text:
    Evelyn BOEHMER, Appellant, v. John BOGGIANO, Respondent.
    No. 51651.
    Supreme Court of Missouri. Division No. 2.
    Feb. 13, 1967.
    Rehearing Denied March 13, 1967.

      Max C. Nelson, Harold I. Elbert, Sus-man, Wilier, Rimmel & Elbert, St. Louis, for appellant.
    John J. Cole, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.
   EAGER, Presiding Judge.

This is a suit for personal injuries allegedly suffered in a rear end collision. Plaintiff recovered a verdict of $3,000 on her $100,000 claim and has appealed, asserting specific errors and also that the verdict is totally inadequate. Since there is no contention that the evidence was not sufficient to make a submissible issue of negligence, we shall not recite the facts of the collision in any detail. It occurred in St. Louis County on March 8, 1962, at the junction of Highway 40 and Lindbergh Boulevard; plaintiff’s husband, with whom she was riding, was waiting to enter Lindbergh from the ramp of a cloverleaf. The ramp ran slightly downhill. Defendant’s car, also moving on the ramp, concededly struck the Boehmer car from the rear, but there was a vast divergence in the evidence of the parties as to the nature and extent of the impact. Defendant says that his car merely rolled five or six feet from a stop and struck the other car lightly at about five miles an hour; plaintiff and her husband testified that there was a “tremendous jolt” or a “horrible jolt” which knocked the car forward a foot or two. Plaintiff testified that her head was jolted completely back, that she felt a “horrible pop” and that she then went completely forward. The damage to the Boehmer car was relatively slight, consisting of a “pushing in” of the bumper guard, a little damage to the pan underneath, the glass of a taillight broken and its rim dented.

Plaintiff testified: that she felt a “funny sensation” in her neck all the way home; that severe pain developed in her head and neck; that she tried to work the next day, but became nauseated and had to quit; that she went to a chiropractor, then home and to bed; that she continued in such pain for months; that she was unable to sleep in bed, but tried to sleep on the floor; that within a week or so she went to her family doctor who sent her to Dr. Earp, an orthopedist, and that she went to him about four times; that Xrays were taken and that at his suggestion she wore a neck collar which was very uncomfortable; that pain continued in her neck, head, right arm and both shoulders; in June, 1962, she went to Dr. William H. Grundmann, who also specialized in orthopedics. He was suggested by a woman who talked with plaintiff in a grocery store, after noticing that she was wearing a neck collar; at about the same time a girl at her place of employment suggested the name of an attorney and plaintiff called him. The attorney apparently recommended Dr. Grundmann, also. This doctor again took Xrays, administered heat treatments, gave her shots and medication and at times she felt that she was improving. In July, 1962, she was referred to Dr. Jacques Paul Schaerer, a neurologist. This reference was suggested either by Dr. Grund-mann or the attorney, or both. Plaintiff went to Dr. Schaerer on one visit; he examined her and told her to continue her conservative treatments with Dr. Grund-mann. This she did until September, thinking that at times that she was better, and doing a little of her housework, but with difficulty; in September Dr. Schaerer examined her again, noted her various complaints, and recommended that she undergo a test known as a “discogram” to determine whether she had ruptured cervical discs. During the latter part of September this test was performed. It consisted of the administration of a local anaesthetic, the insertion of a needle into the gelatinous center of the disc, the injection of a dye by means of a smaller needle inserted through the first one, and the prompt taking of Xrays to see whether the dye had leaked out into or through the outer ring or annulus of the disc. In this case the tests were of the two discs between cervical vertebrae four and five and between five and six. The doctor testified that the dye had leaked at both sites to the right and rear and that severe pain was caused, substantially identical to her prior complaints of pain. In this doctor’s opinion the test was positive for two ruptured discs, and he testified that it was the most accurate means of diagnosing that condition. The positive diagnosis, in his opinion, resulted from a combination of two elements, namely, the extravasation of the dye, and the creation of severe pain by the test in substantially the same place and of the same type as the prior pain. He indicated that the pain was caused by the contact of the dye with nerve endings in the peripheral areas of the disc. Without going into any considerable detail on the subject, these two discs were later removed by Dr. Schaerer in two separate operations and the vertebrae in each instance fused, i. e., four and five and five and six; one operation was performed in October, 1962, and the other in July, 1963. However, another discogram was performed before the last operation, confirming the rupture of the disc, according to the doctor. The doctor testified that from his observation during surgery, as well as by the tests, the discs were defective. Upon a hypothetical question he testified that, in his opinion, the collision caused the conditions for which he operated. On cross-examination he further testified: that the Xrays prior to the operations showed nothing abnormal, but that these are merely aids in diagnosing a disc injury; that the absence of neurological symptoms did not rule out such an injury; that he was familiar with the studies and experiments of Dr. Earl P. Holt, Jr., and with an article written by him in which he concluded that discography (or the use of the disco-gram) was an invalid or fallacious test; that he did not agree with those findings and conclusions; that the matter had been discussed or debated between them at a medical meeting; that he did not approve of the techniques used by Dr. Holt in his experiments, giving his reasons. The cross-examination of Dr. Schaerer on those matters was extensive. References will be made later to the objections made to this line of testimony. On redirect examination, plaintiff’s counsel established that discography was used by neurologists in perhaps a dozen cities of the United States, and that both neurologists and orthopedists in St. Louis had referred disc cases to the witness; also, that he uses the myelogram as a diagnostic test where there are positive neurological findings, but that there were none here. Dr. Schaerer was born in Switzerland and had received his original medical education there; he had performed residencies in hospitals in the United States, was a member of the staffs of several St. Louis hospitals, belonged to the usual medical societies and was a diplómate of the American Board of Neurosurgery.

The testimony of Dr. Grundmann may be referred to briefly. He first saw plaintiff on June 7, 1962; he detailed her various complaints involving chiefly pain in the head, neck and right shoulder with limitation of motion in the neck and shoulder; she was then wearing a neck collar. He determined that she had a possible disc involvement, and he administered heat, medication and traction, but the traction seemed to aggravate the pain and he stopped it; he also found certain distinctive areas of numbness in portions of her forearm, right palm and fingers which, to him, indicated interference with a nerve. In answer to a hypothetical question he stated that, in his opinion, the collision caused the conditions which he found. He further testified that, while slight trauma is not very likely to injure a disc, such an injury often depends upon the person’s condition; that in certain instances almost any jar can cause it, even bending over.

Plaintiff testified further that after the first disc operation some of her pain cleared up and she could sleep in bed but that the pain returned later; that after the second operation most of her pain left, but that she still had occasional pain in her right side and neck, especially upon physical activity. Prior to the accident she was employed regularly in a book bindery, and there was evidence that her annual earnings for a period of five years (1957-1961) varied from $2,890.59 to $3,286.10. She had not worked at this occupation since the accident, but had resumed light housework. She testified that she had suffered some physical ailments and operations prior to the accident, including a peptic ulcer, a partial hysterectomy and appendectomy, a Caesarean section, and occasional colds and flu, but that she was in good health on March 8, 1962. The history taken upon a hospital admittance in June, 1952, when she was twenty-four years old, showed various physical complications, some of which occurred in relatively early years. We need not detail these. She had continued with therapy and rehabilitation treatments after her last disc operation and the doctor who so treated her, testified that she still had pain and discomfort in her neck and right shoulder, with restriction of motion and other symptoms which, in his opinion, came from pressure on nerve roots in the cervical area at and below her fusions; that her condition in March, 1965, was not as good as in October-November, 1964.

The defendant’s evidence consisted largely of medical testimony. As we noted previously, the objections of plaintiff’s counsel will be considered later, and separately. Dr. George E. Roulhac, a qualified neurological surgeon, examined plaintiff on December 13, 1963, after her last operation. She then complained of pain in her neck and right shoulder and of occasional pain in her right arm. The doctor made various tests and testified that he found no reason for her pain and no objective changes in her nervous system, and that he thought that she should be able to do her usual work. After some discussion of the methods of diagnosing ruptured discs, he testified that, in his opinion, the use of the discogram was an “unreliable diagnostic procedure,” that he did not use it, that its use was not only exceedingly painful but that the dye frequently gave misleading indications. The doctor admitted, on cross-examination, that a few of his “confreres” used the test, and that there are differences of opinion on many medical theories. He further testified: that disturbances of cervical discs are a part of the field of neurosurgeons; that the fusions made here by Dr. Schaerer were a “good job”; that injury to a disc from a collision where plaintiff’s head had “popped backwards and then forwards,” even with the other car traveling at five miles an hour, would be possible, but that such an injury would ordinarily subside “on its own” unless the disc was already degenerated.

Dr. Earl P. Holt, Jr., a qualified specialist in orthopedic surgery, testified: that he had done extensive surgery on lumbar discs, had made studies of the cervical spine and had treated various injuries in that area; that surgery on cervical discs was ordinarily referred to a neurosurgeon; that in making a diagnosis of injury to a cervical disc a physician notes objective findings such as neck, shoulder or arm pain, atrophy of muscles, and changes in reflexes including losses of sensation; that the myelograph is a highly reliable test. Upon examination of plaintiff’s Xrays he found no indication of any abnormality of the discs in the cervical region; the doctor also examined the Xrays taken during the making of the first disco-graphic test and the later Xrays showing the fusions; in answer to a hypothetical question (he had not examined the plaintiff) he testified that there was no evidence of a ruptured disc “at any level.” He further testified: that the test by discogram of the discs in the cervical area had been shown to be “completely invalid,” and that this conclusion was settled by experiments made upon volunteers who had no history of neck injury or neck or arm pain; that he, under a grant from the Medical School of Washington University, had conducted tests on fifty such volunteers at the Missouri Penitentiary in October, 1963, with assistance from other doctors; that he had performed discograms on 148 separate cervical discs; he outlined his procedure (including the injections of dye and repeated Xrays) and showed some of the Xrays taken, with his explanations. This phase of the testimony was developed in much detail, but the final result stated was that in 93% of the discs injected there was an “extravasation or leakage” of the dye and that complaints of severe pain were present in all cases; his final conclusion was that, since the results were “almost universally positive” in the tests, it was obvious that the test was not valid as a basis for diagnosis; further, that cervical discography was of “no use at all” and was quite misleading. The results of this study were published in an article in the Journal of the American Medical Association in September, 1964. On cross-examination the doctor stated that he had been quite “suspicious” of the validity of the discogram before he performed the experiments.

The theory of the plaintiff at the trial was that defendant was legally responsible for the removal of the discs by Dr. Schaerer whether his diagnosis of injury to the discs was correct or not, because the operation was a proximate result of plaintiff’s injury in the collision, plaintiff not having been negligent in the selection of a doctor or doctors; and further, that it was improper thus to place conflicting medical theories on trial. These objections were fairly made and carried on throughout the medical testimony. The alleged error in the admission of all testimony seeking to impeach the use of the discogram is the principal point now made here. All such evidence may be considered together.

Plaintiff’s basic position is that she sustained an injury in the collision, that she received treatments from various doctors, that the discograms and the removal of the discs were a part of her treatment, and that whether rightly or wrongly diagnosed, defendant was liable for all such acts and their results; this, because the act of the original tort-feasor is regarded as the proximate cause, and that subsequent negligence or improper diagnosis of a treating physician does not break the chain of causation. Thus, plaintiff says, the defendant is liable in any event for the results of the treatment, the controverted evidence was legally immaterial and its admission was highly prejudicial.

The principle thus propounded by plaintiff has been very generally recognized. It is briefly stated in Prosser on Torts, 2nd Ed., Ch. 9, pp. 272-273, as follows: “A similar group of cases hold the defendant liable for the results of medical treatment of the injured victim. Even where such treatment is itself negligent, because of lack of proper skill or care, recovery for its consequences is permitted. It would be an undue compliment to the medical profession to say that bad surgery is no part of the risk of a broken leg. So long as the plaintiff himself has exercised reasonable care in his selection of a physician, the defendant will be liable for all ordinary forms of professional negligence, although not for such unusual misconduct as the infliction of an intentional injury, or the performance of an entirely independent operation, which cannot be regarded as normal incidents of the risk.”

The subject is exhaustively treated in the note appearing at 100 A.L.R.2d, p. 810, to a lesser extent, in 22 Am.Jur.2d § 113, pp. 163-165, and also in the Restatement of Torts, 2nd, §§ 456-457. The doctrine has long been recognized in Missouri. Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Nagel v. Missouri Pacific Ry. Co., 75 Mo. 653, 42 Am.Rep. 418; Staehlin v. Hochdoerfer, Mo., 235 S.W. 1060; Smith v. Kansas City Rys. Co., 208 Mo.App. 139, 232 S.W. 261; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Hughes v. Maryland Casualty Co., 229 Mo.App. 472, 76 S.W.2d 1101; State ex rel. Smith v. Weinstein, Mo.App., 398 S.W.2d 41. One of the very early cases declaring the doctrine was Stover v. Village of Bluehill (1863), 51 Me. 439. It has since been recognized and followed almost universally, as indicated in the following cases: Stephenson v. Steinhauer (CA 8); 188 F.2d 432; Harris v. Brian (CA 10), 255 F.2d 176; Seitz v. Heep, 243 Ala. 376, 10 So.2d 150; Ross v. City of Stamford, 88 Conn. 260, 91 A. 201; Smith v. Missouri, K. & T. Ry. Co., 76 Okl. 303, 185 P. 70; Reed v. City of Detroit, 108 Mich. 224, 65 N.W. 967; Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359; Hudgens v. Mayeaux (La.App.), 143 So.2d 606; Kansas City Southern R. Co. v. Justis (CA 5 La.), 232 F.2d 267, 60 A.L.R.2d 628, certiorari denied 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53; Cannon v. Pearson (Tex.), 383 S.W.2d 565; Hicks Rubber Co. v. Harper (Tex.Civ.App.), 131 S.W.2d 749; City of Joliet v. Le Pla, 109 Ill.App. 336; Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556; Trieschman v. Eaton, 224 Md. 111, 166 A. 2d 892; Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861. In some cases the point has arisen on the propriety of instructions, in others upon the admission or exclusion of evidence. In the following cases the courts ruled, directly or indirectly, that evidence of aggravation by the negligence of a physician was properly excluded or was improperly admitted, because the defendant was liable for such aggravation in any event, where the plaintiff was not shown to have been negligent: Stephenson, supra; O’Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A.L.R. 1263; Wyatt v. Russell, 308 Pa. 366, 162 A. 256; Radman v. Haberstro, 49 Hun. 605, 1 N.Y.S. 561, 17 N.Y.St.R. 497, affirmed 119 N.Y. 659, 23 N.E. 1150; Baker v. Borello, 136 Cal. 160, 68 P. 591; Doran v. Waterloo, C. F. & N. Ry. Co., Iowa, 147 N.W. 1100; Ross v. City of Stamford, supra; Smith v. Missouri, K. & T. Ry. Co., supra; Fields v. Mankato Electric Traction Co., 116 Minn. 218, 133 N.W. 577; Reed v. City of Detroit, supra. Two of the Missouri cases already cited may be considered as so holding. Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Smith v. Kansas City Rys. Co., 208 Mo.App. 139, 232 S.W. 261. In all of those cases, however, as we interpret them, the original injury was conceded or was clearly and very obviously established, and the negligence of the physician caused only an aggravation; such, for instance are the sundry cases involving the improper setting of a fractured bone, with resulting disability. In fact, the very principle stated above basically is that the original tort-feasor is liable for such aggravation, it being a part of the proximate, foreseeable result.

The application of the doctrine may not be obviated here on account of any demonstrated negligence of the plaintiff. In the profusion of cases on the general subject there is relatively little discussion of the plaintiff’s duty. It is often stated that he must exercise reasonable care in the selection of his physician; and a few of the cases suggest, in substance, what is more or less obvious, namely, that if plaintiff selected a duly licensed and practicing physician of good “repute,” concerning whom he knows nothing adverse, he is not to be held negligent if, perchance, the physician later proves to be unskillful or negligent. Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Reed v. City of Detroit, 108 Mich. 224, 65 N.W. 967; Smith v. Kansas City Rys., supra; Stephenson v. Steinhauer (CA 8), 188 F.2d 432; Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861; Baker v. Borello, 136 Cal. 160, 68 P. 591. Here the evidence is not too clear as to how plaintiff happened to go to Dr. Schaerer; it is fairly inferable that she was recommended to Dr. Grund-mann by a chance woman acquaintance (who had had similar neck trouble) and by her newly acquired attorney; also, that she was recommended to Dr. Schaerer by Dr. Grundmann and the attorney jointly. Only the selection of Dr. Schaerer is material here. He was a regularly licensed physician and surgeon, having served internships and residencies in recognized hospitals, he was a member of various hospital staffs and, as a specialist in neurosurgery, he had been accepted through examination as a diplómate of the American Board of Neurosurgery. Nothing appears in the evidence which is in any way disparaging to him except (if that be such) the controversial nature of the discographic tests used by him. On this evidence we rule as a matter of law that no negligence on the part of plaintiff was shown in the selection of Dr. Schaerer, and defendant was not relieved of responsibility for his acts on that theory.

Defendant’s primary contention for the admissibility of the evidence attacking the reliability of discograms is that it was offered to show that plaintiff had suffered no disc injury. (At some places in the brief counsel expand this by stating a purpose to show “no injury,” but we interpret the real contention to be as first stated above.) Counsel disclaim any intent to disprove mere aggravation of an injury. Defendant introduced evidence tending to show that no symptoms or indications of disc injury were present, and he asserts that proof of the unrealiability of the dis-cogram was competent to corroborate that evidence.

In the vast majority of cases sustaining responsibility for the aggravation of injuries by negligent or incompetent treatment, there was no controversy about the existence of the injuries treated. Here the issue of disc injury or no disc injury was strenuously controverted; plaintiff undertook, by her own medical evidence, to show the rupture of two discs and that this was caused by the collision. That was her burden, and she made the issue. We have concluded that evidence of the invalidity of the test used by Dr. Schaerer as a mode of diagnosis was admissible as tending to disprove his asserted findings of two ruptured discs, and thus to dispute the existence of that element of damage. Since the evidence was admissible for one valid purpose, it could not properly be excluded; no specific limitations concerning its purpose or effect were requested, so we do not have that question before us. It is possible that a slightly different phase of the question would have been developed if counsel had specifically objected to the testimony of Dr. Holt’s experiments on the ground that they were made after the plaintiff’s last operation; we find no such objection. Moreover, this was evidence on a collateral matter in which the trial court has a large discretion.

Plaintiff says that the defendant has shifted his position on appeal; that at the trial his counsel countered the objections with the statement that the principle stated was not the law, whereas he now admits the basic principle, but says that it was not the purpose or effect of the evidence to counteract aggravation. Be that as it may, we rule on the objections as they come to us and determine whether the evidence was admissible for any legitimate purpose, regardless of such colloquies; and ordinarily a party is not required to state affirmatively a ground for the admission of evidence which he offers, unless the court inquires. There was no reason here why counsel could not have argued to the jury, despite the controverted evidence, the claimed rupture of the discs, the operations for removal, the pain and inconvenience therefrom, and any resulting disabilities; undoubtedly, they did so, and in all probability the jury found against plaintiff on that issue. We note again that this case has come to us upon questions on the admissibility of evidence, — and that is what we have ruled upon.

Plaintiff complains of the refusal to give her Instruction B, a withdrawal instruction, which was as follows: “The evidence of Dr. Earl P. Holt, Jr. to the effect that the two cervical discs, mentioned in evidence, should not have been removed and that part of the testimony of Dr. Earl P. Holt, Jr. and Dr. George Roulhac stating and endeavoring to prove that cervical discography is not a valid diagnostic aid is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.” From what we have already said, it is apparent that the court could not properly have thus withdrawn the evidence for all purposes, and the instruction was correctly refused.

Plaintiff’s last point is that the verdict of $3,000 is so inadequate as to indicate bias and prejudice on the part of the jury. Counsel say that plaintiff lost at least $4,500 in wages, that she had three major operations, that she has given up various recreational activities, such as fishing, bowling, etc., and that the range of motion in her neck has been restricted. On this contention we view the evidence in the light most favorable to the verdict, and consider also that the trial court was vested with a wide discretion in ruling on the motion for a new trial. Hufft v. Kuhn, Mo., 277 S.W.2d 552. In that case, and also in Brown v. Moore, Mo., 248 S.W.2d 553, Ulrich v. Kiefer, Mo.App., 90 S.W.2d 140, and Boschert v. Eye, Mo., 349 S.W.2d 64, all cited by plaintiff, the injuries suffered were obvious and fully demonstrated; the defendants in those cases offered no controverting evidence. In other words, there was no fact issue in any of those cases as to the existence or extent of the injuries, and the courts were able to consider the alleged inadequacy of the verdicts from that standpoint. Here, on the evidence which we have held to be admissible, there were substantial fact issues: as to the supposed ruptures of the discs; what loss of earnings, if any was directly caused by the collision; whether any of plaintiff’s complaints were attributable to pre-existing ailments or conditions; and the possible relationship of a new ulcer condition developed shortly prior to trial. The question of causation was a fact issue existing throughout the case, upon which the burden of proof was on the plaintiff. In Brown v. Moore, Mo., 248 S.W.2d 553, at loc. cit. 559, the Court said: “We must keep in mind that the question of the amount of damages is primarily for the jury. The jury’s broad discretion in fixing the amount of the award is conclusive on appeal, especially where the verdict has the approval of the trial court, unless the appellate court can say that the verdict is so shockingly and grossly excessive or inadequate as to indicate that the amount of the verdict is due to passion and prejudice; and that the broad discretion granted to the jury and to the trial court in weighing the evidence has been arbitrarily exercised and abused.” Under all the circumstances here, and in view of the various factual issues which the jury was permitted and required to find, we may not hold that this verdict was the result of passion and prejudice. We cannot say that the amount of this verdict was not “responsive to the evidence,” as the jury was entitled to view the evidence. Mitchell v. Mosher, Mo., 362 S.W.2d 532.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: FINCH, Presiding Judge.

license: Public Domain

text:
    Richard E. JACKMAN, Appellant, v. CENTURY BRICK CORPORATION OF AMERICA, Respondent.
    No. 51996.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Lane D. Bauer, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for appellant.
    E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   FINCH, Presiding Judge.

Plaintiff, a resident of Michigan, filed suit on November 18, 1965, against defendant, a Pennsylvania corporation, for $25,000 actual and $25,000 punitive damages. The petition alleged that defendant had committed certain acts in Missouri during 1964 which were tortious and fraudulent and were made to induce plaintiff to become a franchise dealer for defendant in four Missouri and two Kansas counties for its “Century Brick” process. The petition requested service of process in accordance with § 351.633, RSMo 1965 Cumulative Supplement, V.A.M.S., and recited the address of defendant to be in Erie, Pennsylvania, as shown in the official registry of that state. Service of process was on the secretary of state, who forwarded copies to defendant at its address in Erie, Pennsylvania, in the manner specified in § 351.633 (2). Defendant then filed a motion to quash service and to dismiss. The motion asserted that § 351.633, effective October 13, 1965, was prospective only in its application and could not be utilized with respect to acts occurring prior to that date. It also recited that the petition did not allege the commission of tortious acts in Missouri. The trial court sustained the motion to quash and to dismiss. This appeal followed.

In order to consider the questions presented, it is necessary to review the history of this legislation, including our decisions with reference thereto.

In 1961 the general assembly enacted Senate Bill 183, Laws Missouri 1961, p. 257. It amended what was then § 351.630, RSMo 1959, by including therein what is sometimes referred to as the single tort statute. It provided that when a foreign corporation commits a tort in whole or in part in Missouri, such act constitutes the doing of business in this state and the corporation is deemed thereby to have appointed the secretary of state as its agent for service of process in actions arising out of such tort. It also prescribed how the secretary of state should notify the defendant corporation of service of process.

In State ex rel. Clay Equipment Corp. v. Jensen, Mo., 363 S.W.2d 666, this court considered subsection 2 of the 1961 act. The court held that substantive rights were created and that the general assembly intended the act to be prospective only in its application. Consequently, the statute was not available with respect to a tort committed prior to the statute’s effective date, which was October 13, 1961.

Subsequently, in State ex rel. M. Pressner & Co. v. Scott, Mo., 387 S.W.2d 539, the court en banc considered subsection 3 of the 1961 statute. That subsection provided that the secretary of state should forward a copy of the petition and summons by registered mail to the defendant corporation at its principal office “as the same appears in the records of the secretary of state.” The court held that records, as used in that subsection, had reference to records made, filed or deposited pursuant to some law, that the secretary of state would not have such a record of the address of a nonresident corporation not qualified to do business in this state, and that the method provided in the statute as it applied to nonresident corporations not qualified in Missouri did not comply with due process requirements.

In 1965 the general assembly enacted Senate Bill 106 which repealed the then existing § 351.630 and enacted in lieu thereof two new sections. That portion of the existing statute relating to suits based on the commission of a single tort by a foreign corporation became § 351.633. Subsection 1 of the new § 351.633 corresponded verbatim with subsection 2 of the 1961 act. Subsection 2 of the 1965 statute was new in that it provided a different procedure for notification of the foreign corporation at its address by the secretary of state. What had been subsections 4 and 5 of the 1961 act were reenacted verbatim as subsections 3 and 4 of the 1965 act. Subsection 5 of the 1965 act was new and provided for venue in the county where the cause of action accrued.

The 1965 statute became effective on October 13, 1965, and the suit from which this appeal is taken was filed on November 18, 1965.

Defendant asserts that the entire 1961 law was declared unconstitutional by this court in Pressner and that the 1965 act was an entirely new statute. It, says defendant, operates prospectively only and plaintiff may not utilize it as a means of recovery for torts committed in 1964.

The Pressner case did not hold that the entire § 351.630 was unconstitutional. The court considered only what was then subsection 3 relating to notification by the secretary of. state of a foreign corporation not qualified to do business in Missouri. The opinion held only that the method of notification of a foreign corporation not qualified in Missouri did not meet the requirements of due process. The opinion recognized that subsection 3 of the 1961 act had been a part of subsection 1 of preexisting § 351.630, RSMo 1959, and that after the adoption of the 1961 act subsection 3 was intended by the legislature to be applicable to subsection 1 (as it had been previously) as well as subsection 2. Likewise, Pressner did not undertake to rule upon the constitutionality of other subsections of § 351.630. Consequently, it is clear that Pressner did not hold all of § 351.630 unconstitutional.

Defendant contends that subsection 3 was so essentially connected with the rest of § 351.630 that the ruling in Pressner necessarily included a ruling that the entire section was invalid, and that § 1.140, RSMo 1959, V.A.M.S., relative to severability of sections of a statute, is applicable. We do not agree. In addition to what we have said in the preceding paragraph, we note that subsection 4 of the 1961 act provided as follows: “Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a foreign corporation in any other manner now or hereafter permitted by law.” This language recognized that there might then be existing some other method of service or that a different method of service might be provided subsequently. In either instance, service by the other means was to be permissible. This indicates that the legislature did not intend that utilization of the single tort statute was to be dependent completely and exclusively on the method provided in subsection 3.

This court in Pressner did not find, as the court did in State ex rel. Transport Mfg. & Equipment Co. v. Bates, 359 Mo. 1002, 224 S.W.2d 996, and in Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62, cited by defendant, that elimination of a particular subdivision or clause meant that the remaining statute did not express the legislative intent and for such reason the entire act must be held bad. In both the Calcaterra and Bates cases the statute remaining after elimination óf the portion held invalid would have resulted in something entirely different from what the legislature intended. For example, Calcaterra involved a statute providing for challengers and watchers at the polls for the two dominant political parties. The court .held that the provision limiting the challengers and watchers to the two dominant political parties violated the equal protection provisions of the state and federal constitutions. It was suggested to the court that a particular ■clause of the statute might be ruled unconstitutional but the remainder upheld. The court pointed out that to do this would result in providing challengers and watchers for all political parties, whereas the clear legislative intent was to confine it to the two dominant parties. Consequently, the court went ahead and specifically held that the entire act was bad. The Bates case involved a use tax which contained an exemption of motor vehicles having a seating capacity of ten passengers or more. The court held the exemption to be discriminatory and invalid but rejected a suggestion that it could hold the exemption bad without ruling the entire use tax to be invalid. The court pointed out that to do this would result in imposition of tax which the legislature did not intend, and therefore it was necessary to hold the entire use tax invalid. The situation in those cases is not analogous to the one with which we are now concerned. The ruling in Pressner simply meant that the procedure prescribed in subsection 3 for notification of the foreign corporation by the secretary of state of service on it was invalid. This did not in any sense change the meaning or effect of subsection 2. We hold that the ruling in Pressner did not necessitate a holding that all of § 351.630 was invalid.

Section 1.120 RSMo 1959, V.A. M.S., provides as follows: “The provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of a prior law, shall be construed as a continuation of such law and not as a new enactment.” The language of this section is applicable to subsections in the 1961 act which were identical with subsections in the 1965 act. Subsections 2, 4 and 5 of the 1961 act were repealed and reenacted verbatim as subsections 1, 3 and 4 of § 351.633 when it was adopted in 1965. Under that statute, those subsections continued to be effective from the effective date of the 1961 statute, and utilization in this case of the rights created thereby is not contrary to what this court said in Jensen about such rights being prospective only.

The case law of Missouri is in accord with the provisions of § 1.120 and supports the conclusion which we reach.

In Belfast Inv. Co. v. Curry, 264 Mo. 483, 175 S.W. 201, 1. c. 204, it is stated: “The usual rule is that, when part of a former act is repeated in an amendatory statute, the provisions thus repeated are considered as a continuation of the former law, and not as a new enactment, while those parts of the original act which are omitted from the amendment are treated as repealed. This rule is announced by Lewis’ Sutherland in the second edition of his work on Statutory Construction, pp. 442, 443, as follows:

“ ‘The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. * * *

In State v. Ward, 328 Mo. 658, 40 S.W.2d 1074, 1. c. 1078, this court said: “The point that the repeal by the Fifty-fifth General Assembly in 1929 of section 5596, R.S. 1919, and the enactment in lieu thereof of a new section to be known as section 5596 [Laws 1929 p. 217 (now Rev.St.1929 § 8246)], terminated the two year closed season voted by Harrison county in 1928, is without merit.

“In Brown v. Marshall, 241 Mo. 707, 145 S.W. 810, loc. cit. 815, this court ruled: ‘A subsequent act of the Legislature repealing and re-enacting, at the same time, a preexisting statute, is but a continuation of the latter, and the law dates from the passage of the first statute and not the latter. State ex rel. Hawes v. Mason, 153 Mo. 23, loc. cit. 58-59, 54 S.W. 524; State ex rel. Stone v. Vernon County Court, 53 Mo. 128, loc. cit. 129-130; Smith v. People, 47 N.Y. 330.’”

In Atchison v. Retirement Board of Police Retirement System of Kansas City, Mo., 343 S.W.2d 25, 1. c. 33, the court stated: “Under these recognized rules of statutory construction H.B. 544, repealing §§ 86.263 and 86.267, RSMo 1949, V.A.M.S. and at the same time enacting in lieu thereof new §§ 86.263 and 86.267, retaining and repeating some and omitting some of the former sections and adding some new language, had this effect: First, it continued the former law retained, § 1.120, RSMo 1949, V.A.M.S., which remained operative and effective as before, and that portion of these sections is to be considered as having been the law from the time it was first enacted.”

Under the above cases and under § 1.120 we are required to treat the single tort' statute as having been part of our statutes from October 13, 1961. The 1965 reenactment of subsections thereof constituted a continuation of those portions of the 1961 act and the rights created thereby in 1961 operate prospectively from that date rather than from the effective date of the 1965 statute.

The new subsection in the 1965 act dealing with the manner of notification of the corporation by the secretary of state was purely procedural and not substantive. Under the case of State ex rel. LeNeve v. Moore, Mo., 408 S.W.2d 47, such a procedural statute operates retrospectively as well as prospectively, unless the legislature provides otherwise, and was available for use by this plaintiff.

The motion to dismiss also asserted that plaintiff’s petition did not allege the commission of a tort in Missouri. We hold otherwise. Paragraph 1 of the petition alleges that the acts of the defendant mentioned in. the petition were committed in whole or in part in Jackson County, Missouri, and paragraph 2 of the petition alleges that the defendant, by reason of the fraudulent and tortious acts of the defendant committed in Missouri, appointed the secretary of state as its agent for service of process. Subsequent paragraphs then allege particular acts or representations. The petition, construed broadly and favorably to plaintiff, as we are required on this motion to do, was sufficient to withstand a motion to dismiss.

The action of the trial court in quashing the service of summons and dismissing the petition is reversed and the cause remanded for further proceedings.

Donnelly and Storckman, JJ., concur; Eager, P. J., not sitting.

      . We are not concerned in this case with what was subsection 1 of § 351.630. Subsections 2, 3, 4 and 5 were as follows:
      “2. If a foreign corporation commits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such acts shall be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising from or growing out of the tort. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with any clerk having charge of the corporation department of his office, duplicate copies of the process. The committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Missouri.
      “3. In the event that any process, notice, or demand is served on the secretary of state, he shall immediately cause a copy thereof to be forwarded by registered mail, return receipt requested, addressed to the secretary of such cor-porafion at its principal office as the same appears in the records of the secretary of state.
      “4. Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a foreign corporation in any other manner now or hereafter permitted by law.
      “5. The secretary of state shall keep a record of all processes, notices, and demands served upon him under this section, and shall record therein the time of such service and his action with reference thereto.”

      . See footnote 1, supra.

      . See footnote 1, supra.

      . See footnote 1, supra.

      . Subsections 2 and 5 of § 351.633 were as follows:
      “2. In the event that any process, notice, or demand is served on the secretary of state, he shall immediately cause a copy thereof to be forwarded by registered mail, return receipt requested, addressed to the secretary of such corporation at its principal office as the same appears in the records of the secretary of state, or if there is no such address on file, then to the corporation at its office as shown in the official registry of the state of its incorporation and such address shall be provided by the plaintiff or his attorney.”
      ‘‘6. It is further provided that actions under this section may be instituted in the county wherein such cause of action accrues.”

      . Defendant’s motion to dismiss recited that plaintiff first filed suit in Jackson County for damages for this same tor-tious conduct on October 13, 1964, and that said court sustained a motion to quash service and dismiss on April 26, 1965, as a result of the decision of the Supreme Court in State ex rel. M. Pressner & Co. v. Scott, Mo., 387 S.W.2d 539. This is correct, but it has no effect on the disposition of the present appeal.

      . This contention is based on the fact that subsection 1 of the 1965 act is identical with the language of the 1961 statute which this court in Jensen held to be prospective in its application.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Lovie LINZIA, Jr., Appellant.
    No. 52197.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Special Asst. Atty. Gen., Kansas City, for respondent.
   DONNELLY, Judge.

Appellant, Lovie Linzia, Jr., was convicted of first degree robbery by means of a dangerous and deadly weapon under § 560.-120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment was assessed at imprisonment in the State Department of Corrections for a term of eighteen years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. The record justifies the following brief recitation of facts: In November, 1965, John Mondaine was employed as a porter by Goldman’s Jewelry Store, 11th and Walnut Streets, Kansas City, Jackson County, Missouri. In late October, 1965, Mondaine discussed with appellant, and others, whether there was a way Mondaine “could sneak them in” the jewelry store “so they could open the safe.” On Friday evening, November 5, 1965, Mondaine let appellant and two companions into the store. They remained all night and he let them out Saturday morning. On the morning of November 10, 1965, about 8:30 a. m., Mondaine again admitted appellant and two companions through the back door of the store. Max Roth, Joe Flapan and Ronald Weinsaft, employees of the store, had entered by way of the front door. Flapan worked the combination on the vault, called to Weinsaft, and Weinsaft opened the door of the vault. When Weinsaft turned from opening the door of the vault, he observed appellant, with a gun in his hand, and two other men standing behind Flapan and Roth. Appellant hit Weinsaft “in the back of the head” and Weinsaft, Flapan and Roth were taken downstairs to the basement where their wrists and ankles were bound. Appellant, not knowing the vault had been opened, asked for a key to the vault, went upstairs, and a few minutes later left the store with his two companions. The employees untied their wrists and ankles, went back upstairs and found that two boxes of jewelry were missing from the vault. Appellant and two other men drove to Texas that afternoon and took the jewelry with them. They were apprehended in Dallas, Texas.

Appellant first asserts error in the admission of certain testimony elicited from John Mondaine. It is as follows:

“Q. Now, had they been inside the store, had you let those same three men in the store prior to or before November 10, 1965?
“MR. DUNCAN: I object to that, Your Honor, not being charged in the indictment. This man is charged with a robbery on November the 10th. Anything else would be irrelevant and immaterial and prejudicial.
“THE COURT: Overruled.
“Q. (By Mr. Stephenson) You may answer the question.
“A. Will you ask the question again?
“Q. When had you let them in the store prior to or before November 10th? A. Let’s see, I think Friday, that Friday before —it was that Friday before — it happened on Friday and it was the Friday, that following Friday.
“Q. The same three men? A. Yes, sir.
“Q. And for what purpose did you let them in on that occasion?
“A. So the robbery could take place.
“Q. For the robbery to take place, you say? A. Yes.
“Q. Did it take place that day? A. No.
“Q. Did a robbery then occur on November the 10th?
“A. Yes.

On cross-examination, Mondaine testified as follows:

“Q. Now, you say that on the Friday before this that you had let these men in to the store, is that correct ? A. Yes.
“Q. When did you let them in that time?
“A. I was supposed to get off work at 3:30 but I worked until 4:30 so they wouldn’t be in the store too long after they closed, Friday evening around 4:25.
“Q. 4:25 you let them in? A. Yes.
“Q. That was in the evening? A. Yes.
“Q. Is Goldman’s open on Saturday? A. Yes.
“Q. Did you work that Saturday? A. Yes.
“Q. Did you let them out Saturday? A. Yes.
“Q. All right. Now, it is your testimony that Mr. Linzia was one of those men that was in there all night Friday night and Saturday morning? A. Yes.
“Q. All right. And it is your testimony also that there was some discussion about Mr. Linzia being able to open the safe, is that correct? A. No, it was before then.
“Q. Well, hadn’t you had a conversation in which Mr. Linzia had said, or someone had told you that Mr. Linzia could open the safe? A. Yes.
“Q. And they were in there all night Friday night and Saturday morning? A. Yes.
“Q. Is that your sworn testimony? A. Yes.
“Q. But there was no robbery that night ?
“A. No robbery.”

Appellant contends that the evidence adduced in behalf of the State was inadmissible because it constituted proof of another offense. We are of the opinion that the general rule forbidding evidence of a crime other than the crime for which the defendant is on trial is not applicable here. Generally, of course, evidence of a different crime is inadmissible. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304. But there are exceptions to the general rule. One is that where “the proof of other offenses may tend to establish * * * a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof.” State v. Kornegger, 363 Mo. 968, 975, 255 S.W.2d 765, 768; 20 Am.Jur., Evidence, § 314; 22A C.J.S. Criminal Law § 688.

The evidence is inconclusive as to what happened in the jewelry store Friday night, November 5, 1965. If appellant at that time attempted to “open the safe,” the attempt was apparently unsuccessful. Perhaps this illegal entry was only preparation for the crime committed November 10, 1965. In any event, the ultimate purpose, an unlawful taking of property, was successfully consummated by robbery November 10, 1965. This Court said in State v. Harrison, Mo.Sup., 285 S.W. 83, 86: “There was a plan or scheme amounting to conspiracy, * * * which they entered into for the purpose of robbing that store, and everything they did in pursuance of that plan could be shown in the evidence. Therefore the evidence was admissible.” See also State v. Greenwade, 72 Mo. 298; State v. Garton, Mo.Sup., 371 S.W.2d 283, 287, 288; and State v. Evans, Mo.Sup., 237 S.W.2d 149, 151. The evidence of the entry on Friday, November 5, 1965, was admissible.

Appellant next asserts that the trial court erred in giving Instruction No. 2 because it required “that in order to convict, the jury find that Max Roth was assaulted and that ‘any property or money’ was taken from his person or in his presence, with the intent to deprive Max Roth of his ownership.” The indictment charged the robbery of Max Roth. The essence of appellant’s contention is that Goldman’s Jewelry Store, not Roth, owned the merchandise taken, and that there was no evidence to the effect that Roth was responsible for and had custody of the property.

Roth testified that he was sales manager of the store, that Joe Flapan was manager of the store, that Flapan and Roth were equal in responsibility, and that Roth was in charge of the sale of everything that came into the store. Flapan testified that he was manager of the store along with Roth and that Roth took care of the stock. The evidence shows that Roth was lawfully in possession of the jewelry by virtue of his employment. He had sufficient ownership, as against appellant, for the purposes of this prosecution. State v. Montgomery, 181 Mo. 19, 29, 79 S.W. 693, 696, 67 L.R.A. 343.

Appellant finally asserts that the trial court erred in admitting in evidence certain testimony elicited from Ronald Wein-saft. Appellant contends such testimony constituted “an opinion that invaded the province of the jury on the ultimate issue of the trial.” The record in this regard reads as follows: “Q. Now, did you later identify this defendant Lovie Linzia as being the man that struck you on the head? A. Yes. A. Are you sure today — MR. DUNCAN: I object to that, Your Honor, as being repetitious, also invading the province of the jury. THE COURT: Finish your question. I do not know what it is. Q. (By Mr. Stephenson) Are you sure today beyond any reasonable doubt that this is the man who struck you on November 10, 1965? MR. DUNCAN: Your Honor, I am going to object to that. That is certainly invading the province of the jury, it is repetition, also unbelievable on the basis of what he says his identification is based on. THE COURT: Overruled. Q. (By Mr. Stephenson) You may answer the question. A. I believe he is.”

It is not proper for a witness to testify to a conclusion when it has the effect of answering the ultimate issue the jury is to determine. In State v. Wertz, 191 Mo. 569, 578, 90 S.W. 838, 841, a rape case, the following question was asked and answer given: “Q. I will ask you if from what you heard her say there, if you understood from what she said and her actions there, she had been outraged by this man Wertz? A. Well, from her general appearance I would be inclined to think she had been mistreated.” That testimony was held inadmissible.

However, an opinion as to identity may be admissible if based on the personal knowledge or observation of the witness. Weinsaft based his testimony on his own observations of appellant’s “build and by his voice.” His answer to the question was properly admitted. State v. Blackmore et al., 327 Mo. 708, 38 S.W.2d 32; State v. Franke, 159 Mo. 535, 543, 60 S.W. 1053, 1054; State v. Riddle, 324 Mo. 96, 23 S.W.2d 179; 23 C.J.S. Criminal Law § 864, pp. 405-407 ; 77 C.J.S. Robbery § 47, p. 507.

The use of the question, in the form asked, should not be encouraged. However, the witness responded with an ordinary opinion not in'any way invading the province of the jury, and, under these circumstances, we find no prejudicial error.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Junior Boyd RAPP, Appellant.
    No. 51937.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Rehearing Denied March 13, 1967.

      Charles M. Cook, Carthage, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, for respondent.
   EAGER, Presiding Judge.

The defendant was convicted by a jury of uttering a forged check and, upon a finding of three prior felony convictions, he was sentenced by the court to serve a term of ten years, with an allowance of 251 days of jail time. The original notice of appeal was filed late, but this court granted leave under Rule 28.07 to file a delayed notice of appeal. The trial court permitted defendant to appeal as a poor person and furnished him a free transcript. Defendant was represented at the trial by appointed counsel who was thereafter permitted to withdraw; other counsel was appointed to prosecute this appeal and the case has been briefed here.

We are met at the outset by a motion of the State asking that we confine our consideration to the record proper because the motion for a new trial was filed four days late. We would be required to consider that question even in the absence of such a motion. The record shows that the verdict was returned on September 27, 1965, and the motion was filed on October 11; we have inquired independently of the Circuit Clerk and find that no order was made granting an extension of time under Rule 27.20. We shall therefore consider only the matters of record, and one additional point which, considered broadly, involves a constitutional issue. Counsel for defendant says that inasmuch as the prosecuting attorney and the court “acquiesced” in the filing and consideration of the motion, its late filing was “cured,” if indeed such action did not constitute a nunc pro tunc order. For the requirements on such an order see the case of State v. Hooper, Mo., 364 S.W.2d 542. It is obvious that there was no such order, nor could there have been one upon the present record; and neither the parties nor the court can waive the requirements of Rule 27.20.

Some points of defendant’s brief are wholly insufficient in any event under our Rule 83.05, because they do not show “wherein and why” the actions of the trial court are claimed to be erroneous. The points dealing with the admission of evidence, instructions, insufficiency of the evidence of prior convictions, alleged lack of proof of the corporate capacity of the First National Bank of Joplin, the overruling of challenges for cause to two veniremen, and the endorsement of the names of additional witnesses at the beginning of the trial, are all matters which require assignments of error in a motion for a new trial.

We consider first the information. It first alleges several prior felony convictions and imprisonment therefor; thereafter, in Count 1 it charges the making and forging on March 6, 1965, of a check for the payment of money purporting to be the act of Mrs. O. E. Kingsborough. We need not consider that count further, for defendant was acquitted on that charge, the court having instructed that he could be found guilty of forging or of passing the check, but not on both charges. The second count of the information was, in substance, that defendant “ * * * feloniously did pass, utter and publish as true to Elmer Coy, d/b/a Elmer’s Bar, 903 Main, Joplin, with the intent then and there and thereby to injure and defraud,” a certain check, “forged and counterfeit,” purported to be made by Mrs. O. E. Kingsborough payable to defendant, and purporting to be drawn on the “First National Bank of Joplin, Missouri, a national banking association duly organized and existing under the laws of the State of Missouri,” and that defendant then and there well knew that the said check was “false, forged and counterfeit.” A copy of the face of the check was included in the information, with a notation of defendant’s endorsement as it appeared on the back.

Counsel says here that a correct description of the “banking institution” on which the check was drawn was an essential element of the information. He seems to argue that this is necessary to distinguish the check from some other form of instrument, and to establish it as a check on a known bank which the acceptor would presume to be good. He cites no authority. Respondent calls our attention to the forgery statute enacted in 1955, Section 561.011, RSMo 1959, V.A.M.S., which is, in its pertinent parts, as follows: “1. It shall be unlawful:

“(1) For any person with the intent to defraud to make or alter any writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions, so that it purports to have been made by another, or at another time, or with different terms, or by authority of one who did not give such authority, or for any person with intent to defraud to totally erase, obliterate or destroy any such instrument;
******
“(3) For any person with intent to defraud to use as true, or to utter as true, or to possess' with intent to utter as true or false, or to transfer with intent that it shall be uttered as true, any writing or other thing which said person knows has been made or altered in the manner described in either of subdivisions (1) or (2)

This statute, in effect, describes the subject of a forgery as a “writing of any kind having legal efficacy or commonly relied upon in business or commercial transactions.” And the crime thus defined as uttering, is the using or uttering as true of any such instrument which the person knows has been so made or altered. There is no reference in this statute to the corporate character of a drawee bank, as there was in prior statutes. Sections 561.080 and 561.090, RSMo 1949. Count 2 of this information included a verbatim copy of the face of the check which showed that it was drawn on “First National Bank of Joplin, Mo.”; the check thus alleged was a writing “commonly relied upon in business or commercial transactions.” Checks ordinarily do not carry a recitation of the mode of corporate organization of the bank on which they are drawn. The wording of this information is inept in that it describes the Bank as a “national banking association” and also as one “duly organized and existing under the laws of the State of Missouri,” but under the existing statute both references may and should be considered as surplusage. Particularly is this true after verdict. State v. Biven, Mo., 151 S.W.2d 1114, and cases there cited. No essential averment of the crime of uttering a forged check was omitted in this information, and the defendant certainly could not have been misled.

A written statement or confession of the defendant was received in evidence. Counsel contends, in a rather vague manner, that this was inadmissible in that defendant’s “constitutional rights” were not safeguarded and that he was without counsel at the time. The objection at the trial was equally as vague, on this phase. We rule here on the contention under Rule 27.20(c) the so-called “plain error” rule because a constitutional contention may be raised on habeas corpus or in a motion to vacate a judgment and conviction under either state or federal procedure. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Thus, if it were true that the admission of the confession was in violation of the Fifth or Fourteenth Amendments, or both, its use would be plain error affecting substantial rights, from which manifest injustice might be found to result. We so held in State v. Beasley, Mo., 404 S.W.2d 689.

Captain Jack Flenner, Chief of Detectives in Joplin, testified: that when he came to work at about 8:00 o’clock on the morning of April 9, 1965, he questioned defendant in his office about the check in question ; that before doing so he told defendant what he wished to discuss, that he could talk to an attorney before giving any statement, that whatever he said would be used against him in court; that he gave him an opportunity to procure an attorney or to use the telephone in order to have someone help him secure counsel; that no threats or promises whatever were made to the defendant; that defendant said that he would give a statement; that, so far as he recalled, no one else was then present, although Mrs. Armstrong, a secretary, was called in a little later and that the statement was taken down by her in shorthand; that the statement was actually taken in shorthand in approximately seven minutes, after the prior conversations; that when it was transcribed the defendant read it, stated that it was correct, and signed it. On cross-examination the witness testified that the wording at the beginning of the statement was “what we use” after having talked with the person to be interrogated; that some of the wording was that of the witness and some was that of the defendant; that he had told defendant at the outset about his right to a lawyer; that he did not know what sleep or food defendant had previously had, but that the occupants of the jail were fed before that time in the morning. The statement was as follows : “ ‘Joplin, Missouri, April 9, 1965, 8:37 a. m. to 8:44 a. m., Detective’s office, Joplin Police Department, State of Missouri, County of Jasper. I, Junior Boyd Rapp, make the following voluntary statement to W. H. Flenner who I know to be Captain of the Joplin, Missouri, police department. I have been told that I do not have to make a statement, and any statement I may make could be used against me in a court of law. I have been told that I have the right to talk with a lawyer of my choice or with anyone else before making a statement and before saying anything at all, no threats or promises have been made to induce me to make this statement.

“ T am 33 years old. Was born in Mari-onville, Missouri on April 11, 1931. I live in Webb City, Missouri. On March 6, 1965 I had a blank counter check in my possession, and I made out a check for Ten dollars drawn on the First National Bank of Joplin, payable to Junior Boyd Rapp, and signed by Mrs. E. O. Kings-borough, 2801 East 15 th.

“ T took this check to Elmer’s Place, 903 Main and cashed it. I had worked for Mrs. Kingsborough before. I knew at the time I was writing the check I was forging her signature. I have identified this check by initial and dated it April 9, 1965.

“I have read the above statement and initialed each page, and it is true and correct.’ ” This statement was signed by the defendant but it was not sworn to.

There was no contention at the trial that the confession was involuntary, and there is really none here. Counsel says that Captain Flenner’s testimony “does not convince an impartial court” that defendant’s rights were safeguarded, or that the statement was in fact the statement of the defendant. No request was made at any time for a hearing on such matter outside the presence of the jury, nor did defendant testify at any time, either on this subject or the merits. The objection that the statement was not properly identified because the stenographer did not testify is wholly without merit. The argument that some of the statements were those of the defendant and some were those of the interrogator becomes meaningless when we note that after the statement was typed, the defendant read it, considered it, said that it was correct, and signed it. In this case there is nothing but speculation, pure and simple, to impeach the statement.

In Johnson et al. v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, June 20, 1966, it was held that the requirements of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, June 13, 1966, were not applicable to cases tried before its date, and they are therefore not applicable here. As a matter of fact, it would seem that defendant was advised, in substance, of all his rights as required by Miranda except the right to have counsel appointed if he so desired. According to Johnson, supra, the defendant here had the right to “invoke a substantive test of voluntariness * He has always had that right in Missouri. State v. Bradford, Mo., 262 S.W.2d 584; State v. Statler, Mo., 331 S.W.2d 526; State v. Williams, Mo., 369 S.W.2d 408. Here he did not invoke that right, and on the “sum total of the circumstances,” Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, there was and is no evidence that the statement was made involuntarily. It was properly admitted in evidence.

Counsel suggests that the punishment imposed was excessive. The sentence is, of course, a part of the record. The court here had found three'prior felony convictions; this also appears in the formal record. The term of ten years was the maximum permitted for this offense, § 561.011, subd. 2, but the appellate courts will not ordinarily interfere with the exercise of the trial court’s discretion in this regard where the sentence is within the limits permitted by the statute. State v. Burchett, Mo., 302 S.W.2d 9; State v. Brewer, Mo., 338 S.W.2d 863; and see the discussion in State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, cert. denied Laster v. State, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167. We do not consider it proper here to so interfere.

Counsel has asked that we review as “plain error” the action of the trial court in permitting the State to endorse on the information, at the beginning of the trial, the names of three additional witnesses. One of these was Elmer Coy who cashed the check and who was specifically named in the information; the other two merely produced records. This was a matter resting so completely within the discretion of the trial court, that we decline to consider it upon the theory of plain error resulting in “manifest injustice.” Rule 27.20(c). See also, State v. Farris, Mo., 243 S.W.2d 983.

We find no error in those parts of the record which we are required to examine under Rule 28.02. The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Johnnie RANSOM, Appellant.
    No. 51930.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Lewis R. Mills, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   DONNELLY, Judge.

Appellant, Johnnie Ransom, was convicted of selling amphetamine hydrochloride, a stimulant drug, under § 195.240 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959, V.A.M.S., was assessed at imprisonment in the custody of the State Department of Corrections for a term of two years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant was tried under an indictment which, in part charged: “THAT JOHNNIE RANSOM in the City of St. Louis, State of Missouri, on the 13th day of May, 1965-, did unlawfully and feloni-ously sell to one THOMAS ROOKS, a certain stimulant drug, to-wit: 0.15 grams of AMPHETAMINE HYDROCHLORIDE, at and for the price and sum of three dollars in legal currency of the United States of America, in violation of Chapter 195, Section 195.240, Revised Statutes of the State of Missouri, 1959.”

William Storer, a criminologist with the St. Louis Police Department, testified for the State. He stated that he analyzed the contents of the foil packet sold by appellant and his analysis showed that the foil packet contained amphetamine hydrochloride. He testified further as follows:

“Q Now, Mr. Storer, I would like to show you State’s Exhibit No. 2; do you know what this is? A Yes, sir.
“Q What is it?
“A The document bears among other titles, lists of drugs, barbiturates, and Amphetamine Law.”
* * * * * *
“Q Is the drug that you refer to upon that list, Mr. Storer?
“A Yes, sir. The drug falls under the section described here on the list.
“THE COURT: What section is that?
“THE WITNESS: Under the list entitled ‘List of Stimulants. Amphetamines.' There is a definition of Amphetamine. ‘Any stimulant drug consisting of phenylis-opropylamine and all derivitives thereof.' This drug Amphetamine Hydrochloride falls under this clause.
* ⅜ * * * *
“THE COURT: It appears to me Amphetamine only appears two places on this, page; one, it’s Amphetamine Sulfate, USP, and the bottom line is Nicotinyl Amphetamine. What makes you think that Amphetamine Hydrochloride is included when it only mentions Amphetamine Sulfate?
“THE WITNESS: Amphetamine Hydrochloride is a solid form of phenyliso-propylamine. The list described here is a partial list of the many types of amphetamine derivatives that are available.
“THE COURT: Is Amphetamine Sulfate also a solid form?
“THE WITNESS: Yes, sir.
“THE COURT: Would it be a different kind of solid form from the hydrochloride amphetamine ?
“THE WITNESS: Not really, not in its action, no, sir. It is just one of the many solid forms in which Amphetamine may appear.
“THE COURT: Amphetamine is mixed with another chemical apparently?
“THE WITNESS: Yes, sir.
“THE COURT: To make Amphetamine Sulfate ?
“THE WITNESS: That’s correct. Amphetamine itself is a clear liquid and in order to make it dispensible, usable, it’s prepared into a solid form, one of many salts, when I say salt, it might be Amphetamine Hydrochloride or Amphetamine Sulfate, Amphetamine phosphate. They all, each contain the basic drug, they are the basic drug Amphetamine.
“THE COURT: * * * What would Amphetamine have to be mixed with to be Amphetamine Hydrochloride ?
“THE WITNESS: Another material containing hydrochloride to transform the liquid amphetamine into a solid form or pill state.”

We are of the opinion that the law announced in State v. Bridges, Mo.Sup., 398 S.W.2d 1, controls our disposition of this case. It was incumbent on the State to prove that “ * * * the compound in question is not a derivative of amphetamine but rather a * * * mixture containing the proscribed drug amphetamine itself.” State v. Bridges, supra, 398 S.W.2d 1. c. 6. The State’s case fails in this regard. This failure is understandable. The case was tried November IS and 16,1965. The opinion in the Bridges case was adopted January 14, 1966.

The indictment charged a sale of amphetamine hydrochloride. Amphetamine hydrochloride was not included on the list filed by the Division of Health. If amphetamine hydrochloride is a derivative of amphetamine, the proof does not show the commission of an offense under § 195.240 RSMo 1959, V.A.M.S. As in the Bridges case, the judgment must be reversed and the case remanded for such proof by the State as is available to it.

Reversed and remanded.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Karl THIERET, Plaintiff-Appellant, v. Robert F. HOEL and Paul J. Steffen, Defendants-Respondents.
    No. 51999.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Marvin Q. Silver, Milton Suffian, St. Louis, for appellant.
    George E. Lee and Doris J. Banta, .St. Louis, for respondents; Carter, Bull, Baer, Presberg & Lee, St. Louis, of counsel.
   BARRETT, Commissioner.

In a third amended petition, Karl Thieret sought $75,000 damages for injuries sustained on January 29, 1958, when he was a minor and a resident of Missouri Baptist Children's Home. The defendant Hoel-Steffen Construction Company, a partnership, had the contract to erect a new building for the Fee Fee Baptist Church and was in the process of completing the basement when Karl, then age 14, fell or was precipitated into the basement and impaled on a reinforcing rod. (The time lag, January 1958 and now, January 1967, is accounted for by the fact that after his action was filed but before it was tried Karl served an enlistment, including a tour of duty in Viet Nam, in the army.) At the close of his evidence the court directed a verdict in favor of the defendants and the plaintiff has appealed. In this posture, since the court directed a verdict, the plaintiff advances at least three theories of liability under his pleading and proof and of course if either is valid the court erred in not submitting the case to the jury.

In general these were the circumstances surrounding Karl’s fall into the excavated area: While the children’s home and the church were of course on separate plots of land there was in fact no line of demarcation or, as the plaintiff alleged, “no dividing marker” between the school ground and the church ground. The new building was being constructed on the church grounds and the construction site was “immediately adjacent to the contiguous grounds of the Missouri Baptist Children’s Home.” Karl said that near the area there was a basketball court, tennis courts, a barbecue area and an “assembly area” and that he and other youngsters had played on the construction site. Karl and his friend Ronnie De Macey lived in one of seven or eight cottages with eight or ten other boys and attended Pattonville Junior High School. On January 28, 1958, Karl and Ronnie returned to their cottage about 3:30 in the afternoon and as one of their regular duties proceeded to take the cottage laundry in a red wagon to the main building. They delivered the dirty laundry to the basement, picked up the clean laundry and left the basement through a side door on the west side of the building and proceeded over a paved driveway or walk toward their cottage. But instead of returning directly to the cottage Ronnie and Karl followed a path off the driveway, ten or fifteen feet distant, directly to the construction site. They had of course “seen that they dug this basement or dug this hole out,” and so “we decided we would go over and take a look. * * * Well, we just walked up and took a look in it, we looked down to see what they were doing.” Ronnie did not see just what happened to Karl, he says that they “kneeled down together” and peered into the hole, ten or fifteen feet deep, and Ronnie went to look into another excavation hole and when he turned around Karl was in the basement excavation impaled on a reinforcing rod. Karl said that there was dirt piled around the excavation, two to three ■ feet above it, and he said, “I was just standing there, it just caved in or it went down with me. * * * It seemed like the ground just caved away” and he did not remember anything else until he awakened in the hospital.

While the appellant does not carefully separate or categorize his theories of liability, his first claim is that the attractive nuisance doctrine is applicable to the circumstances. In part he states his claim in this manner, — “the defendants knew that their inherently dangerous, unguarded, unfenced excavation with upright steel rods in its foundation was so located as to be an attractive nuisance and was an attractive nuisance to the children of the Children’s Home who played on and used the grounds of the church and lived on the grounds of the Children’s Home.” It is not necessary to detail other circumstances or to elaborate upon appellant’s theory. There are some factual similarities and some analogy in the sandpit case of Fink v. Missouri Furnace Company, 10 Mo.App, 61, but that case was overruled on other grounds, Fink v. Missouri Furnace Company, 82 Mo. 276, and at best its value as a persuasive precedent is questionable. As was pointed out in an annotation, the Fink and similar cases were “predicated * * * upon the fact. that the condition which caused the injury might have been expected to be alluring to young children.” 28 A.L.R.2d 195, 198. The difficulty with the appellant’s theory is that this court has repeatedly held that a building under construction is not a “dangerous” instrumentality within the meaning of the attractive nuisance doctrine even to very young children. Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Hull v. Gillioz, 344 Mo. 1227, 1235, 130 S.W.2d 623, 627. In Patterson v. Gibson, Mo., 287 S.W.2d 853, it was held that the doctrine was not applicable to a “bridge” of loose boards across an “over-dig” around the concrete foundation of a church. In Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564, it was held that the doctrine was not applicable, that the premises were not inherently dangerous, when a child of five fell into a water-filled hole excavated for two underground gas tanks. If the attractive nuisance doctrine is not applicable in those instances, it follows as a matter of course that it is not applicable to the circumstances of this record and it is not necessary here to examine into the rationale of those cases.

The appellant’s second theory is that the “hard-by” doctrine is applicable, that the “defendants knew a large number of children of the Children’s Home frequented the area hard-by their inherently dangerous, unguarded, unfenced excavation and that there were no distinguishable lines of demarcation between the Home grounds and the abutting church grounds, where they had made their excavation, and further knew that children of the Home frequented both areas freely without distinction.” The church and school properties, the entire area abuts Fee Fee Road on the west and St. Charles Rock Road abuts the church property on the north but the excavation did not abut a street or highway and Karl and Ronnie did not wander from a road to the site, they left a path ten or fifteen feet from the foundation. Then too the respondents urge that the “hazard” contemplated by the hard-by rule is some permanent artificial condition maintained on premises, not a temporary condition such as a foundation or basement to a building in process of construction. The latter fact, the impermanency of the condition, would be one circumstance distinguishing this cause from the leading case of Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, 47 A.L.R.2d 1038, an instance of a private dump on a lot 300 by 330 feet bounded on three sides by public streets; some of them residential. And Dutton v. City of Independence, 227 Mo.App. 275, 50 S.W.2d 161, involved the liability of a municipality and the maintenance of a culvert on “property not owned by the city.” That case was further distinguished in Chard v. Clarkson Construction Company, Mo.App., 377 S.W.2d 506, 509; “Second, the street where the culvert was located was open to the public and neither the street nor the culvert was in the process of construction. Under such circumstances the child’s status was more than that of a trespasser or mere licensee.” But, irrespective of these considerations, as it was with the attractive nuisance doctrine, two cases in more compelling circumstances than these held that the “hard-by” doctrine was not applicable. Baker v. Praver & Sons, Inc., Mo., 361 S.W.2d 667; Winegardner v. City of St. Louis, Mo., 346 S.W.2d 219. The latter case involved a municipality but when a boy of sixteen drowned in an abandoned quarry the court as to the hard-by rule said, “it does not apply to a child traveler on a public road who departs from the road, travels a path on private property a certain distance to a quarry, and thereafter determines to enter the water in that quarry.”

The appellant’s other theory of liability is a combination of two or more theories, the rule set forth in Sec. 339 of the Restatement of Torts and the incompletely articulated Prosser doctrines relating to children, a rule of foreseeability which involves a reclassification and a new concept as to “trespassing children.” Prosser, Torts, pages 157, 175 and 372-384. Prosser’s doctrine incorporates Sec. 339 of the Restatement and it may well be that this jurisdiction should reexamine its prior decisions in this entire field of the law and reconsider the suggestions and criticisms of the experts. Baker v. Praver & Sons, Inc., 361 S.W.2d 1. c. 670 ; 2 Harper & James, Torts, Sec. 27.5, pp. 1450-1460. But twenty-eight years ago, in Hull v. Gillioz, 344 Mo. 1. c. 1234-1235, 130 S.W.2d 1. c. 627, it was pointed out that “this court has been unwilling to extend the doctrine as far as the rules adopted by the Restatement would extend it.” Since the Hull case in 1939 the Prosser and Restatement theories have been advanced and considered on several occasions (Patterson v. Gibson, Mo., 287 S.W.2d 853; Cox v. Gros, Mo., 360 S.W.2d 691, 693-694 and Baker v. Praver & Sons, Inc. supra) but Missouri has adhered to its prior position and it does not admit of liability and recovery in the circumstances of this case.

In this view, since the doctrines are inapplicable, it is not necessary to consider whether Karl was a “licensee” or an “invitee.” Richey v. Kemper, Mo., 392 S.W.2d 266; Gruhalla v. George Moeller Construction Co., Mo.App., 391 S.W.2d 585. As a matter of fact as to his three theories the plaintiff has throughout invoked a combination of all these rules and the jurisdictions upon which he relies have adopted them in whole or in part. Harris v. Mentes-Williams Co., 11 N.J. 559, 95 A.2d 388; Chase v. Luce, 239 Minn. 364, 58 N.W.2d 565; McGill v. United States, 3 Cir., 200 F.2d 873.

For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.