author: HYDE, Judge.

text:
    Homer G. SANDER, (Plaintiff) Respondent, v. Ralph Earl CALLAHAN and Hazel I. Lock, (Defendants) Appellants.
    No. 48614.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.
    Correnti & Godfrey, Michael F. Godfrey, St. Louis, for defendant-appellant.
    Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for respondent.
   HYDE, Judge.

Action for $15,400 for personal injuries and property damage sustained in a colli•sion with car owned by defendant Lock, and driven by her son, defendant Callahan. Defendant Lock filed counterclaim for damage to her car. The court directed a verdict for defendant Lock on plaintiff’s claim at the close of plaintiff’s case; and at the ■close of the entire case the jury found for ■defendant Callahan on plaintiff’s claim and for plaintiff on defendant Lock’s counter■claim. Thereafter, the court sustained plaintiff’s motion for new trial against defendant Callahan and overruled defendant Lock’s motion for a new trial on her counterclaim. Defendant Lock appealed from the judgment against her on her counterclaim but has dismissed her appeal. Defendant Callahan appealed from the order .■granting plaintiff a new trial against him and that is the only matter now before us. 'Therefore, we will hereinafter refer to ■defendant Callahan as defendant.

Defendant contends that plaintiff was negligent as a matter of law; therefore we consider the evidence most favorably to plaintiff and state the facts on that basis. The collision occurred on a clear morning in May, with pavement dry, about .7:30 A.M. Plaintiff was driving north, ■down hill, on the inside right lane (next to center line) of Lemay Ferry Road, Highway 61, a four-lane highway. At that time traffic was heavy on the northbound lanes but light on the southbound lanes. The highway speed limit was 50 miles per hour. Plaintiff intended to turn left on Green Park Road about one block north of the top ■of the hill. There was a blinker light, blinking yellow for highway traffic, suspended on cables over the pavement at Green Park Road which went to the west but ended at Highway 61 and did not continue east. South of the top of the hill there was another heavily traveled road coming in from the east. Traffic intending to continue west had to go north on Lemay Ferry Road and turn left at Green Park Road. The bottom of this hill was about a block north of Green Park Road; then to the north Lemay Ferry Road went up another hill at the top of which was a curve beginning about four blocks north, of the top of the south hill and about three blocks north of Green Park Road. At that time in the morning there were always cars at the Green Park Road intersection to make a left turn.

As plaintiff driving his Ford approached Green Park Road, there were two cars and a truck ahead of him in the same lane. The driver of the truck gave a hand signal for a left turn and plaintiff also had his hand out for a left turn. The speed of the truck and plaintiff’s speed from the top of the hill to Green Park Road was “not faster than twenty-five miles an hour.” Plaintiff saw cars approaching from the north, the two closest being at a street one block north of Green Park Road (the low spot in the highway between the two hills). These two cars were in the outside lane and two more were about a block north of the two closer cars and still others about three and a half blocks away at the top of the north hill. (He could make no estimate of their speed.) At the top of the south hill, plaintiff’s car was “a car and a half or two car lengths” directly behind the truck; but as it reached Green Park Road the truck slowed to about 20 miles per hour so that he was then “about a car length behind it.” Plaintiff said there was at least one car behind him to make a left turn and one car in front of the truck, turned left; that his “vision was obstructed a little by the truck” so that he could not say just where the approaching cars were at that time. Plaintiff did not remember whether the truck stopped before turning but said he did not stop. However, plaintiff said that when the truck turned “there was not any traffic close for him”; that “as soon as he crossed the center line and made a left turn I also, being close behind him, followed him, made a left turn to follow him”; and that “I tried to maintain the same distance and watch him so I didn’t run into the back end of the truck.” He further stated: “I had crossed the center lane; I was in the outside lane and the Ford was ready to enter Green Park Road. ■* * * I heard tires screaming, I looked to my right and there was this car coming at me. * * * At an angle, crossing from the inside lane into the outside lane. * * lie was far enough back that I could see the whole car and it looked to me as 'though his front bumper was just dragging on the cement — on the road.” No horn was sounded. Plaintiff was made unconscious and did not remember the impact. ■On cross-examination, plaintiff testified: “Q. At no time before this impact oc•curred did you ever see the automobile ■driven by Ralph Callahan, isn’t that correct ? A. This specific car, no, I didn’t see it. Q. You never did see that car before the accident occurred? A. It could have been a blue one or anything. I didn’t see it.” (Defendant’s car was red.)

Plaintiff’s witness, Robert Faust, driving south saw the collision. He said defendant’s car passed him near the top of the north hill, right after the curve, going 70 miles per hour, when he was going down hill at 50 miles per hour about 300 yards north of Green Park Road; and near the bottom of the hill defendant also passed a truck 60 or 70 yards in front of Faust. (Defendant admitted passing two cars but ■said he passed at 50 miles per hour.) Faust said that a few seconds after defendant passed him, a Ford convertible, about six car lengths behind defendant’s car, passed him at the same speed. (It could have been inferred that these two cars were racing.) Faust said northbound traffic ■was heavy but southbound was fairly light ; and that cars were lined up to make a left turn on Green Park Road, “there were some turning and some still coming” and “several passing on through (northbound) on the outside lane.” (Defendant’s own testimony ■also verified plaintiff’s statement that at least two cars made the left turn ahead of him.) Faust said defendant’s car and the Ford had slowed to about 50 miles per hour when they got within 50 feet of the intersection; and that he “slowed down quite a bit because it looked like something was going to happen.” He said defendant’s car started “changing lanes there like, if he was going to pull to the outside lane there” and was still “close to 45 or 50 miles an hour” starting through the intersection (defendant said 35 to 40 miles per hour) where “there were several cars wanting to make a lefthand turn.” He said he .believed the truck ahead of plaintiff stopped, then “made a lefthand turn, swinging into Green Park Road, and the Oldsmobile (defendant’s car) was starting to cut across the lanes.” He thought defendant’s car “was going to hit the truck, but the truck managed to make it through”; but that plaintiff “started to follow the truck and started to cut a little bit early across the street to follow the truck * * * sort of a sweeping turn,” and was struck near the front. He said plaintiff’s car was going about 10 miles per hour when he first saw it turning but accelerated to about 20 miles per hour. The Ford convertible following defendant’s car got through and went on south.

Defendant argues that plaintiff’s own testimony shows that he had seen approaching southbound cars and made the left turn without knowing where they were with relation to the intersection; that he had. seen cars twice as far from the intersection as he was and knew they had not passed; that he blindly followed the truck ahead of him when his view was partially obstructed without looking for approaching cars; that he violated Sec. 304.021 RSMo 1959, V.A.M.S., by failing to yield the right of way to defendant’s car approaching so close to the intersection as to constitute an immediate hazard; and that plaintiff’s failure to see defendant’s car so plainly visible shows failure to exercise the highest degree of care, citing Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W. 2d 540; Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626; Breshears v. Myers, Mo.Sup., 266 S.W.2d 638; Adkins v. Boss, Mo.Sup., 290 S.W.2d 139; Roux v. Pettus, Mo.App., 293 S.W.2d 144; James v. Berry, Mo.App., 301 S.W.2d 530; Douglas v. Whitledge, Mo.App., 302 S.W.2d 294; and Major v. Davenport, Mo.App., 306 S.W.2d 626.

Plaintiff’s own testimony is somewhat contradictory, vague and indefinite as to what the situation actually was. However, considered in connection with the testimony of his eyewitness Fau'st, we do not find that plaintiff’s evidence considered as a whole conclusively shows plaintiff guilty of contributory negligence. Thus, while the jury would be warranted in finding contributory negligence on the part of plaintiff, we hold that contributory negligence does not appear as a matter of law. The situation here is in some respects similar to that in Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 273, in which it was held the issue of contributory negligence was for the jury, sajdng: “The evidence is that appellant was within the intersection and had proceeded to the center of it while respondent was still a considerable distance east of the intersection. This leaves the -question, ‘was respondent so close thereto as to constitute an immediate hazard?’ If so, appellant had the statutory duty to yield the right of way to respondent, and, ordinarily, a failure to do so would be a failure to exercise the highest degree of care as required by law of the driver of a motor vehicle and would make appellant guilty of contributory negligence. If reasonable minds could not differ on this question then it becomes a matter of law for the court to decide but if reasonable minds could differ on it then it becomes a matter for the jury to decide under proper instructions by the court.”

In this case, plaintiff’s testimony was that when the truck ahead of him turned left there was not any traffic close and he then followed the truck in a left turn, so that at least it is a reasonable inference that plaintiff did look north at that time. Defendant’s car must not have been very close to the intersection then but reached it before plaintiff cleared it because it was traveling at such a high speed. It is difficult to determine how far away defendant’s' car was when plaintiff turhéd because it does not'-appear at what point defendant began to slow from 70 miles per hour. (Faust said it had slowed to SO' miles per hour 50 feet from the intersection.) Perhaps if defendant had not then ' changed from the inside lane to the outside lane, plaintiff might have escaped. There are also other factors to consider, namely the blinking light over the intersection which defendant said he knew meant “proceed with caution” and the obvious situation of cars in heavy morning traffic continuously lining up in the inside lane of Lemay Ferry Road, under the blinking light, to make a left turn into Green Park Road. Under these circumstances and considering plaintiff’s statement that there was no traffic close when the truck turned (which went in without objection) our view is that it reasonably could be found that plaintiff should not have been expected to' anticipate that' a car would be driven up to this intersection at that time at such a speed as the evidence herein shows. These factors distinguish this case from the recent case of Mann v. Pigg, Mo.App., 348 S.W.2d 618, cited in defendant’s reply brief. In Slaughter v. Myers, Mo.Sup., 33S S.W.2d 50, 53, the plaintiff therein, before driving across an intersection, looked south (the direction from which defendant’s car came) “when he could see a distance farther south than a car moving within the lawful speed limit could have traveled before he would have cleared the intersection”; but did not look again. We said: “Although the right to proceed on reaching an intersection first is not absolute and depends on the circumstances (Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575), nevertheless it would not be negligence as a matter of law for plaintiff to assume that any northbound traffic would yield him the right of way after he had looked far enough south to see any car that could have reached the intersection before he did, if traveling at lawful speed, and saw there was none within that distance.” (See also Burke v. Renick, Mo.App., 249 S.W.2d 513, 516, holding it was not contributory negligence as a'toatter of'law to fail continually' to look'in one direction.) Therefore, we hold the issue of plaintiff's- negligence was for the jury.

-[3,4] We also must hold the court properly granted a new trial on the ground that it erred in permitting a police officer, who came after the collision, to testify that he interrogated defendant at the place •of the collision and that defendant stated: “I was driving south on Lemay Ferry Road when, this .Ford pulled out in front of me trying to make a left turn on Green Park Road. I tried to stop but couldn’t.” The ■officer said he reached the -scene about three or four minutes after the collision and that he interrogated defendant eight ■or ten minutes later, after administering first aid to plaintiff. He also said he believed defendant was calm at the time. Defendant says this statement was admissible under the “res gestae” rule, citing Monical v. Armour & Co., Mo.Sup., 307 S.W.2d 389; Wallendorf v. Rensing, Mo. Sup., 329 S.W.2d 779; Stratton v. City of Kansas City, Mo., Mo.Sup., 337 S.W.2d ’927; and Oglesby v. St. Louis Public Service Co., Mo.App., 338 S.W.2d 357. In the Monical case (307 S.W.2d 1. c. 392) it is pointed out that the essential test of .admissibility is spontaneity, “whether it is .a spontaneous statement produced by the event itself.” The circumstances in that ■case ‘ showed spontaneity even though the ■statement was rpade in response to a question because it was shown to have been by ■the claimant “made at a time when he * * * was experiencing pain or shock .and excitement,” due to an injury he had just received in his work. In this case, the evidence is that defendant was calm and there is no claim that he was injured. Nothing was shown to make it admissible ■under the res gestae rule and we hold the -court erred in admitting it. (See Sconce v. Jones, 343 Mo. 352, 121 S.W.2d 777, 782; Cummings v. Illinois Central R. Co., 364 Mo. 868, 269 S.W.2d 111, 118, 47 A.L.R. ;2d 513; Alberty v. Sunshine Biscuit Co., Mo.Sup., 321 S W.2d 418, 423, and cases cited.)' * The statement ’involved in . the Wallendorf case, supra, was held .inadmissible; and -the other cases are cited in support of -defendant’s argument that in any ,-event it was not prejudicial to admit his statement in this c.ase. However, this was a self-serving statement of defendant to the effect that he couldn’t stop after plaintiff 'started to make a left turn and, whether or not we would hold it prejudicial on .an appeal from the judgment, the trial court has decided it was prejudicial by granting a new trial for that reason. “It. is the rule that we are more liberal in upholding the trial court’s áction in granting a new trial than in reversing and remanding a judgment on the same’ground on appeal, especially when the exercise of-judicial discretion is involved.” (Stone v. Engler, Mo.Sup., 349 S.W.2d 38, 41, and cases cited.) It was error to admit this statement and the court was in a better position to determine its prejudicial effect than we are.

The court also sustained plaintiff’s motion for new trial on grounds of error in giving Instructions 4 and 5. The ground stated as to Instruction 4 on lookout was that it gave the jury a false standard of maintaining a constant, careful and vigilant watch and lookout ahead and laterally and imposed an absolute duty on plaintiff “to see, discover and be cognizant of the presence, position and movements” of vehicles on the road without any qualifying standard of highest degree of care. The use of the term “constant” was criticised in, Domijan v. Harp, Mo.Sup., 340 S.W.2d 728; and the failure to tell the jury in plain language “that plaintiff was required to use the highest degree of care to do the hypothesized acts so that the jury would have understood that she was not charged with the absolute duty to do all that could have been done” was held to be error in Welcome v. Braun, Mo.Sup., 319 S.W.2d 586, 589. Counsel should re-examine this instruction prior to another trial and make its requirements clearer in this respect. As to Instruction 5, the ground was failure to hypothesize facts, “giving the jury a roving commission and permitting the jury to determine a question of law as to what constituted ‘an immediate hazard’.” We are not impressed that this is a valid criticism and find that an instruction requiring less as to a negligence finding was held not erroneous in MacArthur v. Gendron, Mo.App., 312 S.W.2d 146. However, plaintiff should consider this criticism in the light of the evidence adduced on retrial.

The order granting a new trial is affirmed and the cause remanded.

All concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    Alvae WINTERTON, Respondent, v. Boydie Clay VAN ZANDT, Defendant, and Farmers Insurance Exchange, a Reciprocal Inter-Insurance Exchange, Garnishee, Appellant.
    No. 48226.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      William G. Johnson, Versailles, Donald E. Willson, S. David Trusty, Kansas City (Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel), for appellant.
    William J. Cason, Kelso Journey, Clinton, for respondent.
   HOLLINGSWORTH, Judge.

Garnishment. On January 23, 1953, plaintiff Alvae Winterton, a resident of the State of Iowa, recovered judgment by default in the Circuit Court of Henry County against Boydie Clay Van Zandt in the sum of $14,250 for personal injuries and property damages sustained in a collision of a motor truck owned and operated by plaintiff and an automobile operated by defendant but owned by one Fred Marsh. Thereafter, plaintiff, acting under a general execution issued on said judgment, initiated this garnishment proceeding against Farmers Insurance Exchange seeking to enforce payment thereof in accordance with an “omnibus clause” contained in a policy of liability insurance issued by Exchange to Marsh covering his liability for bodily injuries and property damages arising out of the ownership, maintenance or use of the aforesaid automobile. Garnishee admitted that said policy was in full force and effect but denied liability to plaintiff under its terms and provisions. Trial of that issue to a jury in Morgan County on change of venue from Henry County resulted in a judgment for plaintiff against garnishee in the sum of $12,500 with 6% interest thereon from January 23, 1953, in the sum of $5,250, total $17,750, from which judgment garnishee has appealed. The amount in dispute vests this coprt with jurisdiction of that appeal.

The p'dliéy in question obligates the insurer to pay on behalf of the insured all sums which he shall become obligated to pay not exceeding $10,000 for bodily injuries sustained by any one person and not exceeding $5,000 for destruction of property caused by accident and arising out of the ownership, maintenance or use of the automobile. The “omnibus clause”, insofar as here material, provides':

“With respect to the insurance for bodily injury liability and for property - damage liability the unqualified word 'insured’ includes the named insured and also includes any person while using the automobile * * *, provided the actual use of the automobile is by the named insured or with his permission * *

It is admitted that defendant came into possession of Marsh’s automobile in Kansas City, Missouri, on September 9, 1952, and that on said date he drove it into collision with plaintiff’s truck in Henry County, Missouri, a distance of some sixty miles from Kansas City. Garnishee’s first contention is that the trial court erred in refusing to sustain garnishee’s motion for a directed verdict filed at the close of all of the evidence for the reason that under the evidence most favorable to plaintiff Marsh had given defendant permission to use his car only fo.r the purpose of driving it four blocks to a grocery store to make a purchase and thereupon to return with said purchase and that there was no evidence that the permission so granted authorized defendant to make a journey on his own account into Henry County, a,distance of sixty miles from Kansas City.

The evidence viewed in the light most favorable to plaintiff supports a finding of the following facts: On September 9, 1952, Boydie, more than 30 years of age, resided in Kansas City with his brother, Ben Van Zandt, and the latter’s wife, Helen, and their child in a small apartment. On September 9, Boydie did not go to work. After breakfast, about 9 o’clock, he, with the Van Zandts’ small child, ■went out for a stroll'. About 10 o’clock, they returned and Boydie asked Mrs. Van Zandt if he could bring a: friend of his, Fred Marsh, whom Mrs. Van Zandt did not know, to the apartment to shave, saying they were going “some place” and that he (Marsh) did not want to go all the way home. Mrs. Van Zandt consented and Boydie left the apartment. He and Marsh appeared at the apartment at about 2 o’clock in the afternoon. Both had been drinking and they brought beer with them: Boydie introduced Marsh as an “old friend” and they talked within the hearing of Mrs. Van Zandt about places they together had visited. Mrs. Van Zandt was engaged in cooking a pot of pinto beans in preparation of the evening meal. Marsh said he could make a good Italian dish and asked for some spaghetti and macaroni, which she furnished, and Marsh and Boydie “mixed it all up.” They decided there was not enough spaghetti, so Marsh gave Boydie several bills and told him to go to the store and get more. When Boydie left, Mrs. Van Zandt, her small son and Marsh were left alone in the home.

The store was four blocks from the apartment and Boydie came back in about 20 minutes. During Boydie’s absence, Marsh sat at the kitchen table drinking beer. When Marsh took over the cooking, he had asked for onions, but none were at hand, SO’ Marsh, upon Boydie’s return, told him to gO' back to the store to get some. Boydie said it was too far to walk and said, “I am going to take your car.” Marsh’s car keys were then in front of him on the kitchen table at which he sat. Marsh picked up the keys, held them up, nodded affirmatively at Boydie and laid them down. Boydie picked up the keys. Mrs. Van Zandt asked Boydie not to leave her alone. Boydie and Marsh talked privately and Mrs. Van Zandt heard Marsh say, “If you are going, you better get going.” Boydie and Marsh then went into a restroom in the hall, talked some more, and Boydie left. Mrs. Durham, who-lived in an upstairs apartment, came into the Van Zandt apartment about that time and Mrs. Van Zandt asked Mrs. Durham to stay with her.

■ Mrs.'Van Zandt and Mrs. Durham went into the kitchen, where Mrs. Van Zandt said to Marsh, “You know him (Boydie) better than I thought you did or you wouldn’t let him have your car.” Marsh replied, “Boydie is all right, he will bring it back.” Mrs. Van Zandt told Marsh, “I’ll give him twenty minutes to get back; if he doesn’t get back in 20 minutes, your car is-gone.” Marsh said, “Oh, he’ll be back.” When 30 minutes had passed, Marsh looked at his watch and said, “Well, 30 minutes is up, but I will give him a little longer.” Marsh, however, then went into the front room and lay upon the couch and went to sleep. None of the food which Marsh undertook to prepare was ever eaten. Mrs. Van Zandt, her small son and Mrs. Durham left the apartment. They went for a walk and then waited in front of the apartment for the return of Mrs. Van Zandt’s husband from work. Upon his return about 4:30 p. m., he was advised of the situation. He went upstairs, succeeded in arousing Marsh, and said, “Have you called the police about your car ?” Marsh said, “Why no, I haven’t called the police, Boydie will be back.” Mr. Van Zandt told him he could use a phone at the end of the hall and urged him to call the police, but Marsh insisted that “Boydie is a nice guy and he will be back.” Eventually, Marsh left the apartment about 5 :20 p. m. and returned about 6 :30 p. m. Asked if he had called the police, he stated he had not, but said, “The State Patrol called me and told me that Boydie had had a wreck in my car near Clinton.” He made no contention that Boydie had stolen his car and said nothing about having him arrested. The Van Zandts did not see him again until about 7:30 p. m. the next day when he returned with a man and lady from an insurance company.

Garnishee insists that under this evidence Boydie “violated the agreement with Marsh concerning the use of his car. He had embarked on a mission of his own in no wise connected with the purpose for which he was given permission to use the car. He excluded himself from the provisions of the policy.” Cited in support of that contention are: S A.L.R.2d, 1. c. 624-626, 636; Guthrie, Admr. v. Holmes, 272 Mo. 215, 198 S.W. 854; McKee v. Travelers Insurance Co., Mo.App., 315 S.W.2d 852; Speidel v. Kellum, Mo.App., 340 S.W.2d 200.

The annotation found in 5 A.L.R.2d, at pages 600-668, is exhaustive and generally informative but, inasmuch as it treats exclusively with the proper construction to be placed upon omnibus clauses in liability policies where the vehicle was being driven by a servant with the alleged permission of the master, it is not particularly helpful in the instant case. As stated in the beginning of the annotation, 1. c. 602, “[T]he master and servant relationship gives rise to a number of distinct and peculiar problems regarding the permissive use of the employer’s vehicle which do not exist in cases where the relationship is more of a social nature.” Thus, the annotation is primarily concerned with the varying and conflicting- rules established by the appellate courts of our sister states in determining the effect upon the insurer’s liability under the policy in cases where the servant is shown to have deviated from the course of the employment which permits his use of the vehicle. Brief mention of these conflicting rules will suffice. The cottrts of a number of states hold that even in cases involving a master and servant relationship the omnibus clause in automobile liability policies is as much for the benefit to the general public as for the benefit of the additional insured and they construe such clauses to mean that if the employee has express or implied permission of the owner initially to operate the vehicle, any operation thereof by the employee is considered to be within the scope of the permission granted, regardless of how grossly the terms of the permission originally granted may have been violated. Some courts adopt the so-called conversion rule in such cases, namely, that where the use of the vehicle exceeds the scope of employment so as to make the employee liable to the named insured in an action for conversion of the vehicle, such use thereof does not come within the coverage of the policy. A third rule is the minor deviation rule, wherein it is held that if the use of the vehicle by the employee is not a gross violation of the permission granted, protection is still afforded under the policy. 5 A.L.R.2d 624-626 ; 7 Appleman, Insurance Law and Practice, §§ 4366-4368, pp. 169-185, and cases therein cited; McKee v. Travelers Insurance Co., Mo.App., 315 S.W.2d 852, 855.

The three cases cited by garnishee also deal with a master and servant relationship. In McKee v. Travelers Insurance Co., 315 S.W.2d 852, supra, the St. Louis Court of Appeals took notice of the foregoing rules but, under the fact situation there presented, found it Unnecessary to adopt either of them, predicating its opinion in that case upon another rule governing the use of the master’s motor vehicle by the servant, 1. c. 857, to wit: “[W]hen an employee uses his employer’s automobile for his own purposes, contrary to and in direct violation of the employer’s specific orders, * * *, the employee does not have his employer’s permission to use the vehicle within the meaning of the omnibus clause, * * (Italics supplied.) In Speidel v. Kellum, Mo. App., 340 S.W.2d 200, 1. c. 202-203, the Kansas City Court of Appeals found that the only permission given by the employer to use his Buiclc automobile was a direction to the servant to do the thing he was instructed to do, namely, to go to the garage, get the automobile and return it, and that he was not given permission to drive the car for pleasure; and that, hence, the servant was not within the protection of the omnibus clause of the insurance policy there in question. Guthrie Adm., v. Holmes, 272 Mo. 215, 198 S.W. 854, is strictly a master and servant case involving only the doctrine of respondeat superior and is in no wise concerned with liability insurance. Insofar as here material, it merely quotes with approv-ál from an earlier court of appeals case, 198 S.W. 1. c. 859, to wit: “ Where a chauffeur, either with or without his master’s consent, uses the machine for his own business or for his own pleasure, and negligently inflicts injury on another, the master cannot be held' liable, for the reason that the negligent act, being entirely outside the scope of the servant’s employment, cannot call into action the rule of respondeat superior. The fact of consent is material only in the solution of the issue of whether or not the use of the machine was, in fact, on business of the master.’ ”

The law declared in those cases is not applicable to the situation presented in the instant case. This case was tried and submitted upon the theory that the facts in evidence warranted a finding by the jury that at the time and place of the collision of the truck driven by plaintiff and Marsh’s automobile driven by defendant, he, defendant, was operating Marsh’s automobile with Marsh’s permission, express or implied.

There is no ambiguity in the-meaning of the word “permission”. McKee v. Travelers Ins. Co., Mo.App., 315 S.W.2d 852, 857. Webster’s New International Dictionary, 2nd Ed., defines it: “Act of permitting; formal consent; authorization; leave; license or liberty granted.” It has a flexible meaning depending upon the sense in which it is used. Allstate Insurance Co. v. Hartford Accident & Indemnity Co., Mo.App., 311 S.W.2d 41, 45[1], Moreover, the policy in the instant case provides-that it “shall comply with the provisions of the motor vehicle financial responsibility-law of the state” with respect to such liability arising out of the use of the automobile-to the extent of liability required by such, law. Section 303.190 of the Motor Vehicle-Safety Responsibility Law of Missouri, Chapter 303 RSMo 1959, V.A.M.S., requires that policies issued under § 303.170' as proof of financial responsibility shall insure “any other person, * * * using-any such motor vehicle * * * with the express or implied permission of such named insured.” The provisions of that act are indicative of the public policy of this state to assure financial remuneration to the. extent and under the conditions therein provided for damages sustained through the negligent operation of motor vehicles upon the public highways of this state not only by the owners of such automobiles but also all persons using them with the owners’ permission, express or implied. It is clear, therefore, that this policy should be liberally construed to include within its coverage any person using Marsh’s automobile with his permission, express or implied, to so use it. Jordan v. Shelby Mutual Plate Glass & Casualty Co., D.C., SI F.Supp. 240; affirmed 4 Cir., 142 F.2d 52, 54. “Where the vehicle is loaned for a specific purpose but used for some other purpose, a general permission or a comprehensive permission is much more readily to be assumed if the use of the vehicle is for social rather than business purposes and where the relationship of master and servant does not exist.” 7 Appleman, Insurance Law and Practice, § 4368, 1961 pocket part, page 68. See also Scott v. Massachusetts Bonding & Ins. Co., Ky., 273 S.W.2d 350, 352; Trinkle v. American Employers’ Ins. Co., D.C.Ky., 180 F.Supp. 233; Jordan v. Shelby Mut. Plate Glass & Casualty Co., 4 Cir. (Va.) 142 F. 2d 52, 54.

Bearing in mind the law above announced, we consider the facts and circumstances in evidence to determine whether they support the finding of the jury that defendant was using Marsh’s car with Marsh’s permission, express or implied, at the time and place of the collision. When defendant first returned to the Van Zandt apartment at 10 o’clock, he told Mrs. Van Zandt that he and his friend Marsh were going some place on a joint venture. When they arrived some four hours later, both had been drinking; they spoke of their prior joint social ventures; they were, on this occasion at least, boon social companions; March was perfectly willing for his friend to use his car to go after the onions and gave his express permission to that venture. Later, after Mrs. Van Zandt asked defendant not to leave her, defendant and Marsh conferred privately and Marsh was heard to say to defendant, “If you are going, you better get going”; when defendant did not return Marsh, expressing confidence in defendant, promptly went to sleep and slept throughout the afternoon. When awakened late in the afternoon and urged to report defendant’s failure to return to the police, March said, “Why, no, I haven’t called the police, Boydie will be back”; and even when he had learned of the collision he did not complain of any wrongdoing on the part of defendant. We are constrained to hold that the facts and circumstances in evidence warranted submission of the issue of whether defendant was using Marsh’s car at the time and place of the collision with his permission, express or implied.

Garnishee’s second assignment is: “The policy issued to Marsh provides that if suit is brought against the insured he shall immediately forward to garnishee every demand, notice, summons or other process received by him or his representative. Assuming that Boydie Clay Van Zandt was-insured under the policy he violated the terms thereof in that he failed immediately to forward to garnishee the petition and summons served on him and the entry of appearance signed by him. Therefore, the garnishee is relieved of any obligation under said policy.”

The evidence introduced in behalf of plaintiff shows that following the collision on September 9, 1952, Boydie was taken to a hospital. On September 10, 1952, the garnishee began an investigation of the case by interviewing both Marsh and Mr. and Mrs. Ben Van Zandt. On September 12, 1952, plaintiff’s action for damages against Boydie was brought in the circuit court, at which time summons was served upon Boydie and, at the instance of plaintiff’s counsel, Boydie signed an entry of appearance, a copy of which was left with him, together with a copy of the petition. Some five or six days after the collision, Ben Van Zandt called to see defendant at the hospital, at which time defendant gave him “some papers” that had “something to do with the insurance” and told Ben to deliver them-.to the “insurance man”. • Ben Van Zandt saw plaintiff’s name, “Alvae, Winterton”, on ■them. They consisted of several pages, and “looked like” copies of the petition.and entry of appearance shown to the witness at the trial. Ben delivered these papers to a representative of garnishee several days after they were given him by Boydie.

Thereafter on November 12,1952, counsel for plaintiff, by registered mail, sent letters to (1) garnishee’s agent at Clinton, Missouri, (2) to the insured, Fred Marsh, and (3) to garnishee, advising each of them fully of the pendency, venue and nature of the action and plaintiff’s contention that Boydie was covered by the provisions of the omnibus clause. Postal return receipts for these letters were admitted into evidence. On December 16, 1952, garnishee instituted a declaratory judgment proceeding in the circuit court of Jackson County against Marsh, Boydie Van Zandt and “William J. Cason, as agent for Alvae Winterton” (plaintiff herein), seeking to obtain a decree to the effect that Boydie was not an additional insured under the policy. Despite the fact that no valid service was ever had upon Winterton, a decree was rendered in that case as prayed. (Garnishee does not here contend that said judgment was of any validity as against plaintiff.) Thereafter, garnishee refused to defend the original action brought by plaintiff against Boydie.

Substantial compliance with the provisions of the policy in the respects asserted by the garnishee is a condition precedent to garnishee’s liability under the policy but a mere failure to comply with such provisions in some immaterial respect does not justify disclaimer of liability. Northwestern Mut. Ins. Co. v. Independence Mut. Ins. Co., Mo.App., 319 S.W.2d 898, 901-905, and the many authorities collected therein. The trial court, in the verdict-directing instruction given in behalf of plaintiff, submitted a finding of defendant’s compliance with the provisions of the policy relating to the aforesaid provisions as one of the conditions of returning a verdict in plaintiff’s favor. We think the finding of the jury that he had complied with those provisions was amply supported by the evidence. . The contention should be and is denied.

Garnishee’s next contention is that the court “erred in refusing certain portions of a photographic reproduction of the official report made by the Missouri Highway Patrol of the collision between Winterton and Van Zandt, which report was offered in evidence by appellant. The portion of the report which was excluded was to the effect that the car had been reported stolen to the Kansas City police earlier in the day and that Van Zandt was suspected of car theft, and that the matter was then pending.”

The record shows that, following due identification of a microfilm copy of an “accident report” prepared and signed by the investigating highway patrolman on the day following the collision, garnishee offered the same in' evidence as being a record made in accordance with “The Uniform Business Records as Evidence Law”, §§ 490.660-490.690 RSMo 1959, V.A.M.S. The trial court sustained plaintiff’s objection made to the hereinafter described portions thereof. Under the printed heading “Remarks”, the following statement had been typewritten: “Car had been reported stolen to the Kansas City Police earlier in the day”; and under a printed heading “Show Arrests and Charges”, the following statement had been typewritten: “Boydie Clay Van Zandt ' Car theft Pending.” Obviously, the comment that the “car had been reported stolen to the Kansas City Police earlier in the day” could not have been within the personal knowledge of the highway patrol officer who filed the report. It is not even contended he could have had first hand information as to what had been reported to the Kansas City police. While the uniform business records law eliminates, in a general way, any valid objection that the above written recital is hearsay “if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission”, yet if it appears that the person making the report would not have -been a competent witness to testify that the recitals in the report were correct, such recitals may and should be rejected by the trial court. Capra v. Phillips Investment Co., Mo., 302 S.W. 2d 924, 936. If the police records of Kansas City had been offered in evidence and had shown a report of theft of the car, we would be confronted with a quite different situation. But the highway patrol report of what had been reported to the Kansas City police is hearsay upon hearsay and was not competent. Kansas City Stockyards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692, 700[18, 19]; Ryan v. Campbell “66” Express, Mo., 304 S.W.2d 825, 828[3, 4], As to the recital of the arrest of “Boydie Clay Van Zandt Car theft Pending”, such a statement contained in a report made out on the day following the arrest does not constitute proof of a report made by or at the direction of Marsh that his car had been stolen. Actually, the record shows that Boydie was never prosecuted for theft of the car. The fact that following the collision he was arrested on such a charge, at the instance of whom is not shown, constitutes no evidence of his guilt or that he was driving Marsh’s car without permission, express or implied. The court did not err in excluding that portion of the report.

Garnishee next contends that the court “erred in giving plaintiff’s Instruction No. 1 for the reason (a) that there is no evidence to support, as was submitted in paragraph 6, whether ‘the actual use of said club coupe by said Van Zandt was with the express or implied permission of said Fred Marsh,’ and for the further reason (b) that said instruction conflicts with garnishee’s Instruction No. 6, which authorized a verdict for the garnishee if the only permission given by Marsh to Van Zandt was to use the car to go to the grocery store to make the purchase referred to in evidence.” This contention, perforce our disposition of garnishee’s contention that no submissible case was made, must, for the reasons stated in disposing of that contention, be ruled adversely to garnishee-

Garnishee’s final assignment is that the court “erred in receiving evidence after judgment as to the proration of damages to-establish $10,000 for personal injuries and' $2,500 for property damage.” This- assignment requires us to summarize as briefly as. possible extensive portions of the 'record. The petition under which plaintiff recovered default judgment against defendant alleged that plaintiff’s truck was damaged in the-sum of $2,50(3 and, without alleging any specific amount of damages for personal injuries alleged to have been sustained, the-prayer of the petition for both personal injuries and property damages was for the gross sum of $15,000. Hence, it is clear that plaintiff sought to recover the sum of $12,500 for his personal injuries and $2,500 for damages to his truck. The judgment entered in that action, without reflecting any breakdown as to each item, recited a gross award for $14,250. The record also, shows that either the evidence in that original action was not taken by a court reporter or, if taken, the notes were not transcribed and cannot now be found.

It is conceded that when the garnishment proceeding came on for trial, it was agreed between counsel and the judge that (1) the jury could return a “general verdict” (the parties and the court construing “general verdict” to mean a finding by the jury merely whether garnishee “owed” plaintiff any amount, and (2) that upon return of such a verdict in favor of plaintiff the judge should enter a “monetary judgment” (the parties and the judge construing those words to mean that “what is owed, of course, is law for his Honor to determine.”) In accordance with that agreement and pursuant to forms submitted, the jury returned its verdict reciting: “We, the jury, find the issues herein in favor of the plaintiff Alvae Win-terton, and against garnishee Farmers Insurance Exchange.” Upon the return of that verdict, both parties believed it necessary under the law and' statutes of Missouri that judgment for a specific amount be entered on the date of the return of the verdict, but William J. Cason, trial counsel for plaintiff in the original action, was ill in Texas and was the only person who could furnish the trial judge in the garnishment proceeding with the evidence as to the respective amounts awarded in the original action for plaintiff’s personal injuries and for his property damage. The trial court decided without objection from either of the parties (although one of counsel for garnishee stated that he could not make any statement binding his client to that effect) that, in view of Mr. Cason’s absence due to illness, judgment would be (and was) entered for the gross sum of $12,-500, plus interest at 6% from January 13, 1953, the date of the original judgment. The amount of $12,500, as the court stated and counsel for both parties well knew, was determined upon the basis of the fact the insurance policy fixed a $10,000 limitation for personal injuries and $5,000 for property damage sustained and the fact that plaintiff’s petition in the original action sought only $2,500 for property damages. At the time of the entry of that judgment, it was also stated in open court without objection from any party that if the evidence to be given by Mr. Cason upon hearing of motion for new trial, if any was filed, did not support those amounts the judgment would be accordingly reduced.

Garnishee’s after-trial motions were filed on January 22, 1960. Thereafter, counsel for plaintiff gave notice to garnishee that he would call said motions for hearing on April 2, 1960, and further notified garnishee that “at said time and place, plaintiff will ■offer additional evidence in support of the judgment for plaintiff rendered herein.” At that hearing, garnishee objected to the admission of any evidence with reference to the monetary award theretofore made on grounds (1) that plaintiff could "not now come in” and' introduce evidence to support the judgment against garnishee; (2) that such a proceeding was unknown in the jurisprudence of this state; (3) that any judgment based upon evidence aliunde the record priorly made would be invalid; and (4) that such judgment would of necessity be based upon pure conjecture. The trial court overruled the objections, -«'hereupon Mr. Cason testified that he represented plaintiff at the original trial; that the testimony there, all of which was in behalf of plaintiff, was that the damage to plaintiff’s truck was “in excess of $2,500”; that at the conclusion of the evidence the trial court orally stated that he would award plaintiff judgment for $2,500 for the damage done to his truck; and that the total judgment would be for $14,250.

The foregoing summary of the record makes it clear that counsel for garnishee definitely agreed at the trial of the garnishment proceeding: (1) that a “general” verdict could be returned and (2) that thereafter the trial court could render a monetary judgment. Obviously, any monetary judgment fixing the extent of liability of the garnishee would of necessity be based upon (1) the amounts respectively computed and allowed by the trial court in the original action (a) for plaintiff’s personal injuries and (b) for his property damage, and (2) the limitations of the policy as to the extent of garnishee’s liability to the insured. Of course, in view of the fact that the judgment against defendant was for a lump sum in the original action, it would have been difficult, if not impossible, for the trial judge in the garnishment proceeding to determine the respective amounts of these awards, as made by the trial judge in the original action, had it not been for the fact that plaintiff’s petition sought only $2,500 for the damage clone to his truck. That fact, considered in connection with Mr. Cason’s testimony, makes it reasonably certain that the remainder of the lump sum of $14,250, less $2,500, the maximum amount sought.- in plaintiff’s petition for property damages, was necessarily awarded for personal injuries.

We have concluded and hold that (1) the judgment herein correctly reflécts the sums awarded by the trial judge in the original action for personal injuries and property damages sustained by plaintiff, as reduced within the limitations of the insurance policy, and (2) that by reason of the agreements made between counsel for the parties in the foregoing proceeding and their acquiescence without objection in the procedure adopted by the court in determining the amount of the monetary judgment to be entered, garnishee should be, and is estopped from objecting to the procedure followed in the ascertainment and assessment of those items.

The judgment is affirmed.

All concur.


text:
    Lester TOMLIN, Appellant, v. Marion ALFORD, d/b/a Old Orchard Market, Respondent.
    No. 48046.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      Donald S. Hilleary, Harry L. Hilleary, St. Louis, for appellant.
    John J. Cole, Heneghan, Roberts & Cole, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

In this action plaintiff seeks to recover the sum of $15,000 for personal injuries allegedly sustained from a fall in a storage shed used and occupied by defendant in the operation of a retail grocery store and meat market in Webster Groves, Missouri. The case has been twice tried, each trial resulting in a verdict for defendant. Plaintiff, on December 31, 1959, appealed from the judgment rendered in conformity with the last verdict. It appearing that the amount in dispute exceeds $7,500 and that the appeal was taken prior to January 1, 1960, jurisdiction lies in this court. Constitution of Missouri, Art. V, § 3, V.A.M.S.; Senate Bill No. 7, Laws 1959, now § 477.040 RSMo 1959, V.A.M.S. (to which'revision all statutory references are made unless otherwise indicated).

The storage shed in which plaintiff allegedly fell was attached to the rear of defendant’s store and was used for storage of empty soft drink bottles. Plaintiff, at the times herein material, was an employee of Canada Dry Bottling Company, a bottler and distributor of such beverages. As such employee, he made regular trips to defendant’s store and storage shed to deliver his employer’s products and reclaim its empty bottles. Plaintiff alleged and testified that he was caused to fall and sustain injuries as the result of the act of defendant’s employee in placing empty beverage bottles in the path of his work in collecting empty bottles from the basement. Defendant denied the allegations of the petition and alleged that, if injured, plaintiff’s injuries were due in whole or in part to his failure to exercise ordinary care for his own safety. The gist of defendant’s evidence was that if plaintiff was injured in said shed, neither defendant nor any of his employees had knowledge thereof nor had anything whatever to do with causing it. On this appeal, plaintiff asserts two grounds for reversal and remand for new trial: (1) that the trial court erred in giving defendant’s Instruction No. 4 submitting the issue of plaintiff’s contributory negligence for the reason that it was contradictory of and inconsistent with defendant’s evidence and Instruction No. 5 which submitted defendant’s plea that plaintiff’s fall, if sustained, was not caused by any act or omission of defendant’s employees ; and (2) error in admission of plaintiff’s army medical records which impeached plaintiff’s testimony that he suffered presently existing low back injuries from his alleged fall at defendant’s store, on grounds that said records were not shown to be admissible under the Uniform Business Records Act, §§ 490.660-490.690. Proper disposition of the first assignment requires a statement of the evidence bearing upon both the issue of defendant’s negligence and the issue of plaintiff’s contributory negligence.

Defendant’s -store faces south, at 653 East Big Bend Road. It occupies a one-story building and basement and the shed attached to the basement. The lot on which these premises are situate slopes sharply to the rear, causing the floor of the basement to be below the lot level and the entrance to the door leading into the rear of the store proper to be above the lot level. Entrance into the rear of the store proper may be had either by walking up an outside stairway to a rear entrance door or by entrance through the shed, into the basement and up an inside stairway from the basement to the store proper.

The shed is about “9 by 12 by 15 feet” in size. The outside entrance thereto is enclosed by an iron grill door, which is kept locked. A concrete runway inclines downward from the iron grill door to the basement door. On each side of that runway, a concrete wall extends upward from the floor to form a ledge extending horizontally a distance of about 12 feet from the iron grill door to the rear basement wall of the store. We are here concerned with the ledge and a platform on the left side of the runway as one enters through the iron grill door. That ledge is about eight inches wide. Due to the decline in the floor of the runway as it extends toward the basement door, the height of the ledge above the runway floor varies from one or two feet at its beginning to a height of 3½ feet at the basement wall. A wooden plank 8 inches wide and two inches thick covers the top of the ledge. On the left edge of the ledge a “back board” rises 6 to 8 inches above the ledge and forms the edge of a level platform which extends from the left edge of the ledge to the left wall of the shed, a distance of 40 to 44 inches.

Plaintiff, on direct examination, testified: On an afternoon in the latter part of April or the first part of May, 1957, he, as was his custom in the performance of his duties, drove his employer’s truck to the rear of defendant’s store, walked up the back stairs into the rear entrance of the store proper and reported to defendant and a “lady employee” at .the cash -register that he had a delivery of soda to make and was told “they” would open the shed and basement doors for him. Plaintiff left the store by the back door and “wheeled” (by hand truck) the soda through the iron grill doorway, down the runway and through the basement door into the basement, both of which doors said female ’ employee had in the meantime opened for him. After depositing the full cases in the basement, he came back through the basement door, walked up the runway incline to a point where he could readily step up onto the ledge and then walked back on the ledge to pick up two cases of emptly bottles from the point on the platform where they were usually kept adjacent to the edge of the ledge near its connection with the basement wall. As he picked up two cases of quart-size empty bottles, defendant’s said employee,- who stood behind him near the basement door, said to him that she had a few “loose” empty bottles which she would like for him to take away. He did not turn around and never saw the bottles in her hand, but he heard them “clinking together.” At that time, with a case of empty bottles in each hand, he started to turn left to walk along the ledge to a point where he could step from it to the floor of the runway. As he took a turning step, his left foot struck one of several empty bottles which had been placed on the ledge after he had walked along it to pick up the cases of empties. This caused him to fall to the floor of the runway. Defendant’s employee had not told him that she had placed them on the ledge and he did not see her do so. As he pulled himself up, she said, “Oh, did you hurt yourself ?” He made no report to anyone else at the store. He went up into the store, where he received cash in payment of his bill and, in turn, gave a receipt. He then finished the remainder of his day’s work. He reported the fact of his fall to his employer’s foreman. Thereafter, he continued to work regularly until May 31st. The first time that he saw a doctor (Dr. Robert Funsch) was September 9, 1957. That was done at the suggestion of his employer’s “insurance doctor.” Thereafter, at the request of his present counsel, he went to see another doctor.

On cross-examination, plaintiff testified: He did not look down to see where he was stepping when, with the cases of empties in his hands, he started to turn to leave the ledge. When he went upstairs after he fell, he saw defendant but did not mention his injuries to him. He was hurt, as he recalls, on a Thursday, but is unable to recall the exact date. He worked on Friday thereafter, all the following week and for four or five more weeks without seeking medical treatment. Although he made several deliveries to defendant’s store after he' was injured, he never mentioned his injuries to defendant.

The evidence in behalf of defendant was that during the months of April and May, 1957, defendant had two women in his employ, Mrs. Irene Koester and Mrs. Bessie Clausen, and a truck driver, James Nieder. When a soda deliveryman would come to the store, either defendant or Nieder would go down to the shed with him, unlock the shed and basement doors and, after he got his empty bottles, the shed and basement were again locked. To the best of defendant’s knowledge, neither of the women employees ever went down to the shed to admit a deliveryman. He never saw plaintiff or any other soda deliveryman walk along the ledge to get empty bottles; it was not necessary to go upon and walk along the ledge to get them. The first information he received of plaintiff’s being injured on his premises was when he received a letter from plaintiff’s counsel, dated September 30, 1957. Mrs. Clausen testified: It was defendant’s and Nieder’s job to go down and admit deliverymen. She had no keys to the shed. She never went down and let plaintiff or any deliveryman into the shed in the year 1957 and knows nothing about plaintiff or anyone else falling or getting hurt in the shed. Neither plaintiff nor anyone else ever made any complaint to her that he was hurt down there. Neither did she ever take any empty bottles and put them on the ledge when plaintiff or any other person was picking up empty bottles or at any other time. Mrs. Koester testified to the same effect.

The manager of plaintiff’s former employer, Canada Dry Bottling Company, called as a witness by plaintiff, testified on cross-examination that plaintiff never advised him and to the best of his knowledge never advised the company that he had fallen or had sustained injuries at defendant’s store. The first knowledge he or the company had of such a claim was received from the Workmen’s Compensation Commission.

Plaintiff submitted the merits of his case under Instruction No. 1, which, with the omission of his testimony that he did not look down to see where he was stepping when he turned to leave the ledge, hypothesizes in substance a finding of the facts as testified by plaintiff. Defendant submitted his defenses under Instructions Nos. 4 and 5. No. 5 directed the jury:

“ * * * if you find and believe from the evidence that there was no lady employee of defendant present in the storage area mentioned in evidence at and just prior to the time of plaintiff’s alleged fall, if any, then your verdict should be in favor of the defendant ⅝ # ⅝ V

Instruction No. 4 directed:

“* * * if you should, find and believe that a female employee of defendant’s was negligent as submitted to you in Instruction No. 1 nevertheless under the law plaintiff is not entitled to recover if negligence on his part directly contributed to cause his injuries, if any, and * * * if you find and believe from the evidence that just before turning and stepping on said bottle or bottles plaintiff failed to look where he was stepping and failed to see said bottles and that said bottle or bottles, if any, were readily visible * * * if he had looked, * * * ; and, if you further find that in so failing to look where he was- stepping while on the ledge, plaintiff failed to exercise ordinary care for his own safety * *, then you are instructed that plaintiff was negligent; * * etc.

Plaintiff says that when defendant introduced evidence tending to show that plaintiff’s injuries, if any, were not caused by any act of either of his female employees and then caused that issue to be submitted to the jury as one of his defenses, it was prejudicially erroneous for the court also to submit contributory negligence “on the part of the plaintiff, combining with the negligence of a female employee of defendant, in placing the soda bottle on the .ledge when defendant’s evidence unequivocally proved that there was no female employee down in the area, and no female employee placed a bottle on the ledge while Tomlin was on the ledge.” In support of that contention, he cites Rucker v. Alton Railroad Co., 343 Mo. 929, 123 S.W.2d 24; Picardia v. Great Atlantic & Pacific Tea Co., Mo. App., 316 S.W.2d 642; Miller v. Riss & Co., Mo., 259 S.W.2d 366. Defendant concedes that the first two of these cases support plaintiff’s position but insists that they were wrongly ruled and should be overruled. (Miller v. Riss & Co., as we read it, sheds no light upon the question here presented.)

In the Rucker case, supra, plaintiff’s decedent, a 15 year old boy, was struck and killed when a truck driven westwardly by decedent was struck by defendant’s northbound passenger train at an intersection of defendant’s north-south tracks with an east-west street in Virdin, Illinois. The petition alleged defendant’s failure to ring the bell and sound the whistle. The answer was a general denial and contributory negligence. Trial of the case resulted in a verdict and judgment for defendant, from which plaintiff appealed to this court. The opinion reflects that the evidence in behalf of plaintiff was that no warning of the approach of the train was given and that decedent drove across the tracks at a speed of four or five miles an hour without stopping. Defendant’s engineer, who saw decedent’s truck approaching, testified that the truck, before entering' upon the mainline track, stopped with its wheels on the west rail of a switch track situate 8 to 15 feet east of the mainline track and then moved forward upon the mainline. Division One of this court held that defendant’s submission instruction directing a verdict for defendant if the jury found that decedent did not stop and listen was broader than defendant’s pleading and prejudicially erroneous. The opinion went further, however, and held, 123 S.W.2d loe. cit. 26: “There is another rule in this state which has been violated by this instruction and that is the rule holding that a litigant cannot submit his case on a theory which contradicts his own positive evidence and theory. [Defendant’s] engineer testified that ‘the automobile stopped with the wheels on the west rail of that passing track.’ * * * Unless’there is something in the record to indicate that such evidence was due to mistake, ‘a party cannot be permitted * * * to later deny what he, himself, claims to be the truth and that is why he is bound by the evidence of the witnesses he produces to prove the allegations of his pleadings.’ * * * The respondent here cannot by its evidence take the unequivocal position that the decedent stopped before entering upon the track, and then in its instruction deny recovery by the plaintiff on the ground the decedent failed to stop before entering the crossing.” (Emphasis supplied.)

In Picardía, supra, 316 S.W.2d 642, plaintiff, a customer at defendant’s grocery store, alleged and her evidence tended to show injuries sustained by her when a bottle of soda fell through a hole in the basket of a shopping cart and struck her foot as she pushed the cart along the aisles of defendant’s store and that plaintiff thereafter saw the hole in the basket through which the bottle fell. Defendant’s manager testified in behalf of defendant that tests showed that the hole in the basket was too small to permit the bottle to fall through it. The trial court, at the instance of defendant, gave, first, an instruction directing a verdict for defendant if the jury found that the "bottle was- too large to go through the hole; second, an instruction submitting the issue of plaintiff’s contributory negligence in placing the bottle near the hole in the basket after she saw or could have seen the hole and knew or should have known that the bottle could fall through it, and directing a verdict for defendant if the jury so found the facts to be. On plaintiff’s appeal, following adverse verdict and judgment, the St. Louis Court of Appeals held that defendant was bound by the manager’s testimony and was, therefore, precluded from submitting plaintiff’s contributory negligence upon the theory predicated in the instruction. In reaching that conclusion, the court, among other things, said, 316 S.W.2d loe. cit. 650: “For if, as the cases hold, the plaintiff cannot avail himself of evidence introduced by or adduced from the defendant and his witnesses which is contradictory to his own testimony and the theory of his case, then it should be equally true that the defendant, on the issue of contributory negligence, should not be entitled to avail himself of the plaintiff’s evidence which directly contradicts his own. That is what the Ruclcer case holds, and so far as we have been able to find it has never been overruled or distinguished. As the last decision of our Supreme Court on the point, we are, of course, required to follow it.”

It is defendant’s contention that the Ruck-er and Picardía cases are completely out of line with the great weight of Missouri law to the effect the defendant is entitled to as many defenses as he may have under the law and that an instruction on contributory negligence founded upon facts and circumstances in evidence warranting its submission is not necessarily inconsistent with defendant’s other defensive pleas (1) that no such casualty occurred or (2) if it did occur, it was not caused, by any negligent act or omission of defendant or of his servant or agent.

Plaintiff on this appeal does not challenge the sufficiency of the evidence to sitp-port' each and both of the issues submitted under defendant’s given Instructions .5 and 4. The evidence adduced on behalf of defendant- warranted a finding that neither of defendant’s female employees was present in the shed at or just prior to the time of plaintiff’s alleged fall and that the verdict should be in favor of defendant, as submitted in Instruction 5. The admissions of plaintiff on cross-examination that he did not look before stepping on the bottle in the manner and under the circumstances as testified by him on direct examination warranted a finding of his contributory negligence, as submitted in Instruction 4. If plaintiff’s contention is to prevail under the ruling announced in Rucker and Picardía, defendant would be in the dilemma of being forced to select and submit at his peril only one of his valid defenses, thereby being deprived, for no good reason, of the very defense which, if submitted, may have gained him acquittance of the liability charged.

S.Ct. Rule 55.09, V.A.M.R., places upon defendant the duty to plead his “defenses”; S.Ct. Rule 55.10 requires him affirmatively to plead contributory negligence in order to avail himself of such defense; 5.Ct. Rule 55.12 permits the pleading of alternative and hypothetical defenses and specifically permits the pleading of as many defenses as he has. This court has long since noted that the situation of a defendant is quite different from that of the plaintiff. The plaintiff goes into court voluntarily. In a negligence case such as this he seeks a money judgment. Defendant, in court without his consent, cannot dismiss and start anew; he must plead and submit each and every submissible defense available to him, lest they be forever lost. Consequently, he not only has the right to plead but he must submit as many defenses as he has or forfeit those he does not submit. Kenefick-Hammond Co. v. Norwich Union Fire Ins. Soc., 205 Mo. 294, 103 S.W. 957, 960, and cases therein cited. And he is not to be deprived of this right by plaintiff, nor by an erroneous ruling of a court. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 899.

Both by virtue of the case law above cited and the foregoing rules of this court, defendant unquestionably was entitled to plead both the general issue and contributory negligence. See treatise of Judges Laurance M. Hyde and James M. Douglas on “The Civil Code Act of 1943” as published in Carr, Missouri Civil Procedure, Vol. 2, pp. 540-543. Although being fully justified in so pleading, is defendant nevertheless to be precluded from submitting both issues if his own evidence tends to show that plaintiff, if injured, was not injured by any act of negligence on the part of defendant? The Rucker and Picarella cases seem clearly so to hold. Should they be longer followed? We think not.

The Rucker case, 123 S.W.2d loc. cit. 26, states that a litigant cannot submit his case upon evidence which contradicts his own positive evidence and theory. The Picarella case, perforce the decision of this court in the Rucker case, likewise holds to the same effect. It is true that a plaintiff may mot predicate recovery upon a theory which is contrary to his own positive evidence; and it is worthy of note that, with the one exception of Miller v. Riss & Co., supra, all of the cases cited in support of the decisions in those cases deal with the limitations placed upon a plaintiff seeking to recover damages under inconsistent pleadings or inconsistent evidentiary theories.

Of course, if there is no fact or circumstance in the evidence of either of the parties tending to show plaintiff's contributory negligence, it would be error to submit such an issue but, if there is such evidence, be it direct or circumstantial, and irrespective of whether it comes from defendant or plaintiff, then, absent some compelling reason not shown in these cases, defendant has the right to submit that issue to the jury. In the determination of whether such evidence exists, the court should take into account the admitted acts and conduct of the 'plaintiff which ipso facto may support a finding that he negligently contributed to his injuries, if any. Miller v. Riss & Co., Mo., 259 S.W.2d 366; Adkins v. Boss, Mo., 290 S.W.2d 139, 143 [3]. The evidence in this case presents a 'classical example of why that rule should be here followed. Here the evidence adduced in behalf of defendant would have warranted the jury in finding: (1) that the fall by which plaintiff claimed to have been injured did not in fact occur; (2) but, if the jury should believe plaintiff’s evidence that the fall did occur, it nevertheless could consistently find that the fall did not occur by reason of any negligent act of defendant’s female employee as testified by plaintiff; and (3) if the jury should believe that the fall did occur and was caused by the negligence of defendant’s employee, the jury yet consistently could find under plaintiff’s own admission that he was guilty of contributory negligence in that he did not lo-'k before stepping upon the bottle over whic.i he said he tripped.

The basic questions presented in the Rucker and Picarella cases differ in degree only from the question here presented. In Rucker, defendant’s engineer testified that plaintiff’s decedent did stop but instantly started up and went upon the track. Defendant’s contributory negligence instruction, however, submitted a finding that decedent failed to stop and listen. Of course, such a submission was in conflict with -the testimony of defendant’s engineer, but a finding of decedent’s contributory negligence was nevertheless warranted if the jury should have believed from the testimony of plaintiff’s witnesses that decedent went upon the tracks immediately in front of the train without stopping, if stopping were necessary to effective listening. In Picarella, defendant’s manager testified that the soda bottle which allegedly fell through the hole in the shopping basket could not go through said hole. The proffer of defendant’s contributory negligence instruction was predicated upon a finding that plaintiff saw, or by the exercise of due care could have seen, the hole in the basket before placing the soda bottle near the hole. In each of these cases, therefore, there was evidence to warrant submission of contributory negligence. Therefore, even though defendant had adduced evidence inconsistent with one of its defensive pleas, yet the issue of plaintiff’s contributory negligence nevertheless was submissible in each of them. To the extent that the Rucker and Picardía cases are in conflict with the views here expressed and rulings here made, they should no longer be followed.

Plaintiff’s final contention is that the court erred in admitting the army medical records introduced in evidence by defendant. He concedes they impeached his testimony to the effect that a presently existing malfunctioning condition of his lower back was attributable solely to his fall in defendant’s shed and is not in anywise attributable to an injury to his lower back sustained some five years before his service in the army, as is shown by said records. He insists that said records were never properly qualified under the Uniform Business Record's Act, §§ 490.660-490.690, and were hearsay. These' records were produced at the trial by Angelo J. Tsenes, Assistant Chief of the Special Actions Branch, U. S. Army Records Center of the Adjutant General’s Office. His testimony shows: The army records center has custody of the individual personnel records, including the medical records, of all separated army personnel. One of the functions of the department with which he is connected is to furnish “record” service in litigation where the records are pertinent. The documents produced by him are photostatic copies of the original records. He is familiar with the manner of the keeping of army medical hospital records, both through continual observance for more than 13 years of such records and also by the fact that he has personal knowledge of the army regulations under which they are required to be and are kept, and that such records comply with those regulations .and are made in accordance with the normal course of army business. On cross-examination, the witness admitted that he had no personal knowledge of the accuracy of these entries on these specific records or by whom and when they were actually made.

The sole authority cited in behalf of plaintiff’s contention is Conser v. Atchison, Topeka & Santa Fe Ry. Co., Mo., 266 S.W.2d 587, wherein it was held that the evidence did not make a prima facie showing of their admissibility. The facts in that case are distinguishable from those here shown. In that case the records were produced by a Veterans Administration attorney in the St. Louis regional office who had nothing to dc with their keeping and no knowledge as to the manner of their keeping. Neither was there any showing of the mode of their preparation or when they were made. We have no such situation here.

Section 490.680 makes these records competent evidence (1) when the legal custodian of them identifies them as genuine, testifies that they were made in the regular course of business at or near the time of the act, condition or event and details the mode of their preparation; and (2) if in the opinion of the court, the sources of information, method and time of preparation were such as to justify their admission. We think the evidence herein given by an official of the department having custody of said records warranted the court in finding, as it did find, that the sources of information, method and time of preparation were such as to justify their admission. The Act should be liberally construed to effectuate its purpose. For the court to require the attendance and testimony of the personnel who cooperated in the making of the medical records of the millions of those formerly in the military services of the United States as a prerequisite of their admission into evidence would defeat the purpose of the making and preservation of those records. We.are unwilling to say that under the evidence here shown the court erred in their admission. See Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 666 [1-3], 55 A.L.R. 2d 1022.

For the reasons hereinabove stated, the judgment is affirmed.

All concur.


author: BARRETT,' Commissionér.

text:
    STATE of Missouri, Respondent, v. James Harold HARRIS, Appellant.
    No. 48590.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      William B. Spaun, Hannibal, ■ for appellant.
    . Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Special Asst. Atty. Gen., for respondent.
   BARRETT,' Commissionér.

Á jury found James H. Harris guilty of burglary and stealing and fixed his punishment at three years’ imprisonment for the burglary and two years for stealing. While he does not question the sufficiency of the evidence to sustain the conviction, the circumstances, as the jury could find them, have a material bearing on His claim that he is -entitled to a new trial because of the closing argument of the prosecuting attorney and the giving and refusal of certain instructions.

Miss Louise Clayton keeps furnished and owns a two-story frame residence one mile west o'f Rensselaer in Ralls County. October 13, 1959, she returned to her farm home after a month’s' absence to discover thát the house had been ent'ered and that several pieces of furniture were missing". Among the missing items were eight dining room chairs, a bedroom chair, two end tables, a- clock, a pair of brass candlesticks, two wrought-iron,,planters and a set of mounted steer horns. All of these furnishings were heirlooms and antiques, the eight dining room chairs were made of “wormy chesnut.” Investigation revealed that a downstairs window had been pried and propped open with a stick and it was apparent that “something” had been taken out , through the window. About 1:30 in the afternoon Miss Clayton heard a motor vehicle enter the driveway, she looked out and saw a green pickup truck with a light top, and she saw that the two men in the truck were “colored men,” the driver much heavier than his companion. She did not get’ the license number of the truck and subsequently could not identify the two mén', ’ “they backed out of the drive and drove very swiftly away.”

The principal witness against the appellant was Robert Earl Gardner, also a colored man. He said that while living in Hannibal he and Harris bought and sold junk together. On September 29, 1959, (the alleged date of the burglary and theft) they drove into the country near -Rens-selaer in Harris’ green Chevrolet pickup truck looking for junk. They drove up to the Clayton farm home and “there was a lot of weeds and things,” so they “took a look to see if there was any scrap or things laying around.” They found a couple of pieces of metal in a pile of tin cans and then they looked in a downstairs window and saw that “everything was covered.” According to Gardner they entered the house through the unlocked window, “we raised it together” and propped it open with' a stick. Gardner got back outside and Harris “handed me chairs” and other furniture through the window and Gardner placed it in the truck. They drove to Hannibal where Harris listed several of the articles, particularly the chairs, with Bridgman’s auction. The next day they attended Bridgman’s auction but the bids on the chairs were too low and Harris bid them in. .He and Gardner again placed them in Harris’ green truck and drove to Dierke’s, a dealer in secondhand furniture, but Dierke only took the clock and the mounted horns for which he eventually paid them eight dollars. When they parted that day Gardner took an end table and a footstool to his home, (later he gave these two articles to the sheriff) and when Harris drove away the chairs were on his truck and Gardner never saw them again. Gardner did not remember the date but “maybe two weeks” after their first trip, he and Harris made another trip to the Clayton farm in the green truck. “We started to drive up in the yard and I saw the window was up and so I said somebody is in there, I saw a woman in there so we backed up and left.”

In his investigation the sheriff found one of the end tables in the home of Harris’ mother, he found the receipt where Harris had listed the items at auction and he recovered the clock and mounted horns from Dierke but he was unable to find the missing chairs. After Harris was arrested he told the sheriff and a highway patrolman that “he would try to return the chairs if we would let him out of jail.” The sheriff would not release him and he denied any knowledge of the ‘‘whereabouts” of the chairs and “refused to tell us anything except to lay off of him.” Harris was released on bond and in a few days brought six or seven chairs to the sheriff but only the bedroom chair and four of the dining room chairs belonged to Miss Clayton. Harris took the two chairs that did not belong to Miss Clayton and in a day or so returned with two more of her wormed chesnut chairs. But he refused to tell the sheriff where he had been or where he got the chairs.

Testifying in his own behalf Harris said that he had “been in that vicinity” with his green truck, but he denied that he had ever been in Miss Clayton’s house or that in October he had driven into her driveway and he emphatically denied that he was with Earl Gardner when the furniture was stolen. His version of how he “got in possession of the furniture” was this: “Well, as Earl said, we were junking. We would go out and get tin and what not, I can’t quite recall when it was, but anyway Earl was telling me about a load of furniture a fellow had. Earl come got me and told me about the furniture. I saw the furniture. I bought it because I could get a profit off of it.” He said that “this fellow” had the furniture on a truck on Broadway in Hannibal and that he paid him “somewhere in the neighborhoood of $15.-00” (its value was approximately $525.00). He admitted listing the furniture with Bridgman, the sale of the clock and horns to Dierke, that he took an end table to his mother and, he says that Earl “took his two pieces.” As to the chairs, he said, “We took them to Quincy which we sold. I made a small profit, somewhere around $30.00 that we sold and split the money.” He says that he sold the chairs to- some colored people he met through Earl, “up around 10th Street, a tavern up there.” He thought the purchaser of the chairs was a man named “Hudson” or, later, “Hutchi-son” and the seller was “Elliott.” But he was unable to further identify any of these people and did not know where they lived. After his release on bond, however, he “went back to the guy and he had sold them,” but he located the chairs, refunded the money he had received and returned six or seven of them to the sheriff because “I told the Sheriff I would try to help him locate these chairs which I did.”

In addition to his own testimony, Harris had three witnesses, his pastor and two former employers, who testified to his good reputation for “morality, veracity and good citizenship.” In rebuttal the highway patrolman testified that his reputation for “truth, honesty and veracity” was "very bad.”

In these background circumstances the meritorious question is whether the appellant is entitled to a new trial because of the closing argument of the prosecuting attorney. The appellant claims that the argument was manifestly inflammatory, that it was unfair and improper and that the prosecuting attorney thereby infringed his right to a fair trial. That part of the argument complained of in the motion for a new trial and with some bearing on the problem presented is this (emphasis supplied) :

“Mr. Spaun (appellant’s counsel) says that Mr. Harris has made some effort toward rehabilitation because of another crime which he has committed in the past, possession of narcotics in Iowa. Is it a part of his rehabilitation that he comes on the stand here before this jury, not as a confessed thief, no, but a lying thief, lying to you about— Has he started any rehabilitation? Certainly he hasn’t. It is up to this fury to determine whether or not Mr. Harris came in here with a concocted lying story. True,- Mr. Gardner came in, he was a party to this theft and to breaking into the house. Now, Mr. Gardner is making some effort toward rehabilitation after the commission of this crime, tie came in, and true, he was ashamed. He hung his head, and he said, T did break into this house and steal from it.’ Mr. Harris came in and said ‘No, I didn’t steal from the house, I didn’t break into the house,’ and then made up his story .that he tries to get y.ou to believe. Whether he is lying or not, is up to you. Certainly, it does not appear there is any rehabilitation to what interpretation I was able to place on it.”

The objectionable language, obviously, is the denunciatory epithet, “a lying thief,” which out of context would appear to be the prosecutor’s personal opinion, not an inference or conclusion drawn from the evidence. A prosecuting attorney should not apply denunciatory personal epithets to either the defendant or his witnesses (State v. Taylor, 320 Mo. 417, 434-435, 8 S.W.2d 29, 37) and the language and manner of expression here was unnecessary (see State v. Smith, (Mo.) 242 S.W. 83), even intemperate, but the argument is not comparable to the unbridled outbursts in State v. Teidt, 357 Mo: 115, 206 S.W.2d 524. Another factor is that the trial court has some discretion'in controlling argument as well as in determining whether it improperly influenced the verdict. State v. Roseberry, (MoApp.) 283 S.W.2d 652, 658. The court overruled appellant’s objection to the argument and there were no corrective measures (compare State v. Johnson, 351 Mo. 785, 174 S.W.2d 139) and there is no indication of the court’s opinion as to the effect of the argument except as it may be inferred from the overruling of the motion for a new trial. On the other hand, the appellant was a witness, he had character witnesses and within limits the prosecuting attorney had a right to comment on his character (annotation 70 A.L.R.2d 559) and he also had a right to comment on the truth or falsity of the testimony from the -state’s viewpoint. State v. Poucher, (Mo.App.) 303 S.W.2d 197, 199; State v. Woods, 346 Mo. 538, 547, 142 S.W.2d 87, 89. Out of context the term “lying thief” might be construed as an' expression of the prosecutor’s personal belief or as an assertion of his knowledge of the appellant’s guilt (annotation 50 A.L.R.2d 766), but in context and ultimate effect it may be no more than counsel’s conclusion as to the reliability of appellant’s testimony and therefore not intended as “positive evidence” as is sometimes the fact when counsel attributes perjury to witnesses. Annotation 127 A.L.R. 1385, 1415. In general, “whether particular remarks * * * of counsel, with reference to perjury, constitute reversible error must depend upon the attending circumstances, including their degree of temperateness, (and) - their justification, in view of the evidence.” 127 A.L.R., 1. c. 1415. After making the positive statement counsel immediately said that it was up to the jury to determine whether the appellant “came in here with a concocted lying story” and finally he told the jury that “Whether he is lying or not, is up to you.” From the state’s standpoint there was some justification for the statement, and, weighing all the indicated factors, in the detailed circumstances and context of the trial, it may not be said that the appellant is entitled to a new trial. State v. Jackson, 336 Mo. 1069, 1081—1082, 83 S.W.2d 87, 94-95, 103 A.L.R. 339; 127 A.L.R., 1. c. 1423.

The appellant did not mention instruction 11 (relating to the testimony of an accomplice) in his motion for a new trial (State v. Lord, (Mo.) 286 S.W.2d 737, 742) and his assignment in the motion that the court erred in refusing instruction A (also relating to the testimony of an accomplice) “because it fairly and fully declared the law in said cause” is quite indefinite and does not state a ground or cause for a new trial (Sup.Ct.Rule 27.20, V.A.M.R.; State y. Johnson, (Mo.) 293 S.W.2d 907), hence the giving and refusal of these two instructions is not subject .to review.

Instruction 1 is a short, introductory statement that all persons are equally guilty who “act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly, is the act of all and of each one so acting.” State v. Dowell, 331 Mo. 1060, 1064, 55 S.W.2d 975, 976. Instruction 5 followed the principal instructions and informed the jury that the information was merely the formal charge, that the defendant was presumed to be innocent; it charged the jury upon the subject of reasonable doubt, the credibility of witnesses and told the jury that if they believed that any witness had sworn falsely they might reject all or any part of the testimony of such witness. The appellant now contends, as he did in his motion for a new trial, that these instructions place an undue burden on him and are confusing and misleading in that they are abstract and contain no direction as to how the jury should apply them. The instructions are abstract but they are conventional, cautionary instructions and the appellant does not point out in what manner or how they place an “undue burden” upon him (State v. Drake, (Mo.) 298 S.W.2d 374), in fact they caution the jury and are thus favorable to him. It is not pointed out just what specific direction could have been added for the jury’s information, even though abstract their application to the evidence and to the other instructions is comparatively simple and plain and it is not apparent how they could mislead or confuse the jury. State v. Reece, (Mo.) 324 S.W.2d 656, 661; State v. Hutsel, 357 Mo. 386, 393, 208 S.W.2d 227, 231. The instructions were all connected, a series, and impliedly if not specifically the direction of the court was to consider these particular instructions in connection with the other and principal instructions and apply them to the evidence and the trial in general and upon this record they were not reversibly erroneous for the reasons assigned here.

Questions not required- to be presented and preserved in- a motion for a new trial have been examined and the transcript shows compliance with respect to all matters necessary to be considered by this court “upon the record before it.” Sup.Ct.Rule 28.02. The information appropriately charges the appellant with the offenses of burglary and stealing (V.A.M.S. §§ 560.045, 560.110, 560.156), the verdict is in proper form and responsive to the information, there was allocution and the sentence and judgment are responsive to the verdict. State v. Mallory, (Mo.) 336 S.W.2d 383, 387. Since there is no error upon the transcript the judgment is affirmed.

All concur.

BOHLING and STOCKARD, CC.

PER CURIAM.

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