author: CLEMENS, Commissioner.

text:
    Anthony J. WACHTER, Plaintiff-Appellant, v. Charles W. GROGAN, Desmond Lane, Robert Capps, Patrick Neary, Robert Cochran, Edward M. Fisher and August Mehrhoff, as Individuals, as Officers and Members of Highway & City Freight Drivers, Dockmen & Helpers, Local Union No. 600, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and as Representatives of a Class Consisting of the Entire Membership of Highway & City Freight Drivers, Dockmen & Helpers Local Union No. 600, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants-Respondents.
    No. 32268.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 12, 1966.
    Application to Transfer Denied Feb. 13, 1967.

      Susman, Wilier, Rimmel & Elbert, by Harold I. Elbert, St. Louis, for appellant.
    Harry H. Craig and Clyde E. Craig, Wiley, Craig, Armbruster & Wilburn, St. Louis, for respondents.
   CLEMENS, Commissioner.

Plaintiff Anthony J. Wachter claimed that the defendant Union had maliciously expelled him. He sued the Union for actual and punitive damages, and the jury gave him a $12,700 verdict. On the Union’s after-trial motion for judgment the trial court decided it did not have jurisdiction over the subject matter and entered judgment for the Union. Wachter appeals.

Here, the decisive issue is whether Wach-ter’s claim comes within the Labor Management Relations Act — and, hence, within the exclusive jurisdiction of the National Labor Relations Board. That issue turns on whether Wachter’s claim is based on an “unfair labor practice” under the Labor Management Relations Act or on an “internal union matter,” to which the Labor Management Relations Act does not apply. The Union says, in effect: “Wachter claims the union interfered with his employment. That is an unfair labor practice, so jurisdiction is preempted by the federal government.” Wachter retorts: “No, I’d already been fired when the union kicked me out, so my case concerns only me and my dealings with the union. Jurisdiction is in the circuit court.”

Wachter’s suit for wrongful expulsion deals with three earlier quasi-judicial proceedings within the Union framework. First, a labor-management grievance committee upheld Wachter’s dismissal from his job at C. E. S. Truck Lines. Second, Wachter filed charges against defendant Charles W. Grogan seeking to oust him from the Union for Grogan’s conduct in the grievance committee hearing. The Union exonerated Grogan. Third, Grogan filed charges against Wachter to oust him from the Union for Wachter’s conduct in trying to oust Grogan. These charges were sustained and Wachter was ousted. But after two appeals by Wachter, the International Teamsters Union reversed his ouster and reinstated him to membership. Then, Wa-chter filed this action for damages arising from his wrongful expulsion. We will relate the verdict-consistent evidence on the background, each of the three hearings, and Wachter’s damages.

Wachter was a ten-year member of the Union and drove a truck for the C. E. S. Truck Lines all that time. He was active in Union affairs — his fellow workers at C. E. S. elected him shop steward. In a Union election Wachter unsuccessfully supported an opponent of defendant Grogan for the Union’s presidency. Soon after, Grogan proposed a change in the Union’s bylaws to empower him, rather than employees, to select shop stewards. Wachter successfully opposed this change. After this meeting where Wachter had prevailed over Grogan, Wachter heard Grogan announce that the trouble with letting employees select their own shop stewards is that “we have nothing but god-damn bums like Tony Wachter who is down at C. E. S. and it would be better to get rid of them kind of people.” The next day Wachter and Grogan talked: Grogan denied making the derogatory statement and both agreed to forget it.

A few months passed and then Wachter got into trouble with his employer. This eventually led to his discharge and the hearing before the labor-management grievance committee. From time to time Wachter’s employer had warned him about violating company rules. Finally, Wachter got a warning letter from the C. E. S. president, Amos Govero, accusing Wachter of loading steel on top of a tarpaulin. During the noon hour on the next day Wachter and Govero met at the loading dock. They had an argument. Wachter demanded that Govero withdraw the warning letter, but Govero refused and ordered Wachter back to work; Wachter refused unless his business agent was present, and claimed that he was still on his lunch hour. Govero fired Wachter and sent him a confirming letter that did not comply with the company-union contract. At Wachter’s request, Grogan as Union president protested the discharge and called for a hearing before a labor-management grievance committee to decide the dispute.

The Grievance Committee Hearing. The six-man committee had three representatives of management and three of labor, including defendants Grogan and Lane. After hearing evidence the committee accepted Govero’s version of the dispute with Wachter and found that Wachter had wrongfully refused to go back to work. The committee unanimously upheld Wach-ter’s discharge.

Wachter promptly wrote a critical letter to Harold Gibbons, president of the Teamsters Joint Council 13. He complained of the Union’s handling of his grievance and told of Grogan’s threat “to get rid of bums like Tony Wachter.” He later sent a copy of the letter to Dave Beck, then president of the International Teamsters Union.

The Wachter v. Grogan Union Hearing. Wachter immediately filed charges against Grogan, urging that he be ousted from the Union. Wachter contended that Grogan had verbally abused him and that because of Grogan’s prejudice against Wachter, Grogan had accepted the employer’s version of the dispute rather than Wachter’s version. These charges were heard and decided by the Union’s executive board, a seven-man panel. Five of the panel members are defendants here and were fellow officers of Grogan; two were Union business representatives whom Grogan had appointed.

Wachter presented evidence by Union members about Grogan’s statement that the Union would have to get rid of bums like Wachter. Wachter contended that the Union should have called his fellow employees as witnesses at the grievance committee hearing to support his version of the dispute with Govero. At this hearing before the executive board Wachter did call these men — and they supported Wachter’s version of the dispute. In response, Grogan presented documents showing that Wach-ter’s discharge was proper. Also, he denied the validity of Wachter’s written complaints to Harold Gibbons and Dave Beck.

The Union executive board exonerated Grogan. It did not find that Wachter’s charges against Grogan were malicious. Five days later Grogan filed charges against Wachter.

The Grogan v. Wachter Union Hearing. Grogan struck back with charges to oust Wachter from the Union for Wachter’s criticism of the Union and for his activities in the Wachter-Grogan ouster proceeding. Except for one substitution, the same seven-man panel of Union officers and business agents that had heard the Wachter-Grogan ouster proceeding now heard Grogan’s complaint against Wachter. Grogan introduced the letters on Wachter’s discharge by C. E. S., the grievance committee’s finding upholding Wachter’s discharge, and Wachter’s letters to Gibbons and Beck. Grogan testified that Wachter could have got work and that he never came to the Union hiring hall. By testimony and argument Wachter denied Grogan’s charges. The executive board found Wachter guilty of all charges and ordered him permanently expelled from the Union. Wachter first appealed to the Teamsters Joint Council 13, which upheld his expulsion, and then to the International Teamsters Union. There, the order of Wachter’s expulsion was set aside and, almost three years later, he was reinstated in the Union “with any and all rights retroactive to the date of his expulsion.”

Wachter stated at the first hearing, before the labor-management grievance committee, that he was being “kangaroo’d”; however, at both hearings before the executive board Wachter said he was satisfied with the way the hearings were conducted.

At the trial of this case Wachter testified to his damages. During the five-month period between his discharge from C. E. S. and his expulsion from the Union, Wachter got some work. Through what he called “the grapevine” — other union drivers and dockmen — Wachter got short-term jobs from five other truck lines, earning some $850. After his expulsion from the Union, Wachter did not go to the Union’s hiring hall because of a sign there on the window, “For Members Only of Local 600.” Although some non-Union members did get work through the hiring hall, Union members were sent out first — non-Union members got what was left over, if anything* Union membership is not essential to getting a job. as a driver, but most truck terminals are unionized and membership is helpful. Wachter looked for work. He kept making-job applications but got only four weeks’ work from two truck lines, earning about $270.

Wachter owned a part interest in a tavern with his father-in-law, and during his 34-month expulsion Wachter worked at the tavern. When his Union membership-was restored he went back to work as a truck driver. His net loss of earnings, during his expulsion was over $6,000. Wachter’s wife testified that after his expulsion he tried to get work and that “he just worried and didn’t take no interest in anything.”

Wachter submitted his case to the jury by modifying MAI 23.07. By this, the trial court told the jury to find for Wach-ter if:

“First: Defendants instigated a proceeding before the Executive Board of Local Union No. 600 of the Teamsters, and caused plaintiff to be expelled from. Local Union No. 600 of the Teamsters, from February 15, 1956, to June 30, 1958,. and
“Second: Said proceedings terminated in favor of plaintiff, and
“Third: In doing so, defendants acted maliciously and without reasonable grounds, and
“Fourth: Plaintiff was thereby damaged.”

The term “maliciously” was defined by MAI 16.01; Wachter’s actual damages, were submitted by MAI 4.01. As said, the jury set Wachter’s actual damages at $12,-700. Judgment was entered for Wachter, but on the Union’s after-trial motion for-judgment this was set aside. The trial court then entered judgment for the Union on the ground that the court had “no jurisdiction over the subject matter of plaintiff’s petition because the exclusive jurisdiction of such matters is vested by Federal law in the National Labor Relations Board.” On this appeal Wachter’s only point is that his claim is based on an “internal union matter” outside the scope of the Labor Management Relations Act and, therefore, the trial court erred in disclaiming jurisdiction. The Union defends the trial court, reasoning: (a) Wachter claims that the Union interfered with his employment, (b) such interference is an “unfair labor practice” under the Labor Management Relations Act, and (c) exclusive jurisdiction is therefore with the National Labor Relations Board.

We deal first with Wachter’s contention that his case is based on an internal union matter. Then we shall examine the Union’s contention that the case is based on an unfair labor practice.

Internal Union Matter? The general scope of the Labor Management Relations Act embraces transactions between employers and labor unions and transactions between employers and unionized employees. The Act is not aimed at transactions between unions and their members.

Wachter pleaded and submitted that the Union had maliciously expelled him. He claimed that this wrongful conduct resulted in loss of earnings and mental anguish. In contending that the basis of his case is an internal union matter, Wachter relies principally on the case of International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). In Gonzales the California courts had not only allowed plaintiff damages for inability to find work, mental pain and suffering, and punitive damages, but had also ordered his reinstatement to union membership. In affirming this, the U. S. Supreme Court pointed out that membership in a labor union constitutes a contract between the member and the union, and that state law affords a remedy in damages when the contract is breached by wrongful expulsion. The Supreme Court upheld state jurisdiction, saying:

“ * * * But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b) (1) of the Act states that ‘this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.’ [Citation] The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for ‘retention of membership therein.’ ”

Gonzales does not stand alone. Other cases also hold that the doctrine of federal preemption does not attach to actions for damages resulting from loss of union membership. See International Union, United Automobile, etc., Workers v. Hinz, 6 Cir., 218 F.2d 664; Bussey v. Plumbers Local 3, 286 F.2d 165 (C.A. 10, 1961); Burns v. United Broth. of Carpenters, etc., Local 626, 204 F.Supp. 599 (U.S.D.C.Del., 1962).

Wachter also relies on Sipes v. Vaca, Mo. (banc), 397 S.W.2d 658, cert. granted, 384 U.S. 969, 86 S.Ct. 1863, 16 L.Ed.2d 680 (1966). There, the plaintiff was discharged from his job and protested his discharge. The defendant union refused to process his protest to the union’s national arbitrator unless plaintiff paid defendant $300. Plaintiff refused, sued the defendant union, and got a $10,300 judgment. On appeal the defendant union, as here, contended that it was being charged with interference with the plaintiff’s employment and, therefore, an unfair labor practice was at issue; hence, exclusive jurisdiction was in the federal government. In denying federal jurisdiction the Missouri Supreme Court relied on Gonzales, saying:

“ * * * the real complaint of Gonzales was his inability to obtain employment because of his expulsion from union membership. We see no difference in that situation and the situation in the instant case. We are dealing with an internal union matter in that [plaintiff] complained of the refusal of the union to fully process his grievance. He, like Gonzales, hoped that as a result of proper union action he would be restored to his employment. If Gonzales involved a purely internal union matter then the case at bar involves a purely internal union matter. The Gonzales case is clearly applicable here and is ample authority for our conclusion that jurisdiction of the subject matter of this case has not been preempted by the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq.” (Our emphasis.)

Here, the issue was even more an internal union matter than in the Sipes case. There, the plaintiff was trying to compel his employer to rehire him. He claimed that his union had maliciously failed to protect his right to that continued employment. Here, Wachter was out of work when the Union wrongfully expelled him. Loss of employment elsewhere was the result of the Union’s wrongful conduct and entered the case merely as one of the elements of Wachter’s damages. We hold that Wach-ter’s cause of action concerned an internal union matter.

In reaching this conclusion we have examined the Union’s criticism of the Gonzales and Sipes cases. The Union points out that in Gonzales the focus of plaintiff’s action was on reinstatement to union membership, not on damages. That does not lessen the force of Gonzales, where the state court granted both restoration and damages for expulsion. If a state court has jurisdiction to do both, it has jurisdiction to do either. The Union also tries to distinguish the Missouri Supreme Court’s holding in the Sipes case. The Union says the plaintiff there “was not complaining of discrimination with regard to his employment opportunities.” Neither is Wachter. Just as in the Sipes case, plaintiff Wachter complains that the Union breached an internal union duty and that the breach caused his damage by loss of employment. The Union’s criticism of the Gonzales and Sipes cases is unsound. Both cases apply here.

Unfair Labor Practice? The Union relies on the cases of Plumbers’ Local 100 v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and Local No. 207, Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. In each case the union activity was held to be an unfair labor practice, and the doctrine of federal preemption was applied. In the Borden case the plaintiff held union membership but the union refused to refer him for employment. In the Perko case the union caused the plaintiff to be fired. In each case federal preemption applied because the case focused directly on the defendant union’s activities in interfering with the plaintiff’s employment, rather than on the plaintiff’s union membership as here and in Gonzales. In Sipes v. Vaca, supra, at 397 S.W.2d l. c. 663-664, the Borden and Perko cases were distinguished and held inapplicable. We reach the same conclusion.

To support its theory of federal preemption, the Union quotes the Missouri Supreme Court’s statement in Cook v. Brotherhood of Sleeping Car Porters, Mo., 309 S.W.2d 579, l. c. 586: “It is apparent that Congress has left only a minimum of responsibility (and jurisdiction) to the courts, State or Federal, in the field of railway labor relations.” Also, the Union insists that this case is “arguably” within the scope of the Labor Management Relations Act and that is enough to divest state courts of jurisdiction. The word “arguably” was used to construe the Act in San Diego, Building Trades Council v. Garmon, 359 U.S. 236, l. c. 245, 79 S.Ct. 773, 3 L.Ed.2d 775. That case was one for damages for picketing brought by an employer against a union, “a tort based on an unfair labor practice,” wholly unlike the case before us. The word “arguably” was used by the Supreme Court to apply the “Delphic nature” of the jurisdictional limitations of the Act. In contrast to this “arguably” contention, the same decision said at l. c. 243, 79 S.Ct. l. c. 779 that there was no preemption where the questioned activity was “a merely peripheral concern of the Labor Management Relations Act.” These cases, and others cited by the Union, contain abstract statements that give superficial support to its contention of preemption. But not one is remotely similar to the case before us, where the issue is one of damages arising from the wrongful expulsion from a union. Gonzales was just that kind of case.

The assertion of an unfair labor practice was advanced by the defendant union in Gonzales. At 356 U.S. l. c. 619-620, 78 S.Ct. l. c. 925, the Supreme Court conceded that in such a suit there might be “embedded circumstances that would constitute an unfair labor practice,” and that by “wooden logic” it might be said that expelling a member from a union might cause an employer to discriminate against an employee. But the Court cast aside that argument, saying: “But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied.”

We hold that our case is based on an internal union matter, not on an unfair labor practice. It is therefore outside the doctrine of federal preemption, and the trial court did have jurisdiction. This requires a reversal of the trial court’s order setting aside Wachter’s verdict and judgment. It does not fully dispose of the appeal.

As mentioned, the trial court denied the Union’s motion for a new trial. In the respondents’ brief the Union now raises two points. Although the Union did not appeal (naturally!), points raised below in the Union’s motion for new trial and properly briefed here are reviewable. In Hughes v. St. Louis Nat’l League Baseball Club, 359 Mo. 993 (banc), 224 S.W.2d 989 [4, 5], the court said: “* * * when, as here, the motion to set aside is sustained and the motion for new trial overruled * * * and the plaintiff appeals from the judgment entered against him, then the defendant may in his brief allege error in instructions or other procedural matters raised in his motion for new trial.”

In the first of these “Points Relied On” the Union says: “Plaintiff failed to prove the essential elements of his cause of action which was in the nature of an action for malicious prosecution. * * * Plaintiff has failed to prove the essential elements of his cause of action.” The Union’s first point must fail, for two reasons. It is a mere abstract assertion: it does not state what essential elements were not proved. Such a sweeping challenge to the sufficiency of a plaintiff’s evidence does not comply with Civil Rule 83.05(e), V.A.M.R., and presents nothing for review. See Jones v. Farm Bureau Mutual Ins. Co., Mo.App., 284 S.W.2d 11 [3] (where the point raised said that the plaintiff failed to prove facts upon which relief could be granted), and State ex rel. P. W. Finger Roofing Co. v. Koch, Mo.App., 272 S.W.2d 22[3] (where appellant charged only that the verdict was not supported by the evidence). Next, even if we consider the words “in the nature of an action for malicious prosecution” as a specific point of error, we are confronted with a point raised for the first time on appeal. In the argument section of the brief the Union lays out the elements of an action for malicious prosecution and then argues in detail that Wachter’s evidence did not prove all those elements. Wachter did not contend below and does not contend here that his action is one for malicious prosecution. Instead, plaintiff’s claim is based on the theory that he was maliciously expelled from membership in the Union. The Union’s after-trial motion did not give the trial court an opportunity to rule on whether Wachter had to or did prove each element of a case of malicious prosecution. The motion complained of Wachter’s verdict-directing instruction only in general terms, saying: “ * * * it misinformed the Jury as to what facts will suffice under the law for a verdict * The malicious prosecution theory was not mentioned. Being raised here for the first time, the point is not preserved for review. “We are precluded from considering any allegations of error which have not been presented to or decided by the trial court.” Georg v. Koenig, Mo., 370 S.W.2d 356 [3, 4].

We have not overlooked the fact that Wachter submitted his case by modifying MAI 23.07, an instruction designed to submit a malicious prosecution case. By doing so, Wachter took on a heavier burden than needed to make a case for wrongful expulsion from the Union. (As to elements of recovery for wrongful expulsion, see Mullen v. Seegers, 220 Mo.App. 847, 294 S.W. 745 [2, 3]; Junkins v. Local Union No. 6313, Communication Workers, 241 Mo.App. 1029, 271 S.W.2d 71 [15, 17]; Hall v. Morrin, Mo.App., 293 S.W. 435[7]; 21 A.L.R.2d 1397, § 11; 74 A.L.R.2d 783, § 2.) This instruction was harmless to the Union. However, our ruling is based on the ground that the Union’s point presents nothing for review.

In the second of these “Points Relied On” the Union briefs a point on the admission of evidence. At the trial the court admitted the Union’s records of the proceedings against Wachter and, also, the transcripts of the Wachter v. Grogan and the Grogan v. Wachter hearings. These were not admitted as substantive evidence of the facts testified to therein, but for the limited purpose of showing whether Wach-ter’s expulsion was malicious. At least twelve times the Union objected to admission of the transcripts, asserting nine different grounds. The Union’s brief, without making page references to the transcript, now argues three of these grounds: (a) that two of the hearing witnesses were present at the trial, (b) that the Union was denied the right to cross-examine the witnesses, and (c) that, generally, the transcripts were hearsay.

Civil Rule 83.05(e), V.A.M.S., says: “The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed * * In its “Points Relied On,” the Union says: “The Trial Court erred in admitting into evidence and allowing to be read to the jury the transcripts of proceedings before the union’s executive board involving in-tra-union charges.” The point ignores the rule. As said, the Union made and the trial court ruled on a dozen objections asserting nine different grounds. The Union’s brief informs neither Wachter’s counsel nor this court what rulings were wrong or why the trial court erred. Having failed to comply with the rule, the Union has preserved nothing for review.

The judgment for the defendant Union is reversed and the cause is remanded for reinstatement of the verdict and original judgment for plaintiff Wachter.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment for the defendant Union is reversed and the cause is remanded for reinstatement of the verdict and original judgment for plaintiff Anthony J. Wachter.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: WOLFE, Presiding Judge.

license: Public Domain

text:
    Thomas WELLS, Plaintiff-Respondent, v. Elizabeth WACHTELBORN, Defendant-Appellant.
    No. 32307.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Dec. 12, 1966.
    Application to Transfer Denied Feb. 13, 1967.
    John P. Montrey, Guilfoil, Caruthers, Symington, Montrey & Petzall, St. Louis, for appellant.
    William R. Murphy, McLeod & Murphy, St. Louis, for respondent.
   WOLFE, Presiding Judge.

This is an action in which the plaintiff seeks to recover damages arising out of personal injuries and property damages which he sustained when an automobile which he was driving was struck by an automobile driven by the defendant. There was a verdict and judgment for the plaintiff in the sum of $7,700. The defendant moved for a judgment in accordance with her motion for a directed verdict at the close of the evidence, or in the alternative, for a new trial. The defendant’s motion for a judgment was overruled and the motion for a new trial was overruled upon the condition that the plaintiff remit $2,500 from the verdict and judgment. The plaintiff made the remittitur and a new judgment for $5,200 was entered from which the defendant prosecutes this appeal.

Plaintiff brought his action on various charges of negligence. Included among them was a charge of humanitarian negligence. He submitted his case to the jury, however, only on one charge of primary negligence and that was that the defendant negligently drove her car into an intersection at an excessive speed. The defendant charged the plaintiff with contributory negligence.

One of the points raised is that the plaintiff was contributorially negligent as a matter of law. The plaintiff’s case as it related to the collision of the two automobiles rests upon testimony of two witnesses. Wells, the plaintiff, testified and the other witness was a bystander named Spain. The testimony of Wells was that on the night of October 18, 1962, he had spent the evening at his brother’s house. At some time after 11:00 P.M. Wells was returning to his home in his 1949 Ford. His homeward course was westwardly over Fyler Avenue in the City of St. Louis. Fyler Avenue which extends in an east and west direction, intersects Hampton Avenue which runs north and south. Fyler has four lanes for traffic and Hampton has five lanes at the intersection. The intersection is controlled by traffic lights but at the time of night that the parties reached the intersection the lights were set so that east and west bound traffic on Fyler was controlled by a flashing red light, and north and south bound traffic on Hampton Avenue was controlled by a flashing amber light.

Wells drove his car up to the intersection and stopped. To his right, in the curb lane, another car stopped. The car to his right turned northwardly into Hampton Avenue. While Wells was still stopped he looked to his right and saw the lights of defendant’s southbound car coming around a curve in Hampton Avenue toward the intersection. He also saw from his left a northbound car approaching. He waited for the northbound car to clear the intersection and then started to cross. When his car was barely entering the intersection he again saw the lights of defendant’s car approaching and at that time it was approximately 200 to 250 feet away. He did not form any estimate of its speed at that time but he proceeded across the intersection.

When his car was at a point where the back end of it was in the left turn lane for cars southbound on Hampton and the front end of his car was in the center southbound lane he saw the lights of defendant’s car. She was then between 25 and 50 feet away and his car was right in front of her. He had been shifting into second gear just as he saw the lights so he pressed the throttle to the floor board and the front end of his car was two or three feet beyond the west curb of Hampton Avenue when it was hit by defendant’s car.

Wells estimated the speed of defendant’s car at the time he saw her lights just before the collision, at 40 to 45 miles per hour. He later on cross examination stated that defendant’s car was going “a good 30” miles per hour. He said that his own car was moving at 10 miles per hour at the time it was struck. After the collision his car traveled about 40 feet west of the intersection and turned over.

Howard Spain, the plaintiff’s other witness, was employed as a service station attendant. The station was located on the northwest corner of the intersection and Spain testified that he saw the collision. He said that it was closing time for the service station and he came out and looked north and saw defendant’s car. When the car was about 600 feet from the intersection he estimated its speed to be 40 to 45 miles per hour. He also stated that defendant’s car was about 150 feet from the intersection as plaintiff started across and that plaintiff drove his car in front of defendant’s car. Both witnesses stated that there was nothing to block the plaintiff’s view of the intersection and the converging streets.

The defendant testified that she traveled southwardly on Hampton toward the intersection. She was going at the speed of 25 to 30 miles per hour. Her car was in the center lane. She said that as she entered the intersection she had reduced her speed to 15 to 20 miles per hour. As she approached Fyler Avenue she saw two westbound cars approaching Hampton from the east on Fyler Avenue. A northbound car swerved to its left and she veered to the curb lane to avoid it but it straightened out and continued northwardly. She then entered the intersection just as the plaintiff’s car came through and she put on her brakes and swerved westwardly to avoid a collision, but the left front of her car struck the center of plaintiff’s car and it traveled on into Fyler Avenue. Her car stopped almost instantly.

As stated, this case was submitted on primary negligence and defendant pleaded contributory negligence on the part of the plaintiff. It is the defendant’s contention that the plaintiff was contributorially negligent as a matter of law.

When one seeks recovery on the charge of primary negligence the duty to exercise due care rests upon both parties. A party may not himself disregard and fail to exercise the prudence required of him and expect the other party to protect him from his own negligence. Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575; James v. Berry, Mo.App., 301 S.W.2d 530. It is, of course, established law that if one’s own negligence contributes to the proximate cause of the injury for which relief is sought and this contributory negligence is pleaded as a defense one cannot recover on primary negligence of the defendant. It is also the law that a failure on the part of the plaintiff, where duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law. Branscum v. Glaser, Mo., 234 S.W.2d 626, and cases therein cited.

Here the plaintiff, by his own testimony, knew that the defendant’s car was approaching but from the moment he started entering the intersection from a stopped position in low gear he did not once look to estimate the speed of the approaching car or its distance from the intersection. Instead he drove his car on a collision course when a glance to his right would have alerted him to the hazards of the situation in time to have avoided it. Hampton is a wide street, the plaintiff’s view was unobstructed, he knew a car was approaching and he had a continuing duty to observe it. Instead he drove thirty-five feet into the intersection without so doing. His conduct was one of complete indifference to apparent danger and constituted negligence as a matter of law. Branscum v. Glaser, supra; Wilson v. Toliver, supra; Payne v. Smith, Mo., 322 S.W.2d 764; Thomas v. Aines Farm Dairy, Mo.App., 257 S.W.2d 228; Folluo v. Gray, Mo.App., 256 S.W.2d 273.

Since the court should have directed a verdict for the defendant because plaintiff was negligent as a matter of law we need not pass upon the other points here raised and the judgment is reversed.

ANDERSON and RUDDY, JJ., concur.


author: TOWNSEND, Commissioner.

text:
    Francis H. EDWARDS, Plaintiff-Respondent, v. FIREMEN’S RETIREMENT SYSTEM OF ST. LOUIS, Defendant-Appellant.
    No. 32335.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 17, 1967.
    Application to Transfer Denied Feb. 13, 1967.

      Thomas F. McGuire, City Counselor, Aubrey B. Hamilton, Associate City Counselor, St. Louis, for appellant.
    N. Murray Edwards, St. Louis, Martin Schiff, Jr., Clayton, for respondent.
   TOWNSEND, Commissioner.

Acting under the authority of Sections 87.120-87.370, V.A.M.S., the City of St. Louis instituted a contributory system for the pensioning of members of its fire department and of the dependents of deceased members. Revised Code, City of St. Louis, 1960, Sections 335.010-335.650; Ordinance No. 50707 (1961). The ordinances provide for two types of retirement allowances — one on account of service upon reaching age 60 or after twenty years of service and the other on account of physical o-r mental disability. By appropriate formulae variant retirement allowances for disability are established, one for what is termed Ordinary Disability and the other for Service-Connected Accidental or Exposure Disability. The latter allowance is the larger. The system is administered by a seven-member Board of Trustees, which is given exclusive original jurisdiction of all claims for benefits. Its actions, decisions and determinations are reviewable under the Administrative Procedure statutes, Chapter 536, RSMo.

On July 12, 1962, respondent, Francis H. Edwards, a captain in the St. Louis Fire Department, made application to appellant hoard for retirement allowance because of permanent incapacity for the further performance of duty, such allowance to become éffective September 1, 1962. On July 23, 1962, respondent was advised by the chief of the fire department that he would be removed from the department’s payroll on August 31, 1962. In separate communications, three physicians, members of the Board’s Advisory Medical Board, advised the Board, after physical examinations of July 21, 1962, July 30, 1962 and July 20, 1962, respectively, that respondent was unfit for duty as a firefighter.

In his application for retirement allowance respondent attributed his disability to smoke inhalation on May 18, 1962 at 517 Antelope in the City of St. Louis. The Board considered the application, ex parte, on September 7, 1962, granted respondent retirement for ordinary disability but denied him retirement for Service-Connected Accidental Disability. The Board reaffirmed this position on October 31, 1962 after considering respondent’s petition for review of its original decision. Thereafter respondent requested a hearing upon his application and this was at first denied on November 28, 1962, and then granted on December 28, 1962. The hearing was set for January 30, 1963, but was rescheduled from time to time owing to a variety of causes — inability of counsel, first on one side and then on the other, to be present, respondent’s request for continuances, respondent’s refusal to proceed when less than the entire membership of the Board was present, intervention of vacation periods, illness of counsel, inability of witnesses to appear. Eventually the hearing was held on January 31, 1964.

Respondent’s statement of the cause of his disability was amended on June 4, 1963, to “Smoke inhalation while fighting fires on May 18, 1962 at 517 Antelope and 8220 North Broadway, and exposure while in the actual performance of duty.” Respondent was 64 years and three plus months of age on May 18, 1962.

On May 29, 1964, the Board made its “Findings, Conclusions and Order” which, after a finding as to respondent’s period of service as a fireman, recited

“(2) The Board finds there is no causal connection between the present physical condition of Francis H. Edwards and any accident, event or exposure occurring while in discharge of his duty as a Fireman.

(3) The Board concludes that Francis H. Edwards is not entitled to Service-Connected Accidental Disability Retirement Benefits, and his claim therefor, is accordingly denied.”

Respondent thereupon filed his petition for review in the Circuit Court of Montgomery County, then the county of his residence, under the terms of Chapter 536, V.A. M.S. The Circuit Court found:

“3. That the letters of doctors Davidson, Rader and Conrad, although hearsay, were of some ‘probative value’, and since they were received without objection, should be considered (Section 536.070(8) RSMo as amended Laws 1957, page 748), but that without further amplification and explanation, they were equivocal and unsubstantial, and that the action of the Board was, therefore, unsupported by substantial evidence upon the whole record.

4. That a finding in favor of Petitioner is amply supported by competent and substantial evidence.

5. That the order of the Board should be reversed with directions to enter its order finding that Petitioner became totally and permanently incapacitated for duty as the natural and proximate result of exposure while in the actual performance of duty in response to an emergency call on May 18, 1962 and is entitled to Service-Connected Accidental and Exposure Disability Retirement Benefits.” The order of the Court in accordance with these findings was then entered. This appeal followed.

At the hearing before the Board of Trustees the respondent testified to the following effect:

On May 18, 1962, at about 5:18 a. m., his company responded to an alarm and proceeded to the Baden Hotel, 8220 North Broadway, where a mattress was afire on the third floor. Smoke was rolling out of the room and respondent ran upstairs and crawled to the location of the mattress. After he had wetted it down two firemen pulled the mattress downstairs and respondent followed, putting out fire which dropped from it. He then returned to the third floor and the rest of the fire was extinguished. The smoke in the room was very thick, black and hot. After returning to the ground level respondent was directed by the Chief to “take a look at that fire up there” and so respondent traveled to the third floor a third time. He estimated the period of time during which he was subject to smoke inhalation at ten to fifteen minutes. He used no gas mask during the period of this fire. Returning to the engine house respondent and his company were back in service only one minute when they were called out to go to 517 Antelope at 5:51 a. m. At the latter address — a one and a half story house, respondent saw smoke upon his arrival and was informed by a woman at the back door that “My son’s up there.” He ran up the steps and found that the fire was very hot and smoky —another mattress fire. Crawling on hands and knees respondent found the son lying on the floor, dragged him to the steps and down and delivered him to his mother. Respondent then ran back up the steps to open a window and to put out the fire with a booster line which he had called for when he first went upstairs. He broke out the window and then got some fresh air. After getting his breath he had pain in his arm and chest and his heart was “pumping real hard.” He felt like he was “going to go out” and so went back to the steps, where he lost consciousness. He came to in the hospital. He described the second fire as black and hot with lots of gas and cutting to the lungs. He estimated that he was exposed to heat and gases at the second fire for about twenty minutes. He had been in very smoky fires before and generally the effect would wear off in a few days. He had never had fires come this close together before. He was discharged from the hospital on May 21 and went home where he remained in an air conditioned room for a week. After that he went to his own physician, Doctor Schmidt, who treated him every week for a while and after that every two weeks. At the time of hearing he had been seeing Doctor Schmidt every two weeks. For the first two or three months following the fires respondent had pain in the chest and arm and pressure there; his lungs were sore. At the time of the hearing he still had the pain and the pressure and his lungs were sore. During his service respondent had gone to many mattress fires and many during his last year of service but never any as close together as those described. From 1959 through May 18, 1962, respondent carried out his duties in the fire department without any difficulties in responding to fires, with no pain or shortness of breath through that period. As captain he was the “gang leader,” going first into fires with his men following him. In the course of such duties it was sometimes necessary to run and physical exertion was necessary in dragging things out of fires and in getting hose and water into place. During April 1962 his company laid 12,000 feet of hose and was on fire duty twenty-four hours. Except for flu he did not miss a day of work in the 1959-May 18, 1962 period. During this time he was taking medication “for cholesterol” and his weight was reduced.

Other firemen present at the two fires and the householder at 517 Antelope corroborated respondent’s story as to the principal incidents of the two fires, including the character of the smoke, the rescue at 517 Antelope, the other activities of the respondent at each fire and his incapacitation.

Respondent had collapsed at a fire in 1932 hut never in the years between 1932 and 1962. In recent years he had never been hospitalized for smoke inhalation.

Captain Maniaci, who was in charge of the hook and ladder crew while respondent managed the pumping crews in responding to fire calls, testified that from the first of the year 1962 he observed respondent handling his regular duties and that “I would say he was very capable of handling himself at all times.”

Upon cross-examination respondent stated that in 1959 he was in the veterans’ hospital where he had sought admission because his left hip and leg bothered him and he was short of breath. He was asked: “You had a heart condition too at the time?” Answer: “Yes, hardening of the arteries, I believe.” Q: “You went in because of trouble with shortness of breath also?” A: “Yes.” Q: “Did you notice this shortness of breath before you went in the hospital when you were working on the department?” A: “A little bit, yes. The doctor said I had too much fat then.” Q: “Did you have trouble with your heart and shortness of breath after 1959 and before 1962?” A: “No, my record shows only — hadn’t missed a day only for flu.” Upon redirect examination, respondent testified that from 1959 through May 18, 1962, he carried out his duties in the fire department, experienced no difficulty in responding to fires and had no pain or shortness of breath in that period.

The clinical record of respondent at the veterans’ hospital was later introduced. The narrative summary shows that about six weeks before admission respondent ran upstairs to answer the telephone and was so short of breath he could hardly talk. At that time he had a sharp substernal pain for a few seconds. This same type .of pain recurred the day before admission along with shortness of breath when climbing stairs. An electrocardiogram on October 21, 1959, was within normal limits but another taken on October 30, 1959 showed abnormal response to exercise. The summary concluded with the following diagnosis:

1) Arteriosclerotic heart disease Anginal syndrome Functional Class II —T reatment — Improved.
2) Obesity due to excess of food —T reatment — Improved.
3) Calcification of ligaments attached ■ to the ischial tuberosity, left —T reatment — Improved.
4) Arteriosclerosis, generalized —Untreated—Unchanged.

The members of the Board’s advisory medical board examined respondent and in succession, found him, separately, not “capable of carrying on his duties as a firefighter and should be retired,” “completely unsuitable for a firefighter” and “totally and permanently disabled as far as carrying out the duties of his job.” Each examiner reported in more or less detail his findings of respondent’s physical condition which led to such his conclusion. Those findings which have relation to the subject of causation were as follows:

Doctor Rader — “Suffering from mild hypertensive arteriosclerotic heart disease, angina pectoris and to have marked exer-tional dyspnea. In addition to this he has cardiomegalia of several years standing.”

Doctor Davidson — “Is in mild right sided congestive heart failure, the exact etiology of which is not apparent at this time * * *. Chest X-ray revealed a minimal left ventricular enlargement with a prominent apical fat pad, tortuous elongated aorta without calcification * * *. It is unlikely that the underlying disease process is caused by his smoke inhalation, but rather that the strenuous exercise and diminished oxygen supply on May 18 precipitated the onset of congestive heart failure.”

Doctor Conrad — “This patient shows evidence of mild right-sided congestive heart failure even though he is on apparently a full maintenance dose of digitalis.” Electrocardiogram considered to be within normal limits. Difficult to outline the heart by percussion but it does not appear to be enlarged. However “X-ray of the chest revealed slight left ventricular enlargement with an elongated tortuous aorta * * “I do not believe that the condition can be ascribed to the injuries in question. That is, the two episodes of exposure to smoke. Certainly the pulmonary emphysema and right-sided congestive failure were present prior to this time and the two episodes in question precipitated the symptoms but did not cause the condition.”

Respondent’s medical witness, Dr. James C. Redington, Jr., saw respondent for the first time on May 24, 1963. The history recorded by Doctor Redington is in accord with the testimony of defendant and the examiner had available the record from the city hospital, including X-rays and cardiac examination. He found that respondent’s breathing was not normal, more shallow, and concluded that this condition was related to emphysema. The heart was enlarged ; angina pectoris, pain in the chest caused by insufficient supply of blood to the heart, was suggested. He concluded that respondent had arterial heart disease with symptoms precipitated by activities on the day of the fires. “He had an onset of heart trouble which would be described as failure of the heart, I would say, and chest pain, due to lack of blood supply to the heart * * *. This kind of heart disease is chronic deterioration of arteries to the heart and it cannot keep up with the activities of younger life for this is something-men get after they get older and the type of thing he did that day caused him to have these symptoms * * In explanation of his use of the word “precipitated”, he said: “I mean a man who had gone along with the symptoms and suddenly because of something he did that day he developed, suddenly symptoms he did not have before that for some time. I want to make clear when you say a thing is precipitated the basic condition of the heart is there. The fact he had developed trouble was due to-what he did that day. This would be true whether it was working or anything a man went out and did, some situation would result and this trouble was due to what he did * * *. I would say the events he described which had occurred that morning in May 1962 would be a cause of the clinical trouble and that was < what resulted in his symptoms.”

Adverting to the record of the Veterans' Administration hospital which recorded that after exertion the respondent’s electro-cardiographic tracing became abnormal, Doctor Redington testified: “This would mean to me — as an internist this would mean to me a man functioning under ordinary activity, I would tell him to be careful. He could do a certain amount of work, but by putting himself in heavy stress, this would damage his heart.” Referring to the four-part diagnosis found in the veterans’ hospital clinical record summary, the witness was asked: “What would be the type of physical condition at that time that would result in that type of diagnosis based on that history?” His answer was: “That would mean to me, as I reviewed that, that he had some kind of chest pain due to arteriosclerotic heart disease at that time. From what you read in the summary there, I would conclude that after that exertion he mentioned there he had some kind of pain which they felt was due to angina pectoris from his heart * * * I could say from this functional Class II they mention, that a person with that can be held in Class I. If in Class II— he could perform ordinary activities, but if he would have pushed, would be pushed to severe stress and exertion he would have trouble * * *. I would say if a Class II patient at that time that I would tell him to avoid heavy exertion and work.” Question: “As a doctor, you would not expect him to run up to a third floor room and do a lot of work or exert himself or lift something shortly after that running upstairs had occurred earlier that day?” Answer: “If I felt a person with this trouble was a Class II type patient, I would tell him not to run upstairs.” Question: “You would tell him that because if he had that type of trouble he could develop a heart failure?” Answer: “Yes, he had the potentiality there.”

Further examination of Doctor Reding-ton produced the following questions and answers, among others:

“Q. Let me put my question again and this is a general question not related to any particular individual. Is it true that if you have a degree of arteriosclerotic heart disease that it can develop into a disabling condition or heart failure without any exertion?
A. Yes, that is possible.
Q. It would seem that whenever he had an exertion type of activity it would tend to worsen this condition. Is that something general?
A. Yes * * * you could have. It depends on the degree of exertion and degree of trouble he has, and not where you could say climbing one more flight of stairs would do this much more damage.
(Examination by a member of the Board)
Q. He had this before May 18, 1962, but became aware of it then?
A. Yes, but he became aware of it then because of serious symptoms he never had before.
~D
Q. But he had shortness of breath and pains back in 1959?
A. Yes, but not the serious symptoms he had that day.
Q. So this is something all of us could have and not know about it?
A. If one day you are functioning normally and another day couldn’t breathe and couldn’t go on with your normal duties, there has to be some precipitory cause and I concluded this was due to severe exertion and the exertion described to me I would consider severe exertion.”
⅝ ⅜ ⅜ ⅝ ⅜ ⅝

Being referred to the 1959 veterans’ hospital record, Doctor Redington stated: ■ “It says on the physical examination no enlargement of the heart, which is a pretty good thing, and on the x-ray findings they say no conclusive radiographic abnormality was demonstrated in the chest. Let me say in explanation — In 1959 they said no enlargement of the heart and the electro-cardiographic tracing was within normal limits. If we went no further we could say no heart trouble at all. But they went further and did a stress test and concluded there was something wrong with the heart. At rest it was normal.”

At the conclusion of testimony before the Board, counsel for the Board offered numerous exhibits which were received without objection by respondent. These exhibits included, inter alia, various fire department and police reports relating to the fires of May 18, 1962, hospital reports relating to respondent’s admission and presence with physician’s medical report therein, reports of respondent’s personal physician to fire chief’s office and to the Board, individual letter reports by the three members of the Board’s advisory medical board relating to examinations of respondent and 1959 Veterans Administration hospital record of respondent. Such exhibits are part of the transcript lodged with the Circuit Court upon respondent’s petition for review. At the hearing in the Circuit Court respondent objected to the exhibits, “on the grounds they are hearsay.” Objection was directed particularly to the letter reports of physicians to the Board; counsel further put his objection in this form: “I want that to show that the objection will go to the unsworn statements and letters that were in that record, that are not admissible as a question of evidence in this, of the proof in this case. I want to make that record objection at this time.”

Our first consideration is the scope of judicial review in such a case as the present one. Section 22 of Article V of the Missouri Constitution, V.A.M.S., provides for direct judicial review, as provided by law, of the decisions, findings and orders of administrative bodies acting in a judicial or quasi-judicial capacity. The section requires that “ * * * such review shall include the determination * * * in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.”

The Administrative Procedure act provides that, upon review: “1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4 of this section, shall hear it upon the petition and record filed as aforesaid.”

“2. The inquiry may extend to a determination of whether the action of the agency * * *

(3) Is unsupported by competent and substantial evidence upon the whole record; * *

It is well established by the decisions of our appellate courts that a reviewing court may not substitute its own judgment on the evidence for that of the administrative body whose proceedings are under review. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Thacker v. Massman Construction Co., Mo.Sup., 247 S.W.2d 623; Carroll Construction Co. v. Kansas City, Mo.App., 278 S.W.2d 817; State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540. “But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.” Wood v. Wagner Electric Corp., supra. In passing upon the question of substantial and competent evidence the court is required to view the evidence in the light most favorable to the decision of the tribunal, giving to the decision the benefit of all reasonable inferences to be derived from the evidence produced. Merriman v. Ben Gutman Truck Service, Inc., Mo.Sup., 392 S.W.2d 292; Enyard v. Consolidated Underwriters, Mo.App., 390 S.W.2d 417. Where the evidence before the administrative body would warrant a finding either of two opposed ways the reviewing court is bound by the tribunal’s findings and “it matters not that there may be evidence which would support a finding” to the contrary. Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; DeMoss v. Evens & Howard Fire Brick Co., Mo.App., 57 S.W.2d 720; Buchanan v. Nicozisis, Mo.App., 78 S.W.2d 492. And see Gleason v. Titanium Pigment Co., Mo.App., 93 S.W.2d 1039. And, of course, the determination of the credibility of witnesses is a function of the administrative body.

The decision of the Board of Trustees was a negative one which necessarily included a finding that respondent’s condition when he retired was not “the natural and proximate result of an accident occurring while in the actual performance of duty or exposure while in the actual performance of duty.” Therefore it is obvious that that condition was attributed to other causes. Counsel for the Board maintains that there was substantial and competent evidence of such other causes; to that contention our attention must be directed.

It has been indicated how, at the end of testimony, counsel for the Board introduced numerous exhibits to which no objection was made. Counsel for respondent at this point emphasized certain portions of two of the exhibits by dictating for the record quotations from those exhibits. He then stated : “The taking of evidence at this hearing is now completed.” At the hearing in the Circuit Court respondent objected to “those exhibits” on the grounds that they were hearsay, with special emphasis on the reports of the medical advisory board, “never sworn to”, whose makers were not brought into the hearing before the Board as witnesses. Opposing counsel maintained that the exhibits were competent evidence because no objection to them was made and because they were “all handed to it [the Board] and presented to it in the regular course of its operations.”

Respondent presents us with a line of cases holding that, whether the issue is one of substantial and competent evidence or not, hearsay evidence does not constitute substantial and competent evidence even though it was admitted by the administrative body without objection being made thereto. We do not believe that such a rule can have application to the exhibits here— especially not to those exhibits to which special exception is made, namely, the reports of the Board’s medical advisory board.

Section 335.160, Revised Code of St. Louis (identical with Section 87.160(2), V.A.M.S.) provides:

“The board of trustees shall designate a medical board to be composed of three physicians who shall arrange for and pass upon all medical examinations required under the provisions of this Chapter [87.-120-87.370 of the statutes], shall investigate all essential statements and certificates made by or on behalf of a member in connection with an application for disability retirement and shall report in writing to the board of trustees its conclusions and recommendations upon all the matters referred to it.”

The reports of the medical examiners are records required by law to be made to the Board and so constitute public records; as such they are competent evidence to establish such facts as the law requires to be kept. Woods v. National Aid Life Assn., Mo.App., 87 S.W.2d 698. Such records are admissible without the aid of any statute saying that they should be admitted. Galli v. Wells, 209 Mo.App. 460, 239 S.W. 894. See Gurno v. Janis, 6 Mo. 330. Being competent evidence they are removed from the category of hearsay evidence, or if one is interested in an alternative type of verbalization, one can become conventional and say that they are an exception to the hearsay rule. In any event, being competent they cannot be characterized as incompetent.

Respondent’s medical witness testified as to the medical history recited to him by respondent ; at that time he also consulted the records of the city hospital relating to respondent and arrived at his conclusion regarding the nature of respondent’s disability. The subject of the Veterans Administration hospital record was opened up on direct examination. The witness testified as to the content of certain parts of those records and had the benefit of photostats of the records when examining respondent. On cross-examination, counsel without objection read from the report that portion of the summary designated as diagnosis, which embodied (as heretofore stated) the findings relating to arteriosclerosis, and questioned Doctor Redington as to the kind of physical condition which would lead to that type of diagnosis; this brought the reply: “That would mean to me, as I reviewed that, that he had some kind of chest pain due to arteriosclerotic heart disease at that time.” Upon cross-examination respondent had previously testified concerning his admission and residence in the veterans’ hospital in 1959, that he had “hardening of the arteries” at that time and that he “went in because of shortness of breath also.”

Thus, we have before us definite evidence that in 1959 respondent had arteriosclerotic heart disease and shortness of breath. The action of his heart when he was at rest was within normal limits, but after exercise it showed an abnormal response. The development of arteriosclerosis is part of the aging process and is progressive in its nature. After a degree of arteriosclerosis has been established, in the normal course of events the condition will worsen as time goes on. It is possible for such a condition to develop heart failure without any exertion. The veterans’ hospital diagnosis meant to the respondent’s medical witness among other things that respondent had some kind of chest pain due to arterio-sclerotic heart disease, — that he would conclude that after exertion respondent had a kind of pain which the hospital examiner felt was due to angina pectoris from his heart. Doctor Redington testified further that if a patient were.in Functional Class II, to which the veterans’ hospital diagnosis assigned the respondent, he would advise him to avoid heavy exertion or work, that if such a person were pushed to severe stress or exertion he would have trouble; if he was in the condition stated he could develop a heart failure because he “had the potentiality there.” “I want to make clear when you say a thing is precipitated the basic condition of the heart is there.”

From the testimony of respondent’s medical witness we believe that the Board could reasonably infer that respondent’s arteriosclerotic condition worsened in the two and one half year period between respondent’s departure from the veterans’ hospital and the date of the fires. In the light of Doctor Redington’s testimony it could reasonably be inferred that the right-side congestive heart failure as found in the reports of Doctors Conrad and Davidson (August 6, and August 3, 1962) resulted from the 1959 arteriosclerotic condition. Doctor Conrad of the medical advisory board expressed the belief that the disabled condition of respondent after the fires could not be attributed to the two episodes of fire and smoke. Doctor Rader expressed no opinion on that subject and Doctor Davidson stated that it was unlikely that the underlying disease process was caused by smoke inhalation.

Such evidence with the inferences reasonably to be drawn from it cannot be regarded as insubstantial. As the Board by its findings in the case obviously attributed respondent’s disabling condition (which was undisputed) to some cause or causes other than respondent’s experience at the two fires, we find that the detailed evidence affords sufficient substantial and competent evidence to support the findings and order of the Board. In view of the responsibility rested in the Board to weigh the evidence before it and to determine the credibility of witnesses, we cannot say that its findings are contrary to the overwhelming weight of the evidence.

The judgment of the circuit court is reversed and the order of the Board of Trustees of Firemen’s Retirement System of St. Louis is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment of the circuit court is reversed and the order of the Board of Trustees of Firemen’s Retirement System of St. Louis is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.

      . The relative ordinance provides:
      “Upon application by the member or the chief of the fire department any member, who has become totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty or exposure while in the actual performance of duty in response to an. emergency call shall be retired by the board of trustees, if the medical board shall certify that the member is mentally or physically incapacitated for further performance of . duty, that such incapacity is likely to be 'permanent and that the member should be retired. If the accident occurred prior to age sixty, application for benefits must be made before age sixty, except that the interval between the date of accident and of application must be at least six months.” (Sec. 335.-280, identical with Sec. 87.200, RSMo, enacted Laws 1961, p. 214).

      . It may be noted that under the ordinance the disabling condition which qualifies an applicant for the larger retirement allowance must result from an accident or exposure. Incapacitation because of disease is not covered by the relevant ordinance section.


author: HOGAN, Judge.

text:
    Linda COLLINS, by her duly appointed guardian and curator, Ethel Collins, Plaintiff-Respondent, v. Earl NELSON, Defendant-Appellant.
    No. 8290.
    Springfield Court of Appeals. Missouri.
    Jan. 15, 1965.
    Modified on Court’s Own Motion; Rehearing or Transfer Denied Jan. 15, 1965.
    Application to Transfer Denied March 8, 1965.

      Claude T. Wood, Richland, George M. Lentz, Cohn & Lentz, Waynesville, for defendant-appellant.
    Jean Paul Bradshaw, Warren S. Stafford, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff while she was riding as a guest passenger in an automobile being driven by the defendant. The accident which gave rise to this action occurred shortly after 7:30 P.M., September 6, 1958, on Highway 133 near Crocker, Missouri, when the automobile in which the plaintiff and her companions were riding left the highway and struck a utility pole. A jury found for the plaintiff and assessed her damages at $10,000. The defendant has appealed.

Late in the afternoon on the day in question, the plaintiff, who was then a high school sophomore, 14 years old, met several of her schoolmates at a drug store in Crock-er. In the group were the defendant Earl Nelson, Virgil McMurty and Shirley Starnes. Virgil’s age is not shown and he did not testify at the trial, but Earl and Shirley appear to have been 16 (Earl testified that he was 21 at trial time), and all the members of the group appear to have been attending high school at Crocker. After some discussion, the youngsters decided to attend a movie at Dixon, Missouri, a short distance northeast of Crocker.

With her parents’ permission, Shirley had driven the family automobile “uptown,” and she asked Earl, with whom she was then “going steady,” to drive. About 7:00 or 7:30 P.M., the group left the parking lot at Crocker, with Earl and Shirley in the front seat and the plaintiff and Virgil in the rear. It was either dark or “getting dark” at the time.

The accident occurred after the group had traveled north on Highway 17 to its junction with Highway 133, and then some four miles east on 133 toward Dixon. At the point in question, Highway 133 is an east and west blacktop or bituminous highway, some 20 feet wide, and is straight with a slight downgrade to the east. The defendant testified that just before the accident happened he was proceeding east about SO miles per hour, with his headlights on and his range of vision ahead clear for some one-half mile. There was no traffic, either approaching or following, and no obstruction to his view ahead. Earl stated that he had driven this particular automobile “two or three times” before, and that he knew how to steer and maneuver it. There is no suggestion that the automobile was mechanically defective, and both Shirley and Linda were of the opinion that Earl was driving carefully before the accident.

The parties sharply dispute whether the evidence shows the immediate and actual cause of the accident; however that may be, the record shows that the automobile left the roadway and went into the ditch on the left or north side of the road. As it came out of the ditch, the left front door came open and Earl fell from the car onto the highway. The automobile then traveled some 400 to 500 feet further to the east, struck a utility pole on the right or south side of the highway, and came to rest. As a result of this collision with the utility pole, the plaintiff sustained severe and disfiguring injuries. Other facts will be noted in the course of the opinion.

The first point for discussion is the defendant’s contention that the plaintiff did not make out a submissible case. The plaintiff relied upon the res ipsa loquitur doctrine and submitted her case to the jury upon that theory. We do not understand the defendant to contend generally that the doctrine of res ipsa loquitur cannot be applied to casualties of this character and nature; all he says, if we have understood correctly, is that since the whole evidence permits an inference that the legal cause of the accident was something other than negligence of the defendant, the plaintiff was not entitled to submit her case under the doctrine of res ipsa loquitur.

In our view, the evidence concerning the actual and immediate cause of the accident is indefinite almost to the point of being obscure. The defendant testified that immediately before the automobile went in the ditch on the left or north side of the road, he was driving east at a speed well within the statutory limit. There was no other traffic on the highway, and his vision ahead was unobstructed for approximately one-half mile. He had driven this automobile two or three times before and understood, he said, how to steer and maneuver it. Being asked if he was experiencing any difficulty with the automobile, the defendant answered unequivocally, “No.” No contention is presented that the automobile was mechanically defective.

From this point, the sequence of events becomes indistinct. The defendant lays great stress on the evidence indicating that shortly before the automobile left the road the windshield became blurred because it was dusty and a light shower, falling upon the dust, temporarily obscured the defendant’s vision. His trial theory, which he sought unsuccessfully to submit, was that the accident happened because his vision had suddenly become so obscured, and the automobile left the road while he was attempting to locate the control for the windshield wipers. The defendant’s recollection of the incident was that “ * * * it just started sprinkling there and had just messed up the windshield to where it was — it wasn’t clear,” and “ * * * I’d asked about the windshield wipers and — and I don’t know whether they were ever turned on or not, and the next thing I knew I was in the ditch.” Earl also stated that “ * * * I remember pulling it out of the ditch. And just as I came out of the ditch the door came open and I was in the middle of the highway. I’d fell out.” Asked by counsel “how far back from” the accident it had started sprinkling, however, the defendant answered he was “not for sure,” and he seems to have agreed that some interval elapsed between the time the shower began and the accident occurred. The defendant also stated, “I don’t know,” when he was asked if he had ever applied his brakes; and when he was questioned as to whether he remembered leaving the road and going into the ditch on the left side, he answered, “No.” The defendant “couldn’t say for sure” whether he had ever lifted his foot from the accelerator from the time he started down the slope on which the accident occurred until he fell out of the car.

The other witnesses’ accounts of the accident, we may say, were no more definite. The plaintiff’s recollection was that “ * * I was talking to Virgil, and first thing I knew we went in the ditch on the left side of the road. And * * * we came back up on the road and went across the road and in the ditch on the right-hand side and hit an electric pole.” Her description of the impact with the pole was that “I just flew up and hit the windshield and flew back to the back seat.” Shirley’s account of the accident was that “ * * * we were just going down the road and he [Earl] asked— started raining a little bit. He asked me where the windshield wipers was, and I remember showing him, trying to tell him where they was at. And we went off in that ditch.” Shirley didn’t know how long an interval had elapsed between the shower and the time they went in the ditch; she said that “ * * * it [the automobile] come back -out and he [Earl] wasn’t in there, and that’s all I remember.”

We cannot agree with the defendant that no submissible case was made. It is too well established to be seriously disputed that loss of control or failure to control the movement of an automobile so that it leaves the highway and causes injury or damage ordinarily permits an inference of negligence on the part of the driver, Lindsey v. Williams, Mo., 260 S.W.2d 472, 474-475 [1], cert. den. Williams v. Lindsey, 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Harke v. Haase, 335 Mo. 1104, 1108-1109, 75 S.W.2d 1001, 1002-1003 [1] [2,3]; Wells v. Asher, Mo.App., 286 S.W.2d 567, 568 [1]; and so long as the plaintiff’s evidence does not itself clearly show the cause of the accident, or if the true cause is left in doubt, he is not deprived of the right to invoke the doctrine of res ipsa loquitur. Wells v. Asher, supra, 286 S.W.2d at 569-570 [2], Broadly speaking, the plaintiff’s evidence in this case tends to prove that while the defendant was in control of the automobile, driving along a straight and unobstructed highway at a moderate rate of speed, he not only lost control of the vehicle so that it left the highway, but fell completely out of the automobile. This is precisely the kind of fact situation to which the doctrine of res ipsa loquitur is ordinarily applied, Lindsey v. Williams, supra, 260 S.W.2d at 474-475 [1]; Tabler v. Perry, 337 Mo. 154, 165-167, 85 S.W.2d 471, 476-478 [10] [11, 12]; Vesper v. Ashton, 233 Mo.App. 204, 208, 118 S.W.2d 84, 87 [1, 2]; and, as the plaintiff carefully points out, making a prima facie case under the res ipsa loquitur doctrine creates a factual inference of negligence—not a mere presumption. The plaintiff’s prima facie showing did not disappear, as would a presumption, simply because the defendant offered evidence in explanation of the casualty, Clark v. Linwood Hotel, 365 Mo. 982, 986, 291 S.W.2d 102, 105 [3]; Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 37-38, 142 S.W.2d 455, 460 [9,10], 129 A.L.R. 829, and we therefore hold that the plaintiff made a submissible case under the res ipsa loquitur doctrine.

The defendant argues, with great conviction, that the trial court erred in refusing his Instruction D-B. This instruction, after hypothesizing that the defendant was driving the vehicle involved at the time and place in question, then continues:

“ * * * and was at all times referred to in the evidence exercising the highest degree of care in the operation of said automobile, and if you find and believe from the evidence that when said automobile being operated by the defendant reached a point on said highway approximately four miles East of Crocker, Missouri, that it started to rain, if you so find, and that said rain fogged up the windshield on said automobile so that defendant could not clearly see the highway he was travel-ling on, if you so find, and if you further find and believe from the evidence that when the windshield became fogged up that the defendant in order to see, tried to turn on the windshield wipers of said automobile, and by reason of his being unfamiliar with the said automobile that he was driving, if you so find, that he could not locate said knob, lost control of his automobile, if you so find, and said automobile left the highway into a ditch on the North side of said highway, then crossed the highway to the South side of said highway and was caused to collide with a utility pole, if you so find, and that the defendant did not drive said automobile into the ditch on the North side of said highway as a result of negligence on his part as submitted to you in Instruction No. — then you are instructed that the plaintiff herein is not entitled to recover from the defendant Earl Nelson and as to plaintiff’s cause of action your verdict will be in favor of the defendant Earl Nelson and against the Plaintiff.” (Italics are ours.)

This instruction, the defendant says, is a converse to the plaintiff’s verdict-directing instruction; and, inasmuch as the instruction is supported by the evidence, it should have been given, because a defendant has the right to an affirmative submission of his own theory of the facts shown in evidence, which, if found, would bar recovery by the plaintiff and exonerate the defendant. The plaintiff has answered this point rather elaborately, maintaining that Instruction D-B was properly refused because it does not in fact postulate a situation in which the defendant would be exculpated, and because it does not, as it is drawn, exclude all possible inferences of negligence on the defendant’s part.

Actually, the defendant’s point in connection with the instruction is only another facet of his broad general argument that he had a good defense to the action, which was in effect ignored by the trial court, though he proved and properly drew an instruction submitting that defense. Though we could agree as a general matter that a defendant is entitled to an affirmative submission of his own theory of the facts shown which would, if found, preclude recovery by the plaintiff and absolve the defendant, Anderson v. Welty, Mo.App., 334 S.W.2d 132, 139, and cases cited note 11, still this does not carry with it the right to submit an erroneous theory. Huselton v. Commerce Trust Co., 228 Mo.App. 150, 160, 64 S.W.2d 757, 763 [13]; 1 Raymond, Missouri Instructions, Section 39, page 44; 88 C.J.S. Trial § 301, page 818. We view the defendant’s legal premise— that he had a good defense if the casualty resulted from his inability to operate the windshield wipers — as being basically faulty. The defendant’s evidence was all to the effect that the automobile was under control at the time the shower began, but he was unable to say whether he ever slackened his speed or even whether he ever lifted his foot from the accelerator before he left the highway and went into the ditch. It would appear further that if he was driving at a reasonable speed, as he testified, there was nothing to prevent him from stopping within a reasonable distance. If the defendant’s vision were suddenly obscured, it then became his duty to take affirmative measures commensurate with the existing situation. Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471 [8]; Anno., 42 A.L.R.2d 13, 317-319, Section 155 (1955). We are aware that the instruction submits that the defendant was at all times in the exercise of the highest degree of care, and we agree that the degree of care required of him would not vary; however, the precise question to be decided was whether the defendant took such measures, in view of the conditions then obtaining, as comported with the highest degree of care. Peoples Drug Stores v. Windham, 178 Md. 172, 12 A.2d 532, 538-539 [12, 13]. Since the defendant elected to hypothesize the facts under his theory, he was required to formulate and submit all issues requisite to a finding in his favor; and we think, in this instance, he was required to negative the possible inference that the defendant caused the accident by failing to slow or stop the vehicle after his vision became obscured. Jones v. Terminal R. Ass’n of St. Louis, Mo., 242 S.W.2d 473, 478-479 [11-13]. All that the defendant did, according to his hypothesis (and indeed his general theory of defense), was to attempt unsuccessfully to locate the control for the windshield wipers. A verdict for the defendant upon this factual basis would exonerate him merely because he was incompetent. While we could agree that a driver is not required to possess the highest degree of skill, he is required to be a competent driver, and many cases from this and other jurisdictions make it plain that if a driver loses control of his vehicle because of his incompetence in operating it, he is liable for any resulting injuries. We therefore consider that Instruction D-B did not, even if it were supported by the evidence, submit a matter of legal excuse, in the circumstances of this case, and was properly refused.

The defendant’s final two points are that the trial court erred in refusing his request to advise the jury that the defendant’s insurance carrier had a “policy defense,” and that the court permitted improper argument on the part of plaintiff’s counsel. We consider these two points together.

At the outset of the trial, counsel for the defendant advised the court, in chambers, and counsel for the plaintiff that “* * * [we] represent the M. F. A. Insurance Company and we are defending this case under a policy defense. We feel that there’s no liability on the part of M. F. A.” Defendant’s counsel further explained his position by saying that “ * * we feel that if the attorneys for the plaintiff, in their voir dire, should bring in the question of insurance, that we are also entitled to inform the panel that we do have this policy defense, and that was the purpose for asking for this hearing outside of the presence of the jury, that if insurance is injected into it, that we have a right and a privilege to — to show to what extent we feel that we have any liability, or that we do have no liability in this matter.” Plaintiff’s attorney then stated that he had intended to ask the jury only one question, en masse, “ * * * if any of them were officers, stockholders or agents or representatives of the named insurance company. We intended to press the matter no further.” The defendant’s attorney then said: “We think you’re permitted to do it all right, but we feel that under the peculiar circumstances of this case we’re entitled to show what our relationship to this defendant is. We are not representing the defendant. We’re representing the insurance company under a policy defense.” The trial court stated that “ * * * that request on your behalf will be overruled.” Such record as we have concerning the voir dire shows that the following question was propounded to the veniremen:

“ * * * Have any of you, or any members of your immediate family, every been, or any of you or any members of your immediate family at the present time associated with the M. F. A. Mutual Insurance Company, as an officer, director, agent or stockholder? If you have, just hold up your hands. ⅝ ⅜ ⅜ if

The record is otherwise silent as to the course of the voir dire. It does not show what examination, if any, was undertaken by defendant’s counsel, nor does it show what in fact the “policy defense” was. The appellant asks us to rule very broadly, as we understand his position, that since the plaintiff propounded a question concerning the panel’s connection with the insurance carrier, he was entitled to propound his theories of law concerning coverage to the jury. The difficulty with the appellant’s position here is that, upon the record before us, the interest of the insurance carrier was unquestionable, and we think we cannot assume that the question of insurance coverage was prejudicially “injected into the case” simply because plaintiff’s counsel asked one general question concerning the connection of the veniremen with the M. F. A. Insurance Company. Swinger v. Bell, Mo., 373 S.W.2d 30, 31-32 [1, 2]; Bunch v. Crader, Mo.App., 369 S.W.2d 768, 770-771 [1] [2, 3]. The defendant does not claim, nor undertake to show, prejudice on the part of any individual juror, as was shown or claimed in such cases as Beard v. Railway Express Agency, Inc., Mo., 323 S.W.2d 732, 737-738; Cleghorn v. Terminal Railroad Ass’n of St. Louis, Mo., 289 S.W.2d 13, 22-24; and Moore v. Middlewest Freightways, Mo., 266 S.W.2d 578, 584-586. Not only does the appellant have the burden of establishing error upon appeal, but he is required to present all of the “record, recitals, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision,” Rule 82.14(a), V.A.M.R.; and upon the skimpy facts presented, we simply cannot fairly rule the contention made by the defendant. The most we can say is that the defendant has not established reversible error. Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, 156-157[12-13].

The defendant also says that he was prejudiced by the final argument of plaintiff’s counsel. His position is that certain of counsel’s remarks constituted an improper and prejudicial argument that the real defendant was an insurance carrier.

The transcript shows that one of the attorneys for the defendant began the final summation in the following vein:

“ * * * Earl Nelson was only sixteen, and the other two people in the car were about the same age. * * * A bunch of young kids going to the high school in Crocker, trying to find something to do on Saturday evening, and they start to Dixon and they get into an accident and several of them get hurt, including the plaintiff. And this big law firm from Springfield, Missouri, would like to have you go out and say that because of this situation we’ve got to saddle this boy with a big judgment.”

The argument continued:

“ * * * And now, are we going to saddle this boy with a big judgment, or any kind of judgment because the Good Lord saw a chance or wanted to give us a rain when it was dry ? That’s what they’re trying to say to us.”

Later, another of defendant’s attorneys, continuing the summation, argued:

“ * * * But he’s [Earl is] inherently honest, and even to save a judgment, to protect himself from having a big judgment entered against him, he’s not going to come in here and tell you folks something unless he knows it’s a fact. * * * ”

Counsel continued, still later:

“* * * So even to save a judgment to be entered against him for fifteen thousand, when they ask him: ‘Do you know just where you were or how far you traveled after it started raining?’ [He says] ‘Nope, I don’t.’ He’s honest about it.”

Still later:

“* * * [A] nd I don’t think you’ll find him negligent. And if you don’t, think what it’s going to mean to this boy if you saddle him with a fifteen thousand dollar judgment

Counsel for the plaintiff, at this point, objected to the tenor of the argument about “saddling this boy with a judgment,” on the ground that such an argument was improper. His objection was overruled. So, in his summation, he dealt with ■ the matter thus:

“ * * * You’re not concerned about ‘saddling,’ as they put it, a judgment on somebody; you’re concerned with what is said in these instructions. * * * Don’t you be worried about who you’re saddling a judgment on. You follow the instructions of the court.”

The impropriety of suggesting, by one means or another, that the real defendant is an insurance carrier has been fully developed elsewhere by this court, and we shall not examine the subject again in detail. Hildreth v. Key, Mo.App., 341 S.W.2d 601, 615-617 [31] [32, 33]. See Anno., 4 A.L.R.2d 761, 787-792 (1949). However, it is just as improper to appeal to the jury’s sympathy because of the litigant’s poverty or lack of insurance coverage. Conrad v. Twin Oaks, Inc., Mo.App., 344 S.W.2d 286, 288 [1] [3]. Either kind of argument may result in prejudicial error. Conrad v. Twin Oaks, Inc., supra, 344 S.W.2d at 288 [2]; Annos., supra, 4 A.L.R.2d at 787; 32 A.L.R.2d at 17-18, 33.

In this case, we consider defendant’s point to be overstated. When the final arguments are considered as a whole (and in context) we find ourselves unable to say that plaintiff’s counsel made any deliberate attempt to persuade the jury to return a larger verdict than it might otherwise return simply because there was insurance coverage, as was the case in Buehler v. Festus Mercantile Co., 343 Mo. 139, 154, 119 S.W.2d 961, 967; nor, for that matter, can we confidently say, upon the record before us, that the jury’s consideration of insurance coverage was in fact provoked or stimulated either by the remarks of plaintiff’s counsel or defendant’s counsel.

It is difficult to escape the conclusion here, however the arguments may have been interpreted by the jury, that the argument complained of was retaliatory in its nature. Several times during the course of defendant’s summation, it was argued that the jury should “think what it’s going to mean to this boy if you saddle him with a judgment,” or words of similar import, which could quite possibly be understood as meaning that the return of any substantial verdict against the defendant would impose an insufferable hardship on a young man of his station and means. The plaintiff simply countered with the argument that it was of no concern to the jury who was “saddled” with the judgment, and it appears to us that plaintiff’s counsel was simply giving as good as he got, so to speak. Otherwise put, the defendant’s remarks justified plaintiff’s reply, and the defendant may not now complain. See Nelson v. O’Leary, Mo., 291 S.W.2d 142, 150 [18]; Douglas v. Twenter, 364 Mo. 71, 84-87, 259 S.W.2d 353, 361-363 [14-18].

The judgment is therefore affirmed.

RUARK, P. J., and STONE, J., concur.

      . Hughey v. Lennox, 142 Ark. 593, 219 S.W. 323, 325 [5]; Dallas v. De Yoe, 53 Cal.App. 452, 200 P. 361, 363 [4] [5, 6]; Borgstede v. Waldbauer, 337 Mo. 1205, 1212, 88 S.W.2d 373, 375-376; Jackson v. Southwestern Bell Telephone Co., 281 Mo. 358, 371-372, 219 S.W. 655, 658-659 [2-4]; 42 C.J., Motor Vehicles, § 602, pp. 897-898; 60 C.J.S. Motor Vehicles § 265.

      . See also Tomson v. Kischassey, 144 Cal.App.2d 363, 301 P.2d 55, 50-60 [7]; Panelle v. Chicago Transit Authority, 47 Ill.App.2d 119, 197 N.E.2d 501, 502 [2]; Eastern Contractors, Inc. v. State, 225 Md. 112, 169 A.2d 430, 436 [3]; Duplessis v. Guyon, 80 N.H. 317, 116 A. 342, 343; Bean v. Best, 77 S.D. 433, 93 N.W.2d 403, 409-410 [11, 12] [13, 14] (argument that jury stood between client and financial disaster); Herstein v. Kemker, 19 Tenn.App. 681, 94 S.W.2d 76, 94 [23, 24] (argument that verdict against defendant would ruin him for life). Generally, see Anno., 32 A.L.R.2d 9, 33-34 (1953).

      . There are, of course, instances in which evidence of insurance coverage or lack of it is material and admissible. See, e. g., Whitman v. Carver, 337 Mo. 1247, 1252-1254, 88 S.W.2d 885, 888 [1, 2]; Turner v. Caldwell, Mo.App., 349 S.W.2d 493, 498-499; Paepke v. Stadelman, 222 Mo.App. 346, 351-352, 300 S.W. 845, 848 [5] [6]; Anno., supra, 4 A.L.R.2d at 775-786.