author: EAGER, Judge.

text:
    Adeline Doris BALDWIN, Administratrix of the Estate of Albert G. Baldwin, Jr., Deceased, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Respondent, Harold C. Moore, Defendant.
    No. 52730.
    Supremo Court of Missouri, Division No. 2.
    April 8, 1968.

      Lyman Field, Rogers, Field & Gentry, Kansas City, for appellant.
    Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., Kansas City, for defendant-respondent, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.
   EAGER, Judge.

This case arises out of injuries to an automobile passenger suffered in a crossing accident. The collision occurred in the outskirts of Lawson (Ray County), Missouri, at about 12:10 p. m. on January 8, 1964. The original plaintiff Albert G. Baldwin, Jr., T. R. Gray and Harold Moore were proceeding north on a gravel road in Moore’s 1962 Ford; the extreme front of the car was struck, while stopped on the crossing, by a Santa Fe twenty-one car freight train with two diesel units traveling on the branch line that ran from Henrietta to St. Joseph. These three men were members of the National Guard and were then regularly employed at the “Nike Base” located (by road) a little over two miles southeast of Lawson. They were, 'at the time, going into town for lunch. Plaintiff was sitting on the right side of the front seat, Gray in the middle, and Moore was driving. The train came from the east, which, of course, was on their right side. Plaintiff sued both the Santa Fe, as we shall call it for convenience, and Moore. The jury brought in a verdict for $50,000 against both. The trial court overruled Moore’s after-trial motions and he appealed, but later dismissed his appeal. The Court sustained defendant Santa Fe’s motion to set aside the verdict as to it and to enter judgment in accordance with its motion for a directed verdict; in the alternative the Court sustained Santa Fe’s motion for a new trial on three stated grounds. Plaintiff appealed. We are thus only concerned with the issues between plaintiff and Santa Fe.

Plaintiff’s case was pleaded and submitted on three issues of primary negligence, namely: (1) in permitting weeds, brush and undergrowth to obscure the vision of those so approaching the crossing from the south; (2) in failing, through its employees, to keep a careful lookout; and (3), in failing, through its employees, to give “adequate and timely warning” of the approach of the train. Defendant pleaded and submitted contributory negligence on the part of plaintiff in failing to see the train and warn Moore, after undertaking to keep a lookout. Plaintiff suffered serious injuries, which fact is substantially undisputed. However, in October, 1965, he suffered a coronary occlusion with considerable resulting disability; there is much controversy concerning the cause of that. After the appeal was taken plaintiff died, and his administratrix has been substituted as appellant. We shall continue to refer to Mr. Baldwin as the plaintiff.

It may clarify matters if we state the substantive contentions of the parties in reverse order, and before proceeding to a further factual statement. Defendant insists: (1) that plaintiff’s evidence did not make out a submissible case because none of the submitted grounds of negligence was a proximate cause of the collision; (2) that plaintiff was guilty of contributory negligence as a matter of law; and (3), in the alternative, that the Court correctly sustained the motion for a new trial because there was no substantial evidence to support the submission in plaintiff’s Instruction No. 3 of obstructed vision or of the failure to keep a lookout. Inherent in the first two of these contentions is the insistence that plaintiff was conclusively bound by his testimony allegedly showing that he could have seen the train in time for an effective warning to the driver. Plaintiff counters all these contentions, asserting : that there was substantial evidence to support all three charges of negligence and the element of proximate cause as to all three; that plaintiff was not guilty of contributory negligence as a matter of law, his allegedly binding statements being mere estimates and not judicial admissions, and that there was ample evidence to support every disjunctive submission in plaintiff’s Instruction No. 3. These opposing views may, we hope, be further clarified when the evidence is discussed.

The record is voluminous and the exhibits are many. The contentions require a discussion of the evidence in detail. When these men left their place of work at about noon, they traveled first south on a macadam road inside the base, then west for a mile or a little more on a gravel road, thence north a mile or so on the same gravel road to the place of collision. The railroad ran substantially east-west at the point in question, although veering a little to the northwest. The car was stopped with its front end over the first rail or within the overhang; it was knocked into the ditch at the southwest corner of the crossing, and landed on its top. There was much evidence concerning weeds, brush, and sumac bushes, all of which leaves one in some doubt as to the precise situation. It was conceded that there were uncut weeds along the right-of-way to the east, and photographs taken by defendant’s claim agent on the next day show this. There was also a fence along the south side of the right-of-way with some weeds and brush along it, and the ground level at this fence appears to be substantially above the level of the rails at most points. The exhibits show considerable unidentified trash, vines or brush in some parts of the fence along the east side of the gravel road, which would not be the railroad’s responsibility, but which did, to some extent, obscure the vision. Along the railroad and at some unascertained distance east of the crossing a cut or embankment began, getting much deeper as one proceeded on east. Brush is shown growing substantially all over that embankment, some rather high. It is impossible to tell from the photographs or the testimony just where the higher brush began, but there is a fair inference that some of it extended west of the embankment, perhaps to a point within 150-200 feet of the crossing (D’s Exhibit 6a). Plaintiff offered, and the Court received, a plat prepared by an engineer in May, 1965; it was received for what it might be worth as of that time. It showed weeds and brush one and one-half to three feet high along the south part of the right-of-way from a point near the crossing to a point perhaps 165-170 feet east; from thence eastward to 300 feet the brush was shown to be from four to seven feet high, all measured from the rail. The diesel locomotives were 14-15 feet in total height.

Plaintiff testified definitely that his window (right) was rolled down; further: that he heard no whistle of any kind at any time until the train was within 15-20 feet of the crossing; that the crossing was “just about a blind crossing” for a car approaching from the south (to which there was no objection); that he began looking for a train perhaps 300 yards back; that beginning at about 100 feet south of the crossing Moore slowed the car to about 15 miles an hour; that he, plaintiff, continued to look “both ways” for a train, but did not see it until the car was about 30-40 feet from the track; that all three apparently saw it at about the same time, Gray yelled something, and Moore “slammed on” the brakes; that the train was about 90-100 feet away when he saw it, but it did not whistle; that the diesel whistles or horns were loud and could be heard easily for a distance of a mile; that he heard no bell and saw no headlight. Defendant bases its principal defenses upon a statement made by plaintiff on cross-examination. Plaintiff had testified that he was both listening and looking. When asked how far he could see east when 100 feet back from the crossing he said: “I don’t know. Not too far”; when pressed further on the point he said: “Down to the east, I would say, possibly 200 feet.” He further testified that at 75 feet, “It didn’t improve your view very much * * * Possibly a little”; that at 50 feet “I wouldn’t know without measuring the distance. I don’t know * * * ”; that “You couldn’t see too far down the track until you got right up on the track on account of the cut.” He finally “guessed” at the figure from 50 feet and his guess was stricken. He testified that one could not see farther east because of the “weeds, brush, railroad cut”; that he looked east “far more than once,” that he glanced east and glanced west “as at any crossing” and that he was looking “as far down the track as he could see”; also, that the cut or embankment was involved “to a small part” in obscuring the vision; that in his judgment it would be about 300 feet to the “deep part” of the cut.

Mr. Gray testified: that he first saw the train when they were 30-40 feet south of the crossing and the train was 75-100 feet east and that it was not whistling; that the car was moving at probably 20-25 miles an hour; that he made an exclamation; that the car was stopped but not soon enough to clear; that he did not know how far one could see east from 30-40 feet south of the crossing; that he heard no whistle until the train was “about ready to hit us,” 15-20 feet away, and after the car had stopped. Defendant Moore, the driver, called for cross-examination, testified: that his car was in good condition; that he heard no train whistle in the whole distance of perhaps two miles which he traveled from the Nike Base; that it was plaintiff’s “habit” to have his window down; that he first saw the train when the car was about 25 feet from the crossing and the train was then “possibly” 100 feet east; that he was familiar with the crossing and that it was “partially blind”; that someone “hollered” at about the same time he saw the train, and at that time he first heard a whistle; that the embankment or cut, the fence row, and the weeds partially obscured the view; that he knew that this was a bad crossing and that there was no necessity for plaintiff to tell him that; that in view of this, he had slowed to 10-15 miles an hour, perhaps 15; that he was listening for a whistle, because he knew it was a bad crossing; that he had been looking both ways all the time during his approach ; that he managed to stop, almost in the clear; that he had no estimate of the train’s speed; that if the whistle had been sounded at “twice the distance” he would have had ample time to stop; that the Santa Fee whistles could be heard for a mile and the bells were also loud, but he heard no bell.

Two other employees who left the Nike Base in separate cars shortly after' plaintiff and arrived at the scene very shortly after the collision, testified that they heard no whistle during their travel of two miles or more; no exact times were specified. One of these had seen the train near the Base some two miles more or less from the crossing. James R. Hightower, a highway patrolman, arrived at the scene a little more than an hour after the collision. The train was backed up to a point east of the crossing; he says that this was at his suggestion (denied by the crew) in order to give him some idea of how far a person could see the train. He testified further: that in the backed-up position the engine was approximately 300 feet from the crossing; that he remembered brush 6-8 feet high on the bank; that in viewing the train as backed up, he did so from his car located 70 feet south of the crossing; that there was brush “to a degree” in the direction a driver would have been looking; that (somewhat confusingly) he did not try to determine “whether there was in fact an obstruction for the vision of the driver * * *

Defendant’s evidence came from the conductor, a brakeman, the engineer, the fireman, and the claim agent; the latter took photographs and statements. The engineer could not see the car until it had stopped on the track. He testified (by deposition) : that he started the crossing whistle, actually a diesel horn, at the whistle post some 1900-2000 feet east of the crossing and continued it until he had passed the crossing; that the bell was also rung, but later; that in coming up grade to about the center of the cut they had been traveling at the speed limit (on that line) of 30 miles an hour, but that he then reduced the speed to 25 as they came over the crest; that the latter speed was continued to the time of collision; that when the engine was about 25-30 feet from the crossing the fireman yelled that a car was not going to stop and both he and the fireman “went in emergency”; that the left front step of the engine struck the car just behind the bumper; that the train continued to travel for twenty-one car lengths; that they later backed the train to a point east of the crossing “to sort of figure out just where this embankment was or something. I don’t know.” Also, that a reason was “to figure out a view”; that he thought the train was backed to a point around 300 feet from the crossing; that probably the fireman told him where to stop; that he looked out from the fireman’s side after the train was backed up and he could see down the road for about 400 feet. Near the conclusion of his testimony he said that at about 150 feet from the crossing the fireman said that a car was “approaching.” This witness had been “restricted” to the branch line as a locomotive engineer, apparently on account of his health; at the time of this collision he had just gotten out of the company hospital after a five-day checkup, made because he had been “losing some time.” The speed limit on this line, fixed by the defendant, was 30 miles an hour at all places.

James R. Claypole, the fireman, testified in substance: that it was his duty to keep a “sharp lookout” ahead and to the left; that the engineer had sounded the crossing whistle from the whistle post; that when they were approximately 150 feet east of the crossing he first saw the car, about 150 feet down the road, but that there was then nothing to suggest that it would not stop; that he “commented” to the engineer that a car was “approaching” and that the engineer then began “short blasts” of the whistle as an alarm and continued these to the time of impact; that the car slowed at a point about 40-50 feet from the crossing, then picked up speed “for a second,” and failed to stop short of the track; that when the car was about 35 feet from the crossing, he jumped up and yelled at the engineer and put the train into emergency. He further testified that they later backed the train to the point from which he had first seen the car, which was approximately 150 feet east of the crossing; that he located this point, in part, from the telephone poles. On cross-examination he estimated that the alarm whistle actually began at about 96 feet, that the whistle could be heard with car windows closed at a distance much greater than 300 feet, and that he knew that this particular neighborhood was in somewhat of a boom because of the Nike Base. In conclusion, he testified that he could not explain why he did not see the car sooner.

The claim agent identified various photographs which he had taken on the next day; these were taken from his eye level, and he was six feet three inches tall. There was evidence that the eye level of one sitting in a car would be approximately three feet, nine inches from the ground. The conductor, Louis Engelhard, took several photographs at the scene, including one (Defendant’s Exhibit 23) of the train standing at the place to which it was backed up, which he described as about ISO feet east of the crossing; this photograph was taken from the road at a point which he first estimated to be 75 feet, but later reduced to 30 or 40. He was in the rear car at the time of collision, and “could” not hear any whistle (it is not entirely clear what this means); he testified that the train was backed up, at least in part, to show the point from which the fireman first saw the car; that there was uncut brush on the right-of-way.

The testimony of the brakeman, James E. Cook, added nothing really material to the evidence recited; it was somewhat in conflict with that of the fireman and engineer in that he stated that “short blasts” were begun about 200 feet from the crossing. Some evidence indicated that there was a slight “dip” in the road south of the crossing or, as fireman said, — a “build-up” to the crossing from the south. Some of the photographic exhibits were taken by a professional photographer from Excelsior Springs, almost immediately after the collision. They were received in evidence, but it was not shown how he happened to be there. In the view we take of the case it is not necessary to digest the rather voluminous medical testimony, or the lay testimony of plaintiff’s condition and of his prior and subsequent activities. We feel somewhat apologetic for the length of this statement of facts but, in the final analysis, the decision here is more nearly one of fact than of law.

Defendant’s contention that there was no substantial evidence for a submission of the case is based upon its construction of the plaintiff’s testimony which, counsel say, was a judicial admission. The same construction is used for the claim that plaintiff was guilty of contributory negligence as a matter of law. In their essence, both claims are that plaintiff is conclusively bound by his testimony that he was definitely looking because he knew it was a bad crossing, and that from a point 100 feet south “he could see 200 feet down the track to the east.” (Quoted from page 8 of defendant’s brief.) Thus, defendant says that he could see for 200 feet, he was charged with seeing the train at that distance, he had a duty to warn the driver immediately, and that there would then have been ample room to stop. Counsel cite cases to the effect that to look is to see that which is plainly visible. Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885; Pipes v. Missouri Pacific R. Co., Banc, Mo., 338 S.W.2d 30. Counsel have set out rather elaborate calculations as to speeds and stopping distances in an effort to establish those supposedly conclusive determinations, all being based on the positive fact that plaintiff had a clear view of the train when it was 200 feet east. However, all is not quite that simple. In the first place, plaintiff’s testimony, both in the statement so firmly relied upon and subsequently, was not so positive and unequivocal as thus argued. We have set out the material parts of his testimony and shall not repeat them here, verbatim. We note, however, that plaintiff first answered that he did not know the distance one could see from a point 100 feet south, but not “too far,” then said when pressed further, “possibly 200 feet”; he was very uncertain about the view as one drew closer to the tracks, thought that it might be improved a little, stated that he wouldn’t know “without measuring the distance,” and that one could not see “too far” until he got right up on the track; thereafter he began to “guess.”

There is no doubt that if Moore had applied his brakes when he was 100 feet south of the crossing, or even one and one-half seconds later (at 15 miles an hour or even 20) he could have stopped short of the track. But defendant’s contentions are all based upon the supposed judicial admission of the sight distance, plus the duty of an immediate warning at that point, and the fact that plaintiff was looking east at that moment. Plaintiff testified that he was actually looking both ways and the evidence does not pinpoint which way he was looking at any specific point. He was, in fact, required to watch with ordinary care both ways, and was not required to look continually in either direction, Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 923; a careful glance to the west, to which he was entitled, beginning at 100 feet south of the crossing, could easily have accounted for the loss of a crucial two or three seconds. Considered in the full context of plaintiff’s testimony on the subject, we hold that he made no judicial admission and that the answer relied on was, in fact, an estimate; also, that he is not to be charged legally with having looked in one particular direction at a given specific point. The general rule is well established that a plaintiff is not bound by his estimates of time, speed or distance, but he may rely on other testimony not at war with his own theory. McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739; Appelhans v. Goldman, Mo., 349 S.W.2d 204; Lay v. McGrane, Mo., 331 S.W.2d 592; Rawley v. Eilermann Transfer Co., Mo.App., 390 S.W.2d 937; Henrickson v. Resnik, Mo.App., 390 S.W.2d 610. For specific applications of the rule to railroad cases under somewhat analogous circumstances, see: Zumault v. Wabash R. Co., Mo., 302 S.W.2d 861; Van Buskirk v. Missouri-Kansas-Texas R. Co., Mo., 349 S.W.2d 68; Hackett v. Wabash R. Co., Mo., 271 S.W.2d 573. Also applicable is the case of State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406, where, at loc. cit. 408-409, the Court said: “Therefore, instead of having the plaintiff’s evidence at war with relator’s testimony, we see that it is practically the same, except for the plaintiff’s own testimony. His testimony does not undertake to state the exact speed of the train or the exact relative location of his truck or of the train. In each instance, according to the opinion of the respondents, he says it was about this speed, or about this or that location. It was at best a mere guess or estimate.” In referring to some of these cases by way of distinction, counsel say that the principle is only applicable where there is other more favorable evidence upon which plaintiff can rely, and that here there is none, because, the other evidence puts the sight distance even farther east. On this principle they cite: Talley v. Bowen Construction Co., Mo., 340 S.W.2d 701; Roux v. Pettus, Mo.App., 293 S.W.2d 144, and Brooks v. Stewart, Mo., 335 S.W.2d 104, 81 A.L.R.2d 508. Talley has nothing to do with estimates of any kind. In Roux, the view involved was a totally unobstructed city block of 320 feet. In Brooks, the distance involved (567 feet) seems to have been uncontested. But even recognizing that principle, we do find other evidence here from which an inference might fairly have been drawn that the train could not be seen as far away as 200 feet east from the given point. The fireman testified that, although he was watching carefully, he did not see the car until the train was 150 feet from the crossing. We may reasonably assume that when plaintiff could see the train the fireman could have seen the car, since his seat was very high in the cab. While the car was not shown to have been 100 feet south of the crossing at that time, the engineer testified that the view down the road was clear. It may also be inferred from a portion of the testimony of the engineer that the cut or embankment began just beyond the point to which the train was backed up, or about 150 feet east of the crossing (fixed by one witness at 120-150 feet), and that the view was blocked until the train reached that point. All of the photographs are also to be considered. These show substantial quantities of weeds and brush on the right-of-way, apparently at a lesser distance than 200 feet, and also along the fence line of the road; and also, that the road is at a lower elevation south of the crossing. The consideration of such other evidence is not so contrary to plaintiff’s theory as to be “at war” with it. We may also consider Moore’s testimony (not objected to) that the failure to sound an earlier whistle was the cause of the accident, because he would have slowed down more had he heard one. We conclude that, on all the evidence, the question of what was plainly visible to the plaintiff from any particular point in the road was a question for the jury, and that the evidence was entirely too ambiguous to require a directed verdict or to convict plaintiff of contributory negligence as a matter of law. Certainly, reasonable men could have differed with regard to the inferences to be drawn.

As aptly stated by the Springfield Court of Appeals in Henrickson v. Resnik, Mo.App., 390 S.W.2d 610, at loc. cit. 616: “What constitutes negligence in failing to keep a lookout in a particular direction at a particular time or place, and whether a driver who has looked has seen all that he should, is usually a fact question, Slaughter v. Myers, supra, Mo., 335 S.W.2d at 50, 54 [6]; 61 C.J.S. Motor Vehicles § 526, pp. 437—438, and we have the view in this case that the evidence simply presented a question for the jury on the issue of defendant’s contributory negligence.” And see, generally, as denying contentions of contributory negligence as a matter of law: Zumault v. Wabash R. Co., Mo., 302 S.W.2d 861; Ledkins v. Missouri-Kansas-Texas R. Co., Mo., 316 S.W.2d 564; Van Buskirk v. Missouri-Kansas-Texas R. Co., Mo., 349 S.W.2d 68; Younkman v. Missouri Pacific R. Co., Mo., 304 S.W.2d 19. The contentions which we have thus considered were advanced as eliminating the element of proximate cause in any submission of defendant’s negligence and also as establishing plaintiff’s contributory negligence as a matter of law. When we rule one we rule the other. We shall rule upon the three separate submissions of negligence in considering Instruction No. 3, but we now hold: (1) that there was substantial evidence of defendant’s negligence in failing adequately to warn, and that there was also sufficient evidence to warrant the submission of such failure as a proximate cause of the collision. See, generally, Hackett v. Wabash R. Co., supra, Dickerson v. Terminal R. Ass’n, Mo., 284 S.W.2d 568; Van Buskirk v. Missouri-Kansas-Texas R. Co., supra, Zumault v. Wabash R. Co., supra. The duty to warn is to be viewed in the light of all the circumstances, including the extent of public user of the crossing and the obstructions. Hack-ett, supra, Van Buskirk, supra. From plaintiff’s testimony, the jury might well have found negligence in failing to sound a whistle immediately when the fireman admittedly saw the car at 150 feet, or it might have found negligence in not whistling for this partially obscured crossing even before any car was seen. Hackett v. Wabash R. Co., supra. The known circumstances enter into the care required of defendant. There was and is, of course, a very live factual issue of contributory negligence. The cited cases which hold that if one knows of the presence of a train, a failure to warn cán-not be the proximate cause, Sisk v. Chicago, B. & Q. R. Co., Mo.App., 67 S.W.2d 830, and Amos v. Terminal R. Ass’n of St. Louis, Mo.App., 142 S.W.2d 787, are not apropos here; the opinion in Sisk generally favors the present plaintiff. No one claims that plaintiff sazv the train earlier than he testified, and on his own evidence he heard no timely whistle or bell. The cases cited by defendant on contributory negligence as a matter of law are distinguishable on their facts. Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, and Pipes v. Missouri Pacific R. Co., Banc, Mo., 338 S.W.2d 30. Each case involved a driver, and in each the Court found that the driver could plainly see the train. In our case we do not so find as a matter of law. Three of defendant’s cited cases on contributory negligence merely hold that there was a submissible issue. Thurman v. St. Louis Public Service Co., Mo., 308 S.W.2d 680; Lamfers v. Licklider, Mo., 332 S.W.2d 882; Hopper v. Conrow, Mo., 347 S.W.2d 896. Although plaintiff “undertook” to look, it is our opinion that this act did not transpose the full duty of the driver to him, although in looking he was required to look with ordinary care. The trial court improperly entered judgment for the defendant.

We now consider the ruling on defendant’s motion for a new trial. This was sustained on the grounds: (1) that the evidence with regard to the obscuring of vision did not establish either negligence or proximate cause; (2) that there was not sufficient evidence to show that any failure to warn was a proximate cause; and (3), that plaintiff’s testimony that he could see for 200 feet, as already discussed at length, eliminated the element of proximate cause both as to lookout and warning. The Court thus held that proximate cause was not established as to any of the three elements; it apparently ruled that the evidence was insufficient to show negligence only as to the obscuring of vision. What we have already said concerning the sub-missibility of the case is determinative of all contentions on the subject of warning, both as to negligence and proximate cause. That element was properly submitted. Defendant’s argument concerning lookout seems to assume that the fireman saw the car as soon as possible (on which even he was uncertain) and that nothing more was required because there was then no present indication of danger and the crossing whistle had been sounded continuously. All this completely overlooks plaintiff’s testimony that there was no zvhistle until the train was 15-20 feet from the crossing and Moore’s testimony of approximately 100 feet. Considering that, some earlier warning could certainly have been given, and might have been given had the car been seen sooner. There is, of course, a primary duty on the defendant to keep a lookout when a train is approaching a public crossing. Cunningham v. Thompson, Mo., 277 S.W.2d 602, and the various other cases we have cited. The necessity of a lookout was heightened here by the very nature of the crossing and its user. On the facts in this case, however, any failure to see the car sooner could only have been beneficial to the plaintiff by virtue of an earlier warning. There was no possibility of stopping or swerving and it is also obvious from the evidence that there could not have been a sufficient slowing to do any good, for the car was stopped overlapping the south rail. (It took the train a full twenty-one car lengths to stop in “emergency.”) Under these circumstances the lookout submission was essentially a part of the warning submission, and it added nothing material to the latter; the separate submission of lookout tended to be misleading. There was a positive duty to warn at this crossing, lookout or no lookout. We believe that there was submissible evidence from which a jury could find that the fireman could have seen the car earlier, but as we view the case that does not justify here an independent submission of lookout. By no means do we mean to say that lookout is never independently submissible, even in railroad cases. For cases of other types, see the excellent discussion in Graham v. Connor, Mo.App., 412 S.W.2d 193. We mention in passing that in Hackett, supra, where it was shown that the fireman was doing something else when he should have been looking, the case was submitted only on failure to warn, although the failure to keep a lookout was regarded as a “circumstance.”

We have also concluded that the evidence concerning the extent and location of the weeds and brush was too vague to justify a submission that the vision was thus obscured. That was also a “circumstance” for consideration on the timeliness of any warning. The Van Buskirk case, supra, which was submitted in part upon the obscuring of vision, was based upon much more definite evidence. Upon a retrial of this case, if the evidence is substantially the same as that in the present record, it should be submitted only upon the failure of an adequate and timely warning.

The judgment entered for the defendant pursuant to its motion for a directed verdict is reversed; the order sustaining in the alternative defendant’s motion for a new trial is affirmed. The cause is remanded for a new trial in accordance with the views expressed in this opinion.

All of the Judges concur.


source: Caselaw Access Project

author: HENLEY, Presiding Judge.

license: Public Domain

text:
    PLATO REORGANIZED SCHOOL DISTRICT NO. R-5 OF TEXAS ET AL. COUNTIES, Missouri, Plaintiff-Appellant, v. INTERCOUNTY ELECTRIC COOPERATIVE ASSOCIATION, Defendant-Respondent.
    No. 53330.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.
    Farrington & Curtis, E. C. Curtis, Thomas Strong, Springfield, Hiett & Becker, Wm. Duke Hiett, Houston, for plaintiff-appellant.
    Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendant-respondent.
   HENLEY, Presiding Judge.

This is an action for $149,609.30 as damages for the destruction of plaintiff’s school building by fire allegedly the result of defendant’s negligence in the installation of certain parts of the building’s electrical system. Defendant’s motion to dismiss was sustained and the action dismissed. Plaintiff appeals. We reverse and remand.

Plaintiff’s petition was in two counts, the first alleging general negligence; the second, breach of implied warranty. The second count was voluntarily dismissed by plaintiff; it is no longer in the case and we take no further notice of it, except incidentally in connection with a motion by defendant to make more definite and certain.

Omitting paragraphs relating to the corporate status of the parties, plaintiff’s ownership of the building, its damage resulting from the fire, and the prayer, Count I of the petition is as follows: “That on or about February 22, 1966, plaintiff employed defendant to install a new circuit breaker panel board and heating panel in the electrical system of plaintiff’s said school building and to install certain wiring from said panel or panel board to an outside pole; that on or about said date defendant did perform said work and while doing so was in full and complete control of the said circuit breaker panel board, electrical panel, and all component parts thereof and connections therein; that defendant installed said circuit breaker panel board and electrical panel and electric wire and the connections thereof in such a negligent manner as to cause a fire within the panel board and heating panel on March 5, 1966, which directly resulted in the destruction of plaintiff’s school building.

“That from and after the 22nd day of February, 1966, and up until the time of the fire on March 5, 1966, the aforesaid panel board, electrical panel and wiring remained in the same condition as when installed by defendant and were not disturbed, altered or changed in any manner.

“The plaintiff has no knowledge of the specific acts of negligence on the part of defendant which caused the fire, but that such acts are peculiarly within the knowledge of the defendant.”

Defendant’s motion to make more definite and certain, filed at the same time as its motion to dismiss, was directed at both counts. The motion was in the alternative, that if the court overruled the motion to dismiss, it require plaintiff to make its allegations more definite; it was sustained as to the second count (later voluntarily dismissed), but was not expressly ruled on as to the first count. Instead, the court sustained defendant’s motion to dismiss Count I, without prejudice, thereby eliminating any need for ruling on the motion to make this count more definite. The motion to dismiss was on the general ground that the petition failed to state a claim upon which relief can be granted; the order dismissing Count I was on the grounds it failed to plead facts sufficient to state a claim under the res ipsa loquitur doctrine, and that the doctrine was not applicable. Plaintiff declined to plead further and this appeal followed.

At this stage of the case we are concerned exclusively with the pleadings; whether plaintiff pleaded a claim upon which relief can be granted; not with evidence which would be presented in support of or in opposition to the action.

In support of the court’s order, defendant contends that the petition fails to state a claim under the res ipsa doctrine for two reasons. The first reason is that the occurrence pleaded, the fire, is not one from which ordinarily there can be drawn an inference of negligence. In this respect, defendant recognizes that a fire may be an occurrence such as would invoke the doctrine, but asserts that this depends upon the surrounding facts and circumstances; that plaintiff was required to plead the surrounding facts and circumstances from which negligence could be inferred, such as, “ * * * any defects in the wiring or panel board * * The second reason is that the allegations of plaintiff’s petition show affirmatively that it has no cause of action under the res ipsa loquitur doctrine, in that the petition alleges facts showing that the instrumentality installed by defendant on February 22, was in the custody and control of plaintiff, not defendant, on March 5, 1966, the date of the fire; that under the doctrine, custody and control of the instrumentality causing the fire must be in defendant at the time of the casualty.

As to the first reason or ground advanced by defendant to uphold and preserve the trial court’s judgment, it relies on the general rule that “The mere occurrence of a fire does not raise a presumption of negligence.” In support of its position defendant cites the cases listed. These cases mention and support the general rule above quoted, but they are not applicable here, because, with the possible exception of the Stock Yards case, they do not involve pleadings. In each, including the Stock Yards case, the court held that plaintiff’s evidence was insufficient to make a sub-missible res ipsa case.

In Kansas City Stock Yards Co. v. A. Reich & Sons, supra, the issue as to pleadings involved plaintiff’s claim that the trial court had erred in requiring it to make its original and first amended petitions more definite and certain, thereby refusing to permit it to proceed under the res ipsa loquitur doctrine. The case was tried under a third amended petition voluntarily filed by plaintiff in which acts of negligence were specified in great detail. Holding that in these circumstances the trial court did not abuse its discretion by requiring plaintiff to make its petition more definite and certain, the court noted that it failed to see how plaintiff could have been injured in any event, because in making its proof every avenue of information was explored and presented to the jury. 250 S.W.2d l.c. 699. This case is of no assistance to defendant on the question we have before us.

Another case cited by defendant on this point is Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83. Plaintiff also cites this case in support of its position that the court erred in sustaining, on this ground, defendant’s motion to dismiss. The decision in that case is controlling in this. Gateway involved the res ipsa loquitur doctrine at the pleading stage. The petition in that case was essentially the same as this. Defendant there relied on the rule that the mere occurrence of a fire does not raise a presumption of negligence. The court held that the rule would not bar application of the res ipsa doctrine, stating, at l.c. 86: “While the rule quoted is a widely accepted general rule it does not preclude the application of the res ipsa rule ‘where the circumstances under which the fire originated and spread are such as to show that defendant or his servants were negligent in connection therewith.’ 65 C.J.S. Negligence § 220(12), p. 1038. Also, in Shain, Res Ipsa Loquitur, p. 471, it is stated that ‘In conformity with the rules governing applicability of the doctrine of res ipsa loquitur, it is applied to fires where it is shown that defendant had control and where the attending circumstances are’ such as to make it probable that the defendant or his servants were negligent.’” See Carter v. Skelly Oil Co., 363 Mo. 570, 252 S.W.2d 306, 308[3], and at l.c. 309[4], where the court states: “Generally speaking, the doctrine of res ipsa loquitur has no application to the pleadings. * * * Rather it is an inference aiding in the proof.” See also: Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654, 657[4], 658[10]; 71 C.J.S. Pleading § 69, p. 178; 65A C.J.S. Negligence § 187(12), p. 363; 29 C.J.S. Electricity § 62, p. 1138 and § 66 (2), p. 1149.

We hold that under the allegations of this petition the rule (no presumption of negligence by mere occurrence of fire) relied upon by defendant does not preclude application of the res ipsa doctrine, or plaintiff’s other theory of recovery hereinafter mentioned. Whether the rule is applicable will depend upon evidence showing surrounding facts and circumstances. But, as stated, we are not concerned here with what the evidence may show.

With respect to defendant’s second reason why the trial court’s ruling should be upheld, plaintiff contends that it pleads and states a claim for relief by charging general negligence; that it does not matter whether his pleading be denominated: (1) an action to recover under the res ipsa loquitur doctrine, or, (2) an action to recover under the “circumstantial evidence case” theory; that in any event, whatever plaintiff’s action may be denominated, its petition pleads a cause of action of general negligence and is good against a motion to dismiss on the general ground that no claim for relief is stated.

On the question of whether plaintiff has stated a cause of action under the res ipsa doctrine, the following is the position of the parties. As stated, defendant contends that under the doctrine custody and control of the instrumentality causing the fire must be in defendant at the time of the casualty. Plaintiff contends, contra, that the doctrine’s element of control refers to defendant’s control, or right of control, at the time the negligence is committed. Maybach, supra, is the only decision of this court cited by the parties in which the question of the point-of-time of control was squarely presented and decided. We quote at length from the Maybach case, because it decides this question and others involved in our case and discusses plaintiff’s other theory of recovery. The court said (222 S.W.2d l.c. 90): “It is generally held that the doctrine is inapplicable unless the control or right [and duty] of control of the instrumentality causing the injury is in defendant at the time of the injury, although some cases hold that it is sufficient to prove that the instrumentality was in the possession and control of the defendant at the time the negligent act was committed, together with further proof of the absence of any cause intervening between the negligent act and the injury. [45 C.J., p. 1214, sec. 781; Soter v. Griesedieck Western Brewing Co., 200 Okl. 302, 193 P.2d 575, 4 A.L.R.2d 458, 466.] This court in many cases has held the doctrine inapplicable unless the instrumentality was in the control or right of control of the defendant at the time of the injury: Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575; and in one case we held to the contrary. The exception is the case of Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001, decided in 1924. There we held that a petition, similar to that in the instant case, stated a cause of action under the res ipsa doctrine. Among other things it alleged that plaintiff was injured by the explosion of a bottle of beer bottled and sealed by defendant; that it had been sold and delivered by defendant to a grocer, sold by the grocer to a customer, carried by the customer into an adjoining shop and placed upon a counter near where plaintiff was standing when the bottle exploded; that the bottle and contents were in the complete and exclusive control of defendant until delivered to the grocer for resale, and that the explosion of the bottle was not caused by negligent handling of any person after it left the possession of defendant. This case was cited and followed by the St. Louis Court of Appeals in the case of Counts v. Coca-Cola Bottling Co., Mo.App., 149 S.W.2d 418. Also in Stephens v. Coca-Cola Bottling Co., Mo.App., 215 S.W.2d 50, the court and the parties assumed that the case, under facts similar to those in the Stolle case, came within the res ipsa doctrine.

“We think the result reached in sustaining the petition in the Stolle case is correct, because the petition states a cause of action for general negligence. But we think the opinion extends the res ipsa doctrine too far and farther than we have been willing to extend it in other cases. Gibbs v. General Motors Corp., 350 Mo. 431, loc. cit. 442, 166 S.W.2d 575. See also 38 Am.Jur., p. 996, sec. 300; Brown v. St. Louis County Gas Co., Mo.App., 131 S.W.2d 354, 359.

“An essential element of the res ipsa doctrine is that proof of the occurrence and attendant circumstances shall point, prima facie, to negligence on the part of the defendant. Such proof cannot, without further proof, point to the negligence of a defendant who is entirely out of control of the instrumentality at the time it causes the injury. Such proof may tend to indicate negligence on the part of some one, but further proof is necessary to definitely fix the blame on the defendant * * *.

“ ‘The doctrine of res ipsa loquitur is not applicable where the explosive causing the accident is not under the exclusive control of defendant.’ 25 C.J., p. 205, sec. 38, 35 C. J.S. Explosives, § 11, page 255.

“In the instant case the bottles which exploded had been out of defendant’s control for seven or eight days. Mere proof of the explosion did not create an inference of negligence on the part of defendant and thus bring the case under the res ipsa rule.

“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case.

“ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’ •

“ ‘Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501; Capehardt v. Murta, 165 Mo.App. 55, 145 S.W. 827.].” (Brackets and emphasis are in the opinion.)

In remanding the Maybach case for a new trial the court further said, at l.c. 92: “Upon a retrial * * * respondent cannot rely upon the mere proof of the occurrence to raise an inference of negligence on the part of appellant, but must offer evidence to negative the possibility that the injury may have been due to some cause intervening after appellant had parted with control. Of course, respondent will be entitled to any reasonable inference arising from the nature of the explosion as well as from other testimony. In other words the case should be submitted, not as a true res ipsa loquitur case, but as one depending in part upon circumstantial evidence.”

Plaintiff’s petition is substantially the same as that in Maybach, supra, l.c. 91, Citizens Bank of Festus v. Missouri Natural Gas Co., supra, and Phillips v. Carroll, supra, 379 S.W.2d l.c. 144. The petition alleges: (1) that plaintiff employed defendant to install the electric circuit breaker and heating panel; (2) that defendant negligently installed the unit; (3) that the unit was under the sole management and control of defendant at the time of installation; (4) that the negligent manner in which the unit was installed caused a fire to start within the unit eleven days after installation; (5) that during that time the unit remained in the same condition as when installed, not having been “ * * * disturbed, altered or changed in any manner;” (6) that plaintiff has no knowledge of defendant’s specific acts of negligence causing this unusual occurrence and that such are peculiarly within the knowledge of defendant.

From the nature of the case, plaintiff could not be expected to know the precise negligent act which became the cause of the fire. The petition charges general negligence predicated on an act of defendant alleged to be peculiarly within its knowledge. This charge of negligence is good against a motion to dismiss for failure to state a claim. It was not necessary that plaintiff state the specific facts' or acts showing negligence in order to state a claim upon which relief can be granted. Maybach v. Falstaff Brewing Corp., supra, 222 S.W.2d l.c. 92[10-12], Phillips v. Carroll, supra, 379 S.W.2d l.c. 145[5, 6]; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654, 657, and cases there cited. The petition states a claim upon which relief can be granted.

The judgment is reversed and the cause remanded.

SEILER and STORCKMAN, JJ., and HAYES, Special Judge, concur.

      . Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692, 699-700 [16]; Kapros v. Pierce Oil Corporation, 324 Mo. 992, 25 S.W.2d 777, 781 [3], 78 A.L.R. 722; Hendricks v. Weaver, Mo., 183 S.W.2d 74, 75-76 [1-2].

      . In support of what it denominates as the “circumstantial evidence case” theory, plaintiff cites and relies primarily on Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 72 A.L.R.2d 855. Plaintiff also cites as related or analogous cases: Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87 and other “exploding bottle” cases; Phillips v. Carroll, Mo.App., 379 S.W.2d 143; Miller v. Sabinske, Mo.App., 322 S.W.2d 941.


author: BARRETT, Commissioner.

text:
    LAND RED-E-MIXED CONCRETE COMPANY, and Hugh A. Miner, Trustee of the Estate of Cash Whitman, Inc., Bankrupt, No. 5574-5, Appellants, v. CASH WHITMAN, INC., a corporation, Pauline Whitman, James C. Heyer, Judy Downey, Glenn L. Whitman, J. Whitman, Robert E. Douglas, Trustee for the American National Bank, and the American National Bank of St. Joseph, Missouri, Respondents.
    No. 52816.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1968.

      Miner, Martin & Speiser, St. Joseph, for appellants.
    Dale, Potter & Flynn, Whitney W. Potter, St. Joseph, for respondents.
   BARRETT, Commissioner.

This is a suit by a creditor and Hugh A. Miner, trustee in bankruptcy of the estate of Cash Whitman, Inc., to set aside deeds to a certain tract of land in Buchanan County as in fraud of creditors (RSMo 1959, § 428.020, V.A.M.S) and to subordinate a deed of trust to the American National Bank of St. Joseph to the claims of creditors. Originally only the creditor, Land Red-E-Mixed Concrete Company, was plaintiff, Miner was appointed trustee on September 20, 1965, and thereafter intervened in the suit. Originally Cash Whitman, Inc., was a defendant, the other defendants are Pauline Whitman, widow of Cash Whitman and the last president of Cash Whitman, Inc., James C. Heyer, bookkeeper, and one-share officer of the company, Judy Downey, daughter of Cash and Pauline, also a shareholder-director, and Glenn L. and J. Whitman, son and daughter-in-law of the Whitmans and the grantees in the deeds involved here. Glenn and Janet were neither stockholders nor directors of Cash Whitman, Inc., and had no connection wtih the company. The other defendants are Robert E. Douglas, trustee in a deed of trust, and American National Bank, the holder of a $20,000.00 note from Cash Whitman, Inc., and the beneficiary in the deed of trust upon the land involved here.

As stated, the purpose of the suit was to set aside as conveyances in fraud of creditors two deeds by which a building and lot, 2401 North Belt Highway, formerly the property of Cash Whitman, Inc., were transferred to Glenn and Janet Whitman. The original deed, in fact the basic conveyance and the true subject matter of this litigation, is a conveyance from Cash Whitman, Inc., to “J” (Janet) Whitman, dated October 31, 1963, recorded November 1, 1963. The other deed to Janet, dated May 6, 1964, was a mere deed of correction “to correct a typographical * * * omission of the corporate name above the signature of the president (in the October 31st deed) Pauline Whitman.” There is no question as to the fact and purpose of the second deed and hereafter the case will be treated as if it involved only the deed of October 31, 1963.

Upon the trial of the cause in December 1966 there were no findings of fact, the court simply found “the issues in favor of the defendants and against the plaintiffs,” and the plaintiffs have appealed. The plaintiffs’ motion for a new trial was overruled on January 25, 1967, and on the same day their notice of appeal to this court was filed. Unfortunately, the official court reporter died on December 28, 1966, and no one has been able to transcribe her notes. Thus a full transcript of this court-tried case is not possible and the parties have agreed that the cause may be submitted upon their narration of “the substance and pertinent parts of the testimony” together with the preserved exhibits and depositions.

These, in brief, are the background circumstances of the appeal. In March 1957 Mr. Cash Whitman formed and was the principal stockholder of the family-operated corporation, Cash Whitman, Inc. Other stockholders were a son, or sons, now deceased, Mr. Heyer and after Mr. Whitman’s death, his wife, a defendant, Pauline became president of the company. In March 1957 the Whitman Construction and Engineering Corporation transferred to Cash Whitman, Inc., together with other property the building and lot involved here. On March 3, 1957, Cash Whitman, Inc., executed a deed of trust on this property-securing a note of $20,000.00 to the American National Bank. Cash Whitman, Inc., was a general contractor, “basically residential construction.” The company through Mr. Whitman’s efforts had developed one or more residential subdivisions in the St. Joseph area. And after the formation of the corporation a large number of houses, ranging in value from $11,000.00 to $35,500.00, were built and sold, and when Mr. Whitman died in February 1962 there were 28 of these houses sold and financed through a building and loan company. In addition to the house-building project the company had a water-pipeline contract or two in Kansas. The company also owned a quantity of heavy construction machinery and equipment and the office and machine shop maintained at 2401 North Belt Highway. This building had been appraised at various sums, as high as $45,000.00, and, as stated was subject to a first deed of trust of $16,000.00.

Upon Mr. Whitman’s death in 1962 the company, according to Mr. Heyer, began selling off its assets to pay its obligations and in fact “to dispose of all the property.” The plaintiffs’ evidence tended to show that the company could not pay its current liabilities but the defendants’ proof was that “there was then an equity in the properties,” the 28 houses, of $80,000.00 to $100,000.00. Mr. Heyer said, and others agreed with him, “We felt that, if we could sell them in our own manner to what we felt that they were worth, based on appraised evaluations by realtors, that we had something like eighty to a hundred thousand dollars.” In all First Federal Savings and Loan advanced Cash Whitman, Inc., a total of $469,600.00 on 24 houses and on October 31, 1963, these had been reduced to $276,255.63. In the end, however, these mortgages were foreclosed and there was no “excess paid over to the corporation.”

In any event, in September 1963, the board of directors met and duly authorized its president, Pauline Whitman, “in her own best judgment and her own discretion, should be allowed to sell” the 2401 North Belt property “for any terms that she should deem satisfactory.” The resolution recited a corporation note of $9,235.52 to Mrs. Whitman who “as an individual, did advance and loan said money to said corporation” and it was recited that if there was an excess over the debt to American National Bank “then the residue of said money should be paid to Mrs. Pauline Whitman.” Pursuant to this resolution Mrs. Whitman sold the property to her son and daughter-in-law, the deed was to the daughter-in-law, “J” Whitman. The corporation deed recites a consideration of “One Dollars and Other Valuable Considerations.” The son testified that he and his wife paid a consideration of $30,000.00 for the property. In the first place, they assumed the indebtedness to the American National Bank upon which there was then due $16,-481.25. Thereafter Glenn and Janet made payments on this indebtedness of $6380.40 thus reducing the debt at time of trial to $15,417.96. They also assumed the payment of delinquent interest and taxes. On May 7, 1964 they gave the American National Bank a note for $2500.00 secured by a second deed of trust on the 2401 North Belt property and thereafter have made monthly payments of $41.44 reducing that debt to $1665.74 by November 1966.

Mr. Heyer testified to the sums Mrs. Whitman had loaned to the corporation, as reflected in its records: “The first one that I show is a loan of twelve hundred dollars, dated two, twenty-eight, sixty two. I show another one for twenty-five hundred dollars on five, eighteen, sixty-two; four hundred dollars on five, thirty-one, sixty-two ; nine thousand two hundred and thirty-five dollars and fifty-two cents on seven, eighteen, sixty-two.” There were other sums in 1963, $345.00, $10.00 and $4436.25. Mr. Heyer could not say what each sum was used for “in every case,” the $1200.00 the month Mr. Whitman died was “probably just operating capital,” so too the loans of $518.62 and $2500.00. The large item totaling $9235.00 was “mortgage cancellation” to the building and loan association. Some of the advances were for interest due the bank, back taxes and some “bills of the corporation.” At one point Mr. Heyer said that there was a net sum of $8133.75 due Mrs. Whitman from the corporation.

Without detailing all the items, in addition to assuming the balance due the bank of $16,481.25, Glenn said that his mother owed him for work done at Oak Leaf Resort at Osage Beach, for interest advanced, the internal revenue service for social security taxes and other items totaling $8248.55. This and other indebtedness to him was cancelled as part of the consideration for the transaction by which he and his wife acquired title to this property. As to the value of 2401 North Belt the estimates varied from $45,000.00 down but there had never been a bona fide offer of over $25,000.00 and it was Glenn’s opinion that there was an equity in the property of approximately $12,000.00.

The plaintiff, Land Red-E-Mixed Concrete Company, obtained its judgments against Cash Whitman, Inc., August 27, 1964 (almost a year after the October 31, 1963, transfer) for the sums of $173.85 and $4119.38. There was a magistrate court judgment in October 1962 against Cash Whitman for $159.45, and one in June 1963 for $40.45, but these were satisfied after transcripts had been filed in the office of the circuit clerk. RSMo 1959, §§ 517.-770, 517.780, V.A.M.S. There were other magistrate court judgments in November and December 1963 and in 1964 other judgments ranging from $421.80 to $1459.-43 and these remain unsatisfied. In 1965 Cash Whitman, Inc., went into voluntary bankruptcy and there were then no assets of value, $8133.77 in unsecured claims and a total indebtedness of $44,295.93. And, incidentally, Mr. Whitman’s personal estate was closed in probate court and there were no assets of value.

In these circumstances the appellants contend that “upon the law and the evidence” the court erred in not setting aside the deeds of October 31, 1963, and May 6, 1964 as conveyances made in fraud of creditors. The appellants first point to the eight or nine badges of fraud enumerated in Bostian v. Bono, Mo., 322 S.W.2d 813 and insist that by reason of the concurrence of several of these factors the conveyances were fraudulent as a matter of law. Some of these badges, admittedly, are present, for example, conveyances to near relatives of the company president and a transfer of all of the company’s remaining assets of value. On the other hand, several of these suspicious badges are not present — it does not appear with certainty that the consideration was shockingly inadequate, that there were not explanatory circumstances or even that in one sense the company was insolvent, and finally the circumstances in that case are not comparable to the circumstances here. And, second, the appellants say that the assets of an insolvent corporation constitute a trust fund for the benefit of creditors and that a corporation has no right as against its creditors to apply its assets “in payment of a private debt of its officers.” As to this latter statement a mere reference to the record refutes the claim that the company’s obligations or debts to Mrs. Whitman were her “private debts.” There was no refutation of the proof that her advances from her life insurance and other means were to pay company debts. That is the distinguishing factor in one of the cases principally relied upon by the appellants, National Tube Works v. Ring Refrigerating & Ice Machine Co., 118 Mo. 365, 22 S.W. 947. That was a jury-tried case and the appeal was concerned with instructions, one of which submitted whether an advance was to liquidate an officer’s personal indebtedness to the company. It was in this connection that the court said that a corporation could not use its property “in payment of the private debts of its officers.” Such a case was Shields v. Hobart, 172 Mo. 491, 72 S.W. 669.

On the other hand, the respondents in these circumstances rely upon the Missouri rule that a corporation “though insolvent, may prefer some creditors to others, even though such creditors are among the directors of the corporation.” Foster v. Mullanphy Planing Mill Co., 92 Mo. 79, 87, 4 S.W. 260, 261; Schufeldt v. Smith, 139 Mo. 367, 40 S.W. 887; Butler v. Harrison Land & Mining Co., 139 Mo. 467, 41 S.W. 234. The rule applies despite the trust fund theory (Mooney v. C. B. & Q. R. Co., 125 Mo.App. 651, 103 S.W. 119) and the mere fact of a subsequent assignment for the benefit of creditors does not invalidate the transfer. Alberger v. National Bank of Commerce, 123 Mo. 313, 27 S.W. 657. There are two views on this subject and it is said of the majority view (at least thirty-one jurisdictions) that the “rule is merely applied common honesty” (15A Fletcher, Cyclopedia of Corporations, §§ 7468, 7469, pp. 229, 230) while the minority view (approximately seventeen jurisdictions) has been soundly condemned, even “severely condemned by some judges.” Fletcher, § 7470, p. 237. The annotators view the Missouri rule, with modifications, as an exception: “In a few jurisdictions it seems that a corporation which is actually insolvent, but which is a going concern and has not committed an act of insolvency, may prefer one of its directors who is a creditor of the corporation.” Annotation 19 A.L.R. 320, 349. But this case need not be made to turn on this narrow view alone, and the doctrine may be reexamined when the exigencies of the case compel it. As indicated, it was not conclusively established that Cash Whitman, Inc., was insolvent on October 31, 1963, and the court’s general finding may be treated as supporting that view. But even Fletcher says “there is no sound reason why directors should not assist a corporation in need of assistance, by lending money or credit and taking security therefor.” Fletcher, Sec. 7475, pp. 244-245. Mrs. Whitman did not directly take security for her advances but her son and daughter-in-law assumed the indebtedness of the first deed of trust and made the payments required to prevent its foreclosure. “Whatever may be the law in other jurisdictions, the rule is well settled in this State that stockholders or directors of a corporation can lawfully lend money to the company, and the company can lawfully prefer them, by transferring enough property of the company to fairly and reasonably secure or pay them what the company owes them.” Heidbreder v. Superior Ice & Cold Storage Co., 184 Mo. 446, 453, 83 S.W. 466, 468; Russe & Burgess v. Miesner Lumber & Mfg. Co., Mo.App., 243 S.W. 353.

The appellants contend in any event that the court erred in not holding that their rights came ahead of the rights of the American National Bank. The appellants’ claim in this respect is somewhat confusing, at one point they mention the $2500.00 indebtedness and second deed of trust given by Glenn and Janet. In their conclusion, citing Batavia v. Wallace, 102 F. 240, a jury case, the appellants “further contend that the American National Bank had notice or should have had notice from its dealings of the parties and its own records, that the conveyances of October 31, 1963 and May 6, 1964, were in fraud of creditors, so that the lien under the second deed of trust should he junior to the rights of the creditors of the bankrupt estate (Emphasis supplied.) The bank filed a separate answer but it does not appear from this record that the parties in fact seriously and separately tried this issue. If so, it may only be implied from the court’s general finding that this issue was also found against the appellants. Perhaps the appellants’ own statement refutes the claim, while Glenn said that the bank “completely understood the transaction between himself and his wife * * * and Cash Whitman, Inc., and the consideration therefor,” it does not appear, as they argue, that “the bank had reasonable cause to believe the corporation to be insolvent. It is bound by its own records.” Other than the indicated stipulated statement of Glenn it does not appear just what the bank may or may not have known. Certainly there isn’t anything- in this record that would subject the bank’s first deed of trust to the claims of common creditors, or even these judgment creditors. And only in theory or upon the opinion of experts has it been established that there is any value in 2401 North Belt in excess of the bank’s claims. In any event, upon this record there is no basis for subordinating the bank’s claims to those of other creditors.

And, for the 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.

FINCH, P. J., EAGER, J., and JENSEN, Sp. J., concur.

DONNELLY, J., not sitting.


text:
    Jack G. CRUMP, Plaintiff-Respondent, v. D. K. PIPER and Gregory L. Pucci, Defendants-Appellants.
    No. 52788.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1968.

      John J. Ziegelmeyer, Kansas City, Kan., John G. Killiger, Kansas City, for respondent.
    Richard P. Sprinkle, Kansas City, for appellants; Sprinkle, Carter, Sprinkle, Larson & Hanna, Kansas City, of counsel.
   HENLEY, Presiding Judge.

This is an action against an orthopedic surgeon and a neurosurgeon for $250,000 damages for malpractice in the joint performance of surgery on plaintiff on February 7 and May 27, 1964. Verdict and judgment were for defendants. The court granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence. Defendants appeal from that order. We affirm.

The acts of negligence alleged in plaintiff’s petition are, in substance: (1) that on February 7, 1964, defendants performed an operation on his back, a laminectomy and a fusion of vertebrae; that they negligently left a foreign object in his body, a cottonoid sponge known as a “peanut,” so called because of its size and shape; (2) that on May 27, 1964, defendants performed an operation on his back to remove the sponge; that during this operation defendants negligently permitted fluid to escape from his spinal column requiring further surgical treatment by defendants. Plaintiff further alleged that his injuries and damage were the result of negligence during either the first or the second operation. Defendants’ answers were separate general denials. The case was submitted to the jury solely on the issue of negligence in leaving the sponge in plaintiff’s back.

Defendants advance two points in their joint brief. The first is that the court erred in overruling their separate motions for directed verdict at the close of plaintiff’s case and at the close of all the evidence, because plaintiff did not make a submissible case against both defendants. The second is that plaintiff failed to make a submissible case against Dr. Pucci, because there was no evidence: (1) that he was in charge or control of that part of the operation during which “peanut” sponges were used and one left in plaintiff’s back; or, (2) that he was negligent; therefore, the court erred in overruling his motions for directed verdict at the close of plaintiff’s case and at close of all the evidence.

We summarize that part of the evidence necessary to our consideration and determination of the points briefed by the parties. Dr. Gregory L. Pucci is a neurosurgeon whose specialty is generally described as the surgical treatment of diseases of the nervous system and, as in this case, the surgical excision of a disk exerting pressure on a vertebral nerve root in the lumbar region. Dr. D. K. Piper is an orthopedic surgeon whose specialty is generally described as the treatment of conditions affecting the musculoskeletal system and, as in this case, the surgical treatment of vertebrae by the fusing or joining of one vertebra to another to produce rigidity of the spinal column in the lumbar region.

In February, 1964, plaintiff consulted Dr. Pucci complaining of persistent severe low back pain extending into his lower extremities. He had a history of having had a laminectomy at the L4-L5 interspace by another doctor in 1957, partial recovery, and a recurrence of pain resulting in another laminectomy at the same point by the same doctor in 1959, and again a partial recovery, but a recurrence of the same symptoms in early 1964. In discussing his condition with Dr. Pucci, plaintiff suggested that if another operation was necessary he thought a fusion should be performed. Dr. Pucci suggested that Dr. Piper be called in for consultation in connection with a possible fusion and that a myleo-graphic study be made. Plaintiff was admitted to St. Joseph Hospital, Kansas City, Missouri, on February 5, for a diagnostic myleogram; it was performed the next day and disclosed a very large filling defect, a marked narrowing at the L4-L5 interspace, and mechanical instability in the L4 — L5 and L5-S1 area. Dr. Piper was consulted and the two doctors agreed that another lam-inectomy and a stabilization of this area was required by a fusion of L4 and L5 to correct plaintiff’s condition. Plaintiff was so advised, he agreed to the surgery, and the operation was performed the next morning, February 7.

Briefly, the procedure followed in this operation was: Dr. Pucci opened plaintiff’s back with a midline incision, making the incision large enough, of course, to accommodate the latter part of the procedure, the fusion or bone graft; exploring inside, Dr. Pucci found the L4 nerve root and sub-jacent to it the offending disk fragment; he removed the fragment and Dr. Piper took over for a fusion of L4 and L5. Dr. Piper spread these vertebral bodies apart as much as possible and while so spread he created a mortise in each body with an instrument. He obtained a piece of bone from another part of plaintiff’s body to use as a dowel. This dowel was then driven and countersunk into the mortises in these vertebrae to stabilize the spine at this point. Finishing this procedure, he closed the incision or opening with stitches, etc., and plaintiff was sent to the recovery room. Dr. Piper was Dr. Pucci’s assistant during that part of the operation performed by the latter, and vice versa. Dr. Pucci testified that he “ * * * helped Dr. Piper do the fusion part * * but that he was not in the operating room when the wound was closed; that he left to attend to other business. “Peanut” type sponges were not used during that part of the operation performed by Dr. Pucci; they were used during that part of the operation performed by Dr. Piper. One of these sponges was left in plaintiff’s body necessitating further surgery for its removal. The sponge was discovered by Dr. Piper in plaintiff’s spinal canal near the operation site approximately four months later during routine X rays. It was removed by these two doctors May 27, 1964.

In the first part of their argument in support of their contention that plaintiff failed to make a submissible case against both defendants, they discuss at some length whether, relative to the February operation, it was general negligence or specific negligence that plaintiff was required to plead, prove and submit on. In this connection they develop a dissertation on the several aspects of the res ipsa loquitur doctrine and whether that doctrine is applicable to malpractice actions. They conclude that plaintiff pleaded (and therefore should have proved) general negligence whereas, they say, he probably should have pleaded specific negligence. They more or less concede that proof that the sponge, was left in plaintiff’s back “ * * * makes a prima facie showing of negligence * We are of the opinion plaintiff pleaded and made a submissible case of specific negligence. Hasemeier v. Smith, Mo., 361 S.W.2d 697, 700 and cases there cited.

We pass to the core of their point. It is that plaintiff failed to make a submis-sible case of negligence in leaving the sponge in his body, because he failed to show by expert testimony that the procedure followed constituted a failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendants’ profession in good standing practicing in similar localities. In the great majorty of malpractice actions a submissible case may be made only by expert medical testimony, for otherwise a jury may not know whether a doctor’s acts did or did not conform to the required standards of his profession. But this case falls within the exception to that rule; here “ * * * the evidence has shown such an occurrence [leaving the sponge in plaintiff’s back] * * * as the lay juror can determine would not likely happen in the exercise of ordinary care and skill.” Rauschelbach v. Benincasa, Mo., 372 S.W.2d 120, l.c. 124[5]. See also: Hart v. Steele, Mo., 416 S.W.2d 927, 932[8, 9]; Hasemeier v. Smith, supra; Williams v. Chamberlain, Mo., 316 S.W.2d 505, 511. Expert testimony was not essential to plaintiff’s case on the issue of negligence submitted to the jury.

Defendants contend in their second point that the two doctors were independent contractors, each engaged for a specific part of the operation; that each is responsible for his own negligence in that part of the operation performed by him and no more; that since Dr. Pucci was not in charge of the fusion part of the operation and did not use “peanut” type sponges in that part of the operation he did perform, any negligence in leaving the sponge in plaintiff’s back may not be charged to him; therefore, plaintiff failed to make a submissible case against Dr. Pucci.

We are cited no authority, in Missouri or foreign jurisdictions, clearly deciding this precise point. Our research has not produced any. The authorities cited by the parties are listed. Telanus v. Simpson, 321 Mo. 724, 12 S.W.2d 920, cited by defendants, involved the negligence of doctors who were partners in the practice of medicine, and is clearly not applicable to the facts in this case. Baird v. National Health Foundation, et al., 235 Mo.App. 594, 144 S.W.2d 850, cited by plaintiff, approaches the precise point more closely. It involved three doctors who, although not partners, were employed by the named defendant to render medical services to plaintiff, one of that defendant’s patrons; the doctors were associated in the same office, the office of their joint employer, and each had knowledge of what the other had done and was doing. Each was charged with negligence in their separate diagnoses of plaintiff’s illness. The court rejected their contention that because each exercised his independent judgment, one was not liable for errors of the others, holding that in treating plaintiff they were acting jointly in a common enterprise for a common employer, the Foundation.

The general rule with respect to the liability of physicians independently employed or acting and those jointly employed or acting is stated in the summary of Annotation, 85 A.L.R.2d 889, 893, sec. 2, thus: “Physicians independently employed or acting independently in the case are not vicariously liable, unless the one observed, or, in the exercise of ordinary care, should have observed, the wrongful act of the other. On the other hand, vicarious liability has been recognized where the physicians are jointly employed or acting jointly in the case, or are in a partnership for the practice of medicine, unless the wrongful act was outside the scope of the firm’s business.” It is stated in 41 Am. Jur., Physicians and Surgeons, sec. 113, p. 225: “Physicians who are employed together, who diagnose and treat the case together, without withdrawal by or discharge of either, are both responsible if the treatment is negligent, and under such joint employment, one of the physicians cannot relieve himself of responsibility for negligent treatment by simply staying away, without notice to the patient.” See also: 70 C.J.S. Physicians and Surgeons § 54 c., p. 977.

We conclude that it reasonably may be inferred from the evidence that defendants were employed jointly, not independently, to treat plaintiff jointly for the relief of his condition, according to their best judgment. They diagnosed his condition together and reached the same conclusion. They both recommended a laminectomy and fusion of vertebrae in one operation. Although each, in serving with the other, performed that part of the surgery for which his talents particularly qualified him, they acted in concert to accomplish a common goal, the correction of the defect in plaintiff’s back. The post operative treatment was by both doctors, including the surgery for removal of the sponge performed by Dr. Pucci with Dr. Piper acting as assistant. From beginning to end both doctors looked upon plaintiff as their joint patient for whose well being and comfort each felt and expressed concern and responsibility, and they so treated him.

We hold that under the facts of this case the two defendants were not independent contractors, each responsible only for his own sole negligence occurring during that particular part of' the operation performed by him; that Dr. Pucci is vicariously liable for any negligence of Dr. Piper. Nor may Dr. Pucci be relieved of responsibility for negligence simply because he left the operating room to attend to other business before Dr. Piper finished closing the wound. The court did not err in overruling Dr. Pucci’s motions for directed verdict. Baird v. National Health Foundation, supra; Sprinkle v. Lemley, supra, Conrad v. Lakewood General Hospital, supra. See also: Beauchamp v. Davis, supra, and Stokes v. Long, supra.

The trial court granted plaintiff a new trial on a discretionary ground: that the verdict and judgment were against the weight of the evidence. Its ruling, based on that ground, is not to be disturbed absent manifest abuse of discretion. Frager v. Glick, Mo., 347 S.W.2d 385, 387[1]. We have held that plaintiff made a sub-missible case against each defendant. The court did not abuse its discretion. Robinson v. Wampler, Mo., 389 S.W.2d 757.

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

All concur.

      . The removal of all or part of the lamina or disk between two vertebras.

      . Defendants cite Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920, 926; Stokes v. Long, 52 Mont. 470, 159 P. 28; Morey v. Thybo, 7 Cir., 199 F. 760; Thompson v. Lillehei, (D.C.Minn.), 164 F.Supp. 716; Beauchamp v. Davis, 309 Ky. 397, 217 S.W.2d 822; Annotation, 85 A.L.R. 2d 905, sec. 10 [a]. Plaintiff cites Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850, 855; Sprinkle v. Lemley, 243 Or. 521, 414 P.2d 797; Conrad v. Lakewood General Hospital, 67 Wash.2d 934, 410 P.2d 785, 10 A.L.R. 3d 1; Annotations, 85 A.L.R.2d 904, sec. 9; 41 Am.Jur., Physicians and Surgeons, p. 225, sec. 113.