text:
    Elizabeth QUIGLEY, Appellant, v. Dennis C. SNEED, a minor by his guardian ad litem, James W. Sneed, Respondent.
    No. 49410.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.

      William R. Kirby, St. Louis, for appellant.
    Harry M. James, St. Louis, Allen D. Churchill, St. Louis, of counsel, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment entered on the jury’s verdict in favor of defendant in her action for $25,000 for personal injuries sustained in an automobile collision. We note that while in the petition and in the briefs the defendant is referred to as Dennis W. Sneed, he testified that his name is Dennis Clark Sneed.

Plaintiff’s case was submitted to the jury on the humanitarian negligence of defendant in failing to stop or slacken the speed of his automobile or to slacken his speed and swerve his automobile. Appellant’s contentions on this appeal pertain to alleged errors in instructions and the admission of certain testimony on cross-examination of one of appellant’s witnesses. Respondent contends, however, that appellant did not make a submissible humanitarian case and that his motion for a directed verdict should have been sustained. If this is true, the trial errors asserted by appellant are immaterial. We shall review the evidence from a standpoint favorable to appellant and give her the benefit of any part of respondent’s evidence favorable to her which is not contradicted by her own testimony and not contrary to her theory of recovery, and we shall give her the benefit of all favorable inferences arising therefrom. Davis v. Quality Oil Company, Mo., 353 S.W.2d 670.

On July 9, 1960, about 5:50 o’clock in the afternoon while a misty rain was falling, plaintiff was driving her Ford automobile southward on Roanoke Street in Florissant, Missouri, and while turning left at a “T” intersection into Charbonier Road, a thoroughfare, her automobile was struck by defendant’s westbound automobile. According to plaintiff she stopped at the stop sign but could not see to her left or eastward because of obstructions. She then moved forward so that the front of her automobile was at the edge of Charbonier Road and again stopped. She could then see to Blanchette Street about 240 feet away, and no westbound automobile was in view. She proceeded forward slowly and made a gradual turn to the left. When the front of her automobile was just south of or across the center of Charbonier Road she first saw defendant’s automobile about 200 feet away or about in front of the fourth house from the corner. At that time she was traveling between two and five miles an hour and she attempted to “angle” her automobile to the right. Plaintiff formed no opinion as to the speed of defendant’s automobile, but she thought it was going fast. Defendant testified that he was driving 25 to 28 miles an hour and that when he first saw plaintiff’s automobile it was approximately fifty feet away and was emerging from behind the bushes at Roanoke Street and traveling ten to fifteen miles an hour. He did not swerve his automobile, and although he put on his brakes they did not retard or slow the speed of his automobile prior to the collision.

It was for the jury to resolve the conflicts in the evidence. They could have found the facts as related by appellant and that respondent was traveling 25 to 28 miles an hour. For the reasons we shall next set out, a submissible case was made.

When appellant was stopped before entering Charbonier Road she was not in a position of imminent peril. However, when appellant started forward into Char-bonier Road she immediately moved into the path of respondent’s automobile, or was approaching that path so closely that it should have been evident to any reasonable person in the exercise of the highest degree of car that she was not going to stop short of that path. When appellant’s automobile was blocking the lane for westbound traffic on Charbonier Road (that is, when the front of appellant’s automobile was slightly across the center of Charbonier Road), respondent’s automobile was approaching so closely and at such rate of speed that a collision was imminent unless some action was taken to avoid its occurrence. Therefore, plaintiff was in a position of imminent peril, which has been defined to be “that position of danger to the plaintiff, whether or not plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to him is reasonably certain and not a mere possibility contingent on some other occurrence.” Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109; Davis v. Quality Oil Company, supra, 353 S.W.2d at p. 674. Appellant offered testimony of an expert witness concerning stopping distances. Respondent challenges this testimony on the ground that it was based on factors not fairly approximating those existing at the time and place of the collision. The witness did indicate a difference in the factors, but he testified that those differences would result in the minimum stopping distances at the time of the collision being less than the distances to which he testified. His testimony was that at the speed of 25 to 28 miles an hour, respondent could have stopped his automobile, taking into consideration reaction time, in a distance of 60 to 72 feet. It thus appears that if the jury chose to believe the above evidence relating" to speed and distances, defendant could have, with safety to himself and others, avoided the collision by stopping, swerving or slowing the speed of his automobile. In addition, the left front fender of the respondent’s automobile struck the left rear fender of appellant’s automobile while it was moving across and out of the path of defendant’s automobile. These facts result in this being what is sometimes referred to as an “almost escaping case.” See Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 698; and West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48. We necessarily conclude that a sub-missible case was made on the humanitarian negligence submitted by appellant.

At the request of defendant the court gave Instruction No. 7 as follows:

“The Court instructs the jury that under the law of the State of Missouri the driver of any vehicle shall stop at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection on through highway or which are approaching so closely on the through highway so as to constitute an immediate hazard.
“You are therefore instructed that if you find and believe from the evidence that on the occasion in question the defendant Dennis C. Sneed was operating an automobile westwardly on Charbon-wier Road in the lane for west bound travel, if you so find, and, if you further find that the plaintiff Elizabeth Quigley was driving her automobile southwardly on Roanoke Drive and into the intersection of Charbon«ier Road intending to make a left turn into Charbonwier Road, if you so find, and if you further find that the plaintiff Elizabeth Quigley failed to yield the right of way when the vehicle operated by the defendant Dennis C. Sneed was so close to the intersection of Roanoke Drive so as to constitute an immediate hazard, if you so find, and, if you further find in so operating her automobile Elizabeth Quigley failed to exercise the highest degree of care and was negligent and such negligence was the sole cause of the collision mentioned in the evidence and whatever injuries and damages, if any, Elizabeth Quigley the plaintiff sustained on the occasion in question were not caused by or due to any negligence on the part of the defendant Dennis C. Sneed, as set out under Instruction No. 2, then and in that event plaintiff Elizabeth Quigley is not entitled to recover and your verdict must be in favor of the defendant and against the plaintiff.”

Appellant objects to this instruction on the ground that it injects the antecedent negligence of plaintiff in getting into a position of imminent peril as a defense to the humanitarian submission. We thus have presented again the ever vexing problem of the use of a sole cause instruction in a case in which plaintiff’s submission is based on humanitarian negligence. We shall review the general rules.

In a humanitarian case, as in a primary negligence case, a defendant may undertake to absolve himself of liability to plaintiff on the basis that some act of plaintiff, or of some third person, was the sole proximate cause of plaintiff’s injuries, and that he was not actionably negligent in any of the respects charged against him. This issue may be submitted to the jury by what is known as a sole cause instruction. See Carney v. Stuart, Mo., 331 S.W.2d 558, 561, and the numerous cases there cited. When a defendant interposes such defense he then assumes the burden of hypothesizing a statement of facts, supported by the evidence, from which the jury may find that not only was there no actionable negligence on his part which caused or contributed to cause plaintiff’s injuries, but in addition thereto that the sole proximate cause of plaintiff’s injuries was the act of someone other than him, and the hypoth-esization of facts in the instruction, or by proper reference to other instructions, must be complete in both respects. In Carney v. Stuart, supra, 331 S.W.2d at p. 562, we pointed out that the history of the use of the sole cause instruction in humanitarian negligence cases has been the development of the technique of wording the instruction so that it is not in conflict with the basic principle of the humanitarian rule that the antecedent negligence of the plaintiff in getting into a position of imminent peril does not constitute a defense to the humanitarian duty imposed on the defendant thereafter to take such action as he can within the required limits to avoid injuring the plaintiff. “Therefore, in a humanitarian case the plaintiff must not word his verdict-directing instruction so as to direct or permit the jury to consider the failure of the defendant to exercise due care prior to the time plaintiff entered into a position of imminent peril (Anderson v. Prugh, supra) [364 Mo. 557, 264 S.W.2d 358], and the defendant * * * must not word his instructions so as to inject as a defense, directly or by reasonable inference, the failure on the part of the plaintiff to exercise the required degree of care prior to entering a position of imminent peril. This objectionable feature can result from saying too much in an instruction as from saying too little, and the inclusion in an instruction, whether it be in plaintiff’s verdict-directing instruction, (Anderson v. Prugh, supra), * * * or defendant’s sole cause instruction (Sheerin v. St. Louis Public Service Company, supra [Mo., 300 S.W.2d 483]; Hickerson v. Portner, supra [Mo., 325 S.W.2d 783]; Rosenfeld v. Peters, supra) [Mo., 327 S.W.2d 264], of an abstract statement of the legal duty or degree of care required of plaintiff or defendant prior to the time the position of imminent peril arose can only result in confusion, misdirection, and prejudicial error.”

Applying the above general rules to this case, the inclusion of the abstract statement pertaining to the law of right of way, and its subsequent application to the facts had no place in this humanitarian negligence case. Catanzaro v. McKay, Mo., 277 S.W.2d 566; Rosenfeld v. Peters, Mo., 327 S.W.2d 264; Carney v. Stuart, supra; Hickerson v. Portner, Mo., 325 S.W.2d 783; Burks v. Wilson, Mo.App., 356 S.W.2d 121. In Sheerin v. St. Louis Public Service Company, supra, the inclusion in a sole cause instruction, submitted in a humanitarian negligence case, of an abstract statement concerning the law of right of way was “one of its most glaring errors,” and it was there said that where the evidence supports a finding that plaintiff’s negligent act or omission was the sole cause of his injuries, the defendant may “submit a finding that such evidence was the sole cause thereof.” The court then commented as follows: “But ordinarily, in the submission of such evidence, there can be no legitimate reason for any mention of negligence or any hypothesized finding that such evidence constituted negligence. Consequently, when an instruction predicated upon such evidence refers in the abstract to the duties imposed upon plaintiff by law or recites that failure on his part to exercise lawful care constitutes negligence or characterizes his acts or conduct as negligence or authorizes the jury to determine whether the conduct submitted constituted negligence, the probability of prejudicial error is great. * * * The ultimate issue is defendant’s negligence and generally it may be said that the safe submission of a defensive sole cause instruction in such a case is the hypothesization of the specific fact situation shown by the evidence to warrant a finding that such facts were the direct and proximate cause of the casualty and none of the acts or omissions (sufficiently identifying them) under which defendant’s humanitarian negligence was submitted directly contributed to it in any degree.” In Carney v. Stuart, supra, 331 S.W.2d at p. 563 we referred to the above comment in the Sheerin case and stated that it “should be considered carefully in every case where a sole cause instruction in a humanitarian case is contemplated.”

Respondent asserts, however, that the characterization in his sole cause instruction of appellant’s conduct as “negligence” in getting into a position of imminent peril was not error because in appellant’s verdict-directing instruction submitting humanitarian negligence there was included the phrase “or if you find that such negligence on the part of the defendant combined and concurred with negligent acts or omissions, if any, on the part of plaintiff and thereby directly contributed in part to cause said collision.” Respondent says that in this manner appellant invited the jury to consider her acts as negligence. Arnold v. Fisher, Mo.App., 359 S.W.2d 602 is cited. However, that case does not pertain to the use of a sole cause instruction in a case in which humanitarian negligence was submitted. The use of language similar to that quoted above in instructions submitting humanitarian negligence has repeatedly been approved, and it has been held that it “does not conflict” with a sole cause instruction. Abernathy v. St. Louis Public Service Co., 362 Mo. 214, 240 S.W.2d 914, 915. We think that when such a phrase is used in a humanitarian instruction in a case in which the defendant is authorized to and does submit a sole cause instruction, care should be exercised that the two instructions do not conflict, and the humanitarian instruction should not state that plaintiff’s negligent acts in getting into a position of imminent peril constitute “no defense,” or words to that effect, when those acts on the part of plaintiff are the ones hypothesized by the defendant as constituting the sole cause of plaintiff’s injuries. However, we are not called upon to rule on the correctness of appellant’s verdict-directing instruction, and the use therein of the quoted phrase does not eliminate the prejudicial error of giving defendant’s Instruction No. 7.

Appellant also complains of Instruction No. 6 which in substance is the same as Instruction No. 7, except that it is not prefaced by an abstract statement of law. It submits that appellant was negligent in driving her automobile in front of and in close proximity to respondent’s automobile when she saw or should have seen by keeping a careful and vigilant lookout that there was a danger of collision if she entered the intersection, and that such negligence was the sole cause of appellant’s injuries. For the reasons set forth in Thayer v. Sommer, Mo., 356 S.W.2d 72, and Sheerin v. St. Louis Public Service Company, supra, Instruction No. 6 was erroneous. There is no occasion to rule the alleged error in the admission of certain testimony on cross-examination because upon a new trial that incident probably will not again occur, and in the event it does the parties have the benefit of the views expressed in the briefs.

For the errors above noted the judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Harry W. SIEKERMANN, Appellant.
    No. 49334.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Opinion Modified on Court’s Own Motion April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 8, 1963.
    Second Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Garnet W. Taylor, St. Louis, for appellant.
    Thomas E. Eagleton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

Harry W. Siekermann was charged by information and by a jury found guilty of abortion under § 559.100, and one prior conviction of felony (abortion), and was sentenced to serve a term of 5 years in the custody of the department of corrections. He has appealed from the judgment and sentence.

Prosecutrix, Lee Jane Meyer, mother of four children, testified to the following: suspecting pregnancy since she had never gone so long without menstruation unless pregnant, she went to her local doctor in a small town in central Missouri. A test indicated positive. She was advised she was pregnant. Not desiring to have the child because it would have been “uncomfortable” and “might have to be taken by Caesarean,” but not advised by any physician not to have the child for reasons of health, she went to St. Louis with the intention of effecting an abortion. On Saturday, May 14,- 1960 she went to a laboratory on Lindell Boulevard, where she saw a Dr. James Austin. She told him she came to St. Louis “to find someone to perform an abortion.” During the hour she spent with Dr. Austin he made two telephone calls'in her presence, and told her the price of the operation she was seeking. She had $200 with her at that time. She made an appointment to return to Dr. Austin’s office at 2 p. m. Monday. Over the weekend she arranged to get more money. On Monday afternoon, May 16 she returned to the doctor’s office. He told her to be at the Howard Johnson restaurant in Clayton at 7 o’clock that evening and to wait there until someone drove up in a white Cadillac. She arrived at the restaurant at approximately 6:45 that evening, had a cup of coffee, and when a white Cadillac drove up she went out and opened the door. The driver, a man, asked her if she was Lee Meyer. She said “Yes” and he said “Get in.” After she entered the car he drove to another Howard Johnson’s. restaurant, on South Lindbergh Drive, arriving there approximately half an hour later. During the drive she had a conversation with the man about the purpose of her visit to St. Louis. He said that “there wasn’t anything to it, remarked about different clients that he had from all over the country,” and “mentioned one clergyman’s wife that had come to see him.” He said his nurse was the one whom she was to meet.

When they arrived at the other Howard Johnson restaurant they pulled in, and waited a few moments. The car that was expected was not there so they drove around a while longer, then returned to the restaurant, drove onto the lot and parked. Soon a blue Cadillac drove up and parked some distance from the white Cadillac. The lone occupant of the blue Cadillac was a woman. The man got out of the white Cadillac and went over to the blue Cadillac. He talked to the woman in the blue Cadillac for about 5 minutes. Then he came back to the white Cadillac and got the Meyer woman, who went over to the blue Cadillac. The Meyer woman was introduced to the driver of the blue Cadillac as “Vi.” The man returned to his white Cadillac and drove away, in a northerly direction. Vi and the Meyer woman drove south in the blue Cadillac to a large home located at 1521 South Lindbergh Drive in St. Louis County.

The Meyer woman was taken upstairs to a bedroom, where she undressed and went 'to bed. Vi came in, mentioned the money, and the Meyer woman turned over $1,000 in cash to Vi. Around midnight Vi and another woman, a short heavy-set woman, came into the room. The other woman performed the abortion. She “inserted something in [her] womb, and they said * * * ‘Take a sleeping pill now and go on to sleep.’ ” She was awakened the next morning when served breakfast. She had cramps and stayed in bed. She began to menstruate that day. Late in the morning she passed a clot. After lunch, late in the afternoon, she passed “another substance, the afterbirth is what they said it was.” She remained in the room. About eight o’clock that evening (May 17) police arrived and arrested Viola Waelter and Mary Goolsby. About an hour later the police took the Meyer woman to county hospital. At the hospital she was placed in the hands of a physician who performed a pelvic examination. His diagnosis: an incomplete abortion. Taken to the police station, she saw the man who had driven her around and introduced her to Vi the previous evening and was told by the police that his name was Harry W. Siekermann. She had not seen him since she got in Vi’s car. He was not present and she had not seen him at 1521 South Lindbergh during the 24 hours she spent there. At no time did the Meyer woman hear Vi say anything about a Mr. Siekermann, nor had she heard Dr. Austin mention his name. Police had that house under surveillance for a month prior to May 17. At no time during that period was defendant seen at or near that place.

On May 17 between 7 and 8 p. m. detectives had observed defendant driving a white Cadillac, license No. Z20563, with a woman later identified as the Meyer woman. They saw the Cadillac pull into the parking lot of the Howard Johnson restaurant on South Lindbergh; observed the blue Cadillac park nearby; saw defendant get into the blue Cadillac; saw defendant leave in one direction and followed the blue Cadillac to 1521 South Lindbergh, where it parked; saw the two women enter the house.

Defendant put on no testimony.

These instructions were given:

Instruction No. 1
“The Court instructs the Jury that if you find and believe from the evidence in this case that in the County of St. Louis, State of Missouri, on or about the 17th day of May, 1960, one Lee Jane Meyer was a female person then and there in the state of good health, and if you further find and believe from the evidence, beyond a reasonable doubt, that on or about said date, the defendant in the County of St. Louis, State of Missouri, acting either alone or together with another or others, did wil-fully, unlawfully and feloniously make an assault upon the said Lee Jane Meyer, and did then and there wilfully, unlawfully and feloniously use and employ in and upon the body and womb of the said Lee Jane Meyer a certain instrument or instruments and thrust and force certain rubber tubing or other instruments into the private parts and womb of the said Lee Jane Meyer, with the felonious intent then and there to promote and to produce an abortion upon and to the person of the said Lee Jane Meyer, and if you further find and believe from the evidence, beyond a reasonable doubt, that such abortion was not then and there necessary to preserve life of the said Lee Jane Meyer or that of an unborn child, and, if you find that the use of such rubber tubing or other instruments to produce an abortion was not then and there advised by a duly licensed physician to be necessary for the purpose of preserving the life of the said Lee Jane Meyer or an unborn child, then you will find the defendant guilty of Abortion.
“Feloniously, as used in this Instruction, means wickedly and against the admonition of the law, that is, unlawfully.”
Instruction No. 2
“The Court instructs you that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly, is the act of all and each one so acting. And to make a person equally guilty with others who act together with a common intent in the commission of a crime it is not necessary that all the persons so acting together with a common intent in the commission of a crime be personally present at the commission thereof.
“If a person, though not actually present when a crime is committed, before the commission thereof aids, abets, assists or encourages the commission of same, then such person is equally guilty with the person or persons who actually commit such crime.”

Appellant’s principal point is that the evidence was insufficient to sustain a judgment of conviction. Appellant points to the words “if acting alone” in Instruction 1, and argues that it is admitted that appellant was not present when the operation was performed. Appellant points to the words “if acting together with another or others,” and contends that there is no evidence of a conspiracy.

All persons who act together with a common intent and purpose in the commission of a crime are equally guilty even though they are not personally present at the commission of the offense. State v. Slade, Mo.Sup., 338 S.W.2d 802, and cases cited, 1. c. 806. It was not necessary that the state prove that appellant personally participated in the actual operation which induced the miscarriage.

“[T]he proof of a ‘common criminal purpose, acted upon by the parties,’ is sufficient to show a criminal conspiracy.” State v. Johnson, Mo.Sup., 286 S.W.2d 787, 792. Acting together with a common intent in the commission of a crime is tantamount to a conspiracy. State v. Miller, Mo. Sup., 29 S.W.2d 54, 55 [1],

There is ample evidence of common intent or purpose, or conspiracy, on the part of appellant and the other defendants to commit the crime of abortion, as hereinafter fully developed. In this connection see State v. Ellrich, 10 N.J. 146, 89 A.2d 685, 688.

Appellant makes the closely related point that the instructions failed to submit the issue of conspiracy, and failed to require the finding of a conspiracy before the statements, acts and conduct of others not in the presence of appellant could be used as probative evidence against him. The argument is that appellant was not present, actually or constructively, at the time the crime was committed, and therefore prose-cutrix’ testimony as to the statements, acts and conduct of the others and the inferences to be drawn therefrom before and after she was in the presence of appellant (i. e., in the doctor’s office and while in Vi’s charge) could not be considered in evidence against appellant, unless and until there was proof of a conspiracy between appellant and the others to criminally abort prose-cutrix; that the court should have first determined whether there was evidence of conspiracy, and the jury should have been instructed first to find the existence of such conspiracy before the statements, acts and conduct of the co-conspirators outside appellant’s presence could be considered against him.

Appellant was charged jointly with Viola Waechter and Mary Goolsby with abortion. He took a severance. When prosecutrix’ testimony as to statements, acts and conduct of the co-conspirators was offered appellant made no objection to its admission. At the close of the evidence appellant made no request for an instruction requiring the finding of the existence of a conspiracy before the jury could consider the statements and acts of the co-conspirators, outside appellant’s presence, against him. The case was submitted on the theory of the joint action of appellant and the others, acting with a common intent in the commission of the crime.

On this record there is no error. The instructions submitted the issue of conspiracy. Instruction 1 required the jury to find that appellant “acting * * * together with another or others” did the acts hypothesized. Instruction 1, read in conjunction with Instruction 2, required the jury to find as a necessary prerequisite to a verdict of guilty a common intent and purpose (or concert of action) between appellant and those who actually inserted the instruments of abortion into the body of prosecutrix. State v. Washington, Mo.Sup., 364 S.W.2d 572, 576 [9].

While the instructions did not require the jury to find the existence of a conspiracy from evidence other than the acts and statements of the co-conspirators before it could consider such acts and statements, not made in the presence of appellant, as evidence against him, this was not error in this case. Instructions of this nature are cautionary, State v. Baldwin, Mo.Sup., 358 S.W.2d 18, 29, and cautionary instructions are not required to be given as a part of the law of the case in the absence of a request therefor, but are to be given or not in the discretion of the court. State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 11 [23].

Cases cited by appellant, State v. Kennedy, 177 Mo. 98, 75 S.W. 979, and State v. Darling, 199 Mo. 168, 97 S.W. 592, do not require a reversal of the judgment on the instant record. In Kennedy, tried on the theory that there was a conspiracy to commit murder, counsel for defendant objected to the statements of the co-conspirators when offered in evidence, on the ground that no conspiracy had been proved. In ruling the objection the court of its own volition announced from the bench that the question whether a conspiracy is proven or not is a question of fact the jury has to decide. Yet the court ignored this theory of the case in the instructions, which said nothing about conspiracy, and thus “usurped the province of the jury in that regard.” In this situation it was held unnecessary for defendant to ask the court to instruct on the question of conspiracy, or call attention to its failure to do so, “because it cannot, under such circumstances, be presumed that it was an oversight that it did not do so”; that under such circumstances it was error not to so instruct the jury. In Darling, the judgment of conviction was reversed not for failure to so instruct, but for failure to give an instruction on manslaughter in the fourth degree. The question of conspiracy was not submitted to the jury, and in passing the court observed that whether a con spiracy in fact existed should have been submitted to the jury by proper instructions, “and unless they believe from the evidence that such a conspiracy did exist all statements made by either or both [co-conspirators] not in defendant’s presence tending to show a mutual understanding between them to assault the deceased should have been excluded from their consideration in passing upon the guilt or innocence of the defendant.” Darling does not, however, brand the failure to so instruct as reversible error.

Appellant claims that prosecutrix’ testimony as to the acts, conversation and conduct of appellant while in her presence, together with the reasonable inferences to be drawn therefrom, is insufficient to sustain a conviction; that her testimony shows no intent on appellant’s part to promote an abortion and the use of an instrument with that intent; that the gravamen of the charge is the intent with which the instruments are used.

Appellant’s acts, conduct and conversation during and at the conclusion of prose-cutrix’ ride in the white Cadillac, considered in connection with the evidence of what transpired before and after that interval, forge a strong link in the chain of guilt which stretches from the office in which prosecutrix informed the doctor of her purpose in coming to St. Louis, to the room in the house of abortion on South Lindbergh Drive where “the other woman,” in the presence of Vi, performed the criminal act. Obviously appellant had been in contact with the doctor to whom prose-cutrix resorted seeking an abortion; knew the purpose of picking up the Meyer woman; knew whom to expect and when and where to make contact with her; called her by mame and invited her into his automobile ; demonstrated his complicity by referring to the scope of his “clientele”; reassured his victim in a manner calculated to assuage any fear of the operation, and transported, delivered and introduced her into the hands of his “nurse,” who turned out to be the operator of a house of abortion. What appellant did and said, taken in connection with the other evidence in the case, is strong circumstantial evidence that he entertained a criminal intent to accomplish an abortion, and that he aided, abetted, assisted and encouraged the principals in the first degree in the commission of the crime. It was not necessary to show that appellant personally introduced the instrumentality into the body of the prose-cutrix.

Appellant complains that the jury was given no definition of the word “intent” as thus used in Instruction No. 1: “ * * * with the felonious intent then and there to promote and to produce an abortion * * The word “intent” is a word in common use. Words that are in common use need not be defined. State v. Gridley, Mo.Sup., 353 S.W.2d 705, 707. The descriptive word “felonious,” which was defined as meaning “wickedly and against the admonition of the law, that is, unlawfully,” modified the word “intent.” The instruction was sufficient for the jury to understand what was meant by the word “intent.”

Appellant further objects to the failure of the court, on request, to define the terms “aid” and “abet,” claiming they are legal, not common, terms and therefore require explanation; that “aid” does not imply guilty knowledge or felonious intent, whereas “abet” includes knowledge of the wrongful purpose and implies presence, either actual or constructive; that failure to define these terms resulted in misdirection by not informing the jury that “ ‘a mere knowledge that a crime is about to be committed, or a mental approbation of what is done while the will contributes nothing to the doing, will not create guilt.’ ” There was no error in failing to define “aid” and “abet.” In State v. Present, Mo.Sup., 344 S.W.2d 9, the use of words less favorable to the defendant than these (“did in any way help, aid, and assist”) was upheld as against the contention that the court should have specified what aiding and helping would have been sufficient and that the “indiscriminate” term employed left the jury to speculate and supply its own ideas as to what constituted aiding. Failure to define “abet” did not eliminate the necessity of finding knowledge on appellant’s part of the wrongful purpose because the jury, before it could convict, was required by the instructions to find that appellant, acting jointly together with others in a common intent to commit a crime, wilfully, feloniously, wickedly and unlawfully, made the assault with felonious intent. A requirement of these findings necessarily involved a finding of knowledge of wrongful purpose. Appellant was not deprived of the defense that mere knowledge that a crime is about to be committed or mental approval without overt act will not create guilt. He could have, but did not, request such an instruction. See State v. Present, supra, 344 S.W.2d, l. c. 12 [4] for an application of this rule in connection with a similar contention.

Appellant complains that in the course of the testimony of two detectives it was developed that they had seen Harry Siekermann on many occasions, numerous occasions, ten or twelve occasions, prior to the time they observed him on May 16, 1960. They had testified that they observed Siekermann drive his white Cadillac into the parking area of the restaurant on South Lindbergh Drive and watched him transfer the Meyer woman from his car to the blue Cadillac. The objection is that testimony of police officers that they had seem him on numerous previous occasions caused the jury to infer that the officers had had previous dealings with defendant in their official capacity; that he had a police record, and thus the state improperly placed the defendant’s character in issue. Such inferences would be unwarranted from the mere fact the detectives had seen appellant often. This assignment is quite similar to that made in State v. Pitchford, Mo.Sup., 324 S.W.2d. 684, 688, where two police officers testified that they had known defendant prior to the time of arrest. What we said there is applicable here: “It is well known that most police officers have a wide acquaintance among the citizenry in general and the fact that a person is known to a police officer does not necessarily convey the impression that he has a criminal record.” The evidence was ■clearly admissible on the question of the identification of appellant.

Appellant suggests error in admitting in evidence Exhibits 1-26 and having the jury walk by and inspect Exhibits 7-26, on the ground that they were highly prejudicial to appellant and induced the jury to believe he was identified with them, although there was no connection between these articles and appellant. Exhibits 1-6 were photographs of the house at 1521 South Lindbergh Drive. Since defendant’s counsel stated at the trial that he had no objection to the admission of Exhibits 1-6 in evidence, the question of their admissibility has not been preserved. Exhibits 7-26 were surgical instruments, including forceps, surgical gauze, face mask, medical disposable panty pads, rubber douche ensemble, tablets and pills, stainless steel metal syringes with liquid, hot water bottle, rubber sheets, white linen cloths and a plastic squeeze bottle. These articles were found by the officers in the house at 1521 South Lindbergh Drive on the evening of May 16, after they arrested Vi and the other woman. Some of the surgical instruments were of the type used in cases of incomplete abortions. Some of the drugs were the type used to make the womb contract, or to control bleeding in case of miscarriages, or to suppress the production of milk in pregnant women. Exhibits 7-26 would all be useful and valuable in the performance of abortions.

Demonstrative evidence which shows motive, malice, intent, knowledge or preparation for the commission of a crime, or which tends to establish the crime charged, connect the accused with the offense, explain the intention of the accused, give the jury a more accurate impression of the facts, or throw any relevant light upon any material matter, is admissible in evidence, State v. Evans, Mo.Sup., 237 S.W.2d 149, 151, if it meets the tests of relevancy, materiality, probative force and reasons of policy in the administration of justice, State v. Miller, 364 Mo. 320, 261 S.W.2d 103, and authorities cited, l. c. 107 [4], and if the physical objects sought to be submitted to the senses of the jury are identified as connected with the defense or with the defendant. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294.

Exhibits 7-26 were admissible in evidence, and there was no error in allowing the jury to view them, under these rules and tests. In order to establish appellant’s guilt as an accessory before the fact on the theory of joint action of defendants acting together with a common intent in the commission of a crime the burden was on the state to prove that the principals committed the crime. 22 C.J.S. Criminal Law, § 90, p. 269. Apparatus, instruments, supplies and paraphernalia suitable for the performance of abortions, of the type and kind which could have been employed in the operation on prosecutrix, found in the possession of the persons identified by prosecutrix as the principal abortionists, at the residence where and within 24 hours after the time the operation on prosecutrix was performed, constitute evidence that the principals were equipped and prepared to perform procedures such as that described, People v. Vosburg, 123 Cal.App.2d 535, 266 P.2d 927, and evidence an unlawful intent and criminal purpose on the part of the principals. People v. Bowlby, 135 Cal.App.2d 519, 287 P.2d 547 [6], 53 A.L.R.2d 1147.

Appellant objects that there is no proof that he was ever seen at that address or that he had ever seen these exhibits. This is immaterial. If appellant sent prose-cutrix to a place fully stocked with the apparatus, supplies and paraphernalia necessary for the commission of the crime of abortion, and staffed with personnel ready and waiting- to employ these instrumentalities on her, with full knowledge on the part of appellant of the purpose of the trip and felonious intent to consummate the deed, it would make no difference that appellant was not physically present on the premises before or during the doing of the criminal act, or that he had never seen the exhibits.

Finally, appellant claims error in not declaring a mistrial when the prosecuting attorney commented on the failure of defendant to testify. Counsel for the state, Mr. McSweeney, said:

“Now, let us stop right there because that is about the extent of the evidence. The State’s evidence stands uncontra-dicted in this case. When the State had concluded its case, the defense was free to offer any evidence it chose.
“Mr. Shaw: Object to that and ask the jury be discharged and a mistrial declared, your Honor.
“The Court: Overruled; denied.
“Mr. McSweeney: The defense was free to offer—
“Mr. Shaw: Your Honor—
“Mr. McSweeney: —any evidence, it chose.
“Mr. Shaw: Same objection.
“The Court: Same ruling.
“Mr. McSweeney: But none was forthcoming.
“Mr. Shaw: Same objection. Ask the jury be discharged and a mistrial declared.
“The Court: Same ruling.
“Mr. McSweeney: You can view this case as the scales of justice as far as the evidence is concerned, the-State’s on one side, nothing on the side-of the defense.
“Mr. Shaw: Same objection. Ask the jury be discharged and a mistrial declared for an improper comment on the failure of the defendant to testify.
“The Court: Same ruling, both of them.”

Appellant urges that this called the attention of the jury to the fact that defendant did not testify, and that there was a demonstration on the record before the jury, but there was no affirmative action by the court to stop, correct or withdraw any of the statements.

Defendant did not testify, and did not introduce any evidence of any kind.

We find no error in the action of the court,, or in the argument of the prosecutor. His comments relate to the weight of the evidence, and not to the failure of accused to testify. The decided cases uphold arguments of this kind as against this objection. The following arguments have been held not to constitute a comment on the failure of defendant to testify: “[A]nd what’s on his side of the scale — empty,” State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, 662 [5]; “ * * * you can view the evidence in this case as you view the scales of justice themselves. On one side is the State’s evidence, not contradicted. And what is on the defense side ? It is empty,” State v. Hite, Mo.Sup., 298 S.W.2d 411, 413 [3] ; “When the State closed the evidence, what did the defense offer? They offered no evidence at all,” State v. Hayzlett, Mo.Sup., 265 S.W.2d 321, 323, 324 [3-6]; “Now, there hasn’t been one bit of evidence here to refute what any of these people said,” State v. Murray, Mo.Sup., 280 S.W.2d 809, 811 [4] ; “The defendant knows about things you don’t know about. * * * He had as full an opportunity as we did to produce evidence,” State v. Romprey, Mo.Sup. (en banc), 339 S.W.2d 746, 755 [25].

The judgment is affirmed.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

The foregoing opinion by HOUSER, C., i's adopted as the opinion of the court.

All of the Judges of the Division concur and HUNTER, Special Judge, concurs.


author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lemuel A. WELLS, III, Appellant.
    No. 49697.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.

      Charles M. Shaw, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   BOHLING, Commissioner.

Lemuel A. Wells, III, appeals from a judgment imposing a sentence of six months in the county jail and a fine of $500 for carnally knowing an unmarried female, of previously chaste character, between the ages of sixteen and eighteen years, a designated felony. § 559.300. (Statutory references are to RSMo 1959 and V.A.M.S.) Defendant on this appeal presents issues with respect to the information; the endorsement of the names of witnesses thereon, the admission of certain testimony, statements of the prosecuting attorney, the instructions, and the court’s conduct of the trial.

Prosecutrix and defendant graduated in 1961 from the Bowling Green High School. They started dating in October, 1960. On December 18, after about twenty-five dates, they exchanged class rings and started “going steady.” On the evening of February 11, 1961, defendant took prosecutrix in his father’s automobile to a picture show in Louisiana and afterward to Bowling Green, where three or four young persons joined them. Defendant had some whiskey in his car, and he procured some soda and mixed drinks for all of them. Prosecutrix consented to drink some whiskey and drank the drink defendant prepared for her. This was the first time she had drunk whiskey. Defendant then put the bottle of whiskey under the driver’s seat, and he drove them around town for a while. Prosecutrix testified she felt tired and weak and the lights seemed to move around. Later, the others returned to their automobiles, leaving pros-ecutrix and defendant in defendant’s car. Defendant started to take prosecutrix home. She lived with her parents about five miles northeast of Bowling Green, in Pike County, Missouri. Defendant turned off on a side road a short distance before reaching pros-ecutrix’ home and parked his car. It was between 11 and 12 o’clock. He asked pros-ecutrix if she wanted some more liquor, and she took two drinks with defendant tipping the bottle. She does not remember his drinking anything at this time. Pros-ecutrix testified she felt tired and sleepy. Defendant took prosecutrix’ skirt off, saying it would get wrinkled, and also her pants or stepins. He started kissing her and had intercourse with her. His private parts entered her private parts. Defendant then put prosecutrix’ pants and skirt back on, and had her get out of the car and walk up and down the road, saying he could not take her home in the condition she was in. She said her knees were real weak and “finally” she could not walk any more. He later took her home. The State introduced in evidence notes written by defendant to prosecutrix offering to pay for getting rid of “it,” stating prosecutrix had promised to “take care of it” so they would not have to get married, and directing prosecutrix to attempt to place the blame on another person ■therein named..

Prosecutrix testified she had never had sexual intercourse before with defendant or anyone else and that she had .never married. Prosecutrix at the time involved was seventeen and defendant was eighteen years old. There was also testimony that pros-ecutrix was a girl of good moral character. A number of witnesses testified that defendant had a good reputation for truthfulness, honesty and morality.

Any additional facts necessary to rule the issues presented will be developed later.

The information presented three counts. At the close of the State’s case defendant filed motions for judgments of acquittal as to all counts. Said motions were sustained as to Counts I (seduction under promise of marriage' — § 559.310) and III (rape, victim drugged — § 559.270), but overruled as to Count II, based on § 559.300. Said section provides, so far as material: “If any person over the age of seventeen years shall have carnal knowledge of any unmarried female, of previously chaste character, between the age of sixteen and eighteen years of age, he shall be deemed guilty of a felony *

The information appears to have been drafted on a printed form. It is not a model and is not to be recommended. However, it does charge that defendant did “then and there with specific and criminal intent fraudulently, knowingly, maliciously, unlawfully, wrongfully, willfully, on purpose, deliberately, premeditatedly, feloniously, and of malice aforethought” commit the offense, and it is not subject to the complaint first appearing in defendant’s motion for new trial that the information failed to charge the act was “unlawfully and felo-niously” committed. The record shows that defendant was fully informed of the offense for which he was on trial.

The offense under § 559.300 may be committed with or without force or with or without the consent of the female. State v. Volz, 269 Mo. 194, 190 S.W. 307[2], We doubt if an attempted point in defendant’s motion for new trial is sufficiently specific to preserve for review any ground upon which to rule that, the State failed to make a submissible case; .but, the. issue needs no expansion beyond our statement .of the facts to demonstrate that any such point is without merit.

During the progress of the trial the State asked leave to substitute the name of Dr. Robert Brooks for that of Dr. J. C. Steele as a witness on the information, the record indicating that Dr. Steele was not and Dr. Brooks was a local physician and Dr. Brooks’ testimony would be limited to the period of gestation, its norm and variances. Defendant objected to this substitution with the broad statement defendant was relying on the testimony of Dr. Steele. The court saw nothing prejudicial to defendant in allowing the substitution of witnesses. We stated in State v. Thost, Mo., 328 S.W.2d 36, 38[4]: “Trial courts have considerable discretion in permitting the endorsement of the names of additional witnesses upon an indictment or information; and a finding of reversible error in the absence of substantial prejudice is not justified where no affidavit of surprise or application for a continuance is filed.” This sufficiently covers the situation disclosed by this record. In addition, defendant was entitled to compulsory process to secure the attendance of witnesses. The State is not compelled to call all whose names are endorsed on an information. It is sufficient if the State’s case is sustained by substantial evidence. The defendant is not entitled to direct the trial of the State’s case. State v. Parr, 296 Mo. 406, 246 S.W. 903, 907[11], and case cited.

Early in the trial defendant objected to the presence in the courtroom of a baby that was crying. The court stated it would have the child removed if it continued to make any sort of a noise. A short time latér the court, without further suggestion, directed that the baby that was crying be removed from the courtroom. At one place in the record defendant’s counsel made the statement (which did not prove itself) that pros-ecutrix was standing and rocking her baby and asked that she be excluded. The girl started to leave the courtroom but the court refused to order her excluded, and directed her to find a seat and be seated. In State v. Fogg, 206 Mo. 696, 105 S.W. 618, 621(II), a seduction under promise of marriage case, we stated we were unwilling to hold that reversible error occurred because the mother had the child in the courtroom while she was testifying; and deferred to the ruling of the trial court to the effect that prejudicial error had not occurred. We perceive of no reason for reaching a different result under this record.

Prosecutrix testified that she bore a child on November 15, 1961. When she was asked whether this child was “a result of this intercourse with” defendant, defendant objected on the ground this was repetitious. The objection being overruled, he objected further on the ground the answer invaded the province of the jury, and that this was immaterial and irrelevant because the case was not a paternity action. Prose-cutrix answered that the child was a result “of this intercourse with” defendant. The birth of a child is evidence of intercourse and, in this case, established the commission of the crime charged by some one. State v. Miller, 263 Mo. 326, 172 S.W. 385, 388[3], In State v. Palmberg, 199 Mo. 233, 253, 97 S.W. 566, 572 (reversed on other grounds), we said: “* * * [W]e are of the opinion that the prosecuting witness had the right to testify that she became pregnant and gave birth to a child as a result of the intercourse she referred to, and, if she has the child in the courtroom, we see no impropriety nor valid objection to her pointing it out and saying ‘[t]hat is the child I gave birth to as the result of such intercourse.’ ” The Fogg, Miller, Palmberg and other authorities stand approved in State v. Johnson, 361 Mo. 214, 234 S.W.2d 219, 220 [1,2]. Competent evidence does not become inadmissible because it is prejudicial to an adversary.

The trial court ruled correctly.

Defendant claims the court erred in denying his oral request for an instruction on the meaning of previously chaste character. An ordinary intelligent juror would understand that the phrase referred to a female who had never indulged in an act of sexual intercourse. Such was the evidence of record. In the circumstances it was not necessary that the phrase be defined. Consult State v. Gridley, Mo., 353 S.W.2d 705, 707[6], speaking to the word “accomplice.”

Defendant asserts the court committed prejudicial error in not giving an instruction defining the word “felony”; and that the court’s definition of the charge against defendant was prejudicial because it “did not include the word ‘felony’” or “the words ‘unlawfully and feloniously,’ ” or explain “what was meant by ‘feloniously.’ ” Defendant’s assertion that “unlawfully” is not used in the State’s main instruction is refuted by the instruction, which required a finding, in part, that defendant “did unlawfully have carnal knowledge of” prosecutrix.

“ ‘The word “feloniously” is but descriptive of the grade of the offense, and need not be used, or, if used, need not be explained, in an instruction.’ ” State v. Hillebrand, 285 Mo. 290, 225 S.W. 1006, 1007[1], quoting State v. Scott, 109 Mo. 226[5], 19 S.W. 89. Consult also State v. Carolla, 316 Mo. 213, 292 S.W. 721, 727[8]; State v. Rader, 262 Mo. 117, 171 S.W. 46, 50. Section 559.300 finds its origin in the English statute of 18 Eliz., c. 7. All the constitutive elements of the offense at common law are set out in the statute; and all the elements óf the offense were fully submitted to the jury in the State’s main instruction. In State v. Worden, 331 Mo. 566, 56 S.W.2d 595, 598[6], a rape case, we said: “Complaint is made of instruction 2 on the ground that it does not require the jury to find that the act of defendant was unlawfully and feloniously committed. It is not required that an instruction should find that the offense charged was committed feloni-ously, where the acts which the instruction does require the jury to find constitute a felony. [Citing authority.]” Consult also State v. Cottengim, Mo., 12 S.W.2d 53, 57[8]; State v. Hall, Mo., 7 S.W.2d 1001, 1005 [9, 10]; State v. Baker, 264 Mo. 339, 175 S.W. 64, 68[6].

Defendant’s contentions are not well taken.

During the argument of the case the prosecuting attorney remarked that perhaps, he had not tried the case as well as it should! have been tried, but “that a lawyer as good as Charles Shaw, had there been other evidence on his behalf, he would have produced; that here.” The prosecutor was arguing the strength of the State’s case on the record made and we perceive of nothing in the statement that should shift the burden of proof from where the instructions of the court placed that burden — -the objection interposed by defendant. We find no abuse of that discretion resting in a trial court in passing upon this argument of counsel to a jury. State v. Green, Mo., 292 S.W.2d 283, 288[10].

The prosecuting attorney also-stated in argument that nature had found' the prosecutrix guilty; that she was paying the penalty; and that the defendant, not the prosecutrix, was the one on trial; and: “If a Circuit Court jury does not take a stand’ against the things we believe are wrong ini our society, that is just one more step in the-wrong direction. If this jury does not convict this man, then they are saying ‘oh well, that is a thing that happens, we approve of this sort of thing, we will just let him go.’ ”■ Defendant objected, in that an acquittal would be saying that defendant did not commit the offense and would not be an approval of the crime. The court agreed with defendant’s construction of a verdict of acquittal, but overruled the objection. Defendant’s-motion for new trial asserts the court committed error in failing to declare a mistrial and to discharge the jury; but we find no-such requests of record. Granting a mistrial for intemperate oral argument rests-largely within the discretion of the trial court. State v. Kelton, Mo., 299 S.W.2d 493[5]. The record indicates the prosecuting attorney was basing his remarks on his view that the evidence in the case established defendant’s guilt beyond all doubt, and in such circumstances it was proper for him to urge the jury to do its duty and to argue that an acquittal would be a reflection upon the jury under the evidence in the record. State v. McBride, Mo., 231 S.W. 592, 594[5]; State v. Smith, 313 Mo. 71, 281 S.W. 35, 40[17]; State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 [7, 8], Unsound arguments based upon facts of record have been considered not ground for reprimand or error. State v. Wright, 319 Mo. 46, 4 S.W.2d 456, 458[10]; State v. Murray, 316 Mo. 31, 292 S.W. 434, 437[11].

Our examination of the matters we inquire into of our own accord discloses and we find no reversible error of record.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: RUARK, Presiding Judge.

text:
    Glen ANDERSON and Edith Anderson, his wife, Plaintiffs-Respondents, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Defendant-Appellant.
    No. 8200.
    Springfield Court of Appeals. Missouri.
    May 1, 1963.

      Ward & Reeves, Caruthersville, for defendant-appellant.
    Richard D. Moore, Green & Green, H. D. Green, West Plains, for plaintiffs-respondents.
   RUARK, Presiding Judge.

Fire, that scourge of the Ozark woodlands, destroyed approximately one hundred ten acres of pine and oak belonging to plaintiffs Anderson. They sued the St. Louis-San Francisco Railway Company (Frisco for short) under R.S.Mo. 1949, § 537.380, V.A.M.S., and secured judgment. Frisco has appealed. The sole contention of the appellant is that defendant’s motion for verdict should have been sustained because the proof did not justify submission of the case.

Plaintiffs own five hundred twenty-five acres in Howell County about five miles Northwest of Willow Springs. The Frisco right of way “splits” this land. The stretch of railroad extending from Willow Springs northwest to Sterling (which is a quarter mile Southeast of plaintiffs’ home) ascends “about three hundred feet.” It is “the steepest grade on the Frisco.” The right of way was covered with a year’s growth of dry grass and weeds and other vegetation. On February 4, 1962, the weather was warm and extremely dry. As one witness described it, it was “shirt-sleeve” weather. A strong or “gusty” wind blew from the Southwest. At about one-forty-five in the afternoon a freight train with five diesel locomotives pulling it came up the grade from Willow Springs and passed through plaintiffs’ place on the way to Ca-bool. As this train passed “the overhead bridge” some three miles Southeast of Sterling, it was progressing slowly. The engines were “laboring.” At Sterling (next to plaintiffs’ place) they were “pulling heavy.” Immediately after the train passed the overhead bridge, fire was discovered on the right of way on the Northeast side of the track. Shortly thereafter one and possibly two (the evidence is not very definite) other fires were seen on the right of way in the three-mile stretch between the overhead bridge and Sterling. A witness who lived on the Northeast side of the right of way at Sterling saw the diesel-powered freight train pass. “ * * * about the time the train — just before the caboose came around where I was sitting, I looked down and saw the fire.” Plaintiffs Anderson had been fishing at a lake one-quarter mile Northwest of their house. While so fishing Glen Anderson heard a train pass. He thought it was going Southeast. Shortly thereafter the Andersons returned to their home. They discovered a fire on the right of way. It was “right on top of the grade at what is known as Sterling and coming toward my house.” The timber which was destroyed was on the Northwest or lee side of the right of way, as were at least two other fires in the three-mile distance heretofore referred to.

There is no evidence of the existence of any fire, or cause of fire, along this area prior to the passage of the train. There was no evidence as to any sparks from the engines having been seen that afternoon; but two witnesses testified to having noticed sparks from the Frisco’s diesel engines on that grade at night. Plaintiff said he had seen them “quite often.”

In cases under this statute the plaintiffs are bound to prove not only that the fire came from one of the defendant’s trains, but that it was caused by a locomotive and was not a fire which escaped from some other part of the train. Waddell v. Chicago & A. R. Co., 146 Mo.App. 604, 124 S.W. 588, 590. But the law does not reqúire that plaintiff prove the source of the fire by eyewitnesses whose sight follows the spark from the engine to the “burnables.” The origin of the fire may be shown by proof of circumstances. In no two cases of this character are the circumstances exactly alike, and the decision must turn on the particular facts in each case. Smith v. St. Louis-San Francisco Ry. Co., Mo.App., 214 S.W.2d 443, 445.

What are the circumstances here? Extremely dry and warm weather — -a year’s growth of dead vegetation on the right of way — a strong wind from the Southwest —a steep grade — five diesel locomotives pulling a freight train, laboring up the grade — diesels which had been observed throwing or emitting sparks on this particular stretch of road before- — no evidence of any fires or cause for fires before the train passed — at least three fires upon the right of way within a distance of three miles discovered immediately, or shortly after, the train’s passing — the fires burning on the right of way on the Northeast side of the tracks.

There are many statements and definitions in reference to the quantum and character of proof necessary to make a submissible case by proof of circumstances. It is said that the proof must be such as to exclude any other reasonable conclusion or that it have a tendency to so exclude any other reasonable conclusion. If the facts justify a reasonable inference and make it “improbable” or “not reasonably probable” that the fire could have been caused any other way than as plaintiff claims, it is sufficient. It should be found that the locomotives of defendant were the only “probable” means of communication (Jasper v. Wabash R. Co., Mo. App., 24 S.W.2d 243), or that there was a “reasonable possibility” and such source was the “most probable.” Frame v. Kansas City, C. & S. R. Co., Mo.App., 209 S.W. 314, 318. All cases agree that the showing of circumstances must be such as indicates to reasonable minds the cause and source of the fire, not leaving it to mere conjecture or speculation, and must be sufficiently strong and complete to reasonably eliminate the “probability” of any other source or cause (Miller v. Sabinske, Mo.App., 322 S.W.2d 941); and that the proof must make the locomotive the “probable” cause and must be sufficient to make reasonable men believe the fire did so originate. It is not sufficient that it might have so originated (Motley v. Wabash R. Co., Mo.App., 234 S.W.2d 321), and it is held that the defendant is entitled to an instruction that it is not enough that the jury find simply it is “more probable” that the fire could have come from one cause than from another. They must find it as a fact. But the mere "possibility” that a thing could have happened in another way is not sufficient to destroy a reasonable inference as to how it did occur. Kelley v. Wabash R. Co., 151 Mo.App. 307, 131 S.W. 718. Circumstantial evidence need not have the quality of absolute certainty. Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292(8). Statements which appeal to the writer are that the circumstances must be consistent and point in a substantial way to prove the occurrence. They must be such as to justify ¿ reasonable inference of the fact. In this connection it is proper to consider the “probability” or “improbability” of its having come from other causes. We think all of these statements convey in composite a clear and definite idea which is impossible to put into exact and limiting words because of the inadequacy of the linguistic tools with which we work.

Note that running through all rules and definitions is the word “reasonable,” and connected with it in most of them are the words “probable” and “improbable.” Some dictionary definitions of “reasonable” are: rational; just; fair-minded; proper; sensible; probable; sane; moderate. The word, as applied to any set of circumstances, has an elastic meaning, depending greatly upon the position and viewpoint of the one who utters it and the one who interprets it. Thus, when it was said in David Harum that “A reasonable number of fleas is good fer a dog — ”, we doubt that the viewpoint of the dog was considered. Is any deduction which we as an appellate court make from a series of circumstances apt to be any more “reasonable” than the composite and shared judgment of twelve men of varied experience and viewpoint when acting under given instructions as to the law ? ■ We doubt it. We think we are limited in our consideration to determining whether there was “substantial evidence” and, if there was such, our authority is exhausted.

The forceful argument of appellant suggests that there are no diesel engine fire cases in Missouri. The implication is that it is “unreasonable” to attribute sparks to one of the diesel locomotives. We cannot constitute ourselves a board of master mechanics and say that a diesel will, or will not, throw sparks. All we know is that witnesses testified they had seen sparks from them on this particular grade. As to the suggestion that the fire might have come from a hot box instead of one of the engines, the fact that it “might” have is a possibility, not a probability. In any event, we would think that the existence of a hot box would be a matter peculiarly within the knowledge of the appellant, and no hot box is shown. Besides hot boxes, we can think of a great many other “possibilities” (for instance concentration of the rays of the sun by pieces of broken beer bottles scattered along the right of way). But these are simply “possibilities” and not “probabilities” and the jury had the right to select the cause which seemed to them the probable one and discard all other mere “possibilities.” When the jury has arrived at the conclusion that, as a fact, the fire was set by one of defendant’s locomotives, it is not important that the evidence does not single out which engine was the offender. Jasper v. Wabash R. Co., supra, Mo.App., 24 S.W.2d 243, 246.

We believe that the plaintiff produced substantial evidence; and, the jury having interpreted the evidence and found as a fact that one of the appellant’s engines caused the fire, the judgment based on such verdict should be and is affirmed. Because of such affirmance it is unnecessary to pass upon the various questions raised by the respondents, and the motion to dismiss is overruled.

STONE, J., concurs.

HOGAN, J., not sitting.

      . R.S.Mo.1949, § 537.380, Y.A.M.S., Anno. Notes 13 through 18; Cases collected in West’s Missouri Digest, Railroads, <⅜=482 (2), 484; Tate v. St. Louis & S. W. R. Co., 201 Mo.App. 212, 209 S.W. 978, 980; Gaddy v. Kurn, Mo.App., 187 S.W.2d 858, 859.

      . Clark v. St. Louis S. F. R. Co., Mo.App., 4 S.W.2d 843; Riggins v. Missouri Pac. R. Co., 208 Mo.App. 26, 233 S.W. 67; Redman v. Chicago, R. I. & P. R. Co., Mo.App., 278 S.W. 95; Cole v. Kansas City Southern R. Co., Mo.App., 268 S.W. 886.

      . Fritz v. St. Louis, I. M. & S. R. Co., 243 Mo. 62, 148 S.W. 74; see Dugan v. Rippee, Mo.App., 278 S.W.2d 812, 815-816; Wise v. Standard Oil Co. of Ind., Mo.App., 198 S.W.2d 1014, 1018.

      . Jones v. Chicago, M. & St. P. R. Co., Mo.App., 204 S.W. 192; Hudspeth v. St. Louis & S. F. R. Co., 172 Mo.App. 579, 155 S.W. 868; see Brooks v. Missouri Pac. R. Co., 98 Mo.App. 166, 71 S.W. 1083.

      . Missouri Egg & Poultry Co. v. Missouri Pac. R. Co., Mo., 257 S.W. 477; Farmers’ Elevator & Grain Co. v. Hines, 294 Mo. 639, 243 S.W. 140; Butcher v. St. Louis-San Francisco R. Co., 225 Mo.App. 749, 39 S.W.2d 1066, 1068; Taylor v. Lusk, 194 Mo.App. 133, 187 S.W. 87; see Springfield Fire & Marine Ins. Co. v. Lusk, 205 Mo.App. 185, 223 S.W. 804, 809.

      . Young v. Hines, Mo.App., 229 S.W. 417, 419; Foster v. Missouri Pac. R. Co., 143 Mo.App. 547, 128 S.W. 36.

      . Webster’s New International Dictionary (2nd Edition); Funk & Wagnalls New Standard Dictionary of the English Language; Shorter Oxford English Dictionary.

      . For some discussion of that subject see Peck Iron & Metal Co. v. Seaboard Air Line R. Co., 200 Va. 698, 107 S.E.2d 421. As to oil burners see Texas and P. Ry. Co. v. Brandon, C.C.A.Tex., 183 S.W.2d 212.


author: SMITH, Justice.

text:
    T. M. SMITH, Petitioner, v. Frank A. LIDDELL et al., Respondent.
    No. A-8794.
    Supreme Court of Texas.
    May 1, 1963.
    Rehearing Denied May 29, 1963.
    Davis, Kee & Thomas, Angleton, for petitioner.
    Liddell, Austin, Dawson & Huggins, Charles R. Vickery, Jr., Walter Morgan, Houston, for respondent.
   SMITH, Justice.

On June 19, 1956, the .respondents, Frank A. Liddell and The National Bank of Commerce, filed this suit against the petitioner, T. M. Smith and the Humble Oil and Refining Company, seeking to establish ownership of royalty in certain lands situated in Brazoria County, Texas.

The case was tried by the court before a jury, and special issues were submitted. The court received the verdict of the jury, but found that the jury findings were of no legal significance. Judgment was rendered for Smith. The Court of Civil Appeals reversed said judgment, and the case was remanded to the trial court with instructions to render judgment for Liddell. Tex.Civ.App., 351 S.W.2d 335. Throughout this opinion we designate the petitioner as Smith and the respondents as Liddell. The issues to be decided are drawn between Liddell and Smith. Humble is not an adversary party to this appeal.

The pertinent facts are these: On August 30, 1933, Smith owned undivided interests in many tracts of land located in numerous surveys in Brazoria and Mata-gorda County, Texas. Two of these tracts are involved in this law suit. One is a tract of 152.11 acres and the other is a tract of 71.446 acres. These tracts, as shown below, were later included in an oil and gas lease to Humble. On the date last above mentioned, Smith was indebted to several banks, including the respondent, The National Bank of Commerce. In order to secure the payment of his indebtedness to his creditors, Smith conveyed an undivided ¾4 interest in and to the oil, gas and other minerals in some of the tracts he owned to H. B. Finch, trustee. Included in this conveyance from Smith to Finch was an undivided ¼ interest in the 152.11 acres, but such conveyance did not describe or convey any interest in the 71.446 acres out of the Daniel McNeel and Gray and Moore suiveys situated in Brazoria County. In this trust deed Smith expressly reserved all executive rights. The trust was terminated as evidenced by a written termination agreement dated March 14, 1941, between P. C. Rehrauer, successor trustee, to H. B. Finch and Smith. The trust deed and the termination agreement were introduced in evidence.

On December 30, 1933, Smith, joined with various of his relatives, who owned undivided interests in the Daniel McNeel and Gray and Moore surveys, in the execution of the Humble lease. This lease covered and included 1845.5 acres. Out of the 1845.5 acres, the lessors owned 1604.875 acres of which the 71.446 acres as well as the tract of 152.11 acres described in the Finch deed are a part.

Many of the issues that were considered to be controlling in the trial court and in the Court of Civil Appeals now become immaterial in view of the disposition we make of the case. Our decision determines the basic question which has been within the framework of the contentions of the parties from the date of the filing of Lid-dell’s first amended original petition in this case. Prior to the filing of this amended original petition Liddell had sought a reformation of the trust deed to Finch on the theory that the 71.446 acres was not described and included within the terms of the trust deed because of mutual mistake.

The pleadings upon which the case proceeded to trial abandoned the reformation theory; and, as stated by Liddell in his brief in the Court of Civil Appeals, it was asserted that Liddell sought to establish his “title to the Humble Lease royalty created by an oil and gas lease from appellee [Smith] and others to Humble dated December 23, 1933; the lessors owned and leased only 1604.875 acres out of the 1845.5 acres described by metes and bounds in the lease. In this suit, appellants [Liddell] placed in issue only royalty under the Humble Lease, and appellants [Liddell] do not seek to recover the mineral fee as distinguished from this specific Humble Lease royalty.”

Liddell contends that the disputed royalty was created by the execution and delivery of the Humble lease, and that this royalty relates solely to the lease and will terminate when the lease terminates. The provision of the Humble Lease, upon which Liddell must rely, reads as follows:

“Since, however, T. M. Smith, under date of August 30th, 1933, conveyed to H. B. Finch, Trustee, one-fourth (¼) of all the minerals owned by him under the land covered by this lease, * * * lessee is hereby especially directed by the said T. M. Smith to pay to the said H. B. Finch, Trustee, one-fourth (¼) of all royalties apportioned above herein to the said T. M. Smith and one-fourth (YV of all delay rentals due the said T. M. Smith, subject to a possible repurchase of said mineral interest by the said T. M. Smith under the option given in said deed of conveyance to repurchase same within (S) years * * *(Emphasis added)

Liddell contends that this is a contractual! provision that H. B. Finch, trustee, shall receive ¼ of all royalties, rentals and bonuses apportioned to T. M. Smith and attributable to his interest in the 1604.875-acres.

Liddell further contends that a “Lease Amendment” dated February 15, 1938, and' describing the same 1845.5 acres that are described in the original Humble lease is an express agreement for a division of royalties. This contention is based on the language of the following clause in the “Lease Amendment” which was not contained in the original lease:

“5. It is further agreed and specified that the royalties payable under said lease dated December 23, 1933, as amended by this instrument on all production from said pooled acreage shall be as follows, to-wit: * * *
“T. M. Smith — 31304/422160 of 1/8
“P. C. Rehrauer, Trustee — 15652/422160 of 1/8
provided, however, 15652/422160 of ⅛ out of the royalties allotted to T. M. Smith shall be paid to Ethel Pugsley ⅜ ⅜ ij< a

Liddell further contends that a “Correction Deed” dated July 14, 1938, executed and delivered by P. C. Rehrauer, successor trustee, Ethel Pugsley and her husband, Cornelius Pugsley, to Smith was, in effect, a partition agreement allocating ⅛ of 45956/422160 (11739/422160) to Rehrauer, successor trustee, and ¾ of 45956/422160 (35217/422160) to Liddell.

Liddell asserts that his claimed percentage of Rehrauer royalty has been established not only through the oil and gas lease, the lease amendment and the correction deed, but in addition thereto, through certain transfer orders executed in May, 1941, and September, 1942, and also through a royalty deed, dated March 31, 1958, executed by Reh-rauer, trustee, to The National Bank of Commerce and Frank A. Liddell.

In the trial of this case Smith sought reformation of the “Correction Deed” on the ground of mutual mistake; and, alternatively, Smith pleaded that Liddell was estopped, as a matter of law, to enforce such agreement. The issues of mutual mistake and estoppel are two of the issues which are unnecessary for us to decide. In other words, it is unnecessary for us to decide whether or not the royalty agreement contained in the “Correction Deed” should have allotted to Rehrauer only “¼ of the royalties produced from 152.11 acres out of the Humble lease land rather than 11739/422160 of Ys of production.”

The question we have to decide is not,, as claimed by Liddell, whether Smith is entitled to reduce the royalty provision of the “Correction Deed” from 11739/422160 of ⅛ to ¾ of ]/8 of the oil and gas produced hy Humble from 152.11 acres. The question thus stated assumes that the terms of the instruments upon which Liddell relies control and establish his title; and that for Smith to prevail, he must secure a reformation of these instruments. In our opinion the question is whether Liddell has established that the terms of the Humble Lease, the Lease Amendment and the Correction Deed constitute a contractual agreement between Smith and Finch and his successor trustees which entitles Liddell, as the owner, to receive royalty payments based on all the acreage owned by Smith and leased to Humble on December 30, 1933.

Liddell contends that the rule announced in Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, is determinative of the question to be decided in the present case. In that case this court was called upon to construe a paragraph in a deed from Clarence Schar-bauer, Sr. et ux. to A. H. Benge. The deed, except for a reservation of an interest in the minerals and a provision as to the grantee’s power to execute leases and for payment of bonuses, rentals and royalties under such leases, was an ordinary general warranty deed. It purported to convey to the grantee several sections of land with reservations to the grantors of an undivided %ths interest in the oil, gas and other minerals, and gave to the grantee and his assigns sole power to execute all future oil, gas and other mineral leases without joinder of the grantors, “but said leases shall provide for the payment of three-eighths (^ths) of all bonuses, rentals, and royalties to the grantors.” The deed contained a general warranty of title to the premises described. At the time of this warranty the grantors did not own the entire mineral interest in the land, since there was an outstanding mineral interest in third parties of ⅛⅛ which was not mentioned in the deed.

This court held that the Benge deed was not ambiguous, and “must be given the legal effect resulting from a construction of the language contained within the four corners of the instrument.” The Court recognized certain well-settled rules which govern in construing unambiguous deeds. Using such rules as a guide, the Court stated that normally the fractional part of the bonuses, rentals and royalties that one is to receive under a mineral lease is the same as his fractional mineral interest, but that the parties owning the mineral interest may contract to make “it different if they intend to do so, and plainly and in a formal way express that intention.” The Court held that the provision was not an agreement that the parties to the deed should participate in the bonuses, rentals and royalties in proportion to their ownership of mineral interests, but was rather a contractual provision that the grantors were to receive a “specified part of the bonuses, rentals and royalties; namely, JHsths.” In that case it was pointed out that an instrument “may convey two separate estates in the minerals, one of which may be a full mineral interest and the other a royalty, or other interest in the minerals,” and that a “grantor may reserve unto himself mineral rights, and he may also reserve royalties, bonuses and rentals — either one, more or all,” citing authorities for all of these rules.

In the present case we have for construction the Humble lease which is unambiguous. Therefore, as in the Benge case, this court must give to the instrument the legal effect resulting from a construction of the language contained within the four corners of the instrument. In construing this lease,, we must give effect to all parts of such instrument if possible to do so without violating any legal principles. It is only where the writing, on its face, is ambiguous, as where the language used is subject to two or more interpretations, that extrinsic evidence may be used. In the interpretation of contracts, whether they be ambiguous or simply contain language of doubtful meaning, the primary concern of the courts is to ascertain and give effect to the true intention of the parties, see Universal C. I. T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154. It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls. See Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620; Ohio Oil Company v. Smith, Tex., 365 S.W.2d 621, 627; Williston on Contracts, § 610.

Applying these rules of construction to the Humble lease, it is clear that Smith was under no obligation to direct Humble to pay to Finch, trustee, a ¼⅛ of all royalties apportioned to him in the oil and gas lease. The trust deed was made a part of the oil and gas lease and its contents are to be considered in determining the intention of the parties just as though it had been fully incorporated in the oil and gas lease. Had Smith conveyed to Finch a ⅛ interest of all minerals owned by him under the lands described in the lease, then Smith would have been under a contractual obligation to see that Finch and his successors were paid ¼⅛ of ⅛⅛ of all the production. However, the fact remains that Smith conveyed to Finch a ¼⅛ mineral interest in a tract of 152.11 acres and did not convey a mineral interest in 1604.875 acres. The Humble lease neither created nor extended the rights of Finch. The Humble lease was not a contract by which Finch, the original trustee, acquired any interest. The trust deed is the sole repository of the rights Liddell has, as a successor to Finch, in the royalty due Smith under the terms of the Humble lease. The trust deed obligated Smith, the holder of the executive rights, to stipulate in any oil and gas lease thereafter executed that Finch be paid ⅛⅛ of the bonus, consideration, rental and royalty. Since, by the terms of the trust deed, Smith did not convey to Finch an interest in the 71.446 acres, we hold that he was under no obligation to direct Humble, the lessee, to pay to Finch ¼⅛ of the royalty apportioned to Smith under the terms of the lease. The direction to Humble to pay to Finch certain royalty is merely a division order. The “Correction Deed” and the “Lease Amendment” cannot in any sense be construed as a new contract. The “Correction Deed” states that its purpose was to correct an error in the fractional interest set out in the “Lease Amendment.” Both of these instruments, it is true, stipulate that royalty payments shall be made to the lessors in certain specified proportions, but we hold that they do not partition or divide Smith’s royalty estate, but rather they are merely directions to Humble to pay and do not convey to the present claimant, Liddell, an additional interest in the oil and gas. Likewise, the subsequent transfer orders were directed to Humble. These transfer orders contain no words of conveyance. They clearly have reference only to the oil and gas produced and not to a fractional interest in the oil and gas to be produced, •s

Thus, we are construing instruments which amount to no more than division orders. These instruments remained effective from 1938 to 1955, and royalties were paid to Liddell and Smith in accordance with the amounts specified in the “Correction Deed.” Smith is in no position to recover any part of the royalties paid Lid-dell during the period from 1938 to 1955, and he makes no claim therefor. He was bound by the agreements contained in the “Correction Deed” and the transfer orders, even though incorrectly stated, so long as such orders remained in effect. The Chicago Corporation v. Wall, et al., 156 Tex. 217, 293 S.W.2d 844. Since Smith was under no contractual obligation to see that Liddell was paid ¼⅛ of ½⅛ of all production, he had the right to revoke and he did, in 1955, revoke his previous direction to pay. At the same time Smith directed Humble to' pay to him all the royalties to which he was entitled under the terms of the Humble lease. We hold that Smith’s revocation rendered ineffective his prior direction to-pay royalties. See Hogg v. Magnolia Petroleum Company, Tex.Com.App. (1924), 267 S.W. 482; Stanolind Oil & Gas Company v. Terrell, Tex.Civ.App., 183 S.W.2d 743 (1944), wr. ref.; The Chicago Corporation v. Wall, et al., supra. Smith’s direction to pay all royalty to him was honored by Humble until this suit was filed in 1956. Smith is entitled to all funds now held by Humble.

We come now to the judgment to be entered by this court. We have heretofore stated that Humble is not an adversary party to this suit. However, Humble filed an answer admitting that it has withheld royalty payments to Liddell and the bank since 1955, but stands ready and willing to make a final accounting to any party to this suit who shall ultimately establish title to the royalty payments withheld. Under our holding, the funds now held by Humble should be paid to Smith. Liddell is the owner of 29.85% mineral interest in one-fourth (54) of the 152.11 acres, and The National Bank of Commerce is the owner of a 14.096% mineral interest in said 54 of the 152.11 acres.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to the trial court with instructions to enter a judgment in accordance with this opinion.


author: PER CURIAM.

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY, Petitioner, v. W. L. MURRELL et ux., Respondents.
    No. A-9423.
    Supreme Court of Texas.
    April 17, 1963.
    Rehearing Denied May 29, 1963.
    • Thompson, Coe, Cousins & Irons, Dallas, for petitioner.
    Coleman & Whitten, Denton, for respondents.
   PER CURIAM.

We refuse, n. r. e., the writ applied for in this case, but our refusal is not to be construed as an approval of the Court of Civil Appeals holding, which is, in effect, that loss due to expansion of earth beneath the slab foundation house is not excluded by the terms of the insurance contract. 362 S.W.2d 868. This holding has not been attacked by point of error in petitioner’s application for writ of error.


author: NORVELL, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Petitioner, v. Petronilo ESPINOSA, Respondent.
    No. A-9430.
    Supreme Court of Texas.
    April 24, 1963.
    Rehearing Denied May 29, 1963.

      Groce & Hebdon, Charles L. Smith, San Antonio, for petitioner.
    Rudy Rice and Frank R. Southers, San Antonio, for respondent.
   NORVELL, Justice.

This is a workmen’s compensation case in which respondent recovered judgment for total and permanent incapacity. Such judgment was affirmed by the Court of Civil Appeals by a divided court. 363 S.W.2d 871. We granted writ of error upon the point of dissent.

It is undisputed that the respondent, Petronilo Espinosa, suffered a cut in the cornea of his left eye which required surgical attention. The iris was injured tO' some extent and three surgical stitches were required to close the wound. After the surgical and medical treatment had' been completed, the eye remained defective in certain respects, and Espinosa testified that this condition reduced his capacity to work.

Respondent’s pleaded theory supporting a recovery of compensation for a total and' permanent incapacity to work was not that he had originally received an injury affecting his body generally, but “that at the time he was injured he injured his left eye and such injury has extended to and affected his right eye and body generally, * * * that he has lost the use of left eye, his right eye, and such injury has affected his body generally, and that such injuries have resulted in a total and permanent incapacity.” No issue was submitted as to a total loss of the use of both eyes, and such issue was not raised by the evidence. The jury, however, found that the injury to Espinosa’s left eye has extended to and affected his head and body generally, thereby resulting in incapacity. It is this finding which the dissenting Justice said was without support in the evidence. We agree with this conclusion.

The majority opinion of the Court of Civil Appeals contains a succinct and accurate statement of the evidence bearing upon the controlling point in the case. If there be evidence in the record which supports the “extend to and affect” theory, it must be found in the testimony of Es-pinosa himself. Dr. Dan A. Russell, Jr., the operating surgeon, found no physical objective evidence connecting the headaches and dizziness of which Espinosa complained with the injury to the left eye or any other source. The most that Dr. Russell said was that possibly some damage to the motor nerves controlling the left eye could cause headaches, but that in order to determine whether or not this was the case it would be necessary to perform an exploratory operation. This does not constitute evidence of an extension of a specific injury which affected the body generally.

Espinosa’s testimony, briefly stated, was to the effect that after the injury to his eye he suffered headaches; his eyes were sensitive to dust; the pupil of his left eye did not contract properly so as to exclude or sufficiently diminish the glare of the sun; and that upon occasion he would become dizzy.

It is the policy of the workmen’s compensation law to award compensation for certain specifically designated losses, such as the loss of an eye; such injuries being considered as cases of partial incapacity. Article 8306, § 12. It follows that a specific partial incapacity cannot develop into a general incapacity under Article 8306, § 10 of the Workmen’s Compensation Act, when the disabling incapacity consists of pain and dizziness and results solely from using or attempting to use an eye or other member of the body for which specific compensation is provided by Article 8306, § 12. This question was squarely stated and answered by the Fort Worth Court of Civil Appeals in Coleman v. Hartford Accident & Indemnity Company, 297 S.W.2d 236, in which this Court refused writ of error. We quote from the opinion:

“Quare: Where a claimant under the Texas Workmen’s Compensation Act sustains an injury to a specific member mentioned in Section 12 of Article 8306, V.A.T.S., and such injury results in a percentage of permanent partial loss of use of such member, may he recover compensation for future general incapacity occasioned as the result of pain incident to any attempted utilization of the member’s remaining use, such pain originating in the injured member and extending to and affecting other portions of his body?
“Answer: No.”

The burden of proving that the specific injury extended to and affected other portions of the body so as to result in a general injury rests upon the-claimant, Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463; Texas Employers’ Ins. Ass’n v. Brownlee, 152 Tex. 247, 256 S.W.2d 76, and it is upon this issue that respondent’s case for general disability falls. There is no evidence which causally links Espinosa’s headaches and dizziness to a source other than, an injury to the left eye and his attempts-to use his left eye in its impaired condition. To hold that subjective complaints-of pain, headaches and dizziness following' a specific eye injury constitute in themselves evidence of the extension of the specific injury so as to affect the body generally would be to disregard the specific injury concept upon which Article 8306,. § 12, is based. Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific injury. In view of the opinions filed in the Court of Civil* Appeals, further discussion is pretermitted.

The judgments of the District Court and1 the Court of Civil Appeals are reversed' and the cause remanded to the District Court for new trial.


author: MORRISON,' Judge. DICE, Commissioner.

text:
    Alex JENNINGS, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 35518.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    Rehearing Denied May 1, 1963.
    Second Rehearing Denied May 29, 1963.
    Sidney E. Dawson, Walter L. Wray, and W. J. Durham, Dallas, for appellant.
    Bruce Allen, County Atty., McGee Par-ramore, Asst. County Atty., Waxahachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON,' Judge.

The offense is assault with intent to murder with malice; the punishment, 25 years.

As in Brothers v. State, 167 Tex.Cr.R. 521, 321 S.W.2d 311, the question of prime importance in this case is whether or not the evidence is sufficient to support this conviction of appellant as a principal.

Sergeant Brown of the Waxahachie police testified that on the day in question appellant’s wife met him at the county jail where she signed a written complaint against appellant, charging him with an assault upon her; that as they were leaving the jail appellant and his son drove up, appellant got out and approached them, grabbed his wife by the arm, spun her around, and asked her, “What in the Hell are you doing here ?” At this juncture, according to Brown, he took a hold on appellant’s arm because he had seen a mark on the woman’s arm and “didn’t see any sense in her getting hit again” and told appellant that a complaint had been filed against him and that he would have to come around to the city hall to get things straightened out. Brown stated that he “saw we were going to have a scuffle” when appellant told him, “Ain’t no * * * is going to lock up a Jennings”; so he placed the complaint on the seat of his automobile and, when he turned back, received a blow on his nose. He then reached in his automobile again to get a “slapper” (“a double piece of leather with a handle on it”), and as he again straightened up appellant, who was behind him, “grabbed my left wrist and my right arm and got me off balance and then this boy (appellant’s son) came back in again and I felt him give me several licks in the stomach area.”

One Childress came to the officer’s assistance, and he also was cut. Appellant and his son fled; Brown discovered that he had been severely cut and was carried to the hospital in an ambulance. His injuries were established by medical testimony.

Appellant in his testimony denied that he saw his son cut either Brown or Chil-dress or that he had advised or encouraged him to do so. He did state, however, in answer to a question by his own counsel, “I saw the knife in his hand when I grabbed * *

There was a great deal of other testimony, but we believe that the above constitutes a fair summary of the evidence in the light most favorable to the State in determining the sufficiency of the evidence. Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573, and cases there cited.

Reliance is had upon Lee v. State, Tex.Cr.App., 214 S.W.2d 619, which we had occasion to distinguish in Brothers v. State, supra. We have concluded that the aid which appellant gave his son by grabbing Brown by both arms and getting him off balance so that Brown’s stomach would be vulnerable to his son’s attack was sufficient to take this case out of the rule announced in Lee and bring it within the rule set forth in Brothers and the cases there cited. We have not reached this conclusion with ease, but ours is seldom an easy task.

There are several other questions raised, and they will be discussed briefly. It is contended that the court failed to submit all possible verdicts which the jury should have had under the evidence. The matter is not preserved by bill of exception or in any manner which this Court might review.

We find no merit in appellant’s contention that the court erred in permitting the officer to testify that appellant’s wife had filed a complaint against him. The court admitted the same as shedding light on Brown’s authority to arrest appellant, and was admissible for such purpose.

There is no proof in this record to establish appellant’s claim of racial discrimination in the selection of the grand jury or the jury which tried him.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant complains that in our opinion on original submission we did not pass upon his Point Number Five, which was that the court erred in permitting the prosecuting attorney to bring out on cross-examination of the appellant that his wife had made repeated statements and complaints to officers and third parties about his treatment of her, being testimony of a wife against her husband when he was not on trial for an offense committed upon her, in violation of Art. 714, Vernon’s Ann.C.C.P.

A careful reading of appellant’s cross-examination does not reflect that any testimony was elicited from him by state’s counsel with reference to statements or complaints made by his wife to any officers or third parties.

As was pointed out in our original opinion, the testimony of Officer Brown that appellant’s wife had filed a complaint against him was properly admitted by the court as shedding light upon the officer’s authority to arrest appellant.

Remaining convinced that a proper disposition was made of the appeal on original submission, the motion for rehearing is overruled.

Opinion approved by the court.