). The first facet of the point that there was a total absence of proof of a wrongful or actionable stopping of the truck on their part is that there is no testimony in the record disputing that given by Riddle and Ford concerning the circumstances immediately surrounding the stopping of the Riddle-Fry vehicle (happenings at the scene before the Mercury came upon it, and when only Riddle and Ford were present.) These circumstances are assert-edly of such nature as to completely exculpate defendants from the charged negligence. These defendants are not entitled to so utilize Riddle’s testimony (even if undisputed) because it was given in his own behalf as a party defendant, hence it may be considered only insofar as it may aid plaintiff’s case — the antithesis of the present purpose.

The same result follows with respect to the testimony of Ford but for different reasons. Although a defendant himself, Ford was called as a witness by plaintiff, who proved by him an essential part of her case (that no fusees, flares or reflectors had been set out at or prior to the time of the collision). No part of his testimony on which defendants now rely was given by Ford upon examination by plaintiff’s coun.sel; on the contrary, all such matters were developed on cross-examination at the hands of his own or his codefendants’ counsel. The rule in such a situation is that a party litigant “is only bound by the part of his adversary’s testimony which he himself offers and vouches for as the truth.” Shepard v. Harris, (Mo.) 329 S.W.2d 1, 4; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549, 556.

It is next urged that the testimony of Mr. and Mrs. Moore that the truck was stopped •on the highway is insufficient to establish such to be the fact, the argument being that they saw only the back of the truck and under the circumstances it would have been practically impossible to distinguish between a stopped truck and one moving at a low rate of speed. Similarly, it is contended that tthe testimony of Gier does not give rise to the inference that defendants’ truck had been standing on the highway fifteen or twenty minutes or more before the collision, this because Gier’s testimony in reference to having been attracted ■ by or watched the “glow” in the vicinity of the standing trucks (and by which he meant “fire or flames”) is inconsistent with and contrary to the testimony of the Moores and plaintiff herself to the effect that the trailer was only smoking up until a short time after the collision. Gier and the Moores testified directly and positively in affirmation of the matters and things of which complaint is now made. Obviously, their credibility and the weight and value to be given their testimony was for the jury, and not this court on appeal.

It is also contended that if the inference mentioned did arise frcm Gier’s testimony, it took flight when plaintiff called defendant Ford as a witness and he testified to the contrary. The first difficulty with this position is that the portions of Ford’s testimony here relevant (as in the other instance involving defendants’ reliance on his testimony) were not offered by plaintiff, but were developed on cross-examination by defendants’ counsel, and, as ruled above, are :not binding on plaintiff for that reason. Moreover, as is implicit in the contention, Ford’s testimony in the respect now under examination was contradicted by, and directly at variance with that given by other witnesses for plaintiff. It is only where the adversary’s testimony, as offered by the opposite party, is uncontradicted or is the only evidence on the point that the latter is bound by such testimony. Raw v. Maddox, 230 Mo.App. 515, 519, 93 S.W.2d 282, 284; Dugan v. Rippee, (Mo.App.) 278 S.W.2d 812, 816.

Having stated the facts in that light which is most favorable to the verdict, we have no hesitancy in holding that a case of negligence was made out against Riddle and Fi'y (the sole complainants on that score) under the doctrine of Mills v. State Automobile Ins. Assn., 183 Kan. 268, 326 P.2d 254, and that it was proper for plaintiff to submit the hypothesis she did, unless (as both defendants contend) the evidence shows Taylor to have been guilty of contributory negligence as a matter of law.

As forecast by the facts heretofore stated, it was the presence of the smoke to the north and west of the Ford-Corum vehicle that plaintiff relied on primarily to excuse her decedent’s failure to see the truck ahead with which he collided, and accordingly these further facts are relevant on the contributory negligence issue:

The fire was variously described as being stubborn; that it would come and go — kept blazing up and dying down. Because of these characteristics, both Riddle and Fry said they regarded it as being “sort of like a cat with nine lives.” At times dense black smoke emanated from the fire. After the collision it was noted that it would drift or billow between the two tractor-trailer rigs and around the Mercury car. Riddle was unable to put out the fire with his extinguisher, and he admitted that “after the fire got started good” there would be enough smoke behind the rear of his trailer to block out the view of his taillights. “Q. So much you couldn’t see the taillights through the smoke? A. Yes, after it got started.” Also, the testimony of the Moores and plaintiff herself was such as to justify the inference that the smoke was not discernible-by them, as such, until they “were right in it,” this because of its position behind the headlights of the Ford-Corum vehicle, which headlights, although bright, were not blinding.

Under the Kansas “assured clear vision” rule, it is held to be negligence as a matter of law to drive a motor vehicle in the nighttime at such speed that it cannot be stopped within the radius of its headlights or within a distance that objects, obstructions and danger signals can be seen ahead of it. Anastasi v. McAllister, 189 Kan. 390, 369 P.2d 244; Harrison v. Travelers Mut. Casualty Co., 156 Kan. 492, 134 P.2d 681; Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804, But the rule has been relaxed to recognize certain so-called “exceptions” to it; such, for example, as the sudden blinding of a driver by the headlights of an approaching automobile, or other sudden emergency not of the driver’s making.

The rule was held applicable, and under it the claimant deemed guilty of contributory negligence as a matter of law in the cases just cited, which are the three principally relied on by defendants. In Anastasia v. McAllister plaintiff drove along a highway when he was blinded by oncoming lights for nearly half a minute before colliding with a wrecker engaged in extricating a car from a ditch, and which wrecker had 14 large red and white lights, some blinking on and off. The truck was observable by plaintiff for a distance of 500 feet, and the lights on it had at times been seen for three quarters of a mile. When within eight to ten feet of the wrecker, the blinding lights of the oncoming car passed, and plaintiff saw the wrecker for the first time, but had no time to stop.

In Harrison v. Travelers Mutual Casualty Co., the plaintiffs were passengers in an automobile which collided with the rear end of a gasoline transport truck stalled at night on a public highway. “The only circumstances [relied on] for .taking the casé oút of the', general rule is that two or three' cars were approaching from the [opposite direction] west with bright lights and that one or two of them did not usé their dimmers.” Held: denied as special circumstances which could not have been anticipated (there being no element of sudden blinding).

In Goodman v. Wisby, the driver, in daylight, “knowingly had been traveling in a cloud of dust which completely obscured his vision.” (Emphasis supplied.)

These bare summaries demonstrate the inapplicability of those cases to the facts at bar, for none of the elements on which those rulings were based (knowingly driving in a cloud of dust with completely obscured vision, and blinding by approaching headlights, not of a sudden nature) are here present.

“Exceptions to the general rule are grounded on the doctrine that the exercise of. ordinary care would not necessarily have prevented the accident.” Goodman v. Wisby, supra, 103 P.2d 1. c. 807. A more recent declaration by the Supreme Court of Kansas anent the subject is: “It is perhaps inaccurate to say that such [sudden emergency] situations constitute exceptions to the rule. It might be more accurate to say that the rule was never intended to apply except to situations which an ordinarily prudent man would or should anticipate.” Drennan v. Pennsylvania Casualty Co., 162 Kan. 286, 176 P.2d 522, 524.

As pointed out earlier, the smoke was admittedly sufficient to blot out even the taillights on the Riddle-Fry vehicle, and such smoke not being discernible by the approaching Mercury passengers on account of its color and position with reference to the headlights of the standing Ford-Corum vehicle, there was no sign or appearance that required Taylor to anticipate the hazard that actually existed ahead. Judged by the doctrine of applicability of the rule as quoted from Drennan v. Pennsylvania Casualty Co., and under the cases of Drake v. Moore, 184 Kan. 309, 336 P. 2d 807, and Winfough v. Tri-State Ins. Co., 179 Kan. 525, 297 P.2d 159, we are of the opinion, and accordingly hold that the facts make the question of Taylor’s contributory negligence one for the jury, and not one to be declared as a matter of law.

Error is assigned in the refusal of Ford and Corum’s instruction A, which told the jury that if it found and believed that Taylor operated the car “at such a rate of speed that he was not able to slow, stop or swerve the car within the range of vision’ ahead as provided by the headlights on said car, and thereby avoid the collision,” the verdict would be for the defendants. The substance of this instruction was contained in instruction 7 given on behalf of defendants, and this is sufficient reason for denying the present assignment without inquiring into objections interposed by plaintiff as to the form of the instruction, some of which are well taken.

Ford and Corum complain of the giving of instruction 2 which submitted negligence on their part in failing to set out lighted fusees, flares and reflectors as prescribed by regulations of the Kansas Corporation Commission. The first ground of complaint is that the instruction is contrary to the Kansas statutory law defining the circumstances under which flares or lighted fusees must be placed near vehicles stopped at night. The instruction conformed to provisions of the regulation, and told the jury that it was the duty of any driver operating a vehicle under a permit issued by the Kansas Corporation Commission to place flares or lighted fusees in specified positions near a vehicle that is stopped on the traveled portion of a highway at night, and indicating that such is the law without regard to whether or not the lights on the vehicle are burning. These defendants assert that under the general statute in that regard [8-5, 108 Kan.G.S.1949] there is no duty to place flares or lighted fusees mear a vehicle stopped at night if the lights ■of such vehicle are burning. Undoubtedly the statute has been so construed in certain instances, but none involving a conflict (if such there be) between the statute and the regulation. Rasing v. Healzer, 157 Kan. 516, 142 P.2d 832; Brittain v. Wichita Forwarding Co., 168 Kan. 145, 211 P.2d 77; Bredehoft v. Halliburton Oil Well Cementing Co., 177 Kan. 382, 279 P.2d 298; Anastasi v. McAllister, 189 Kan. 390, 369 P.2d 244. We have been cited to no case, nor has one been discovered, which limits the power of a regulatory body, such as the Kansas Corporation Commission, in prescribing safety regulations governing operations under its jurisdiction, to precisely conforming such regulations to existing general statutory provisions. At any rate, Kansas has not so held, and there a violation of such regulation makes a submissible issue of negligence. Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203. Inasmuch as it is conceded that no flares were put out, these defendants could not have been prejudiced by the instruction misstating the order or sequence in which the several flares, etc., were required by the regulation to be placed, and that ground of objection need not be noticed.

What has been said above necessarily disposes of the same defendants’ further contention that the court erred in refusing instruction C which informed the jury that appellant Ford’s legal duty under the law of Kansas did not include the placing of flares or fusees around his truck if the jury found that the lights on said truck were burning.

The other question raised by Ford and Corum is whether the court committed reversible error in refusing their requested instruction B, which they contend correctly submitted the existence of an emergency situation, through no fault of Ford, and the reasonableness of his conduct, in attempting to flag down deceased’s automobile rather than place flares or fusees. The instruction reads:

“The Court instructs the jury that if you find and believe from the evidence that defendant Ford was faced with an emergency by the smoke arising from his left rear dual trailer tires as mentioned in the evidence, through no fault of Ford, and if you further find that said emergency required immediate and rapid action and that Ford did not have time to deliberate or reflect upon the preferable or better course to pursue when faced with that emergency, and if you further find that as Ford was bringing his tractor-trailer to a stop he saw the headlights of an oncoming (westbound) truck driven by defendant Riddle, and that Ford acted upon the belief that there was danger of an immediate fire, and there was through no fault of Ford, an emergency and Ford grabbed an electric lantern or red reflector flashlight and ran to the east toward the oncoming truck to seek assistance, and Ford did not at that time first put out a flare or fusee on the traffic side of' his tractor-trailer, second, put a flare or fusee to the rear of his tractor-trailer, and, third, put a flare or fusee in front of his tractor-trailer, and if you further find that a car driven by William A. Taylor then came into view over the hill to the east at a speed of 50 or 55 miles per hour, and if you find that there then first arose the danger of a collision, and that Ford, acting upon the belief that there was immediate danger of a collision, ran to the east with said electric lantern or red beaked flashlight to attempt to warn the oncoming car, instead of returning to his truck cab to attempt to put out flares or fusees first beside his truck cab, then, next, 100 feet or 40 paces to the rear or west of his tractor-trailer and then 100 feet or 40 paces ahead or east of his tractor-trailer, and that this situation was an emergency which arose through no fault of Ford then you are instructed the law does not require a person faced with an emergency to select the most favorable course of action available, and you may consider the reasonableness of Ford’s actions in determining whether under all the circumstances defendant Ford was negligent.”

Plaintiff insists that the court acted properly in refusing the instruction “because it is quite argumentative in form, it submits Ford’s personal standard of care rather than that required by law, it comments upon the evidence, and it requires a finding of facts not supported by the evidence.” (In general, we have italicized the offending language in setting out the instruction.) Countering, these defendants say that the language that is objected to “is merely the time-honored language in which the constitutive elements of the emergency doctrine are customarily couched.” In this connection they invite comparison of the language of the instruction with that of the Supreme Court of Kansas in stating the emergency doctrine in Meng v. Penner, 179 Kan. 789, 298 P.2d 246, 249, as follows:

“It is an elementary and general rule of law that persons suddenly placed in a position of peril or impending danger do things which ordinarily would constitute negligence, but these acts are not to be judged by ordinary rules. If an act has to be performed in a brief period [and if you further find that said emergency required immediate and rapid action] with no time for determination [and that Ford did not have time to deliberate or reflect] of the best course of action [upon the preferable or better course to pursue], negligence cannot be predicated thereon. One who acts in a sudden emergency according to his best judgment [and that Ford acted upon the belief that there was danger of an immediate fire], or one who, because of want of time in which to form a judgment [and that Ford did not have time to deliberate or reflect upon the preferable or better course to pursue when faced with that emergency], omits to act in the most judicious manner [the law does not require a person faced with an emergency to select the most favorable course of action available], is not chargeable with negligence even though there may be lamentable results. Such a person is to be dealt with in the light of his surroundings at the time, and he is not necessarily negligent even though his judgment was wrongly exercised.” (The language in brackets is from instruction B.)

We hold the instruction is patently argumentative in nature, and for this reason alone its refusal was justified. Nor is it saved by, or to be otherwise viewed in the light of the foregoing comparison. See Jett v. Terminal Railroad Assn., (Mo.) 357 S.W. 2d 135, 137-138, for a somewhat analogous situation where the statement of a rule of law as found in an opinion of an appellate court (with slight adaptations for the then purpose) was held inappropriate for inclusion in an instruction for the guidance of the jury.

Riddle and Fry complain of plaintiff’s verdict-directing instruction 1 (which submitted the hypothesis of Riddle having stopped his truck so as to obstruct the north half of the traveled portion of the highway in the immediate vicinity of a standing eastbound truck and thereby creating a hazard of collision to westbound traffic) did not define the issues which were tried, and was erroneous in that it ignored the admitted factual element that smoke was blowing across the pavement, and ignored the un-contradicted evidence that Riddle stopped in response to a signal by the waving of a red light in front of him on the highway (by Ford). But the difficulty with this contention is that whereas plaintiff’s evidence showed Riddle had stopped alongside the Ford-Corum vehicle, Riddle himself testified that he had not stopped at the time of impact; that he was merely passing, and intended to go on west where he could clear the pavement, set out his fusees, and come back and fight the fire. Finally he said that the reason he came to a stop was that the automobile had collided with his truck. In this situation, there was no prejudicial error in giving the instruction in the form mentioned.

Riddle and Fry also contend instruction 11 (given at the request of Ford and Corum) was erroneous and prejudicial to them in that it injected a charge of negligence against them which was contrary to Ford’s uncontradicted testimony, to-wit, failure on the part of Riddle to set out warning signals (of the kind and at the places required by plaintiff’s instruction 2 submitting Ford and Corum’s duty in that regard) as soon as possible after stopping; whereas it was to be inferred from Ford’s own testimony that the Riddle-Fry vehicle had not stopped at the moment of collision, and hence there would have been no time for the placement of warning signals. The instruction directed a verdict for Ford and Corum and against plaintiff (but did not direct a verdict against Riddle and Fry) in the event a jury found such negligence on the part of Riddle and Fry. Ford and Corum were not exonerated by the verdict, so it is apparent that this instruction, even if erroneous (a question not necessary to be determined), was not followed by the jury, so in no event could there have been any resulting prejudice to Riddle and Fry.

The judgment is affirmed.

All of the Judges concur.

      . That as Riddle approached the scene he saw a truck headed east standing on the south part of the highway. As he got closer he saw a man (Ford) standing in the highway waving a red light. He applied the air to his brakes and slowed to a speed of three to five miles per hour by the time he got to him, at which time the man turned and ran along the side of Riddle’s cab as they conversed about Ford’s trouble. Riddle testified he then shifted down into second gear of his nine speed transmission and attempted to accelerate and move on past Ford’s standing truck. Ford testified that he went back east waving his red light at the plaintiff vehicle, but when it veered in his direction he dived for the ditch and at that time the Riddle truck was still moving.