author: PRITCHARD, Commissioner.

text:
    Erma Sue SCHNEIDER, Respondent, v. Paul Allen PRENTZLER, Administrator of the Estate of Kenneth Lee Prentzler, Deceased, Appellant.
    No. 50846.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Terence C. Porter, Columbia, Darold W. Jenkins, Marshall, Welliver, Porter & Cleaveland, Columbia, of counsel, for respondent.
    W. F. Daniels, Fayette, for defendant-appellant.
   PRITCHARD, Commissioner.

This is a circumstantial evidence case of collision between a westbound dump truck driven by plaintiff’s deceased husband and an eastbound pickup truck driven by defendant’s intestate upon Highway 5 in Howard County, Missouri. The question is whether there was a sufficiency of such evidence to justify a finding that defendant’s intestate was upon his wrong side of the road and thus proximately caused the death of plaintiff’s husband. Both drivers died as a result of the collision. The wife of defendant’s intestate (Kenneth Lee Prentzler) was a passenger in the pickup truck and survived, and was the sole eyewitness to the collision.

The case was removed upon change of venue to Saline County from Chariton County (the residence of the parties), and was tried to a jury which returned a verdict for $25,000 for the wrongful death of plaintiff’s husband. From the ensuing judgment, defendant appeals.

On July 2, 1962, plaintiff’s deceased husband, Jacob K. Schneider, was employed in hauling sand from Glasgow, Missouri, to an asphalt mixing plant near Roanoke, Missouri, a one-way distance of about 20 miles. He was driving a 1959 International truck with tandem rear wheels. It had a dump body on it 7(4 feet wide and 11 feet long. The rear wheels of the truck were about 7(4 feet wide. The truck was empty and weighed about 12,500 pounds.

About two miles east of Glasgow, where the collision occurred, Highway 5 is a rock asphalt pavement. Dividing the pavement in its center is a broken white line. The pavement at that point is about 20 feet wide. The collision took place on a fairly straight east-west stretch of this winding highway. From the scene of collision the nearest curve is about 400 feet to the east, and from the east curve the roadway slopes downward to the west.

Howard Lee Munden, who was in the same employment as plaintiff’s decedent, came upon the scene of the collision shortly after it happened — within 10 or 15 minutes. He saw the dump truck on the north side of the road, down the road some way from the Prentzler pickup, and facing south with the front end on the edge of the highway and the back end off in the ditch. The Prentzler pickup was back to the east on the south side (the eastbound lane) of the highway, with the front end sitting right on the center line. Munden observed debris and material that had fallen off the vehicles, consisting of dirt and glass (3 or 4 feet across), some 3 or 4 feet north of the center line, and approximately due north of the Prentzler vehicle. There was also a fresh gouge mark 3 or 4 feet north of the center line and right near the center of the area of debris, “shakedown” and broken glass. The area of the heaviest concentration of debris and the location of the gouge mark therein were marked with a circle and a dot by the witness on plaintiff’s Exhibit 13 (a photograph of the roadway), as was the location of the front of the Prentzler vehicle on the center line. Munden looked for shakedown or debris on the south side of the center line and on the shoulder, but did not see any. Upon the north bank he observed where the dirt had been torn up in two places, a few feet apart. He observed also some truck parts on the north side of the highway, but none on the south.

John Schnetzler was also employed in hauling sand as was plaintiff’s decedent on July 2, 1962. He went out to the scene of the collision forty-five minutes to an hour after it happened. The only vehicle remaining there was the truck Schneider was driving which was located on the north side with its tandem rear wheels over a culvert and its front on the north edge of the blacktop. Schnetzler found the seat, windshield and things which had been thrown out of the truck on the north shoulder. He saw a gouge mark on the north side of the center line about 3(4 to 4 feet north thereof and in the westbound lane. He also saw debris or shakedown— dirt, oil, antifreeze or water, in the area of the gouge mark. He observed no tire marks east of that point. He walked along the south side of the shoulder and did not find parts of the trucks thereon.

Leo Maag was the employer of plaintiff’s decedent. He testified that the width of the 1959 International truck was 7(4 feet at its widest part (the bottom of the bed); the width of the 1952 Chevrolet pickup truck (the Prentzler vehicle) was 70 inches, its length 15 feet and 9 inches. The dump truck was equipped with a governor which limited Its speed to 60 miles per hour, and the governor was in good working order on the day of the collision. Mr. Maag went to the scene of the collision about 45 minutes after it happened. His truck was still there, but the Prentzler pickup was being towed to Glasgow. He made an examination of the highway and observed the heaviest part of debris and shakedown where the vehicles collided on the north side of the center line. He saw dirt, oil, water and glass at that point. There was some debris on the south side of the highway but the majority of it was on the north side of the center line.

Larry Hannah, an engineer, made a survey of about 600 feet of Highway 5 at the scene and drew a plat thereof to scale. From a point marked “I”, 4 feet north of the center line, he put in a distance of 202 feet west to a sign, and just to the west of the sign he indicated a culvert, all on the north side of the highway. He also put in a distance from point “I” to the east 405 feet to the top of the rise on the highway. The foregoing data (including Point “I”) was placed on the plat by Mr. Hannah at the trial.

C. M. Price, Sergeant with the Missouri Highway Patrol, testified that he received a radio notice of the collision at 2:30 p. m. on July 2, 1962. He thereupon went to the scene and made an investigation of the collision. On the day thereof the weather was clear and the road was dry. When Sergeant Price arrived at the scene there was a pickup truck in the south lane, and a large dump truck farther west on the shoulder. Neither vehicle had been moved. The right front corner of the pickup truck was right at the center line of the highway. There was debris in the over-all general area; the bulk of it, or the center of the bulk, was located in the north lane, which was 4 feet north of the center line, and about 12 feet from the right front corner of the pickup. The center of the heaviest area of the shakedown and debris was located 202 feet from the dump truck. The width of the shoulders of the road on either side of the heaviest concentration of debris was: north shoulder, 8 feet; south shoulder, 10 feet. The width of the pavement at that point was 20 feet. Sergeant Price drew on the plat the positions of the two vehicles as he found them. He drew a circle on the plat where he found the heaviest concentration of debris and shakedown, around what had been marked “Point I” by engineer Hannah. From the right front wheel of the pickup truck he saw a tire mark, 12 feet in length, which went to the west and back into the north lane of traffic about ½ foot. There was also a tire mark 10 feet long leading back to the west from the right rear wheel of the pickup truck and from the south edge of the pavement. He saw “hash marks” 20 feet west of the point of collision on the north bank or back slope of the road where the dump truck had struck first with its rear wheels, and from the number of them it was his judgment that the dump truck had rolled over twice —two full turns. From the damage to the vehicles Sergeant Price determined that the left front of the pickup and the left side of the dump truck right at the door, the left corner of the bed and the rear wheels, came together in the impact. The dump truck rolled right side first and continued to roll, so that the nose was pointed south toward the pavement as it was rolling on down (towards where it came to rest).

Because the submissibility of plaintiff’s case is being challenged, we have set forth the foregoing facts in their light most favorable to her, and we have disregarded defendant’s evidence. Goddard v. St. Joseph Light and Power Company, Mo., 379 S.W.2d 565 [1]; Kuehn v. Hahn, Mo., 380 S.W.2d 445, 447 [1]. The wife of defendant’s intestate, Nancy Prentzler, testified that she was riding with her husband, Kenneth Prentzler, at the time of the collision, and that the pickup truck was on its own (south) side of the road, but that the dump truck was on its wrong (also south) side of the road about halfway. The driver of the dump truck tried to get back on his own side, but did not make it. Although Mrs. Prentzler was the sole eyewitness, the jury was not bound by her testimony, but could accept the above set forth circumstantial evidence relating to the issue of whether defendant’s intestate was on the wrong side of the road. Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78, 83 [5]. “A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and may outweigh opposing direct testimony.” 32A C.J.S. Evidence § 1039, p. 751; McCain v. Trenton Gas & Electric Co., 222 Mo.App. 1146, 15 S.W.2d 970, 975 [7, 8]. It is well established that a case may be proved by circumstantial evidence alone. Brawley v. Esterly, Mo., 267 S.W.2d 655, 659 [3-5]; Berry v. Harmon, Mo., 323 S.W.2d 691, 695 [2].

There are several circumstances in evidence in this case from all of which the jury could properly and logically infer that the Prentzler pickup was on the wrong side of the road. The first is that the heaviest concentration of debris and “shakedown” from the vehicles was in the north or westbound lane of travel — plaintiffs decedent’s right side of the road and the wrong side of the road for defendant’s intestate. The second is that a gouge mark was found in the center of said heaviest concentration of debris in the north lane. Helton v. Huckeba, supra, loc. cit. 276 S.W.2d 83. The most significant fact, however, is that there was a tire mark leading from the right front wheel of the Prentzler pickup truck, back to the west for 12 feet and over the center line 6 inches into the westbound lane of travel, and that there was a tire mark from the right rear wheel of the Prentzler pickup truck leading to the west for some 10 feet. The jury could infer from all of the circumstantial evidence that the Prentz-ler pickup truck was entirely and wholly on its left and wrong side of the road, with its right side 6 inches from the center line, at which time its left front came into contact with the dump truck at a point 4 feet north of the center line. The pavement at this point is about 20 feet wide. The pickup truck, being 5 feet and 10 inches wide, thus occupied 5 feet and 16 inches of the westbound lane, leaving about 4 feet for the dump truck, 7½ feet wide, to operate on the pavement. The resultant impact was such, so the jury could find, that the pickup truck was spun around on the spot in a counterclockwise direction, as indicated by said tire marks. The dump truck, being struck on its left side (perhaps first on its left front fender as indicated by the photographs), was also spun in a counterclockwise direction. When the rear wheel of the dump truck struck the north bank Or back slope, its momentum caused it to roll over and over for some 202 feet where it came to rest. Thus, all of the evidence shows with reasonable certainty that defendant’s intestate was on the wrong side of the road. See the recent analogous case of circumstantial evidence, Martin v. Sloan, Mo., 377 S.W.2d 252, 258 [7], where it was held that “intermittent skid marks” and “dashes” which led to plaintiff’s decedent’s truck on its own east side of the road, the location of the “main center” debris and gouge marks in the east lane, and skid marks starting at the “main center” of the debris and which extended across the highway to the other (Chevrolet) vehicle, constituted sufficient evidence that the point of impact occurred in the east lane of the highway which was the wrong lane for the Chevrolet automobile. Here, plaintiff made a submissible case on her assignment of negligence that' defendant’s intestate was on the wrong side of the road, and defendant’s Point I raising such issue is overruled.

Defendant’s only other Point (II) is that the court erred in permitting the patrolman (Sergeant Price) to draw a circle on Plaintiff’s Exhibit 14 (the plat), marked Point “I” to indicate where the heaviest concentration of debris and shakedown was located. We note that there was no objection to the engineer placing on the plat at the trial a dot 4 feet north of the center line and denominating it “Point I”. The contention here seems to be that the area encircled in red constituted an opinion from Sergeant Price that it was the point of impact. Sergeant Price’s testimony, however, was not that it was his ■opinion that the red circled area was the point of impact, which would be an improper conclusion under Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247 (where the witness stated that the “point of impact is at the center of the debris and that is where we come to the conclusion that that is the point of impact, * * * ”), and Chester v. Shockley, Mo., 304 S.W.2d 831, 834 [1], where a like conclusion was condemned. Sergeant Price merely indicated on the plat the area of the heaviest concentration of debris and shakedown which he had observed on the pavement. An understanding of his testimony by the jury was thus aided. See annotation 9 A.L.R.2d 1047, “Use and Admissibility of Maps, Plats, and other Drawings to Illustrate or Express Testimony.” Point II is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    Olive M. LEE, Appellant, v. Roy A. GUETTLER, Jr., Respondent. Paul F. LEE, Appellant, v. Roy A. GUETTLER, Jr., Respondent.
    No. 50944.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.

      James L. Muller, Kansas City, for appellants.
    Charles Shangler, Kansas City, for respondent.
   HYDE, Presiding Judge.

These qre separate actions for damages for personal injuries by a husband and wife, asking $10,000.00 for husband and $15,000.00 for wife with a count for $10,-000.00 for loss of wife’s services pursuant to Sec. 23-205, General Statutes of Kansas 1949. The injuries were sustained in a collision of automobiles in Kansas. Defendant’s motion to dismiss these causes, combined for hearing thereon, was sustained and plaintiffs have appealed from the judgments of dismissal entered.

The ground alleged in the motion to dismiss was a prior final adjudication of plaintiffs’ causes of action in a suit between the same parties. The adjudication relied on was in an action filed by plaintiffs jointly against defendant in the magistrate court of Jackson County for $350.00 for damages to the automobile owned by them in which they were riding at the time of the collision. Plaintiffs had judgment for $350.00 which was satisfied in open court before these suits were filed. Defendant’s contention, which the trial court sustained, is that the magistrate court judgment is res judicata of all issues between the parties and that to permit plaintiffs to maintain these actions for personal injuries after the adjudication of their property damage claim in the magistrate court would permit them to split their causes of action.

Plaintiffs’ contention is that the present claims of each of them individually are not on the same cause of action determined in the magistrate court because that claim was a joint claim for damage to the car owned by them jointly. On reason and authority, as hereinafter discussed, our conclusion is that plaintiffs’ contention must be sustained.

The cases on which defendant relies are cases concerning two claims arising out of a single occurrence separately commenced by the same single plaintiff. Stoops v. Stoops, 363 Mo. 1075, 256 S.W.2d 799; Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7; Dunn v. Pickard, Mo.App., 284 S.W.2d 6; Coy v. St. Louis and S. F. R. Co., 186 Mo.App. 408, 172 S.W. 446. They have no application to the situation here. In General Exchange Insurance Corporation v. Young 357 Mo. 1099, 212 S.W.2d 396, 400, also cited by defendant, we said: “It is generally held that the right to recover damages for injury to person and property arising out of the same occurrence constitutes a single cause of action. The rule, of course, applies only when the right of action for both personal injuries and property damage is in the same person.” We pointed out therein how there could be recovery in two separate suits, one for personal injuries and one for property damages, resulting from a single act of negligence, where under the circumstances of that case two separate parties were real parties in interest as to each of these claims.

The majority rule, which we follow as defendant states, is that bringing separate suits for personal injuries and for property damages is splitting a cause of action and will not be permitted. General Exchange Ins. Corp. v. Young, supra; Chamberlain v. Mo.-Ark. Coach Lines, 354 Mo. 461, 189 S.W.2d 538, 161 A.L.R. 204; A.L.I. Restatement of Judgments, Sec. 62; 1 Am.Jur. 494, Actions, Sec. 113; 1 C.J.S. Actions § 104d, p. 1334. However, as we said in Chamberlain (189 S.W.2d l. c. 539): “The rule against splitting a cause of action applies to bringing separate suits for different elements of damage of the same cause of action and not to bringing separate suits on separate causes of action arising out of the same transaction or occurrence. ‘One may bring separate suits on separate causes of action even if joinder of the separate causes in one action is permissible, subject, however, to the power of the court to order consolidation.’ 1 Am.Jur. 480, § 96.” In that case, we held that the same plaintiff could bring separate suits for his own personal injuries and the wrongful death of his wife resulting from the same occurrence, because they were different causes of action. In this case, a husband and wife sustained personal injuries in the same collision, for which they each have a separate cause of action, as well as the right under Kansas law for the husband’s loss of his wife’s services. As to claims for personal injuries of a husband and wife being separate causes of action, see Watkins v. City of El Dorado, 183 Kan. 363, 327 P.2d 877, 881; Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P.2d 276, 279; see also Adams v. Stockton, Mo.App., 133 S.W.2d 687, 688. As hereinafter shown, plaintiffs did not have separate causes of action for the damage to their car.

“The rule against splitting a cause of action applies only where the several causes of action are between the same parties.” 1 C.J.S. Actions, § 102, p. 1312; see also Restatement of Judgments, Comment b, Sec. 62, saying that the rule it states against splitting “presupposes a claim and judgment of a single plaintiff against a single defendant.” That is not the situation here. The claims of Mrs. Lee and Mr. Lee are each separate claims against a single defendant. Neither has any interest in the claim of the other for his or her personal injuries; and neither is a necessary or proper party to the other’s action. However, that is not true of the suit in the magistrate court for damages to their jointly owned automobile. “Joint owners of a chattel cannot, over the objection of the adverse party, separately sue the wrongdoer for an injury to or to recover the possession of the chattel, bur all must join as parties plaintiff.” 39 Am.Jur. 896, Sec. 32; see also Civil Rule 52.04(a); Restatement of Judgments, Sec. 103. This joint action of a husband and wife for damage to their jointly owned property is a separate and distinct action from the separate action each has a right to maintain for his or her own personal injuries.

This principle was established by this court m Duffy v. Gray, 52 Mo. 528, where two partners, in a joint suit, had recovered a judgment for injury to the partnership business on account of certain words of defendant. In a suit of a partner for slander by these words, it was held: “[T]he former recovery and satisfaction were not admissible, either as a bar, or in mitigation of damages.” This court said: “This action is for a personal injury to the character of the plaintiff, and the former suit was for a joint injury to the trade and business of the firm of ‘Duffy & Kincer.’ The members of the firm could have no legal interest whatever in the personal character of each other. The slander to the individual character of each member of the firm could not be a joint tort. It was necessarily a separate and distinct injury, for which a several, and not a joint action, could be maintained. (See also, Townsend on Slander, §§ 185 and 303; Haythorn et al. v. Lawson, 3 C. and P., 196.) The only damages the partnership could have recovered was for the injury to their joint trade and business.

This case is cited and followed in Adams v. City of Duluth, 175 Minn. 247, 221 N.W. 8, in which the home of Mr. and Mrs. Adams, husband and wife, was damaged by a gas explosion. Three actions were brought simultaneously, one by Mr. and Mrs. Adams for damages to their jointly owned house, one by Mrs. Adams for her personal injuries and one by Mr. Adams for loss of his personal property and loss of his wife’s services. After judgment for plaintiffs in their suit for damages to their home, which was paid and satisfied, it was contended that plaintiffs had split their causes of action and were precluded from further proceedings. The court held the husband and wife were required to join in the suit for damages to their jointly owned house and there was no splitting of causes of action which could bar their separate individual actions.

Duffy v. Gray is also cited in Henderson v. United States Radiator Corporation, (C.C.A. 10th) 78 F.2d 674, in which plaintiff jointly with her husband obtained a judgment against defendant for damages to real and personal property jointly owned by them. Thereafter, the wife sued for her personal injuries and destruction of her personal property. As to the right to maintain the subsequent action, the court said: “A cause of action which accrues to a husband and wife jointly cannot be joined with one which accrues to one or the other alone. Joint tenants must join in an action for damages to their joint property. * * * It follows that the cause or causes of action in the instant case were separate and distinct from the cause of action in the former case, and that they could not have been joined in the same action.”

Defendant suggests that now under Civil Rule 52.05 all the actions of plaintiffs could have been joined in one suit, which was not true at the time of Adams v. Stockton, supra (133 S.W.2d l. c. 688) in which a demurrer for misjoinder of actions was sustained. However, the issue here is not whether separate actions may be joined but instead it is whether the actions, herein considered, are separate actions with different ownership. We hold that they are and for that reason plaintiffs’ joint action in the magistrate court is not a bar to the present actions.

Defendant makes the further contention that the record does not disclose ownership in plaintiffs which required them to sue jointly in the magistrate court for property damage. Plaintiffs were husband and wife and brought the suit jointly in the magistrate court, stating in their petition that “plaintiffs were the owners of a certain 1954 Ford station wagon”; and that defendant ran into the rear “of plaintiffs’ automobile * * * causing plaintiffs’ automobile to be damaged.” Furthermore, in the affidavit filed in support of defendant’s motion to dismiss it is stated that the Ford was “owned jointly by the said Paul F. Lee and Olive M. Lee, his wife,” and that “judgment was entered in favor of Paul F. Lee and Olive M. Lee” in the magistrate court action. In Kansas, where plaintiffs lived, “a joint tenancy may be created in personal as well as real property.” Hewitt v. Biege, 183 Kan. 352, 327 P.2d 872, 875. This is likewise the law in Missouri. Longacre v. Knowles, Mo.Sup., 333 S.W.2d 67, 69. Defendant’s contention is without merit.

The judgments of dismissal are reversed and causes remanded.

All concur.


author: WELBORN, Commissioner.

text:
    Margaret V. PARLOW, Plaintiff-Respondent, v. DAN HAMM DRAYAGE CO., Defendant-Appellant.
    No. 50639.
    Supreme Court of Missouri, Division No. 1.
    May 10, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 14, 1965.

      Morris E. Stokes, Paul E. Dixon, F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
    Heneghan, Roberts & Cole and John J. Cole, St. Louis, for defendant-appellant.
   WELBORN, Commissioner.

This is an action by Margaret Parlow for the wrongful death of her husband. John Parlow was employed as a welder by the Ace Metal Products Company which was constructing a tank for Monsanto Chemical Company. Ace engaged a crane and operator for the project from the Dan Hamm Drayage Co. (referred to herein as “Hamm”). Parlow’s death occurred when a portion of the crane collapsed, allowing a metal roof piece being hoisted into place by the crane to fall, carrying Parlow to his death. His widow brought this action against Hamm, relying upon the res ipsa loquiture doctrine. Hamm denied that at the time of the accident the crane was under its control and alleged it was under the control of an employee of Ace. A jury returned a verdict of $25,000 for plaintiff. After its motion for new trial had been overruled, Hamm appealed to this court.

Ace Metals Products Company of Amarillo, Texas, contracted with Monsanto Chemical Company to construct a cylindrical steel tank for the latter in St. Louis. The tank was to be 60 feet in diameter, with a shell (or sides) 30 feet in height and a peaked roof 35 feet high at the peak. The shell was constructed of 6' x 20' pieces of steel, varying from %e" to ¼" in thickness. The roof was to be formed from 12 pie-shaped pieces of %e" plate steel some 10 to 14 feet wide at the base and 8 inches wide at the point. The base of each piece was to be welded to the shell of the tank and the point to a metal pipe to be erected in the center of the tank.

Johnny Sugg, the Ace superintendent on the job, came to St. Louis and hired boilermakers to weld the pieces of the tank in place. Parlow was one of those so employed. Sugg also employed an operating engineer to operate Ace’s winch truck which was used to hoist the pieces of the sides of the tank in place for welding. The winch truck was so used, situated on the floor of the tank, and the sides were built around it.

Near the time that construction of the sides of the tank was completed, Sugg called Dan Hamm Drayage Co., which was in the business of providing machinery for hire. Sugg talked to Andy Sargent, a sales engineer employed by Hamm, about obtaining a crane for the Monsanto job. Sargent came to the job site and Sugg explained to him that a crane was needed to lift the winch truck out of the tank, to set a 20" pipe some 35 feet in length in place in the center of the tank and to lift the roof pieces in place and hold them while they were welded. The weight of the truck was approximately 10,-000 pounds, the pipe 2,800 pounds and each of the 12 roof pieces 2,700 to 3,000 pounds.

According to Sugg, he left to Sargent the determination of the type of machinery required for the job. Hamm’s Koehring Model 304 mobile crane, referred to as a 25-ton capacity crane, was selected for the job. The crane had been acquired by Hamm in June, 1950. According to Sugg, Hamm was to furnish a crane, the operator, the fuel and the repairs or whatever it might take to do the work. Ace was to pay Hamm $177 per day for the use of the crane and the operator.

The crane was driven from Hamm’s yard to the job site by an oiler, Harold Workman, an Ace employee. Hamm employed, through the union hall, Earl Skelton to operate the crane. Skelton had worked for Hamm previously, his latest prior employment having been in 1959. Hamm paid Skelton for his work and handled all matters incidental to his employment, such as deducting and paying his social security taxes, income tax withholding, etc. Skelton accompanied the crane to the job site, as did a Hamm truck which transported the boom, the jib, an “A” frame and other equipment for rigging the crane.

The crane arrived at the job site on November 7, 1960. Skelton directed Ace boilermakers working on the job in the assembly of the boom and the rigging of the crane. The crane had a 45-ft. boom made of four 10-ft. sections and one 5-ft. section, which were bolted together. The rigging also included a 30-ft. jib or extension of the boom, which was attached to the end of the boom. The jib was held in place by an “A” frame installed at the tip of the boom. The “A” frame was held perpendicular to the boom by cables running from it to the base of the boom and from the “A” frame to the tip of the jib. The “A” frame, which Hamm had obtained in June, 1951, was 5 feet long and 3'3" wide at its base. It was made of Vie" angle steel.

The winch truck was removed by the crane from the tank. Using the crane with the jib in place, the 20" pipe was set in place in the center of the tank and secured by guy wires attached to the shell.

The crane was then used to unload the roof pieces from a railroad gondola car on a siding at the job site. To unload the roof pieces a single eye, used only for such purpose, had been welded to the surface and a cable was attached to the eye and then to the crane hook. After the roof pieces had been unloaded, an eye was welded in the vicinity of each of the three points of the pie-shaped section.

On November 11, 1960, work was started on installation of the roof sections in place. Skelton was operating the crane which was located near the base of the tank. A scaffold had been erected around the circumference of the tank, approximately four feet from the top of the shell. Parlow and another Ace welder, Gillespie, were on the scaffold as the first piece of the roof was hoisted to the top of the tank by the crane. A U-shaped clevis was hooked into each of the three eye plates and the clevis was fastened to a cable and the three cables or choker fastened to a ring which was hooked into the crane hook. The lifting was accomplished by raising the crane hook, attached to a cable which ran through a sheave, or pulley at the end of the jib, a sheave on the “A” frame, and then to the drum in the crane cab. Parlow gave signals to Gillespie of the movements necessary to fit the section in place and Gillespie, who was standing on the scaffold directly above the crane operator, relayed the signals by hand movements to Skelton. The roof section was swung into place, using the 3-cable choker attached to the three eyes near the points of the section. The section was then tack welded to the shell by Gillespie and Parlow. 2-inch tack welds were made approximately every 8 inches. This welding operation took approximately 30 minutes.

After the tack welding to the shell had been completed, the next part of the job was to affix the apex of the section to the pipe in the center of the tank. After the base of the section had been tack welded to the shell, the apex of the section was approximately two feet below the height required for the proper roof pitch. Parlow, who was on the section, gave signals to Gillespie, who in turn relayed them to Skelton, that the point of the section should be raised to obtain the proper pitch. With no change in the rigging that had been employed to raise the section in place, Skelton placed in operation the cable drum which raised the crane hook and the section was raised to the desired level. However, when the drum was braked, the section settled some four to six inches and Parlow signalled Gillespie, who again signalled Skelton, to “pick it back up again.” Skelton did so, but the section again settled and the operation was again repeated. On the third time the desired height was held. After waiting about a minute, Parlow walked out to the point of the section, preparatory to doing the welding necessary to attach the section to the center pipe. Parlow had left his welding equipment near the point where he had been tack welding the roof section to the shell. Gillespie started to bring the equipment out to Parlow. He had taken one or two steps when “everything caved in.” The roof section fell into the tank with Parlow on it. The tack welds held the edge to the shell and Parlow slipped from the point of the section and fell to the floor of the tank, suffering injuries which resulted in his death.

The fall of the roof section was the result of the collapse of the “A” frame. The frame bent approximately double back toward the crane cab. The collapse of the “A” frame left the jib inadequately supported and the weight of the load and of the jib pulled the jib to a vertical position.

According to Skelton, at the time the “A” frame collapsed, the crane motor was running, but it was “dogged off” and the load was being held in place by the braked drum. Skelton testified that the motor had been “dogged off” from 10 to 30 minutes before the “A” frame collapsed. He had noticed-no sign of unusual strain on the crane and had no sort of forewarning of any possible difficulty. Workman, the oiler who was in the crane at the time, testified that the collapse occurred within a few seconds after the last “hoist up” signal had been received.

On this appeal, defendant’s first contention is that the evidence showed, as a matter of law, that Skelton was the borrowed servant of Ace, working under their exclusive direction and control and engaged in their work when the casualty occurred. “Therefore, the court erred in overruling defendant’s motion for directed verdict and for judgment after verdict and judgment in accordance with said motions.”

We reject the defendant’s contention that the evidence showed that, as a matter of law, Skelton was the employee of Ace at the time of the casualty. Skelton was employed by Hamm. He was paid by Hamm. He could be discharged only by Hamm. Sugg testified that he was not a crane operator and that he did not attempt to tell Skelton how to work with the crane. He simply told Skelton what he wanted to accomplish and Skelton would do the work. He did not tell Skelton how the crane should be rigged. That was entirely up to Skelton. Sugg testified that, had he considered the operation of the crane improper or dangerous, he would have stopped it, but his complaint ultimately could be remedied only by Hamm.

Defendant points to the work order prepared by Hamm, a copy of which was delivered to Skelton when he went to work on the job, containing the direction “work as directed at Monsanto.” There is no question that the time and place of Skelton’s work on the job with the crane had to be determined by Ace employees. Defendant also points out that Skelton at the time of the casualty was working in response to signals received from Ace employees in the operation of the crane. This co-operation was essential for the success of the joint efforts of Skelton and the other employees. At the time of the casualty, Skelton in the crane on the ground could not see the work going on on the roof. Persons in the immediate vicinity of such work had to let Skelton know what movement was required to bring the plate into proper position. However, the signals merely told Skelton where the plate should be moved and Skel-ton alone decided how to accomplish the result sought. He alone, for example, decided that the lifting of the sheets should be by raising the crane hook rather than by raising the boom.

According to Restatement of Agency, 2d, Sec. 227, p. 500, whether or not a person “rented” becomes a servant of the one whose immediate purposes he serves depends in general upon the same factors which determine that one acting for another is a servant rather than an independent contractor. See Restatement of Agency, 2d, Sec. 220, p. 485. As in the latter determination, “it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation. * * * If the inference is clear that there is, or is not, a master and servant relation, it is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered.” Ibid., Comment c, pp. 486-487.

“In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer.” Ibid., Comment b, p. 501.

“A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value.” Ibid., Comment c, p. 501.

We are of the opinion that the factors which might establish that Skelton became a servant of Ace are not so clear and definite that they call for a determination of the question as a matter of law. There was a sufficient contrary indication to require that the issue be determined by the jury.

We do not take McFarland v. Dixie Machinery & Equipment Company, 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516, relied upon by defendant, to require a contrary result. Numerous factors in that case which were specifically mentioned by the court do not exist here. In McFarland, we find the following (153 S.W.2d l. c. 72):

“If the act involved herein had been connected with the upkeep of the tractor (injury due to mechanical defects), or even its operation for a limited use, we might have a different question. * * * However, here there was nothing wrong with the tractor. On the contrary, the act causing injury was solely one of alleged negligent driving over the very ground that the borrowing employer (through its foremen) directed it be driven over to perform the task it directed the borrowed (or rented) employee to do. * * * Furthermore, the severance from defendant’s employment was so complete, and the actual renting employer (the City) had such full control, of both the rented machine and employee, that it could and did loan both to the borrowing employer, the WPA; and likewise so that such employer could move both from one WPA project to another. In addition, this was no temporary loan for a limited purpose or time, but this tractor was used (as was intended) by the borrowing employer for almost a year, during which time it was left on its project at night and the driver, Whalen, went there every day to work with it as the borrowing employer might direct.”

Here the rented crane first supplied and the one furnished to replace it after the accident were used for a total of nine days. In McFarland the bulldozer and operator were rented to do generally the work in which the lessee was engaged. Here the crane was obtained to perform three specific jobs and none other. The facts here are sufficiently different to render inapplicable the McFarland conclusion.

The reasoning which we have here followed, that the matter of Skelton’s employment was properly submitted to the jury, was applied in the following crane cases: Chartier v. Winslow Crane Service Company, 142 Colo. 294, 350 P.2d 1044; White v. Bye, 342 Mich. 654, 70 N.W.2d 780; O’Connell v. Roefaro, 391 Pa. 52, 137 A.2d 325; Ambrosius Industries, Inc. v. Adams, Ky., 293 S.W.2d 230.

We will not endeavor to consider at length and to discuss each of the numerous cases of other jurisdictions cited by defendant. Many may be found in an Annotation in 17 A.L.R.2d 1388, 1442. Different factual situations obviously produce different conclusions. In some situations courts are more likely to declare the relationship as a matter of law. See Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614, and Kessler v. Bates & Rogers Const. Co., 155 Neb. 40, 50 N.W.2d 553. In our opinion, the situation here presented is not such that the inference was clear as to Skelton’s status and the question was properly one for the jury.

Defendant questions plaintiff’s verdict-directing instruction in its submission of the element of defendant’s control of the crane at the time of its collapse. Plaintiff’s Instruction No. 4 submitted her claim under the res ipsa doctrine. By the instruction the jury was required to find that the “crane was at the time of the collapse of the ‘A’ frame in the exclusive control and management of defendant and its crane operator * * Defendant contends that there was insufficient evidence upon which to submit this issue, contending that the evidence showed that the crane was either under the exclusive control of Ace or was jointly controlled by Ace and the defendant at the time of the accident.

The contention that the crane was under the exclusive control of Ace must necessarily depend upon defendant’s contention-that Skelton, the operator of the crane, was, at the time of its collapse, Ace’s employee. We have previously rejected this conclusion as a matter of law. The question remains whether or not there was such evidence of control by Ace employees as to require the conclusion as a matter of law that there was joint control by Ace and the defendant which would preclude application of the res ipsa doctrine.

In this connection the “exclusive control” which is spoken of as an essential element of the res ipsa doctrine does not have the same connotation as the element of control which bears upon the master-servant relationship. The essential meaning of this requirement for res ipsa is that “the evidence must afford a rational basis for concluding that the cause of the accident was probably ‘such that the defendant would be responsible for any negligence connected with it.’ That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant’s door.” 2 Harper and James on Torts, Sec. 19.7, p. 1086. See Prosser, Res Ipsa Loquitur in California, 37 Cal.Law Review 183, 201. Such was, in effect, the meaning given the term in Littlefield v. Laughlin, Mo.Sup., 327 S.W.2d 863, where the owner of an elevator was held liable under res ipsa although plaintiff was operating the elevator at the time it fell; in Parlow v. Carson-Union-May-Stern Company, Mo.Sup., 310 S.W.2d 877, where the owner of a scaffold which collapsed was held liable under res ipsa, although plaintiff exclusively was using the scaffold at the time of its collapse and none of defendant’s employees were present; in Leisure v. J. A. Bruening Company, Mo.Sup., 315 S.W.2d 705, where a plate glass window fell from a building and the owner was held liable even though neither he nor his employees were present or in the vicinity. See also Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90, 138 A.L.R. 1065.

In this case, the defendant attempted to refute any inference that the negligence which resulted in the collapse of the crane was attributable solely to the defendant by showing that the cause of the collapse was the attempt of the operator, acting in response to signals given by Ace employees, to raise the roof section after the edge had been tack welded to the shell. Defendant’s theory is that such attempt resulted in an effort to lift a load in excess of the capacity of the crane and caused its collapse. The jury was, of course, entitled to disregard this contention,'leaving unexplained the collapse of the crane, operated, as it could have found, by defendant’s employee. Plaintiff was not required to exclude all possible inferences of causes due to other than the defendant’s negligence. Plaintiff was required only to establish facts which raise a reasonable inference of defendant’s negligence. Maxie v. Gulf, M. O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 325(5), 10 A.L.R.2d 1273; Layton v. Palmer, Mo.Sup., 309 S.W.2d 561, 565, 66 A.L.R.2d 1242. A jury having rejected the defendant’s contention could have inferred that the cause of the collapse was negligence on the part of the defendant, there being no other compelling inference thereof.

In Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123, relied upon by defendant, plaintiff was an employee of the railroad suing under the Federal Employers’ Liability Act and relying on the res ipsa doctrine. Plaintiff was a switching foreman and had the duty to give signals to the engineer in a switching operation. Plaintiff, injured in such operation, submitted an instruction under which the defendant might have been held liable if the jury found that the locomotive, tender and tracks “were owned, maintained or under the control of the defendant.” This instruction was held erroneous because control was necessary for liability under res ipsa and mere ownership and maintenance of facilities involved were not sufficient, particularly in the circumstances of that case where the railroad alleged that at the time of the accident the locomotive was being operated in response to signals and directions given by the plaintiff.

The court did not hold that, as a matter of law, plaintiff could not recover because he had some right of control over the operation. Rather the court held that, although the jury might have found that the cause of the accident was the speed of the train, a matter over which plaintiff might have had superior control, nevertheless the matter was one for the jury and the existence of this element of control would not preclude recovery if the jury should have concluded that the injury was caused by negligence on the part of the railroad in an aspect not subject to the plaintiff’s control. We do not consider Cantley to preclude a jury’s finding of necessary control by the defendant of the crane at the time of the collapse.

In Brown v. St. Louis County Gas Co., Mo.App., 131 S.W.2d 354, the element of control was held lacking as a matter of law in a res ipsa case in which a thermostatic control of a residential gas heater had failed. Defendant’s employee had merely attempted to adjust the control at the plaintiff’s request. The control was in plaintiff’s house and the defendant’s sole connection with it was the adjustment its employee made. The evidence showed that the control functioned for several days after the adjustment and then failed. In holding that a lack of control by the defendant over the instrumentality precluded application of res ipsa, the court pointed out that the evidence showed numerous potential causes for the failure of the control, for none of which defendant would be responsible. In effect, the plaintiff failed to show that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it.

We do not consider, as defendant argues, that Cantley required a hypothesizing of the facts from which the element of control could be found by the jury. The defect in the instruction held erroneous in Cantley was that it permitted a finding of ownership and maintenance to be substituted for a right of control. We do not find plaintiff’s instruction in this case erroneous because it submitted only the ultimate question of the defendant’s control of the crane at the time of the accident. If defendant considered that a further factual hypothesis was called for, defendant could have submitted it. In fact, defendant endeavored to do so by its Instruction F, the rejection of which by the trial court is assigned as error. The offered instruction read as follows:

“With respect to the term ‘exclusive control and management’ as used in Instruction No. 4 you are instructed that if you find and believe from the evidence that Johnny Sugg(s), by virtue of his position as job superintendent for Ace Metals Company had the right to stop the operation of the crane at any time including the time it was engaged in lifting and installing the roof section mentioned in evidence and if you should further find that as said superintendent on the job, Johnny Sugg(s), had a right to direct the crane operation with respect to the time and manner of performance of the aforesaid roof section job, and if you should further find and believe that by reason thereof the said Johnny Sugg(s) retained some right of control over said crane and its operation on the aforesaid job of lifting and installing the roof section then you should not find that the exclusive control and management of said crane was in defendant Dan Hamm Drayage Company as submitted to you in said Instruction No. 4 and your verdict in this case should be in favor of said defendant.”

The court did not err in failing to give this instruction. The instruction merely required that the jury find from the facts hypothesized that Sugg retained some right of control over the operation of the crane in the roof installation. Assuming that the evidence authorized the instruction, its deficiency lies in the fact that it failed to relate, in any manner, the hypothesized right of control to the incident in question. The divided control which precludes application against the defendant of res ipsa must be related to the cause of the casualty. Such was, in effect, the holding of Cantley, supra.

Defendant contends that plaintiff’s Instruction No. 4 was erroneous because it failed to hypothesize facts from which the jury might find two essential elements of res ipsa: (1) That the occurrence was one that ordinarily does not happen in the absence of negligence; (2) That the defendant had superior knowledge or means of information as to the cause of the occurrence. These matters are regularly stated as essential elements of a res ipsa case. See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641; Layton v. Palmer, Mo.Sup., 309 S.W.2d 561, 564(2), 66 A.L.R.2d 1242; Littlefield v. Laughlin, Mo.Sup., 327 S.W.2d 863, 865 (2).

Although the two matters here referred to are essential elements of res ipsa cases, they are matters which determine, as a question of law, the right of a plaintiff to submit a case under that doctrine. As has been pointed out, res ipsa loquitur is a term employed to describe a negligence case in which the negligence is proved by circumstantial evidence, and, in which, the conditions for the application of the doctrine being present, the character of the accident is sufficient to take the case to the jury. Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003(7). As in any other circumstantial evidence case, “it is a judicial function to determine * * * whether certain circumstances, as a matter of law, warrant a certain inference.” Hoock v. S. S. Kresge Co., Mo.Sup., 230 S.W.2d 758, 760. In this case plaintiff’s Instruction No. 4 was patterned according to the suggestion made in Harke v. Haase, supra. The defendant has cited no case in which it has been held that the elements here referred to must be submitted to a jury for its finding. In our opinion no such submission is required and plaintiff’s instruction was not erroneous for failure to submit such matters. See Leet v. Union Pacific R. Co., 25 Cal.2d 605, 155 P.2d 42, 50(11), 158 A.L.R. 1008.

In connection with the failure of the plaintiff’s instruction to hypothesize the first element above mentioned, the defendant contends that the court erred in refusing its Instruction D which would have told the jury:

“The Court instructs the jury that if you find and believe from the evidence that the specific and direct cause of the collapse of the crane strut (A-frame) and jib was the overload or excessive strain put upon it by lifting or hoisting up on the roof section mentioned in evidence after it was tack welded to the tank if you so find, and if you further find that in so lifting and raising the aforesaid roof section after it was tack welded the crane operator under the circumstances, was relying upon the signals and directions given to him by the employees of Ace Metals Company and, if you further find that in so doing he was exercising ordinary care with respect to the operation of said crane, that is such degree of care which an ordinarily careful person would exercise under the same or similar circumstances, then you are instructed that your verdict should be in favor of Dan Hamm Drayage Company.”

The refusal of this instruction was not error. In inferring negligence on the part of the defendant, the jury was not limited to a finding that Skelton was not exercising due care in the operation of the crane at the time of the “A” frame collapse. Inferences of other negligence on the part of the defendant were permissible from the fact of the occurrence and the jury should not have been limited by Instruction D. Jones v. Terminal R. R. Ass’n of St. Louis, Mo.Sup., 242 S.W.2d 473, 478(11-13).

In connection with the element of superior knowledge defendant contends that the “evidence conclusively showed that defendant did not have superior knowledge or means of information as to the cause of the occurrence, but that the employees of Ace Metal Products Co., including plaintiff’s deceased, had superior knowledge and means of information as to the cause of the occurrence.” Defendant bases this contention upon the fact that the work on the roof was going on 30 to 36 feet above the ground, out of the view of Skelton who was necessarily relying on the signals from the boilermakers. Although the evidence might well show that the boilermakers, including Parlow, had knowledge superior to that of Skelton as to what was going on on the roof, it does not show superior knowledge on their part as to the cause of the occurrence. The defendant contends that error was involved in the refusal of its Instruction G in this respect. This instruction read:

“The Court instructs the jury that if you find and believe from the direct evidence that the specific, definite and direct cause of the collapse of the crane strut (A frame) and jib was the overload or excessive strain put upon it by lifting or hoisting up on the roof section mentioned in evidence after it was tack welded to the tank if you so find, and if you further find that in so lifting and raising the aforesaid roof section after it was tack welded the crane operator was acting subject to, and in accordance with, directions and signals given to him by the employees of Ace Metals Company, and if you further find that under the circumstances in evidence the boilermakers, including John Par-low, had superior knowledge and opportunity to know, the effect of such hoisting operations and the cause of the collapse of the jib and roof section than did the defendant herein if you so find, then you are instructed that your verdict in this case should be in favor of defendant Dan Hamm Drayage Company.”

There was insufficient evidence to support this instruction. There was no evidence that Parlow was knowledgeable as to the crane’s operation and its capacity. He had seen the crane raise the point of the roof section to its proper location three times. He, therefore, had no reason to question that the crane had the capacity to perform the job for which it was intended. Defendant points to no evidence which shows Parlow’s superior knowledge as to the cause of the occurrence as distinguished from his knowledge of what was happening on the roof. The fact that he knew that the edges of the section had been tack welded to the shell would not charge him with knowledge of the cause of the occurence.

Defendant contends that evidence of both plaintiff and defendant proved that the specific cause of the casualty was the overloading or excessive strain placed on the “A” frame and jib and, therefore, res ipsa was inapplicable. That such was defendant’s theory is clear. That the evidence of both parties proved such theory is not clear. There is no dispute that the edge of the roof section had been tack welded to the shell of the tank. Plaintiff’s evidence did not show that the efforts thereafter to raise the point of the section to the desired level placed any overload or excessive strain on the “A” frame or jib. Even the testimony of defendant’s witness, Skelton, who operated the crane, tended to prove otherwise. He stated that he noticed no rocking of the crane or laboring of the motor when the roof section was hoisted into place following the tack welding operation. According to Skelton, the crane was sitting still with the drum clutch disengaged at the time of the collapse. The power on the hoist had been “dogged off” for from 10 to 30 minutes. Certainly this evidence did not prove, as defendant contends, the specific cause of the casualty.

In the same connection, defendant contends that the trial court erred in excluding testimony which it proposed to offer through an expert witness in support of its theory as to the cause of the collapse of the “A” frame and jib. Mr. John W. Poulter, an engineer employed by the Koehring Company, manufacturer of the crane, testified on behalf of the defendant. His work with Koehring involved checking cranes and their component parts for stress capacity and load analysis and his qualification as an expert was not questioned.

After establishing that the crane as rigged at the time of the occurrence had a load capacity of 7,500 pounds, defendant’s counsel propounded several hypothetical questions to the witness relating to the effect on the jib and the “A” frame if the signal was given to hoist or lift up the roof section after the base had been tack welded to the shell. Plaintiff’s objections to the questions were sustained, whereupon the defendant made the following offers of proof: (1) that the witness would express his professional opinion that the cause of the collapse of the A-frame and the resultant fall of the jib and roof section was that the crane was being subjected to an improper use by the boilermakers in the hoisting operation that they were calling upon the crane and the operator to perform; (2) that the witness would state that in his professional opinion the boilermakers should have disengaged the cables attached to the rear lugs and that the effect of the signals to hoist and lift up on the roof section after the base had been tack welded was to impose upon the crane and the jib and A-frame the additional weight of the entire tank attached to the ground; (3) that the point of the roof section could have been safely lifted within the capacity of the jib and crane as rigged if the back two lugs would have been disengaged; (4) that the cause of the failure of the A-frame was “a ductile failure caused by overloading — a compressive weight on the A-frame.”

“The question of the qualification of a witness as an expert in the field concerning which his testimony is sought and the necessity for admission of expert testimony in a given situation rests in the first instance in the sound discretion of the trial court, and its decision in those respects is not to be set aside in the absence of showing of an abuse of discretion.” Yocum v. Kansas City Pub. Serv. Co., Mo.Sup., 349 S.W.2d 860, 864(1); Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo.Sup., 337 S.W.2d 897, 906(8). We find no abuse of discretion in the rulings of the trial court in this case. Even if the rulings on the offers of proof were erroneous, the •defendant received the benefit of an effective demonstration by Poulter of defendant’s theory as to the cause of the collapse of the “A” frame and jib. The witness testified that the lifting of the roof section, after it had been tack welded, transmitted the lifting force to the shell of the tank. He then demonstrated that, when a section such as the roof section involved was attached at its base, a lifting force thereafter exerted through three cables such as attached to the eyelets near each point of the section would place all of the loading on the lines attached to the eyelets near the attached base. Further expressions by the witness as to whether or not the method employed in the case at hand was proper would have been of little practical assistance to the jury on the basis of Poulter’s testimony. On the evidence presented, the jury would have been equally capable of drawing a •conclusion in this regard. Since the essential test of the admissibility of expert •opinion evidence is whether or not it will be helpful to the jury (State v. Paglino, Mo.Sup., 319 S.W.2d 613, 622-623(8)), we can-mot conclude that the court’s refusal of the testimony offered here was error.

Again in connection with this entire matter, the defendant complains of error in the trial court’s refusal of its Instruction L which read as follows:

“The Court instructs the jury that plaintiff is seeking recovery against defendant under the doctrine known in the law as res ipsa loquitur which permits an inference of negligence under certain circumstances without proof of the specific act or omission constituting negligence and the nature or character of the accident mentioned in evidence rather than the fact of the accident determines whether this doctrine apples in a particular case.
“In that connection you are instructed that where the real or precise cause of the accident is definitely shown by direct evidence there is no room for an inference that the accident was due to a different cause. Therefore, you are instructed that if you find and believe from direct evidence in this case, exclusive of inferences, that the base or butt end of the roof section was tack welded to the shell of the tank and if, you further find and believe that thereafter, at the direction and request of the boilermakers, the roof section settled down and was hoisted up on two or three occasions and if you further find that in so lifting up on said roof section in the manner described in evidence there was necessarily an undue strain and overload on said jib and strut (A-frame) in excess of its rated capacity, and if you further find and believe that such overload, if any, directly caused said strut (A-frame) to buckle and the jib and roof section to fall and if you further find and believe by reason of direct evidence in this case that this was the specific cause of the fall of the jib and roof section and resultant death of John Parlow, and that the collapse and fall of the aforesaid strut (A-frame) jib and roof section was not due to any other cause shown by the evidence, or reasonable inference deducible therefrom, then you are instructed that plaintiff is not entitled to recover under the said doctrine of res ipsa loquitur as submitted to you in Instruction No. 4 and your verdict should be in favor of defendant Dan Hamm Drayage Company.”

By this instruction the court would have submitted to the jury whether or not the res ipsa loquitur doctrine was applicable. This is not a matter properly for the jury’s determination, but is a matter of law for the court. To attempt to instruct a jury on the intricacies of the res ipsa loquitur doctrine could do nothing more than add to the already existent confusion regarding the scope, application and effect of the doctrine. We find no error in the refusal of Instruction L.

The defendant would find error in Instruction No. 5 given at the plaintiff’s request and reading:

“The Court instructs the jury that in determining whether or not the defendant had the exclusive management and control of the Koehring crane mentioned in evidence as submitted to you in Instruction No. 4, the Court does not mean actual physical control, but refers to the right of control of said crane at all times mentioned in evidence.
“In this connection you are further instructed that the fact that defendant’s crane operator, if you find him to be such, received signals to guide him in the operation of said crane, would not preclude a ‘right of control’ on the part of defendant, as that term is used in these instructions.”

The defendant does not question the first paragraph of this instruction, but contends that the second is erroneous because it improperly singled out and gave undue prominence to only a part of the evidence on the issue of control and improperly limited the jury with respect to their consideration of the effect of the signals received by the crane operator. In support of this assignment, defendant cites Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 523; Zumwalt v. Chicago & A. R. Co., Mo.Sup., 266 S.W. 717, 726, and Shaffer v. Sunray Mid-Continent Oil Company, Mo.Sup., 336 S.W.2d 102, 107.

The rule relied upon, as found in the cases cited by the defendant, is well-established. However, we do not find the rule applicable here. Defendant does not complain that the instruction is erroneous as a matter of law. See Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, 484. The instruction being negative in character, there would be no way in which additional facts might be added, contrary to the situation presented in the cases relied upon by defendant. We find no error in the instruction.

Defendant’s final objection is to plaintiff’s instruction defining the standard of care imposed upon John Parlow under the defendant’s submission of Parlow’s contributory negligence. The court at the defendant’s request gave an instruction on Par-low’s contributory negligence. At the plaintiff’s request, the court gave the following instruction:

“On the issue of Contributory Negligence, the Court instructs the jury that the decedent, John Parlow, was required to use for his own safety only such care as an ordinarily careful and prudent person would have used under the same or similar circumstances in evidence, and if he did so he was not negligent.”

Defendant objects to this instruction on the ground that it fails to hypothesize facts from which a jury could make a finding that Parlow was not negligent. However, this is not, as defendant asserts, a verdict-directing instruction on behalf of the plaintiff. It is merely a definition of the standard of care imposed upon Parlow under the defendant’s contributory negligence submission. No hypothesizing of facts is required in such an instruction. Defendant’s other objection to the use of the word “only” in the instruction is conceded to be without merit in the absence of error regarding the matter above discussed.

Finding no error, the judgment of the trial court is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    William P. OLSTEN, Appellant, v. Louis B. SUSMAN, Respondent.
    No. 50753.
    Supreme Court of Missouri. Division No. 2.
    May 10, 1965.
    Rehearing Denied June 14, 1965.

      Sherman Landau, St. Louis, for appellant.
    Murphy & Kortenhof, Joseph M. Korten-hof, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff, the husband of Marie E. Olsten, brought suit against the defendant for loss of services of his wife, medical expenses, and damages to his automobile. The prayer was for $27,500. The verdict was for defendant and plaintiff has appealed. This action arose out of the same automobile collision which gave rise to the appeals decided in Olsten v. Susman, Mo., 362 S.W.2d 612, and Olsten v. Susman, Mo., 391 S.W.2d 331, handed down concurrently herewith. The circumstances of the collision are not material to the issues on this appeal, but they may be found at 362 S.W.2d 612.

Plaintiff first contends that the trial court erred “in failing to grant [him] a new trial for the prejudicial action of defendant’s counsel in informing the jury in this case that the jury in the wife’s suit, arising out of the same collision, had determined the issues adversely to her, and for the prejudicial misconduct of defendant’s counsel in flouting the court’s ruling by repeating the same prejudicial error immediately after the court had ruled that such argument was prejudicially erroneous.”

During the trial the testimony of plaintiff in his wife’s suit for damages for personal injuries was used for purposes of impeachment, and the fact that her trial had previously been held had been mentioned by both parties. The argument of defendant’s counsel of which plaintiff complains was as follows: “This is a lawsuit by Mr. Olsten to recover for her medical expense, for whatever damage was done to his car and for whatever loss of society of the companionship that he had of his wife because of her injuries. This is a very strange and bizarre thing. This is the lawsuit you are trying, because her lawsuit for her injuries has already been tried, it’s over and it’s finished. It has been tried to a jury just like you twelve people in St. Louis County and I can’t emphasize that enough. And I ache, I ache to tell you what happened, what that jury decided out there, but I can’t tell you under the rules of evidence what that jury decided out there. I wish I could.” Counsel for plaintiff objected “to that as being improper argument.” The trial court sustained the objection, and without request instructed the jury to disregard “the last part of the argument of counsel,” and commented that “what happens in another matter is not before us here.” Out of the hearing of the jury counsel for plaintiff then moved for a mistrial, and the trial court ruled, “It will be granted.” However, counsel then said this: “Well, I’ll withdraw it.”

The argument of defendant’s counsel was improper. The trial court correctly sustained an objection to it, and it did not abuse its discretion in declaring a mistrial. However, since the request for a mistrial was withdrawn, the trial court correctly permitted the trial to continue. Plaintiff’s complaint now is that after the jury returned a verdict adverse to him the trial court should have granted him a new trial because of this incident.

It has long been the general rule that when no objection is made to improper argument it is not a matter subject to review on appeal. The theory is that the erroneous feature thereof is waived. O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904. See also Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675; Stanziale v. Musick, Mo., 370 S.W.2d 261; Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897. Also, the failure to request the trial court to instruct the jury to disregard improper argument or a question constitutes a waiver of the right to complain on appeal that the jury was not so instructed, Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721, and the same is true when there is no request that the trial court reprimand counsel for improper argument. Vowels v. Missouri Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7. Following this rationale and based on this theory, it also has repeatedly been held that when the trial court sustains an objection to improper argument, and no further remedial action is requested, no error is preserved for appellate review, Copeland v. Terminal R. Ass’n of St. Louis, 353 Mo. 433, 182 S.W.2d 600, certiorari denied 323 U.S. 799, 65 S.Ct. 554, 89 L.Ed. 637; Seested v. Post Printing & Publishing Co., 326 Mo. 559, 31 S.W.2d 1045; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Gann v. Chicago, R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Busse v. White, Mo., 274 S.W. 1046; Outman v. Union News Co., Mo., 237 S.W. 800, and the party may not complain on appeal that the trial court should have done more than requested. Shepard v. Harris, Mo., 329 S.W.2d 1, 13; Chiodini v. Terminal Railroad Association of St. Louis, Mo.App., 287 S.W.2d 357. In this case it is not a situation where plaintiff failed to request remedial action. He made the request, it was granted, and he then expressly and understandingly withdrew the request and elected to take his chances with the jury. The trial court granted to plaintiff all the remedial action requested or desired. Under these circumstances the trial court did not err when it refused to grant plaintiff a new trial because of the improper argument of defendant’s counsel.

If it can be said that in the subsequent argument defendant’s counsel “flouted” the court’s ruling, and we do not rule this issue, plaintiff made no objection whatever to these subsequent remarks of counsel. Therefore, he may not now complain on this appeal. Stanziale v. Musick, Mo., supra; Fisher v. Williams, Mo., 327 S.W.2d 256, 261; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383.

Plaintiff’s second point is that the trial court erred “in admitting in evidence the pleadings in the son’s suit for the reason that the pleadings * * * averred no facts relevant to the issues involved in this case,” and resulted in confusion and drew the jury’s attention away from the issues.

The record does not support the statement that the “pleadings in the son’s suit” were admitted in evidence. On cross-examination of plaintiff’s son, the operator of the automobile in which Mrs. Olsten was riding, defendant’s counsel asked if he had filed a suit against defendant for damages arising out of the same collision. The son admitted that he had, and that the suit was then pending. Defendant started to ask about what he claimed in respect to injuries, and plaintiff objected. A lengthy discussion was held out of the hearing of the jury, and defendant explained that he wanted to ask about his allegations of injuries “to show possible interest on his part with respect to his testimony in this particular case.” The court ruled that he would limit “defendant’s interrogation with reference to the specific language used in the petition * * * that is, ‘he sustained multiple contusions, lacerations and abrasions, of the head, face, neck and body,’ ” and that “ ‘all of the foregoing injuries and conditions are continuing, progressive and permanent.’ ” In the examination that followed, it was developed that the son did not know what allegations pertaining to injuries were in his petition, and that he had not read the petition before it was filed.

In a personal injury action, any fact such as interest, bias or motive of witness affecting his credibility, may be shown on cross-examination, and the extent to which that cross-examination may go must be left largely to the discretion of the trial court. It is proper for the defendant to show on cross-examination of a witness for plaintiff that he had filed a suit for damages against defendant arising out of the same incident giving rise to the suit on trial, and to show the amount sued for. Golden v. Onerem, Mo.App., 123 S.W.2d 617; Riner v. Riek, Mo.App., 57 S.W.2d 724. Here the trial court outlined carefully the limits of defendant’s cross-examination, and permitted him to ask about what he alleged was the basis for the amount sought. All of this went to the interest of the witness, and we cannot say that the trial court abused its discretion in permitting it In any event, the pleadings were not admitted in evidence, and that really is the basis of plaintiff’s complaint on this appeal.

Plaintiff’s last point is that the trial court permitted defendant’s counsel in his argument “to ridicule and deride Instruction No. 5” which submitted “the principle of concurrent negligence,” and “to thus urge a theory of defense which conflicted with the court’s instructions.” The language of which plaintiff complains is set out in the argument portion of his brief, but we shall not set it out here. We do not agree that it constituted reversible error, but in any event the matter is not before us for decision. There was no objection whatever made to the argument at the time, Stanziale v. Musick, supra; Fisher v. Williams, supra, and in addition, there is no assignment of error pertaining to the incident in the motion for new trial. Civil Rule 79.03, V.A. M.R.; State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689.

The judgment is affirmed.

BARRETT and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    William OLSTEN, Respondent, v. Louis B. SUSMAN, Appellant.
    No. 50574.
    Supreme Court of Missouri. Division No. 2.
    May 10, 1965.
    Rehearing Denied June 14, 1965.

      Sherman Landau, St. Louis, for respondent.
    Murphy & Kortenhof, Joseph M. Korten-hof, St. Louis, for appellant.
   STOCKARD, Commissioner.

In plaintiff’s suit for damages in the amount of $37,500 for personal injuries resulting from an automobile collision, the jury verdict was for defendant. The trial court thereafter granted plaintiff a new trial “on the ground the Court erred in giving Instruction No. 3,” and defendant has appealed. This action arose out of the same automobile collision which gave rise to the appeals decided in Olsten v. Susman, Mo., 362 S.W.2d 612, and Olsten v. Susman, Mo., 391 S.W.2d 328, No. 50,753, handed down concurrently herewith. The facts of the collision are not material to the issues on this appeal, but they may be found at 362 S.W.2d 612.

Plaintiff submitted his case on primary negligence by Instructions No. 1 and No. 2, and humanitarian negligence by Instruction No. 5. Instruction No. 3 submitted contributory negligence on the part of the plaintiff. The trial court did not set forth the reason why it considered this instruction to be erroneous, but in supporting the action of the trial court in granting a new trial plaintiff asserts on this appeal that it “wrongfully injected primary negligence into plaintiff’s humanitarian rule submission.”

Plaintiff does not contend that Instruction No. 3 is erroneous when considered only in connection with his two instructions submitting primary negligence. It follows substantially the instruction approved in Whaley v. Zervas, Mo., 367 S.W.2d 611. His contention is that since he submitted both primary and humanitarian negligence, contributory negligence on his part was injected as a defense to his humanitarian negligence submission by the statement at the beginning of Instruction No. 3 that plaintiff “was under an obligation to exercise the highest degree of care to keep a lookout for the approach of other vehicles at the intersection * *

By submitting both humanitarian and primary negligence in a case plaintiff cannot deprive defendant of the defense of contributory negligence as to the primary submission. Therefore, the determinative question in this case is whether Instruction No. 3 was worded so as to cause a jury of reasonable intelligence and understanding to believe that the contributory negligence therein submitted could constitute a defense to the humanitarian negligence submitted by Instruction No. S.

After reciting the duty of defendant pertaining to lookout, as above set forth, Instruction No. 3 hypothesized facts, supported by the evidence, from which the jury could find that plaintiff was contribu-torily negligent. It was then stated that if the jury so found, “you are instructed that you must find in favor of defendant on the issue submitted to you in Instructions No. 1 and 2 * * In this manner the statement of the duty of plaintiff to exercise the highest degree of care to keep a lookout was limited to the issue of primary negligence submitted by the plaintiff. Instruction No. 6 was a converse instruction of Instruction No. S submitting humanitarian negligence, and in that manner the jury was told what it could consider as a defense to the submission of humanitarian negligence. When Instruction No. 3 is read in its entirety, and not just the isolated statement pertaining to the duty of plaintiff to keep a lookout which is all plaintiff has set out in his brief, and when Instruction No. 3 is read in connection with the other instructions it is perfectly clear that the statement therein pertaining to plaintiff’s duty to keep a lookout was to be considered by the jury only as a defense to the primary negligence submitted in Instructions Nos. 1 and 2, and not as a defense to the humanitarian negligence submitted in Instruction No. 5. We fail to see how any jury of reasonable intelligence and understanding could have been caused to believe otherwise, and the instruction was not erroneous for the reason now advanced by plaintiifif in support of the action of the trial court in granting a new trial.

Plaintiff relies on Endermuehle v. Smith, Mo., 372 S.W.2d 464; Sheering v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; and Keithley v. St. Louis Public Service Co., Mo.App., 379 S.W.2d 149. In each of these cases plaintiff submitted his case solely on humanitarian negligence, and there cwas no language in defendant’s instruction limiting its application as in this case.

Plaintiff sets forth in his brief two other matters assigned as error in his motion for new trial which he asserts should have been sustained, although the order of the trial court granting a new trial made no mention of them.

Plaintiff asserts that prejudicial error was “injected into the trial of this case” when defendant’s counsel “deliberately and intentionally” informed the jury that in a different suit arising out of the same collision brought by plaintiff’s mother against the same defendant the jury had returned a verdict for defendant.

Some background information is helpful. When defendant was testifying on cross-examination, counsel for plaintiff sought to impeach him by using what he referred to as his testimony at “the hearing of the mother’s claim on October 26,1961.” Counsel for plaintiff also referred to “the mother’s case,” and he stated that defendant “testified before the jury in that case.” The fact that the case of plaintiff’s mother had previously been tried was placed before the jury by plaintiff.

On redirect examination the first question asked of defendant was this: “With reference to the trial that was had out in Clayton before a jury when Mr. Olsten [plaintiff] testified and his mother testified, what did that jury decide as to whether you were at fault or not, Mr. Susman?” No answer was made to this question. Out of the presence of the jury plaintiff objected and moved “that the jury be instructed to disregard that question put to him by counsel.” He also said: “I further move for a mistrial on the ground that plaintiff has been gravely prejudiced by the putting of that question to this party in the presence and hearing of the jury, and thereby indicating to this jury what the results were of that trial.” The following then occurred:

“The Court: Which do you want, a mistrial or * * * you have a double motion.
⅜ * ⅜ ⅝ ⅜ ⅜
“Mr. Landau: First, I object to the question itself.
“The Court: Then you are withdrawing your motion for a mistrial?
“Mr. Landau: At this time, yes.
“The Court: The objection will be sustained. [Then, in the presence of the jury]. Members of the jury, I have sustained an objection by Mr. Landau as to what happened to another trial has nothing to do with this one, and you will disregard the question.”

The question was improper. It presents the substance of the issue presented in Olsten v. Susman, 391 S.W.2d 328, Case No. 50,753. We said there that a statement made by the same counsel in argument, which attempted to bring before the jury the result in another case, authorized the granting of a mistrial upon request. However, in that case as in this one, the request for a mistrial was withdrawn, and for the reasons there set forth plaintiff cannot now complain on appeal of an incident after the trial court took at the time every remedial action requested. Reference is made to the opinion in Case No. 50,753 for the reason for this result and the cases cited.

The remaining contention pertains to an incident occurring on the voir dire examination. Defendant equates it to another incident which we shall first set out. During voir dire examination counsel for plaintiff asked the jury panel if “any member of the panel * * * has had any business dealings or transactions with Susman Wiping Materials Company at 1114 North Market, or with Susman, Incorporated, at that same address.” Defendant requested a mistrial which was denied, but the trial court, upon request, instructed the members of the panel to disregard the question. We mention here, that this question was improper because neither of these companies had any interest whatever in the litigation, and there was no reasonable basis to believe that they had.

The incident of which plaintiff complains occurred when counsel for defendant asked the jury panel on voir dire this question: “Let me ask, bearing in mind that you haven’t heard any evidence or the instructions of the Court and don’t know anything about this case, but I want you to assume for a moment that you heard all the evidence and that you find in favor of Mr. Susman. In other words, you believe that he was not at fault under the evidence and the instructions the Court will give you. Assume that for a minute— you may or may not — but assume he was not, is there any reason you know of now as you sit here why you couldn’t return a verdict for Mr. Susman if you find he wasn’t at fault?” Counsel for plaintiff objected to this question “for the reason that it requires these jurors to pledge themselves in advance what their conduct would be and their conclusions would be without having heard the discussions of the other jurors and without the evidence.” This is substantially the point now presented on this appeal.

Defendant argues that since a corporation was improperly injected into the case, it became “important to know whether the jurors would find in favor of Susman if all the requirements of the law and evidence were met or whether they would still return a verdict against him, because some corporation was in the background.”

The trial judge necessarily and properly has considerable discretion to exercise in control of the voir dire examination. “It is only when there has been a manifest abuse of that discretion and where there is probability of injury to the defendant [a party] that the appellate courts will interfere.” Bunch v. Crader, Mo.App., 369 S.W.2d 768, 771. See also State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688. We do not consider that the question required the jurors to “pledge” themselves in advance of hearing the evidence. Plaintiff did wrongfully inject the idea of a corporate interest into the case, and while defendant’s question was perhaps unnecessarily involved, the trial court evaluated the incident at the time it occurred, and again evaluated it when called upon to rule on the motion for new trial. We cannot say that it abused its discretion in the matter.

Under the circumstances of this case the trial court erroneously granted a new trial on the ground stated in the order, and plaintiff is not entitled to a new trial for either of the other two reasons advanced on this appeal.

The order granting a new trial is set aside, and the cause is remanded with directions to reinstate the verdict for the defendant.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Glen CONNER, Appellant.
    No. 51074.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Floyd L. Sperry, Jr., Asst. Atty. Gen., Clinton, for respondent.
    Michael D. Konomos, Kansas City, for appellant.
   PRITCHARD, Commissioner.

Defendant was charged with murder in the first degree. § 559.010. (Statutory references are to RSMo 1959, V.A.M.S.) Trial was to a jury which resulted in a verdiet of guilt of murder in the second degree, § 559.020, and the jury assessed defendant’s punishment at 18 years’ imprisonment. After motion for new trial, which was overruled, allocution, sentence and judgment in accordance with the verdict followed.

No challenge is made upon this appeal as to the sufficiency of the evidence to sustain the conviction. Rather, defendant urges error (Point I) in the court’s failure to exercise his discretion to allow the jury, at its request while deliberating, to examine the shotgun in evidence; (Point II) error in failing to discharge the jury, “with or without motion” by defendant, after unwarranted, prejudicial and inflammatory argument of special counsel for the state; and (Point III) error “in admitting obvious hearsay evidence on behalf of the state and refusing to admit competent evidence on behalf of appellant.”

The homicide in this case was preceded by an altercation between defendant and deceased (Phillip Harold Klebenstein), who were brothers-in-law, good friends, and who worked together sanding walls on the day of the homicide. After they returned from their work on the evening of November 2, 1963, they sat around deceased’s home in Shannon County, Missouri, drinking beer and talking for about an hour. Defendant then left with his wife and son in deceased’s pickup truck. Later, defendant’s mother came to deceased’s home and stated that defendant was kicking the door down. Shortly thereafter, defendant came to the door and said something about his mother not letting Carol (defendant’s wife) do any work around the house. Defendant then started hitting a “what-not” partition, and deceased told him not to do it. Defendant “swung” at deceased, and they began wrestling. Defendant said “he had enough” and they desisted for a short time, then they started fighting again. Deceased knocked defendant down and said, “Glen, haven’t you had enough ?” Defendant said, “Yes. I’m going home.” Defendant “just got up and left.”

Later, defendant stepped into the kitchen door with the gun cradled in his arm with the muzzle pointed down, and said, “I came back to show you I’m not afraid.” He walked to an entranceway and deceased said to defendant: “Don’t do something you’ll be sorry for the rest of your life.” Deceased was sitting in a chair with a baby, which was taken by his wife after deceased “raised up.” His wife walked over to the door, and said, “Oh, no, Glen, don’t.” She heard the blast, turned around and saw defendant standing there with the gun cradled in his arm. She saw deceased falling, and ran outside and told her mother to call the doctor and an ambulance. Deceased died on the way to the hospital, having been shot in the groin from about two and a half to three feet away.

Sheriff Hubert Wright was called to investigate the shooting. Defendant told him, “What do you want to ask them questions for? There’s no use asking them; I’m the man that shot him. I don’t deny it.” The sheriff found the single barrel shotgun with an expended shell in the chamber (State’s Exhibits I and H) in the attic of deceased’s residence where deceased’s wife had thrown it after the shooting. Defendant identified the gun as being the one he had used. The gun was checked as to the condition of the hammer spring; it was in good working order; but it was easily fired by cocking the hammer and trying the mechanism. The shotgun, on several previous occasions, had discharged accidentally, and was twelve years or more old.

Defendant testified that he remembered little of the incident in question. He did remember having the shotgun in his hand in deceased’s home, and that deceased was lying on the floor bleeding. Defendant’s defense, submitted to the jury in Instruction No. 4 — A, was that the shooting was an accident.

With respect to Point I, above, the transcript on appeal shows that on May 29, 1964, while it was in deliberation on the case, the jury, through the Court Bailiff, Dale Chambers, asked the court if they could see the gun. “THE COURT: I suppose that probably is all right. Where is the gun? Take it in.” Nothing further appears upon the record at this point, but upon arguments on motion for new trial, where the matter was presented to the court, the omission from the record was supplied. There the court stated that from his notes and recollection, the request by the jury to see the gun was made around 3:00 or 4:00 o’clock in the afternoon. The court learned that the sheriff had the gun and had left the courtroom with it on the way to Eminence, Missouri. The court, through Mr. Chambers, advised the jury that the sheriff could be returned with the gun in about an hour. Mr. Chambers reported back to the court that the jury said, “Just give us a little more time.” It was not too long after that before the jury returned the verdict. Mr. Chambers, Bailiff, testified under oath on the hearing of the motion substantially to what the court stated had occurred.

Defendant argues that the court erroneously refused to exercise its discretion with respect to the jury’s request. He says that pursuant to the “accident” instruction the jury “was trying to ‘properly weigh and consider this defense’ when they asked to see and examine the exhibit — the shotgun — ■ in evidence.” Point I and the argument thereon are without merit. Quite apparently, the jury was advised that the court would have the exhibit for the jury in an hour, but the jury withdrew its request and resumed its deliberations. Counsel for defendant were present when the jury made its request, and made no objection. The court did exercise its discretion to the point where the jury requested more time. State v. Damon, 350 Mo. 949, 169 S.W.2d 382, 383, where the court erroneously stated that over objection he had no discretion to permit the deliberating jury to see exhibits (in a case close on the facts), is inapplicable. So also with the cited cases of State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, 931 [9], and State v. Rusow, Mo., 106 S.W.2d 429. Point I is overruled.

With respect to Point II concerning “unwarranted, prejudicial and inflammatory argument” of special counsel for the state, we find no objection whatsoever concerning any part of the argument of which defendant here complains. No error is preserved in the absence of such objection. State v. Goodwin, Mo., 352 S.W.2d 614, 620. Point II is overruled.

Point III does not state what “hearsay” evidence was admitted by the court on behalf of the state, nor what “competent” evidence was excluded on behalf of the defendant. Nothing is presented for review. Civil Rule 83.05(e), V.A.M.R. [applicable in criminal cases under Rules of Criminal Procedure, 28.18, V.A.M.R.]. Furthermore, no assignment of error with respect to admission and exclusion of any evidence is set forth in defendant’s motion for new trial. See State v. Gillman, Mo., 354 S.W.2d 843, 850 [7, 8]. Point III is overuled.

An examination of matters covered by Rules of Criminal Procedure, 28.02 and 28.08, V.A.M.R., reveals no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.