author: WELBORN, Commissioner. HYDE, Judge

text:
    Lorine S. LOTSHAW, Plaintiff (Appellant), v. Wilburn Hollis VAUGHN, Defendant (Respondent).
    No. 49538.
    Supreme Court of Missouri, En Banc.
    June 8, 1964.
    Opinion Modified on Court’s Own Motion July 13, 1964.
    Rehearing Denied July 13, 1964.

      Thurman, Nixon & Smith, J. W. Thurman, Jeremiah Nixon and Robert Lee Smith, Hillsboro, for appellant.
    Dearing, Richeson, Weier & Roberts, H. L. C. Weier, Hillsboro, for respondent.
   WELBORN, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Lorine S. Lotshaw, while a passenger in an automobile operated by her husband, which was struck by a vehicle driven by defendant, Wilburn Hollis Vaughn. The petition asked damages of $25,000. A jury returned a verdict for defendant and plaintiff has appealed from the judgment entered on such verdict. We will refer to the parties as they appeared in the trial court.

The accident in question occurred on October 30, 1960, at approximately 9:00 P.M. Rain was falling at the time. Plaintiff’s husband was driving his Ford Thunderbird north on Route 30 in the vicinity of Cedar Hill. At the scene of the collision, Route 30 is a 2-lane highway, with a paved blacktop surface 20 to 22 feet wide, with shoulders on either side of the paved portion. A short distance north of Cedar Hill, the highway descends a hill. According to plaintiff’s husband, he paced off the distance from the crest of the hill, northward to the point of the collision and found it to be 280 paces.

As the car in which plaintiff was riding descended this hill, her husband observed a flashing light on his portion of the roadway and brought the vehicle to what was described as a “normal” stop. According to plaintiff and her husband, the Thunderbird was driven some 3 to 5 feet off the pavement when it stopped, but, because of the muddy condition of the shoulder, it was not pulled entirely off the highway.

On stopping, plaintiff’s husband observed an automobile stopped on the west shoulder of the highway and two men in its vicinity. One, Charles Knox, approached Lotshaw’s car and told Lotshaw that the water had caused his motor to fail and asked Lotshaw to give him a push to get his car started. According to Lotshaw, he told Knox that his car was too low to push Knox’s vehicle, but that he would try to get him some assistance. According to the Lotshaws, their conversation was of only a few seconds’ duration and, at its conclusion, Lotshaw started his car moving and pulled back on the pavement, intending to resume his journey. He had proceeded some 3 or 4 car lengths, when one of the men on the highway said, “Look out. The car’s going to hit you.” At that time, defendant’s car struck the rear of the Lotshaw vehicle. The impact threw plaintiff into the dashboard and she claimed to have sustained injury, the nature and extent of which are here immaterial.

According to Lotshaw, his Thunderbird was equipped with 6 tail lights, each approximately 5 inches in diameter. These lights, as well as his headlights, were turned on and operating at the time of the collision. The defendant acknowledges that the lights of the Lotshaw car were operating.

The Lotshaw auto was struck on the left rear and defendant’s car’s front bumper ran under the rear bumper of the Lotshaw machine. The Lotshaw machine was not disabled and proceeded under its own power after the vehicles were disengaged. The right front headlight of defendant’s car was broken and a hole made in its radiator.

Knox and Lehomon Triplett, a passenger in the Knox vehicle and the holder of the flashlight which caused Lotshaw to stop, testified on behalf of the defendant. According to their testimony, Lotshaw’s car remained on the paved portion of the highway at all times when he stopped and it was still stopped when defendant’s auto struck it. After the collision, Knox got his car started. He drove it down the highway and turned around and returned to the scene of the collision, parking his vehicle on the east shoulder, off the pavement at approximately the point where Lotshaw had stopped.

Defendant’s version of the accident was that, as he was driving north on Route 30, he had started down the hill at a speed of approximately 35 miles per hour. According to defendant,, when he got about halfway down the hill, he saw the lights of a car, stopped in the lane of the highway in which he was driving. He stated that he immediately applied his brakes, throwing his wife, who was a passenger in his car, against the windshield, but that he could not stop his vehicle before it struck the Lotshaw car. He stated that, at the time of the collision, the speed of his car was “very slow.” The defendant stated that it was raining at the time; that his visibility was limited; that he had the headlights on his car turned on and the windshield wipers operating. The defendant declined to attempt to estimate the distance he was from the Lotshaw vehicle when he first noticed it. He did state that, from the point of collision, one could not see south more than 250 feet.

At the trial, the plaintiff’s principal instruction was a “rear-end” collision submission. There were also instructions on concurrent negligence, standard of care- and damages given on behalf of plaintiff-Two instructions, D-5 and D-6, were given on behalf of defendant. Because the issues, on this appeal relate solely to these instructions, we set them out in full.

“Instruction No. D-5
“The Court instructs the jury that the plaintiff seeks to recover damages from defendant on the ground that he was-negligent and his negligence caused whatever damage plaintiff sustained.
“The Court instructs the jury that: negligence is never presumed and the-burden is on the plaintiff to prove her case by a preponderance of the credible evidence, and unless the jury believes: that defendant was negligent and that, his negligence has been proven by a. preponderance of the credible evidence,, then plaintiff is not entitled to recover against defendant and your verdict will' be in favor of defendant.
“By the term ‘preponderance of evidence,’ as that term is used in this instruction, is meant such evidence as you may find to be more worthy of belief than that which is offered in opposition thereto.”
“Instruction No. D-6
“The Court instructs the jury that if you find and believe from the evidence-that on the occasion in question, the-defendant Vaughn was driving north-wardly on Highway 30 at a speed of 35 to 40 miles per hour and that it was-raining, dark and visibility was poor, that as he drove northwardly, he passed the crest of a hill and as he started down: on the other side, his lights shown: (sic) upon the Thunderbird automobile operated by Charles W. Lotshaw, the husband of the plaintiff, Lorine S. Lot-shaw, who was riding in said Thunderbird automobile as a passenger; and if you further find that the said Charles W. Lotshaw had stopped said Thunderbird upon the paved portion of said Highway 30 in the north bound lane thereof in a low place on said highway beyond the crest of said hill; and if you further find that the said Charles W. Lotshaw failed to exercise the highest degree of care in the operation of his automobile and was negligent in stopping his automobile at said time and place; and if you further find that his negligence, if any, was the sole cause of the collision between the two automobiles, as aforesaid, and that the same was not due to the negligence of the defendant Vaughn, as submitted to you in other instructions herewith given, then your verdict will be in favor of the defendant and against the plaintiff.”

Plaintiff attacks Instruction D-6 on several grounds. The first is that it ignores the issue of whether or not the defendant’s colliding with the Lotshaw vehicle was negligence.

Instruction D-6 is a “sole cause” instruction. Such an instruction “must hypothesize facts from which a jury reasonably may find that the negligence or acts submitted constituted the sole cause of plaintiff’s injury, and it must also negative defendant’s negligence as submitted by plaintiff.” Hartley v. Smith, Mo.Sup., 354 S.W.2d 854, 857(4). However, “When a defendant hypothesizes facts, supported by the evidence, to show that the injuries to plaintiff were the result of the negligence of someone other than him, and also requires the jury to find that he was not negligent as submitted in the other instructions, he has by the facts hypothesized in that instruction and by reference to other instructions, at least in a primary negligence case, submitted a complete sole cause situation.” Happy v. Blanton, Mo.Sup., 303 S.W.2d 633, 639.

In this case, the plaintiff’s petition charged defendant with negligence in several respects, including failure to have his-automobile under control, failure to keep a lookout, humanitarian negligence by failure to swerve or slacken speed, as well as by driving his vehicle into the rear of the vehicle in which plaintiff was a passenger, the only ground actually submitted to the jury. In such circumstances, defendant, in his sole cause instruction, was required only to negative such charge and he could do so-by reference to plaintiff’s instruction submitting such negligence, in this “a guest case submitted on primary negligence.” Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d.912, 918.

Plaintiff objects that “there was no-requirement for the jury to find that the act of defendant in driving at a speed of 35 to 40 miles per hour was not negligence under the circumstances” and there are “no’ facts hypothesized as to defendant keeping a lookout required by law.” However, plaintiff did not, in her instructions, charge defendant with negligence in such regard. She elected to proceed on the “rear-end” theory,, which necessarily involves a charge of specific negligence complete in itself. Jones v. Central States Oil Company, 350 Mo. 91, 164 S.W.2d 914. The defendant need only have absolved himself of such charge of negligence.

In Durmeier v. St. Louis County Bus Co., Mo.Sup., 203 S.W.2d 445, plaintiff submitted his case on the res ipsa loquitur doctrine. A sol-e cause instruction was given on behalf of the defendant in which the jury were told that they should find for defendant if the collision was caused solely by the negligence of another and “the operator of the motorbus was not guilty of any negligence in the operation of said bus, as such negligence is defined and set out in other instructions.” In rejecting the contention that the sole cause instruction was defective for failure to negative facts in evidence of defendant’s negligence, the court stated:

“The instruction required an affirmative finding that the defendant was not negligent and further hypothesized facts which, if true, authorized, a verdict for the defendant. This is all that should be required. This case is a typical example of^the unreasonableness of requiring a defendant to negative in its instruction all of the charges of negligence relied upon by the plaintiff for a recovery. Plaintiff in this case specified no acts of negligence, yet he insists that the defendant specifically set forth in its instruction all the negativing facts in evidence of the charges of negligence relied on by the plaintiff. In plaintiff’s argument we count six of these and plaintiff says there may be more. If these were mentioned the instruction would confuse and not guide a jury. Instruction number four correctly declared the law.” 203 S.W.2d 449.

We do not consider Hartley v. Smith, Mo.Sup., 354 S.W.2d 854, relied upon by plaintiff, to require in this case hypothesization of facts to exclude the defendant’s negligence in addition to reference to the negligence submitted by the plaintiffs’ instructions. Hartley was a head-on automobile collision case. Plaintiff was a passenger in a car driven by Southwick, who was killed in the collision, and she sued Southwick’s personal representative. The evidence showed that immediately prior to the collision Southwick had swerved to the left of the center line and that the collision occurred in the other vehicle’s lane of traffic. The court pointed out that South-wick’s failing to drive on his right half of the roadway and failing to turn to the right in passing a vehicle proceeding in the opposite direction were violations of the law and negligent acts unless excused or justified by the circumstances and that such negligence, if any, was undoubtedly a proximate cause of the collision. The plaintiff’s instruction submitted negligence on the part of Southwick in failing to observe the approaching vehicle returning to its proper lane and failing thereafter to swerve to the right. The sole cause instruction, which merely negatived Southwick’s negligence as submitted in the plaintiff’s instruction, did not, the court held, eliminate “the necessity for requiring a jury to find that Southwick was justified in turning left.” 354 S.W.2d 858.

In the present case, there was no evidence of negligence on the part of the defendant separate and distinct from that submitted in the plaintiff’s instructions. The matters which plaintiff suggests should have been hypothesized all related to the rear-end submission of the plaintiff. Therefore, there was no occasion to hypothesize further facts in such regard in the sole cause instruction and the negativing of defendant’s negligence, as submitted in the plaintiff’s instruction, was in this case sufficient.

Plaintiff’s second objection to Instruction D-6 relates to the second essential of a sole cause instruction, i. e., that it hypothesize facts from which the jury may conclude that the third party’s negligence was the sole cause of the injury. Hartley v. Smith, supra. The plaintiff contends that this instruction does not hypothesize a fact situation showing negligence on the part of Lotshaw, which was the sole cause of the collision. As plaintiff states, the “only facts hypothesized as the negligence of plaintiff’s husband were that he had stopped their automobile upon the highway at a low place beyond the crest of a hill and that it was raining, dark, and visibility was poor.” However, these facts were sufficient upon which to base a finding of negligence. House v. Santa Fe Trail Transp. Co., Mo.Sup., 217 S.W.2d 382. In that case, the court stated:

“Parking a motor vehicle in the nighttime on the traveled portion of a much used highway constitutes a source of great danger to the traveling public. Certainly the parking of a, truck on such' a highway, on a dark, foggy night, constitutes negligence without question. The parking of a truck on a highway at night, even with lights, is a source of danger.” 217 S.W.2d 384.

Thus, under this instruction, the jury could conclude that Lotshaw was negligent, and, upon reaching the further conclusion called for hy the instruction, that respondent was not negligent in the respect charged, the jury could conclude that the collision must have been due solely to Lotshaw’s negligence.

The plaintiff’s complaint that the instruction’s failure to state the distance which the Lotshaw vehicle stopped beyond the crest of the hill and to locate the “low place” with respect to the hill makes the instruction erroneous. Under the circumstances of this case, we do not consider such omissions prejudicially erroneous. Accepting plaintiff’s measurement of the distance from the scene of the collision to the crest of the hill of 280 paces, that fact, in these circumstances, would not basically affect the question of Lotshaw’s negligence in stopping on the traveled portion of the highway, at night, in a heavy rain.

Plaintiff’s final objection with reference to Instruction D-6 is that no sole cause instruction should have been given because defendant’s evidence showed at least concurring negligence on the part of the defendant. Plaintiff states:

“The evidence offered by defendant at the trial showed that rain limited his visibility ‘quite a bit’, that the windshield wipers ‘wasn’t keeping the rain off as much as they should have,’ that ‘it was raining too hard that night to have any estimate’ as to distance, that ‘the way it was raining, you couldn’t have seen IS feet’ but that nevertheless defendant drove along at 35-40 miles per hour and ran into the rear end of a stopped automobile which had both headlights and six taillights, each 5" in diameter, in operation. In short the evidence of defendant himself is susceptible to no other construction than that he failed to exercise the highest degree of care and so, at least, concurred in causing the collision.”

In support of her contention, plaintiff cites Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131; Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, and Lix v. Gastian, Mo.App., 287 S.W.2d 354. In Wilkins and Lix, the court concluded that the evidence of the defendant showed him negligent as a matter of law. In Bunch, the court concluded that the defendant’s evidence did not absolve him of the humanitarian negligence charged by plaintiff.

Here, we cannot say that, as a matter of law, defendant’s evidence as to his operation of his automobile showed him guilty of negligence. Johnson v. Lee Way Motor Freight, Inc., Mo.Sup., 261 S.W.2d 95, 97(2). The question of whether or not the defendant exercised the highest degree of care was for the jury. Withers v. Pettit, Mo.Sup, 337 S.W.2d 66, 72. Therefore, the sole cause instruction was correctly given.

The plaintiff attacks both Instruction D-5 and Instruction D-6 for ignoring the issue of concurrent negligence. As for D-5, plaintiff complains of its language in telling the jury that the plaintiff “seeks to recover damages from defendant on the ground that he was negligent and his negligence caused whatever damage plaintiff sustained.” She contends that the use of the word, “caused,” standing alone would lead the jury to believe that plaintiff was required to prove sole cause negligence on the part of the defendant.

Although this instruction would have been in more preferable form had it referred to concurring negligence, we do not believe that it constituted misdirection in this case. The plaintiff did offer an instruction on concurrent negligence which the court gave. In view of the comparatively simple instruction situation of this case, we are of the opinion that plaintiff’s instruction sufficiently explained the issue of concurrent negligence and that “the instructions, read and construed as a whole, contain a complete exposition of the law necessary to guide the jury in arriving at a verdict and are not contradictory, * * Nelson v. Tayon, Mo., 265 S.W.2d 409, 414. We also note that, in this case, plaintiff’s principal instruction actually referred only to defendant’s negligence as causing plaintiff’s injury, although it might well have made further reference to its contributing to cause the injury. Nelson v. Tayon, supra.

Plaintiff also contends that the use of the phrase, “due to,” in Instruction D-6 makes it subject to the same objection of misdirection on the point of concurring negligence. This language, in sole cause instructions, has been frequently approved. Brooks v. St. Louis Public Service Company, Mo.Sup., 275 S.W.2d 252, 255(7); Schlemmer v. McGee, Mo.Sup., 185 S.W.2d 806, 808(1); Jants v. St. Louis Public Service Company, 356 Mo. 985, 204 S.W.2d 698, 701(1). We do not consider that it makes the instruction bad on the ground here urged.

The judgment is affirmed.

PER CURIAM.

The opinion of WELBORN, C., affirming judgment is adopted as the opinion of the Court en Banc.

EAGER,' C. J., and STORCKMAN, LEEDY and HOLMAN, JJ., concur.

HYDE, J., dissents in separate opinion filed.

DALTON, J., dissents and concurs in separate dissenting opinion of HYDE, J.

HENLEY, J., not sitting.

HYDE, Judge

(dissenting).

I respectfully dissent from the ruling herein that it was not error to give sole cause Instruction D-6. My view is that Instruction D-6 was prejudicially erroneous for the reasons stated by Coil, C., in his dissent in Division No. 1 as follows:

“The facts from defendant’s standpoint (summarized as stated in the opinion) are that plaintiff was a passenger in an automobile driven northbound on a 2-lane highway by her husband which stopped in the northbound lane. Defendant, also going north (following the car in which plaintiff was riding), started down a hill at 35 m. p. h. and when halfway down the hill saw plaintiff’s car stopped in the northbound lane. Defendant testified that he could not thereafter stop in time to avoid running into the rear of plaintiff’s car. Defendant would not say how far from plaintiff’s car he was when he first saw it, but he did say that one could not see more than 250 feet from the point of collision southwardly (the direction from which he was approaching) ; the most reasonable, if not the only, inference from that testimony is that by defendant’s own admission he could have seen plaintiff’s husband’s car when he (defendant) was 250 feet from it.

“Plaintiff’s case was submitted by an instruction under the so-called ‘rear-end collision doctrine.’ Such an instruction, while we hold it submits ‘specific’ negligence, is nevertheless, in form at least, a ‘general negligence’ submission. Defendant’s instruction here in question, in pertinent part (see page 412 of principal opinion for complete instruction) instructed only this — that if the jury found plaintiff’s husband was negligent in stopping his automobile in the northbound traffic lane of the highway and that such negligence, if any, was the sole cause of the collision between the two automobiles, and that the collision was not due to any submitted negligence of defendant Vaughn, then the verdict would be for defendant and against plaintiff.

“It seems clear to me that plaintiff’s husband’s negligence in stopping in the northbound lane of the 2-lane highway could not have been the sole cause of the collision if the defendant, in the exercise of the highest degree of care, could and should have stopped or swerved in time to have avoided the collision. It must follow, it seems to me, that defendant’s sole cause instruction should have hypothesized facts upon which the jury reasonably could have based its conclusion that plaintiff’s husband’s negligence was the sole cause. It is true that the instruction permitted the jury to make the conclusionary finding that plaintiff’s husband’s negligence in stopping the car on the traveled portion of the road constituted the sole cause of the collision. But the facts which would have supported the jury’s conclusion in that respect were not hypothesized but were improperly omitted. Semar v. Kelly [352 Mo. 157], 176 S.W.2d 289, 292 [5, 6]; Long v. Mild [347], Mo. [1002], 149 S.W.2d 853, 857-861; Johnson v. Cox, Mo., 262 S.W.2d 13, 15[5].

“It is also true that the instruction (D-6) negatived defendant’s negligence as submitted in other instructions. The only respect in which defendant’s negligence was submitted in other instructions in this case was that defendant was negligent in running into the rear of plaintiff’s automobile which was stopped and stationary in the northbound lane of the highway. Now, of course, it is proper to and it is required that a sole cause instruction negative defendant’s negligence which is submitted in plaintiff’s instructions. But that requirement does not fulfill the separate additional and essential requirement that a sole cause instruction must hypothesize a fact situation which will make clear that the jury by its specific findings will have found that no acts or omissions of defendant concurred in causing the casualty in question. Semar v. Kelly, supra.

“For example, in the present case instruction D-6 should have contained a hypothesis of facts along this line — and if you find that when the defendant in the exercise of the highest degree of care could and should have seen plaintiff’s husband’s car stationary in the northbound lane of the road in question, defendant’s car was then so close to plaintiff’s husband’s car that defendant could not in the exercise of the highest degree of care have avoided a collision by stopping or swerving, and that plaintiff’s husband’s negligence in stopping his automobile in the northbound lane of the 2-lane highway was the sole cause of the collision and that the collision was not due to any negligence of the defendant as submitted in other instructions, then your verdict will be in favor of the defendant and against the plaintiff.

“A defendant is entitled to win a lawsuit if the jury finds that defendant was not negligent in any respect submitted by plaintiff. That is, the defendant may say to the jury, ‘If you find I was not negligent in any of the respects submitted in plaintiff’s instruction, then you must find for me.’ But if a defendant wishes to go farther and use and have the advantage of the argumentative device known as a sole cause instruction, he should have the burden of hypothesizing facts which, if found, eliminate any act of defendant as a concurring cause. When a defendant voluntarily assumes that unnecessary burden (it is in truth an unnecessary burden — because defendant may accomplish the same thing by a true converse instruction), he may discharge that burden only by authorizing a sole cause finding which eliminates (by virtue of a finding of hypothesized facts as opposed to the finding of an abstract conclusion) his concurrent negligence. The fact that a defendant may negative the negligence submitted by plaintiff has nothing whatever to do with whether there was a sufficient hypothesis of facts, a finding of which supports the jury’s conclusionary finding that someone’s negligence other than defendant’s was the sole cause. The two requirements, i. e., hypothesizing sufficient facts and negativing submitted negligence, are separate and distinct, and when an attempt is made to equate them confusion results.”

I would reverse and remand.


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    Janet SAMUELS, a Minor by Her Mother and Next Friend, Mrs. Audrey Samuels, Plaintiff-Appellant, v. Mrs. Roseanna KLIMOWICZ, Defendant-Respondent.
    No. 50022.

    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Melvin L. Kodas, Kansas City, Mo., Mc-Anany, Van Cleave & Phillips, Willard Phillips, Kansas City, Kan., for appellant.
    Thos. J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   DALTON, Judge.

This is an action for $35,000 damages for personal injuries sustained by plaintiff, a ten-year-old girl, when she was struck by an automobile operated by defendant on Ann Avenue, between Sixth and Seventh Streets in Kansas City, Kansas. Verdict and judgment were for the defendant. Thereafter, a motion for a new trial was timely filed, argued and overruled. Plaintiff has filed notice of appeal to this Court.

At about 5 p. m. on February 26, 1960, plaintiff, her older sister Judith, and a cousin, Patricia Anson, had been shopping on Minnesota Avenue in Kansas City, Kansas, and were walking generally in a southeasterly direction on their way home. They passed through the grounds of the Municipal Library, which lies between Minnesota and Ann Avenues, at which time they were joined by another of plaintiff’s cousins, Clarice Crispin. It was daylight and a clear, cold day. There was some snow about the parking meters along the walks and there was snow on the library grounds, but Ann Avenue, an east-west blacktopped street, was clear of snow and was dry. Ann Avenue has a slope downgrade to the east of from ten to fifteen degrees. The girls were playing a game, referred to as “follow the leader,” as they came across the library grounds. They then went down the main steps south of the library and started east down the hill along the sidewalk toward Sixth Street. The evidence is conflicting as to where certain cars were parked on the north side of Ann Avenue but plaintiff’s evidence tended to show that at least two cars were parked east of the library steps. The children intended to cross Ann Avenue and to go into a tunnel on the south side of the street and they started across the street at a point about thirty-three steps east of the main south steps of the library. Ann Avenue was thirty-nine feet in width, with parking on each side and two marked lanes for traffic between the parked cars. The intersections to the east and west, at Sixth and Seventh Streets respectively, were regulated by traffic lights. Judith had been leading the group, but there was testimony that plaintiff was in the lead and also that she was the third in the line as they attempted to cross the street.

Plaintiff testified that, when she was about a car’s width south of the north edge of the street, she looked to her right, or west, and could see as far as Seventh Street. She saw one truck coming slowly from the west. When she looked to her left, or east, the parked cars did not interfere with her view and she saw no traffic approaching. She then started walking across the street. She heard no horn or screeching tires and had no personal knowledge of being struck by defendant’s car. The first thing she remembered was that she was lying in the street. She did recall that she was more than half way across the street before she was struck. The front of defendant’s car struck plaintiff and threw her in the air and she fell some twelve feet in front of where defendant’s car was brought to a stop. Defendant’s car was a red Studebaker Station Wagon and it left skid marks thirty-two feet seven inches in length, indicating a minimum speed of twenty miles per hour. There was evidence that defendant’s car had been traveling approximately fifteen to twenty miles per hour. Defendant did not sound her horn at any time prior to the collision, but immediately after the collision she identified herself as the driver of the motor vehicle that struck the plaintiff. Defendant told a police officer at the scene that plaintiff was right at the point of impact before she thought there might be a collision. At. the moment of impact defendant said her speed was fifteen miles per hour. Defendant also testified that plaintiff was about six feet south of the north curbline of Ann Avenue when defendant first saw her. “She was just standing at the edge of the parked cars a little way out from the parked car.” Defendant also testified that, at the time she first saw plaintiff she realized that there was “some danger” of an accident occurring; however, she took no action, although she could have stopped her car within the distance separating her car from the plaintiff. When she saw plaintiff start across the street she commenced a normal braking action. A small, round, rear-vision mirror was broken from the left side of defendant’s car and was found in the street.

At this time we shall not further review the defendant’s personal testimony and the other evidence in the case, but it will be stated in ruling appellant’s second assignment of error. Nor need we review the evidence as to the extent of the injuries sustained by plaintiff as a result of the collision with defendant’s automobile.

Appellant first contends that, “The Court erred in giving Instruction No. 6 offered by defendant because said Instruction No. 6 was not a proper converse of plaintiff’s verdict directing Instruction No. 2 which submitted separate theories of defendant’s negligence in the disjunctive while said Instruction No. 6 did not require the jury to negate all of plaintiff’s disjunctively submitted theories of defendant’s negligence.”

Respondent does not question appellant’s “assertion that a defendant’s converse instruction must negative all submissions, if the plaintiff’s verdict-directing instruction is in the disjunctive.” The rule is that, “In a case in which more than one specific charge of negligence is submitted in the disjunctive, a converse verdict-directing instruction must require a finding on all the charges of negligence submitted by plaintiff.” Martin v. Lingle Refrigeration Co., Mo.Sup., 260 S.W.2d 562, 566 [1, 2]; Johnson v. St Louis Public Service Co., Mo.Sup., 255 S.W.2d 815, 816; Pettus v. Berger, Mo.Sup., 354 S.W.2d 863, 864; Fellman v. St. Joseph Light & Power Co., Mo.Sup., 334 S.W.2d 60, 62 [1, 2].

In order to properly consider the above assignment, we must first review plaintiff’s Instruction No. 2 by which her case was submitted to the jury and then we shall set out, haec verba, defendant’s Instruction No. 6.

Instruction No. 2 submitted a finding that plaintiff was a pedestrian and proceeding southwardly across Ann Avenue; that she was not guilty of negligence as submitted in Instruction No. 7; that defendant was driving her car east on Ann Avenue and approaching the plaintiff’s path; that the defendant in the exercise of ordinary care saw or could have seen the plaintiff proceeding across the street; that the defendant then knew or in the excercise of ordinary care should have realized that plaintiff was not aware of the approach of defendant’s car; that the defendant could then in the exercise of ordinary care have stopped her car, or sounded a warning and thus have avoided colliding with plaintiff; that defendant failed to stop her car before colliding with plaintiff, or failed to sound her horn before colliding with the plaintiff; that such .failure, if any, was negligent; that the collision occurred with plaintiff; and that as a direct result of such negligence plaintiff was injured. Upon such findings, a verdict was directed for plaintiff and against defendant.

As appears from Instruction 2, two assignments of negligence were submitted to the jury and they were submitted in the disjunctive, towit: “negligent failure to stop” and “negligent failure to sound a warning” and, therefore, defendant’s converse instruction to be in proper form necessarily had to dispose of both of these assignments. However, plaintiff-appellant asserts, as stated, that it did not do so, but we think that it did. Instruction No. 6 is as follows:

“The Court instructs the jury that if you find and believe from the evidence that defendant could not have by the exercise of ordinary care seen the plaintiff proceeding across the street and could not have realized or know, in the exercise of ordinary care, that plaintiff was unaware of the approach of defendant’s automobile, if you so find, and if you further find that defendant in the exercise of ordinary care could not have seen and realized plaintiff was in a position where there was danger of collision between defendant’s automobile and plaintiff, in time thereafter, by the exercise of ordinary care, and with the means at hand, to have stopped defendanfs automobile and thus and thereby have avoided the impact between plaintiff and defendanfs automobile, if you so find, or to have sounded a timely and effective warning of the approach of defendanfs automobile, and thus and thereby have avoided impact between plaintiff and defendanfs automobile, if you so find, then you are instructed that plaintiff is not entitled to recover in this action and your verdict must be in favor of defendant.” (Italics ours.)

The instruction is rather repetitious in form and does not as clearly and definitely as it might have done, by the use of different language, submit the necessary findings for a converse instruction, nevertheless we think that it sufficiently required a finding that defendant under the circumstances submitted could neither have stopped nor have sounded an effective warning and thus and thereby have avoided the impact between plaintiff’s person and defendanfs automobile.

The instruction might well have used the terms “neither * * * nor,” or some other terms to clearly have required the jury to find, as a requirement to a verdict for defendant, that defendant was not negligent in either of the two respects submitted in the disjunctive in Instruction No. 2, yet the terms and words used in Instruction No. 6 were terms and words in common and ordinary usage and were no doubt well understood by the members of the jury. We think the jurors would have understood the submission to mean that they could not find for defendant unless they found that defendant could not have stopped or sounded a warning in time to prevent the collision.

It has been well said “that, in considering the language of any instruction, we should not be hypercritical but rather should be concerned primarily with its meaning to a jury of ordinarily intelligent laymen, crediting them with common sense and average understanding of the English language * * La Plant v. E. I. Dupont De Nemours & Co., Mo.App., 346 S.W.2d 231, 242-243.

Instruction No. 6 was not erroneous in the respect claimed. The assignment is overruled.

Appellant’s only other assignment is that, “The court erred in giving Instruction No. 6 offered by defendant which submitted findings that defendant could not have seen plaintiff crossing the street, and that defendant could not have realized plaintiff was in a position where there was danger of collision because there was no evidence to support such findings and because said submissions were directly contrary to defendant’s own testimony.”

Before considering this assignment we must, in addition to the testimony of defendant heretofore stated, further review the defendant’s evidence. Instruction No-. 6 has been set out above and reference should be had again to the findings submitted therein.

In this case the defendant’s testimony was somewhat conflicting and contradictory and it is necessary to review her testimony at some length. Defendant, testifying in her own behalf, testified that at the time in question she was driving the family automobile, a 1959 Studebaker large station wagon. The automobile was seven months old and was in good mechanical condition; there was nothing wrong with the horn, brakes or tires. She had her two children, ages fourteen and sixteen, seated with her in the front seat. As she drove east down Ann Avenue at fifteen to twenty miles per hour there were other automobiles going west and the closest one had passed the place of her collision with plaintiff about “a car length” before the collision occurred. The first time defendant saw plaintiff she “was to the side of” a car parked on the north side of the street, about six feet from the north curb-line.

Defendant further testified: “I happened to see these three little girls standing there, and a car went up the hill, and the one little girl run behind the car, and I only saw one little girl.” She ran into the side of defendant’s car. She did not run straight across the street but ran at an angle, running southeast, with her back partially to defendant. Plaintiff had been standing at the edge of the parked cars a little way out from the parked cars. Defendant did not have any judgment as to how close she was to where the accident happened at the time she saw the little girl running out into the street in front of her. When she saw the girl running, she applied her brakes as soon as she could and the left side of the automobile came in contact with the girl a little forward of the windshield. The car was not damaged, but the rear-vision mirror was broken off. Defendant also said that she applied her brakes about the same time the child hit her car. She stopped immediately and when she stopped her car, it threw the little girl back into the street to the left side of the door. After the collision, defendant applied her emergency brakes and parked, and by the time she got out of the car the girl had gotten up and run from the car over on to the sidewalk. The defendant got out of her car and ran after the plaintiff and brought her back and put her in the street in front of defendant’s car. Defendant said: “I laid her down. * * * I gave her a blanket and laid Janet [plaintiff] down on the street and covered her up.” It was a little while before the police came and took the child to the hospital.

Defendant’s deposition had been taken on November 30, I960, but she said that she was emotionally upset at that time since she had recently lost her father. Defendant further testified that she was watching closely as she drove east along Ann Avenue prior to the collision. Defendant admitted that she had previously testified that she didn’t see any other children around the plaintiff at the time she first saw plaintiff, but she said she was mistaken. She testified that she now knows there were three little girls together. At the time defendant first saw plaintiff, she was not running, she was standing with the others next to the parked car right behind a car. Traffic was moving west on Ann Avenue at that time and defendant did not think the child was in any danger. Defendant admitted that she had said in her deposition that she did not honk her horn at any time throughout the occurrence. Defendant said she did not recall honking her horn at any time. She admitted that she had testified that she had continued to watch the child from the time she first saw her until the accident occurred, and that the child continued to run in the same course and direction she had been traveling.

The depositions had been taken nine months after the collision and almost three years had passed before the trial, but defendant refused to agree that her memory would have been more accurate at the time the depositions were taken than at the time of the trial. She again said that she continued watching the child from the time she first saw her and that she didn’t know what direction the child was looking when defendant first saw her. Defendant admitted that when her deposition was taken she had said the child was looking in the direction she was running, and that she ran into the side of defendant’s car. Defendant also said that her car moved forward from the place of the collision; that the child was not looking at her (defendant) when she first saw the child; that at the time of the trial she had no recollection of the child ever looking in her direction as the child ran southeast, angling away from defendant’s automobile; and that at the first moment she saw the child she did not realize there was any danger of an accident occurring. Defendant admitted that her previous testimony was that at the time she first saw the child she at that time had realized there was danger of an accident occurring. When cross-examined further defendant admitted that she probably did realize the danger of an accident occurring the first time she “laid eyes on the child.” Defendant also testified that she knew the child was running when she first saw her. Later defendant said that she did not desire to change her testimony that the child was running when she first saw her and that the child was not standing still as she had previously testified. Defendant also testified that at the time she saw the child and realized the danger of collision with the child defendant’s car was fifteen or twenty feet from the path of the child or from the point where the accident happened. She said that her automobile was then traveling between fifteen and twenty miles per hour and, at a speed of twenty miles per hour, she could stop her car in fifteen feet. At fifteen miles per hour she thought she could stop in twelve to thirteen feet and that she did immediately stop her car by slamming on her brakes at the time she saw the child running. Defendant also admitted that she had previously said with reference to slackening the speed of her car, that “it was a normal slowing.” Defendant admitted that she had made the above statements, but claimed at the trial she was mistaken or could have been mistaken. At the trial she said she made an emergency stop and that no normal slowing was involved. Defendant also said that by reason of the cars going up the hill to the west she couldn’t watch the child all of the time; that the traffic interfered with her view of the child, so that she was not correct when she had previously said that she didn’t take her eyes off of the child from the first time she saw her up until the accident happened. She later admitted that these cars going west had all passed her car before the accident happened. Defendant denied that she had told her attorney that the child ran in front of her car, but admitted that the child was thrown by the impact of her car; and that she was thrown up in front of defendant, a little up in front of the hood. Again, defendant said that her car did not run into the child; that the collision was not exactly with the side of the car; that it was in front of the windshield, not directly on the side of the car, but on the side of the windshield. She also said that the “child ran into the engine a little ahead of the windshield with sufficient violence to go up on the fender or engine or hood and back.” Defendant said that when she stopped her car, plaintiff fell back into the street and jumped up immediately and ran around the side of the car and on to the sidewalk and that she (defendant) had to use some force getting her back. Defendant was not aware of any of plaintiff’s injuries or of any broken bones, but insisted that the child had said she wasn’t hurt and kept trying to get away.

Defendant also offered testimony confirming the fact that her car laid down a total of thirty-two feet and seven inches of skid marks; and that at a speed of twenty miles per hour and reaction time the stopping distance of this car on the downgrade was forty-two feet.

Respondent contends that defendant’s evidence “conclusively showed that she could not have stopped her automobile or sounded her horn in time to avoid the collision.” She further insists that Instruction No. 6 is a true converse instruction that needed no evidence to support it, but says “there was ample and abundant evidence that defendant did not have time to stop her car or blow her horn before the plaintiff darted into the side of her automobile.” Respondent further states that “Under defendant’s version of the accident, there would be no possible way for her to avoid a running child while defendant was going at a speed of 20 miles per hour and only had 15-20 feet in which to stop her car.” Respondent further claims that “defendant had no judgment of stopping distances” and reliance is placed in defendant’s expert witness who testified on behalf of the defendant that, at a speed of fifteen to twenty miles per hour under the conditions prevailing at the time of the collision it would not have been possible to stop in fifteen feet, as testified to by defendant, and that, the emergency stopping distance at twenty miles per hour under the conditions prevailing at the time of collision was forty-two feet.

In support of Instruction No. 6 respondent discounts her own testimony as to speed and stopping distances, since they were mere estimates, and instead she relies upon the testimony of her expert witness as to stopping distances under the circumstances shown. She relies upon her own testimony to prove the existence of westbound traffic which interfered with her view and to prove the fact that the child ran out from behind a westbound car as it passed defendant’s car.

Directing our attention again to Instruction No. 6, instructions must be supported by evidence and a party may not submit a finding based upon the testimony of the opposing party’s witnesses where such testimony is directly contrary to and contradictory of his own personal testimony and his own theory of the case. West v. St. Louis-San Francisco Ry. Co., Mo.Sup., 295 S.W.2d 48, 53. A party is entitled to submit instructions based upon evidence which favors his theory of the case, notwithstanding that such evidence may be in direct conflict with evidence offered by the opposing party. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656, 661 [6, 7]. A party is bound by his own testimony unless corrected or explained. Taylor v. Vestal, Mo.Sup., 304 S.W.2d 820, 823 [1, 2]. However, in determing whether a defendant’s instruction is supported by evidence, we must consider the evidence in a light most favorable to defendant. Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, 8 [1-3]; Emert v. St. Louis Public Service Co., Mo.Sup., 370 S.W.2d 366, 368 [3]; Edwards v. St. Louis Public Service Co., Mo.Sup., 365 S.W.2d 483, 486 [2-4]; Thayer v. Sommer, Mo.Sup., 356 S.W.2d 72, 77 [5]. Further, where the defendant submits an affirmative finding of facts, the existence of which would disprove an essential fact of plaintiff’s case, that submission must have factual support in the testimony. Sutton v. Fox Missouri Theatre Co., Mo.Sup., 356 S.W.2d 41, 49; Hart v. Midkiff, Mo.Sup, 321 S.W.2d 500, 508 [10]; Southwestern Bell Telephone Co. v. Chester A. Dean Const. Co., Mo.Sup, 370 S.W.2d 270, 277 [6]. We think Instruction No. 6 was sufficiently supported by evidence.

The credibility, weight and value of defendant’s personal testimony and that of all other witnesses was for the jury in this case since we have reached the conclusion that, the conflicts and contradictions in respondent’s personal testimony was not sufficient for us to rule, as an issue of law, that said testimony was wholly insufficient to support the instruction. Considering all of the evidence in the record, we find it sufficient to support the fact issues submitted in Instruction No. 6, and particularly to support that portion of Instruction No. 6 to the effect that defendant in the exercise of ordinary care could not have seen and realized plaintiff was in a position where there was danger of collision between plaintiff and defendant’s automobile in time for defendant to have stopped her car or to have sounded a timely and effective warning of the approach of defendant’s automobile, “and thus and thereby to have avoided the impact between plaintiff and defendant’s automobile.” It follows that, appellant’s second assignment of error as to the giving of Instruction 6 must be and is overruled.

The judgment for defendant is affirmed.

All concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Willie B. TALLIE, Appellant.
    No. 50302.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellant.
   HIGGINS, Commissioner.

Willie B. Tallie was found guilty by a jury of burglary, second degree. Section 560.045, RSMo 1959, V.A.M.S. After finding that defendant had previously been convicted and sentenced for five felonies in accordance with Section 556.280, RSMo 1959, V.A.M.S., and as alleged in the amended information, punishment was fixed by the trial judge at imprisonment in the penitentiary for a term of six years. Section 560.09S, RSMo 1959, V.A.M.S. Sentence and judgment followed and defendant has appealed.

The state has filed a brief but appellant has not. In this situation the Supreme Court will review assignments of error properly preserved in the motion for new trial. State v. Parks, Mo., 331 S.W.2d 547, S49[1].

On January 11, 1963, at about 6:30 p. m., Virgil Bennett and his wife, Ruth, left their home at 6228 Lenox, Wellston, Missouri. Before leaving, Mr. Bennett checked to see if all windows and doors were locked. He returned alone about 7:00 p. m., at which time he discovered the key to his bank lock-box in an ash tray in the kitchen. He put the key in the top drawer of the dresser in the bedroom. The key was usually in the second drawer of the dresser and it had not been in the ash tray when he left at 6:30 p. m.

Mr. Bennett left again between 7:30 p. m. and 8:00 p. m. and returned with his wife at 9:00 p. m. Mrs. Bennett then discovered the dresser drawer “all tore topsy turvy” and that her jewelry box and jewelry were missing. She also discovered the front window open about one and one-half inches and its screen gone. The screen was found lying against a neighbor’s house and had been pierced near the hook. The window sash had been chipped and there was a hole in it beneath the lock area. Leaves had been tracked into the house.

The police were called about 9 :45 p. m. and they arrived about five minutes later. The Bennetts went with the police to the station and identified their missing articles, which became Exhibit 6 in evidence. Mrs. Bennett specifically identified a silver spoon and jet beads from the exhibit.

On the same evening, Officer Donald McBride of the Wellston police was riding in the area of 6300 Ridge in Wellston with Officer George Dawes. While on Cockrill Avenue he observed a colored subject walking along the Hodiamont car tracks in front of the car. The subject was 5'8" — 5'9" and 180-190 pounds, of stocky build, and dressed in a topcoat and light tan or khaki pants. McBride got out to check him and lost him in a nearby gangway. He went back to the car and after riding a short distance, saw the man again. He again got out and ordered the man to stop. The man “took off” running. He chased him and saw him later coming from the area of a dead-end gangway without a coat. He and Officer Dawes arrested and handcuffed the man (defendant). Officer McBride went back into the gangway and found the topcoat which contained a paper bag containing the jewelry ultimately identified as Exhibit 6. The defendant told the officers that he took the jewelry from a house but he did not remember which one and that he had gone in the back door. Defendant was taken to the police station and shortly _thereafter the Bennett burglary was reported.

Just prior to the foregoing events Officer George Dawes received a call to look for a man flourishing a shotgun. The man was described as colored, 175-180 pounds, 5'8" or 5'9" tall, wearing a dark coat and tan or khaki pants. After picking up Officer McBride he saw a colored man that he felt was “pretty well the description of the man” about whom the call had been received. The man that Officer McBride later took into custody was the same man seen earlier by Officer Dawes. This man was the defendant and when questioned about a shotgun, he admitted having one earlier which he hid under a porch, as well as to admit getting the jewelry out of a house in the area. The gun was found under a porch where the defendant said he had hidden it.

Appellant’s assignment 5 is that the court erred in overruling defendant’s motion for a judgment of acquittal at the close of all the testimony. In determining the sufficiency of the evidence on a motion for judgment of acquittal, the court must consider as true the evidence favorable to the state, together with favorable inferences that can reasonably be drawn therefrom, and must disregard evidence and inferences to the contrary. State v. Sykes, Mo., 372 S.W.2d 24, 26 [3]; State v. Davis, Mo., 367 S.W.2d 517, 519[2, 3].

Briefly stated, the elements of the offense of burglary in the second degree are the breaking and entering of a dwelling house by a person with intent to commit a felony or to steal therein. Section 560.045, RSMo 1959, V.A.M.S. We believe these elements were shown by the facts recited above. There was evidence to the effect that the Bennetts left their home with doors and windows locked and that upon their return the front window was open and the screen gone; that the screen had been pierced near its hook; that the window had been chipped and there was a hole beneath the lock; that the bedroom was in disarray and leaves had been tracked into the house; that Mrs. Bennett found items of jewelry missing from her dresser. This evidence would support a finding of breaking into a dwelling house and a stealing therein.

In addition, there was evidence to the effect that defendant was apprehended in the vicinity of the Bennett home; that he ran from the officers; that he abandoned the jewelry and his topcoat and later admitted taking the jewelry in a burglary in the area, which jewelry was identified as Exhibit 6. This evidence would support a finding connecting appellant to the burglary.

There is substantial evidence to support the verdict of burglary in the second degree, and the trial court did not err in overruling defendant’s motion for a judgment of acquittal.

Appellant was charged in addition to burglary in the second degree with five prior convictions within the meaning of Missouri’s second offense act, Section 556.280, RSMo 1959, V.A.M.S. In support of such charges the state offered the records of the St. Louis County Circuit Court. Appellant contends by his assignment 1 that the court erred in admitting those records as proof of prior convictions for the reason that no proper foundation was laid for their introduction. Receipt of Exhibits 1, 2, and 3 in evidence is thus questioned. The transcript shows them to be files of the criminal division, St. Louis County Circuit Court. Each exhibit was identified by Edwin Delaney, a deputy clerk of that division, a witness qualified to make such identification. State v. Donnell, Mo., 351 S.W.2d 775, 780[8]. Exhibit 1 showed that on October 25, 1955, in Cause No. 199619, appellant pleaded guilty and was sentenced to two years’ imprisonment for burglary, second degree. Exhibit 2 showed that on August 8, 1957, in Cause No. 217949, appellant pleaded guilty and was sentenced to four years’ imprisonment for burglary, second degree, and that he pleaded guilty and was sentenced to four years’ imprisonment for stealing. Exhibit 3 showed that on August 8, 1957, in Cause No. 217629, appellant pleaded guilty to charges of burglary and stealing and that he was sentenced to four years’ imprisonment for each offense to run concurrently with the sentences shown by Exhibit 2. These records were attested and sealed by the Clerk of the Circuit Court and are thus properly received as evidence of the acts or proceedings of such court in any court of this state. Section 490.130, RSMo 1959, V.A.M.S. Furthermore, these records are records of the trial court, i. e., the Circuit Court of St. Louis County. We have held that a court can take judicial notice of its own records and files. Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717, 721 [5]. For these reasons, we hold the records of the St. Louis County Circuit Court were properly admitted in evidence.

By assignment 2 appellant contends that proper foundation was not laid for admission of records of the Missouri State Penitentiary, Exhibits 4 and 5. From the transcript it can be determined that each of these was a Certified Transcript of Serial Record, and each showed appellant to have been received at the penitentiary and that he served the sentences imposed by Exhibits 1, 2, and 3. These exhibits were also offered on the question of previous convictions and such certified records have been repeatedly held admissible in evidence on such issue. State v. Burns, Mo., 328 S.W.2d 711, 712 [1]. They were properly admitted by the trial court here.

Appellant contends by assignment 3 that the court erred in finding defendant guilty of previous felonies, since the evidence in support of said findings was not properly authenticated or certified and there had been no proper foundation laid for such findings. The trial court determined this issue outside the hearing of the jury as required by the statute. Section 556.280, RSMo 1959, V.A.M.S. We have previously held that Exhibits 1, 2, 3, 4, and 5 were properly received in evidence by the trial court. The trial court made a finding upon this evidence that appellant had been five times previously convicted. The evidence is substantial on this point and we rule this contention against appellant.

Appellant contends by assignment 4 that the court erred in overruling defendant’s motion to suppress evidence charging that certain evidence was obtained by illegal search and seizure. It appears that there was no search in fact of defendant’s person. The evidence shows that the victims’ jewelry, Exhibit 6, was found in a coat in a dead-end passageway. When defendant was apprehended he was not wearing the coat. McBride found the coat about 60 or 70 feet away from the point of arrest. Defendant made no response to questions as to the ownership of the coat. Under this lack of claim of interest and control it can be said that any evidence so obtained was not the result of a search and seizure. Defendant cannot complain of a search of such coat and seizure of property therein under these circumstances. State v. Cantrell, Mo., 310 S.W.2d 866, 870 [7, 8]; State v. Harris, Mo., 325 S.W.2d 352, 355 [2-4]. The trial court properly overruled defendant’s motion to suppress.

Appellant complains by assignment 6 of the trial court’s refusal of defendant’s Instruction Delta B on circumstantial evidence. If there is direct evidence from which the jury could have found defendant’s guilt, an instruction on circumstantial evidence need not be given. State v. Cox, Mo., 352 S.W.2d 665, 670[4]; State v. Burns, supra, 328 S.W.2d 713 [4]. Immediately upon defendant’s arrest his coat was found and it contained the victims’ jewelry. This alone was direct evidence connecting defendant with the offense. Later he admitted to the officers that he got the jewelry from a house in the area. Testimony by way of admission by the defendant is direct evidence which excuses the need for an instruction on circumstantial evidence. State v. Criger, Mo., 46 S.W.2d 537, 539 [3]. “Such an instruction is not mandatory under Sec. 4070, Mo. R.S.1939 (now Section 546.070, RSMo 1959, V.A.M.S. and Supreme Court Rule 26.02, V.A.M.R.) and Mo.R.S.A. where at least part of the state’s evidence is direct.” State v. Loston, Mo., 234 S.W.2d 535, 538[7]. There is direct evidence in this case and the trial court therefore committed no error in refusing to give defendant’s proffered instruction on circumstantial evidence.

Appellant complains by assignment 7 that the trial court erred in overruling his objection to the statement of the prosecuting attorney “that the defense had raised ‘smoke’ in regard to the issue of this case, thereby prejudicing the Defendant in the eyes of the Jury.” In assignment 8 appellant complains that the court erred in refusing to declare a mistrial alleging that the prosecuting attorney commented on defendant’s failure to testify.

These points require that the language in question be quoted from the transcript and, for convenience, we will consider assignments 7 and 8 together. The closing argument proceeded along this line:

“MR. ANDERSON: Don’t be mislead in this case. Remember the questions coming from Mr. Shaw. When that defendant was first arrested he told you he found the jewelry on the streetcar tracks, didn’t he? Willie found that jewelry. The police officer said, ‘No, he didn’t tell me that, he didn’t say that he found the jewelry.’
“That didn’t work with either officer. They didn’t go for that. They said, ‘No, Willie didn’t say anything about finding .the jewelry.’
“It switched a little then to the point where everybody has got this jewelry.
“He says that it is junk jewelry. I will agree, but I will agree that it was not Willie Tallie’s fault that it was junk jewelry or not when he had it.
“But the evidence is mixed up. Everybody is switching evidence — or at least this is the indication that you might get from the questioning. Officer McBride and Officer Dawes said that the jewelry was taken from the coat from Willie and brought in the police department, and Mrs. Bennett in their presence says, ‘That is my jewelry,’ and Mrs. Bennett positively identified the jewelry here. There is a little smoke in this case but don’t be mislead.
“MR. SHAW: I object. The only reference I made to the jewelry was the chain of custody. I didn’t even cross-examine the woman. I think counsel is making an improper comment ‘smoke.’
“THE COURT: The objection is overruled.
“(Thereupon Mr. Anderson continued his argument and the following objection was made:)
“MR. ANDERSON: Now, I see only one thing in the cause and that is the back door, and I submit that it is unreasonable and would be unfair to ■ the State for you to throw this case out or find the defendant guilty or not guilty because out of his mouth he says, ‘As I remember I went in the back door, when that jewelry was taken.’
“MR. SHAW: I object. That is a direct misquote of the evidence as I remember it, the officers did not testify to this.
“THE COURT: Here again I am going to overrule the objection but the jury will rely on their own recollection of the evidence.
“MR. ANDERSON: That one point. Everything matches up and matches up perfectly. There is just one problem in this case and that is that he says he took the jewelry, entered the home, but he says, T went through the back door.’
“Now, if that is enough to create a substantial, reasonable doubt in your minds then I say acquit him, the defendant, but don’t forget you have a duty to the State just as much as you have a duty to this defendant, you have a duty as jurors and citizens of this county, and looking at these facts these facts are uncontradicted with one exception coming from his mouth that he came through the back door.
“MR. SHAW: Just a moment. Will you come up?
“(Thereupon the following was had out of the hearing of the jury:)
“MR. SHAW: At this time the defendant would request the Court to declare a mistrial in this case for the last remark of counsel which is a reflection indirectly that the defendant failed to testify in this case.
“MR. ANDERSON: What is that—
“THE COURT: The objection is overruled.”

This court has defined the scope of review where improper argument is charged as error saying, “Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or' a discharge of the jury, is largely within the discretion of the trial court. An appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant.” State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588[11].

The characterization of the evidence as having a little smoke in it is supported Iw the record. There was an attempt by defense counsel to get the officers to testify on cross-examination that defendant stated he had found the jewelry. Although the victims’ testimony was that the front window had been broken, there was testimony from the officers that defendant stated he entered by a back door. By his cross-examination of the officer defense counsel attempted to show a break in the chain of custody of the jewelry. In Hyde v. State, 196 Ga. 475, 26 S.E.2d 744, 753, the court said: * * figurative, speech has always been regarded as a legitimate weapon in forensic warfare, if there be evidence before the jury on which it may be founded.’ ” In this case the phrase “a little smoke” is well founded and is apt and fair description within the meaning of the test in State v. Tiedt, supra, and the trial court did not abuse its discretion in overruling appellant’s objection to this comment.

Appellant’s further complaint by assignment 8 is that the argument contained a reference to defendant’s failure to testify. Such reference is prohibited by Supreme Court Rule 26.08, V.A.M.R. This court in State v. Hayzlett, Mo., 265 S.W.2d 321, 323 [3, 4], suggested a guide for determining whether Rule 26.08 has been violated, saying, “The key words of the statute, as the state points out, are ‘accused’ and ‘testify,’ and the ultimate test of whether the prohibition has been violated is whether the jury’s attention was called to the fact that the accused did not testify.” In the Hayzlett and subsequent cases, this court has uniformly held that statements to the effect that the state’s evidence stands uncontradicted do not violate the rule. In order to work prejudice it must be demonstrated that the attention of the jury was directed to the fact that .the accused did not testify. State v. Murray, Mo., 280 S.W.2d 809, 811 [3-5]. We have examined the complained-of statement in light of the evidence heretofore set out in some detail and are unable to say that this argument is anything other than fair comment in this case. We hold that the trial court did not abuse its discretion in refusing to declare a mistrial.

Appellant complains by assignment 9 that the court erred in admitting testimony by way of a conclusion of Officer Dawes that defendant fit the description of the subject described in a police broadcast. We have held that opinion evidence as to identity of persons, “based upon the observation of the witness, and coupled with a description of the person sought to be identified and the circumstances, is competent, and its probative value is for the determination of the jury.” State v. Blackmore, 327 Mo. 708, 38 S.W.2d 32, 34[1, 2]. In this case Officer Dawes had ample opportunity to observe defendant and he testified as to his description when he observed him. Such testimony was properly admitted and the trial court committed no error in this connection.

Appellant complains by assignments 10, 11, and 12 that the trial court erred in admitting testimony referring to flourishing and hiding a shotgun and in admitting testimony about cases pending concerning the shotgun, for the reason that such constituted evidence of other crimes.

Assignment 11 complains that Officer Dawes testified that defendant told the police, “ * * * he had taken a shotgun and hidden it under a porch.” This assignment is contrary to the record. Dawes’ testimony was that defendant said “ * * * that he could take us and show us where he hid the gun, * * It does not appear that Dawes ever testified that defendant said he had taken a shotgun. Since this evidence tends to show that defendant only hid a gun it could not constitute a criminal offense and assignment 11 is thus without merit. By assignments 10 and 12 appellant contends that the testimony received on flourishing a gun was error because such constituted evidence of a separate offense. The rule excluding evidence of offenses other than the one charged applies only where such evidence is not otherwise relevant and material to the issues of the case. This court has held on innumerable occasions that evidence of other offenses is properly admitted where relevant and material to the issues of the case. 9 Missouri Digest, Criminal Law, ‘§^’369. Evidence of other offenses is /properly admitted when it tends to show 1 identity of the persons charged, State v. Taylor, Mo., 324 S.W.2d 643, 646 [4], 76 A.L.R.2d 671, and where such evidence Itends to rebut a defense asserted by defendant. State v. Dees, Mo., 276 S.W.2d 201, 207[15,16]. Here it appears that the defense strategy was to create doubt as to the acts of the police officers. The record shows that defendant’s cross-examination of the officers adduced testimony to the effect that at the time of arrest they did not know of any burglary, and that although looking for a man with a shotgun, the officers first saw defendant without a gun. The evidence thereafter adduced by the state to the effect that the officers were seeking a man with, or who had been flourishing, a shotgun, and the admission that defendant had a shotgun and hid it became relevant and material both as to identitjf of the defendant and to rebut such attempted defense. Under such circumstances the evidence relating to the shotgun was properly admitted even though it may have tended to show other criminal conduct. It appears also that the first mention of the shotgun was in defendant’s cross-examination of Officer McBride. Under these circumstances we do not believe the trial court erred in admission of this evidence.

Assignments 13 and 14 appertain to the court’s instructions. In 13 appellant complains that instructions 1 through 5 were “vague, erroneous, ambiguous, confusing, misleading and did not state correctly the law applicable to this case, and were not supported by the evidence.” By assignment 14 appellant complains that the court erred in not properly instructing on the law applicable to the instant case. The transcript shows that defendant made no objection to instructions 4 and 5 on the subjects of argument and unanimous verdict respectively. In addition, these assignments preserve nothing for review under Supreme Court Rule 27.20, V.A.M.R. An assignment that the instructions were ambiguous, misleading and confusing and did not state the law properly is too general to preserve anything for appellate review. State v. Pinkerman, Mo., 349 S.W.2d 951, 952[2]. Likewise, the assignment that the court erred in not properly instructing in all law applicable to the instant case preserved nothing for appellate review. State v. White, Mo., 301 S.W.2d 827, 829[8, 9]; State v. Johnson, Mo., 286 S.W.2d 787, 791 [2]. These charges of error are held without merit.

We have examined the transcript pursuant to Supreme Court Rule 27.20(c), V.A.M.R, and we find no plain error affecting substantial rights. We have also examined those matters in the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. The information is sufficient. Defendant was arraigned and pleaded not guilty. The verdict is in proper form and is responsive to the issues, and the punishment fixed by the trial judge is within limits prescribed by law. Appellant and his counsel were present throughout the trial. Allocution was granted and the judgment is responsive to the issues and the verdict.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.