author: COIL, Commissioner.

text:
    Ethel SPEARMAN, Appellant, v. Donald P. NIES, Respondent.
    No. 48990.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    McCormick V. Wilson, Jefferson City, Hocker, Goodwin & MacGreevy, Hugh E. Gibbons, Donald J. Stohr, St. Louis, for plaintiff-appellant.
    James & Hasler, St. Louis, for defendant-respondent.
   COIL, Commissioner.

Ethel Spearman, plaintiff below, claimed $25,000 as damages for injuries she allegedly sustained as a result of a collision between her automobile and one being operated by Donald Nies. Plaintiff has appealed from a judgment for defendant entered on a jury’s verdict and here contends the trial court erred in giving contributory negligence instruction 6.

Shortly after noon on June 22, 1957, plaintiff was driving her automobile east-wardly on Highway 42 intending to turn north on a graveled road, sometimes herein referred to as the “school road.” There was another eastbound automobile following plaintiff’s car. Defendant was driving an automobile westwardly on 42 and collided with plaintiff’s automobile as plaintiff was in the process of executing a left turn.

The essential facts necessary to a disposition of the question presented are in the main undisputed. State Highway 42 was black topped and about 18 feet wide. The center of the school road which ran north from 42 was “approximately at the crest of” a hill. From the crest one can see the road eastwardly for 100 to 150 feet (plaintiff testified 100 to 150 feet and defendant testified 140 feet) where a dip then obscures the road from one’s vision for a short distance.

Plaintiff testified that as she approached the intersection she began her left turn at a speed of about twenty miles per hour when her automobile was a few feet west of the school road; that as she “was just getting over the center line,” she saw defendant’s car 100 to 150 feet away, traveling at a speed which she estimated to have been 70 to 80 miles per hour; that she thereupon attempted to get out of the way by applying more gas in an effort to complete the turn. She had reached a place where her front wheels were two or three feet beyond the north edge of the road when the collision occurred.

Defendant testified that he approached the collision point at about 50 miles per hour; that as he came out of the dip he saw plaintiff’s automobile 140 feet away just beginning its left turn at a slow speed (it had traveled two or three feet into the west lane). He applied his brakes and sounded his horn but could not stop in the available distance, and the front right side of his automobile struck the right side of the grillwork and headlights of plaintiff’s car when most of .it was west of the west edge of the school road. The rear side of defendant’s car then collided with the side of the automobile which had been following plaintiff’s car eastwardly.

Plaintiff submitted her case on defendant’s allegedly excessive speed.

Defendant’s instruction 3 was:

“The Court instructs the jury that under the law of Missouri the driver of a vehicle within an intersection intending to turn to the left is required to yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

“Therefore, the Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence plaintiff, Ethel Spearman, was driving her automobile eastwardly on Highway 42 and intending to turn left into the country road mentioned in the evidence, and that at said time and place defendant,. Donald P. Nies, was operating his automobile in a westwardly direction on Highway 42 and approaching the intersection of said country road and Highway 42, and if you further find and believe that plaintiff turned to the left and drove her car across the center line of Highway 42 when the automobile of defendant was so close to the aforesaid intersection as to constitute an immediate hazard, if you so find, and that by so doing plaintiff failed to yield the right of way to defendant’s automobile and in so doing failed to exercise the highest degree of care and was negligent, and that such negligence, if any, contributed to cause the collision in question, then the plaintiff, Ethel Spearman, is not entitled to recover against the defendant, and your verdict will be in favor of defendant Donald P. Nies.”

Plaintiff contends the foregoing instruction is erroneous because, says plaintiff, it is a positive misdirection in that (1) it imposed “an absolute and unqualified duty to yield the right of way under every conceivable circumstance and [directed] that failure to do so was negligence per se”; (2) it “excluded from consideration evidence of lack of knowledge, actual or constructive, of the approach, proximity or discoverability of defendant’s automobile,” and failed to hypothesize plaintiff’s actual or constructive knowledge of the approach of defendant’s car; and (3) it failed to define, or set forth a standard for the jury to determine what constituted, an “immediate hazard” under the facts in evidence.

Plaintiff’s supporting arguments, as particularly demonstrated by most of her cited cases, proceed upon the fallacious premise that instruction 3 authorized a finding that the plaintiff was guilty of negligence per se for violating the rule of the road summarized in the instruction’s first paragraph. The fallacy of that assumption is demonstrated by the language of the instruction. It does not, as plaintiff contends, direct that if plaintiff violated the summarized rule of the road she was negligent per se. On the contrary, the instruction very clearly required these findings: that plaintiff was driving east intending to turn left at a certain intersection and that defendant was driving west approaching that intersection; that plaintiff failed to yield the right of way to defendant in that she turned left when defendant’s car was so close to the intersection as to constitute an immediate hazard; that in so doing, plaintiff failed to exercise the highest degree of care and was negligent; and that such negligence, if any, contributed to cause the collision. Furthermore, it is apparent that, contrary to plaintiff’s contention, the instruction did not place an absolute and unqualified duty on plaintiff to yield the right of way under every conceivable circumstance and, as noted, there likewise was no direction that failure to do so was negligence per se. Nor does the fact that the instruction did not specifically mention plaintiff’s knowledge of the approach of defendant’s car, exclude from the jury’s consideration plaintiff’s actual or constructive knowledge of the approach or discov-erability of the approach of defendant’s.automobile. There was no dispute concerning defendant’s discoverability or plaintiff’s actual knowledge of his approach. Plaintiff testified she saw defendant’s car when it was 100 or 150 feet away and the evidence was that at the time plaintiff had such actual knowledge of the approach and proximity of defendant’s car, she had just started her left turn and was just over the center line, at a time and place when and where it was not too late to yield the right of way. Thus, the question which the jury must have understood was submitted by the instruction was whether plaintiff was negligent in continuing to turn left in front of defendant’s approaching car at a time when she knew or should have known that it wels so close as to constitute an immediate hazard. There was no necessity for the instruction, at least under the facts of this case, to define the words, or to spell out a formula for use in determining what constituted an, “immediate hazard.” The words themselves are not ambiguous, are generally used, and are easily understood, Creech v. Blackwell, Mo., 318 S.W.2d 342, 350 [6] ; and under the undisputed evidence the jury reasonably could have found that plaintiff was charged with knowledge that defendant’s approach from 100 to 150 feet at 70 to 80 miles per hour (about one second away), as plaintiff said, or at 50 miles per hour (about two seconds away), as defendant said, and particularly with another eastbound car occupying the eastbound lane, constituted an immediate hazard to her safety.

As we have indicated above, the cases cited and relied upon by the plaintiff deal in the main with the principles relating to negligence per se instructions; that is to say, instructions which set forth a rule of the road, hypothesize (sometimes in the exact language of the statute) a party’s violation of that rule of the road, and direct that, if so, the party was guilty of negligence. For example, the first three of plaintiff’s cited cases, Gaffner v. Alexander, Mo., 331 S.W.2d 622; MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, and Mann v. Pigg, Mo.App., 348 S.W.2d 618, variously hold that the rules of the road are not unyielding and inflexible and do not confer absolute rights or create absolute duties but may be qualified by circumstances which may exist under the evidence in particular cases; that sometimes there may be a valid excuse for failing to comply with a statutory rule of the road which one may prove and submit; that under some circumstances a portion of a statute may need judicial construction and thus sometimes it is misleading and erroneous to abstractly hypothesize only the pertinent portions of a rule of the road without also hypothesizing the essential facts in evidence to make clear the application of the rule to the particular facts. But the cited cases deal with negligence per se instructions and are irrelevant and inapplicable to a case such as the present one wherein the instruction specifically required a finding that plaintiff’s turning in front of an admittedly closely approaching car was a failure to exercise commensurate care and constituted proximate negligence.

It is true that the second paragraph of instruction 3 made the first paragraph (summarizing a rule of the road) unnecessary. We are of the opinion, however, that the presence of surplus paragraph 1 did no harm and, under the facts of this case, did not make the instruction confusing or misleading. The decisive fact is that the jury must have understood that it could not find plaintiff contributorily negligent unless it found that by turning in front of defendant’s approaching car she failed to exercise the highest degree of care and that such negligence contributed directly to cause her injury.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: LEEDY, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. John S. JONES (Relator), Appellant, v. RALSTON PURINA COMPANY, a Missouri corporation, and Lewis B. Stuart, Respondents.
    No. 48831.
    Supreme Court of Missouri, En Banc.
    June 18, 1962.
    Rehearing Denied July 16, 1962.

      Brackman, Oetting & Brackman, William J. Oetting, Paul Brackman, Clayton, for appellant.
    R. H. McRoberts, Marion S. Francis, St. Louis, for respondents, Bryan, Cave, Mc-Pheeters & McRoberts, St. Louis, of counsel.
   LEEDY, Judge.

Mandamus by a stockholder to compel corporation to permit inspection and copying of specifically designated corporate “reports and records,” and to enforce statutory forfeiture against the individual respondent for having thrice refused the stockholder’s demand to so inspect. The trial court found for respondents and entered judgment quashing the alternative writ. The stockholder appealed to the St. Louis Court of Appeals, and in an opinion reported at 343 S.W.2d 631, that court reversed the judgment, and remanded the cause with directions to award a peremptory writ, and to require the individual respondent to forfeit $750 to relator. On respondents’ application to this court, it was ordered that the case be transferred here, so it is now before us for final determination as on original appeal.

Since the determinative question is simply whether the three documents relator seeks to inspect are within the purview of the statute he invokes (§ 351.215, RSMo- and V.A.M.S.) a somewhat brief statement of the facts will suffice. A more detailed statement will be found in the opinion of the Court of Appeals, to which the reader is referred. ’

Relator Jones is a retired employe of the respondent corporation, and owns a substantial number of shares of its capital stock. In the course of his duties as manager of the sales analysis department for the chow division (from 1942 to 1956) he had occasion to see and inspect the documents he now seeks to continue tp examine in his retirement. He made appropriate requests to inspect, and these were denied, and, in consequence, he instituted this action. The corporation is a large one, and concededly its operations have been “phenomenally successful.” Its general (registered) office is in the City of St. Louis. There are about 7100 stockholders, and 80% of its stock is held by employes and their families. It operates directly or through subsidiaries in forty-eight states, Canada, Mexico, Cuba, Colombia and Venezuela. It appears from the annual report for 1958 (the year preceding the one in which this action was filed) that it had 54 chow plants, 4 cereal plants, 9 U.S. soybean processing plants, 2 Mexican oilseed processing plants, 1 sanitation products plant, and 6 research farms. The balance sheet forming part of that report shows net earnings for the year were $17,-468,759; total footings were $193,285,085, with total shareholders’ equity shown as $132,185,206.

The specific documents sought to be inspected are known as “The Preliminary,” “The Profit Analysis,” and “The Balance Sheet.” The documents are severally shown by the evidence to have been of the following character:

“The Preliminary” is a preliminary profit and loss statement which is a summary of the activities of the various departments and divisions of the corporation. It is a breakdown of the profit and loss of the different plants and products, including cumulative figures, so that at the end of the month it shows current profit and loss figures as well as for the yearly period to date. It contains information derived from other accounting records and contains information not reflected in the “books of account,” such as tonnages, and an estimate of annual earnings both before and after taxes not only for the parent corporation, but for its subsidiaries, and a consolidation of all such figures. The instrument gives separately preliminary profit and loss figures for each of the chow plants, each grocery product, each soybean operation, for the sanitation farm supply division, for dog chow as a separate product, for the retail feed stores, the breakdown of the operation of the grain company division by cities, and the elevator company on the west coast. It is prepared by the accounting department from (a) work sheets which in turn are prepared from trial balances sent in monthly to the head (St. Louis) office from the separate branches and plants, and consolidating the figures contained on such separate trial balances; and (b) from other records which are not reflected in the “books of account.” The estimated earnings figures do not reflect anything that is recorded in the books of account, but are obtained from estimates which the management makes about future operations of the business.

“The Profit Analysis” is a monthly report of approximately 70 pages in mimeographed or other duplicated form showing the milling costs, tonnage and production of the various divisions, plant by plant, and product by product, together with the breakdown of all items of costs and expenses, and indicates whether or not there has been a profit or loss for any given month for the various products. Some of the information contained therein is obtained from trial balances sent in by various plants and divisions, subject to adjustments as required at the head office, and other information is obtained from sources not reflected in the books of account or in the general ledger, but from sales and production department records.

“The Balance Sheet” is not prepared in the same form as the regular company balance sheet, but is more detailed and gives items not included in the latter. It is a monthly statement, partially typed and partially handwritten, which is a tentative or preliminary balance sheet. It is a long columnar sheet with current entries being added in ink each month which reflects preliminary profit figures obtained by the use of the other two documents above described. It gives a preliminary breakdown of the various items in the consolidated balance sheet on a monthly basis, showing a comparison with similar information for preceding years. The information contained in this document is taken from the trial balances sent in from time to time by the different plants and divisions of the company. Basically, the document is a compilation of items that appear on “The Preliminary” and on “The Profit Analysis” reduced to balance sheet form. The figures in each of these documents are unaudited, are subject to check, verification, adjustment and analysis, and are frequently changed from month to month because of errors discovered or for other reasons. These documents are prepared regularly, and a copy goes to each elected officer and director (eighteen persons in all) and no one else. The company considers the information contained in the documents so confidential and feels that the disclosure of it is potentially of such danger to the company that even the top officials and directors do not retain their copies, but after being reviewed by them all copies are collected by and retained in the comptroller’s office.

The books kept in the company’s principal office in St. Louis include the following: A private ledger, the general ledger, accounts .receivable ledgers, stock ledgers, cash receipt books, and cash disbursement books; and, in addition, a series of private ledgers for each of the subsidiary companies and plants. (At each of such branch offices or plant locations there is also kept a general ledger, cash receipts and disbursement books, accounts receivable ledgers and voucher payable ledgers.) The private ledger maintained in the St. Louis office contains the principal property accounts and represents reserves, contains the surplus account, the controlling accounts for the capital stock ■records, the debenture records, providing for income taxes and certain types of special receivables in connection with the soybean or cereal part of the business. The general ledger contains the current additions or retirements to the property accounts ; it contains the control accounts for the cash accounts which control the cash receipts and disbursement books; it contains certain inventory accounts, prepayment accounts (such as prepaid insurance and debenture expense); also control accounts for the regular receivables; various accrual accounts — wages, interest, etc.; it also contains the profit and loss accounts, that is the control accounts for certain sales and items of that nature, miscellaneous income such as from investments; the general ledger also contains a control account for each of the fifty-five or sixty branch or subsidiary operations. At each separate plant, such as a chow plant, a separate set of books is kept, and the books kept there .reflect the operations of that particular plant, and they parallel the major or principal books that are kept in St. Louis. There is also maintained at the St. Louis office a prorate ledger to which are charged, from the cash disbursements recorded, administrative and selling expenses as the same are paid. This ledger is cleared monthly, and the amount charged to the respective plants so that selling and administrative expenses will be reflected in the ledgers of the respective plants. Such proration among the different plants is in accordance with certain formulas and principles.

The term “private ledger” is derived “from an old custom of years ago” under which the ledger in which major accounts were kept was normally locked and access to it was by a limited number of persons, but the term is no longer descriptive of the character of such a ledger.

The right sought to be enforced by this proceeding is the statutory right accorded stockholders under § 351.215, RSMo and V.A.M.S., to inspect certain classes of corporate records, which statute reads as follows: “1. Each corporation shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its shareholders and board of directors; and shall keep at its registered office or principal place of business in this state books in which shall be recorded the number of shares subscribed, the names of the owners of the shares, the numbers owned by them respectively, the amount of shares paid, and by whom, the transfer of said shares with the date of transfer, the amount of its assets and liabilities, and the names and places of residence of its officers, which books shall be kept open for the inspection of all persons interested. Each shareholder may at all proper times have access to the books of the company, to examine the same, and under such regulations as may be prescribed by the by-laws.

“2. If any officer of a corporation having charge of the books of the corporation shall, upon the demand of a shareholder, refuse or neglect to exhibit and submit them to examination, he shall, for each offense, forfeit the sum of two hundred and fifty dollars.”

The petition for the alternative writ invoked and was based solely upon that statute, and the case having been heard and determined in the trial court on that theory, it will be reviewed here on the same theory. Nance v. Atchison T. & S. F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547, 551. This effectively forecloses consideration of any question with reference to relator’s common law right of inspection, there being no such issue in the case.

The trial court determined that the documents in question were neither “books” or “records of account” within the meaning of § 351.215, and hence the right of inspection conferred by that section did not extend to them. The Court of Appeals held to the contrary.

The appellant relies primarily on State ex rel. Watkins v. Cassel, 294 S.W.2d 647, decided by the St. Louis Court of Appeals, which does seem to hold (and that court’s opinion in the case at bar says it does, and, in fact, is based in considerable part thereon) that a stockholder’s right of inspection both at common law and under the statute “extends to all books, records, papers, contracts or other instruments which will enable the stockholder better to protect his interest and perform his duties as a stockholder,” citing Ellsworth v. Dorwart, 95 Iowa 108, 63 N.W. 588; Otis-Hidden Co. v. Scheirich, 187 Ky. 423, 219 S.W. 191, 22 A.L.R. 19; State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 22 A.L.R. 5; Weinhenmayer v. Bitner, 88 Md. 325, 42 A. 245, 45 L.R.A. 446.

This rule does not find universal application, and, indeed, we think it erroneous as applied to the scope of examination permitted under our own statute, § 351.215. An examination of the first two of the foregoing cases will disclose they do not support such holding. In both of them the statutory right of inspection was denied, but the court upheld the right under the common law rule.

Our statute is wholly unlike any of those under scrutiny in tiróse cases. For example, the statute in Ellsworth v. Dorwart, supra, provided that the offices of certain officers were to be kept at the principal place of business of the corporation “in which offices the original record, stock, and transfer books, and all original papers and vouchers of such corporation shall be kept; and such [officers] shall keep a record of the financial condition of the corporation which may be inspected at all reasonable hours by any stockholder,” etc. Among other things, the stockholder sought to examine “all books and vouchers pertaining to the financial affairs of the corporation.” In upholding the denial of the right of inspection of original papers and vouchers thus demanded, the court said: “A strict construction of the statute perhaps does not give him the right to examine the original papers and vouchers, and, if such right exists at all, it is given by a liberal construction of the language used or by the common law.” But in the concluding paragraph it is made clear that the court held the statute inapplicable, for it was there said: “As we have seen, the statute does not confer the right to examine the original papers and vouchers of the corporation, and we think that, to entitle plaintiff to it, he should plead and prove that some property right is involved, or that some controversy exists, or that some specific and valuable interest is in question, to settle which an inspection of these documents becomes necessary.” In short, the stockholder was relegated to his common law right of inspection, the exercise of which is dependent on showing a satisfactory reason and proper purpose. That case is not authority in support of the proposition for which it was cited. The same is true of Otis-Hidden Co. v. Scheirich, supra. There the right of inspection upheld was not under the Kentucky statute, but under the common law rule, the court saying, “[T]he statute does not cover the right of inspection in a case like this, and we must look to the common-law rule on the subject.” So its holding that the right of inspection there under scrutiny extended to and included “the documents, contracts and papers of the corporation” had reference exclusively to the stockholder’s common law right, and not that under the statute.

The other cases are more nearly in point, although each involved the construction of a particular statute, neither of which is like our own. In State ex rel. McClure v. Malleable Iron Range Co., 177 Wis. 582, 187 N.W. 646, 22 A.L.R. 5, the question was whether a certain schedule (called a statement of the segregated cost of defendant’s real estate) and work sheets prepared by an expert accountant for the corporation were within the purview of the statute providing that “the books of every corporation containing the stock subscription and accounts shall at all reasonable times be open to inspection,” etc. The material sought to be inspected was prepared for use in an accounting required of the company in litigation involving patent infringements. The figures on the schedule were compiled from the company’s books and records and information furnished by the officers of the company, including the relator, but the values set forth therein were never adopted by the company nor placed or carried on the company’s books. The trial court had found that such material “was not a record, account or book of the defendant corporation” within the meaning of the statute, but the Supreme Court, adhering to what it acknowledged to be Wisconsin’s “liberal view pertaining to the subject of inspection,” held that under the statute the stockholder had an unconditional and unqualified right of inspection regardless of the motives inducing him to desire it. In the course of the opinion the court used this language: “The right of a stockholder to examine the records and books of account of a corporation extends to all papers, contracts, minute books, or other instruments from which he can derive any information which will enable him to better protect his interests and perform his duties.”

In Weinhenmayer v. Bitner, 88 Md. 325, 42 A. 245, 45 L.R.A. 446, the statute required the president and directors of every corporation to “keep full, fair and correct accounts of their transactions, which shall be open at all times to the inspection of the stockholders or members.” The stockholder asked for “all books, papers, and accounts of every kind and description whatsoever of the corporation,” and the court held that the right of examination given by the provisions just quoted includes all books, papers, and accounts containing the transactions of the corporation.

We agree with the Court of Appeals, as stated at 343 S.W.2d 638 [3, 4], that the basic rule of statutory construction here applicable is that the court “are to seek the intention of the lawmakers and to do so from the words used, if possible; ascribing to the language used its plain and rational meaning and giving significance and effect to every word, phrase, sentence and part thereof, if in keeping with that intent.” Nor do we disagree with its conclusion (stated in the same paragraph) with respect to the purpose the legislature sought to accomplish by the enactment of the present section. We think, however, that respondents’ interpretation of the statute in that regard (as summarized in their supplemental brief filed here) is perhaps more accurate and comprehensive, and we adopt it, as follows:

“Each corporation is required to keep, wherever it may choose, correct and complete books and records of account and minutes of the proceedings of its shareholders and board of directors.

“Each corporation is required to keep at its registered office or principal place of business in this state certain specific books, i. e., a stock book (including a book recording transfers of shares of stock), a book in which the amount of its assets and liabilities shall be recorded, and a book in which the names and places of residence of its officers shall be recorded; which specific books shall be kept open for the inspection of all persons interested.

“Each shareholder may at all proper times and under such regulations as may be prescribed by the by-laws have access to and may examine all of the books of the company, not only those which are required to be kept in this state, but those which are required to be kept wherever the corporation may choose to keep them.

“Finally, the officer of the corporation having charge of the books of the corporation who shall refuse to submit the same to examination shall for each offense forfeit the sum of two hundred fifty dollars.”

The question is reduced (as forecast earlier) to whether the paper writings sought to be inspected are “books” within the meaning of the statute. Under the evidence, the trial court was warranted in regarding them as being analyses or tentative studies prepared purely for the information of the management, and, being in the nature of confidential inter-office communications, were not comprehended within the meaning of “books” as that term is used in the statute. Wherefore, its judgment is affirmed.

All concur.


author: HOLMAN, Commissioner.

text:
    Cecil Eugene MURPHY, Appellant, v. Zella Mae MURPHY, Respondent.
    No. 49005.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.

      Delton L. Houtchens, Clinton, for appellant.
    Poague, Brock & Wall, Barkley M. Brock, Clinton, for respondent.
   HOLMAN, Commissioner.

In this case plaintiff filed a petition in the nature of writ of error coram nobis in which he sought to set aside a judgment and decree entered on April 6, 1960, in which defendant (plaintiff therein) was granted a divorce from him and also obtained a judgment for $18,000 alimony in gross and a support allowance for a minor child. The ground relied upon for setting aside the judgment was that plaintiff was suffering from a "mental condition” (it may be inferred that he was alleged to be mentally incompetent) at the time of trial and that no guardian ad litem was appointed for him and hence he was “deprived of a defense by a sane person.” Just prior to the beginning of the trial of the instant case Wanda Wilson was appointed next friend and guardian ad litem for plaintiff. The trial court found the issues in favor of defendant and a judgment was entered denying plaintiff the relief he sought. Plaintiff has appealed.

Plaintiff and defendant were married October 12, 1928, and lived all of their married life on a farm near Deepwater, Missouri. They had four children who ranged in ages from 20 to 27 years at trial time. Plaintiff was a successful farmer and at the time the divorce case was tried owned approximately 500 acres of land, a large number of cattle, and valuable farm equipment.

Defendant (called as a witness by plaintiff) testified that plaintiff had always had! a high temper and would have “temper fits”; that he had had disagreements and difficulties with his father and with his sisters and other relatives; that he had threatened people with a gun and had also threatened to take his own life; that he had abused her and the children over a period of years and insisted on dominating the family, and as the children grew older they rebelled against the attitude of their father; that in the summer of 1957 he became violent and had crying spells and “I just couldn’t take any more of it. I left the place.” Plaintiff then went to the hospital in Clinton and Dr. Bradshaw treated him for a while and then sent him to the Neurological Hospital in Kansas City. Defendant further testified that after plaintiff had spent about a month in that hospital Dr. O’Hearne, a psychiatrist in Kansas City, had recommended to her that she sign papers and have him sent to the State Hospital at Nevada for treatment; that he was taken to the hospital early in August and while there improved a great deal; that after his release (October 30, 1957) they resumed living together and plaintiff was easier to get along with and “fitted in with the family a little better than he' had before”; that in the fall of 1959 (1958?) his conduct became worse and “we just couldn’t please him, he would get morose and wanted to dominate everybody”; that she left the defendant in February 1959 and filed the suit for divorce in October 1959.

The records of the Probate Court of Henry County indicate that on August 1, 1957, Mrs. Murphy signed a petition for an order of involuntary hospitalization alleging that her husband was mentally ill; that on that date an order for temporary confinement was made by the court; that on August 15 a hearing was had on the petition and the court found that Mr. Murphy suffered from a mental condition and was in need of care and treatment at a mental institution, and ordered that he be hospitalized in the State Hospital at Nevada, Missouri “for an indefinite and indeterminate period until the mental condition of said proposed patient shall be sufficiently improved to warrant release.” No guardian was ever appointed for plaintiff and no restoration petition was filed in the Probate Court of Henry County.

Plaintiff also read in evidence the deposition of Dr. Paul L. Barone who testified that he had worked at the State Hospital at Nevada for 21 years and had been superintendent thereof since January 1948. This witness identified the records of the hospital relating to Mr. Murphy. He also testified that at a staff meeting of five doctors, only one of the doctors expressed the opinion that Mr. Murphy was psychotic or mentally ill. One of the doctors said he was a psychoneurotic, and three diagnosed his condition as “personality trait disturbance, passive-aggressive personality”; that in his opinion a person suffering from passive-aggressive trait disturbance could work, manage his own business, and operate a farm. He stated that Mr. Murphy was a good patient and the only treatment administered was occupational and recreational therapy and the use of tranquilizing drugs; that he was in an open ward and could go about the grounds at will; that he was given convalescent leave on October 30, 1957, at which time “I thought he was normal, capable of carrying on his ordinary business from then on”; that he was finally discharged (without having returned to the hospital) on August 18, 1958, and the Probate Court of Henry County was notified of that action.

The files of the State Hospital contain a letter dated July 22, 1957, from Dr. John J. O’Hearne of Kansas City which states that he had examined Mr. Murphy and that his diagnosis was “involutional psychotic reaction with paranoid trends and moderate agitated depression," and he recommended hospitalization in the State Hospital for a period of at least two or three months.

Plaintiff called as an expert witness Dr. Nathan Greenbaum who testified that he was a psychologist practicing in Kansas City, Missouri. Pie testified that he had examined the plaintiff on April 20, 1961, in his office in Kansas City; that in his opinion plaintiff was suffering from a chronic mental illness which he diagnosed as paranoid; that plaintiff had a persecution complex and entertained unjustified suspicions; that this condition had existed for at least four years and probably longer; that in his opinion plaintiff had not been competent to defend the divorce case in March 1960 because, while he may have been competent in many matters, anything connected with his wife would trigger his paranoid thinking and that such “thinking would be distorted and impaired”; that in his opinion plaintiff was not competent to testify in the case on trial. On cross-examination this witness expressed the opinion that plaintiff understood about his property and its value.

Mrs. Wanda Wilson, plaintiff’s niece and guardian ad litem, testified that since 1957 plaintiff had kept more to himself, didn’t trust anyone, and had unjustifiably accused his wife of infidelity; that his condition had not improved and he continued to have delusions. On cross-examination this witness stated that plaintiff had always been possessed of a high temper, and that he was at that time handling his farms and other property.

Floyd Sperry, Jr., testified that he was a practicing attorney in Clinton, Missouri, and was at that time holding the office of prosecuting attorney; that plaintiff had employed him to act as his attorney in the defense of the divorce case and that he had fulfilled that employment; that while the divorce suit was pending plaintiff had conducted a cattle sale under an agreement with his wife to sell the cattle and pay the proceeds on a mortgage at the bank; that plaintiff was present during the trial of the ■divorce case and testified at some length in connection with the issues on trial; that two or three other witnesses were called on behalf of plaintiff (defendant therein) and that he had presented all of the evidence available in defending said case; that he did not know of the order of the probate court in regard to Mr. Murphy’s mental illness but did know that he had been in the two hospitals and that plaintiff had so testified in the trial of the divorce case; that after the decree he had filed a motion for new trial which was overruled; and he thereafter filed a motion to quash a levy made under an execution in favor of Mrs. Murphy seeking to collect the $18,000 judgment; that shortly thereafter he had been relieved as attorney for Mr. Murphy.

All of the evidence heretofore detailed was offered by plaintiff. The only evidence offered by defendant was a transcript of the testimony of Mr. Murphy in the divorce case, which transcript was admitted without objection on the part of plaintiff.

The rule in this state is that an insane person may be sued “but he must have the right and benefit of a defense made by a sane person (either himself recovered, or a guardian).” Gibson v. Pollock, 179 Mo.App. 188, 166 S.W. 874, 875. If no guardian has been appointed the court, upon proper suggestion, should appoint a guardian ad litem to defend in the name of the insane person. Graves v. Graves, 255 Mo. 468, 164 S.W. 496. A judgment rendered against an insane person who is not represented by a guardian or guardian ad litem is voidable and in a proper proceeding should be set aside. If the fact of insanity did not appear upon the face of the record it is clear that a proceeding in the nature of writ of error coram nobis is an appropriate remedy to set aside the judgment. Bank of Skidmore v. Ripley, Mo.App., 84 S.W.2d 185; Graves v. Graves, supra.

In a case of this nature it is our duty ■to review the case de novo, weigh the competent evidence, and reach our own conclusions as to the facts, but “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Section 510.310(4) (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.). The facts heretofore stated indicate that there was ample evidence to support the finding of the trial court in favor of defendant. While we are willing to defer to the trial court our de novo review of the evidence has caused us to independently arrive at the same conclusion.

In his brief plaintiff assumes that he has been adjudged by the probate court to be incompetent or of unsound mind. He goes further and says that since there has been no restoration order that condition is presumed to have continued until the present time which would, of course, include the date of the trial of the divorce case. This contention is not factually correct. He was not adjudged to be of unsound mind. The proceeding was held under the provisions of § 202.807, a relatively new statute, which provides for involuntary hospitalization of certain persons who are mentally ill. It is specified in subsection 5 that “if, upon completion of the hearing and consideration of the record, the court finds that the proposed patient is mentally ill, and is in need of custody, care or treatment in a mental hospital and, because of his illness, lacks sufficient insight or capacity to make responsible decisions with respect to his hospitalization, it shall order his hospitalization for an indeterminate period or for a temporary observational period not exceeding six months; otherwise it shall dismiss the proceedings.” That such an order is not an adjudication of insanity appears from the provisions of § 202.780(5) wherein “mentally ill individual” is defined as “an individual having a psychiatric or other disease which substantially impairs his mental health who may or may not be legally insane,” and from § 202.847, which recognizes the right of patients subject to judicial hospitalization to exercise civil rights “unless he has been adjudicated incompetent and has not been restored to legal capacity.” The restoration proceedings provided for in § 475.360 do not apply in proceedings for judicial hospitalization, for that section applies to persons “adjudged to be incompetent or of unsound mind.” Patients hospitalized under § 202.-807 may at any time petition for re-examination of the order for hospitalization under the procedure prescribed by § 202.837 and if found no longer mentally ill and no longer in need of custody, care or treatment in a mental hospital, they are entitled to be released. See 5 Mans, Missouri Practice, § 1868, p. 238.

The cases holding that an adjudication of insanity usually gives rise to a presumption of continued incapacity are not specifically applicable in this situation. The most that could be here said is that there is a presumption that plaintiff continued to have some sort of mental illness after the adjudication in question. However, we deem it unnecessary to decide that question as such a presumption would be of little or no consequence in view of the evidence that plaintiff was released from the hospital on October 30, 1957, resumed his normal way of life, and was discharged “from the hospital records” in August 1958.

The evidence has been heretofore stated in detail and need not be restated in our discussion of the basis for our decision. We consider it sufficient to briefly refer to a few items which we have considered particularly convincing in arriving at the conclusion that plaintiff was not insane and was mentally able to defend the divorce suit. (1) Four of the five staff members at the State Hospital were of the opinion that plaintiff was not mentally ill. (2) He was not restrained at the hospital and was given very moderate or mild treatment. (3) Upon his release after a few weeks Dr. Barone was of the opinion that he was normal and capable of handling his business affairs. (4) He employed an attorney in the divorce case who apparently made a thorough defense. (5) Plaintiff testified at length in that case (34 transcript pages) which testimony apparently covered all issues in the case. In our review of that testimony we find nothing therein to indicate that plaintiff was not in full possession of his mental faculties. (6) The evidence indicates that from October 30, 1957, until the date of the trial (April 26, 1961) plaintiff had been able to manage his personal and business affairs.

We have carefully considered certain opinion evidence which would indicate that plaintiff was suffering from a serious mental disease at the time of the trial of the divorce case and thus was incapable of presenting his defense therein. However, in our opinion, that evidence is strongly outweighed by evidence to the contrary and hence is not convincing.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. Erwin Wayne JONES, Appellant.
    No. 49054.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 16, 1962.

      No brief or appearance for appellant.
    Thomas F. Eagleton, Atty. Gen., James Wilson Spencer, Special Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

Defendant Erwin Wayne Jones was charged by an information with burglary and stealing. The offense was alleged to have been committed in Jackson County, Missouri, early on the morning of March 16, 1961. A trial by jury resulted in a verdict of guilty of stealing property of the value of at least $50.00. It was alleged that Jones had previously been convicted of a crime and had served a prison sentence. Evidence was offered to prove that allegation. The trial court assessed Jones’ punishment at seven years’ imprisonment in the State Penitentiary. An appeal was taken to this court.

Defendant was represented by court-appointed counsel. Defendant filed no brief in this court. We shall consider the points preserved for review in the motion for a new trial.

In this motion, defendant says that the evidence was insufficient to sustain a verdict of guilty; that the evidence of witness Jewel Gray was false; that the trial court should have instructed on petit larceny; and that the prosecutor, in his argument, referred to the defendant as a criminal. Defendant further questioned the sufficiency of the information and the verdict.

The State’s evidence showed the following to have occurred: On the morning of March 16, 1961, Hall G. Pruitt went to his storeroom located at 3351 East 27th Street, Kansas City, Jackson County, Missouri, where he found that the glass of the front door had been broken. On investigation, he found that the cash register had been opened and about $20 had been taken therefrom. ’A further investigation disclosed that a number of firearms, valued at $89 had been taken. Among the firearms taken were two rifles which Pruitt testified were worth more than $50. On the 17th day of March, two rifles which had been in the storeroom were sold by the defendant to one Happy Bruno. When arrested, defendant admitted having sold the rifles but claimed that he had sold them for one Elmer Davis and witness Jewel Gray. Gray testified that he and Davis were riding around in a car with Jones on the morning of March 17 but did not go to Bruno’s place of business and were not present when the rifles were sold. Gray further testified that on the night of March 15, or early morning of March 16, he, Davis, and Jones were at a party “shooting craps”; that at about twelve o’clock (midnight) Davis asked the witness to go with him to break into Hall G. Pruitt’s storeroom but that he refused; that Jones was present at the time. Gray testified that later, at about 3:00 a. m., Davis and Jones came back to the party and Davis said, “We got it.” It was on the following morning that defendant Jones sold the rifles to Bruno. Gray testified that he was charged with burglary and stealing, the same as Jones, but that he turned State’s evidence and the case was dismissed as to him. Gray stated that the only connection he had with the alleged theft was that he was with Davis and Jones on March 17, the day Jones allegedly sold the rifles to Bruno.

The defense consisted of an alibi. The defendant’s mother, his sister, and his brother testified that defendant was at home on the night of March 15 and the morning of March 16 and could not have participated in the crime. Defendant did not testify.

It is evident that the evidence was ample to support a conviction. Possession of property recently stolen is sufficient to sustain a conviction. Defendant’s explanation of the possession was a question of fact for a jury. State v. McLane, Mo., 55 S.W.2d 956, l. c. 957(1); State v. Tomlinson, 350 Mo. 391, 177 S.W. 2d 493, l. c. 494, 495(1) (2) (3, 4); State v. Woolsey, Mo., 328 S.W.2d 24.

Defendant’s contention that “witness Jewel Gray deviated from the truth in his testimony” is a matter that was for the jury to decide. All the facts were before the jury and it was the jurors’ province to believe or disbelieve his evidence.

The defendant says that the trial court should have instructed on petit larceny. All of the evidence as to value was that the property stolen was worth in excess of $80; this plus the $20 cash made a total of over $100. There was no evidence to the contrary. We rule the trial court was not required to instruct on petit larceny.

Neither may the defendant complain that the jury chose to find him guilty of stealing only but not burglary. Such a verdict was favorable to the defendant. State v. Willis, Mo., 328 S.W.2d 593, 1. c. 594(3, 4). The verdict was not defective or inconsistent and was authorized by an instruction of the court.

In his motion for new trial, defendant says the prosecutor in his closing argument said, “The police catch the ‘CRIMINAL,’ the State brings him to trial, and the jury must convict him.” The record does not support that allegation. Note what was said: “There are three instruments in our community here of Jackson County that are necessary to protect the public. We have the police department, who apprehends the criminal; they investigate the crime, and apprehend the criminal. And then we have the prosecutor’s office, to prosecute the defendants, the ones that are charged with crime.- And thirdly, and the most effective instrument we have, is the jury. And you today are the members of the jury, sitting here as representatives of the entire citizens of Jackson County, and it is your responsibility to determine whether or not the defendant is guilty or innocent.”

We see nothing wrong with that argument. No objection was made and, if one had been made, it should have been overruled.

We have examined the information in this case and find that it is in the usual and approved form of a charge of burglary and stealing. Further, we have examined other matters as required by S.Ct. Rule 28.02, V.A.M.R., and find no reversible error therein.

The judgment is hereby affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    Thomas M. BEGLEY, Respondent, v. ADABER REALTY & INVESTMENT COMPANY, a Corporation, Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, Saul Rubin, Individually, and Louis Rubin, Individually, Appellants.
    No. 48973.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 16, 1962.

      Evans & Dixon, William Wallace Evans, Henry D. Menghini, St. Louis, for appellants.
    Cox, Cox, Cox & Moffitt, Harvey B. Cox, Jr., William A. Moffitt, Jr., St. Louis, for respondent.
   HOUSER, Commissioner.

Action for damages for personal injuries sustained when an 80-foot section of overhead heating ductwork fell from the ceiling of a supermarket in St. Louis and struck a customer who was shopping in the store. Plaintiff, Thomas M. Begley, sued the owner of the building (Adaber Realty & Investment Company, a corporation) and the general contractors who erected the building (Saul and Louis Rubin, a partnership doing business as Jacob Rubin & Sons) for $100,000. A jury returned a verdict “against both of the defendants” for $20,000. Following the overruling of defendants’ motion for a new trial, defendants appealed from the judgment.

Instructions Nos. 1 and 3 outline plaintiff’s theory of recovery against the partnership and corporation, respectively. We reproduce them in one column to the extent they are identical; in two columns wherein they differ:

“The Court instructs the jury that it is admitted that Jacob Rubin & Sons, Contractors is and was at all times mentioned in evidence a partnership in the State of Missouri, and that Saul Rubin and Louis Rubin were at all times mentioned in evidence partners doing business under the name of Jacob Rubin & Sons, Contractors. The Court further instructs the jury that it is admitted that Adaber Realty & Investment Company, a corporation, entered into a written lease which provided that Adaber Realty & Investment Company, a corporation, would erect a building for use by National Food Stores, Inc., as a retail food store on premises located at 2747 Good-fellow Avenue, St. Louis, Missouri, and that thereafter Adaber Realty & Investment Company arranged for the construction of the said building at 2747 Goodfellow Avenue, St. Louis, Missouri by Jacob Rubin & Sons, Contractors and that thereafter Jacob Rubin & Sons, Contractors undertook to act as general contractors for the construction and erection of the aforesaid building at 2747 Goodfellow Avenue and that after the erection of said building, the said building was leased to National Food Stores, Inc., for a period of time extending beyond the 15th day of February, 1958.

“The Court instructs the jury that if you find and believe from the evidence that on or about the 15th day of February, 1958, plaintiff, Thomas M. Begley, was lawfully in and upon the aforementioned premises located at 2747 Goodfellow Avenue, St. Louis, Missouri, as a business invitee of the National Food Stores, Inc., and that while plaintiff was engaged in shopping in said premises and while he was in an aisle-way located therein, a portion of the heating duct work fell from the ceiling of the said building and struck plaintiff, directly and proximately causing plaintiff to be injured, if you so find, and if you further find that the said portion of the heating duct work which fell and struck plaintiff was improperly and insecurely installed and affixed to the ceiling materials of said building at the time it was installed, if you so find, and if you further find that such improper and insecure installation if any you find, as installed would in the future, in all reasonable probability, cause the said heating duct work to come loose and fall down, if you so find, and if you further find that in the performance of their functions as general contractors for the construction and erection of the aforesaid building Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, in the exercise of ordinary care should have discovered the improper and insecure installation, if any you find, of the said heating duct work, and in the exercise of ordinary care should have known that said heating duct work as installed would in the future be apt to come down and would be dangerous to persons lawfully in the said premises, if you so find, and if you further find that thereafter the improper and insecure installation, if any you find, of the said heating duct work could not be discovered by National Food Stores, Inc., by the exercise of ordinary care, if you so find, and if you further find that Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, knew or in the exercise of ordinary care should have known that National Food Stores, Inc., in the exercise of ordinary care could not then discover the improper and insecure installation, if any, of the said heating duct work, if you so find,

and if you further find that the said Saul Rubin & Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, thereafter caused, allowed and permitted the completed building to be occupied and used by National Food Stores, Inc., without disclosing the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that Saul Rubin & Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, thereby failed to exercise ordinary care for plaintiff’s safety and were negligent, if you so find, and if you further find that plaintiff was directly and proximately injured by such negligence, if any, on the part of said defendants, then your verdict shall be in favor of the plaintiff, Thomas M. Begley and against Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership.”

and if you further find that at all times mentioned in evidence Adaber Realty and Investment Company, a corporation, owned the aforesaid real property and premises erected thereon, if you so find, and if you further find that at all times mentioned in evidence Saul Rubin and Louis Rubin were officers and principal stockholders of Adaber Realty & Investment Company, a corporation, if you so find, and if you further find that such Corporation, through the said officers and principal stockholders, if you so find, knew or in the exercise of ordinary care should have known of the improper and insecure installation, if any you find, of the said heating duct work and should have known that National Food Stores, Inc., in the exercise of ordinary care could not discover the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that the said Adaber Realty & Investment Company, a corporation, thereafter caused, allowed and permitted the completed building to be occupied and used by National Food Stores, Inc., without disclosing the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that Adaber Realty & Investment Company, a corporation, ther.eby failed to exercise ordinary care for plaintiff’s safety and was negligent, if you so find, and if you further find that plaintiff, Thomas M. Begley, was directly and proximately injured by such negligence, if any, on the part of the said Adaber Realty & Investment Company, a corporation, then your verdict shall be in favor of the plaintiff, Thomas M. Begley, and against Adaber Realty & Investment Company, a Corporation.”

Appellants’ main point is that the court erred in not directing a verdict for defendants because of lack of evidence.

First, appellants say the evidence fails to show beyond speculation and conjecture that the ductwork was improperly installed, or that improper installation ■caused it to fall. There was evidence tending to prove the following: The customary method of hanging ductwork from a ceiling is to nail or screw metal straps or hangers to the sides of the joists, the straps dropping down to catch the duct, which is attached to the straps by metal screws. Normally metal hangers or straps are installed before the sheetrock and ceiling tile (Celo-tex in this instance) is put up. The hangers or straps would have to be securely fastened to the joists to hold the weight. If the duct-work or hangers were attached to the ceiling tile and sheetrock, and not to the joists, ■or nailed through the sheetrock and tile into the joists, it would not hold but would ■come down. Toggle bolts through sheet-rock would not hold. It would not be normal procedure to drive nails straight up into the joists. Nails should be driven into the sides of the joists, horizontal to the floor and perpendicular into the sides of the joists, which gives greater support. There should be hangers every four feet. Several witnesses observed no hangers or metal straps coming down through the ceiling, or running up through the ceiling and attached to the joists. Others testified there were “very few," or only two, three or four hangers or straps in the entire 80 feet of ductwork that fell. One witness testified the straps were approximately fifteen feet apart. After the ductwork fell, nail holes in the top of the ductwork were seen. Nails were found on the floor. An examination of some of the hangers that held the ductwork to the ceiling showed there were nails projecting through the top flange, and holes in the Celotex the size of a nail. A spot on the ceiling was visible “where the object had pulled out that was holding the duct,” and no structure visible beyond the Celotex itself that a nail may have been driven into. There were no holes, openings, slits or slots leading up through the Celotex indicating that anything had gone up through the plasterboard into the joists, and no hangers were observed running up into the attic, or projecting down through the ceiling. It seemed to the store manager that the ductwork was “just held to the ceiling by nails; * * * just nailed to the ceiling.” There were “nails stuck in the top flange of the strap.” At the back of the store there was a small, short-threaded bolt which broke loose. It looked like “it just pulled out of” the Celotex ceiling. There was a slight hole, about half an inch, where it had “just jerked loose.” The bolt “had just been attached to the top of the Celo-tex.” The ductwork was held in place at the ceiling with a flange that was “nailed into the ceiling.” Herbert Thomas, superintendent for the partnership, examined the ceiling after the ductwork fell. He said three or four of the ceiling tiles had dropped out of the ceiling. He did not remember seeing any hangers hanging or coming down through the ceiling. The joists were on 16-inch centers and they ran the length of the store, east and west, the same as the ductwork. Since the ductwork was wider than 16 inches it would be impossible to “hit a joist” with a nail on both sides of the duct. A joist could be “hit” on one side or the other but not on both sides. This was sufficient evidence to submit the question of improper installation and causation.

Second, appellants say there is no evidence that Saul and Louis Rubin, as general contractors, knew or could have known of or discovered the improper installation prior to the completion of the work and its acceptance by the occupant; that the ductwork was installed in a two-day period; that once the ductwork had been installed it could not be determined by an exterior examination what fasteners or screws were holding it up; that interior fastenings may have been supporting it, and interior fastenings could not have been seen, but would be hidden from view. There was evidence that Saul Rubin, a licensed architect and builder for 35 years, designed the store building, drew the plans and supervised the construction. He had occasion to be on the job site while the ductwork was being done. He checked the progress of the Southern Heating Company in the physical conduct of their work. He saw the work done when the ductwork was put up . . . saw the men working on the ducts. He visited the job every day, and had the responsibility of supervision over the subcontractors, and to see that the work was progressing and that they were building it according to the blueprints. Saul Rubin or Mr. Thomas, superintendent for Jacob Rubin & Sons, were responsible to supervise the whole job and to see that the hangers were put up before the ceiling tile was installed. Thomas was on the job every day the building was under construction. If Saul “saw something wrong, somebody wasn’t doing something the way [he] thought it ought to be done”; if he saw the Southern Heating Company people “nailing these straps to the ceiling through the Celotex and sheetrock into the joists,” he would call their attention to it and tell them to correct it. This was ample evidence to submit the question of knowledge, actual and constructive, on the part of the partnership.

Third, appellants contend there is no evidence that Adaber was in control of the building at the time of the accident; that National had exclusive possession for more than three years prior to the accident; that there was no evidence that Adaber knew or could have known of the alleged improper installation prior to the occupancy of the store by National, or that Adaber concealed the condition from the lessee. But plaintiff did not seek to hold Adaber on the ground that Adaber was in control of the building at the time of the accident. Plaintiff’s case against Adaber was based upon improper and insecure installation creating a dangerous condition, knowledge of which was discoverable by Saul and Louis Rubin, as general contractors, and imputable to Adaber, because Saul and Louis were officers and principal stockholders of Adaber; and Adaber’s negligence, with constructive knowledge of the dangerous condition, in failing to exercise ordinary care for plaintiff’s safety by permitting National to occupy the building without disclosing to National the improper and insecure installation. Appellants argue that constructive knowledge cannot be imputed to Adaber because Saul and Louis were upon the premises on behalf of their partnership and not on behalf of Adaber. The evidence shows that Saul and Louis were the sole members of the partnership and the controlling and principal stockholders and president and secretary-treasurer, respectively, of the corporation. The corporation held record title to the building and no one else had any financial interest in it. The partnership ultimately received the rents from the building, which were deposited in the bank, and Saul and Louis distributed the profits between themselves. While it is true that when Saul was on the premises during the construction period he was acting on behalf of the partnership, it is equally true that he was also on the premises on behalf of the corporation. Appellants will not be heard to say that the corporation had no interest in the proper and secure installation of the ductwork, for it was as much interested in the performance of the work, including the proper installation of the ducts, as the partnership. It was within the range of Saul’s official duties as president of the corporation to see to it that the subcontractor properly and securely installed the ductwork in the corporation’s building. There was a complete unity and no adversity of interest as between corporation and partnership. There was a total blending of personal, partnership and corporate interest, as a result of which the knowledge imputable to Saul as a member of the partnership was fully imputable to the corporation. “Where a corporation’s agent represents, with its consent, both the corporation and a partnership, of which such agent is a member, in a transaction between them, knowledge possessed by him as partner and affecting the transaction will be imputed to the corporation; * * 19 C.J.S. Corporations § 1086. There was a basis for a finding that the corporation, with constructive knowledge thereof, permitted its lessee to enter and occupy the premises without disclosure of this dangerous condition.

Both appellants disclaim liability-on the ground that the ductwork was actually installed by an independent subcontractor, Southern Heating Company, which was not an employee of either appellant, and for whose independent acts of negligence neither appellant is liable. But plaintiff did not go to the jury on the basis of the defendants’ liability for the subcontractor’s negligence. Plaintiff’s theory was that defendants were negligent because, with constructive knowledge of the improper and insecure installation, they permitted the lessee to open this store to the public without informing the lessee of the dangerous condition. As far as the liability of Adaber is concerned the applicable rule is that “Where * * * at the time of the execution of the lease there are latent defects in the premises which are known to the lessor and not known or discoverable by the tenant in the exercise of due care, and which involve an unreasonable risk of bodily harm to persons upon the premises, the lessor is under a duty to disclose to the tenant the existence of such defects, and, if he conceals the presence of such defects, he will be liable for personal injuries resulting to the * * * invitees of the tenant from such defects.” Grimmeissen v. Walgreen Drug Stores, Mo.App., 229 S.W.2d 593, l. c. 598, cases and authorities cited; 52 C.J.S. Landlord and Tenant § 417, a. (3). Plaintiff’s theory is equally applicable to the construction contractors, as an exception to the general rule of nonliability after acceptance of the work for injuries to third persons with whom the contractor is not in a contractual relation. This exception applies where the structure was so defectively constructed as to be essentially and imminently dangerous to the safety of others; the defects are so hidden and concealed that a reasonably careful inspection would not have disclosed them, and these things are known to the defendants but not to those who accepted them. Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330, 335; Anno., 13 A.L.R.2d, § 33, p. 233. That the defect was hidden, concealed and not observable by the tenant upon a reasonably careful inspection (National inspected the construction after its completion and before taking possession) is apparent from testimony that the nails, screws and attachments were visible and could have been seen as the ductwork was being installed, but after it was completed and the ductwork affixed to the ceiling “you could not see them”; “We wouldn’t know unless we took it apart what was inside to hold it up.”

With respect to appellant-partners’ contention that they should not be held liable for an accident occurring over three years subsequent to the performance of their work contract, while doubtless liability in some cases might be controlled by considerations of ordinary wear and tear, defects incident to lapse of time, etc., “ * * * if the construction is such that danger may be anticipated therefrom by reason of its very defects it is imminent or * * * inherent, even though it does not occur immediately or soon after use.” Colbert v. Holland Furnace Co., 241 Ill.App. 583, l. c. 592.

Next, appellants attack Instructions Nos. 1 and 3. Appellants say there was no evidence to support them; that the evidence as to original installation was uncertain and conflicting. There was ample evidence of improper and insecure installation, summarized above. Appellants see a conflict in the testimony given by Saul Rubin, claiming that having at first testified the ductwork was put up by straps attached to the joists, dropped down, and the ducts were fastened to the straps by metal screws, he later testified he was not sure how the work was done. Saul’s admissions, which were read into the record from a transcript, and his testimony given in person at the trial, considered as a whole, indicate no such conflict. Fairly interpreted, his testimony was that the usual, normal and proper method or procedure was as indicated, but that he did not know exactly how the work actually was done; that it had been five years, and although he had seen the work done, he didn’t “recall exactly what each operation was at any particular time”; that he was not there all the time the work was in progress. Appellants say there was insufficient hypothesization of how and in what manner and particulars the ductwork was “improperly and insecurely installed and affixed to the ceiling * * * ”: what type of improper installation existed which would thereafter cause it “in all reasonable probability” to “come loose and fall down”; what specific defect there was or the nature of the improper installation which “in the exercise of ordinary care” the partnership could have discovered or of which Ad-aber “knew or in the exercise of ordinary care should have known,” which should have been disclosed to National but which “could not be discovered by [National] by the exercise of ordinary care.” Appellants say that the insufficient hypothesization in these respects gave the jury a roving commission to find for plaintiff “on any unspecified theory of liability which they might concoct.” We think the submission was sufficiently specific; that the instructions properly submitted the ultimate facts constituting negligence, and that the jury was not given a roving commission.

Next, appellants complain of the admission in evidence of (a) testimony by Joseph Schrader that after the accident the partners arranged for the making of repairs to the ductwork, and his testimony as to the condition of the ductwork after it had fallen ; (b) photographs of the ductwork taken after it had fallen and had been removed to a parking lot. The complaint is that because of the time lapse the evidence did not tend to show the conditions as they existed at the time of the installation of the ductwork three years before; that the fall may have changed or altered the ductwork and its fastenings. This evidence was admissible to show the type of construction, the presence or absence of straps, and what type of object struck plaintiff.

Appellants say the trial court erred in refusing to grant a new trial and they were deprived of a fair and impartial trial because of the conduct of venireman. Nathaniel Bishop, who was selected as a juror and joined in the ten-member verdict. This general question was asked of the panel on voir dire examination: “Have any of you ever filed a claim against anyone for personal injuries involving any kind of an accident?” Bishop remained silent, notwithstanding he had received a back injury in an automobile collision six weeks before the instant trial; lost several days from work; received medical attention; incurred a $95 doctor bill; and had employed a lawyer the day after the collision, who immediately wrote and mailed a letter making claim against the driver of the other automobile, a claim settled after the instant trial for $800. Appellants discovered these facts and established them at a hearing on the motion for new trial, at which Bishop testified that there is a difference between “making” a claim and “filing” a claim; that to him “filing” a claim means filing it in court; that he had not spoken up because he had not filed, a claim in court. Whether a verdict shall be set aside for failure of a venireman to disclose some fact on voir dire which might reasonably affect his qualification to sit as a juror is a matter primarily within the sound discretion of the trial court, Hornberger v. St. Louis Public Service Co., Mo. Sup., 353 S.W.2d 635, 642, whose action is conclusive “unless an abuse of discretion unmistakably appears.” Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. In Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297, counsel inquired of the panel on voir dire as to any claims the veniremen or their relatives may have had against others for personal injury or property damage. Two veniremen remained silent although both of them had had' motor vehicular accidents and one of them, and a relative of the other had been paid sums in settlement. This Court held that since the testimony of the veniremen “indicates that these veniremen did not precisely understand what it was counsel meant by the word ‘claim,’ ” or had momentarily forgotten the accidents in which they had been involved, the trial court was justified in believing that there was no intentional concealment, misrepresentation, deception and prejudice. And see Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321, where on voir dire examination the jury was not questioned generally in respect to “all prior claims for personal injuries” but only in respect to “past or present lawsuits based thereon.” Bishop’s highly refined distinction between making and filing a claim provided the trial court with a basis for the exercise of its discretion in favor of a finding of no intentional concealment. Because of this, and because a scrupulous examination of the record reveals nothing upon which one’s finger can be put to indicate actual prejudice on the part of the juror, we cannot conscientiously conclude that an abuse of discretion unmistakably appears.

Appellants claim the verdict is excessive by $5,000 and that the court erred in refusing to order a remittitur. Plaintiff was 46 years old. He was healthy and in good physical condition. He coached children’s teams and played baseball, badminton, ping-pong, stepball and soccer. He was very active at home and at work. He had been employed by General Motors as a stock attendant since January, 1941. When the duct-work struck him it hit him on the head, glanced to his shoulder, and knocked him to the floor, with his leg doubled up underneath his body. The blow caused a compression fracture of the first lumbar vertebra. Bleeding from the head, in pain and unable to arise, he was placed on a stretcher and taken to the hospital, X-rayed, placed in a Jew-ett brace, and his bed adjusted to a hyper-extension position. He had a wound or open cut on his head; pain in his right shoulder, neck and back, dizziness, blackouts. Pain in his back and side was constant. He spent three weeks in the hospital, receiving heat treatments, massage to the shoulders, and mild head traction to relieve muscle spasm. After returning home he slept with a hump in his bed for nine weeks. He saw Doctor Roche every two weeks for two months, then every three weeks until October, then periodically. He wore the Jewett brace constantly for approximately four months, and thereafter a half a day on and a half a day off until August 4, 1958. He had constant pain in his back, neck and shoulders. His loss of wages approximated $2036. He returned to work on August 4, 1958 at a lighter type of employment, as a unitizer, at a reduced rate of pay. The cost of the Jewett brace was $86.70. A bed-spring and mattress cost $153. A bedboard cost $5.52. Dr. Roche’s bill was $424; that of Dr. Mueller, $110. The bill for X rays was $245. The hospital bill was $378.60. Eyeglasses broken by the falling ductwork cost plaintiff $29.68. At trial time plaintiff continued to suffer from dizziness, constant pain in the back and neck, periodic headaches, inability to turn his neck, and pain in his shoulder blade. His hips have stiffened, and when he turns he must turn his whole body. He loses sleep at night and has trouble getting in and out of automobiles. The pains in his neck and back are aggravated by any activity. He has suffered a change of personality. Before the accident he was easy to get along with, but now he is difficult; has become sarcastic — “very short and to the point.” His children irritate him. He “goes off to himself”; has crying spells two or three times a month, sometimes in the presence of his family. After testifying, he wept. After walking two blocks or so he is “all out of wind” and tired, and such a walk generates pain in his neck and back. He no longer participates in sporting activities. Plaintiff’s posture is not erect. He walks “bent over”; looks emaciated and is extremely nervous. The family doctor testified that the fracture of the spine caused his troubles; that plaintiff was “not the same man” he had known before the accident. Dr. Roche testified plaintiff has limitation of ability to rotate his head to the right, and stated the accident aggravated a pre-existing arthritic condition and is accountable to a degree for his present complaints; that it would not be wise for him to do sustained labor where he would have to lift weights of from one pound to 150 pounds, and that the plaintiff had reached his maximum benefit from medical treatment. To Dr. Mueller plaintiff complained that he was nervous, tense, irritable; that he would “go to pieces,” get shaky; that he could not listen to people and their problems ; that he had crying spells; that he had no sex relationship except once in three months; that lifting and stretching causes a pull in his back, a pain in the lower back, and that if he pulls his head down after being up, he gets dizzy; that he cannot get comfortable in bed, and feels “tired and beat up” when he arises in the morning. While Dr. Mueller could find no sensory or reflex changes, he found him restricted in his activities; that his body and head move as one mass; that he turns his head slowly, carries himself in a rather stiff position; and that he has a “tensional state,” a psychiatric condition or illness that “may tend to hang over and be present for some time,” although the doctor could not be definite about its duration. Dr. Funsch, testifying for defendant, noted that plaintiff appeared quite tense and complained of discomfort in the soft tissues in the back on the right side of the neck extending into the right shoulder girdle; discomfort over the soft tissues in the left flank and over the lumbo-sacral joint upon palpation; a mild diffuse soft tissue contracture over the low back; a slight impairment of motion of the spine as demonstrated on the flexion-extension films. He affirmed soft tissue involvement in his neck and in areas of his spine and that his complaints were attributable at least in part to his injury and the prolonged use of the brace; that plaintiff would have discomfort in his back for a further period; that plaintiff was pretty tense and would benefit from neurological treatment; that there is still some wedging of the first lumbar vertebra; that a person with arthritis may take a greater time to recover; that plaintiff would have discomfort four years after the accident and “a little more fatigueability than the next man.”

Appellants cite and rely upon Miller v. Multiplex Faucet Co., Mo.Sup., 315 S.W.2d 224, and Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 230 S.W.2d 856, in neither of which did plaintiff sustain a fracture. We have considered the injuries sustained by Miller and Osburn in comparison with the injuries sustained by Begley, as well as the cases cited by respondent, Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Martin v. Kansas City, Mo.Sup., 340 S.W.2d 645; Triplett v. Beeler, Mo.Sup., 268 S.W.2d 814; Lesch v. Terminal R. R. Ass’n of St. Louis, Mo.Sup., 258 S.W.2d 686, and Abernathy v. St. Louis-San Francisco Ry. Co., Mo.Sup., 237 S.W.2d 161. Balancing all of the pertinent factors, we have concluded there was no error in refusing to order a $5000 remittitur; that considering plaintiff’s age, condition of previous health and activity, the nature of the injury, the pain and suffering experienced and to be experienced in the future, the length of the plaintiff’s stay in the hospital, the period of his total disability, the reduction in the grade of his employment, his psychiatric involvement, the resulting limitation of his physical activity, past and future, the items of special damages, including loss of wages, the purchasing power of the dollar, and all the other factors properly to be weighed, a verdict for $20,000 is not excessive.

Appellants contend it was error to give Instruction No. 15 which authorized the jury to award damages for the X-ray, hospital and doctor bills, for the reason that plaintiff failed to prove that these bills rendered were reasonable; that the court should have ordered a remittitur as to them. There was no evidence that these bills had been paid, or that they were reasonable in amount. Respondent says the reasonableness of the various medical expense items was not a contested issue; that the brace, mattress and springs, bedboard and eyeglasses were paid for and that evidence of payment will support an instruction on medical expenses, without proof of reasonableness, under Gooch v. Avsco, Inc., Mo.Sup., 340 S.W.2d 665, 668, 669; Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697, 706, 707; and Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938, 941; that an acknowledgment of the indebtedness authorizes the submission of an instruction allowing damages for medical charges, under Cordray v. City of Brookfield, supra, and Cordray v. City of Brookfield, Mo.Sup., 88 S.W.2d 161, 164. The reasonableness of the bills, however, was a contested issue. Evidence as to the amounts of the doctors’ bills was objected to on the ground that they improperly included the cost of preparing for trial, and we find no concession that otherwise they were reasonable. There was no acknowledgment of the indebtedness of the X-ray, doctor and hospital bills. Doctors’ bills, Vogelgesang v. Waelder, Mo.App., 238 S.W. 2d 849, 857, and hospitalization, Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 290, are items of special damage, and to be allowed must be supported by substantial evidence of their reasonable value. The same applies to X-ray bills. In the absence of evidence of reasonable value, Dr. Roche’s bill ($424), Dr. Mueller’s bill ($110), the X-ray bill ($245) and St. John’s Hospital bill ($378.-60), should have been remitted, in the total sum of $1157.60.

The verdict of the jury finding the issues for plaintiff “and against both of the defendants” is said to be erroneous and insufficient to sustain a verdict against any defendant, because it cannot be determined which two of the three defendants (Saul Rubin, Louis Rubin or Adaber Realty & Investment Company) were included and which one of them was excluded from the verdict. Two entities were sued, a partnership and a corporation. There was a separate submission by separate instructions against each. Instruction No. 1 authorized a verdict against Saul Rubin and Louis Rubin, as partners. Instruction No. 3 authorized a verdict against the corporation. Construing the verdict liberally, Thorne v. Thorne, Mo.Sup., 350 S.W.2d 754, 757[3], we experience no difficulty in concluding that the clear intent of the jury by this verdict was to find the issues against both entities and to return a verdict against Saul Rubin and Louis Rubin, as partners, and against the corporation, notwithstanding the jury’s intent was inartfully expressed.

Accordingly, if plaintiff within 15 days shall enter here a remittitur of $1157.60 the judgment shall stand affirmed for $18,842.40 as of the date of its rendition; and otherwise the judgment will be reversed and the cause remanded. It is so ordered.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.